WT/DS595/R  
 
29 April 2022 
(22-3329)  Page: 1/92 
  Original: English  
 
  
EUROPEAN  UNION  – SAFEGUARD  MEASURES   
ON CERTAIN  STEEL  PRODUCTS  (DS595)  
REPORT OF THE PANEL  
 
 
 
 
 WT/DS595/R  
 
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  TABLE OF CONTENTS  
1   INTRODUCTION  ................................ ................................ ................................ ........  12 
1.1   Complaint by Turkey  ................................ ................................ ................................ ...12 
1.2   Panel establishment and composition  ................................ ................................ ............ 12 
1.3   Panel proceedings  ................................ ................................ ................................ .......12 
2   FACTUAL ASPECTS: THE MEASURES AT ISSUE  ................................ ...........................  14 
3   PARTIES'  REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  15 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  15 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  15 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 15 
7   FINDINGS  ................................ ................................ ................................ .................  15 
7.1   The measures on which the Panel will make findings  ................................ ....................... 16 
7.2   Product scope  ................................ ................................ ................................ ............ 17 
7.2.1    The applicable requirements of Article  XIX:1(a)  of the  GATT  1994 and Articles  2.1, 3.1, 
4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the  Agreement on Safeguards  ................................ .......... 18 
7.2.2    Whether Turkey has established that the definitive safeguard is inconsistent with 
Article  XIX:1(a)  of the  GATT  1994 and Articles  2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the 
Agreement on Safeguards with regard to product scope ................................ .......................... 21 
7.2.2.1    The alleged mismatch between the products on which the European  Commission applied 
a safeguard and the products for which the European  Commission investigated the existence of 
the necessary circumstances and conditions  ................................ ................................ .......... 21 
7.2.2.1.1    Article  XIX:1(a) of the GATT 1994 and Article  2.1 of the Agreement on Safeguards  ....22 
7.2.2.1.2    Articles  4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards  .......................... 28 
7.2.2.2    The alleged internal inconsistency in the approach to product scope  ............................ 28 
7.3   Unforeseen developments ................................ ................................ ............................ 30 
7.3.1   The applicable requirements of Article  XIX:1(a) of the GATT 1994  ................................ .31 
7.3.2    Whether Turkey has established that the definitive s afeguard is inconsistent with 
Article  XIX:1(a) of the GATT 1994 with regard to unforeseen developments  .............................. 33 
7.3.2.1    Whether the Euro pean Commission did not identify any unforeseen developments  ........ 33 
7.3.2.2    Whether the developments were not unforeseen  ................................ ....................... 35 
7.3.2.3    Whether the European  Commission did not establish that the increase in imports was 
"as a result of" the unforeseen devel opments  ................................ ................................ ........ 40 
7.3.2.3.1    Whether the European  Commission did not do enough to establish how the unforeseen 
developments had resulted in  the increase in imports into the European  Union  .......................... 40 
7.3.2.3.2    Unforeseen developments relating to steel in general  ................................ ............. 48 
7.3.2.3.3    The timing of the Section  232 measures  ................................ ............................... 48 
7.3.2.3.4    Overall conclusion on the connection between the unforeseen developments and the 
increase in imports  ................................ ................................ ................................ ............. 48 
7.4   The effect of obligations  ................................ ................................ .............................. 48 
7.4.1    The applicable requirements of Article  XIX:1(a) of the GATT 1994  ................................ .49 
7.4.2    Whether Turkey has established that the definitive safeguard is inconsistent with 
Article  XIX:1(a) of the GATT 1994 with regard to the "effect of the obligations"  ......................... 50 
7.5   Increase in imports  ................................ ................................ ................................ .....51 WT/DS595/R  
 
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  7.5.1    The applicable requirements of Article  XIX:1(a) of the GATT 1994 and A rticles  2.1 and 
4.2(a) of the Agreement on Safeguards  ................................ ................................ ................ 52 
7.5.2    Whether Turkey has established that the definitive safeguard is inco nsistent with 
Article  XIX:1(a) of the GATT 1994 and Articles  2.1 and 4.2(a) of the Agreement on Safeguards  ..52 
7.5.2.1    Whether the European  Commission did not adequately account for decreases  in imports 
in the most recent past  ................................ ................................ ................................ .......52 
7.5.2.2    Whether th e European  Commission did not demonstrate that the increase in imports 
was sufficiently sharp, significant, sudden, and recent  ................................ ............................ 53 
7.5.2.3   Overall conclusion on the European  Commission's  determination of an increase in 
imports   ................................ ................................ ................................ ............................ 55 
7.6   Threat of serious injury  ................................ ................................ ............................... 55 
7.6.1    The applicable requirements of Articles  4.1(a), 4.1(b), and 4.2(a) of the Agreement  on 
Safeguards  ................................ ................................ ................................ ........................ 56 
7.6.2    Whether Turkey has established that the definitive safeguard is inconsistent with 
Articles  4.1(a), 4.1(b), and 4.2(a) of t he Agreement on Safeguards  ................................ ......... 56 
7.6.2.1    Whether the European  Commission did not provide a reasoned and adequate explanation 
of its d etermination of threat of serious injury  ................................ ................................ .......56 
7.6.2.1.1    Whether any improvement in the domestic industry's  situation necessarily neg ates a 
finding of threat of serious injury  ................................ ................................ ......................... 57 
7.6.2.1.2    Whether the European  Commission adequately explained the basis for the domestic 
industry's  improved performance  ................................ ................................ ......................... 58 
7.6.2.1.3    Whether the European  Commission improperly inferred that improvements owing to 
the AD/CV measures would be temporary and reversible  ................................ ........................ 63 
7.6.2.1.4    Whether the European  Commission identified other factors contributing to the domestic 
industry's  improved performance that demonstrate its vulnerability to increased imports  ............ 65 
7.6.2.1.5    Conclusion on the explanation for the determination of threat of serious injury  .......... 66 
7.6.2.2    Whether the European  Commission did not establish a high likelihood of serious injury 
in the very near future  ................................ ................................ ................................ ........ 66 
7.6.2.3    Turkey's  consequential arguments relating to the European  Commission's determination 
of threat of serious injury  ................................ ................................ ................................ ....69 
7.6.2.4    Overall conclusion on threat of serious injury  ................................ ........................... 69 
7.7   Causation  ................................ ................................ ................................ .................. 70 
7.8   Applying the safeguard only to the extent and time necessary to prevent serious injury  ......70 
7.8.1    Article  5.1 of the Agreement on Safeguards  ................................ ................................ 71 
7.8.1.1    The appl icable requirements of Article  5.1 of the Agreement on Safeguards  ................. 71 
7.8.1.2    Whether Turkey has established that the definitive saf eguard is inconsistent with 
Article  5.1 of the Agreement on Safeguards  ................................ ................................ .......... 72 
7.8.1.2.1    Whether the definitive safeguard is inconsistent with Article  5.1 because the 
European  Commission did not take into account data from the first six months of 2018 in 
determining the size of the TRQs  ................................ ................................ ......................... 72 
7.8.1.2.2    Whether the definitive safeguard is inconsistent with Article  5.1 because the 
European  Commission did not conduct a proper causation analysis  ................................ .......... 73 
7.8.1.2.3    Whether the double remedy regulation rendered the definitive safeguard inconsistent 
with Article  5.1 ................................ ................................ ................................ .................. 74 
7.8.2    Article  7.1 of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994  ......... 76 
7.9   The allocation of shares in the TRQs  ................................ ................................ ............. 76 
7.9.1    Article  XIII:2 of the GATT 1994  ................................ ................................ ................. 76 WT/DS595/R  
 
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  7.9.1.1    The applicable requirements of Article  XIII:2 of the GATT 1994  ................................ ..77 
7.9.1.2    Whether Turkey has established that the definitive safeguard is inconsistent with 
Article  XIII:2(d) of the GATT 1994  ................................ ................................ ....................... 78 
7.9.1.2.1    The representative period argument  ................................ ................................ .....78 
7.9.1.2.2    The special factor argument  ................................ ................................ ................ 81 
7.9.1.3    Whether Turkey has established that the definitive safeguard is inconsistent with the 
chapeau  of Article  XIII:2 of the GATT 1994  ................................ ................................ ........... 82 
7.9.2    Article  5.2(a) of the Agreement on Safeguards  ................................ ............................ 82 
7.10   Reduction in the pace of liberalization and increased restrictiveness  ................................ 84 
7.10.1    Article  7.4 of the Agreement on Safeguards  ................................ .............................. 84 
7.10.1.1    The applicable requirements of Articl e 7.4 of the Agreement on Safeguards  ............... 84 
7.10.1.2    Whether Turkey has established that the definitive safeguard is inconsistent with  
Article  7.4 of the Agreement on Safeguards  ................................ ................................ .......... 85 
7.10.1.2.1    Whether the reduction in the pace of liberalization was inconsistent  
with Article  7.4 ................................ ................................ ................................ .................. 85 
7.10.1.2.2    Whether certain modifications to the definitive safeguard resulted in  
an inconsistency with Article  7.4 ................................ ................................ .......................... 88 
7.10.2    Article 5.1 of the Agreement on Safeguards  ................................ .............................. 89 
7.11   Article  II:1 of the GATT 1994  ................................ ................................ ..................... 90 
8   CONCLUSIONS, RECOMMENDATION, AND REQUEST FOR A SUGGESTION  ..................  90 
 
 
  WT/DS595/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 of the Panel for the first substantive meeting  11 
Annex  A-3 Additional Working Procedures of the Panel for the second substantive meeting  15 
Annex  A-4 Additional Working Procedures of the Panel 18 
Annex  A-5 Interim Review  19 
ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Turkey  39 
Annex  B-2 Integrated executive summary of the arguments of the European  Union  57 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Argentina  78 
Annex  C-2 Integrated executive summary of the arguments of Brazil  81 
Annex  C-3 Integrated executive summary of the arguments of Canada  84 
Annex  C-4 Integrated executive summary of the arguments of Japan  86 
Annex  C-5 Integrated executive summary of the arguments of the Republic of Korea  90 
Annex  C-6 Integrated executive summary of the arguments of Switzerland  95 
Annex  C-7 Integrated executive summary of the arguments of Ukraine  100 
Annex  C-8 Integrated executive sum mary of the arguments of the United Kingdom  102 
Annex  C-9 Integrated executive summary of the arguments of the United  States  105 
 
 WT/DS595/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R , adopted 12  January  2000, DSR 2000:I, p.  515 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12  January  2000, as modified by Appellate Body 
Report WT/D S121/AB/R, DSR 2000:II, p.  575 
Argentina – Poultry Anti -Dumping 
Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19  May 2003, DSR 2003:V, p.  1727 
Argentina – Preserved Peaches  Panel Report, Argentina – Definitive Safeguard Measure on Imports of 
Preserved Peaches , WT/DS238/R , adopted 15  April 2003, DSR 2003:III, 
p. 1037 
Argentina – Textiles and Apparel  Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, 
Apparel and Other Items , WT/DS56/R , adopted 22  April 1998, as modified 
by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p.  1033 
Australia – Anti-Dumping 
Measures on Paper  Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper , 
WT/DS529/R  and Add.1, adopted 28  January  2020 
Chile – Price Ba nd System  Panel Report, Chile – Price Band System and Safeguard Measures Relating 
to Certain Agricultural Products , WT/DS207/R , adopted 23  October  2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p.  3127 
China – Electronic Payment 
Services  Panel Report, China – Certain Measures Affecting Electronic Payment 
Services , WT/DS413/R  and Add.1, adopted 31  August  2012, DSR 2012:X, 
p. 5305 
Dominican Republic – Safeguard 
Measures  Panel Report, Dominican Republic – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417/R , WT/DS418/R , and Add.1, adopted 22  February  2012, 
DSR 2012:XIII, p.  6775 
EC – Bananas III ( Article  21.5 – 
Ecuador II) / EC – Bananas III 
(Article  21.5 – US) Appellate Body Reports, European  Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 
11 December  2008, and Corr.1 / European C ommunities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article  21.5 of 
the DSU by the United  States , WT/DS27/AB/RW/USA  and Corr.1, adopted 
22 December  2008, DSR 2008:XVIII, p.  7165 
EC – Bananas III (Article  21.5 – 
Ecuador)  Panel Report, European Communities – Regime for the Importation, Sale 
and Distribution of Bananas – Recourse to Article 21.5 of the DSU by 
Ecuador , WT/DS27/RW/ECU , adopted 6  May 1999, DSR 1999:II, p.  803 
EC – Export Subsidies on Sugar 
(Australia)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Australia , WT/DS265/R , adopted 19  May 2005, as modified by 
Appellate Body Report WT/DS265/AB/ R, WT/DS266/AB/R, 
WT/DS283/AB/R, DSR 2005:XIII, p.  6499 
EC – Export Subsidies on Sugar 
(Brazil)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Brazil , WT/DS266/R , adopted 19  May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, 
WT/DS283/AB/R, DSR 2005:XIV, p.  6793 
EC – Export Subsidies on Sugar 
(Thailand)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Thailand , WT/DS283/R , adopted 19  May 2005, as modified by 
Appellate Body Report WT/DS265 /AB/R, WT/DS266/AB/R, 
WT/DS283/AB/R, DSR 2005:XIV, p.  7071 
EC – Trademarks and 
Geographical Indications 
(Australia)  Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Compla int 
by Australia , WT/DS290/R , adopted 20  April 2005, DSR 2005:X, p.  4603 
EC – Trademarks and 
Geographical Indications (US)  Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint 
by the United States , WT/DS174/R , adopted 20  April 2005, DSR 2005:VIII, 
p. 3499 
EU – PET (Pakistan)  Panel Report, European Union – Counterva iling Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS48 6/R, Add.1 and Corr.1, 
adopted 28  May 2018, as modified by Appellate Body Report 
WT/DS486/AB/R, DSR 2018:IV, p.  1739 WT/DS595/R  
 
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  Short Title  Full Case Title and Citation  
EU – Poultry Meat (China)  Panel Report, European Union – Measures Affecting Tariff Concessions on 
Certain Poultry Meat Products , WT/DS492/R  and Add.1, adopted 
19 April 2017, DSR 2017:III, p.  1067 
Guatemala  – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R , adopted 17  November  2000, 
DSR 2000:XI, p.  5295 
India – Iron and Steel Products  Panel Report, India – Certain Measures on Imports of Iron and Steel 
Products , WT/DS518/R  and Add.1, circulated to WTO Members 
6 November  2018 [appealed by India 14  December  2018 – the Division 
suspended its work on 10  December  2019] 
India – Quantitative Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22  September  1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p.  1799 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, 
DSR 2000:I, p.  3 
Mexico – Steel Pipes and Tubes  Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from 
Guatemala , WT/DS331/R , adopted 24  July 2007, DSR 2007:IV, p.  1207 
Pakistan – BOPP Film ( UAE) Panel Report, Pakistan – Anti-Dumping Measures on Biaxially Oriented 
Polypropylene Film from the United Arab Emirates , WT/DS538/R  and Add.1, 
circulated to WTO Members 18  January  2021 [appealed by Pakistan 
22 February  2021] 
Ukraine – Passenger Cars  Panel Report, Ukraine – Definitive Safeguard Measures on Certain 
Passenger Cars , WT/DS468/R  and Add.1, adopted 20  July 2015, 
DSR 2015:VI, p.  3117 
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain 
Products from the European Communities , WT/DS165/AB/R , adopted 
10 January  2001, DSR 2001:I, p.  373 
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R , adopted 19  February  2009, 
DSR 2009:III, p.  1291 
US – Cotton Yarn  Panel Report, United States – Transitional Safeguard Measure on Combed 
Cotton Yarn from Pakistan , WT/DS192/R , adopted 5  November  2001, as 
modified by Appellate Body Report WT/DS192/AB/R, DSR 2001:XII, 
p. 6067 
US – Fur Felt Hats  GATT Working Party Report, Report on the Withdrawal by the  United States 
of a Tariff Concession under Article  XIX of the  General Agreement on Tariffs 
and Trade , adopted  22 October  1951, GATT/CP/106  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16  May 2001, DSR 2001:IX, 
p. 4051 
US – Lead and Bismuth II  Panel Report, United States – Imposition of Countervailing Duties on 
Certain Hot -Rolled Lead and Bismuth Carbon Steel Products Originating in 
the United Kingdom , WT/DS138/R  and Corr.2, adopted 7  June 2000, upheld 
by Appellate Body Report WT/DS138/AB/R, DSR 2000:VI, p.  2623 
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Ci rcular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted  8 March  2002, DSR 2002:IV, p.  1403 
US – Line Pipe  Panel Report, United States – Definitive Safeguard Measures on Imports of 
Circular Welded Carbon Quality Line Pipe from Korea , WT/DS202/R , 
adopted 8  March  2002, as modified by Appellate Body Report 
WT/DS202/AB/, DSR 2002:IV, p.  1473 
US – Offset Act (Byrd 
Amendment)  Panel Report,  United States – Continued Dumping and Subsidy Offset Act of 
2000, WT/DS217/ R, WT/DS234/R , adopted 27  January  2003, as modified 
by Appellate Body Report  WT/DS217/AB/R, WT/DS234/AB/R, DSR 2003:II, 
p. 489 
US – Safeguard Measure on PV 
Products (China)  Panel Report, United  States – Safeguard Measure on Imports of Crystalline 
Silicon Photovoltaic Products , WT/DS562/R  and Add.1, circulated to WTO 
Members 2 September  2021 [appealed by China 16  September  2021] WT/DS595/R  
 
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  Short Title  Full Case Title and Citation  
US – Steel Safeguards  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10  December  2003, 
DSR 2003:VII, p.  3117 
US – Steel Safeguards  Panel Reports, United S tates – Definitive Safeguard Measures on Imports of 
Certain Steel Products , WT/DS248/R  and Corr.1 / WT/DS249/R  and Corr.1 / 
WT/DS251/R  and Corr.1 / WT/DS252/R  and Corr.1 / WT/DS253/R  and 
Corr.1 / WT/DS254/R  and Corr.1 / WT/DS258/R  and Corr.1 / WT/DS259/R  
and Corr.1, adopted 10  December  2003, as modified by Appellate Body 
Report WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/ R, 
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, DSR 2003:VIII, p.  3273 
US – Underwear  Panel Report, United States – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/R , adopted 25  February  1997, as 
modified by Appellate Body Report WT/DS 24/AB/R, DSR 1997:I, p.  31 
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short title (if any)  Description  
EU-2  WTO statistic s on antidumping initiations by sector  
EU-3  WTO statistic s on countervailing initiations by sector  
EU-7 Presentation at the 
83rd session of the 
OECD Steel Committee  H. Otsuka, "Recent developments in steel trade and trade policies" 
presentation at the 83rd session of the OECD Steel Committee held in Paris 
on 28 September  2017 
EU-8 Chair's statement at 
the 83rd session of the 
OECD Steel Committee  Statement dated 28  September  2017 of L. Top, Chair of the OECD Steel 
Committee at the 83rd session of the OECD Steel Committee  
EU-9 Chair's statement at 
the 84th session of the 
OECD Steel Committee  Statement dated 5  March  2018 of the Chair at the 84th session  of the OECD 
Steel Committee  
EU-10  Cover letter (11  April 2018)  
EU-12  Calculation deflection  
EU-13  Estimate of imports to the US that will be deflected  
EU-16 Presentation at the 
84th session of the 
OECD Steel Committee  OECD presentation, "Steel trade and trade policy developments: a closer look 
at NTMs", 84th session  of the OECD Steel Committee  
EU-17  Global Forum on Steel Excess Capacity Report (30 November  2017) 
EU-23 European Commission's 
Communication "Steel: 
Preserving Sustainable 
Jobs and Growth"  Communication from the Commission to the European Parliament, the 
European Council, the Council, the European Economic and Social Committee, 
the Committee of the Regions and the European Investment Bank, "Steel: 
Preserving sustainable jobs and growth in Eu rope" (16  March  2016)  
TUR-1 Notice of initiation  Notice of initiation of a safeguard investigation concerning imports of steel 
products, Official Journal of the European Union, C Series, No.  111 
(26 March  2018) pp.  29-35  
TUR-2 Amendment to the 
notice of initiation  Notice amending the notice of initiation of a safeguard investigation 
concerning the imports of steel products, Official Journal of the 
European  Union, C Series, No.  225 (28  June 2018), pp. 54 -56  
TUR-3 Provisional 
determination  Commission Implementing Regulation (EU) No.  2018/1013 of 17  July 2018 
imposing provisional safeguard measures with regard to imports of certain steel 
products, Official Journal of the European Union, L Series, No.  181 
(18 July 2018), pp.  39-83 
TUR-5 Definitive 
determination  Commission Implementing Regulation (EU) No.  2019/159 of 
31 January  2019 imposing definitive safeguard measures against imports of 
certain steel products, Official Journal of the European Union, Series L, No.  31 
(1 February  2019), pp.  27-74 
TUR-7 Double remedy 
regulation  Commission Implementing Regulation (EU) No.  2019/1382 of 
2 September  2019 amending certain regulations imposing anti -dumping or 
anti-subsidy measures on certain steel products subject to safeguar d 
measures, Official Journal of the European Union, Series L, No.  227 
(3 September  2019), pp.  1-25 
TUR-9 First review regulation  Commission Implementing Regulation (EU) No.  2019/1590 of 
26 September  2019 amending Implementing Regulation (EU) No.  2019/159 
imposing definitive safeguard measures against imports of certain steel 
products, Official Journal of the European Union, Series L, No.  248 
(27 September  2019), pp.  28-64 
TUR-10 European  Commission 
Implementing 
Regulation (EU) 
2020/35  Commission Implementing Regulation (EU) 2020/35 of 15  January  2020 
amending Implementing Regulation (EU) 2019/159 imposing definitive 
safeguard measures against imports of certain steel products, Official Journal 
of the European Union, Series L, No. 12 (16 January  2020), pp.  13-16 
TUR-12 Second review 
regulation  Commission Implementing Regulation (EU) No.  2020/894 of 29  June 2020 
amending Implementing Regulation (EU) No.  2019/159 imposing definitive 
safeguard measures against imports of certain steel pr oducts, Official Journal 
of the European Union, Series L, No. 206 (30  June 2020), pp.  27-62 
TUR-14 Questionnaire for 
exporting producers  European Commission, safeguard questionnaire for exporting producers  
TUR-15 Questionnaire for 
domestic producers  European Commission, safeguard questionnaire for Union producers  
TUR-18  Note to the file (11 April 2018) 
TUR-19  Updated note to the file (2 July 2018) 
TUR-21 Global Trade Alert 
Report, "Going Spare"  S. Evenett and J. Fritz, Going Spare: Steel, Excess Capacity, and 
Protectionism (The 22nd Global Trade Alert Report ) (CEPR Press,  May 2018)  
TUR-39  Commission Regulation (EC) No 1694/2002 of 27  September  2002 imposing 
definitive safeguard measures against imports of certain steel products, 
Official Journal of the European Union, L Series, No.  261 
(28 September  2002), pp.  1-123 WT/DS595/R  
 
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  Exhibit  Short title (if any)  Description  
TUR-40  Questionnaire response of ThyssenKrupp Steel Europe GmbH  
TUR-49  List of anti -dumping and countervailing measures in place at the time of the 
imposition of the provisional safeguard measures  
 
 WT/DS595/R  
 
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
AD/CV  anti-dumping/countervailing  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT 1994  General Agreement on Tariffs and Trade 1994  
MRP most recent period  
POI period of investigation  
PV photovoltaic  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SPS sanitary and phytosanitary  
TRQ tariff-rate quota  
WTO World Trade Organization  
  WT/DS595/R  
 
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  1  INTRODUCTION  
1.1  Complaint  by Turkey  
1.1.  On 13  March  2020, Turkey requested consultations with the European  Union pursuant to 
Articles  1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(DSU), Article  XXIII:1 of the General  Agreement on Tariffs and Trade 1994 (GATT 1994),  and 
Article  14 of the  Agreement on Safeguards with respect  to the measures and claims set out below.1 
1.2.  Consultations were held on 29  April 2020 but failed to resolve the dispute.  
1.2  Panel  establishment  and composition  
1.3.  On 16  July 2020, Turkey requested the establishment of a panel pursuant to Article  6 of the 
DSU and Article  14 of the  Agreement on Safeguards with standard terms of reference.2 At its meeting 
on 28  August  2020, the Dispute Settlement Body (DSB ) establishe d a panel pursuant to the request 
of Turkey in document WT/DS 595/3, in accordance with Article  6 of the DSU.3 
1.4.  The Panel's  terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the part ies to the dispute, the matter referred to the DSB by Turkey in document 
WT/DS595/3 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 29  September  2020, the partie s agreed that the panel would be composed as follows:  
Chairperson:  Mr William Davey  
 
Members:   Ms Silvia Lorena Hooker Ortega  
   Mr Marco Tulio Molina Tejeda  
1.6.  Argentina, Brazil, Canada, China, India, the Republic of Korea, Japan, Norway, 
the Russian  Federa tion, Switzerland, Chinese Taipei, Ukraine, the United Arab Emirates, 
the United  Kingdom, and the United States notified their interest in participating in the 
Panel  proceedings as third parties.  
1.3  Panel  proceedings  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures5 on 
26 October  2020, the Additional Working Procedures of the Panel for the first substantive meeting6 
on 31  March  2021, and the Additional Working Procedures of the Panel for the second 
substantive  meeting7 on 2 June 2021. To give effect to certain requests made jointly by the parties 
on 22 March 2022, and after consulting the parties, the Panel also adopted further Additional 
Working Procedures on 1 April 2022 .8  
1.8.  After consultation with the parties, t he Panel adopted a partial timetable  on 26  October  2020 
and revised the timetable  on 25  November  2020, 9  February  2021, 22  March  2021, 2  June 2021, 
25 October  2021, and 3 November 2021 . The timetable  adopted by the Panel on 26  October  2020 
envisaged that the Eu ropean  Union would file its first written submission by 22  December  2020. 
However, on 23  November  2020, the European  Union requested the Panel to extend the deadline 
for the submission of its first written submission to 15  January  2021. On 24  November  2020, 
 
1 Request for consultations by Turkey, WT/DS595/1 (Turkey's  consultation request).  
2 Request for establishment of a panel by Turkey, WT/ DS595/3  (Turkey's  panel request) . 
3 DSB, Minutes of the meeting held on 28  August  2020, WT/DSB/M/444.  
4 Constitution note  of the Panel, WT/DS595/4.  
5 Working Procedures of the Panel (Annex  A-1). 
6 Additional Working Procedures of the Panel for the first substantive meeting  (Annex  A-2). 
7 Additional Working Procedures of the Panel for the second substantive meeting (Annex  A-3). 
8 See Agreed procedures for arbitration under Article  25 of the DSU , WT/DS595/1 0; Additional Working 
Procedures of the Panel  (Annex A -4); and paragraph  1.9 below . WT/DS595/R  
 
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  Turkey  opposed the European  Union's  request. After considering both parties' positions, the 
Panel  granted the European  Union's  request and accordingly revised the timetable  on 
25 November  2020. On 8  February  2021, the European  Union requested the Panel t o extend (a)  the 
deadline for filing responses to the questions sent by the Panel to the parties on 5  February  2021 
from 12  February  2021 to 26  February  2021; and (b)  the deadline for filing the second written 
submission from 5  March  2021 to 19  March  2021.  On 9  February  2021, Turkey opposed the 
European  Union's  request. After considering both parties'  positions, the Panel revised the 
timetable  on 9 February  2021, partially granting the European  Union's  request by changing the two 
deadlines to 19  February  2021 and 12  March 2021, respectively. On 27  May 2021, the 
European  Union asked the Panel to extend the deadline for filing comments on the other 
party's  responses to the Panel 's questions after the first substantive meeting from 4  June 2021 to 
18 June 2021. On 27  May 2021, Turkey opposed the European Union's  request. After considering 
both parties' positions, the Panel partially granted the European Union's  request by changing the 
deadline to 8  June 2021.  The revised timetable issued by the Panel on 25  October  2021 set the date 
for the parties to request review of precise aspects of the interim report and/or to request an 
interim  review meeting as 5  November  2021, and the deadline for the parties to comment on the 
other party's review requests and for th e interim review meeting (if requested) as 
12 November  2021. On 2  November  2021, Turkey requested the Panel to change the two dates to 
12 November  2021 and 19  November  2021 respectively. The European Union did not object to 
Turkey's request. In light of both parties' positions, the Panel revised the tim etable on 
3 November  2021, granting Turkey's request.  
1.9.  The Panel held a first substantive meeting with the parties on 4, 5, and 6  May 2021. A session 
with the third parties took place on 5  May 2021. According to paragraph  15 of the 
Working  Procedures adopted by the Panel, the Panel retained the discretion to  hold a second 
substantive meeting with the parties upon request by either party. On 17  May 2021, the 
European  Union requested the Panel to hold a second su bstantive meeting. On 20  May 2021, 
Turkey  opposed the European  Union's  request. After considering both parties' positions, the 
Panel  granted the European  Union's  request and held a second substantive meeting with the parties 
on 22 and 23  June 2021. Because  of restrictions due to the COVID -19 pandemic, the 
Panel  conducted both substantive meetings via secure videoconference.9 On 19  August  2021, the 
Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to 
the par ties on 29 October  2021. The Panel issued its Final Report to the parties on 
10 December  2021. The Panel Report was scheduled to be circulated on 21  December  2021. 
On 20 December  2021, Turkey requested the Panel to suspend its work, pursuant to Article  12.12 
of the DSU, until 21  January  2022, and the European Union did not object. The Panel granted the 
suspension request.10 Subsequently, Turkey filed three requests to extend the suspension of the 
Panel's work pursuant to Article  12.12 of the DSU, until 11  February  2022, 25  February  2022, and 
25 March  2022, respectively. The European Union did not object to any of the three r equests. The 
Panel granted these requests.11 On 22  March  2022, the European Union and Turkey transmitted to 
the Panel a document signed by both parties entitled "Agreed Procedures for Arbitration under 
Article  25 of the DSU" (Agreed Procedures).12 Through the Agreed Procedures, the parties jointly 
requested the Panel to extend indefinitely the suspension of its work pursuant to Article  12.12 of the 
DSU, except to the extent necessary for the Panel to effect certain steps set out in the 
Agreed  Procedures. On  24 March  2022, the Panel decided to grant that suspension request.13 To 
give effect to the parties' requests, made through the Agreed Procedures, that the Panel undertake 
certain steps relating to the report of the Panel and to the record of the Panel pro ceedings, the Panel 
adopted the Additional Working Procedures referred to at paragraph  1.7 above.  Through the Agreed 
Procedures, paragraph 6, the parties also jointl y requested the Panel to resume its work if neither 
party initiated arbitration under the Agreed Procedures within 30 days from the date on which the 
Agreed Procedures were notified to the DSB. Neither party initiated such arbitration, and on 
26 April 2022 the parties confirmed their request that the Panel resume its work. The Panel Report 
was therefore circulated on 29 April  2022.   
 
9 The Panel adopted additional working procedures for each of these meetings. (See  fns 6-7 above).  
10 See Suspension of Panel Work  dated 21 December 2021 , WT/DS595/6.  
11 See Suspension of Panel Work  dated 20 January 2022, WT/DS595/7 ; Suspension of Panel Work dated 
10 February 2022, WT/DS595/8 ; and Suspension of Panel Work  dated 25 February 2022, WT/DS595/9.  
12 See Agreed procedures for arbitration under Article 25 of the DSU , WT/DS595/10.  
13 See Communication from the Panel dated 24 March 2022, WT/DS595/11 . WT/DS595/R  
 
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  2  FACTUAL  ASPECTS:  THE MEASURES  AT ISSUE  
2.1.  In its panel request, Turkey identified the measures at issue as "the provisional and definitive 
safeguard measures imposed by the European  Union on the imports of certain steel products and 
the investigation leading to the imposition of those measures". Turkey indicated that those measures 
"cover[ed] all decisions, notices,  notifications and regulations" specifically mentioned in the panel 
request, and "include[d] any amendments, supplements, reviews, replacement, renewals, 
extensions, implementing measures and any other related measures taken by the European  Union 
in relati on to the investigation and/or the safeguard measures at issue".14 Turkey repeated this 
formulation in its first written submission.15 
2.2.  In response to a question from the Panel, Turkey clarified that its challenge to the 
"investigation" leading to the impos ition of the provisional and definitive safeguards was not distinct 
from its challenge to the provisional and definitive safeguards themselves.16 
2.3.  The legal instrument setting out the provisional safeguard measures on certain steel products 
(the "provisiona l safeguard")  is Commission Implementing Regulation (EU)  No. 2018/1013 of 
17 July 2018 imposing provisional safeguard measures with regard to imports of certain steel 
products (the "provisional determination").17 
2.4.  The legal instruments setting out the defin itive safeguard measures on certain steel products 
("definitive safeguard"18) include:  
a. Commission Implementing Regulation (EU) No.  2019/159 of 31  January  2019 imposing 
definitive safeguard measures against imports of certain steel products (the 
"definitive  determination")19; 
b. Commission Implementing Regulation (EU)  No. 2019/1382 of 2  September  2019 
amending certain regulations imposing anti -dumping or anti -subsidy measures on certain 
steel products subject to safeguard measures (the "double remedy regulation ")20; 
c. Commission Implementing Regulation (EU)  No. 2019/1590 of 26  September  2019 
amending Implementing Regulation (EU)  No. 2019/159 imposing definitive safeguard 
measures against imports of certain steel products  (the "first review regulation")21;  
d. Commiss ion Implementing Regulation (EU) No.  2020/35 of 15  January  2020 amending 
Implementing Regulation (EU)  No. 2019/159 imposing definitive safeguard measures 
against imports of certain steel products22; and  
e. Commission Implementing Regulation (EU)  No. 2020/894 of 29  June 2020 amending 
Implementing Regulation (EU)  No. 2019/159 imposing definitive safeguard measures 
against imports of certain steel products (the "second review regulation").23  
 
14 Turkey's  panel request, para.  17. Paragraph  17 of the panel request refers to sections  1.1-1.4 of the 
panel request, which describe in more detail the legal instruments comprising the challenged measures. 
(See also Turkey's  request for consultations, pa ra. 17).  
15 Turkey's  first written submission, para.  34. 
16 Turkey's  response to Panel question No.  15, para.  1.  
17 Provisional determination, (Exhibit TUR -3). 
18 Turkey requested the  Panel to refer to this as "definitive safeguards", in the plural. 
(Turkey's  comments on the descriptive part of the Panel Report, para. 2.4). The Panel has rejected the 
request, without prejudice to the Panel's consideration of the question whether there is a single 
definitive  safeguard or multiple definitive safeguards, which the Panel discusses in paras.  7.43-7.57 below. 
Turkey made an equivalent request also for the provisional safeguard. ( Turkey's  comments on the 
descriptive  part of the Panel Report, para. 2.3). 
19 Definitive determination, (Exhibit TUR -5). The definitive det ermination incorporates by reference  
certain findings and reasoning set out in the provisional determination.  
20 Double remedy regulation, (Exhibit TUR -7). 
21 First review regulation, (Exhibit TUR -9). 
22 European Commission Implementing Regulation (EU) 2020/ 35, (Exhibit TUR -10). 
23 Second review regulation, (Exhibit TUR -12). WT/DS595/R  
 
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  3  PARTIES'  REQUESTS  FOR FINDINGS  AND RECOMMENDATIONS  
3.1.  Turkey requests the Panel to find that the measures at issue are inconsistent with Articles  2.1, 
3.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a), 4.2(b), 4.2(c), 5.1, 5.2(a), 6, 7.1, and 7.4 of the  Agreement on 
Safeguards, and with Articles  II:1(b), XIII:2 chapeau , XIII:2(d), and XIX:1(a)  of the  GATT  1994.24  
3.2.  Turkey requests, pursuant to Article  19.1 of the DSU, that the Panel recommend that the 
European  Union bring its measures into conformity with its obligations under the  Agreement on 
Safeguards and the  GATT  1994.25 In addition, Turkey requests the Panel to suggest, pursuant to the 
second sentence of Article  19.1 of the DSU, that the European  Union  implement that 
recommendation by revok ing the measures at issue .26 
3.3.  The European  Union requests that the Panel reject Turkey's  claims in this dispute in their 
entirety.27  
4  ARGUMENTS  OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph  22 of the Working Procedures adopted by the Pa nel (see Annexes  B-1 
and B -2). 
5  ARGUMENTS  OF THE THIRD  PARTIES  
5.1.  The arguments of Argentina, Brazil, Canada, Japan, the Republic of Korea, Switzerland, 
Ukraine, the United  Kingdom, and the United  States are reflected in their executive summaries, 
provided in accordance with paragraph  22 of the Working Procedures adopted by the Panel (see 
Annexes  C-1, C -2, C -3, C -4, C -5, C -6, C -7, C -8, and C -9). China, India,  Norway, 
the Russian  Federation, Chinese Taipei , and the United Arab Emirates did not provide the Panel with 
a third -party submission and did not make an opening oral statement at the third -party session of 
the first substantive meeting with the Panel.  
6  INTERIM  REVIEW  
6.1.  On 29  October  2021, the Panel issue d its Interim Report to the parties. On 12  November  2021,  
Turkey and the European Union submitted their written requests for review. On 19  November  2021, 
the parties submitted comments on the other parties' written requests for review.  
6.2.  The parties' requests made at the interim review stage as well as the Panel' s discussion and 
disposition of those requests are set out in Annex  A-5. 
7  FINDINGS  
7.1.  Turkey claims that the provisional and definitive safeguards on certain steel products adopted 
by the European Union in July  2018 and January  2019, respectively, are inconsis tent with a number 
of provisions of the Agreement on Safeguards and the  GATT  1994.  
7.2.  Below, we begin by considering whether we should make findings on both these measures, or 
only on the definitive safeguard, and we decide to make findings only on the defin itive safeguard 
(section  7.1).  
7.3.  Our subsequent discussion follows the structure of Turkey's  arguments. We therefore 
examine28, in turn, the following aspects of the definitive safeguard: the 
European  Commission's  approach to product scope (section  7.2); unforeseen developments 
(section  7.3); the effect of obligations under the GATT 1994 (section  7.4); the increase in imports 
(section  7.5); threat of injury (section  7.6); causation (section  7.7); whether the safeguard was 
 
24 Turkey's  first written submission, para.  381; second written submission, para.  268. 
25 Turkey's  first written submission, para.  382; second written submission, para.  269. 
26 Turkey's  first written submission, para.  382; second written submission, para.  269. 
27 European  Union's  first written submission, para.  313. 
28 In some instances, we exerc ise economy.  WT/DS595/R  
 
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  applied beyond the extent and time necessary to prevent serious injury (section  7.8); the allocation 
of shares in the tariff rate quotas that are one element of the definitive safeguard (section  7.9); 
whether the European Union did not progressively liberalize the safeguard and in fact made it more 
restrictive over time (section  7.10); and whether the out -of-quota duty that is another element of 
the definitive safeguard is a duty or charge inconsistent with Article  II:1(b) of the  GATT  1994 
(section  7.11).  
7.1  The measures  on which  the Panel  will make  findings  
7.4.  We recall that Turkey challenged (a) the provisional safeguard and (b) the definitive safeguard 
applied by the European  Union on imports of certain steel products, as set out in more detail in 
section  2 above. Below, we discuss whether we should make findings on the provisional safeguard.  
7.5.  In response to a question from the Panel, Turkey has confirmed that the provisional safeguard 
is no longer in force, having been replac ed by the definitive safeguard.29 The European  Union has 
not argued otherwise. It is therefore undisputed that the provisional safeguard is no longer in force.  
7.6.  At the same time, Turkey has observed that the regulation that applied the provisional 
safeguar d (which we refer to as the provisional determination) is still in force.30 In response to a 
further question from the Panel, Turkey has indicated that this means that " the legal basis remains 
to collect provisional safeguard measures retroactively " and, in support for this proposition, refers 
to findings of the panel in India – Iron and Steel Products .31  
7.7.  In this regard, we note that in these proceedings whether the provisional determination 
continues to provide the basis to collect out -of-quota safeguard duties is a question of fact. The 
findings of a different panel regarding the effects of a different safeguard adopted by a different 
Member cannot serve to establish as a matter of fact the effects of the provisional determination 
adopted by the European  Union. In this case, we note that the reference to the findings of the panel 
in India – Iron and Steel Products  is the only support that Turkey has provided for its statement that 
duties could still be collected retroactively under the prov isional safeguard. In other words, Turkey 
has not provided the Panel with any evidence that duties are either continuing to be collected, or 
could be collected, by the European  Union under the provisional safeguard at issue, and it has also 
stated that the  provisional safeguard is no longer in force.32  
7.8.  Article  6.2 of the DSU does not limit to measures still in existence "the specific measures at 
issue" that can be brought before a panel. A panel may, therefore, issue findings on an 
expired  measure where th e panel believes it is necessary to do so to resolve a dispute. Conversely, 
a panel need not make findings on an expired measure where such findings are not necessary to 
resolve the dispute .33 In addition, we note that when a panel does make findings on an  
expired  measure, the fact that the measure has expired may affect the recommendations a panel 
may make pursuant to Article  19.1 of the DSU, which requires panels to make recommendations "to 
bring the measure  into conformity" with the covered agreements.34  
7.9.  In this instance, Turkey concedes that the provisional safeguard is no longer in force. 
Turkey  claims that the provisional safeguard is inconsistent with Article  6 for a subset of the reasons 
for which it claims the definitive safeguard is inconsistent with other provisions of the Agreement on 
Safeguards. Indeed, Turkey makes no distinction between its arguments against the provisional 
safeguard and the corresponding arguments against the definitive safeguard.35 Given that the 
provisional sa feguard is no longer in force, and that Turkey challenges the provisional safeguard for 
some of the same reasons for which it challenges the definitive safeguard, we do not consider that 
 
29 Turkey's  response to Panel question No.  1, paras.  2 and 4.  
30 Turkey's  response to Panel question No.  1, para.  4. 
31 Turkey's  response to Panel question No.  16, para.  2 (referring to Panel Report, India – Iron and Steel 
Products  [appealed by India on 14  December  2018, appealed by Japan on 21  December  2018]).  
32 We also note that Article  9 of the definitive determination provides that any amounts paid under the 
provisional determination "shall be definitively collected", which indic ates that it is the definitive determination 
that provides the basis for the definitive collection of duties on imports covered by the provisional safeguard.  
33 See e.g. Panel Reports, China  – Electronic  Payment  Services , paras.  7.226 -7.229; and Argentina  – 
Textiles  and Apparel , para.  6.15.  
34 DSU, Article  19.1 (emphasis added). See e.g. Appellate  Body Report, US – Certain  EC Products , 
para. 81; and Panel Report, EU – PET (Pakistan) , para. 8.3. 
35 See e.g. Turkey's  first written submission, paras.  49-76. WT/DS595/R  
 
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  making findings on the consistency of the provisional safeguard with the covered agreements is 
necessary to resolve the dispute, and we therefore refrain from making such findings.  
7.10.   Notwithstanding this, we note that the provisional determination forms part of the record in 
the underlying investigation that led to the adopti on of the definitive safeguard, and that the 
definitive determination refers to part of the findings and reasoning set out in the 
provisional  determination. Therefore, although we decline to make findings on the consistency with 
the covered  agreements of t he provisional safeguard as a challenged measure, we still consider the 
provisional determination as appropriate when examining Turkey's  claims against the 
definitive  safeguard.  
7.2  Product  scope  
7.11.   Turkey claims that the definitive safeguard is inconsistent wit h Article  XIX:1(a)  of 
the GATT  1994 and Articles  2.1, 3.1, 4.1(c),  4.2(a),  4.2(b),  and 4.2(c)  of the Agreement  on 
Safeguards, based on two sets of arguments.  
7.12.   First, Turkey argues that the European  Commission applied 26 distinct safeguards, on  
26 products,  but did not examine whether the circumstances and conditions for imposing a safeguard 
existed for each of those products individually. We refer to this as the "mismatch" argument. 
According to Turkey, this gives rise to an inconsistency with Article  XIX:1 (a) of the GATT  1994 and 
Articles  2.1, 4.1(c),  4.2(a),  and 4.2(b)  of the Agreement  on Safeguards.36  
7.13.   Second, Turkey argues that the European  Commission adopted an internally inconsistent 
approach to product scope at different stages of the investigation an d application of the measures. 
We refer to this as the "internal inconsistency" argument. According to Turkey, this gives rise to an 
inconsistency with Article  XIX:1(a)  of the GATT  1994 and Articles  2.1, 3.1, 4.1(c),  4.2(a),  4.2(b),  
and 4.2(c)  of the Agreement  on Safeguards.37 
7.14.   We note that within each of these sets of arguments, Turkey presents its arguments for the 
most part without distinguishing among the various claims it has raised. That is, Turkey sets out its 
arguments typically without spec ifying to what claim(s) each refers, and then cites a string of 
provisions in its concluding paragraphs; the Panel has sought some clarification in this regard but 
has obtained only very limited clarification.38  
7.15.   To Turkey's  arguments, the European  Union r esponds that it adopted a single 
definitive  safeguard on certain steel products comprising 26  product categories, and that it 
ascertained the existence of the circumstances and conditions necessary for imposing a safeguard 
on the product as thus defined.39 As regards the allegation of internal inconsistency, the 
European  Union responds that it did, as required, conduct an objective and unbiased evaluation and 
set out its findings and reasoned conclusions, and that the Agreement on Safeguards does not 
contai n, in addition, the "internal consistency" requirement invoked by Turkey.40  
7.16.   Among the third parties, Canada, the Republic of Korea, the United Kingdom, and the 
United  States argue that the authority has discretion to define the product under investigation  but 
must then verify whether the circumstances and conditions for applying a safeguard to that product 
are met.41 Argentina and Switzerland question how the authority could demonstrate the existence 
 
36 See e.g. Turkey's  first written submission, para.  67. See, more broadly, Turkey 's first written 
submission, paras.  50-67; and second written submission, paras.  17-46. 
37 See e.g. Turkey's  first wr itten submission, para.  76; response to Panel question No.  17, para.  3. See, 
more broadly, Turkey 's first written submission, paras.  68-76; and second written submission, paras.  48-54. 
38 The second set of arguments is presented in support of the same claim s as the first set of arguments, 
plus Articles  3.1 and 4.2(c) of the Agreement on Safeguards. (Turkey's  response to Panel question No.  17, 
para. 3). 
39 European Union's first written submission, paras.  27-46; second written submission, paras.  1, 3-5, 
7-16, and 24 -29. 
40 European Union's first written submission, paras.  25-58; second written submission, paras.  1, 6, 
17-23, and 28 -29. 
41 Canada's  third-party submission, paras.  12-13 and 15; Korea's  third-party submission, paras.  7-9; 
United Kingdom's  third-party submission, paras.  4-11; Canada's  third-party statement, para.  9; 
United  Kingdom's  third-party statement, paras.  4-6; United States'  third-party responses to Panel question 
Nos. 1 and 2, paras.  1-7. WT/DS595/R  
 
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  of the conditions for imposing a safeguard for the produ ct under investigation if it modified the 
product groupings depending on the condition it was examining .42 Switzerland adds that the 
authority must use a method that is unbiased and objective and that allows for a reasoned and 
adequate explanation of how t he facts support the determination that the imports covered by a 
safeguard measure satisfy the conditions for applying the measure .43 Switzerland also takes the 
view that there are contradictions both in the record of the domestic proceedings and in the 
EU arguments.44 Japan recalls that if a safeguard is applied to specific products, it is not enough to 
demonstrate the existence of the conditions for imposing a safeguard for a broad category of 
products that includes the product under investigation.45 Argentina considers that the question 
before the Panel is primarily a factual one, i.e. whether the European  Commission applied a 
single  safeguard on a single product, or a number of safeguards. Argentina notes that this question 
is central because the Europea n Commission was required to verify the existence of the necessary 
conditions for the product on which it applied a safeguard. Further, Argentina notes that the 
European  Commission was required to conduct the investigation in an objective and unbiased 
mann er, and that if an authority relies on different product groupings at different steps of its analysis, 
that might cast doubt on whether the investigation was objective and unbiased.46 For its part, 
Ukraine cautions that " including a wide list of products may result in artificial and incorrect findings 
in the framework of such categories ' injury examination and, as a result, may lead to distorted 
findings of an investigation ".47 
7.17.   Canada considers that the Panel must assess whether the European  Commission 
demonstrated that it was appropriate to exclude certain product categories from the analysis.48 
The United Kingdom takes the view that we must examine whether the exclusion of cert ain product 
categories affected the analysis, and cautions against finding that a Member errs by adopting a 
narrower safeguard than it is entitled to apply.49 Argentina indicate s that a Member may exclude a 
subset of the product concerned from the applicat ion of a safeguard and, in that case, the imports 
of the excluded subset are a factor for which the authority must perform a non -attribution analysis 
pursuant to Article  4.2(b) of the Agreement on Safeguards.50 Brazil and Switzerland take the view 
that a M ember may exclude a subset of the product concerned from the application of a safeguard 
and, if it does so, it must exclude the corresponding imports from the analysis of increased imports.51 
7.18.   We recall that Turkey sets out its arguments on product scope mo stly without specifying to 
what claim or claims each argument refers, and then cites a string of provisions in its concluding 
paragraphs.52 Therefore, in this section, we first examine the requirements of all of the provisions 
with which Turkey claims an i nconsistency, and we then examine, in turn, each of Turkey's  two sets 
of arguments.  
7.2.1   The a pplicable  requirements  of Article  XIX:1(a)  of the GATT  1994  and Articles  2.1, 
3.1, 4.1(c),  4.2(a),  4.2(b),  and 4.2(c)  of the Agreement  on Safeguards  
7.19.   As noted, Turkey brings a number of claims related to the product scope of the 
EU investigation and of the ensuing safeguard. That is, Turkey claims that the definitive safeguard 
is inconsistent with Article  XIX:1(a) of the GATT 1994, and Articles  2.1, 3.1, 4.1(c), 4.2(a),  4.2(b), 
and 4.2(c) of the Agreement on Safeguards. We consider each of these provisions below.  
7.20.   Article  XIX:1(a) of the  GATT  1994 provides : 
 
42 Argentina's  third-party statement, para.  7; Switzerlan d's third-party submission, para.  11.  
43 Switzerland's  third-party submission, para.  7. 
44 Switzerland's  third-party submission, para.  10.  
45 Japan's  third-party submission, paras.  9 and 17 (referring to the Panel Reports and Appellate  Body 
Report in US – Steel Safeguards ).  
46 Argentina's  third-party statement, paras.  5-7. 
47 Ukraine's  third-party statement, paras.  11-12. 
48 Canada's  third-party submission, para.  16; third -party statement, paras.  5-6. 
49 United Kingdom's  third-party statement, paras.  9-10. See also United  Kingdom's third -party response 
to Panel question No.  2, paras.  6-8. 
50 Argentina's third -party response to Panel question No.  2. 
51 Brazil's third -party response to Panel question No.  2; Switzerland's  third-party response to Panel 
question No . 2. 
52 See para.  7.14 above.  WT/DS595/R  
 
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  If, as a result of unforeseen developments and of the effect of the obligations incurred 
by a contracting party under this Agreement, including tariff concessions, any product  
is being imported into the territory of that contracting party in such increased q uantities 
and under such conditions as to cause or threaten serious injury to domestic producers 
in that territory of like or directly competitive products, the contracting party shall be 
free, in respect  of such product , and to the extent and for such tim e as may be necessary 
to prevent or remedy such injury, to suspend the obligation in whole or in part or to 
withdraw or modify the concession.53  
7.21.    Article  XIX:1(a) states that "if" the circumstances and conditions specified therein are met 
for "any product ", a Member is free to apply  a safeguard "in respect of such product". Th us, under  
Article  XIX:1(a), a safeguard may be applied on a product only if the circumstances and conditions 
necessary to apply the safeguard have been verified for that same product .  
7.22.   Our understanding accords with the findings in US – Steel Safeguards  and India – Iron and 
Steel Products  that if a required circumstance or condition is not found to exist specifically for the 
product(s)  under  investigation , the application of a safeguar d on that product is inconsistent with 
Article  XIX:1(a). In those two proceedings, the panels found that the authority had not explained 
how the unforeseen developments, which related to steel in general, had resulted in an increase in 
imports of the speci fic products under investigation, and that therefore the safeguards applied on 
those products were inconsistent with Article  XIX:1(a).54 
7.23.   Similarly, Article  2.1 of the  Agreement on Safeguards provides that a Member may apply a  
safeguard "to a product" "only if" that Member has determined that certain conditions are met in 
respect of "such product". That  is, the product on which a safeguard is applied must be the same as 
the product for which the Member has determined that the c onditions for applying a safeguard are 
met. If a Member applies a safeguard on a product for which it has not determined that the conditions 
are met, it acts inconsistently with Article  2.1. 
7.24.   The last sentence of Article  3.1 of the Agreement on Safeguards p rovides:   
The competent authorities shall publish a report setting forth their findings and reasoned 
conclusions reached on all pertinent issues of fact and law.  
7.25.   Article  3.1 thus requires authorities to set forth their findings and "reasoned" conclusions o n 
"all pertinent issues of fact and law" in their published reports.  
7.26.   The ordinary meaning of "finding" includes an instance of " coming across or discovering 
something … as the result of searching or enqu iry", "something which is found", and "the result of  
a[n] … enquiry".55 The ordinary meaning of "conclusion" includes a "final result, outcome" and "a  
judgement or statement arrived at by any reasoning process ".56 And the ordinary meaning of 
"reasoned" includes "c haracterized by or based on reasoning; caref ully studied ".57 The last sentence 
of Article  3.1 therefore requires authorities to set forth in their published reports what they have 
found, as the result of searching or enquiry, and the conclusions (outcome, final result) they have 
reached from their f indings. These conclusions must be "based on reasoning", "carefully studied".  
7.27.   As to the scope of the necessary findings and reasoned conclusions, the last sentence of 
Article  3.1 specifies that these must cover "all pertinent issues of fact and law". The ordinary 
 
53 Emphasis added . 
54 Panel Reports, US – Steel Safeguards , paras.  10.126, 10.147, and 10.150; India – Iron and Steel 
Products  [appealed by India on 14  December  2018, appealed by Japan on 21  December  2018], 
paras.  7.111 -7.112 and 7.122; and Appellate  Body Report, US – Steel Safeguards , paras.  314-319. 
55 Oxford Dictionaries online, definition of "finding", n., meanings 2(a), 2(b),  and 6(a), 
https://www.oed.com/view/Entry/70356?rskey=Qnw27c&result=2&isAdvanced=false#eid  (accessed 
20 September  2021).  
56 Oxford Dictionaries online, defi nition of "conclusion", n., meanings 2 and 5(a), 
https://www.oed.com/view/Entry/38312?redirectedFrom=conclusion#eid  (accessed 20  September  2021).  
57 Oxford Dictionaries online, definition of "reasoned", adj.2,  
https://www.oed.com/view/Entry/159078?rskey=0Idv1P&result=3&isAdvanced=false#eid  (accessed 
20 September  2021).  WT/DS595/R  
 
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  meaning of "pertinent" includes " referring or relating to; relevant; t o the point; apposite ".58 Article  3 
is a provision on the "investigation" that is required for a Member to be able to apply a safeguard 
measure, and Article  3.1 specifies certain procedural requirements relating to such an investigation. 
This suggests that  the "pertinent", i.e. relevant, issues of fact and law are those that must be 
established through the investigation, and specifically those that must be established for a Member 
to be able to apply a safeguard measure. We therefore agree with previous fin dings to the effect 
that the pertinent issues of fact and law within the meaning of Article  3.1 include the circumstances 
and conditions that must be demonstrated in order to apply a safeguard and that are set forth in 
Article  2.1 of the Agreement on Safeg uards and Article  XIX:1(a) of the GATT 1994.59 
7.28.   Article  4.1(c) of the Agreement on Safeguards defines the domestic industry. One of the 
conditions that must be determined to exist to apply a safeguard is serious injury or threat of serious 
injury "to the do mestic industry that produces like or directly competitive products".60 
Article  4.1(c)  defines the domestic industry as "the producers as a whole of the like or directly 
competitive products operating within the territory of a Member, or those whose collec tive output of 
the like or directly competitive products constitutes a major proportion of the total domestic 
production of those products". Thus, given a product under investigation, the authority must 
ascertain injury or threat of injury to the domestic industry producing the products that are "like or 
directly competitive" with that product.  
7.29.   We note that the panel in Argentina  – Footwear  (EC) was called upon to assess whether the 
authority had erred by not examining each injury factor for each segment of the market for the like 
or directly competitive products. In that dispute, Argentina had defined the like or directly 
competitive products as  all footwear except s ki boots. In collecting data from the domestic  industry, 
Argentina had requested a breakdown into five product segments, but it had not then examined 
each injury factor for each of the five product segments separately, and the Europea n Union argued 
that, by not doing so, Argentina had acted inconsistently with Articles  2 and  4 of the Agreement on 
Safeguards. The panel rejected that argument of the European  Union. The panel reasoned 
that, given that the definition of like or directly co mpetitive products (all footwear except s ki boots) 
was not disputed, that definition was decisive . Therefore Argentina was "required at a minimum to 
consider each injury factor with respect to all footwear" and was not required to consider each injury 
factor for each segment of the like or competitive products on a disaggregated basis, although it 
could do so.61 We agree with the assessment of that panel, because a Member is required to verify 
the existence of the necessary circumstances and conditions for the product under investigation as 
a whole (in the injury determination, for the corresponding like or directly competitive products as 
a whole), and not necessarily on a disaggregated basis.  
7.30.   Article  4.2(a) of the Agreement on Safeguards provides that in determining whether increased 
imports have caused or threatened serious injury to the domestic industry, the authorities "shall 
evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation 
of that industry", and it also lists certain relevant factors.  
7.31.   Article  4.2(b) of the Agreement on Safeguards provides that to determine causation, the 
authorities must "demonstrate[], on the basis of objective evidence, the existence of a causal link 
between the increased imports  of the product concerned  and serious injury or threat thereof", and 
must not attribute to the increased imports injury that is due to other factors. Thus, it must be 
increased imports "of the product" under investigation that cause injury or threat of inj ury to the 
industry producing the like or directly competitive products.  
7.32.   Finally, Article  4.2(c) of the Agreement on Safeguards provides:  
The competent authorities shall publish promptly, in accordance with the provisions of 
Article  3, a detailed analysis  of the case under investigation as well as a demonstration  
of the relevance of the factors examined.  
 
58 Oxford Dictionaries online, definition of  "pertinent", adj., meaning 3 , 
https://www.oed.com/view/Entry/141602?redirectedFrom=pertinent #eid (accessed 20  September  2021).  
59 See e.g. Appellate  Body Report, US – Lamb , para.  72. 
60 Agreement on Safeguards, Article  2.1. 
61 Panel Report, Argentina  – Footwear  (EC), paras.  8.112 -8.116 and 8.135 -8.137.  WT/DS595/R  
 
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  7.33.   Article  4.2(c)  thus reiterates, with reference to the analysis of injury and causation addressed 
in Article  4.2, the obligation set out in the last senten ce of Article  3.1, and requires in particular 
"a detailed analysis of the case" and a demonstration of the relevance of the factors examined.  
7.34.   It is also worth noting what the provisions considered in this section do not discipline, namely 
the choice of the  product under investigation, in itself. These provisions do not set out rules for 
selecting the product under investigation, and for example they do not prevent a Member from 
including a range of products in a single investigation. We thus agree with the panel in 
Dominican  Republic  – Safeguard  Measures  that while the Agreement on Safeguards requires the 
authority to define the product under investigation, it does not set out requirements such as 
restricting the product under investigation "solely to those products that are like or directly 
competitive w ith each other".62 In that instance , the product under investigation comprised 
polypropylene bags (the end product) and polypropylene tubular fabric (the input product for 
polypropylene bags). The panel in that dispute explained that the authority could in clude 
"two separate products" in the product under investigation, and was not under an "obligation to 
provide an explanation of why two separate products were treated as the product under investigation 
in the same proceeding". It therefore found that no in consistency had been established on that 
basis.63  
7.2.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
Article  XIX:1(a)  of the GATT  1994  and Articles  2.1, 3.1, 4.1(c),  4.2(a),  4.2(b),  and 4.2(c)  
of the Agreement  on Safeguards  with regard  to product  scope  
7.35.   We now assess whether Turkey has established that the definitive safeguard is inconsistent 
with the provisions outlined in the previous section.  
7.36.   We recall that Turkey has grouped its arguments into two sets, i.e.  (a) that the 
European  Commission applied 26 distinct definitive safeguards, on 26 products, but did not examine 
whether the circumstances and conditions for imposing a safeguard existed for each of those 
products individually (the mismatch argument); and (b) that t he European  Commission's  approach 
to product scope in the investigation and application of the safeguards was internally inconsistent 
(the internal inconsistency argument). We address these two sets of arguments in turn.  
7.37.   Before discussing the parties'  specific arguments and setting out our findings, we note a point 
of terminology. In the underlying investigation, the European  Commission used the terms "products" 
and "product categories" somewhat interchangeably to refer to the range of products/product 
categories covered by its investigation. In their arguments before us, the European  Union mostly 
refers to "product categories" and Turkey mostly refers to "products". As we explain below, we do 
not consider that the use of either of these phrases decides the outcome of Turkey's  claims.64 For 
consistency of style, we will use the phrase "product categories" to refer to the range of 
products/product categories covered by the EU investigation, except in certain instances when 
referring to arguments of a party or citing  record documents that use the term "products" instead.  
7.2.2.1   The alleged  mismatch  between  the products  on which  the European  Commission  
applied  a safeguard  and the products  for which  the European  Commission  investigated  
the existence  of the necessary  circumstances  and conditions  
7.38.   Turkey argues that the European  Commission applied 26 distinct definitive safeguards, on  
26 products, without examining whether the circumstances and conditions for imposing a safeguard 
existed for each of those products individua lly.65 Specifically, Turkey argues that:  the 
European  Commission has applied distinct safeguards on 26 products66; the European  Commission 
did not examine unforeseen developments and their connection with the increase in imports for each 
of the 26 products  individually67; although the European  Commission examined the data on increase 
 
62 Panel Report, Dominican  Republic  – Safeguard  Measures , paras.  7.177 and 7.181.  
63 Panel Report, Dominican  Republic  – Safeguard  Measures , paras.  7.176 -7.182.  
64 See para.  7.53 below.  
65 Turkey's  first written submission, paras.  37-38, 42 -48, and 50 -67; second written submission, 
paras.  17-46.  
66 Turkey's  first written submission, paras.  42-48 and 54 -58; second written submission, paras.  32-46; 
and opening statement at the first meeting o f the Panel, para.  6. 
67 Turkey's  first written submission, paras.  61 and 141 -142. WT/DS595/R  
 
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  in imports for each of the 26 products individually, it did not base its determination of an increase 
in imports on such data68; and the European  Commission did not examine threat of injury69 and 
causation70 for each of the 26  products individually. Therefore, according to Turkey, there is a 
mismatch between the products to which the European  Commission  has applied the safeguard, on 
the one hand, and the products for which it has investigated the existence of the circumstances and 
conditions required to apply the safeguard, on the other . 
7.39.   The European  Union  disputes Turkey's  characterization of the fact s underpinning this line of 
argument,  namely that it has applied a number of distinct safeguards on distinct products. 
The European  Union asserts that it investigated "certain steel products" globally as the product 
under investigation, and applied provision al and definitive safeguards on that product. 
The European  Union asserts that its examinations at the level of individual product categories and 
then at the level of three "product families" merely supplemented its examination of the 
circumstances and cond itions at the level of the product as a whole; that it carried out such additional 
examinations out of diligence; and that where it did carry out these additional examinations, they 
confirmed the findings reached for the product concerned globally.71  
7.40.   Turkey responds to the European  Union's  argument that the European  Commission adopted 
a single safeguard by asserting that if the European  Commission had really applied a single 
safeguard on a single product under investigation, that product should have stayed  the same 
throughout the investigation. Turkey asserts that this was not the case here, given that the 
European  Commission began with 28 products, applied a provisional safeguard on 23 products, and 
applied definitive measures on 26 products.72 The Europea n Union responds that it chose not to 
apply measures to those product categories for which it had not observed an increase in imports, 
and that therefore when verifying the existence of the circumstances and conditions necessary to 
apply a safeguard, it ex cluded those product categorie s.73 
7.41.   Turkey brings a single set of arguments on product scope in support of its series of claims 
under Article  XIX:1(a) of the GATT 1994 and Articles  2.1, 4.1(c), 4.2(a), and 4.2(b)  of the 
Agreement on Safeguards, without specifying  which argument supports which of these individual 
claims.  We consider, first, the claims of inconsistency under Article  XIX:1(a) of the GATT 1994 and 
Article  2.1 of the Agreement on Safeguards (section  7.2.2.1.1 ) and, second, the claims of 
inconsistency under Articles  4.1(c), 4.2(a), and 4.2(b)  of the Agreement on Safeguards 
(section  7.2.2.1.2 ). 
7.2.2.1.1   Article  XIX:1(a)  of the GATT  1994  and Article  2.1 of the Agreement  on 
Safeguards  
7.42.   We recall that under Article  XIX:1(a) of the GATT 1994 and Article  2.1 of the Agreement on 
Safeguards, a Member may apply  a safeguard to a product only if it has verified the existence  of the 
required circumstances and conditions for that same product. In other words, the product(s) to 
which the Member applies a safeguard  must be the same as the product(s) for which the Member 
has verified the existence of the circumstances and conditions for adopting the safeguard.  
7.43.   With this in mind, we turn to the facts to assess the merits of the parties ' respective  
arguments.  
7.44.   In its n otice of initiation, the European  Commission described the "products subject to th[e] 
investigation" as "certain steel products (the 'products concerned') … listed in Annex I to th[e] 
Notice". That annex listed 26 "products concerned". The notice used inte rchangeably the phrases 
"products" and "product categories". The notice specified that there was sufficient evidence to initiate 
 
68 Turkey's  first written submission, paras.  62 and 170 -173. In other words, Turkey's  argument is that 
the determination was based on the data for the 26 product categories ta ken together, and on the data for the 
three product families. (Turkey's  first written submission, para.  62 (referring to Definitive determination, 
(Exhibit TUR -5), recitals  32-36 and 47)).  
69 Turkey's  first written submission, paras.  63, 226 -229, and 254 -257. 
70 Turkey's  first written submission, para.  64.  
71 European  Union's  first written submission, paras.  21-23; second written submission, paras.  11-15. 
72 Turkey's  opening statement at the first meeting of the Panel, para.  12. 
73 European  Union's  responses to  Panel question No.  6, paras.  18-19; and No.  7, paras.  21-22; opening 
statement at the first meeting of the Panel, paras.  22-23. See also European  Union's  second written 
submission, para.  46. WT/DS595/R  
 
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  the investigation both for the product concerned as a whole and for some or all product categories, 
and that the investigation would "examine the situation of the products concerned, including the 
situation of each of the product categories individually" .74 The European  Commission later amended 
the notice of initiation, to add two more "steel product categories" to the scope of th e investigation, 
and in so doing it updated among others the figures on total volume of imports, to include the 
additional product categories.75 
7.45.   In its questionnaires both for exporting producers and for domestic producers, the 
European  Commission describe d the product under investigation as "certain steel products", and 
asked respondents to provide certain data "separately for each of the products concerned".76, 77, 78  
7.46.   In the provisional determination, the European  Commission explained that it found:  
[A]n important interrelation and strong competition between products classified in 
different product categories and also between products at different production stages 
within certain categories as some of the categories contain the main raw or input 
material to produce other products in other product categories.79 
7.47.   The European  Commission observed that, "as a consequence, given this level of interrelation, 
competitive pressure can easily be shifted from one product to the other"80, and further explained 
that: 
Because of these interrelations and interconnections, and given the fact that – as will 
be explained below – the potential trade diversion resulting from the US Section  232 
measures applies to all product categories … the analysis for the purpose of the 
provisional determination has been carried out both globally for all 28 product categories 
 
74 Notice of initiation, (Exhibit TUR -1), p.  29 and annex.  
75 Amen dment to the notice of initiation,  (Exhibit TUR -2), p.  54.  
In notes to the file following the original notice of initiation and its amendment, which were made 
available to interested parties, the European Commission referred to "products concerned" or "pr oduct 
categories", and provided data for the various product categories concerned taken together. In addition to the 
data for all product categories together, in some instances, the European Commission also provided or referred 
to data for individual produ ct categories. ( Note to the file (11 April 2018), (Exhibit TUR -18); Updated note to 
the file (2 July 2018), (Exhibit  TUR-19). See also European Union's response to Panel question No.  3; second 
written submission, para.  14; and request for interim review, p . 1). 
76 Questionnaire for exporting producers, (Exhibit TUR -14), cover page and section D, heading D.1; 
Questionnaire for domestic producers, (Exhibit TUR -15), cover page and section E, heading E.1. The 
questionnaire for exporting producers requested infor mation by product category on production, capacity, 
captive use, stock variation, sales volume, value and price by destination market (the respondent's domestic 
market, the European Union, the United States, and other markets), consumption in the 
responden t's domestic  market, current and foreseen production and capacity on the respondent's domestic 
market (in the European Union and worldwide), future plans for production, capacity, and sales in the event 
that the European  Union did, or did not, adopt a safe guard, and information on factors other than trends in 
imports that might have caused or threatened serious injury to the EU industry. (Questionnaire for exporting 
producers, (Exhibit TUR -14), section D). The questionnaire for exporting producers also requ ested information 
for all product categories taken together on sales volume and value by destination markets, and on the 
comparability of the imported and domestic products. (Questionnaire for exporting producers, 
(Exhibit  TUR-14), sections C.7, C.9, and C .10). The questionnaire for domestic producers requested 
information by product category on the comparability of the imported and domestic products, on production, 
capacity, sales, stocks, profitability, return on capital employed, cash flow, employment, " any information" on 
the exporters' behaviour in the EU market and their current or likely future export capacity, and on the 
expected consequences of the US Section 232 measures. (Questionnaire for domestic producers, (Exhibit 
TUR-15), section E). The ques tionnaire for domestic producers also requested information for all product 
categories taken together on turnover by destination and on whether safeguard measures would be in the 
Union interest. (Questionnaire for domestic producers, (Exhibit TUR -15), sect ions D.1 and F).  
77 Turkey submitted a questionnaire response showing that a responding domestic producer provided 
data on injury factors at the level of product categories. ( Questionnaire response of ThyssenKrupp Steel Europe 
GmbH , (Exhibit TUR -40); Turke y's second written submission, para.  26; and request for interim review, 
para. 8). 
78 The cover letter for the questionnaire for domestic producers indicated that the information requested 
therein was meant to " assist the Commission in establishing global d ata relating to the Union steel industry ". 
(Cover letter (11  April 2018) , (Exhibit EU -10), p. 1; European Uni on's request for interim review , p. 1). 
79 Provisional determination, (Exhibit TUR -3), recital  13. 
80 Provisional determination, (Exhibit TUR -3), recital  16. WT/DS595/R  
 
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  as the product concerned (i.e. steel in various shapes and forms) and also at individual 
level for each product category.81 
7.48.   In its provisional determination, having rev iewed import trends for all 28 product categories, 
the European  Commission found that imports of five product categories had not increased between 
2013 and 2017. On that basis, it decided to exclude them from the scope of the 
provisional  safeguard, without  prejudice to the possibility of imposing a definitive safeguard on 
them. The  European  Commission then performed every step in its analysis underlying the 
provisional  safeguard for the remaining 23 product categories only, taken together and, for some 
steps, also individually.82 
7.49.   In its definitive determination, the European  Commission reiterated its approach to the 
product under investigation as comprising a group  of product categories, taken together.83 
In response to certain objections from interested parties regarding the produ ct scope of the 
investigation, it also divided the product categories concerned into three "product families", and 
examined both the import trends and injury also at the level of those product families.84 Further, 
having found that imports of two of the 28  product categories had not increased between 2013 and 
the first half of 2018, it excluded those two product categories both from the scope of the 
definitive  safeguard and from the scope of its analysis of the circumstances and conditions required 
to apply  the safeguard.85 
7.50.   Specifically, as a basis for adopting the definitive safeguard, the European  Commission 
examined the existence of the required circumstances and conditions as follows:  
a. Increase in imports . The European  Commission reviewed data on increase  in imports for 
each of the 28 product categories; having found that there had been no increase in imports 
between 2013 and the first part of 2018 for two product categories, it excluded those from 
the rest of the analysis, and only included in the rest of  its analysis the product categories 
for which it found an increase in imports; relying on the data for the remaining 26 product 
categories globally, it found that there had been an increase in imports; in addition, it also 
considered the evolution of impo rts for those 26 product categories grouped into 
three  product "families", "to supplement the global … analysis"86; 
b. Unforeseen  developments . The European  Commission examined unforeseen 
developments for all product categories "globally", and found that ther e were such 
unforeseen developments resulting in increased imports87, 88; 
c. Threat of injury . The European  Commission reviewed data for the 26 product categories 
globally, and on that basis found that the domestic industry was threatened with material 
injury ; it also "supplemented" its conclusions by reviewing the data for the three families 
into which it grouped the 26 product categories89; 
 
81 Provisional determination, (Exhibit TUR -3), recital  17. (fn omitted)  
82 Provisional determination, (Exhibit TUR -3), recitals  24 and 26 ff.  
83 Definitive determination, (Exhibit TUR -5), section  2.  
84 Definitive determination, (Exhibit TUR -5), recitals  19-22. 
85 Definitive determination, (Exhibit TUR -5), recital  31; see also para.  7.50 below.  
86 Definitive determi nation, (Exhibit TUR -5), recitals  27-47 and annex II.  
87 Definitive determination, (Exhibit TUR -5), recitals  50 and 48 -62; Provisional determination , 
(Exhibit  TUR-3), section  V.  
88 We consider that the question whether the European  Union  only examined unfo reseen developments 
for steel in general and, if so, whether that suffices to establish unforeseen developments resulting in an 
increase in imports of the product under investigation  under Article  XIX:1(a), is a separate one. However, since 
we find that th e European  Commission has otherwise not established that the unforeseen developments 
resulted in the observed increase in imports, we do not reach this question . (See section  7.3.2.3.2  below).  
89 Definitive determination, (Exhibit TUR -5), recitals  63-110. In the provisional determination, the 
European  Union had also relied on data for product categories individually, but those did not include four of  the 
product categories on which the European  Union applied the definitive safeguard. The European  Union  did not 
rely on this analysis by product categories in the definitive determination. (Provisional determination, 
(Exhibit  TUR-3), recitals  38, 47 -69, and annex III; Definitive determination , (Exhibit TUR -5), recitals  63-110). WT/DS595/R  
 
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  d. Causation . The European  Commission examined causation for all product categories 
globally.90 
7.51.   The definitive safeguard c onsists of the following elements:  
a. the introduction of tariff -rate quotas (TRQs) for each of the 26 product categories subject 
to measures91, with the following characteristics:   
i. for each product category, the European  Commission based the initial level of  the TRQ 
on the average imports in the period 2015 -2017 plus 5%92; 
ii. the European  Commission further split two of the 26 product categories into two 
subcategories, adopting a TRQ for each subcategory93; and  
iii. for most product categories, the European  Commissio n allocated part of the TRQ on a 
country -specific basis.94 
b. an out -of-quota duty rate of 25% for all product categories95; and  
c. for each of the 26 product categories separately, the exclusion of developing country 
Members with de minimis  exports.96 
7.52.   Having set out the facts, we now assess whether Turkey has established that the 
definitive  safeguard is inconsistent with Article  XIX:1(a) and Article  2.1 on the basis of a mismatch 
between the products to which the European  Commission  has applied the safe guard, on the one 
hand, and the products for which it has investigated the existence of the circumstances and 
conditions required to apply the safeguard, on the other.  
7.53.   We recall, first, that Article  XIX:1(a) and the Agreement on Safeguards do not constrain  the 
choice of product(s) under investigation.97 They did not therefore bar the European  Commission 
from choosing to investigate a number of steel products taken together, and indeed Turkey does not 
argue that the European  Commission's  selection of the pro duct under investigation, in itself, gave 
rise to an inconsistency. We note in this respect that Turkey's  reliance on the fact that the 
European  Commission has at times used the term "products" , in the plural,  instead of referring to a 
"product" (comprisin g a number of product categories ) is not decisive, because an investigating 
authority can investigate and apply a safeguard on a range of products taken together, provided 
that the safeguard meets the other requirements of Article  XIX:1(a) and the Agreemen t on 
Safeguards.98 
7.54.   Next, we recall that Article  XIX:1(a) and Article  2.1 of the Agreement on Safeguards require 
a Member to have ascertained the existence of the necessary circumstances  and conditions  for 
 
90 Definitive determination, ( Exhibit TUR -5), recitals  111-127; Provisional determination, 
(Exhibit  TUR-3), recitals  70-81 (confirmed in Definitive determination, (Exhibit TUR -5), recital  127).  
91 Definitive determination, (Exhibit TUR -5), article  1. 
92 Definitive determination, (Exhibit  TUR-5), recital  144. 
93 Definitive determination, (Exhibit TUR -5), recital  160 and annex  IV. 
94 Definitive determination, (Exhibit TUR -5), article  1(2) and annex  IV. 
95 Definitive determination, (Exhibit TUR -5), article  6. 
96 Definitive determination, (Exhibi t TUR -5), article  5 and annex  III.2. 
97 See para.  7.53 above.  
98 Separately, we note that Turkey has also argued that the use of the plural in "measures" 
(e.g. "definit ive safeguard measures") establishes that the European Union in fact applied 26 distinct 
safeguards on 26 products. (Turkey's first written submission, para.  58; request for interim review, para.  9). 
We note that it is not uncommon to describe a safeguard as "safeguard measures", and that the 
European  Commission's references to "safeguard measures" appeared in a context that made it abundantly 
clear that the European Commission considered that it had investigated and was applying measures on a 
"single produ ct" collectively rather than distinct safeguards on a number of distinct products. (See e.g. 
Definitive determination, (Exhibit TUR -5), section  2.1). Therefore, the use of the plural "safeguard measures" 
by the European Commission in this context does not assist us in answering the question before us.  WT/DS595/R  
 
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  applying a safeguard for the same product  on which that Member applie s a safeguard .99 We therefore 
consider whether Turkey has established that the European Commission did not do so.  
7.55.   We begin by assessing whether Turkey has established that the European  Commission has 
applied 26 distinct safeguards on 26 p roducts, rather than a single safeguard as the European  Union 
asserts.  
7.56.   The facts reviewed above indicate that the European  Commission began an investigation into 
"certain steel products", together, and indicated that it would "examine [their] situation" bo th 
globally and at the level of "the product categories individually"100; it accordingly collected certain 
data globally and other data for each product category individually.101 At the end of its investigation, 
the European  Commission applied, through the d efinitive determination (Regulation (EU) 2019/159), 
a safeguard consisting of a combination of a zero -rate TRQ and an out -of-quota duty rate of 25% 
on 26 categories of steel products. The size of the TRQ was calculated at the level of each product 
category  or, for two product categories, at the level of further subsets of those product categories, 
and according to the definitive determination it was set, among other things, to "ensur[e] that 
traditional trade flows are maintained".102 Whenever a product cate gory (or subcategory) subject to 
the safeguard is imported in excess of the respective TRQ, it is subject to the out -of-quota duty of 
25%.103  
7.57.   These facts support the European  Union's  assertion that it  applied a single safeguard on 
26 steel product categori es, together.  
7.58.   Turkey argues that the fact that the European Commission examined import trends also at 
the level of individual product categories, and excluded from the application of the safeguard those 
product categories for which, separately, it found no increase in imports, and the fact that, as a 
result, the total number of product categories concerned shifted, establish that the European Union 
imposed a number of distinct safeguards, each on one product category.104 However, a Member is 
not barr ed from not applying a safeguard on a subset of the product or products105 on which it 
initiates a safeguard investigation. What a Member applying a safeguard must ensure is that it 
verifies the existence of the conditions for imposing a safeguard for the s ame product on which it 
applies the safeguard, which is a question we address further below.106 We therefore do not consider 
that the decision to refrain from imposing the safeguard  on certain product categories establishes 
that the European Commission impo sed distinct safeguards on each of the remaining product 
categories . 
7.59.   Turkey also argues that that the fact that TRQs were established at the level of the product 
categories shows that the European Union applied distinct safeguards on each product category.107 
 
99 See paras.  7.20-7.23 above.  
100 See para.  7.44 above.  
101 For example, the European Commission collected data on imports both globally and by product 
category; information on unforeseen develop ments globally; data on volume and value of sales both globally 
and by product category; information on Union interest globally; data on injury factors, and data on the 
exporters' current and expected capacity and production, by product category. (See e.g.  Definitive 
determination, (Exhibit TUR -5), table  2 and section  4; and para.  7.45 above).  
102 Definitive determination, (Exhibit TUR -5), recital  144. See also European  Union's  opening statement 
at the first meeting of the Panel, para.  20. 
103 See para.  7.51 above.  
104 Turkey's first written submission, para.  57; second written submission, paras.  32 and 44 -45; and 
opening statement at the first meeting of the Panel, para.  12. The European Uni on argues that it adopted 
"a conservative approach" by choosing not to include in the safeguard those product categories for which, 
taken separately, it did not observe an import surge, even though it had found an import surge for all the 
product categorie s initially considered, taken together. The European Union observes that, having made this 
choice, it then verified the existence of the conditions for imposing a safeguard for the same product on which 
it applied the safeguard. (European  Union's  responses  to Panel question No.  6, paras.  18-19; and No.  7, 
paras.  21-22; second written submission, para.  46; and opening statement at the first meeting of the Panel, 
paras.  22-23).  
105 See para.  7.53 above.  
106 See paras.  7.60-7.67 below.  
107 Turkey's first written submission, paras.  54-56; second written submission, paras.  32 and 34 -38. The 
European Union explains that its safeguard " is calibrated so as to affect in the minimum way possible steel 
trade into the EU, reflecting historical trade flows in volumes and origins, making a more effective 
administration of the TRQs ". (European Union's opening statement at the first meeting of the Panel, 
paras.  19-20). WT/DS595/R  
 
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  However, w e do not consider that the choice of calculating the size of the TRQ at the level of 
individual product categories (or further subdivisions108), to better match traditional trade flows, 
establishes the existence of 26 distinct different safegua rds, rather than a single safeguard covering 
26 product categories. Turkey also refers to the fact that the European  Commission excluded 
developing country Members with de minimis  exports on a category -by-category basis, rather than 
for the 26 product cate gories as a whole109, and points out that "the product" referred to in 
Articles  2.1 and 9.1 of the Agreement on Safeguards must be the same.110 According to the 
European  Union, it applied Article  9.1 at the level of product categories to ensure "calibration" , and 
that choice is not evidence of the existence of distinct safeguards for each product category.111 
We note that Turkey does not ask us to assess whether the European  Commission's  approach is 
consistent with Article  9.1 of the Agreement on Safeguards, a nd we therefore do not do so. Whether 
or not the exclusion of developing country Members at the level of subsets of the product concerned 
is consistent with Article  9.1, we do not view this approach as establishing that the 
European  Commission in effect ad opted 26 distinct safeguards. We therefore do not consider that 
Turkey has demonstrated that the European  Commission adopted 26 distinct safeguards. On this 
factual question, we therefore conclude that the European  Commission has applied a single 
definitiv e safeguard to 26 steel product categories, taken together.112 
7.60.   The next question under Article  XIX:1(a) and Article  2.1, therefore, is whether the 
European  Commission has investigated the existence of the circumstances and conditions required 
to apply a saf eguard for that same  product, namely the 26 steel product categories on which it has 
applied the challenged definitive safeguard, taken together.  
7.61.   The facts reviewed above113 indicate that, without prejudice to the substantive adequacy of 
the European  Commi ssion's  examination on other grounds (which we consider in subsequent 
sections), the European  Commission has examined, for the 26 steel product categories taken 
together, whether there had been an increase in imports; whether there existed unforeseen 
devel opments resulting in that increase in imports114; whether there existed injury or threat of 
injury; and whether the injury or threat of injury were caused by the increase in imports; and it 
found in each respect that this was the case.115  
7.62.   In assessing whether there had been an increase in imports, the European  Commission also 
examined the trends in imports at the level of the product categories. First, the 
European  Commission examined import trends for all 28 product categories under investigation. By  
so doing, it found that imports of 2 of the 28 product categories had not increased between 2013 
and the first half of 2018; as a consequence, it chose both to remove those two product categories 
from its examina tion of the circumstances and conditions necessary to apply a safeguard, and not 
to apply a safeguard to them.116 Because the European  Commission did not apply a safeguard to 
those two product categories, and because it excluded them from every  step in its examination of 
the necessary circumstances and conditions for imposing a safeguard, we do not consider that 
 
108 See para. 7.56 above.  
109 Turkey's  second written submission, paras.  32 and 39 -43. 
110 Turkey's  comments on the European  Union's  response to Panel question No.  19, para. 5; 
second  written submission, para.  42. 
111 European  Union's  response to Panel question No.  19, paras.  5-6; opening statement at the 
first meeting of the Panel, paras.  20-21. Among the third parties, the United States argues that:  "[w]hen the 
products under investigation encompass different types of imported articles, it may be appropriate for a 
Member to impose a safeguard measure consisting of tariffs, quotas, or [TRQs] specific to each type of 
imported article or to different groupings of imported articles. The suitability of such a safeguard me asure will 
depend upon the relevant facts". (United States'  third-party response to Panel question No.  3, para.  11). 
The United Kingdom " does not consider that evidence relating to the manner in which a safeguard measure is 
applied, including developing co untry exceptions, is relevant to the factual determination of the product 
concerned adopted by the authority ". (United Kingdom's third -party response to Panel question No.  3, 
para. 11). 
112 As noted above, in this context, the wording "product categories" or  "products" is not decisive, 
because a Member may adopt a safeguard on multiple product categories, provided that it complies with all the 
requirements of Article  XIX:1(a) of the GATT 1994 and of the Agreement on Safeguards. (See  para. 7.53 
above).  
113 See para.  7.50 above.  
114 See fn  88 above . 
115 See para. 7.50 above.   
116 Definitive determination, (Exhibit TUR -5), recital  31 and annex  II. WT/DS595/R  
 
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  Turkey has established that the removal of these two categories, in this case, gave rise to an 
inconsistency with Article  XIX:1(a) and Article  2.1.117  
7.63.   The European  Commission also examined the evolution of imports at the level of the 
three  product families into which it grouped the 26 product categories to which it applied the 
safeguard, "to supplement the global import analysis".118  
7.64.   We do not conside r that the fact that the European  Commission also examined the evolution 
of imports at the level of product categories and product families detracts from the fact that the 
European  Commission assessed the existence of the increase in imports for the 26 pro duct 
categories taken together. An authority is not barred from examining the existence of the necessary 
conditions, including increase in imports, for segments of the product under investigation, provided 
that it does ascertain that the conditions exist f or the product as a whole.119  
7.65.   Similarly, in assessing whether there was a threat of serious injury, the European  Commission 
also performed its assessment at the level of the three product families into which it grouped the 
26 product categories. Again, thi s does not detract from the fact that the European  Commission 
assessed the existence of threat of injury for the 26 product categories taken together.  
7.66.   That is, the European  Commission has verified the existence of each of the circumstances and 
conditions n ecessary for applying a safeguard, at least, for the 26 product categories taken together, 
i.e. the same product to which it has applied the definitive safeguard.  
7.67.   We therefore find that Turkey has not established  that the European  Union applied 26 distinc t 
safeguards on 26 products without examining the existence of the required circumstances and 
conditions for each of those products, inconsistently with Article  XIX:1(a) and Article  2.1. 
7.2.2.1.2   Articles  4.1(c),  4.2(a),  and 4.2(b)  of the Agreement  on Safeguards  
7.68.   We recall that Turkey argues that by imposing 26 distinct safeguards on 26 products without 
examining the existence of the required circumstances and conditions for each of those products, 
the European  Union also violated Articles  4.1(c), 4.2(a), and 4.2(b) . Thus, the factual premise of 
these additional claims is the same as reviewed in the previous section (section  7.2.2.1.1 ). Because 
we have  found that Turkey has not established that factual premise, we also find that Turkey has 
not established  that the European  Union applied 26 distinct safeguards on 26 products without 
examining the existence of the required circumstances and conditions for each of those products, 
inconsistently with Articles  4.1(c), 4.2(a), and 4.2(b)  of the Agreement on Safeguards.  
7.2.2.2   The alleged  internal  inconsistency  in the approach  to product  scope   
7.69.   Turkey argues that the European  Commission took an inconsistent approach to the products 
under investigation because it first gave notice of an investigation into 28 different products, and 
sought information by product120, but then examined sometimes all products together, sometimes 
each product individually or by family, and sometimes took a combin ation of these approaches.121 
Turkey adds that the European  Commission also acted in a biased manner, because it first reviewed 
the import trends for each product and excluded the products whose imports had not increased, and 
then continued the analysis onl y including those products whose imports had increased.122 According 
 
117 As noted in para.  7.73 below, we do n ot exclude that modifying the scope of a 
safeguard  investigation to remove product categories that do not, individually, meet certain conditions, could 
lead to a biased outcome in certain cases. However, we do not consider that Turkey has established that,  in 
this case, the EU approach gave rise to a mismatch between the product to which the European  Union  applied 
the safeguard and the product for which it verified the existence of the necessary circumstances and 
conditions.  
118 Definitive determination, (Exh ibit TUR -5), recitals  33-47. 
119 We also note in this regard that the panel in Argentina  – Footwear  (EC) addressed a similar question, 
noting that an authority could examine the existence of injury for segments of the domestic industry, although 
it was not r equired to. (See para.  7.29 above).  
120 Turkey's  first written submission, paras.  42-46 and 70; second written submission, paras.  19-31; 
and opening statement at the first meeting of the Panel, paras.  8-11. 
121 Turkey's  first written submission, paras.  47-48 and 71 -74; second written submission, para.  52; and 
opening statement at the first meeting of the Panel, paras.  14-15. 
122 Turkey's  first written submission, para.  75; second written submission, para.  53. WT/DS595/R  
 
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  to Turkey, for these reasons, the definitive safeguard is inconsistent with Article  XIX:1(a) of the 
GATT 1994 and Articles  2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the  Agreement on Safeguards. 
Turkey specifies that the "consistency requirement" it relies upon "is supported by Article  4.2(a)", 
which according to Turkey establishes an "obligation of objectivity"123, and by the requirements in 
Articles  3.1 and 4.2(c) to publish "reasoned  conclusions" and "a detailed analysis", respectively.124 
As for the claims under Article  XIX:1(a) and Articles  2.1, 4.1(c), and 4.2(b), Turkey has not 
explained in which way its arguments on "consistency" differ from its arguments on the alleged 
mismatch b etween the products subject to measures and the investigated products.  We have 
examined and rejected the latter in the previous section, and therefore, in this section, we do not 
further consider the claims under Article  XIX:1(a) and Articles  2.1, 4.1(c), and 4.2(b).  
7.70.   The European  Union responds that under Articles  3.1 and  4.2(a), the 
authority 's "evaluation  … must be objective and unbiased", and that Article  3.1(a)  requires the 
authority to set forth "reasoned conclusions" in its report , and that this is w hat the 
European  Commission  has done. According to the European  Union , Articles  3.1 and 4.2(a)  do not 
prevent an authority from examining individual product categories or product families in addition to 
examining a product globally , as argued by Turkey .125 Regarding the exclusion of product categories 
whose imports, individually, had not increased, the European  Union responds that:  the very purpose 
of a safeguard investigation is to investigate on what products a measure should be applied; even 
when a Member  has a right to apply  a safeguard, it does not have an obligation to do so126; the 
two categories that were excluded at the definitive stage represented only 0.36% of total imports, 
and "a very small amount of the total EU  production", and therefore their " impact  … would not have 
changed the findings with regard to the injury"127; and what matters is that the 
European  Commission verified the existence of the necessary circumstances and conditions on the 
product comprising the 26 product categories to which it  applied the definitive safeguard.128  
7.71.   In essence, insofar as this second set of Turkey's  arguments differs from the first set, 
discussed in the previous section, Turkey's  contentions are that:  (a) the European  Commission 
examined the investigated products sometimes together, sometimes individually, and sometimes 
took a mixed approach; and (b) the European  Commission's  analysis was biased because it removed 
from the analysis those products whose imports had not increased.  
7.72.   As regards the first of these two contentions, we have found, above129, that the 
European  Commission examined the existence of each of the requisite circumstances and conditions 
for the 26 product categories to which it applied the challenged definitive safegu ard, taken together, 
and that for some conditions it supplemented that analysis with an analysis at the level of 
product  categories and/or product families. Given that it applied the definitive safeguard on a 
product comprising 26 product categories, taken  together, the European  Commission was required, 
at a minimum, to investigate the existence of the necessary circumstances and conditions for that 
product. At the same time, this did not preclude the European  Commission from examining that 
product, additio nally, at a more disaggregated level.130 This being the case, Turkey has not 
demonstrated that merely by conducting both a global analysis and, in some instances, conducting 
in addition a more disaggregated analysis, the European  Union acted inconsistently with the 
requirements to publish "findings and reasoned conclusions" (Article  3.1), to "evaluate all relevant 
factors of an objective and quantifiable nature" (Article  4.2(a)), or to publish "a detailed analysis" 
(Article  4.2(c)).  
7.73.   Turkey also argues that the decision to exclude (from the safeguard and from the underlying 
analysis) the two product categories whose imports had not increased between 2013 and June  2018 
was biased, because, according to Turkey, it made it more likely to find an increase in impo rts and 
 
123 Turkey's  first written submission, para.  40. 
124 Turkey's  first written submission, para.  41. 
125 European  Union's  first written submission, paras.  47-57. 
126 European  Union's  second written submission, para.  6 (referring to Appellate  Body Report, US – Line 
Pipe, paras.  83-84 ("[t]he Appellate  Body confirmed in US – Line Pipe that the taking of a safeguard measure, 
when all the conditions are satisfied, is a right of WTO Members, not an obligation")).  
127 European  Union's  response to Panel question No.  7, para.  23; first written submission, para.  19. 
128 European  Union's  response to Panel question No.  18, paras.  1-4. See also Brazil's  third-party 
response to Panel question No.  2(b), para.  10. 
129 See paras.  7.37-7.45 and 7.50-7.51 above.  
130 See para.  7.29 above.  WT/DS595/R  
 
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  threat of injury.131 We note that once the European  Commission decided to exclude these product 
categories, it performed every step of its analysis without including them, and it did not include 
these product categories within the scope of the safeg uard, either. Despite alleging bias, Turkey has 
not shown how the exclusion of certain product categories both from the scope of the measure and 
from the analytical steps of the investigation supporting the measure led to bias in the present 
case.132 Theref ore, while we do not discount the possibility that modifying the scope of a 
safeguard  investigation to remove product categories that do not, individually, meet certain 
conditions, could lead to a biased outcome in certain cases, we find that Turkey has no t established 
that this was so in this instance.  
7.74.   We also observe that the European  Commission explained its approach in the provisional and 
definitive determinations. In particular, the European  Commission explained why it considered it 
appropriate to exa mine the product categories concerned taken together133; it explained that it 
carried out certain additional analyses at the level of individual product categories or of product 
families to supplement the global analysis134; and when it excluded certain prod uct categories from 
the safeguard and consequently from the analysis of the required circumstances and conditions, it 
explained this choice .135  
7.75.   Turkey argues that the European  Commission failed to reach a reasoned and 
objective  determination because its ap proach to the product under investigation lacked internal 
consistency and carried bias; however, we have found above that Turkey has not established that 
the European  Commission was not entitled to complement the analysis for the product as a whole 
with a disaggregated analysis, or to exclude from both the analysis and from the scope of its 
safeguard those product categories for which there was no increase in imports, which are the 
grounds on which Turkey argues that the EU approach lacked consistency. Give n that we have found 
that the European  Commission 's approach to the product under investigation was permissible , and 
noting that the European Commission has also explained that approach in some detail , we find that 
Turkey  has not established  that the defin itive safeguard was inconsistent with Article  XIX:1(a)  of 
the GATT  1994 and Articles  2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the Agreement on 
Safeguards because of the alleged internal inconsistencies and bias  in the 
European  Commission's  approach to the product under investigation.  
7.3  Unforeseen  developments  
7.76.   Turkey argues that the definitive safeguard is inconsistent with Article  XIX:1(a) of the 
GATT  1994 because:  (a) the European  Commission did not identify unforeseen developments; ( b) if 
it did identify developments, they were not unforeseen; and ( c) it did not demonstrate that the 
injurious increase in imports occurred "as a result of" the unforeseen developments .136 
The European  Union disagrees on all counts.  
7.77.   Below, we first consider the applic able requirements of Article  XIX:1(a) (section  7.3.1). We 
then examine whether Turkey has established that the European  Union acted inconsistently with this 
 
131 See e.g. Turkey's  first written submission, para. 75.  
132 Turkey has suggested a parallel between the facts in this instance and zeroing in anti -dumping 
investigations. However, in this instance the product categories excluded from the investigation of the 
circumstances and conditions necessary for imposing a safeguard are also excluded from the application of the 
safeguard, and there is no calculation of the equivalent of a dumping margin. (Turkey's  comments on the 
European  Union's  response to Panel questio n No.  50, para.  62; European  Union's  opening statement at the 
second meeting of the Panel, paras.  53-55). 
133 See paras.  7.46-7.47 above. See also Provisional determination, (Exhibit TUR -3), recitals  11-17; and 
Definitive determination, (Exhibit TUR -5), recitals  12-18. In response to a question from us, Turkey indicated 
that this e xplanation was "irrelevant in the context of Turkey's claims", although "in any event" Turkey did not 
agree with the European Commission's explanation that there were an important interrelation and strong 
competition between product categories. (Turkey's r esponse to Panel question No.  8, paras.  27-28; request for 
interim review, para.  13).  
134 Provisional determination, (Exhibit TUR -3), recital  47; Definitive determination, (Exhibit TUR -5), 
recitals  19-22, 28, and 34.  
135 See paras.  7.48-7.49 above. See also Provisional determination, (Exhibit TUR -3), recital  24, 
article  1.1, and annex II; and Definitive determination , (Exhibit TUR -5), recital  31, article  1.1, and annex II.  
136 Turkey's  first written submission, paras.  87-112 and 123 -150; second written submission, 
paras.  59-76 and 80 -95. Turkey also argues that the European Commission "should have made its analysis of 
the unforeseen developments for each product category". (Turkey's  first written submission, para.  141). We 
have addressed this argument in section  7.2 above.  WT/DS595/R  
 
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  provisio n because the European  Commission did not identify unforeseen developments 
(section  7.3.2.1 ), because the developments were not unforeseen (section  7.3.2.2 ), or because the 
European  Commission did not establish that the injurious increase in imports was "as a result of" 
the unforeseen developments (section  7.3.2.3 ).  
7.3.1   The applicable  requirements  of Article  XIX:1(a)  of the GATT  1994  
7.78.   Article  XIX:1(a) of the GATT 1994 provides:  
If, as a result of unforeseen developments  and of the effect of the obligations incurred 
by a contracting party under this Agreement, including tariff concessions, any product 
is being imported into the territory of that contracting party in such increased quantities 
and under such conditions as to  cause or threaten serious injury  to domestic producers 
in that territory of like or directly competitive products, the contracting party shall be 
free, in respect of such product, and to the extent and for such time as may be necessary 
to prevent or remed y such injury, to suspend the obligation  in whole or in part or to 
withdraw or modify the concession.137  
7.79.   Article  XIX:1(a) is a two -part conditional sentence, and each part contains several clauses. 
The first part of Article  XIX:1(a) begins with the conjunc tion "[i]f" and recites certain circumstances 
or conditions. The second part of Article  XIX:1(a), which begins with the phrase "the contracting 
party shall be free", describes what happens in the event that the circumstances and conditions 
contained in the  first part of the sentence are satisfied. That is, the Member concerned may ("shall 
be free … to") suspend the relevant obligation(s) of the GATT 1994, thus imposing a safeguard.  
7.80.   Part of the circumstances and conditions that permit a Member to apply a sa feguard is that " as 
a result of unforeseen developments  … [a] product is being imported into the territory of that [Member] 
in such increased quantities and under such conditions as to cause or threaten serious injury". We first 
consider the meaning of the phrase "unforeseen developments", and then the meaning of the phrase  
"as a result of".  
7.81.   The ordinary meaning of "development" includes "a n event constituting a new stage in a 
changing or evolving situation; a fact or circumstance emerging or coming to lig ht".138 The ordinary 
meaning of "unforeseen" includes "not anticipated or expected:  … unexpected"139, and not "seen 
beforehand".140 Thus, an unforeseen development is an event, fact, or circumstance that emerges 
or comes to light, including a new stage in an evolving situation, that was not anticipated or 
expected. This interpretation accords with findings in previous disputes that "un foreseen 
developments" are developments that were "unexpected".141 Because  the ordinary meaning of the 
word "development" includes  a "new stage in a changing or evolving situation", a known event may 
develop into  an unforeseen development.142  
7.82.   Regarding the point in time at which the development must be "unforeseen", we note that 
Article  XIX:1(a) requires that the injurious increase in imports result from two elements, 
i.e. unforeseen developments and "the effect of the obligations incurred" under the GATT 19 94. We  
further note that the remedy allowed by Article  XIX:1(a) is the suspension of the relevant 
obligations. To us, this means that the point in time at which a development must have been 
"unforeseen" is when the relevant obligations were incurred, becau se the Member concerned would 
not have undertaken the obligation had it foreseen a development that would result in an injurious 
increase in imports. This understanding also accords  with findings reached in previous proceedings, 
 
137 Emphasis  added.  
138 Oxford Dictionaries online, definition of "development", n., meaning II.11 
https://www.oed.com/view/Entry/51434?redirectedFrom=development#eid  (accessed 22  September  2021).  
139 Merriam Webster, online edition, definition of "unforeseen", adj.,  https://www.merriam -
webster.com/dictionary/unforeseen  (accessed 22  September  2021).  
140 Oxford Dictionaries online, definition of "foreseen", adj., 
https://www.oed.com/view/Entry/ 73150?rskey=ykyd38&result=2&isAdvanced=false#eid  (accessed  
22 September  2021) . 
141 Appellate  Body Reports, Korea  – Dairy , para.  84; Argentina  – Footwear  (EC), para.  91. 
142 See also Panel Reports, US – Steel Safeguards , para.  10.84 ("there may be instances whe re an event 
which is already known will develop into a situation initially unforeseen").  WT/DS595/R  
 
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  namely that the point in ti me at which a development must be unforeseen is when the relevant 
obligations were incurred.143 
7.83.   Whether a given development was unforeseen at the time the obligations were incurred will 
of course depend on the facts. We note that, in the past, panels have found that certain market 
developments, in the circumstances of the cases before them, could con stitute unforeseen  
developments. In US – Steel Safeguards , for example, the panel found that the Russian financial 
crisis, the Asian financial crisis, the continued strength of the US market, and the persistent 
appreciation of the dollar, taken together, c ould constitute unforeseen developments.144 As regards 
specifically the Russian financial crisis, the panel considered arguments to the effect that the crisis 
could not be unforeseen during the Uruguay Round, because the Union of Soviet Socialist Republics 
(USSR) had dissolved prior to the conclusion of the Uruguay Round and Russia's  then-current 
financial circumstances could be traced to that dissolution. In considering this argument, the panel 
observed that the United States had distinguished between the a nticipated financial difficulties 
flowing from the dissolution of the USSR and the additional financial disruption that was unforeseen, 
and stated that "an unforeseen development may evolve from well -known prior facts".145 In 
India – Iron and Steel Products , the panel reviewed India's  conclusion that a significant increase in 
steel excess capacity, decreased demand for steel in important markets, currency depreciation in 
Russia and Ukraine, and increased demand and prices in India, were unforeseen developmen ts. In 
doing so, the panel reasoned that while "changes in production capacity or demand are not 
necessarily extraordinary circumstances, and can occur as part of normal business cycles , the extent 
and timing of such changes as well as the degree of their impact on the competitive situation in the 
market can be unforeseen ". The panel found that having explained the extent of the developments 
and having noted that they were occurring at the same time, India had reasonably concluded that 
they constituted unfo reseen developments.146 
7.84.   Turning  to the phrase  "as a result of"  we note that the ordinary meaning of the word "result" 
includes "[t] he effect, consequence, or outcome of some action, process, or design ".147 In 
Article  XIX:1(a) the phrase "as a result of" conn ects the unforeseen developments and the injurious 
increase in imports, i.e. it envisages that the injurious increase in imports occurs "as a result of" – 
i.e. is the effect, consequence or outcome of – the unforeseen developments. We note that previous 
reports have described this as a "logical connection" between the unforeseen developments and the 
injurious increase in imports.148 The phrase "logical connection" does not appear in the text of 
Article  XIX:1(a). However, our understanding of this provision a ccords with this concept.149 We also 
note that in describing the relationship required between the increased imports and the injury 
suffered by the domestic industry, Article  XIX:1(a) uses the word "cause" in the phrase "cause or 
threaten serious injury". I n contrast, the word "cause" is not used in the first part of Article  XIX:1(a), 
which uses instead the phrase "as a result of". The different choice of terms indicates that the 
 
143 See e.g. Appellate  Body Report, Korea  – Dairy , para.  86; Panel Reports, US – Steel Safeguards , 
paras.  10.79, 10.80, and 10.85; and Working Party Report, US – Fur Felt Hats , GATT/CP/106, adopted  
22 October  1951, para.  12. 
144 Panel Reports, US – Steel Safeguards , paras.  10.78 -10.100.  
145 Panel Reports, US – Steel Safeguards , para.  10.84. The panel in t hat case therefore accepted for the 
sake of argument that the Russian financial crisis could constitute an unforeseen development. 
(Ibid.  para. 10.85 ("the Panel will accept, arguendo ")). 
146 Panel Report, India – Iron and Steel Products  [appealed by India o n 14 December  2018, appealed by 
Japan on 21  December  2018], paras.  7.90-7.99. 
147 Oxford Dictionaries online, definition of "result", n., meaning  II.4.a 
https://www.oed.com/view/Entry/164061?rskey=Ft4Kjb&result=1&isAdvanced=false#eid  
(accessed  22 September 2021).  
148 Appellate  Body Reports, Korea  – Dairy , para. 85; Argentina  – Footwear  (EC), para. 92; US – Lamb , 
para. 72; and US – Steel Safeguards , paras.  317-318 and 322 ; and Panel Reports, US – Steel Safeguards , 
para. 10.104; and Argentina  – Preserved  Peaches , paras.  7.17 and 7.24. See also, with different wording, 
Panel Report, India – Iron and Steel Products  [appealed by India on 14 December  2018, appealed by Japan on 
21 December  2018] , paras.  7.105 -7.106, 7.110 , and 7.114. The report of the GATT Working Party in US – Fur 
Felt Hats  described the requirement as being that  "the increased imports must be the result of unforeseen 
devel opments ". (Working Party Report, US – Fur Felt Hats , GATT/CP/106, para.  4(a)(ii); see also ibid. paras.  7 
and 11 -12). 
149 Appellate  Body Reports, Korea  – Dairy , para.  85; US – Steel Safeguards , paras.  317-318. See also 
Panel Reports, US – Steel Safeguards , para.  10.104; and India – Iron and Steel Products  [appealed by India on 
14 December  2018, appealed by Japan on 21  December  2018], para.  7.86. WT/DS595/R  
 
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  relationship required between unforeseen developments and the increase in impor ts is not the same 
as causation, which is instead required between the increase in imports and serious injury.  
7.85.   In US – Steel Safeguards , the panel reasoned that the "nature of the facts, including their 
complexity, will dictate the extent to which the rela tionship between the unforeseen developments 
and increased imports causing injury needs to be explained ".150 We agree that what is required to 
establish the connection between the unforeseen developments and the increase in imports will 
depend  on the specific facts of each case. As the panel observed in US – Steel Safeguards , "[i]n  
some cases, the explanation may be as simple as bringing two sets of facts together", whereas "in 
other situations, it may require much more detailed analysis ".151  
7.86.   We now assess whether Turkey has demonstrated that the European  Commission did not 
establish the existence of unforeseen developments that resulted in the injurious increase in imports.  
7.3.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsi stent  with 
Article  XIX:1(a)  of the GATT  1994  with regard  to unforeseen  developments  
7.87.   To recall, Turkey claims that the definitive safeguard is inconsistent with Article  XIX:1(a) of 
the GATT 1994 because the European  Commission adopted that measure without e stablishing the 
existence of unforeseen developments that resulted in the injurious increase in imports. 
Turkey  advances three sets of arguments in support of this claim:  first, that the 
European  Commission did not even nominally identify unforeseen develo pments; second, that if the 
European  Commission did identify certain developments, these developments were not 
"unforeseen"; and third, that the European  Commission did not establish that the unforeseen 
developments resulted in the increase in imports of t he product under investigation into the 
European  Union. We examine each of these three sets of arguments in turn, below.  
7.3.2.1   Whether  the European  Commission  did not identify  any unforeseen  developments  
7.88.   Turkey notes that the European  Commission's  provisional and definitive determinations 
stated that the increase in imports "had been the result of unforeseen developments that found their 
source  in a number of factors ", and then went on to describe the fact ors in question.152 Turkey 
argues that the fact that the European  Commission described the factors that were allegedly the 
source  of unforeseen developments, means that the European  Commission did not identif y the 
unforeseen developments themselves, which m ust be different from their "source".153 Turkey adds 
that the "failure to clearly identify the events … is compounded by the failure to clearly state 
when  … the factors identified would have occurred", with the European  Commission making 
imprecise reference s to different time periods, one of which spanned 16 years.154 
7.89.   The European  Union asserts that Turkey's  arguments are mere "semantic efforts", and 
explains that the developments that the European  Commission described as the "source" are indeed 
the unforesee n developments.155 Regarding timing, the European  Union responds that the 
provisional and definitive determinations do identify the timeframe of each development, and that 
not all events that form a confluence of developments must take place simultaneously.156 
7.90.   Among the third parties, the United States argues that an authority is not required to 
demonstrate in its published report the existence of unforeseen developments before it applies a 
safeguard; the developments need only exist as a matter of fact.157 Japan, Switzerland, and Ukraine 
argue that an authority must identify the unforeseen developments in its published report before 
 
150 Panel Reports, US – Steel Safeguards , para.  10.115.  
151 Panel Reports, US – Steel Safeguards , para.  10.115.  
152 Definitive determination, (Exhibit  TUR-5), recital  48 (emphasis  added). See also Provisional 
determination, (Exhibit  TUR-3), recital  30. 
153 Turkey's  first written submission, paras.  88-89; second written submi ssion, para.  59.  
154 Turkey's  first written submission, para.  90; second written submission, paras.  60-61.  
155 European  Union's  first written submission, paras.  72-74.  
156 European  Union's  first written submission, paras.  75-79 (referring to Panel Report, India – Iron and 
Steel Products  [appealed by India on 14  December  2018, appealed by Japan on 21  December  2018], 
para. 7.114).  
157 United States'  third-party submission, paras.  8-14; third -party statement, paras.  7-10. WT/DS595/R  
 
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  applying a safeguard.158 Concerning Turkey's  reliance on the fact that the European  Commission 
referred to "factors", Switzerla nd argues that the particular label used by the authority to describe 
the developments does not matter.159 
7.91.   We turn for our assessment to the provisional and definitive determinations.  
7.92.   The provisional160 and definitive determinations each contain a section e ntitled "Unforeseen 
Developments".161 In those sections, both determinations identify three cumulative developments, 
namely:  (a) "unprecedented" overcapacity in the steel sector, which persisted despite measures 
taken to narrow it162, and which was fuelled b y government support163; (b) greater use of 
trade -restrictive measures in third -country markets, including applied tariff increases, minimum 
import prices, mandatory national standards, and local content requirements, and a steady increase 
in trade defence measures on steel, a significant portion of which was by the United  States, one of 
the world's  largest steel importers164; and (c) the United  States'  Section  232 measures.165 
7.93.   Turkey grounds its claim that the European  Commission did not identify any unforese en 
development on the fact that both determinations refer to unforeseen developments that "found 
their source in a number of factors"166, and then list the developments set out above. Turkey points 
to this statement to reason that if these developments are "factors" that were the "source" of the 
unforeseen developments, they could not be the unforeseen developments themselves, and 
therefor e that the European  Commission cannot be considered to have even nominally identified any 
unforeseen developments. We disagree. The developments in question are listed and discussed in a 
section clearly entitled "unforeseen developments "167; they are referr ed to interchangeably not only 
as "factors" but also as "unforeseen developments"168; the European  Commission addressed 
arguments of the interested parties tending to establish that the developments were not unforeseen, 
explaining why, in its view, they wer e indeed unforeseen169; and the European  Commission indicated 
that these developments led to an increase in imports.170 It is thus clear from the 
European  Commission's  published determinations that it considered these to be the relevant 
unforeseen developmen ts. In this context, that the European  Commission referred at times to the 
unforeseen developments as "factors" that were a "source" of unforeseen developments does not 
negate the fact that it identified the developments at issue as unforeseen developments . A Member 
is not necessarily required to use the exact wording of the World Trade Organization  (WTO) 
Agreement in its domestic determinations.  
7.94.   On Turkey's  argument that the European  Commission did not "clearly state when … the 
factors identified … occurr ed"171, we observe that the provisional and definitive determinations 
indicated that: (a) global steelmaking capacity had more than doubled from 2000 to 2017 and global 
 
158 Japan's  third-party submission, para.  6; Switzerland's  third-party submission, para.  13; and 
Ukraine's  third-party submission, para.  11.  
159 Switzerland's  third-party submission, para.  17. 
160 The definitive determination incorporates by reference the findings on unforeseen deve lopments of 
recitals  30 to 36 of the provisional determination, which thus also form part of the basis for the definitive 
safeguard. (Definitive determination, (Exhibit TUR -5), recital  48; see also para.  7.10 above).  
161 Provisional determination, (Exhibit TUR -3), section V ; Definitive determination, (Exhibit TUR -5), 
section 4.  
162 Provisional determination, (Exhibit TUR -3), recital  31; Definitive determination, (Exhibit TUR-5), 
recitals  48-49 and 62.  
163 Provisional determination, (Exhibit TUR -3), recital  32; Definitive determination, (Exhibit TUR -5), 
recitals  48-49 and 62.  
164 Provisional determination, (Exhibit TUR -3), recitals  33-34; Definitive determination, (Exhibit TUR -5), 
recitals  48-49 and 62.  
165 Provisional determination, (Exhibit TUR -3), recital  35; Definitive determination, (Exhibit TUR -5), 
recitals  48-49 and 62.  
166 Definitive determination, (Exhibit TUR -5), recital  48; Provisional determination, (Exhibit TUR -3), 
recital  30 ("that finds its source in").  
167 Provisional determination, (Exhibit TUR -3), section V, heading; Definitive determination, 
(Exhibit  TUR-5), section 4, heading.  
168 See e.g. Provisional determination, (Exhibit TUR -3), recital  36 ("the abovementione d unforeseen 
developments").  
169 Definitive determination, (Exhibit TUR -5), recitals  51-52. 
170 Provisional determination, (Exhibit TUR -3), recital  36; Definitive determination , (Exhibit TUR -5), 
recital  62. 
171 See para.  7.88 above.  WT/DS595/R  
 
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  steel production in 2016 was 100 million tonnes higher than global steel demand172; (b) s everal 
countries had made greater use of trade restrictive measures on steel products since 2014/2015  
and throughout 2017173; (c) there had been significantly more initiations of  steel-related  trade 
defence investigations  in 2015 -2016 than in 2011 -2013, and  in 2018 the United States had 
169 anti-dumping and countervailing ( AD/CV ) duty orders in place on steel and 25 ongoing 
investigations174; and ( d) the US Section  232 measures on steel had been adopted in March 2018, 
following an investigation initiated in A pril 2017 and a report published in January 2018.175 Thus, 
the European  Commission described the timing of each development either by reference to a 
timeframe over which it had manifested itself (e.g. the doubling of capacity since 2000), or by 
reference to  the specific time at which it was introduced ( e.g. the initiation of a US  Section  232 
investigation in April 2017 and introduction of measures in March 2018). Therefore, we do not see 
that Turkey has substantiated its allegation that the European  Commissi on failed to identify 
unforeseen developments because it did not sufficiently identify their timing.  
7.95.   Given this, we reject Turkey's  arguments that the European  Commission did not identif y the 
unforeseen developments on which the definitive safeguard is based.  
7.3.2.2   Whether  the developments  were  not unforeseen  
7.96.   Turkey argues that even if the European  Commission had identified developments, none of 
them was unforeseen. We consider whether Turkey ha s so established for each of the three sets of 
developments identified by the European  Commission (the increase in steel overcapacity, the 
increase in trade restrictive and trade defence measures on steel, and the US Section  232 measures 
on steel), in turn .  
7.97.   First, Turkey submits that steel overcapacity  existed for decades and predated the 
Uruguay  Round, and therefore was not unforeseen.176  
7.98.   The European  Union responds that the European  Commission explained why the overcapacity 
in question was unforeseen:  according to the European  Commission's  explanations, this was 
because steel production capacity continued to increase after 2011 (following a dip between 
2009 and 2011) despite being already excessive then and despite the fact that it was econo mically 
expected to decline, and because this overcapacity persisted "despite the important number of 
measures taken to reduce it".177 The European  Union also observes that the panel in India – Iron 
and Steel Products  considered that the increase in product ion capacity for steel in 2015 was, together 
with other factors, an unforeseen development.178 
7.99.   Turkey responds to the European  Union that if an authority relies on developments in the 
market such as changes in capacity as an unforeseen development, it must provide "a reasonable 
and detailed explanation regarding exactly how  … [they] are unforeseen". According to Turkey, 
"[t]he European Commission 's findings and explanations that '[post-2011] it was expected that total 
crude steel capacity would decrease or a t least remain stable ', do not constitute such a reasonable 
and detailed explanation, as this statement is provided without evidence ." Turkey also asserts that 
the dip in overcapacity between 2009 and 2011 was due to the financial crisis, and therefore tha t it 
 
172 Provisional determination, (Exhibit TUR -3), recital  31. In addition, in the definitive determination the 
European  Commission discussed intervening trends (comparing 2009 -2011 with 2011 -2016) to  address 
arguments to the effect that excess steelmaking capacity was not unexpected. (Definitive determination, 
(Exhibit TUR -5), recital  52). 
173 Provisional determination, (Exhibit TUR -3), recital  33.  
174 Provisional determination, (Exhibit TUR -3), recital 34; Definitive determination, (Exhibit TUR -5), 
recital 56.  
175 Definitive determination, (Exhibit TUR -5), recitals  49 and 58 -59. 
176 Turkey's  first written submission, paras.  93-96; see also response to Panel question No.  9, on the 
issue of the treatment of on e piece of evidence. Turkey argues in particular that because overcapacity has 
existed for decades and predated the Uruguay Round, "[p]eriods of overcapacity in commodities … cannot be 
characterized as an unexpected development that was unforeseen by the E uropean Union during the Uruguay 
Round." (Turkey's first written submission, para.  94; request for interim review, para.  15). 
177 European  Union's  first written submission, paras.  82-87; Definitive determination , (Exhibit TUR -5), 
recitals  49 and 52 . See also  European  Union's  response to Panel question No.  9, para. 30. 
178 European  Union's  first written submission, para.  85. WT/DS595/R  
 
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  was to be expected that capacity would then have resumed its upward trend observed in the previous 
years.179 
7.100.   Among the third parties, Canada submits that overcapacity may be an 
unforeseen  development but that an authority must provide a reasoned and ad equate explanation 
of why this is so.180 Brazil submits that if a Member invokes market dynamics, such as overcapacity, 
as an unforeseen development, it must provide a careful explanation of why they were 
unforeseen.181 The Republic of Korea and Ukraine subm it that overcapacity has existed in the steel 
sector for a long time, and the Republic of Korea therefore considers it "[i]n principle … doubtful" 
that it could constitute an unforeseen development.182 More generally, on the interpretation of 
"unforeseen", Japan submits that an authority must have, "at a minimum, some discussion as to 
why the alleged 'unforeseen developments'  were 'unexpected'", and the United States argues that 
unforeseen means not actually foreseen.183 
7.101.   We turn again for our as sessment to the published determinations. With respect to 
overcapacity, we understand the explanation in the published determinations to be that what was 
unexpected was that overcapacity would continue to increase, reaching "unprecedented" levels, 
contrary  to economic logic and efforts to contain the increase.184 Turkey relies on the fact that 
overcapacity in the steel sector has existed for a long time  and argues that therefore periods of 
overcapacity were not unforeseen when concluding the Uruguay Round .185 However, Turkey has not 
directly contested the European  Commission's  assertions that overcapacity had continued to 
increase  and reached unprecedented levels , with capacity having more than doubled since 2000, 
despite measures to contain overcapacity. Turk ey has contested the relevance of the 2009 -2011 dip 
in overcapacity in the assessment conducted by the European Commission, and has noted that the 
European Commission 's statement that capacity would have been expected to decrease or remain 
stable after 201 1 did not contain a reference to supporting material on the record .186 This however 
does not contradict the proposition relied on by the European Commission that it was contrary to 
economic logic for capacity  to continue to increase  when there was already c onsiderable 
overcapacity . The European  Commission drew a distinction between an underlying 
situation  – i.e. overcapacity per se, which was known at the time of the Uruguay Round – and its 
development into a new situation, i.e. the fact that overcapacity gr eatly increased, contrary to 
economic expectations and measures taken to address it. We do not consider that more was required 
in this case to identify the unprecedented overcapacity as a development that was unforeseen  in 
this instance . A development that  was unforeseen at the time of contracting an obligation can evolve 
from a situation that was known at that time. We  therefore do not consider that Turkey has 
established that the European  Commission erred in concluding that increased overcapacity 
constitu ted a development that was unforeseen at the conclusion of the Uruguay Round.  
7.102.   Second, Turkey argues that the increase in trade defence measures on steel products could 
not be unforeseen, because : "the adoption of trade defence measures is contemplated by 
WTO rules"187; periodic increases in the use of anti -dumping  measures had taken place before the 
Uruguay  Round188; data on the use of anti-dumping  measures since 1995 also show that there are 
periodic peaks in the number of anti -dumping investigations, both g enerally and for "base metals 
and articles"189; and the European  Union itself contributed to the alleged increase both by adopting 
 
179 Turkey's  first written submission, paras.  94-96; second written submission, paras.  65-67.  
180 Canada's  third-party submission, para.  23. 
181 Brazil's  third-party submission, paras.  5-6. 
182 Korea's  third-party submission, para.  17; Ukraine's  third-party submis sion, para.  15; and third -party 
statement, para.  7. 
183 Japan's  third-party submission, para.  7; United States'  third-party submission, para.  5; and 
third-party statement, paras.  4-6. 
184 Provisional determination, (Exhibit TUR -3), recital  31; Definitive deter mination, (Exhibit TUR -5), 
recitals  49 and 52.  
185 See para. 7.97 and fn 176 above.  
186 See para. 7.99 above.  
187 Turkey's  first written submission, para.  100. 
188 In this regard, Turkey relies on data concerning all anti-dumping  investigations, regardless of the 
product concerned. (Turkey's  first written submission, paras.  101-102 and 106, and figure  2). 
189 Turkey's first written submission, paras.  102-104 and (for iron and steel products in the 
United  States) 108, and figures  2-4. WT/DS595/R  
 
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  trade defence measures and because its steel exports were also the target of trade defence 
measures.190  
7.103.   The European  Union responds that increases in trade restrictive and trade defence measures 
are not necessarily unforeseen developments, but can be. According to the European  Union, the 
extent, timing, and degree of impact of such increases can make them an unf oreseen development, 
and did in this case.191 The European  Union likewise contests the relevance of some of 
Turkey's  factual allegations . According to the European Union, of three datasets that Turkey has 
submitted showing the evolution of anti-dumping  meas ures, two are not relevant because they are 
not specific to steel, and one is not relevant because it postdates the Uruguay Round and therefore 
cannot serve as an indicator of  what was unforeseen when the European Communities incurred the 
relevant obligati on of the GATT 1994 .192 The European Union also  observes that the trade defence 
measures either initiated by the European  Union or against EU steel exports account for a small 
proportion of the "worldwide use of trade defence measures in the steel sector".193  
7.104.   To the European Union's objection that the data submitted by Turkey on the use of 
anti-dumping  measures after the Uruguay Round does not help assess whether a particular 
development was unforeseen when the European Communities incurred the relevant obli gation of 
the GATT 1994 , Turkey responds that the data it has provided are intended to show that the use of 
trade defence measures , in general and for the "steel -related" sector, "follows cycles of varying 
intensity" and has done so both before and after the Uruguay Round.194 
7.105.   In the context of its discussion of post -Uruguay Round data, Turkey also notes that the 
numbe r of anti-dumping initiations had decreased in 2014 compared to 2013, and in 2017 -2018 
compared to 2015 -2016, and that as a result the n umber of initiations in 2017 -2018 was only slightly 
higher than in 2011 -2013. According to Turkey, these facts  contradict the 
European  Commission's  statement that there had been a steady increase in the recourse to trade 
defence measures  and that the situa tion constituted an unforeseen development .195 The 
European  Union responds that the slight decrease in the number of anti -dumping initiations in 2014 
was compensated by an increase in countervailing duty initiations the same year196, that the number 
of initiations increased again in 2015197, and that the decrease in the number of initiations in 
2017-2018 compared to 201 5-2016 did not call into question the unforeseen nature "of the overall 
significant increase of the use of trade defence measures".198  
7.106.   Finally, Turkey argues that the fact that the United States had in place a large number of 
trade defence measures on stee l in 2018 could not be  unforeseen because the United States was 
one of the largest steel importers, and had had a similarly high number of trade defence measures 
on steel in place in 2002 -2006.199 The European Union responds that this does not preclude a 
significant increase in trade defence measures by the United States, "as part of a global increase in 
the use of such instruments", from constituting an unforeseen development. In response to 
Turkey's  argument, t he European Union also provides an overview of the evolution of the number 
 
190 Turkey's  first written submission, para.  107. 
191 European Union's first written submission, paras.  89-90. 
192 European Union's first written submission, para.  91 (referring to Turkey's first written submission,  
figures  2 and 3) and para.  92 (referring to Turkey's first wr itten submission,  figure  4). The data in figure  3 also 
postdates the Uruguay Round.  
193 European  Union's  first written submission, paras.  88-106. 
194 Turkey's  second written submission , paras.  68-75; request  for interim review , para.  19. Turkey also 
reiterates its earlier arguments and notes that reliance by the European  Union on an OECD presentation is an 
ex post explanation. ( Turkey's  second written submission , para. 75). 
195 Turkey's first written submission, para.  105; second written submission, paras.  70-71; and request 
for interim review , para.  19. 
196 European Union's first written submission, paras.  92 and 95 (referring to WTO statistic s on 
antidumping initiations by secto r, (Exhibit EU -2); and WTO statistic s on countervailing initiations by sector , 
(Exhibit EU-3)). The data on initiations per year in the provisional determination, recital  34, refer to 
anti-dumping initiations. (WTO statistic s on antidumping initiations by sector , (Exhibit EU -2)). 
197 European Union's first written submission, para.  95. 
198 European Union's first written submission, para.  96. The European Union also notes that the 
WTO statistics on base metals and articles "show a significant increase [in the nu mber of initiations] during 
2014-2018 compared to the period  2011-2013", and also show that 498 antidumping and 61 countervailing 
measures were adopted worldwide in the (six -year) period 2013 -2018 compared to 163 and 25, respectively, 
in the (seven -year) p eriod 2006 -2012. (European Union's first written submission, para.  93). 
199 Turkey's first written submission, para.  108. WT/DS595/R  
 
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  of anti -dumping and countervailing duty investigations and orders by the United States over several  
years .200 
7.107.   Among the third parties, Brazil argues that accepting that trade defence measures, which 
are "an integral part of the WTO system"201, may con stitute an unforeseen development risks leading 
to an escalation in trade barriers; and that to establish that they do constitute unforeseen 
developments, there must at least be solid supporting data and an "adequate threshold".202 
Switzerland shares the co ncern of an escalation of trade restrictions, and adds that an exercise of 
rights under the covered agreements cannot be an unforeseen development.203 The Republic of 
Korea notes that the use of trade defence measures is presumably "lawful".204 
7.108.   We do not con sider that the fact that the WTO Agreement may contemplate particular events 
or circumstances establishes that they cannot constitute an unforeseen development. By way of 
illustration, we note that while the GATT 1994 refers to "action … taken in time of w ar", this 
statement, standing alone, does not necessarily  preclude actions taken in time of war from 
constituting an unforeseen development.  
7.109.   Regarding the European  Union's  contribution to the increase, the European  Union asserts 
that any such increase was  marginal, and Turkey has not provided us with information rebutting this 
assertion.205  
7.110.   We turn  to consider Turkey's  argument that there are cycles in the use of trade defence 
measures206, and that for this reason increases in their use are not unexpected . We note that the 
published determinations place the increase in trade defence measures in the broader context of 
increased overcapacity and the US Section  232 measures, and cite an increase in the average 
number of steel -related anti -dumping investigations  initiated per year from 77 in 2011 -2013 to 117 
in 2015 -2016 and the fact that the United  States had, in February 2018, 169 AD/CV orders in place 
on steel and 25  ongoing investigations.207 In response to objections that the adoption of trade 
defence measures could not be unforeseen, the European  Commission further explained in the 
definitive  determination that the "issue" was "the unprecedented and increased number of such 
measures taken by  third countries, which ha[d] created trade diversion resulting in increase of 
imports into the [European Union]".208 Thus, the European  Commission did not assert that any uptick 
in trade defence measures would constitute an unforeseen development, but inst ead based its 
finding that these developments were unforeseen on the concrete circumstances before it . The fact 
that the use of trade defence measures may "follow cycles", or fluctuate, does not mean that an 
increased use of such measures cannot ever const itute an unforeseen development. The 
European  Commission found that in the particular circumstances before it , the increase in trade 
defence measures together with the other developments was  unforeseen within the meaning of 
Article  XIX:1(a) , and we conside r that the fact that the use of trade defence measures may fluctuate 
does not call into question that assessment . 
7.111.   We next turn to Turkey's arguments regarding the number of worldwide initiations of 
anti-dumping  investigations into base metals and articles in 2014 and 2017 -2018, and regarding 
trade defence investigations and orders by the United States.209 We recall that the 
European  Commission relied on the significant increase in the number of  anti-dumping  initiations 
 
200 European Union's first written submission, paras.  100-106. 
201 Brazil's  third-party submission, para.  7. 
202 Brazil's  third-party submission, paras.  7-10. 
203 Switzerland's  third-party submission, paras.  18-21.  
204 Korea's  third-party submission, para.  17. 
205 Turkey notes that the European  Union had initiated 29 trade defence investigations for iron and steel 
between 2013 and 2019, and c ompares the trade defence measures on steel targeting the European  Union 
with the total trade defence measures targeting  the European  Union . The European  Union responds that 72 of 
723 "trade defence measures of all types" in force in 2020 targeted the Euro pean Union, and notes that it 
initiated 29 trade defence investigations for iron and steel between 2013 -2018 out of a total of 
582 anti-dumping  and 118 countervailing  initiations in the "Base metals and articles" sector in the same period 
2013-2018. (Turke y's first written submission, para.  107; European  Union's  first written submission, para.  98). 
206 We note in this regard the European Union's observation that much of the data provided by Turkey 
on the fluctuations in the use of trade defence measures postd ate the Uruguay Round or do not concern the 
steel sector. (See para.  7.103  above ).  
207 Provisional determination, (Exhibit TUR -3), recital  34. 
208 Definitive determination, (Exhibit TUR -5), recital  56. 
209 See paras.  7.105  and 7.106  above.  WT/DS595/R  
 
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  worldwide in the steel sector in the pe riod 2015 -2016 as compared to the period 2011 -2013, and 
on the number of steel -related trade defence investigations and orders in place in the United States 
in February  2018, as evidence that there had been a significant increase in recourse to trade defen ce 
measures on steel, in a broader context of overcapacity, trade restrictive measures on steel, and 
the US Section 232 measures on steel. That the number of worldwide initiations was not as high in 
2014 or 2017 -2018 does not upset  those observations  and the conclusions drawn from them by the 
European  Commission that the developments in question were unforeseen . Similarly, it is not merely 
because the United States is a large market, or because it had already had a high number of 
measures in place in 2002 -2006, that its high number of orders and investigations in 2018 did not 
contribute to the overall situation th at the European Commission found to be "unforeseen".  
7.112.   We therefore do not consider that Turkey has shown that the European Commission acted 
inconsistently with Article  XIX:1(a) in concluding that the increase in trade defence measures it 
identified, togeth er with the other developments it identified, was unforeseen.  
7.113.   Turning to the increase in trade restrictive measures on steel products, Turkey asserts  that 
the European  Commission did not clearly identify the measures and did not explain how an increase 
in a most -favoured -nation tariff or a tariff increase adopted as a trade defence measure would be 
unforeseen.210 In response, the European  Union recalls that the provisional determination listed the 
types of measures taken (tariff increases, standards, local content requirements)  and countries 
adopting such measures (India, Indonesia, Mexico, South Africa, Turkey, and the United States).211 
The European  Union also states that more detail is provided in an OECD presentation made at the 
83rd session of the OECD S teel Committee, and notes that the provisional determination refers to 
the reports from the 83rd and 84th sessions of the OECD Steel Committee. However, as that reference 
is not made in the context of increases in trade restrictive measures, we do not rely  on the 
OECD  presentation in this context.212 Among the third parties, the Republic of Korea submits that 
the adoption of government restrictions is also part of the reality in the steel sector, and it is 
therefore "doubtful" that it may constitute an unfor eseen development.213 
7.114.   Regarding the identification of the trade -restrictive measures, we note that the published 
determinations identify both the types of measures at issue and a number of countries having 
adopted them. While Turkey submits that "it is diff icult to understand how"214 the increase in these 
measures could be unforeseen, it has not articulated why this is the case . Similar to the  increase in 
trade defence measures, the European  Commission cited the increase in trade -restrictive measures 
in a context that included unprecedented overcapacity and the US Section  232 measures, which 
constrained the universe of outlets for steel product s around the world, thereby "establishing and 
aggravating imbalances in the international trade of the products concerned".215 We do not consider 
that Turkey has established that the European  Commission erred in finding that these events, 
including the incr eased recourse to trade -restrictive measures, in this context, by a number of 
countries, were unforeseen.  
7.115.   Third, Turkey also submits that the Section  232 measures  that the United States adopted 
on steel could not constitute an unforeseen development becaus e Section  232 of the 
Trade  Expansion Act, the US legislation that allows the adoption of such measures in the 
United  States, long predated the Uruguay Round.216 The European  Union responds that indeed 
measures adopted under Section  232 will not always be un foreseen developments, but they might 
be, and that the European  Commission explained why they were in these circumstances.217 Among 
the third parties, Canada takes the view that there could be instances in which Section  232 measures 
could be unforeseen deve lopments, but that the Panel must assess whether the 
 
210 Turkey's  first written submission, para.  110. 
211 Provisional determination, (Exhibit TUR -3), recital  33.  
212 European  Union's  first written submission, para.  108 (referring to Presenta tion at the 83rd session of 
the OECD Steel Committee , (Exhibit  EU-7)). In the context of overcapacity and government support measures, 
fns 1-2 to recitals  31-32 of the provisional determination refer to "reports from the 83rd and 84th OECD Steel 
Committee"  and provide the following link:  http//:www.oecd.org/stid/ind/steel .htm. ( Provisional determination, 
(Exhibit TUR -3), fns 1-2). 
213 Korea' s third-party submission, para.  17. 
214 Turkey's  first written submission, para.  110. 
215 Provisional determination, (Exhibit TUR -3), recital  30. 
216 Turkey's  first written submission, para.  111; second written submission, para.  76. 
217 European  Union's  first writ ten submission, para.  110 (referring to Provisional determination, 
(Exhibit  TUR-3), recital  35).  WT/DS595/R  
 
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  European  Commission gave a reasoned and adequate explanation of why this was so in the case 
before it.218 
7.116.   The fact that existing legislation of a Member may authorize that Member to adopt a 
particular mea sure does not in itself establish that all measures that may be applied by virtue of 
that legislation are foreseen. By way of illustration, a Member's  legislation may establish certain 
rules regarding military conflict, but that does not mean that any mili tary conflict engaged in by that 
Member cannot be "unforeseen" within the meaning of Article  XIX:1(a). Turning to the published 
determinations in the present case, we note that the European  Commission referred to the "level 
and scope" of the US Section  232 measures on steel, noting that it consisted of "a single 
across -product tariff … with almost no country exclusion", and that the measure was expected to 
reduce imports of steel products into the United  States by 13  million tonnes. The 
European  Commission also took the view that the measure was "illegal", and observed that it was 
being introduced "in the context of the prevailing persistent … overcapacity".219 The 
European  Commission thus articulated several reasons why it regarded these specific Section  232 
measures, and the events that included these measures, as unforeseen. The fact that the 
Section  232 measures were adopted in accordance with longstanding U S legislation does not 
establish that the European  Commission erred in considering those specific Section  232 measures 
to be an unforeseen development.  
7.117.   We therefore find that Turkey has not established that the European  Commission erred in 
finding that th e developments it relied upon were unforeseen.  
7.3.2.3   Whether  the European  Commission  did not establish  that the increase  in imports  
was "as a result  of" the unforeseen  developments  
7.118.   Turkey's  third set of arguments is that the European  Commission did not establis h the 
requisite "logical connection" between the unforeseen developments and the increase in imports. 
Specifically, Turkey argues that:  (a) the European  Commission did not do enough to establish how 
the unforeseen developments resulted in the increase in i mports into the European  Union220; (b) the 
unforeseen developments related to steel in general, and the European  Commission did not 
demonstrate that they resulted in the increase in imports of the specific steel  products under 
investigation221; and (c)  the US Section  232 measures, introduced in March 2018, could not have 
resulted in the increase in imports observed during 2013 -2017.222 We consider these arguments in 
turn. 
7.3.2.3.1   Whether the European  Commission did not do enough to establish how the 
unforeseen develop ments had resulted in the increase in imports into the European  Union  
7.119.   We begin by considering Turkey's  argument that the European  Commission did not do 
enough to establish how the unforeseen developments (i.e. overcapacity, the increase in trade 
restrictiv e and trade defence measures, and the Section  232 measures) resulted in the increase in 
imports at issue, and instead made assertions unsupported by evidence.  
7.120.   In considering these arguments, we note that the parties disagree on how much was required 
in this case to establish that the unforeseen developments resulted in the injurious increase in 
imports into the European  Union. On the one hand, Turkey argues that as the European  Commission 
relied on a complex set of facts to establish the "logical connectio n" between the unforeseen 
developments and the resulting increase in imports, the European  Commission was required to 
provide a "detailed explanation … of how the alleged unforeseen developments resulted in increases 
 
218 Canada's  third-party submission, para.  25. 
219 Provisional determination, (Exhibit TUR -3), recital  35. 
220 Turkey's  first written submission, paras.  124-135; se cond written submission, paras.  80-92; 
response to Panel question No.  22(a); and comments on the European  Union's  response to Panel 
question  No. 22(a) -(b). 
221 Turkey's  first written submission, paras.  136-143; second written submission, paras.  93-95; opening 
statement at the first meeting of the Panel, para.  22; response to Panel question No.  22(a), paras.  4-8; and 
comments on European  Union's  response to Panel question No.  21, paras.  8-10. Turkey also argues that the 
European  Union failed to carry out  an analysis at the level of each specific product category:  we have 
addressed this argument in section  7.2 above.  
222 Turkey's  first written submission, paras.  132 and  144-149; second written submission, paras.  87-88. WT/DS595/R  
 
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  in imports".223 The European  Union, on t he other hand, considers that the facts of this case were 
such that it was sufficient to just "put together" the unforeseen developments and the increase in 
imports to show their logical connection, including because they took place during the 
same  period.224 Among the third parties, Canada submits that we must determine whether it was 
sufficient to "bring [the] two sets of facts together" as the European  Union argues, given 
Turkey's  arguments on the complexity of the facts.225 Canada asserts that although "a competent 
authority enjoys a certain latitude in choosing the appropriate method" to examine the relationship 
between the unforeseen developments and the increase in imports, "it must provide a reasoned and 
adequate explana tion of its findings ".226 Japan argues inter alia that the authority must demonstrate 
how the unforeseen developments resulted in the increase in imports, and that for this to be the 
case, the unforeseen developments must modify the conditions of competitio n in favour of the 
imported products.227 The Republic of Korea submits that we must focus on whether the explanation 
in the published reports is sufficiently reasoned and adequate, and that we must consider "whether 
complex phenomena can be reduced to a sim ple matter of 'putting facts together'".228 Switzerland 
argues that merely putting together the unforeseen developments and the increase in imports is not 
enough.229 
7.121.   With this in mind , we consider the parties'  specific arguments on each of the unforeseen 
developments relied upon by the European  Commission.  
7.122.   We begin with the increase in overcapacity . Turkey argues that the European  Commission 
only offered general and vague statements, unsupported by evidence, regarding the connection 
between overcapacity and t he increase in imports.230 Among other things, Turkey argues that 
although the European Commission asserted that " many steel producers, notably in countries where 
the State distorts the normal play of market forces, kept capacity utilisation at high rates a nd flooded 
third country markets with their products at low prices ", and that "[t]his ha [d] resulted in increasing 
imports in the  EU and overall price depression ", the European Commission did not support these 
assertions with evidence.231 Turkey also argues that the European Commission did not provide 
evidence to support the assertion that where there is spare capacity, exporting producers will seek 
opportunities on export markets.232 Turkey notes that, insofar as it refers to China, this s tatement 
also "fails to take into account the existence of numerous trade remedies in place".233 Turkey also 
recalls that the panel in US – Steel Safeguards  found that even if large volumes of foreign steel 
production were displaced from foreign consumption, this would not suffice to establish that imports 
into the Member concerned increased as a result.234 To support its position that overcapacity does 
not ne cessarily lead to increased imports, Turkey notes that a report on the record of the underlying 
proceeding indicated that the trade effects of overcapacity were "systemically unimportant".235 
7.123.   The European  Union responds that when one considers side by side the increase in 
overcapacity and the increase in imports into the European  Union, their logical connection is 
apparent.236 The European  Union adds that the increase in overcapacity (and the other 
developments) occurred during the same period as the increase  in imports:  overcapacity had been 
increasing since 2000 and reached high levels in 2014 -2016, and the increase in imports had been 
observed between 2013 and June  2018.237 The European  Union also submits that the 
 
223 Turkey's  second written submission, para s. 80-81. See also Turkey's  first written submission, 
para. 125. 
224 European  Union's  first written submission, paras.  115-117. 
225 Canada's  third-party submission, para.  30. 
226 Canada's  third-party submission, para.  31. 
227 Japan's  third-party submission, paras.  9-10; third -party statement, paras.  2-4. See also 
Ukraine's  third-party statement, para.  9. 
228 Korea's  third-party submission, para.  19. 
229 Switzerland's  third-party submission, paras.  23-24. 
230 Turkey's  first written submission, paras.  126-127. 
231 Turkey's first written submission, para.  126 (referring to Provisional deter mination, (Exhibit TUR -3), 
recital  32).  
232 Turkey's first written submission, para.  127 (referring to Definitive determination, (Exhibit TUR -5), 
recital  54). 
233 Turkey's  first written submission, para.  127. 
234 Turkey's  first written submission, para.  128. 
235 Turkey's  first written submission, para.  129 (referring to Global Trade Alert Report, "Going Spare" , 
(Exhibit TUR -21), p.  6). On the latter, see European  Union's  response to Panel question No.  9, paras.  29-35. 
236 European  Union's  first written submission, p ara. 116. 
237 European  Union's  first written submission, para.  117. WT/DS595/R  
 
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  European  Commission's  findings on overcapaci ty were "justified by evidence". The European  Union 
refers "for example" to the European  Commission's  communication "Steel: Preserving Sustainable 
Jobs and Growth ", and to the Chair's statement s at the 83rd and 84th session s of the OECD Steel 
Committee .238 Turkey submits that these materials were not cited in the determinations to support 
the European  Commission's  findings on the logical connection between the unforeseen 
developments and the increase in imports, and that in any event they do not establish th at logical 
connection.239 Turkey also argues that the European Union 's choice of record evidence is biased, 
because the European Union  is omitting to refer to a report according to which the trade effects of 
overcapacity were unimportant.240 The European Uni on notes that the passage of the report that 
Turkey is referring to does not refer specifically to the steel sector.241 
7.124.   To evaluate these arguments, we again turn to the published determinations. These 
determinations indicate that the European  Commission fo und that global steelmaking capacity had 
more than doubled since 2000 (and in particular increased unexpectedly between 2011 and 2016242), 
that actual steel production far exceeded demand243, and that there had been a sudden, sharp, and 
significant increase in imports between 2013 and both 2017 and the first half of 2018.244 Regarding 
the connection between overcapacity and the increase in imports, the provisional determination 
stated that "given the important fixed costs in the steel sect or, many steel producers, notably in 
countries where the State distorts the normal play of market forces, kept capacity utilisation at high 
rates and flooded third country markets with their products at low prices when they could not be 
absorbed by domesti c consumption", and that this "has resulted in increasing imports into the EU 
and overall price depression".245 The provisional determination also stated that import prices 
"generally" undercut prices of EU producers in 2017. In the definitive determination , the 
European  Commission observed that:  
As far as the link between the unforeseen development of steel overcapacity and the 
increase in imports is concerned, it is clear that exporting producers have an interest in 
maximizing their capacity utilization. I n situations where spare capacity is available after 
supplying their domestic market, they will seek other business opportunities on export 
markets and thus generate an increase in import volumes on such markets.246  
7.125.   In the provisional determination, the Eu ropean  Commission referenced "reports from the 
83rd and 84th Steel Committee" in support of its statements that overcapacity had more than doubled 
since 2000, and that distortive government support accentuated the imbalances in the steel 
sector.247 In the definitive determination , the European Commission referred to its  communication 
"Steel : Preserving Sustainable Jobs and Growth" , and to the Global Trade  Alert Report "Going 
Spare", as supporting its statements that overcapacity had "unexpectedly continued t o increase", 
and that it had increased between 2011 and 2016 after decreasing from 2009 to 2011.248 
7.126.   In discussing overcapacity, the European Commission also stated that "overcapacity is 
inherently closely linked to dumped and subsidized imports" .249  
 
238 European  Union's  first written submission, paras.  118-121 (referring to the 
European  Commission's  Communication "Steel:  Preserving  Sustainable  Jobs and Growth ", (Exhibit EU -23); and 
to Chair's statement s at the 83rd and 84th session of the OECD Steel Committee , respectively, (Exhibits  EU-8 
and EU -9)). 
239 Turkey's  second written submission, paras.  83-84. 
240 Turkey's second written submission, para.  85; request for interim review, para.  21 (referring to 
Global Trade Alert Report, "Going Spare" , (Exhibit TUR -21)).  
241 European Union's response to Panel question No.  9, para.  34. We agree with the European Union 
that the passage at issue refers to overcapacity in general and not specifically in the steel sector. (See also 
ibid. paras.  26-36). 
242 Definitive determination, (Exhibit TUR -5), recital  52. 
243 Provisional determination, (Exhibit TUR -3), recital  31. 
244 Provis ional determination, (Exhibit TUR -3), recital  29; Definitive determination, (Exhibit TUR -5), 
recital  47. 
245 Provisional determination, (Exhibit TUR -3), recital  32. 
246 Definitive determination, (Exhibit TUR -5), recital  54. 
247 Provisional determination, (Exhibi t TUR -3), recitals  31-32, fn  1 ("Cf. reports from the 83rd and 84th 
OECD Steel Committee, available at http://www.oecd.org/sti/ind/steel.htm "), and fn  2 ("Idem, 83rd report").  
248 Definitive determination , (Exhibit TUR -5), recital  52. The same communication was also cited in the 
context of the analysis of threat of injury, in Provisional determination, (Exhibit TUR -3), recitals  58-60. 
249 Definitive determination, (Exhibit TUR -5), recital  53. WT/DS595/R  
 
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  7.127.   We reca ll that Article  XIX:1(a) provides  that a Member may adopt a safeguard where, among 
other things, a product is being imported in increased quantities "as a result of"  
unforeseen  developments and the effect of GATT obligations, and that the phrase "as a resu lt of" 
does not establish a causation requirement.250 This means that  an investigating authority need not 
provide the same quantum of  reasoning and evidence to substantiate the 
"logical  connection " between unforeseen developments and the increase in imports as it would be if 
Article  XIX:1(a) had contained  a causation requirement . Further, we recall that what precisely is 
required to establish that the increase in imports is "as a result of" the unfor eseen developments 
will depend on the "nature of the facts" in any given case.251  
7.128.   In this instance , we note that the European  Commission  established that global steel 
overcapacity greatly increased, reaching 2,29  billion tonnes in 2016 and remaining steady  at 
2,17 billion tonnes in 2017252, and that Turkey does not dispute this fact. We also note that the 
European Commission established that imports into the European Union of the 26 product categories 
on which it imposed the definitive safeguard increased significantly between 2013 and June  2018253, 
and although Turkey takes issue with this assessment, we do not find fault with this finding.254 We 
further note that the European Commission established that for 16 of the steel product categories 
subje ct to the definitive safeguard, import prices undercut the prices of EU producers255, and that 
the European Commission provided a reference to support its statement that distortive government 
support was accentuating the structural imbalances in the steel s ector, and Turkey has not contested 
this reference.256 The European Commission also explained the connection between the increase in 
overcapacity and the increase in imports, by stating that because of the high fixed costs in the 
steel sector, many steel pr oducers kept capacity utilization rates high, especially in countries with 
distortive government support, and that as a result of this, they "flooded third country markets with 
their products at low prices when they could not be absorbed by domestic consum ption"; in turn, 
this "resulted in increasing imports into the EU and overall price depression".257 
7.129.   The published determinations thus indicate that the European Commission provided 
evidentiary support for its statements regarding the increase in overcapacit y, the unexpected nature 
of its continued increase, and its links to government support. However, the determinations do not 
point to evidence in support of the European Commission's statements regarding the connection 
between the overcapacity and the incre ase in imports. Instead, the  
European  Commission's  reasoning on the connection between overcapacity and the increase in 
imports into the European  Union  was limited to  noting the magnitude of global overcapacity  and 
excess production , asserting that "it is clear" that overcapacity leads steel producers to seek other 
export opportunities, observ ing that import prices were typically lower than prices  of EU producers , 
and concluding that this has resulted in increased imports into the European  Union .258  
7.130.   It may well be that overcapacity led to pressure to export, and that that pressure to export 
led to increased exports to the European  Union, so that EU imports of the product under investigation 
increased as a result of overcapacity. Notwithstanding this, we note that, except for the description 
of the mag nitude of the overcapacity and the increase in imports, the 
 
250 See para.  7.84 above.  
251 See para. 7.85 above.  
252 Provisional determination, (Exhibit TUR -3), recital  31 and fn  1; Definitive determination, 
(Exhibit  TUR-5), recital  52 and fns  19-20. 
253 Definitive determination, (Exhibit TUR -5), section  3. 
254 See section  7.5 below.  
255 Provisional determination, (Exhibit TUR -3), recital  32 and annex  III. The European Commission also 
found import prices undercut the prices of EU producers for product category  23, to which it did not ap ply the 
definitive safeguard. (Definitive determination, (Exhibit TUR -5), recital  31). 
256 Provisional determination, (Exhibit TUR -3), recital  32 and fn  2. Turkey contests the 
European  Union's  reliance on the OECD Chair's statement at the 83rd session of the  OECD Steel Committee , 
(Exhibit EU -8) on the basis that the European Commission did not rely on it as evidence of the connection 
between the increase in overcapacity and the increase in imports. Turkey does not dispute the 
European  Commission's reliance on  it for the proposition that government support has accentuated the 
imbalances in the steel sector. (See para.  7.124  above).  
257 See paras.  7.124-7.125  above.  
258 As noted, the European Commission offered evidence for its statements about the e volution of 
overcapacity and about distortive government support, but not for its statements regarding the logical 
connection between overcapacity and the increase in imports. (See para.  7.125  above).  WT/DS595/R  
 
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  European  Commission's  determinations do not provide evidence that would otherwise support its 
reasoning on the connection between the two.  
7.131.   We do  not consider this to be a circumstance in which a great deal of analysis was required 
to establish a logical connection between the unforeseen development (i.e. overcapacity) and the 
increase in imports.259 The European  Commission, however, did not satisfy  this requirement, 
because it merely asserted that the connection existed, without referencing any evidence for its 
assertion.  
7.132.   In reaching this conclusion, we have considered a recent  WTO dispute where no 
Article  XIX:1(a) inconsistency was found to flow fr om an authority's determination that certain 
unforeseen developments resulted in an increase in imports based on their coincidence in time.  In 
US ‒ Safeguard Measure on PV Products (China) , one of the unforeseen developments that the 
US authorities cited w as the rapid change in the global supply chains and manufacturing processes 
that followed the imposition of US  AD/CV duties on photovoltaic (PV) products from China and 
Chinese Taipei. The panel found that the US authorities had shown that Chinese firms ha d made 
significant investments in PV production in several third countries, and that PV imports into the 
United States from those countries had significantly increased. China argued that it was 
inappropriate for the US authorities to infer that the increas e in production capacity of 
Chinese -affiliated PV producers contributed to the increased imports into the United States, 
suggesting that the increase could have come from other producers. The panel rejected that 
argument, explaining:  
[E]ven if this were a hypothetical possibility, the circumstantial evidence relied upon by 
the [United  States International Trade Commission ] suggests otherwise. Indeed, in line 
with the United States' argument, the fact that Chinese -affiliated companies 
significantly increased  their production capacity in third countries in the same years 
when imports from those countries into the US  market significantly increased suggests 
to us that there was a meaningful connection between these developments.260  
7.133.   This analysis appears to suppo rt the view that in some instances demonstrating a 
coincidence in time between certain unforeseen developments and an increase in imports, and 
explaining their connection, is sufficient to establish their logical connection for purposes of 
Article  XIX:1(a) .261 In that case there was , among other elements262, an increase in production 
capacity of Chinese -affiliated producers in four countries that matched a simultaneous increase in 
imports from those same countries, all over a two -year period. Thus, there was a closer link in that 
case between the unforeseen development at issue and the increase in imports than there is in the 
present case between overcapacity in the global steel industry in general and an increase in imports 
in general.  
7.134.   We next consider the Eu ropean  Commission's  examination of the connection between the 
increase in trade restrictive and trade defence measures  and the increase in imports . Turkey submits 
that the European  Commission "provided no detailed factual or statistical record" on how steel flows 
into the European  Union were impacted by the trade restrictive and trade defence measures it 
referred to, and did not identify those measures.263 The European  Union responds that nothing more 
was required other than establishing the increase in trade defence measures and the increase in 
imports "during the same period".264 
7.135.   We turn again to the published determinations. In the provisional determination, the 
European  Commission stated that the increasing imports into the European  Union and overall p rice 
depression had "been exacerbated by trade -restrictive practices in third country markets". The 
European  Commission gave the example of tariff increases on certain steel products that "were 
typically imported in increasing quantities over the period of  investigation [(POI)]". The 
 
259 We recall that Article  XIX:1(a) does not require a causation relationship between the unforeseen 
developments and the increase in imports. (See para.  7.84 above).  
260 Panel Report, US – Safeguard Measure on PV Products  (China)  [appealed by China 
16 September  2021] , para.  7.42. 
261 See also Panel Reports, US – Steel Safeguards , para.  10.115.  
262 See Panel Report, US – Safeguard Measure on PV Products  (China)  [appealed by China 
16 September  2021] , paras.  7.21 and 7.39 -7.44. 
263 Turkey's  first written submission, paras.  130-131; second written submission, para.  86. 
264 European  Union's  first written submission, paras.  117 and 123.  WT/DS595/R  
 
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  European  Commission went on to list other trade restrictive practices; and then it noted that while 
in 2011/2013 there had been 77 trade defence initiations related to steel per year, that had increased 
to 117 per year in 2015/ 2016. It then referred to the large number of AD/CV duty orders and 
investigations in the United States, and stated that "as the U.S. is one of the world's  largest 
steel-importing countries … the impact of such a large number of trade remedies has been str ongly 
felt globally ".265 In the definitive determination, addressing arguments that it had not established 
the connection between the trade restrictive and trade defence measures and the increase in 
imports, the European  Commission recalled that while in 20 11/2013 there had been 77 trade 
defence initiations per year related to steel, that had increased to 117 per year in 2015/2016, and 
stated that "no party [had] questioned these figures which indicate an unforeseen development, 
leading to the increase of im ports established above" .266 
7.136.   Except for the trade defence measures adopted by the United States, the 
European  Commission  mainly described the se unforeseen developments and asserted that they had 
led to the increase in imports into the European  Union . As reg ard the trade defence measures 
adopted by the United States, the European  Commission  reasoned that because the United States 
is one of the largest steel importers, the effect of the large number of measures adopted by the 
United States had "been strongly f elt globally ".267  
7.137.   We note that each trade restrictive and trade defence measure typically concerns only 
certain steel products imported into and exported from certain countries. Therefore, recalling that 
the type of analysis required to establish the conne ction between the unforeseen developments and 
the increase in imports depends on the nature of the facts, we consider that this is a situation where 
a "more detailed analysis" is required.268 The European  Commission did not offer such an analysis. 
Other tha n for the US trade defence measures, the European  Commission merely asserted that the 
trade restrictive and trade defence measures  had led to the increase in imports into the 
European  Union ; for the US trade defence measures , the European  Commission  assert ed that their 
impact had been felt globally, but offered no evidence and made no attempt to establish a link 
between the measures and the increase in imports into the European  Union . For example, while it 
indicated the increased number of US trade actions,  it gave no information on the volume of imports 
affected.  
7.138.   Therefore, we find that the European  Commission  did not establish that the increase in 
imports was "as a result of" the increase in trade -restrictive and trade defence measures . 
7.139.   We next consider the US Section  232 measures on steel . Turkey argues that the 
European  Commission did not establish that those measures resulted in the increase in imports of 
the 26 product categories concerned into the European Union, because:  (a) the Section  232 
measures excluded several products but the European  Commission  did not carry out a 
product -specific analysis;  (b) the European  Commission  did not conduct a country -specific analysis 
to show that there had been increases in imports into the European  Union  from the countries whose 
exports to the Unite d States had decreased; (c) the European  Commission  offered no evidence for 
its assertion that the EU market was attractive, and in any event that would not have been sufficient 
to establish that the Section  232 measures resulted in the increase in imports  into the 
European  Union; and (d)  the Section  232 measures entered into force after the POI over which the 
increase in imports was observed.269  
7.140.   The European  Union  responds that : (a) the exclusions of products from certain countries did 
not change the autho rity's conclusions270; (b) a country -specific analysis was not necessary here, 
given the global nature of the unforeseen developments271; (c) the EU market is attractive because 
it is the largest steel importing market, with high prices, and this is "public knowledge"272; (d) there 
 
265 Provisional determination, (Exhibit TUR -3), recitals  33-34. 
266 Definitive determination, (Exhibit TUR -5), recital  56. 
267 Provisional determination, (Exhibit TUR -3), recital  35. 
268 Panel Reports, US – Steel Safeguard s, para.  10.115.  
269 Turkey's  first written subm ission, paras.  132-135; second written submission, paras.  87-92; 
responses to Panel question Nos.  22 and 23; and comments on European Union's response to Panel question 
No. 22, para.  12. 
270 European  Union's  first written s ubmission, para.  127. 
271 European  Union's  first wr itten submission, para.  128. 
272 European  Union's  response to P anel question No.  22(a), para.  9. WT/DS595/R  
 
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  is evidence of the attractiveness of the EU market273; and (e) the attractiveness of the EU market, 
when combined with the unforeseen developments and their overlap in time with the increase in 
imports, establishes the logical connec tion between the unforeseen developments and the increase 
in imports.274 As regards the timing of the Section  232 measures, the European  Union responds 
that: the POI for the increase in imports ended in June  2018, after the imposition of the 
Section  232 measures ; the European  Commission  ascertained the existence of actual trade diversion 
based on data on monthly imports into the United States and the European  Union  from January to 
September  2017 and 2018 ; and the very initiation of the Section  232 investigation in April  2017 had 
already created uncertainty in the market .275 
7.141.   We turn once more to the published determinations to make our assessment. In the 
provisional determination, the European  Commission  stated that : the "U.S. Section  232 measures, 
given their level and scope, are likely to cause substantial trade diversion of steel products into the 
Union"; the United States had calculated that the Section  232 measures would decrease imports by 
an amount that corresponded to 7% of EU consumption; the EU market "is generally a very attractive 
market for steel products both in terms of demand and prices"; and "some of the main exporters to 
the US are also traditional steel suppliers to the Union and there is no doubt that these countries, 
as well as othe rs whose exports and production will be affected by the U.S. measures and the 
foreseeable trade diversion cascade, will redirect their exports to the Union".276 In the 
definitive  determination, the European  Commission  noted that the Section  232 investigatio n had 
been initiated in April  2017 and the resulting report published in January  2018, and asserted that 
even the initiation of the investigation "did undoubtedly create uncertainty on the market and caused 
effects on steel trade flows".277 Further, the European  Commission  examined monthly imports of 
steel into the United  States and the European  Union  from January to September  2017 and 2018; it 
found that, in 2018, monthly imports into the United States had been "consistently lower" than in 
2017, with the ex ception of April, and that correspondingly monthly imports into the European  Union  
had been higher, each month, than in 2017; according to the European  Commission , this established 
that trade diversion was already taking place, and more specifically that t he Section  232 measures 
"sped  up the increase in imports by adding further trade diversion".278 Next, addressing arguments 
regarding "product exclusions", the European  Commission stated that only Australia had obtained 
an unconditional exemption, and accoun ted for around 1% of total US imports, whereas other 
countries had been allocated tariff -free quota s, many of which had been exhausted upon allocation, 
and moreover those countries accounted for less than 20% of 2017 imports.279  
7.142.   Thus, the European  Commissi on's finding that the US Section  232 measures resulted in the 
increase in imports (by "adding further trade diversion") rested on the following:  the "level and 
scope" of US measures, which according to the US Department of Commerce were expected to cut 
out of imports into the United States a volume equivalent to 7% of EU consumption280; the assertions 
that the European  Union is "generally a very attractive market for steel products both in terms of 
demand and prices", and that some of the suppliers of the US  market were also "traditional suppliers" 
of the European  Union281; and data showing that between the imposition of the Section  232 tariff on 
steel in March  2018 and September  2018, monthly imports of steel into the United States had 
decreased compared to the same month of 2017, except in April, and monthly imports into the 
European  Union had correspondingly increased.282  
7.143.   Similar to the trade restrictive and trade defence measures that we have just considered, 
we take the view that establishing the connection between the Section  232 measures on steel and 
the increase in imports into the European Union "require[s] a much more detailed analysis" than 
"bringing two sets of facts together".283 This is particularly in view of the fact that the 
Section  232 measures have been adopted by a single Member.  
 
273 European  Union's  response to P anel question No.  22(a), para.  10. 
274 European  Union's  response to Panel  question No.  22(b), para. 11.  
275 European  Union's  first written submission, paras.  124-129 and 139 -145.  
276 Provisional determination, (Exhibit TUR -3), recital  35. 
277 Definitive determination, (Exhibit TUR -5), recital  58. 
278 Definitive determination, (Exhibit TUR -5), recitals  58-59 and tables 12 and 14.  
279 Definitive determination, (Exhibit TUR -5), recitals  60-61. 
280 Provisional determination, (Exhibit TUR -3), recital  35 and fn  2. 
281 Provisional determination, (Exhibit TUR -3), recital 35. 
282 Definitive determination, (Exhibit TUR -5), recital  59 and tables  12 and 14.  
283 See para.  7.85 above, and Panel Reports, US – Steel Safeguards , para.  10.11 5. WT/DS595/R  
 
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  7.144.   The Section  232 analysis that the European Commission conducted with regard to the 
Section  232 measures does not satisfy this more detailed standard. In terms of evidence, we note 
that the European Commiss ion relied on an estimate by the United States according to which the 
measures would have reduced steel imports into the United States by a total amount corresponding 
to 7% of EU steel consumption, and on six months of data following the imposition of the 
Section  232 steel tariffs that showed some negative correlation s between trends in imports into the 
European  Union and the United States. For the remainder of its analysis, the European Commission 
did not offer evidence or sufficiently detailed information .284  
7.145.   In particular, a key element of the European Commission's analysis was that the EU market 
was attractive for exporters forced out of the US market. While there appear s to be evidence on the 
record that would support this proposition, this evidence is limited to a model presented to the 
European  Commission by the EU industry285, which the European  Commission used in its fashioning 
of the safeguard it applied, but made no mention of in discussing the connection between the 
Section  232 measures and the inc rease in imports .286 The other evidence  pointed to by the 
European  Union in this context was either not referred to by the European  Commission as 
establishing the attractiveness of the EU market for exporters forced out of the US market, or is not 
on the re cord. First, the European  Union  now refers to the EU importing market shares reported in 
presentations made at the 83rd and 84th sessions of the OECD Steel Committee , showing that the 
European  Union  "was the main importing economy worldwide ".287 But althoug h the 
provisional  determination , in discussing overcapacity,  referred to "reports from the 83rd and 84th 
sessions of the OECD Steel Committee"288, the investigating authority did not refer to these "reports" 
as establishing the size of the EU market.289 Second, the European  Union  refers to the 
European  Commission's  findings on undercutting, but this was described in the published 
determinations as an effect of the unforeseen developments, and not as evidence of the 
attractiveness of the EU market.290 Third, the European  Union  refers to "publicly available data in 
the Global Trade Atlas database", but these data were not on the record of the investigation.291 
Fourth, the European  Union  asserts that the existence of trade defence measures establishes  that 
the European  Union  was an attractive target for exports, but this assertion does not feature 
anywhere in the reasoning of the investigating authority.292  
7.146.   Thus, while it appears that evidence of the attractiveness of the EU market for exporters 
excluded from t he US market might have been readily available to the European  Commission, the 
European  Commission in its published determinations did not rely on that evidence to establish that 
its own market was attractive to exporters excluded from the US market becaus e of the Section  232 
 
284 See para.  7.142  above.  
285 Calculation deflection , (Exhibit  EU-12); Estimate of imports to the US that will be deflected , 
(Exhibit  EU-13). 
286 Before us, the European Union has referred to this model as evidence of the connection between the 
Section  232 measures and the increase in imports. (European  Union's  response to Panel question No.  11; 
comments on Turkey's  response to Panel question No.  22).  
However, the published determinations indicate that that analysis was used to determine the 
appropriate level of the measures, and not to establish the connection between the unforeseen developments 
and the increase in imports ; therefore , we do not co nsider it in this context.  (Provisional determination, 
(Exhibit TUR -3), recitals  101-111; Definitive determination, (Exhibit TUR -5), recitals  167-169, 174 -176, and 
178-180).  
287 European  Union's  opening statement at the first meeting of the Panel, para.  56; response to P anel 
question No.  22(a), para.  10 (referring to Presentation at the 83rd session of the OECD Steel Committee , 
(Exhibit EU -7); and Presentation at the 84th session of the OECD Steel Committee,  (Exhibit EU -16)). 
288 Provisional determination, (Exh ibit TUR -3), fn  1 ("Cf. reports from the 83rd and 84th OECD Steel 
Committee, available at http://www.oecd.org/sti/ind/steel.htm "). Turkey points out that the two  OECD  
documents that the European  Union i s referring to as establishing the attractiveness of the EU market, 
submitted to us as Exhibits  EU-7 and EU -16, were not on the record of the safeguard investigation. 
(Turkey's  comments on the European  Union's  response to Panel question No.  22, para.  12). 
289 We also note that the OECD documents cited by the European Union in this context (Exhibits EU -7 
and EU -16) are not the same OECD documents that the European Union has put forward as the relevant 
"reports" in the context of the discussion of overcapacity (Chair's statement s at the 83rd and 84th session of the 
OECD Steel Committee , respectively, (Exhibits EU -8 and EU -9)). 
290 Provisional determination, (Exhibit TUR -3), recital  32. 
291 European  Union's  response to Panel question No.  22(a), para.  10; Turkey's  comments on the 
European  Union's  response to Panel question No.  22, para.  12.  
292 European  Union's  opening statement at the first meeting of the Panel, para.  57; response to P anel 
question No.  22(a), para.  10. See also Provisional determination, (Exhibit TUR -3); and 
Definitive  determination, (Exhibit TUR -5).  WT/DS595/R  
 
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  measures. Yet, this proposition was central to the European Commission's conclusion that the 
Section  232 measures resulted in the increase in imports into the European Union, by "speeding up" 
the pre -existing increase.   
7.147.   Similarly, we n ote that while the European Commission asserted that some of the suppliers 
to the United States  were also suppliers of the EU market, and that there was "no doubt that these 
countries as well as others" would redirect their exports from the United States t o the 
European  Union293, the European Commission did not reference evidence in its determination that 
supported this assertion.  
7.148.   We therefore consider that the European Commission did not establish that the 
Section  232 measures resulted in the increase in i mports into the European Union.  
7.3.2.3.2   Unforeseen  developments  relating  to steel  in general  
7.149.   Turkey argues that the unforeseen developments relied upon by European  Commission 
pertained to steel in general, and not to the specific products under investigation, and  that therefore 
the European  Commission did not demonstrate that they resulted in the increase in imports of the 
specific products under investigation.294  
7.150.   Having already found that the European  Commission has not established that those 
unforeseen developments resulted in the increase in imports, we do not examine this further 
argument advanced by Turkey.  
7.3.2.3.3   The timing of the  Section  232 measures   
7.151.   Turkey argues that the increase in imports could not have been "as a result of" the 
Section  232 measures, because these were introduced in March 2018, after the observed increase 
in imports.295  
7.152.   The European  Union responds inter alia  that the POI for the increase in imports ended in 
June 2018, thus after the imposition of the Section  232 measures; that nothing requires a Member 
to rely on evidence that predated initiation  of a safeguard investigation; that the 
European  Commission also ascertained the existence of trade diversion based on data on monthly 
imports into the United States and into the European  Union  in January to September 2017 and 2018; 
and also that the European  Commission  found that the very initiation of the investigation in 
April 2017 had created uncertainty and affected trade flows .296  
7.153.   Having found that the European  Commission has not establishe d that the 
Section  232 measures resulted in the increase in imports, we do not examine this further argument 
advanced by Turkey.  
7.3.2.3.4   Overall conclusion on the connection between the unforeseen  developments  
and the increase  in imports  
7.154.   We therefore find that the  European  Union  acted inconsistently with Article  XIX:1(a) of the 
GATT 1994 by imposing the definitive safeguard without establishing that the increase in imports 
took place  "as a result of" the unforeseen developments . 
7.4  The effect  of obligations  
7.155.   Turkey argues that the definitive safeguard is inconsistent with Article  XIX:1(a)  of 
the GATT  1994 because t he European  Commission did not identify the relevant " obligations 
incurred"  under the GATT 1994 , and because the European  Commission  did not explain how any 
 
293 Provisional determination, (Exhibit TUR -3), recital  35. 
294 Turkey's  first written submission, paras.  136-140 and 142 -143; seco nd written submission, para.  94. 
We recall that Turkey makes a related but separate argument that the European  Commission was required to 
carry out its examination at the level of the individual product categories. We have examined that argument in 
section  7.2 above.  
295 Turkey's  first written submission, paras.  132 and 144 -149; second written submission, paras.  87-88. 
296 European  Union's  first written submission, paras.  124-129 and 139 -145.  WT/DS595/R  
 
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  such obligations had the effect of constraining  the European  Union's  ability to prevent the threatened 
injury.297  
7.156.   In its first written submission, t he European  Union identifi ed the relevant obligations as "the 
obligation under the GATT 1994 to not impose any tariffs above 0% (or quantitative restrictions) ", 
and their "effect" as the inability to deviate from those same obligations to prevent the threat of 
serious injury  from t he increased imports .298 According to the European  Union , those obligations 
"are self -evident" and do not require additional explanation, and their effects do not require 
additional demonstration.299 In answer to a question from the Panel, the European  Union  describes 
the relevant obligations as "the tariff binding of 0% for all imports included in the product 
concerned", which "is an obligation on the European  Union under Article  II:1(a) and II:1(b), in 
conjunction with Article  II:7 of the GATT 1994 and the European  Union's  Schedule of Concessions 
and Commitments".300 The European  Union acknowledges that it did not identify these obligations 
in its published determinations.301  
7.157.   In response to the European  Union's  argument that the relevant obligations are self -evident , 
Turkey points to the finding of the panel in Ukrain e ‒ Passenger  Cars to assert  that the fact that an 
obligation is "known or knowable" does not relieve the authorities from the requirement to identify 
the obligation and its effects.302 As to the effects of the obligations, Turkey refers to the finding of 
the panel in India – Iron and Steel Products  according to which  the authority must "explain how that 
obligation constrains [the Member's] ability to react to the import surge causing injury to its domestic 
industry".303 
7.158.   Among the third parties, Japan argues that the authority must both  identify in its published 
report the relevant obligations and explain how they "prevented the Member concerned from taking 
WTO-consistent measures in order to prevent or remedy the change generated by the 'unforeseen 
developments'  in the competitive relat ionship between imports and domestic like or directly 
competitive products".304 The United States argues that the authority is not required to demonstrate 
"the effect of obligations incurred" in its published report, and that "a Member establishes that 
increased imports are the 'effect of obligations incurred'  by identifying a commitment, such as a 
tariff concession, that prevents it from raising duties on imports".305 
7.159.   In this section, we first examine the applicable requirements of Article  XIX:1(a), and we t hen 
assess whether Turkey has established the claimed inconsistency.   
7.4.1   The applicable  requirements  of Article  XIX:1(a) of the GATT 1994  
7.160.   We recall that Article  XIX:1(a) of the GATT 1994 provides:  
If, as a result of unforeseen developments and of the effect o f the obligations incurred 
by a contracting party under this Agreement , including tariff concessions, any product 
is being imported into the territory of that contracting party in such increased quantities 
and under such conditions as to cause or threaten serious injury to domestic producers 
in that territory of like or directly competitive products, the contracting party shall be 
free, in respect of such  product, and to the extent and for such time as may be necessary 
 
297 Turkey's  first written submission, paras.  151-158; second written submission, paras.  98-103.  
298 European  Union's  first written submission, para.  65. The European  Union also submits that the 
relevant concessions need not have been n egotiated during the Uruguay Round, but Turkey does not appear to 
have argued that they should. (European  Union's  first written submission, paras.  61-62). 
299 European  Union's  first written submission, para.  66. 
300 European  Union's  response to Panel question No. 24(a) -(b), paras.  12-13. 
301 European  Union's  response to Panel question No.  24(c), para.  15. 
302 Turkey's  second written submission, para.  102 (referring to Panel Report, Ukraine  – Passenger  Cars, 
para. 7.96).  
303 Turkey's  second written submission, para.  100 (referring to Panel Report, India – Iron and Steel 
Products  [appealed by India on 14  December  2018, appealed by Japan on 21  December  2018], para.  7.89).  
304 Japan's  third-party submission, paras.  20 and 22 -24; third -party statement, paras.  5-6. 
305 United States'  third-party submission, paras.  14 and 16. See also United States'  third-party 
statement, paras.  13-14. WT/DS595/R  
 
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  to prevent or remedy such injury, to suspend the obligation  in whole or in part or to 
withdraw or modify the concession.306 
7.161.   As we have already noted, Article  XIX:1(a) is structured as a two -part conditional sentence, 
and both parts of this conditional sente nce contain several clauses. The first part of Article  XIX:1(a) 
is the dependent clause of the conditional sentence:  it is introduced by the conjunction "if", and sets 
out certain circumstances or conditions. The second part of Article  XIX:1(a), beginning with "the 
contracting party shall be free", describes the consequence of those circumstances and conditions. 
Specifically, that consequence is that the Member concerned "shall be free" to suspend the relevant 
obligation(s) of the GATT 1994, thus imposing a  safeguard.  
7.162.   Under this conditional sentence, part of the circumstances that trigger a Member's  ability to 
apply a safeguard are an injurious increase in imports "as a result of unforeseen developments and 
of the effect of the obligations incurred by a con tracting party under this Agreement ".307 That is, 
under Article  XIX:1(a) the circumstances that lead to the imposition of a safeguard measure include 
a combination of unforeseen developments and "the effect of the obligations" under the GATT 1994, 
both of w hich together result in the increase in imports. The term "obligation" reappears in the last 
clause of Article  XIX:1(a), because the remedy provided for in Article  XIX:1(a) is the suspension of 
"the obligation" "as a result of" which the increase in import s has occurred.  
7.163.   As we have already noted308, the phrase  "as a result of"  connects the effect of the obligations 
incurred under the GATT 1994, on the one hand, and the injurious increase in imports, on the other, 
by providing that the latter occurs "as a re sult of" – i.e. is the effect, consequence or outcome of – 
the former. As we have also already noted309, the phrase "as a result of" is different from "cause".  
7.164.   We also note that Article  3.1 of the Agreement on Safeguards requires Members to "publish 
a repo rt setting forth their findings and reasoned conclusions reached on all pertinent issues of fact 
and law". The existence of the circumstances and conditions that are necessary for a Member to be 
allowed to adopt a safeguard is "pertinent" to the decision t o adopt a safeguard, and the existence 
of obligations of the GATT 1994 whose effect resulted in the injurious increase in imports  is one such 
circumstance. I t is therefore in a published report that Members must identify th ose obligations .310 
7.4.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
Article  XIX:1(a)  of the GATT  1994  with regard  to the "effect  of the obligations " 
7.165.   The parties agree that the European  Commission did not identify the relevant obligations of 
the GATT 1994 in its published determinations.311  
7.166.   The European  Union asserts that  those obligations "are self -evident  and do not require any 
additional explanation ".312 The European  Union also notes that the definitive determination "refers 
in several instances to a  'free of duty quota'  thus identifying the products included in the product 
concerned as products with a tariff binding of 0%", because "[p]roducts that are free of duty under 
the safeguards measure were necessarily free of duty before the imposition of th is measure".313 
7.167.   We note, first, that the existence of obligations of the GATT 1994 whose effect results in the 
injurious increase in imports is one of the cumulative circumstances that must exist for a Member 
 
306 Emphasis added.  
307 We thus agree with the finding of the Appellate  Body in Korea  – Dairy  that the clause "as a result of 
unforeseen deve lopments and of the effects of obligations" "describes … circumstances  which must be 
demonstrated as a matter of fact … for a safeguard measure to be applied consistently with the provisions of 
Article  XIX". (Appellate  Body Report, Korea  – Dairy , para.  85 (emphasis original); see also Appellate  Body 
Report, Argentina  – Footwear  (EC), para.  85; and Panel Report, Ukraine  – Passenger  Cars, para.  7.52).  
308 See para.  7.84 above. 
309 See para.  7.84 above.  
310 We also note that the panel in Ukraine  – Passenger  Cars found that referring to the relevant  
obligations in the published determinations but in a different context (in that case, when discussing causation) 
was not sufficient. (Panel Report, Ukraine  – Passenger  Cars, paras.  7.96-7.99).  
311 See paras.  7.155 -7.156  above.  
312 European  Union's  first written submission, para.  66. 
313 European  Union's  response to Panel question No. 24(c), para. 14 (referring to Definitive 
determination, (Exhibit TUR -5), recitals  152, 156, and 188). (fn omitted)  WT/DS595/R  
 
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  to be able to apply a safeguard measure, and those obligations must therefore be identified in the 
Member's  published report as part of the "pertinent issues of fact and law".314 
7.168.   Although the European  Union suggests that other Members, on reviewing the safeguard, can 
understand which obligations of the GATT 1994 the Eu ropean  Union decided to suspend, and 
therefore which obligations had the effect of stopping the European  Union from preventing or 
remedying serious injury, we do not think that it would be appropriate to require other Members to 
carry out this interpretive  exercise, when the European  Union was better positioned to identify, and 
should have identified, the relevant obligations itself. In this regard, we note that the Member that 
finds that certain obligations of the GATT 1994 constrain its ability to prevent  or remedy injury from 
an increase in imports, and that suspends those obligations as a result, is best placed to identify 
with certainty those obligations. Conversely, the Members affected by the suspension should not be 
required to do so, second -guessing  the Member adopting the safeguard.  
7.169.   Given this, we reject the European  Union's  suggestion that the 
European  Commission's  references to a "free of duty quota" (to which the out -of-quota duty does 
not apply) in the sections of the definitive determination di scussing the form, level, and duration of 
the measures315 was sufficient to identify the relevant obligations of the GATT 1994.  
7.170.   We therefore find that the definitive safeguard is inconsistent with Article  XIX:1(a) because 
the European  Commission did not ide ntify in its published reports the obligations whose effect 
resulted in the injurious increase in imports. Having so found, we do not proceed to examine 
Turkey's  further argument that the European  Commission did not explain how the obligations in 
question resulted in the injurious increase in imports.  
7.5  Increase  in imports  
7.171.   Turkey claims that the European  Commission acted inconsistently with  Articles  2.1 and 
4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994 because  it failed to  
make reasoned and adequate findings with respect to its  determination s regarding an  increase in 
imports , including with respect to alleged increases in certain product categories and product 
families.316 The European  Union responds that: (a) the European  Commissi on was not required to 
examine increases by reference to individual product categories and product families, but rather the 
examination of the product as a whole was the "relevant determination"317; and (b) the examination 
of the product as a whole showed a  sharp increase in imports of  59% between 2013  and 2016 
followed by a continued  increase after this timeframe,  which reach ed 71% overall  at the end of the 
most recent period (MRP), namely mid -2017 to mid -2018.318 
7.172.   We begin by setting out the applicable provisions forming the basis of Turkey's  claims 
(section  7.5.1 ). We then evaluate Turkey's  arguments that the European  Commission did not 
provide a reasone d and adequate explanation for this determination due to decreases in import 
levels for some individual product categories and product families (section  7.5.2.1 ), and that the 
European  Commission did not show that the increase was sufficiently significant, sudden, sharp, and 
recent (section  7.5.2.2 ). 
 
314 Agreement on Safeguards, Article  3.1; see also para.  7.164  above  and Appellate  Body Report, US – 
Lamb , paras.  72 and 76 . 
315 See fn  313 above.  
316 Turkey's  first written submission, para.  159. Turkey also argues that the definitive determination is 
inconsistent with Articles  2.1 and 4.2(a) and Article  XIX:1(a) because the European Commission did not 
determine that there had been the requisite increa se in imports for each product category, and took an 
inconsistent approach to the product concerned at different steps of its analysis. (Turkey's first written 
submission, paras.  170-173). We have already examined and rejected these arguments in section  7.2 above, 
and therefore we do not discuss them again in this section.  
317 European  Union's  first written submission, para.  161. 
318 European  Union's  first written submiss ion, paras.  154, 157, 159, 161, 171, 180, and 194.  WT/DS595/R  
 
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  7.5.1   The applicable requirements of Article  XIX:1(a)  of the GATT  1994  and Articles  2.1 
and 4.2(a)  of the Agreement  on Safeguards   
7.173.   Turkey claims that the European  Commission's  determination of an increase in imports fails 
to satisfy the requirements of Articles  2.1 and 4.2(a) of the Agreem ent on Safeguards and 
Article  XIX:1(a) of the GATT 1994 . Article  XIX:1(a) of the GATT 1994 provides, in relevant part:  
If, as a result of unforeseen developments and of the effect of the obligations incurred 
by a contracting party under this Agreement, including tariff concessions, any product 
is being  imported  into the territory of that contracting party in such increased  quantities  
and under such conditions as to cause or threaten serious injury to domestic  
producers  … [.]319 
7.174.    Article  2.1 of the Agreement on Safeguards provides, in relevant part:  
A Member may apply a safeguard measure to a product only if that Member has 
determined, pursuant to the provisions set out below, that such product  is being  
imported  into its territory  in such increased  quantities,  absolute  or relative  to domestic  
production , and un der such conditions as to cause or threaten to cause serious injury  
to the domestic industry  … [.]320 
7.175.   Article  4.2(a) of the Agreement on Safeguards provides, in relevant part:  
In the investigation to determine whether increased imports have caused or are 
threatening to cause serious injury to a domestic industry under the terms of this 
Agreement, the competent authorities shall evaluate all relevant factors of an objective 
and quantifiable nature having a bearing on the situation of that industry, in particular, 
the rate and amount  of the increase  in imports  of the product  concerned  in absolute  
and relative  terms  … [.]321  
7.176.    We proceed now to examine Turkey's  claims in relation to these provisions.  
7.5.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
Article  XIX:1(a)  of the GATT  1994  and Articles  2.1 and 4.2(a)  of the Agreement  on 
Safeguards   
7.5.2.1   Whether  the European  Commission  did not adequately  account  for decreases  in 
imports  in the most  recent  past 
7.177.   Turkey argues that the European  Commission  failed to provide a reasoned and adequate 
explanation for its finding of an increase in imports  in two main ways.  First, with respect to product 
categories, Turkey argues that the European Commission only compared imports at the beginning 
and end of the P OI.322 Second, Turkey argues that the European Commission did not properly 
account for the fact that imports of certain individual product categories and product families 
decreased during  the most recent part of the POI.323 The European  Union responds that 
Turkey's  contention incorrectly focuses on a limited number of individual product categories and 
product families, whereas the "relevant determination" analysed the product under investigation as 
a whole.324 For the European  Union, the European  Commission's  analysis of the product categories 
and product families was merely  "additional" to this "relevant determination".325 The European  Union 
also asserts that nothing in the GATT 1994 or in the Agreement on Safeguards requires the 
"increase" to manifest as a continuous acceleration of imports .326 Brazil, as a third party, argues 
that " investigating authorities must analy se trends over the entire POI with a particular focus on the 
 
319 Emphasis added.  
320 Emphasis added; fn omitted.  
321 Emphasis added.  
322 Turkey's first written submission, paras.  174-181. 
323 Turkey's  first written submission, para.  182. 
324 European  Union's  first written submi ssion, paras.  157-161. 
325 European  Union's  first written submission, para.  161. 
326 European  Union's  first written submission, paras.  167-170 and 178 -179. WT/DS595/R  
 
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  most recent data in order to comply with the requirement expressed by the phrase 'is being 
imported ' present in Article  2.1 of the Agreement  on Safeguards ".327 
7.178.   In light of our findings in section  7.2.2 above, we consider it significant that this argument 
by Turkey pertains only to the European  Commission's  examination of increases in imports based 
on certain individual product categories and product families. Turkey ha s not presented an equivalent 
challenge in respect of the European  Commission's  examination of increases in imports based on the 
product under consideration as a whole. In its examination of the product as a whole, the 
European  Commission found that "[i]mp orts increased in absolute terms by 71% during the period 
of analysis, and in relative terms with market shares increasing from 12,7% to 18,8%" and that 
"[t]he most significant increase took place in the period 2013 -2016" whereupon "[s]ubsequently, 
imports  continued to increase at a slower pace before picking up again in the MRP".328 Thus, for the 
product as a whole, the European  Commission examined these trends and found that import volumes 
continuously increased at varying rates.  
7.179.   Accordingly, the European  Commission's  determination sets out a basis for its finding of an 
increase in imports that has not been challenged by Turkey, namely its finding on the basis of the 
product as a whole, comprising all the product categories on which the European  Commission  applied 
the safeguard. The European  Commission  characterized its examination by reference to the 
individual product categories and product families as "confirm[atory]", "complement[ary]", and 
"supplementa[l]" vis-à-vis its examination of the product as a whole.329 This is also reflected in the 
general structure and order of the European  Commission's  analysis.  
7.180.   In this context, we note that Turkey's  argument is based on the fact that for certain product 
categories and product families imports peaked either i n 2016 or 2017, after which they decreased 
somewhat, although remaining at a higher level than at the beginning of the POI.330 The 
European  Commission considered that the overall increase for the included product categories and 
product families confirmed th e findings relating to the product as a whole.331 The 
European  Commission also observed that although for some product families the greatest increase 
took place between 2013 and 2016, with imports peaking and then decreasing to an extent, those 
imports stil l remained "at a much higher level" than at the beginning of the POI.332  
7.181.   Taking into account that, as set out above, the central analysis conducted by the 
European  Commission related to the product as a whole, the analysis of product categories and 
product  families was supplemental, and this granular analysis still disclosed trends that were similar 
to those observed for the product as a whole, we do not consider that Turkey has established that 
the European  Commission did not provide a reasoned and adequat e explanation of its finding of 
increase in imports in light of the fluctuations in import levels observed for certain individual product 
categories and product families.  
7.5.2.2   Whether  the European  Commission  did not demonstrate  that the increase  in 
imports  was sufficiently  sharp,  significant,  sudden,  and recent   
7.182.   Turkey contends that the European  Commission "failed to demonstrate an increase in 
imports that is sharp enough, significant enough, sudden enough and recent enough" as required 
by Articles  2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.333 
The European  Union responds that there are no "absolute standards" governing the requisite rate of 
increase and, accordingly, the sufficiency of an increase can not be examined "in the abstract" 
without considering the situation of the domestic industry.334 Brazil, as a third party, argues that the 
"standard for the determination of the increase of imports  'in such quantities '" has been " elucidated 
by previous case  law", namely that the increase of imports must have been recent enough, sudden 
 
327 Brazil's  third-party submission, para.  14. 
328 Definitive determination, (Exhibit  TUR-5), recital  33. 
329 Definitive determination, (Exhibit  TUR-5), recitals  19, 22, 28, and 34 . 
330 Turkey's  first written submission, tables  3-11. See also ibid. table  14. 
331 Provisional determination, (Exhibit TUR -3), recitals  23 and 28; Definitive determination, 
(Exhibit  TUR-5), recitals  35-36 and 39.  
332 Definitive determination, (Exhibit TUR -5), recital  36. 
333 Turkey's  first written submission, paras.  169 and 197.  
334 European  Union's  first written submission, paras.  173-174; second written submission para.  48. WT/DS595/R  
 
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  enough, sharp enough, and significant enough, both quantitatively and qualitatively to cause or 
threaten to cause serious injury.335 
7.183.   In our view, if a complainant in WTO dispute  settlement alleges that the increase in imports 
found by an authority is not sudden, significant, sharp, or recent enough336, it bears the onus of 
adducing the reference point or benchmark against which to ascertain what may or may not be 
"enough". This is  because the concept of "enough" is relational. Something is "enough" in relation 
to something else. What qualifies as "enough" cannot exist in the abstract untethered from some 
reference point or benchmark for ascertaining what is "enough".  
7.184.   We note that our understanding in this regard accords with that of  the panel in US – Steel 
Safeguards , which  observed that the question of whether, in that instance, an increase in imports 
was "sudden, sharp and significant enough  as to cause serious injury is a questi on that is 
appropriately to be addressed in the context of causation o f serious injury, not in the context of the 
condition of the increase, where no well -founded judgment in this regard can be made ".337  
7.185.   Thus, the question of whether an increase is sudden,  significant, sharp, and recent enough 
may be determined by evaluating whether the increase is sufficient to cause or threaten to cause 
serious injury to the domestic industry. This question may also conceivably be determined by 
reference to some other ben chmark proposed by the complainant, such as whether the increase is 
merely reflective of a reversion to normal market conditions after a disruption.338 
7.186.   In the present case, having structured its claim around whether the increase was sudden, 
significant, sharp, or recent enough, we do not consider that Turkey has adduced a viable benchmark 
or reference point to ascertain what was "enough". In its first written submission, Turkey refers to 
another panel's  finding that a 37.9% relative increase in imports was not "enough", but that 
reference point has no relevance to the present case involving a different product, market, and set 
of facts.339 Turkey also refers to the imports increasing by only 7% in the present case between 
2017 and the MRP, and to the most recent data in the POI evincing only a 3% or 4% year -on-year 
increase340, but Turkey does not explain why these rates of increase were not "enough".  
7.187.   We asked Turkey the following question on this point:  
The European  Union  contends that the sufficiency of increased imports cannot be 
assessed "in the abstract " but [the assessment] must instead be made in relation to 
"other conditions necessary for imposition of a safeguard " (European  Union's  first 
written submission, para.  174). Is it Turkey 's view that the Panel should consider 
Turkey 's claims regarding increased imports in isolation, and if so, what would be the 
benchmark for determining whether the increase was sufficient?341 
7.188.   Turkey responded that " the condition of 'increas e in imports ' should not be seen in isolation 
but relating to the other conditions necessary for the imposition of safeguard measures ".342 Despite 
this, Turkey's  submissions in relation to the present claim do not address why the increase in imports 
identif ied by the European  Commission was not sudden, significant, sharp, or recent enough to 
 
335 Brazil's  third-party submission, para.  12. 
336 We note that these terms are not found in the text of Articles  2.1 and 4.2(a) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994, but are rather derived from prior DSB reports. In view of 
our ultimate conclusion in this section, we need not express a view on the extent to which these terms 
correspond to the textual requirements of those provisions.  
337 Panel Reports, US – Steel Safeguards , paras.  10.217, 10.226, 10.236 , and 10.255 (original empha sis 
omitted; emphasis added); see also Appellate  Body Report , US – Steel Safeguards , paras.  351, 358, and 360 
(noting that " [t]he question whether 'such increased quantities ' of imports will suffice as 'increased imports ' to 
justify the application of a sa feguard measure is a question that can be answered only in the light of 'such 
conditions ' under which those imports occur" and cannot be determined by reference to "absolute standards" 
nor "in the abstract" ). 
338 Panel Report, Argentina  – Preserved  Peaches , para.  7.60. 
339 Turkey's  first written submission, para.  198 (referring to Panel Report, Ukraine – Passenger Cars , 
para. 7.147).  
340 Turkey's  first written submission, paras.  204-205. 
341 Panel question No.  10. (emphasis original)  
342 Turkey's  response to  Panel question No.  10, para.  34. WT/DS595/R  
 
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  threaten to cause serious injury.343 Turkey points to characteristics exhibited by the increase itself . 
For instance, Turkey refers to  the 3% year -on-year rate of increas e at the end of the POI. Turkey  also 
considers it significant that the bulk of the increase in imports found by the European Commission 
took place earlier in the POI and subsequently decelerated.344 However, Turkey does not link these 
characteristics to the  situation of the domestic industry to show that the increase was not sudden, 
significant, sharp, or recent enough to threaten to cause serious injury.  
7.189.   We therefore find that Turkey has not established that the European  Commission did not 
demonstrate a suf ficient increase in imports under Articles  2.1 and 4.2(a) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994. We note, however, that Turkey has presented 
other claims in these proceedings that encompass the impact of increased import volu mes on the 
situation of the domestic industry, which we address elsewhere.  
7.5.2.3   Overall conclusion on  the European  Commission's  determination  of an increase  in 
imports  
7.190.   Based on the above, we find that Turkey has not established that the European  Commission 
acted inconsistently with Article  XIX:1(a) of the GATT 1994 and Articles  2.1 and 4.2(a) of the 
Agreement on Safeguards in its assessment of an increase in imports.  
7.6  Threat  of serious  injury  
7.191.   Turkey claims that the definitive safeguard is inconsistent with Articles  4.1(a), 4.1(b), and 
4.2(a) of the Agreement on Safeguards because the European  Commission improperly determined 
that increased imports were threatening to cause serious injury to the domestic industry.345 Turkey 
argues that the European  Commission neither demonstrated the existence of a significant overall 
impairment to the domestic industry that was clearly imminent, nor the existence of a high degree 
of likelihood of serious injury in the very near future.346  
7.192.   Turkey also argues that purely as a co nsequence of these inconsistencies with 
Articles  4.1(a), 4.1(b), and 4.2(a), the definitive safeguard is also inconsistent with Article  2.1 of 
the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.347  
7.193.   The European  Union responds that the Europe an Commission's  finding of a threat of serious 
injury to the domestic industry was based on facts and Turkey has not demonstrated an 
inconsistency with the provisions it invokes.348 
7.194.   We begin by setting out the applicable requirements of Articles  4.1(a), 4.1 (b), and 4.2(a) of 
the Agreement on Safeguards (section  7.6.1). We then evaluate whether Turkey has demonstrated 
that the European  Commission acted inconsistently wit h these provisions by not demonstrating that 
 
343 Turkey's  response to Panel question No.  10, paras.  34-40; first written submission, paras.  197-213; 
and second written submission, paras.  132 and 136.  
344 Turkey's second written submission, paras.  131-134; response to Pan el question No.  10, 
paras.  35-40. 
345 Turkey's  first written submission, para.  215. When presenting its arguments on this point, Turkey did 
not clearly distinguish its arguments under Articles  4.1(a), 4.1(b), and 4.2(a), respectively, but rather mostly 
advan ced a single set of arguments in respect of those provisions collectively . 
346 Turkey's  first written submission, paras.  231 and 245.  
347 Further, Turkey argues that the definitive safeguard is inconsistent with Articles  2.1, 4.1(a), 4.1(b), 
and 4.2(a) and Article XIX:1(a) for the reasons already discussed in section  7.2 above , i.e. that, according to 
Turkey, the European  Commission  was required to determine that each  of the conditions and circumstances to 
impose a safeguard w as met for each product category  individually. (Turkey's first written submission, 
paras.  226-229 and 254 -257). Having already addressed these arguments in section  7.2, we do not discuss 
them again in  this section.  
We note that at paras.  226-229 and 254-257 of its first written submission, Turkey also relies on these 
arguments in support of a claim under Article 4.1(b). We have not addressed  Article  4.1(b) directly in 
section  7.2, but these arguments rely on the same basic proposition that we have rejected in section  7.2, 
namely that the European Commission was required to determine that each of the conditions and 
circumstances to impose a safeguard was met for each product category individually. We therefore reject these 
arguments under Article  4.1(b). We note that we find that the definitive safeguard is otherwise inconsistent 
with Article  4.1(b).  
348 European  Union's  first written submission, paras.  222 and 225; opening statement at the first 
meeting of the Panel, para.  79. WT/DS595/R  
 
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  a significant overall impairment was clearly imminent (section  7.6.2.1 ), and that serious injury would 
be highly likely t o materialize in the very near future (section  7.6.2.2 ). Last, we address 
Turkey's  consequential arguments (section  7.6.2.3 ). 
7.6.1   The applicable requirements of Articles  4.1(a),  4.1(b),  and 4.2(a)  of the 
Agreement  on Safeguards  
7.195.   Turkey contends that the European  Commission's  determination of a threat of serious injury 
is inconsistent  with the requirements set out in Articles  4.1(a), 4.1(b), and 4.2(a) of the 
Agreement  on Safeguards.349  
7.196.   Article  4.1(a) defines "serious injury" as follows : 
"[S]erious  injury" shall be understood to mean a significant overall impairment in the 
position of a domestic industry[.]  
7.197.   Article  4.1(b), which defines "threat of serious injury" and sets out certain requirements for 
a determination of such threat, reads:  
"[T]hreat of serious injury" shall be understood to mean serious injury that is clearly 
imminent, in accordance with the provisions of [Article  4.2]. A determination of the 
existence of a threat of serious injury shall be based on facts and not merely on 
allegation,  conjecture or remote possibility[.]  
7.198.   Thus a competent authority making a determination of a threat of serious injury must 
establish (i)  the clear imminence of (ii) a significant overall impairment in the position of a domestic 
industry.  
7.199.   Article  4.2(a) of t he Agreement on Safeguards provides as follows:  
In the investigation to determine whether increased imports have caused or are 
threatening to cause serious injury to a domestic industry under the terms of this 
Agreement, the competent authorities shall eva luate all relevant factors of an objective 
and quantifiable nature having a bearing on the situation of that industry, in particular, 
the rate and amount of the increase in imports of the product concerned in absolute 
and relative terms, the share of the d omestic market taken by increased imports, 
changes in the level of sales, production, productivity, capacity utilization, profits and 
losses, and employment.  
7.200.   We proceed now to examine Turkey's  claims under these provisions.  
7.6.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
Articles  4.1(a),  4.1(b),  and 4.2(a)  of the Agreement  on Safeguards   
7.6.2.1   Whether  the European  Commission  did not provide  a reasoned  and adequate  
explanation  of its determination  of threat  of serious  injury  
7.201.   Turkey claims  that the European  Commission  failed to provide a reasoned and adequate 
explanation for its  finding  that the domestic industry was "in a fragile and vulnerable position" , given 
that the data indicate that the industry 's performance had improve d towards the end of the POI.350 
Turkey argues that the very fact of this improved performance precludes  a "threat of serious injury" 
determination.351 Turkey also argues that the European  Commission failed to adequately explain 
how this improved performance  came about and why it would be short -lived in the face of further 
imports.352 Because the finding of the domestic industry as "fragile and vulnerable" despite its 
improved performance was at the heart of the European  Commission's  determination of a threat of 
 
349 Turkey's  first written submission, para.  225. 
350 Turkey's  first written submission, paras.  231-232, 239, and 241 -243. 
351 Turkey's  response to Panel question No.  26, para.  13. See also Turkey's  opening statement at the 
second meeting of the Panel, para.  12; and first written submission, para.  244. 
352 Turkey' s response to Panel question No.  12, paras.  41, 44 -45, and 50; comments on the 
European  Union's  response to Panel question No.  27, paras.  18-24. WT/DS595/R  
 
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  serious injury, Turkey argues that the European  Commission  failed to  properly reach this 
determination under Articles  4.1(a), 4.1(b) , and 4.2(a) of the Agreement on Safeguards.353  
7.202.   The European  Union  responds that the European  Commission  acknowledged the  domestic 
industry 's improved performance but found it to be partial, temporary, and readily reversible, such 
that the domestic industry  remained  vulnerable to a continued increase in imports.354 For the 
European  Union , the domestic industry 's position was fragile in view of the continued downward 
trends in the domestic industry 's market share, employment, and stocks, despite improvements in 
other factors.355 The European  Union contends that the domestic industry's  deterioration in 
2013-2016 illustrates its vulnerability to increased imports, and that the post -2017 data indicate 
that import levels were accelerating due to, inter alia, the Section  232 measures, and that prices 
were also starting to decline.356  
7.203.   Brazil, as a third party, argues t hat while not every injury factor needs to be declining at the 
end of the POI, positive trends must be explained, particularly given that the most recent data will 
provide the most reliable indication of the situation of the domestic industry in the near f uture.357 
7.204.   Our evaluation of Turkey's  claims and the European  Union's  rebuttal proceeds as follows. 
We first address Turkey 's contention that the very fact that the domestic industry  performance 
improved  precludes a "threat of serious injury" determination (section  7.6.2.1.1 ). We then assess 
whether the European  Commission properly examined the basis for the 
domestic  industry's  improved performance, which in turn sheds l ight on whether the 
European  Commission provided a sufficient basis for inferring that these improvements would be 
temporary and readily reversible in the face of increasing imports (section  7.6.2.1.2 ). We next 
assess Turkey's  contention that, even assuming the European  Commission did indeed properly 
attribute the domestic industry's  improved performance to the AD/CV measures, it nonetheless 
erred in inferring that th ese improvements would be temporary and readily reversible 
(section  7.6.2.1.3 ). Finally, we assess the role of the other factors that allegedly explained the 
domestic  industry's  improved performance (section  7.6.2.1.4 ). 
7.6.2.1.1   Whether any improvement in the domestic industry's  situation necessarily 
negates a finding of threat of serious injury  
7.205.   Turkey argues that the fact that the domestic industry improve d towards the end of the POI 
demonstrates that serious injury was not "clearly imminent" , irrespective of the reasons underlying 
the improvement.358 The European  Union  responds tha t the fact that the  domestic industry improve d 
during this period did not preclude a determination of a threat of serious injury in view of the 
European  Commission's  finding that the domestic industry nonetheless remained "fragile" and 
"vulnerable".359 
7.206.   We are of the view that the Agreement on Safeguards does not establish a categorical rule 
that precludes authorities from finding a threat of serious injury whenever the data show positive 
trends in the domestic industry's  performance at a given point of the POI. Rather, Article  4.1(b) 
provides that " 'threat of serious injury ' shall be understood to mean serious injury that is clearly 
imminent ". In our view, such assessments are necessarily fact -specific and to be made on a 
case-by-case basis. If the evidence in a proceeding shows that a domestic industry's  performance is 
on a durable upward trajectory, it may be difficult to establish that serious injury is "clearly 
imminent". However, if the evidence indicates that serious injury is "clearly imminent" despite  
certain improvements in the domestic industry's  performance, an authority may find a threat of 
serious injury. For instance, the evidence may show that the improvement is fleeting or illusory and 
that the domestic industry will continue to be at a competi tive disadvantage vis-à-vis imports once 
the short -lived improvement recedes. Accordingly, the question of whether a determination of a 
 
353 Turkey's  first written submission, paras.  225, 231, and 244.  
354 European  Union's  first written submission, para.  202. 
355 European  Union's  first written submission, paras.  204-205. 
356 European  Union's  first written submission, paras.  203, 205, and 213 -215; opening statement at the 
first meeting of the Panel, paras.  80 an d 83; and opening statement at the second meeting of the Panel, 
paras.  17 and 31.  
357 Brazil's  third-party submission, paras.  23-25. 
358 Turkey's  response to Panel question No.  26, para.  13. See also Turkey's  opening statement at the 
second meeting of the Pane l, para.  12; and first written submission, para.  244. 
359 European  Union's  comments on Turkey's  response to Panel question No.  26, paras.  12-14. WT/DS595/R  
 
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  threat of serious injury complies with the Agreement on Safeguards when the 
domestic  industry's  performance improves at some point during the POI will depend on the facts 
and the quality of the authority's  explanation as to the nature and implications of those 
improvements.  
7.6.2.1.2   Whether  the European  Commission  adequately  explained  the basis  for the 
domestic  industry's  improved  performance  
7.207.   We turn now to whether the European  Commission adequately explained the basis for the 
domestic industry's  improved performance, such that it could infer that this improvement was partial 
and transitory in the face of increasing imports and thu s did not negate a finding of a threat of 
serious injury. We address two main points of contention in this section. The first point of contention 
concerns the parties'  differing understandings of the European  Commission's  findings on why the 
domestic indus try's performance improved. The second point of contention concerns whether the 
European  Commission properly identified and substantiated that the AD/CV measures360 that were 
adopted during the POI were a factor  that contributed to the domestic industry's  improved 
performance.  
7.208.   The improvement in the domestic industry 's performance towards the end of the POI is a 
matter of fact that is uncontested between the parties. Rather, the parties dispute whether the 
European  Commission  could reasonably  infer that thi s improvement was "partial", "temporary", and 
readily "revers [ible]"361, and whether, on that basis, the European  Commission  reasonably  
determined  that the situation of the domestic industry was "fragile and vulnerable".362 Given that 
the parties offer diffe ring understandings of the European  Union's  findings on why  the 
domestic  industry 's performance improved , we begin our evaluation  by examining the relevant 
sections of the European  Commission's  determination on this point.  
7.209.   The European  Commission  found tha t the situation of the domestic industry had 
"deteriorated significantly" in the period 2013 -2016, before "recover[ing] partially" in 2017.363 In 
particular, the European  Commission observed both positive trends for the domestic industry from 
2016 to 20 17 in relation to domestic sales, consumption, production, production capacity, capacity 
utilization, prices, profitability, and cash flow, as well as  negative trends in market share, stocks, 
and employment.364 The determination also sets out data indicating  that the domestic industry 
improved its position relative to imports from 2016  to 2017 in terms of the respective rates at which 
it captured new demand and stemmed the loss of market share  to imports .365 Although the 
European  Commission indicated  that the data for the first semester of 2018 could not be verified, 
the European  Commission noted that these data confirmed that the "partial recovery" of the 
domestic industry was ongoing.366 
7.210.   The parties diverge as to what factors informed the European  Commission's  analysis of the 
domestic industry 's improved performance from 2016  to 20 17. The European  Union  contends that 
the European  Commission  identified five factors that explained th is improvement, namely increased 
domestic consumption from 2013  to 2017, increased sales by the domestic industry, the cost of raw 
material remaining lower in 2017 than 2013, the recovery in prices to 2013 levels, and the imposition 
 
360 Our reference to AD/CV measures  in this section means those measures adopted by the 
European  Union  during the POI of the safeguard investigation that are mentioned in the  provisional and 
definitive determinations. (See e.g. Provisional determination, (E xhibit  TUR-3), recitals  52-53, 55 -57, 59, 61, 
and 69 ; and Definitive determination , (Exhibit TUR -5), recitals  95 and 116).  
361 Definitive determination, (Exhibit  TUR-5), recitals  87, 89, 90, 95, 97, and 114; 
European  Union's  opening statement at the first meeting of the Panel, paras.  82-83; and Turkey's  response to 
Panel question No.  26, paras.  16 and 20. 
362 European  Union's  opening statement at the second meeting of the Panel, paras.  17-19; 
Turkey's  second written submission, paras.  157, 161, and 175.  
363 Definitive determination, (Exhibit TUR -5), recital  90. 
364 Provisional determination, (Exhibit TUR -3), recitals  39-46; Definitive determination, (Exhibit TUR -5), 
recitals  67-73. These data pertain to the "global" level of analysis. Similar trends were observed by reference 
to the product families and product categories. (Definitive determination, (Exhibit T UR-5), recitals  73-86. See 
also Turkey's  first written submission, para.  234; and European  Union's  first written submission, para.  211).  
365 Definitive determination, (Exhibit TUR -5), recital  33 and table 4. See also Turkey's  response to Panel 
question No.  26, para.  19; and European  Union's  second written submission, para.  75. 
366 Definitive determination, (Exhibit TUR -5), recital  89; European  Union's  opening statement at the first 
meeting of the Panel, para.  83. WT/DS595/R  
 
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  of AD/CV measures against several of the products at issue.367 The European  Union  also cites 
"efficiency gains by [the domestic ] producers" in this regard.368 Turkey responds that three of these 
factors – prices, sales volume, and consumption – are descriptive rather than  explanatory in nature, 
and in any event, neither consumption nor sales volume a re mentioned in the 
European  Commission's  determination  as factors explaining the domestic industry's  improved 
performance .369 
7.211.   Based on our review of the European  Commission's  determination, we agree that 
consumption and sales volume do not appear to have b een explicitly cited as factor s contributing to 
the domestic industry 's improved performance. At the provisional stage, the European  Commission  
stated that "[p]rices recovered in 2017, given a general recovery of the steel market but also as a 
consequence of the various trade defence measures"; "some [product categories] have improved, 
most likely as a result of the recent imposition of anti -dumping and anti -subsidy measures"; and 
"the [ domestic ] steel industry has partially recovered for some product categ ories in 2017, notably 
due to trade defence measures".370 At the definitive stage, the European  Commission  affirmed its 
finding that "[t]his recovery was attributed, inter alia, to the effectiveness of the different trade 
defence measures that have been adopted, in particular since 2016".371 Given this , the 
European  Commission appears to have accorded  particular weight  to the AD/CV measures  in 
stimulating the domestic industry 's recovery, with "a general recovery of the steel market" also 
mentioned as a fa ctor contributing to  price increases . Additionally, the European  Commission  
appears to have considered  raw material costs  to be a factor contributing to the 
domestic  industry 's improved profit levels . Specifically, the European  Commission noted  that "[t]he  
[domestic] industry achieved a level of profit of 6,2 % [in 2017] since cost of production 
(raw material), even if increasing, remained lower than in 2013".372  
7.212.   In summary, we understand the European  Commission  to have found that the 
domestic  industry 's recovery in 2017 arose  principally from the application of AD/CV measures , in 
particular since 2016, and that lower raw material costs and a "general recovery of the steel market" 
also contribute d to this recovery through improved profitability and increased  prices. Increased 
prices were not themselves cited as a contributing factor. Rather, the European  Commission  treated 
increased prices as indicative of the improvements arising from  the AD/CV measures  and the general 
recovery of the market. Increased consumption and sales volumes were likewise not cited as 
contributing factors, but rather as indicative of the situation of the domestic industry in 2017.373 
7.213.   With this understanding in mind, we turn now to t he parties ' disagreement as to the proper 
inferences and conclusions to be drawn from the domestic industry 's improved performance. The 
European  Commission  found that, in light of the nature of this improvement, t he improvement  was 
"partial", "temporary", and readily "revers [ible]"374, and it was on this basis that the 
European  Commission justified its conclusion that the domestic industry was  still "fragile" and 
"vulnerable" to a continued increase in imports despite the improvement.375 Turkey, by contrast, 
contends that the domestic industry was "performing outstandingly in 2017".376 
7.214.   Given the prominence of the AD/CV measures  in the European  Commission's  explanation for 
the domestic industry 's improved performance, we focus in this section on  the parties ' disagreement 
as to the proper inferences to be drawn from th at factor  in relation to the improved situation of the 
 
367 European  Union's  second written submission, pa ra. 55. 
368 European  Union's  response to Panel question No.  26, para.  17. 
369 Turkey's  opening statement at the first meeting of the Panel, paras.  30-31; response to Panel 
question No.  26, para.  14. 
370 Provisional determination, (Exhibit TUR -3), recitals  52, 55 , and 69.  
371 Definitive determination, (Exhibit TUR -5), recital  95. 
372 Provisional determination, (Exhibit TUR -3), recital  45. See also Definitive determination, 
(Exhibit  TUR-5), recital  72. 
373 Provisional determination, (Exhibit TUR -3), recitals  39-40. We no te that the European  Union argues 
that consumption and sales volume comprise part of the " general recovery  of the [steel] market" 
(European  Union's  comments on Turkey's  response to Panel question No.  26, para.  16 (emphasis original)). We 
address the role of the "general recovery of the steel market" as a contributing factor in section  7.6.2.1.4  
below.  
374 Provisional determination, (Exhibit TUR -3), recitals  55 and 69; Definitive determination, 
(Exhibit  TUR-5), recitals  87, 89, 90, 95, 97, and 114.  
375 Definitive determination , (Exhibit TUR -5), recitals  87, 90, 95, and 114.  
376 Turkey's  first written submission, paras.  239 and 243 -244. WT/DS595/R  
 
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  domestic industry in 2017.377 The parties agree that this was the only factor identified by the 
European  Commission  to explain why the domestic industry improved its competitive relationship 
vis-à-vis imports after 2016.378 However, the parties disagree as to whether the 
European  Commi ssion's  analysis provided  a sufficient basis for finding that the AD/CV measures  
contributed to the domestic industry 's improved performance  in the first place .379 
7.215.   The European  Commission explained the role of the AD/CV measures  in improving the 
situation of the domestic industry, particularly by increasing profits to a "sustainable" level for certain 
product categories, as follows:  
As far as profit is concerned, all  product categories were sold at a loss or at a much 
reduced profit until 2016. Only 7 products could recover to a level of profit above 6 % 
in 2017. These products are significant in terms of EU production volume and six of 
them are currently subject to ( recent) anti -dumping or countervailing duty measures. 
Note that these measures concern only some countries of origin. All other products 
remained either loss making (3 products) or only close to break -even (13 products).   
… 
For product categories 1, 2 and 4, the financial situation was negative in 2016, but 
became positive in 2017 following the imposition of anti -dumping and anti -subsidy 
measures against a number of countries like, amongst others, China and Russia.   
… 
In parallel, in order to remedy the inj ury caused by unfair trade imports, the Union has 
imposed a number of anti -dumping and anti -subsidy measures against imports of steel 
products. In total, there are currently no less than 19 anti -dumping or anti -subsidy 
measures against the unfairly traded imports of 14 product categories under 
investigation from various countries. During the period under investigation, i.e. 
2013-2017, 13 new investigations determined that the EU steel industry suffered (or in 
one case was threatened to suffer) from material  injury caused by unfair trade 
practices.380 
7.216.   Turkey contends that this analysis is deficient in a number of respects. First, Turkey argues 
that the European  Commission failed to properly articulate its rationale for finding that the 
AD/CV  measures  contribut ed to the domestic industry's  improved performance, because it did not 
identify the relevant measures and product categories concerned, nor did it explain how those 
measures impacted trends in injury factors.381 Second, given this "lack of systematic analys is", 
Turkey contends that the European  Commission drew incorrect conclusions.382 In particular, Turkey 
asserts that the European  Commission's  focus on improvements in profitability for product 
categories subject to these measures ignored the improvements in  profitability for product 
categories not subject to these measures.383 For Turkey, the improvements across product 
categories irrespective of the application of AD/CV measures  show that those measures could not 
themselves explain the domestic industry's  improved performance.384 The European  Union responds 
that the domestic industry's  improved performance "was due only in part" to the AD/CV measures , 
and that the improvement for products not subject to those measures "is explained by the general 
 
377 We address other factors contributing to the domestic industry's  improved performance in 
section  7.6.2.1.4  below.  
378 European  Union's  response to Panel question No.  26, para.  16; Turkey's  response to Panel question 
No. 26, paras.  16-20. 
379 Turkey's  responses to Panel question No.  26, para.  17; and No.  28(b), p ara. 24; 
European  Union's  comments on Turkey's  response to Panel question No.  28, paras.  26-29. 
380 Provisional determination, (Exhibit TUR -3), recitals  53, 56, and 59.  
381 Turkey's  comments on the European  Union's  response to Panel question No.  27, para.  23. 
382 Turkey's  comments on the European  Union's  response to Panel question No.  27, para.  24. 
383 Turkey's  response to Panel question No.  26, para.  17. 
384 Turkey's  response to Panel question No.  26, para.  17; comments on the European  Union's  response 
to Panel question No.  27, para.  24. WT/DS595/R  
 
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  recovery of t he steel market".385 Moreover, the European  Union emphasizes that product categories 
subject to AD/CV measures  tended to return to sustainable levels of profitability, whereas those not 
subject to these measures tended to remain at unsustainable levels, des pite improvements.386 
7.217.   We agree with Turkey that the European  Commission's  analysis of the role played by the 
AD/CV measures  in the domestic industry's  improved performance did not provide a sufficient basis 
to infer that the improvement was "temporary" and "revers[ible]".387 The 
European  Commission's  analysis contains insufficient detail to explain how imposing an 
AD/CV  measure on a particular product at a particular point in time led to a subsequent improvement 
in the trends for the category encompassing tha t product. For instance, as evidenced in the portions 
extracted above (see paragraph  7.215 ), the analysis does not provide any information about the 
product coverage of a given AD/CV measure, the proportion of a given category that was impacted 
by that measure, the point in time at which that measure was imposed, and the subsequent 
improvements in trends for that category. We do not suggest that all such information is necessarily 
required in all instances. Rather, such information is illustrative of the kind of details that could 
permit an understanding of how the AD/CV measures  contributed to the domestic 
industry's  improved performance. As it stands, the information underpinning the 
European  Commission's  analysis on this point is sparse and incomplete and thus, standing alone, is 
insufficient to support the European  Commission's  inference that the improvement was temporary 
and reversible. This aspect of the European  Commission's  explanation falls short of the Article  4.1(b) 
requirement that "threat of serious injury" determinations be "based on facts".  
7.218.   We also consider it significant that increases in profitability were observed in  2017 
irrespective of the adoption of AD/CV measures . According to the European  Commission , significant 
price depression from imports had precluded the dom estic industry from achieving sustainable profit 
levels in 2013 -2016 despite falling raw material costs.388 Based on this, the European  Commission 
reasoned that  the subsequent improvement in profit levels for some product categories in 2017 was 
"most likely  as a result of the recent imposition of anti -dumping and anti -subsidy measures".389 
According to this reasoning, the adoption of AD/CV measures  alleviated the downward price pressure 
from certain imports, which in turn enabled the domestic industry to bene fit from the lower (albeit 
increasing) raw material costs and  to fetch prices that were commensurate to sustainable profit 
levels  whilst passing increased costs on to customers .390 
7.219.   However, as Turkey has noted , increases in profitability were also observed in  2017 for 
product categories for which AD/CV measures  had not been recently adopted.391 For instance, profit 
levels increased in 2016 -2017 from 4.9% to 9.2% for category 8, from 2.3% to 5.8% for 
category  14, and from -3.1% to 3.9% for category 15 .392 These increases can be juxtaposed against 
those explicitly referenced by the European  Commission as exhibiting improvements in 2017 
following the imposition of AD/CV measures , namely categories 1, 2, and 4.393 The profit levels for 
these categories impr oved from 2016  to 2017 as follows:  from -1.0% to 7.8% for category 1, from 
0.6% to 9.8% for category 2, and from 7.9% to 11.7% for category 4.394 Meanwhile, profit levels 
for category 6 decreased in 2016 -2017 from 4.6% to 3.1% despite the recent adoption of  
 
385 European  Union's  comments on Turkey's  response to Panel question No.  28(b), paras.  25 and 29. As 
we explained in para.  7.214 , we focus on the role of the AD/CV measures in the present section given the 
prominence of this factor in the European Commission's determination and given that this was the only factor 
identified by the European Commission that cou ld explain the domestic industry's improved performance 
vis-à-vis imports. We address other factors contributing to the domestic industry's  improved performance in 
section  7.6.2.1.4  below.  
386 European  Union's  comments on Turkey's  response to Panel question No.  26, para.  22. 
387 Turkey's  comments on the European  Union's  response to Panel question No.  27, para.  21. 
388 Provisional determination, (Exhibit TUR -3), recital  55. 
389 Provisional determination, (Exhibit TUR -3), recital  55. 
390 European  Union's  second written submission, para.  62. 
391 Turkey's  response to Panel question No.  26, para.  17. 
392 Provisional determination, (Exhibit TUR -3), annex III. The European  Commission's  determination 
does not enumerate those product categories affected by the imposition of AD/CV measures  prior to 2017 or 
generally. Turkey has provided a table in this regard in Exhibit  TUR-49. In the absence of any objections by the 
European  Union as to its accuracy, we are guided by the contents of that table in understanding which product 
categories were  affected by these measures, and when.  
393 Provisional determination, (Exhibit TUR -3), recital  56. 
394 Provisional determination, (Exhibit TUR -3), annex  III. WT/DS595/R  
 
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  anti-dumping  measures in 2016. These data do not support the proposition that the fact and degree 
of improvement in profit levels in 2017 depended on the imposition of recent AD/CV measures .395 
7.220.   Accordingly, the domestic industry's  ability to mitigate downward price pressure from 
imports and reali ze increased profit levels through higher prices in 2017 was not limited to the 
product categories recently subject to AD/CV measures . Rather, the domestic industry's  improved 
competitiveness vis-à-vis imports was observable across other product categories too.396 Indeed, as 
Turkey points out, the domestic industry's  improved competitiveness vis-à-vis imports in 2017 was 
also reflected in other data.397 In particular, domestic consumption grew 12% from 2013 to 2016.398 
Imports outperformed the domestic industry in capturing this growth insofar as imports increased 
by 59%, compared to domestic sales which increased by just 5% during that period.399 By contr ast, 
in 2016-2017 the domestic industry managed to substantially reduce the rate at which it was being 
outperformed by imports in capturing new demand.400 This provides a further indication that the 
domestic industry had improved its competitiveness vis-à-vis imports in 2017 following the prior 
"significant deterioration"401 in 2013 -2016.  
7.221.   As we have noted, the European  Union acknowledged that the imposition of the AD/CV 
measures  was the only factor identified by the European  Commission  to explain the domestic  
industry 's improved competitiveness vis-à-vis imports.402 This factor , however,  cannot explain the 
domestic industry 's improved  competitiveness in relation to product categories for which no 
AD/CV  measures  had been recently adopted. The absence of an expla nation in this regard is 
noteworthy. First, the fact that the domestic industry could mitigate the price pressure from imports 
and improve  profitability across a range of product categories in 2016-2017 irrespective of the 
application of  AD/CV measures  raises the possibility  that something other than those measures was 
driving the improved competitiveness.403 Nothing before us suggests that such a possibility was 
explored by the European  Commission.404 Second, even accepting that the AD/CV measure s were 
 
395 The European  Union  seeks to differentiate between those product categories whose profits improved 
to a "healthy" or "sustainable" profit level and that were subject to recent AD/CV  measures , and those whose 
profits levels improved but failed to reach "healthy" or "sustainable" levels and that were not subject to such 
measures. We find this unconvincing. The European  Union  oscillates between 6% ( European  Union's  response 
to Panel question No. 28(b), para. 27) and 8% (response to Panel question No. 27, para. 21; comments on 
Turkey 's response to Panel question No. 26, para. 22) as the b enchmark for the requi site level of profit without 
any explanation. We note that the European  Commission  stated that "[i]t is considered that the level profit 
below 6 % is insufficient to cover the investments needed to sustain the activity, as, in the majority of the 
recent in vestigations, the Commission  has used a level of around 8 % profit as a sufficient profit level in this 
sector in order to cover investments" . (Provisional determination, (Exhibit TUR -3), recital  53). We would expect 
to see additional explanation if this was indeed a pivotal aspect of the determination.  We agree with Turkey in 
this regard that the European  Commission  did not adequately explain its use of these benchmarks as indicative 
of a "sustainable" profit level . (Turkey 's comments on the European  Union's  response to Panel question  28(b), 
para. 27). Indeed, several interested parties argued  during the investigatio n that the European  Commission  
had found profit levels of between 3 -7% to be adequate in a number of AD/CV  investigations concerning the 
steel sector, but the European  Commission  did not respond directly to this claim . (Definitive  determination, 
(Exhibit T UR-5), recitals  96-97). In any case , contrary to the European  Union's  argument, at least one 
category not subject to AD/CV measures  exceeded the 8% threshold (category 8), w hereas some categories 
that were subject to those measures fell below the 6% thresh old (categories 5, 7, and 12).  These data -points 
call into question the premise of the European  Union's  alleged distinction between products subject to AD/CV 
measures  reaching healthy profit levels on the one hand, and those not subject to such measures ex hibiting 
unsustainable profit levels, on the other hand.   
396 We also note that downward  trends in profitability from 2016 -2017 were not limited to product 
categories not subject to AD/CV measures . For instance, profit levels for category 6 decreased in 2016 -2017 
from 4.6% to 3.1% despite the recent adoption of anti-dumping  measures in 2016.  
397 Turkey's  response to Panel question No.  26, paras.  19-20. See also European  Union's  second written 
submission, para.  75. 
398 Definitive determination, (Exhibit TUR -5), table  4. 
399 Definitive determination, (Exhibit TUR -5), tables  2 and 4.  
400 Definitive determination, (Exhibit TUR -5), recital  33, and tables  2 and 4.  
401 Definitive determination, (Exhibit TUR -5), recitals  90 and 95.  
402 European  Union's  response to Panel question No.  26, para.  16. According to the European  Union, the 
other factors, namely the "general recovery of the steel market" and the lower raw material costs, benefitted 
both the domestic industry and imports.  
403 Turkey's responses to Panel question No.  12, para.  44; No.  26, paras.  17 and 20;  and No. 28(b), 
para. 24. 
404 European  Union's  response to Panel question No.  12, paras.  45-48. The 
European  Commission's  reference to a "general recovery of the steel market" and l ower raw material costs 
 WT/DS595/R  
 
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  responsible for the domestic industry's  improved competitiveness vis-à-vis imports in certain 
product categories, the European  Commission does not appear to have addressed the 
industry's  improved competitiveness in other categories.405 Its determinat ion therefore leaves 
unexplained  why the domestic industry began to gain ground on imports from 2016 to 2017  with 
respect to the imports of product categories not subject to the AD/CV measures.  In the absence of 
any understanding as to why the domestic in dustry's performance improved vis-à-vis imports of 
those particular product categories, it was not reasonable for the European  Commission to surmise 
that the industry nonetheless continued to be "vulnerable" to those imports. Moreover, the 
European  Commiss ion did not explain how its finding that the domestic industry was "vulnerable" 
was compatible with seemingly contradictory data cited in its determination. In particular, the 
domestic industry's  performance improved after 2016 even as imports that were no t subject to 
AD/CV measures  continued to increase. The domestic industry's  improvement in the face of 
increased volumes of imports not subject to AD/CV measures  calls into question the 
European  Commission's  finding that the domestic  industry was "vulnerabl e" to increases of those 
imports, and thus warranted further explanation.  
7.222.   We recall, in this regard, that Article  4.1(b) of the Agreement on Safeguards requires a 
determination of a threat of serious injury to " be based on facts and not merely on allegatio n, 
conjecture or remote possibility ". In our view, the aforementioned deficiencies in the 
European  Commission's  assessment regarding how the domestic industry improved its competitive 
position in relation to imports from 2016 to 2017 indicate that the 
European Commission's  subsequent conclusion as to the "vulnerab[ility]" of the domestic industry 
to further competition from imports was not "based on facts" as required by Article  4.1(b).  
7.6.2.1.3   Whether  the European  Commission  improperly  inferred  that improvements  
owing  to the AD/CV  measures  would  be temporary  and reversible  
7.223.   We recall that Turkey presents a further contention on the assumption, arguendo , that the 
European  Commission correctly identified the AD/CV measures  as a main factor contributing t o the 
domestic industry's  improved performance. In particular, Turkey argues that the 
European  Commission erred by inferring that the positive effects of those measures would be 
temporary and reversible.406 We have already found that the European  Commission 's analysis of the 
role played by the AD/CV measures  in the domestic industry's  improved performance was deficient. 
We nonetheless consider it useful for the effective resolution of the dispute to examine 
Turkey's  contention regarding the effects of the AD/CV measures . 
7.224.   According to Turkey, if AD/CV measures  adopted during a safeguard investigation led to 
improvements in the domestic industry's  performance, it stands to reason that those improvements 
will persist into the future.407 For Turkey, by adopting AD/CV measures , an authority seeks to 
ameliorate certain sources of injury, an approach that is subsequently borne out if the 
domestic  industry's  performance improves.408 Moreover, given that those measures can last for 
five years and potentially be renewed, Turkey contends that the resulting amelioration of certain 
sources of injury should be considered durable.409 The European  Union responds that the 
European  Commission found that imports subject to AD/CV measures  were being replaced by 
imports from other sources and, moreover, the improvements in domestic consumption and prices 
together with the Section  232 measures attracted yet further imports to the EU market.410 
7.225.   We recall that the European  Commission found that there was a "significant deteriorati on" 
in the situation of the domestic industry in 2013-2016, followed by improvements in 2017 as a result 
 
may explain aspects of the domestic industry's  overall improvement, but it does not explain why the 
domestic  industry improved its competitive position vis-à-vis imports, since those factors benefitted both the 
domestic industry and  imports in similar ways. (European  Union's  response to Panel question No.  26, 
para. 16). See also section  7.6.2.1.4  below.  
405 Turkey's  responses to Panel question N o. 12, para.  44; and No.  26, para.  20. 
406 Turkey's  response to Panel question No.  26, paras.  16 and 20; second written submission, 
paras.  155-158. 
407 Turkey's  response to Panel question No.  26, paras.  16 and 20. See also Turkey's  second written 
submission pa ra. 158; and response to Panel question No.  12, para.  45. 
408 Turkey's  response to Panel question No.  12, para.  45. 
409 Turkey's  response to Panel question No.  26, para.  16. 
410 European  Union's  comments on Turkey's  response to Panel question No.  26, paras.  17-19. WT/DS595/R  
 
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  of, inter alia, the AD/CV measures .411 According to the European  Union, the period 2013-2016 is 
illustrative of the domestic industry's  vulnerability to  imports.412 However, according to the 
European  Commission's  own explanation, the AD/CV measures  imposed on some imports had 
contributed to the subsequent improvement in 2017. To that extent, these measures had mitigated 
certain sources of injury – or "vuln erability" – in relation to imports. It follows from the 
European  Commission's  reasoning that, absent some explanation to the contrary, a reversion to the 
kind of negative conditions experienced by the domestic industry in 2013-2016 could arise only 
throug h sources of injury that had not been mitigated by the AD/CV measures . 
7.226.   In this regard, the European  Union contends that the European  Commission found that 
imports subject to the AD/CV measures  were being replaced by imports from other sources, and 
that imp ort levels continued to increase despite the measures.413 The European  Union presented 
data in these proceedings indicating that the proportion of the total import volume that was subject 
to AD/CV measures  was 33% in 2015, before declining to 21% and 10% in  2016 and 2017 
respectively.414 Turkey responds that these data were not referenced in the 
European  Commission's  determination and should be disregarded.415 Even if these data had been 
referenced explicitly by the European  Commission, we do not consider that they support the 
European  Union's  case. Rather, when considered in light of other trends, they show that the 
replacement of imports subject to AD/CV meas ures with imports from other sources did not preclude 
the improvement in the domestic industry's  performance in 2016-2017. Indeed, the 
domestic  industry was able to achieve this improved performance despite  import volumes (notably, 
those not subject to AD/CV measures ) continuing to increase in 2016-2017.416 This raises the 
possibility that the domestic industry had surmounted its vulnerability to increased imports417, for 
instance through the alleviation of the price depression from 2013-2016 by the impositio n of 
AD/CV  measures . 
7.227.   The European  Union points to declines in prices in the third quarter of 2018, whilst imports 
continued to increase, as evidence that the domestic industry was vulnerable to imports despite the 
imposition of AD/CV measures .418 However, we agree with Turkey t hat the 
European  Commission's  findings of an acceleration in import volumes and a decline in prices 
after 2017 w ere not accompanied by evidence of downward trends in injury factors for the 
domestic  industry.419 Given that the domestic industry had improved its performance in 2016-2017 
despite increased imports from sources not subject to AD/CV measures , we see no basis for inferring 
– in the absence of evidence to the contrary – that this dynamic would change after 2017.420 Indeed, 
the data available to the E uropean  Commission for the first semester of 2018 appeared to show that 
the "partial recovery" of the domestic industry was ongoing despite continued increases in 
import  volumes.421 The mere prospect of further increases in imports was thus insufficient to 
 
411 Provisional determination, (Exhibit TUR -3), recital  55; Definitive determination, (Exhibit TUR -5), 
recitals  90 and 95.  
412 European  Union's  first written submission, paras.  205 and 207.  
413 European  Union's  opening statement at the second meeti ng of the Panel, para.  35; comments on 
Turkey's  response to Panel question No.  26, para.  18. 
414 European  Union's  response to Panel question No. 28(a), para. 25. 
415 Turkey's  comments on the European  Union's  response to Panel question No.  28(a), para.  26. 
416 Turkey's  response to Panel question No.  12, paras.  49-50. 
417 Turkey's  opening statement at the second meeting of the Panel, para.  17; opening statement at the 
first meeting of the Panel, para.  34. 
418 European  Union's  response to Panel question No.  26, para.  17; opening statement at the 
second  meeting of the panel, paras.  19 and 31; and opening statement at the first meeting of the Panel, 
para. 83. 
419 Turkey's  second written submission, paras.  159-160. See also Definitive determination, 
(Exhibit  TUR-5), recital  89. 
420 We note, in this regard, the European  Commission's  finding that " imports of the product categories 
concerned rose by 4 % from 2017 to the MRP without causing serious injury ". (Definitive determination, 
(Exhibit TUR -5), recital  143). The Europ ean Commission mentioned no evidence indicating that the 
replacement of imports subject to AD/CV duties with other imports was accompanied by a replacement of 
sources of injury. On the contrary, the fact that the domestic industry's  performance improved in  2016-2017 
as the replacement of imports increased suggested that the domestic industry had improved its 
competitiveness vis-à-vis imports, thus enabling it to face further increased imports in the future 
(Turkey's  opening statement at the first meeting of  the Panel, para.  34), and yet the European  Commission did 
not contend with these indications from the evidence that contradicted its conclusions.  
421 Definitive determination, (Exhibit TUR -5), recital  89; European  Union's  opening statement at the 
first meeting of the Panel, para.  83. WT/DS595/R  
 
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  demonstrate that the situation of the domestic industry was "vulnerable and fragile".422 Additionally, 
we do not consider that declining prices in the third quarter of 2018 were indicative of the "new price 
depression" from imports th at the European  Commiss ion had forecast  in its provisional 
determination.423 These declines could arise from factors unrelated to imports . For instance, when 
assessing any harm caused by the domestic industry's allegedly poor export performance, the 
European Commission explained the drop in the domestic industry's export prices in 2017 to be a 
result of reductions in costs of raw materials.424 Thus, the European Commission explicitly  recognized 
that price declines could be driven by factors other than price pressure from competitor s. Against 
that background, we consider it significant that t he determination does not set out the data 
underlying its observation of a price decline in the third quarter of 2018, nor does it analyse these 
data to ascertain whether this price decline was being caused by increased volumes of imports.  
7.228.   In summary, according to the European  Commission's  findings, the domestic industry was 
not vulnerable to imports subject to AD/CV measures  to the extent that those measures produced 
positive effects  for the domestic industry and continued to be in effect. The European  Commission, 
however, did not demonstrate how the replacement of imports subject to AD/CV measures  with 
imports from other sources could erode the positive effects of those measures. On the contrary, the 
domestic industry's  performance improved in 2016-2017 whilst imports increased, particularly those 
not subject to these measures. In our view, therefore, the European  Commission's  respective 
findings that the " further increase of imports in 2018 – in particular from those countries or exporters 
not subject to trade defence measures – is likely to prevent the industry from a full recovery and 
from benefiting from [the AD/CV]  measures "425, and that the domestic industry was " vulnerable to 
further increases of imports " not subject to those measures426, lacked the factual basis that is 
required for "threat of serious injury" determinations under Article  4.1(b) of the Agreement on 
Safeguards.  
7.6.2.1.4   Whether  the European  Commission  identified  other  factor s contributing  to the 
domestic  industry's  improved  performance  that demonstrate  its vulnerability  to increased  
imports  
7.229.   Finally, we recall that the European  Union contends that there were factors other than the 
AD/CV measures contributing to the domestic in dustry's  improved performance in 2016-2017. In 
particular, the European  Union  contends that the European  Commission  identified increased 
domestic consumption from 2013  to 2017 and increased sales by the domestic industry427, the cost 
of raw material remaining lower in 2017 than 2013, and the recovery in prices to 2013 levels , as 
factors in this regard .428 The European  Union seems to argue that these factors could recede and 
leave the  domestic industry exposed to the negative effects of imports that were increasing after 
2017 due to, inter alia, trade diversion from the Section  232 measures.429 We recall, however, that 
the European  Union explained that improvements in these other factor s benefitted the domestic 
 
422 Turkey's  second written submission, para.  159; comments on the European  Union's  response to 
Panel question No.  27, para.  25. 
423 In its provisional determination, the European  Commission considered that increased imports being 
diverted from the US market would "unavoidably result in a new price depression and undercutting on the 
EU market". (Provisional determination, (Exhibit TUR -3), recital  35). In the definitive determination, the 
European  Commission considered that "monthly imports into the Union started to increase mostly since 
June 2018" as a result of such trade diversion, and "[m]oreover, steel prices in the Union started to  follow a 
declining trend since the third quarter of 2018". (Definitive determination , (Exhibit TUR -5), recital  89). In the 
present proceedings, the European  Union argues that the decline in prices was caused by downward price 
pressure from the increased i mport levels attributable to trade diversion from the US market. 
(European  Union's  response to Panel question No.  26, para.  17). In essence, we understand the 
European  Union to argue that the price decline in the third quarter of 2018 represented the mater ialization of 
the anticipated "new price depression" due to increased imports being diverted from the US market that the 
European  Commission had forecast in its provisional determination.  
424 See, e.g. Definitive determination, (Exhibit  TUR-5), recital  123. 
425 Provisional determination, (Exhibit TUR -3), recital  61. See also ibid. recital  57. 
426 Provisional determination, (Exhibit TUR -3), recitals  35 and 61.  
427 The European Union contends that these factors were part of the "general recovery of the steel 
market" that was identified European Commission at Provisional determination, (Exhibit TUR -3), recital  52. 
428 European  Union's  second written submission, para.  55. See para.  7.212  for our understanding of the 
European Commission's determination on this point.  
429 European  Union's  response to Panel question No.  12, para.  47; second written submission, paras.  55, 
60, 64, and 75; and comments on Turkey's  response to Panel question No. 28, para.  29. WT/DS595/R  
 
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  industry and imports in similar ways.430 Yet, the European  Union has provided no reason why 
declines in those factors would not likewise affect the domestic industry and imports in similar ways, 
leaving their competitive relationsh ip unaltered. The European  Union has thus not shown how the 
domestic industry would be any more exposed to imports as a result of declines in those factors 
than had been the case in 2016-2017, when the domestic industry improved its performance and 
competi tive position vis-à-vis imports despite imports continuing to increase. Accordingly, the role 
of these other factors does not obviate the deficiencies in the European  Commission's  explanation, 
identified above in paragraphs  7.226 -7.227  as to the allegedly partial, temporary, and readily 
reversible nature of the domestic industry 's improvement. There is no  reasoning in the 
European  Commission's  determination along the lines that downward trends in demand and 
increased raw material costs would leave the domestic industry more vulnerable to competition from 
increased imports . 
7.6.2.1.5   Conclusion on the explanation for the determination of threat of serious injury  
7.230.   In conclusion, we have found that the European  Commission's  explanation of the 
AD/CV  measures  as a main contributor to the domestic industry's  improved performance lacks basi c 
information concerning the timing, scope, and effectiveness of those measures. Further, the 
European  Commission's  explanation in this regard did not account for improvements in 
product  categories for which no AD/CV measures  were imposed, thus leaving tho se improvements 
(and the assumption that they would be reversed in the face of increased import levels) unexplained 
and without a factual basis. As we consider the European  Commission's  explanation of the 
industry's  improved performance to be deficient, th is deficiency necessarily undermines the 
European  Commission's  inference that the improvement was partial, temporary, and readily 
reversible, and the European  Commission's  characterization of the domestic industry as "vulnerable" 
and "fragile" despite this  improvement.  
7.231.   Additionally, to the extent that the AD/CV measures  were responsible for the 
domestic  industry's  improved performance, the European  Commission's  explanation that the 
replacement imports from other sources would cause harm to the domestic ind ustry was not "based 
on facts" as required by Article  4.1(b). Rather, the period during which these imports from other 
sources replaced those subject to AD/CV measures  coincided with the domestic industry's  recovery. 
Indeed, the domestic industry's  perform ance improved during this period despite import volumes 
continuing to increase. The European  Commission did not set out a factual basis for inferring that 
increased volumes of replacement imports from other sources would harm the domestic industry 
into the  future.  
7.232.   For all of these reasons, we agree with Turkey that the European  Commission's  explanation 
that the domestic industry was "in a fragile and vulnerable position" despite  its improved 
performance  was flawed. Given the centrality of this flawed expla nation to the 
European  Commission's  determination of a threat of serious injury431, we find that the 
European  Commission's  determination of a threat of serious injury was not "based on facts" as 
required by Article  4.1(b) of the Agreement on Safeguards. In view of this finding, we consider it 
unnecessary for the effective resolution of the dispute to reach findings on substantively the same 
issue under Articles  4.1(a) and 4.2(a) of the Agreement on Safeguards.  
7.6.2.2   Whether  the European  Commission  did not establis h a high likelihood  of serious  
injury  in the very near future  
7.233.   Turkey claims  that the European  Commission acted inconsistently with Article  4.1(b) of the 
Agreement on Safeguards by failing to demonstrate, on the basis of facts, that there was a high 
degree of likelihood of serious injury to the domestic  industry in the very near future .432 In essence, 
Turkey argues that the European  Commission conflated its finding of a threat of serious injury with 
a finding of a threat of increased imports.433 For Turkey, this is because the 
European  Commission's  determination assumed that increased impo rt levels in the future would 
bring about serious injury without demonstrating how those increased import levels would lead to a 
 
430 European  Union's  response to Panel question No.  26, para.  16. 
431 Provisional determination, (Exhibit TUR -3), recitals  55, 60 -61, and 69; Definitive determination, 
(Exhibit  TUR-5), recitals  90 and 111.  
432 Turkey's  first written submission,  para. 245. 
433 Turkey's  second written submission, para.  182. WT/DS595/R  
 
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  significant overall impairment in the position of the domestic industry.434 Turkey thus contends that 
the European  Commission's  determination of threat of serious injury was based on "conjecture" 
rather than on "facts".435  
7.234.   The European  Union responds that the European  Commission based its determination of a 
threat of serious injury on a projection as to the overall state of the dom estic industry that was 
informed by facts relating to the negative trends in certain injury factors, the increase in imports 
during the MRP, namely mid -2017 to mid -2018, declining prices in the third quarter of 2018, and 
the likely further increase in impo rts due among others to the Section  232 measures.436 The 
European  Union emphasizes that the expected further increase in imports should be understood in 
the context of the domestic industry's  recovery from a period in which its position had deteriorated 
significantly due to increased imports.437 For the European  Union, the expected further increase in 
imports would reverse the recovery and "necessarily" cause a deterioration in injury factors such as 
price and profitability.438 
7.235.   Brazil, as a third party, argues  that the future likelihood of increased imports cannot be  a 
trigger for safeguard measures . Rather, the "threat" must relate to " the actual trend of imports that 
have experienced a recent, sharp, sudden, and significative increase ".439 Switzerland contends  that 
"[b]ecause a threat determination requires an analysis of the likelihood that the serious injury will 
occur in the near -term, the expected volume of imports as well as their likely effect on the domestic 
industry could be relevant to the competent au thority's  analysis ".440 For the United  Kingdom, a 
threat of serious injury determination entails an assessment of both historical and existing facts from 
the reference period accompanied by  fact-based projections concerning future developments in the 
domestic industry's  condition.441 
7.236.   The parties do not contest that the European  Commission relied on the expectation of a 
further increase in import volumes as a "critical element"442 in demonstrating that the 
domestic  industry was currently threatened with s erious injury. In our view, the main issue before 
us is whether the European  Commission's  determination of a threat of serious injury evinces a 
sufficient factual basis for projecting that this expected increase in imports would bring about a 
significant o verall impairment in the position of the domestic industry.443 We begin by setting out 
the European  Commission's  findings on the likely impact of this expected increase on the 
domestic  industry. At the provisional stage, the European  Commission examined the  factors that 
would lead to a further increase in imports and stated that:  
In this context, a significant increase of supply on the Union market caused by an influx 
of imports will result in a general downward price pressure, resulting in price levels 
comp arable to 2016 with significant negative consequences on the profitability of the 
Union steel industry.444 
 
434 Turkey's  second written submission, paras.  182 and 185 -186; response to Panel question No.  29, 
para. 30; and opening statement at the second meeting of the Panel, para.  19. 
435 Turkey's  first written submission, para.  248; second written submission, para.  187. 
436 European  Union's  comments on Turkey's  response to Panel question No.  30, para.  38. 
437 European  Union's  opening statement at the second meeting of the Panel, para.  38; clos ing statement 
at the second meeting of the Panel, para.  18. 
438 European  Union's  response to Panel question No.  30, para.  40; opening statement at the second 
meeting of the Panel, para.  38. 
439 Brazil's  third-party submission, para.  22. 
440 Switzerland's  third-party response to Panel question No.  6, para.  8. 
441 United Kingdom's  third-party response to Panel question No.  6, para.  21. 
442 Definitive determination, (Exhibit TUR -5), recital  93. 
443 We note Turkey's  clarification that, in its view, " the competent authoriti es are permitted to, and 
actually should, consider the expected rate and amount of the increase in import levels as part of the threat 
and/or causation analysis" and further that:  "[a]s the Appellate  Body emphasised, facts, by their very nature, 
pertain to  the present and the past, and thus to the [POI]. Those facts then serve as a basis for a projection 
that there is a high degree of likelihood of serious injury to the domestic industry in the very near future. In 
this regard, this prospective analysis mus t not only assess whether imports will likely increase in the future, 
but also the expected evolution of all relevant injury factors in light of past trends". (Turkey's  response to 
Panel question No.  39, para.  64 (fn omitted)).  
444 Provisional determination,  (Exhibit TUR -3), recital  68. See also European  Union's  response to Panel 
question No.  30, para.  39(a).  WT/DS595/R  
 
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  7.237.   At the definitive stage, the European  Commission stated that:  
It should however be noted that – as indicated in table 12 below – monthly imports into 
the Union started to increase mostly since June 2018. Moreover, steel prices in the 
Union started to follow a declining trend since the third quarter of 2018. It is, therefore, 
not possible to observe the effects of these imports and price development on t he 
situation of the Union industry during the first semester of 2018. Therefore, the recent 
data confirmed the d elicate situation of the Union industry and the threat posed by the 
most recent increase in imports.  
… 
In the provisional Regulation, the Commi ssion concluded that the situation of the Union 
industry deteriorated significantly in the period 2013 -2016 and recovered partially in 
2017. However, the Commission considered that the Union industry, despite the 
temporary improve ment, was still in a fragi le situation and under the threat of serious 
injury if the increasing trend in imports continued  with the ensuing  price depression and 
profitability drop below sustainable levels.  
… 
[T]he Commission concluded that the Union industry was in a fragile situa tion, 
recovering from a period where its situation had deteriorated significantly. This recovery 
was attributed, i nter alia, to the effectiveness of the different trade defence measures 
that have been adopted, in particular since 2016. … In this context, t he Commission 
confirmed that the ongoing provisional recovery could quickly be reversed if a further 
increase of imports was to take place.  
… 
[D]espite the fact that in 2017 the profitability levels had significantly improved from  
previous years (where th e [domestic] industry was either loss -making or break -even), 
this situation could rapidly be reversed if imports would continue to increase (or surge, 
as a result of inter alia , the US Section  232 measures). … In this context, the established 
risk of trade  diversion would be a key element that would negatively affect the current 
economic situation of the Union industry if measures are not adopted.445 
7.238.   It is apparent from these passages that the European  Commission projected that a further 
increase in import l evels would result in price depression and declines in the 
domestic  industry's  profitability. The factual basis for this projection was the negative impact of 
increased import levels on the domestic industry in 2013-2016.446 We consider this to be inadequate. 
It presumes that the market conditions prevailing in 2013-2016 would be replicated in the future, 
without accounting for the record evidence that suggests that those conditions may have changed. 
In particular, the Europe an Commission identified the adoption of AD/CV measures  as a factor that 
had impacted the market after 2016.447 It also identified a trend in which imports subject to those 
AD/CV measures  were being replaced by imports from other sources.448 Thus, the compos ition of 
imports at the end of the POI had changed vis-à-vis 2013-2016.449 Meanwhile, as imports subject 
to AD/CV measures  declined, overall import levels continued to increase for the remainder of the 
POI at the same time as the domestic industry's  perform ance improved.450 Increased imports based 
on their composition after 2016 did not result in a deterioration in the 
domestic  industry's  performance in 2016 -MRP. Contrary to the assertion of the European  Union, the 
 
445 Definitive determination, (Exhibit TUR -5), recitals  89, 90, 95, and 97. See also 
European  Union's  response to Panel question No.  30, paras.  39(b) -(e). 
446 Provisional determination, (Exhibit TUR -3), recital  74. 
447 Provisional determination, (Exhibit TUR -3), recitals  52-53 and 69.  
448 Provisional determination, (Exhibit TUR -3), recitals  55-56. 
449 The European  Commission alluded to this when it found that the main threat of increased imports 
into the future would arise from those imports not subject to AD/CV measures . (Provisional determination, 
(Exhibit TUR -3), recitals  35, 55, and 61).  
450 We note that the domestic industry's  improved performance appears to have continued from 2017 
into the first semester of 2018 whilst the increase in imports accelerated.  (Definitive determination, 
(Exhibit  TUR-5), recital  89; European  Union's  opening statement at the first meeting of the Panel, para.  83). WT/DS595/R  
 
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  data set out in the European  Commission's  determination do not show that a further increase in 
imports would "necessarily" cause a deterioration in prices and profitability.451 
7.239.   We thus agree with Turkey that "[e] ven if imports were set to increase in 2018, this does 
not automatically lead to the conc lusion that there is a significant overall impairment in the position 
of the domestic industry which is clearly imminent ".452 The European  Commission did not identify 
data suggesting a correlation between increases in imports based on their composition at t he end of 
the POI, on the one hand, and a negative impact on the situation of the domestic industry, on the 
other hand. The European  Union points out that the European  Commission found that prices started 
following a declining trend in the third quarter of  2018.453 However, as we stated earlier, we do not 
consider that this necessarily implies a "new price depression" from imports  at the end of the POI .454 
As we explain ed earlier, the European Commission itself recogni zed that price declines for the 
products at issue  could be due to  factors unrelated to imports, such as reductions in the cost of raw 
materials455, and the European  Commission  engaged in no examination in this regard.  
7.240.   In short, the impact of increased imports on the domestic industry in 2013-2016 did not 
provide a sufficient factual basis for projecting the impact of increased imports on the 
domestic  industry after the end of the POI, nor did the European  Commission identify an alternative 
factual basis for this projection. Moreover, the f act that the domestic industry's  performance 
improved between 2016 and the MRP whilst imports continued to increase underscores that 
increased import levels cannot be assumed to bring about a significant overall impairment in the 
situation of the domestic industry, and the European  Commission did not engage with that evidence, 
which contradicted its conclusion. We therefore find that the European  Commission's  determination 
of a threat of serious injury was not "based on facts" as required by Article  4.1(b) of the 
Agreement  on Safeguards.456 
7.6.2.3   Turkey's  consequential  arguments  relating  to the European  Commission's 
determination  of threat  of serious  injury  
7.241.   Turkey appears to argue that the inconsistency of the European  Commission's  determination 
of a threat of seri ous injury with the requirements set out in Articles  4.1(a), 4.1(b), and 4.2(a) of 
the Agreement on Safeguards also results in purely consequential inconsistencies with Article  2.1 of 
the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.457 In view of our findings 
under Article  4.1(b) in sections  7.6.2.1  and 7.6.2.2  above, we consider it unnecessary for the 
effective resolution of the dispute to reach findings on substantively the same issues under 
Article  2.1 of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.  
7.6.2.4   Overall conclusion on  threat  of serious  injury  
7.242.   In conclusion, we find that the definitive safeguard is inconsistent with Article  4.1(b) of the 
Agreement on Safeguards because two central elements of the European  Commission's  findin g of a 
threat of serious injury were  not "based on facts", as required by that provision. First, the 
European  Commission's  finding that the domestic industry was "in a fragile and vulnerable position" 
despite  its improved performance  was not "based on fact s". Second, the 
European  Commission's  finding that a further increase in import volumes in the future would bring 
about serious injury to the domestic industry was not "based on facts". In view of these findings, we 
do not consider it necessary for the eff ective resolution of the dispute to address Turkey's  claim 
 
451 European  Union's  response to Panel question No.  30, para.  40. 
452 Turkey's  second written submission, para.  182. 
453 European  Union's  opening statement of the first meeting of the Panel, para.  91; response to Panel 
question No.  30, para.  39(b).  
454 See para  7.227  and fn  423 above.  
455 See, e. g. Definitive determination, (Exhibit  TUR-5), recital  123. 
456 We note that the parties also disputed whether the European  Commission adequately showed that 
the extent  of the negative implications of the anticipated increase in imports sufficed to meet the t hreshold of 
serious injury. (Turkey's  second written submission, para.  186; European  Union's  comments on 
Turkey's  response to Panel question No.  29, para.  32). In view of our finding that the European  Commission 
did not articulate a factual basis for the p roposition that the anticipated increased imports would have any such 
negative implications in the first instance, it is unnecessary for the effective resolution of the dispute to 
address these other arguments of the parties.  
457 Turkey's  first written submission, para.  225. As set out elsewhere in this Report, Turkey also 
presents other arguments in support of its claims under Article  2.1 and Article  XIX:1(a).  WT/DS595/R  
 
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  based on substantively identical458 arguments under Article  4.1(a)459, Turkey's substantively 
identical arguments under Article  4.2(a)460, or Turkey's  consequential arguments concerning these 
same asp ects of the definitive safeguard under Article  2.1 of the Agreement on Safeguards461 and 
Article  XIX:1(a) of the GATT 1994.462  
7.7  Causation  
7.243.   Turkey argues  that the definitive safeguard is inconsistent with the first and second 
sentences of Article  4.2(b) of the Agreement on Safeguards  because the European  Commission 
failed to establish a causal link between the increased imports and the threat of serious injury to the 
domestic industry , and failed to ensure that injury caused by factors other than imports was not 
attributed to increased imports.463 Turkey also argues that purely as a consequence of these 
inconsistencies, the definitive safeguard is also inconsistent with Article  2.1 of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994. The European  Union  responds that the 
European  Commission  established a causal link between increased imports and the threat of serious 
injury  and conducted a non -attribution assessment in accordance with th ose provisions.464 
7.244.   We have found above that the European  Commission's  determination of a threat of serious 
injury was inconsistent with Article  4.1(b). Article  4.2(b) is concerned with the 
authority's  demonstration of " the existence of the causal link between increased imports of the 
product concerned and serious injury or threat thereof ".465 It presupposes the existence of a threat 
of serious injury. Having found that the European Commission did not properly demonstrate the 
existence of a threat of serious injury, we do not consider it necessary for the effective resolution of 
this dispute to separately review whether the European  Commission followed the requirements of 
Article  4.2(b) in determining that the increased imp orts caused that threat of serious injury .466 For 
the same reasons, we do not consider it necessary to address Turkey's  purely consequential 
arguments on this point under Article  2.1 of the Agreement on Safeguards467 and Article  XIX:1(a) 
of the  GATT  1994.468 
7.8  Applying  the safeguard  only to the extent  and time necessary  to prevent  serious  
injury   
7.245.   Turkey claims that the definitive safeguard is inconsistent with Articles  5.1 and 7.1 of the 
Agreement on Safeguards, and Article  XIX:1(a) of the GATT 1994, because it is applied beyond the 
extent and time necessary to prevent serious injury.469  
7.246.   We will consider, first, Turkey's  arguments under Article  5.1 of the Agreement on Safeguards 
(section  7.8.1 ) and, second, Turkey's  arguments under Article  7.1 of the Agreement on Safeguards 
and Article  XIX:1(a) of the GATT 1994 (section  7.8.2).  
 
458 See fn 345 above.  
459 We recall that a panel may decline to review one or more claims if three conditions are met, i.e. that 
the panel has (a) already found that the same measure (b) is inconsistent with one or more other provisions o f 
the covered agreements, and, in addition, that (c) findings under the additional claims are not necessary to 
resolve the dispute. (See e.g. Panel Report, Pakistan  – BOPP  Film (UAE)  [appealed by Pakistan 
22 February  2021] , para. 7.49; and Appellate Body R eport, Canada – Wheat Exports and Grain Imports , 
para. 133). 
460 Turkey also presents other arguments in support of its claim under Article  4.2(a), but we have 
rejected those arguments. (See paras.  7.12-7.13, 7.41, and 7.68-7.74 above).  
461 Turkey also presents other arguments in support of it s claim under Article  2.1, but we have rejected 
those arguments. (See paras.  7.12-7.13, 7.41-7.67, 7.69, and 7.74 above).  
462 Turkey also presents other arguments in support of its claim under Article  XIX:1(a), and we have 
already found that the definitive safeguard is inconsistent with Article  XIX:1(a).  
463 Turkey's  first written submission, para.  270.  
464 European  Union's  first written submission, para.  226. 
465 Emphasis added.  
466 Turkey also presents other arguments in support of its claim under Article  4.2(b). We have rejected 
those arguments. (See paras.  7.12-7.13, 7.41, 7.68-7.69, and 7.74 above).  
467 Turkey also presents other arguments in support  of its claim under Article  2.1, but we have rejected 
those arguments. (See paras.  7.12-7.13, 7.41-7.67, 7.69, and 7.74 above).  
468 Turkey also presents other arguments in support of its claim under Article  XIX:1(a), and we have 
already found that the definitive safeguard is inconsistent with Article  XIX:1(a).  
469 Turkey's  first written submission, para.  312. WT/DS595/R  
 
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  7.8.1   Article  5.1 of the Agreement on Safeguards  
7.247.   Turkey argues that the definitive safeguard was applied beyond the extent necessary to 
prevent or remedy serious injury, inconsistently with Article  5.1 of the Agreement on Safeguards, 
for the following three  reasons:  
a. although it concluded that there was threat of injury based, among other things, on an 
increase in imports observed in the first six months of 2018, the European  Commission 
did not take import volumes for the first six months of 2018 into account  when it set the 
size of the TRQ component of the safeguard470;  
b. the European  Commission's  causation analysis was inconsistent with Article  4.2(b) of the 
Agreement on Safeguards471; and  
c. by suspending the application of AD/CV  duties to the extent of their ove rlap with the 
out-of-quota safeguard duty, the definitive safeguard improperly addressed the serious 
injury caused by dumped and subsidized imports via the safeguard.472 
7.248.   Below, we first recall the applicable requirements of Article  5.1, and we then address each 
of these arguments, in turn.  
7.8.1.1   The a pplicable requirements of Article  5.1 of the Agreement on Safeguards  
7.249.   The first sentence of Article  5.1 of the Agreement on Safeguards provides:   
A Member shall apply safeguard measures only to the extent necessary to prevent or 
remedy serious injury and to facilitate adjustment.  
7.250.   The first sentence of Article  5.1 requires  Members seeking to apply a safeguard to do so only  
to the "extent necessary"  to (a) prevent or remedy serious injury and (b) facilitate adjustment. A 
safeguard  that exceeds  these limitations will be inconsistent with Article  5.1 of the Agreement  on 
Safeguards .  
7.251.   The first part of Article  5.1 sets the maximum permissible extent to which a safeguard may 
be applied by reference to "serious injury". Other provisions of the Agreement on Safeguards, and 
Article  XIX:1(a) of the GATT 1994, provide relevant context to understand the phrase 
"serious  injury" in Article  5.1. The phrase "seriou s injury" appears in Article  XIX:1(a) and is used 
twenty times in the Agreement on Safeguards. Article  4 of the Agreement on Safeguards, which is 
titled "Determination of Serious Injury or Threat Thereof", defines serious injury or its threat, and 
contains  requirements for the investigation of serious injury or threat. The phrase "serious injury" 
in Article  5.1 has the same meaning as in the remainder of the Agreement on Safeguards. Therefore, 
the injury relevant for the purposes of Article  5.1 of the Agree ment on Safeguards is the injury 
determined to exist pursuant to Article  4 of the Agreement on Safeguards473, which is caused or 
threatened by the increase in imports that results from unforeseen developments .  
7.252.   To evaluate  Turkey 's claims, we consider wheth er Turkey has established that the safeguard  
applied by the European  Union  exceeded the maximum p ermissible extent to which a safeguard  may 
be applied pursuant to Article  5.1.  
 
470 Turkey's  first written su bmission, para.  330. 
471 Turkey's  first written submission, para.  332. 
472 Turkey's  first written submission, para.  334. 
473 See also Appellate  Body Report, US – Line Pipe, para.  249. WT/DS595/R  
 
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  7.8.1.2   Whether Turkey has established that the definitive safeguard  is inconsistent wi th 
Article  5.1 of the Agreement on Safeguards  
7.8.1.2.1   Whether  the definitive  safeguard  is inconsistent  with Article  5.1 because  the 
European  Commission  did not take into account  data from  the first six months  of 2018  in 
determining  the size of the TRQs  
7.253.    We recall that the definitive safeguard combines TRQs and an out -of-quota duty. The size 
of the TRQs was based on the average imports in the period from January  2015 to December  2017 
(TRQ period) .474 Turkey argues that because the European  Union based its f inding of threat of 
serious injury on, among other things, the increase in imports observed during the first six months 
of 2018, but did not include the data on imports during those six  months when calculating the size 
of the TRQs, the European  Union did n ot apply the safeguard only to the extent necessary to prevent 
serious injury, as required by Article  5.1.475  
7.254.   The European  Union responds that the European  Commission ensured that the safeguard 
was "commensurate with the goals of preventing or remedying se rious injury and of facilitating 
adjustment ".476 
7.255.   Among the third parties, Japan argues that the Panel must examine whether the safeguard 
measure at issue is in a form and at a level appropriate to or commensurate with the goal of 
preventing or remedying ser ious injury and facilitating adjustment.477  
7.256.   Turning to the published determinations, we note that there was  some variation among  the 
periods on which  the European  Commission  relied to conclude that there was an increase in imports 
that threatened injury . The European  Commission  examined the increase in imports based on data 
for the period from January  2013 to June  2018.478 In the section of the definitive determination titled 
"Threat of Serious injury", the European Commission examined trends in sev eral injury factors for 
the years from 2 013 to 2017479; it made a discrete finding that the level of imports in the period 
from July 2017 to June 2018 was higher than that in the period from January 2017 to December  2017 
due to "the  relatively high level of  imports in the first semester of 2018"480;  and it examined monthly 
imports into the European  Union  and the United States for the period from January  2018 to 
September  2018 as compared to monthly imports in the period from January  2017 to 
September  2017 to  analyse the "likelihood of further increased exports".481 Turkey argues that since 
the European Commission 's determination of the threat of serious injury was based on import data 
which included the first six months of 2018 , it should  also have included th e first six months of 2018 
in the period that it chose as the TRQ period.482 Turkey does not explain further why this is the case.  
7.257.   We first note that nothing in Article  5.1 of Agreement on Safeguards requires the period 
during which the Member concerned finds an increase in imports  that causes or threatens to cause 
 
474 Definitive determination, (Exhibit TUR -5), recital  144.  
475 Turkey's  first written submission, para.  330. 
476 European  Union's  first written submission, para.  270. 
477 Japan's  third-party statement, para.  8. 
478 Definitive determination, (Exhibit  TUR-5), recital  39. 
479 Definitive determination, (Exhibit  TUR-5), recitals  66-86. The European Commission noted that while 
it requested the EU industry associations to provide data for the first semester of 2018, that information could 
not be verified. The European Commission also noted that it "could not draw any reliable conclu sion based on 
the situation of the [domestic] industry during the first semester of 2018" but that "based on these 2018 data" 
it "could  … confirm[]" the trend of a partial recovery of the industry observed in 2017. 
(Definitive  determination, (Exhibit  TUR-5), recital  89). 
480 Definitive Determination, (Exhibit TUR -5), recital  101. 
481 Definitive determination, (Exhibit  TUR-5), recitals  99 and 103.  
482 Turkey's first written submission, para.  330; second written submission, para.  229. Though its 
arguments on this s ubject are not entirely clear, we understand Turkey to link its contention that the TRQ 
period should have included the first six months of 2018 to the fact that the European Commission also 
examined data that included the first six months of 2018 when it conducted its threat of injury analysis. 
However, as noted above, while the European Commission's threat of injury analysis considered import data 
from 2018, this data was not limited to the first six months of 2018.  Instead, the European Commission 
exami ned import data from the first nine months of 2018 (i.e. from January to September 2018). Given this, 
Turkey's argument that the TRQ period should have included the first six months of 2018 does not account for 
the fact that the European Commission did not  examine this same period of time when it conducted its threat 
of injury analysis.  WT/DS595/R  
 
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  serious injury  to be identical to the period that the Member uses to establish the level of a safeguard, 
or for the two periods to have the same end -points . In fact, Article  5.1 and i ts context establish that 
the Agreement on Safeguards does not require the two period s to be identical. We note, for example, 
that the second sentence of Article  5.1 generally requires that the level of a safeguard that takes 
the form of a quantitative res triction be set on the basis of data for "the last three representative 
years for which statistics are available". By comparison, Article  4 of the Agreement on Safeguards, 
which concerns the determination of serious injury or the threat thereof, does not p rescribe a default 
length of the POI for the injury analysis. Thus, even though the second sentence of Article  5.1 is 
limited to quantitative restrictions, the comparison between Articles  4 and 5.1 illustrates that the 
Agreement  on Safeguards does not requ ire that the time  periods that are used for setting the level 
of the safeguard be the same as the period that is used for the injury analysis.  
7.258.   Second, we note that Turkey appears to be confusing two different concepts, i.e. (a) what 
is necessary  to prevent  or remedy  serious injury, and (b) the period  over which  an increase in 
imports giving rise to that serious injury is observed . Article  5.1 requires a safeguard to be applied 
only to the extent necessary to prevent or remedy serious injury. As noted above,  setting a TRQ 
based on the level of imports during the same period as the one used by the competent authority in 
its examination of the increase in imports causing injury is not always necessary to fulfil this 
requirement, and Turkey has not explained why  it was necessary in this particular case.  
7.259.   Referring to the panel report in Chile – Price Band System , Turkey argues that the TRQs  that 
the European  Commission adopted were not applied "only to the extent necessary to prevent serious 
injury" because they lack the required rational connection with the objective of preventing serious 
injury.483 The panel in Chile – Price Band System  found that for a safeguard to be applied only to 
the extent necessary to prevent or remedy serious injury and facilitate adjustment there must be 
"a rational  connection " between the measure and the objective of preventing or remedying serious 
injury and facil itating adjustment.484 We note that, in that dispute, the panel found that the level of 
the safeguard duty depended, among other factors, on a price threshold calculated on the basis of 
recent international prices; the panel observed that that the price thr eshold thus calculated was not 
"indicative of a state below which the domestic industry will experience (a threat of) serious injury ", 
and it therefore bore "no rational connection to a state of the domestic industry below which (a 
threat of) serious injur y will be experienced".485 That report, therefore, underlines that the 
permissible extent of the safeguard in a particular case must not be based on considerations other 
than those that are connected to a state of the domestic industry below which the indus try will 
experience serious injury. However, Turkey has not explained why TRQs established based on the 
data concerning the volume of steel that was import ed in a period that included the first six months 
of 2018486 would be connected to a state of the dome stic industry below which the industry will 
experience serious injury, whereas  the TRQs that the European  Commission set based on the volume 
of imports from 2015 to 2017 are not . We therefore do not consider that Turkey's  reference to the 
panel report in Chile – Price Band System  supports Turkey's  argument.  
7.260.   Based on the above, we consider that Turkey has not established that the European  Union 
acted inconsistently with the first sentence of Article  5.1 of the Agreement on Safeguards by not 
taking into account data from the first six months of 2018 in determin ing the size of the TRQs.  
7.8.1.2.2   Whether  the definitive safeguard is inconsistent with Article  5.1 because the 
European  Commission did not conduct  a proper  causation  analysis   
7.261.   Turkey also argues that the definitive safeguard is inconsistent with Article  5.1 of the 
Agreement on Safeguards because the European  Commission did not establish a causal link between 
the increased imports and the threat of injury and did not conduct the non -attribution analysis as 
 
483 Turkey's  first written submission, para.  330 (referring to Panel Report, Chile – Price Band System , 
para. 7.183).  
484 Panel Report, Chile – Price Band System , para.  7.183. (emphasis original)  
485 Panel Report, Chile – Price Band System , para.  7.184.  
486 Turkey does not explicitly state what the starting point of the TRQ period should have been in its 
view. Given that the gist of Turkey's argument appears to be that a period used in the threat of injury analysis 
should also be included in the TRQ period, one might infer that Turkey would take the view that the TRQ period 
should begin January 2013 (i.e. the same point as the beginning of the injury analysis). However, as noted, 
Turkey's submissions were not explicit on this point. It is only in its comments  on the interim report that 
Turkey made explicit that it was arguing that the starting point of the TRQ period should be 2015. 
(Turkey's  request for interim review, para.  39).  WT/DS595/R  
 
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  required under Article  4.2(b) of the Agreement on Safeguards.487 The European  Union argues that 
because the European  Commission properly established the existence of a causal link between the 
increased imports and the threat of serious injury, Turkey's  argument should be dismissed.488 
7.262.   We note that Turkey's  argument is purely consequential to its claim under Article  4.2(b) of 
the Agreement on Safeguards. Having already found that the definitive safeguard is inconsistent 
with Article  4.1(b) of the Agreement on Safeguards, we have considered it unnecessary to d ecide 
whether the definitive safeguard is also inconsistent with Article  4.2(b).489 Likewise, we do not 
consider it necessary to consider Turkey's purely consequential argument that the 
definitive  safeguard is inconsistent with Article  5.1 as a result of th e claimed inconsistency with 
Article  4.2(b).490  
7.8.1.2.3   Whether  the double  remedy  regulation  rendered  the definitive  safeguard  
inconsistent  with Article  5.1  
7.263.   We recall that as defined by Turkey, the legal instruments setting out the definitive safeguard 
include th e double remedy regulation.491 This regulation suspends the application of AD/CV duties 
on a particular product to the extent they overlap with the out -of-quota safeguard duty applicable 
to that product.492 According to Turkey, this means that the definitive  safeguard addresses the injury 
caused by dumped and subsidized imports. Turkey argues that the definitive safeguard is therefore 
inconsistent with Article  5.1 of the Agreement on Safeguards, because this provision permits the 
application of a safeguard on ly to the extent necessary to address the serious injury caused by the 
increased imports  within the meaning of Article  2.1 and Article  XIX:1(a).493  
7.264.   The European  Union responds that, as set out in the double remedy regulation, the 
European  Commission suspended the AD/CV duties to the extent of their overlap with the 
out-of-quota safeguard duty in order to avoid " a greater effect than desirable ", and thus the 
suspension cannot be characterized as a failure to apply the measure only t o the extent necessary 
to prevent or remedy serious injury and to facilitate adjustment.494  
7.265.   Among the third parties, Japan argues that the Panel must examine whether the safeguard 
measure at issue is in a form and at a level appropriate to or commensurate with the goal of 
preventing or remedying serious injury and facilitating adjustment.495 The Republic of Korea 
comments that safeguards and AD/CV measures are not mutually exclusive and may be applied in 
combination.496 
7.266.   At the outset of our evaluation, we not e that Turkey's  claim does not concern the question 
whether a safeguard can be applied to dumped and subsidized imports. Turkey clarified in response 
to a question from the Panel that it is not arguing that a safeguard cannot be applied to a product 
that is also subject to AD/CV duties.497 Turkey argues that by suspending AD/CV duties to the extent 
 
487 Turkey's  first written submission, paras.  331-332. 
488 European  Union's  first w ritten submission, para.  277. 
489 See para.  7.242  above.  
490 We consider, and reject, Turkey's other arguments in support of its Article  5.1 claim at 
paras.  7.253 -7.260  above and paras.  7.263-7.271  below.  
491 See section  2.1 above. See also Turkey's  panel request, paras.  13 and 17; and response to Panel 
question No.  14, para.  52. 
492 Double remedy regulation, (Exhibit  TUR-7), Article  1 (if the safeguard duty is lower, the difference 
between the anti-dumping or countervailing  duty and the safeguard duty is also applied). In the definitive 
determination, the European  Commission noted that in order to prevent the cumulation of AD/CV duties  with 
safeguards when the safeguard TRQ is exceeded, the European  Commission could, pursuant to a framework to 
be developed at a later stage, suspend or reduce the level of existing AD/CV duties that were being assessed 
on certain covered imports. (Definitive determination, (Exhibit  TUR-5), rec ital 186). Subsequently, the 
European  Commission adopted the double remedy regulation stipulating that in cases where the safeguard 
duty exceeds the equivalent rate of the higher of the AD/CV duty rate applicable to the same product 
categories, only the sa feguard duty shall be collected.  
493 Turkey's  first written submission, para.  334; second written submission, para.  233.  
494 European  Union's  first written submission, para.  282. See also European  Union's  closing statement at 
the second meeting of the Panel, paras.  34-36. 
495 Japan's  third-party statement, para.  8. 
496 Korea's  third-party submission, para.  25. 
497 Turkey's  response to Panel question No.  42, para.  78. See also Turkey 's comments on the 
European  Union's  response to Panel question  No. 38, para. 49. WT/DS595/R  
 
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  they overlapped with the safeguard duty, the European  Union addressed the injury caused by the 
dumped and subsidized imports via the safeguard measure.498 The ques tion that we must address 
to resolve Turkey's  claim, therefore, is whether Turkey has shown that by suspending  AD/CV  duties  
to the extent that they overlap with the safeguard duty, the European  Union failed to apply the 
safeguard only to the extent necessa ry to prevent serious injury due to increased imports within the 
meaning of Article  2.1 and Article  XIX:1(a), thereby acting inconsistently with Article  5.1 of the 
Agreement on Safeguards.  
7.267.   Turkey appears to suggest that merely because AD/CV duties were su spended to the extent 
of their overlap with the safeguard duty, the safeguard duty should be considered to perform the 
function of the suspended AD/CV duties, i.e. addressing the injury caused by dumping and 
subsidization, such that the safeguard duty beco mes inconsistent with Article  5.1 of the 
Agreement  on Safeguards. We do not agree. We note that the European  Commission explained its 
determination to suspend any AD/CV duties to the extent that they overlapped with the safeguard 
duty by stating that:  
[T]he combination of anti -dumping and/or anti -subsidy measures and safeguard 
measures … would … have an effect greater than that intended or desirable in terms of 
the Union 's trade defence policy and objectives [.]499  
7.268.   As such, the European  Commission did not in dicate that it was suspending the AD/CV  duties 
because they addressed the same  injury as the safeguard. Instead, the European  Commission 
indicated that the combined effect of all measures would have been greater than desirable. Turkey 
has not countered thi s explanation. Specifically, Turkey has not demonstrated that rather than 
choosing not to address  the additional injury caused by dumping and subsidization (i.e. injury other 
than the serious injury caused by increased imports within the meaning of Article  2.1 and 
Article  XIX:1(a)), the European  Union was addressing that injury via the definitive safeguard by 
suspending the AD/CV duties to the extent of their overlap with the safeguard duty.500 We therefore 
consider that the suspension of the AD/CV duties to  the extent of their overlap with the safeguard 
duty does not, on its own, establish that the safeguard duty was being applied beyond the extent 
necessary to prevent serious injury caused by increased imports within the meaning of Article  2.1 
and Article  XIX:1(a).  
7.269.   We also note the following statement made by Turkey:   
Where there are already anti -dumping and countervailing measures in place, prior to 
the increase in imports resulting from unforeseen developments, a subsequent finding 
that the imposition of safeguard measures is warranted may result in the imposition of 
a safeguard measure to offset the serious injury caused by the increased imports in 
addition to the existing anti -dumping or countervailing duty.501  
7.270.   Turkey thus acknowledges that a Member may apply a safeguard to offset the serious injury 
caused by increased imports even if those imports are also subject to AD/CV measures. 
Notwithstanding this, Turkey asserts that the definitive safeguard, and in particular the 
double remedy regulation, was nonetheless inconsistent with Article  5.1 of the Agreement on 
Safeguards because it suspended the AD/CV duties that overlapped with the safeguard duty.502 In 
making these statements, Turkey appears to argue that an inconsistency with Article  5.1 may not 
have presented itself had the European  Commission continued to apply both the full amount of the 
pre-existing AD/CV duties and the safeguard duty on the relevant imports, but that the 
European  Commission acted inconsistently with A rticle 5.1 because it suspended part of the 
AD/CV  duties. To us, this position is internally contradictory.  
 
498 Turkey's  second written submission, para.  233; response to Panel question No.  42, para.  80. 
499 Double remedy regulation, (Exhibit  TUR-7), recital  15. 
500 In this regard, we note that the application of AD/CV measures  to counteract dumping and/or  
subsidization i n accordance with the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  (Anti-Dumping Agreement ) and the Agreement on Subsidies and Countervailing 
Measures  (SCM Agreement ) is a right that Members may, but are not mandated to , exercise . Members are also 
not mandated to apply the full amount of AD/CV duties that they are permitted to apply by the Anti-Dumping 
Agreement and the SCM  Agreement.   
501 Turkey's  response to Panel question No.  42, para.  80. 
502 Turkey's  response to Panel question No.  42, para.  80. WT/DS595/R  
 
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  7.271.   Based on the above, we consider that Turkey has not established that the double remedy 
regulation resulted in the application of the definitive safe guard beyond the extent necessary to 
prevent serious injury.  
7.8.2   Article  7.1 of the Agreement  on Safeguards  and Article  XIX:1(a)  of the GATT  1994  
7.272.   Turkey argues that because the European  Commission did not perform a proper causation 
analysis in accordance with  Article  4.2(b), the European  Union was unable to ensure that the 
safeguard was applied only for the period of time necessary  to address the serious injury attributed 
to increased imports. On this basis, Turkey claims that the definitive safeguard was inco nsistent with 
Article  7.1 of the Agreement on Safeguards503 and Article  XIX:1(a) of the GATT 1994.504 The 
European  Union argues that Turkey's  contention ought to be rejected.505 
7.273.   We note that Turkey 's claim under Article  7.1 of the Agreement on Safeguards, and  
Turkey 's relevant argument under Article  XIX:1(a) of the GATT 1994, are purely consequential to 
Turkey 's claim under Article  4.2(b) of the Agreement on Safeguards , and that we have not reached 
findings of inconsistency under Article  4.2(b). Given that we have already found the 
definitive  safeguard to be inconsistent with other provisions of the Agreement on Safeguards , and 
that the additional finding s requested by Turkey are not necessary to resolve the dispute, we 
exercise economy on Turkey 's consequentia l claim under Article  7.1 of the Agreement on 
Safeguards, and we do not review Turkey's consequential argument506 under Article  XIX:1 of the 
GATT  1994. 
7.9  The allocation  of shares  in the TRQs  
7.274.   Turkey claims that the definitive safeguard is inconsistent with Article  XIII:2(d) and the 
chapeau  of Article  XIII:2 of the GATT 1994 because it allocates country -specific shares in the TRQs 
based on a period that is not representative, and without taking due account of any special factors 
affecting the trade in the product concerned.507 Turkey claims that the definitive safeguard is also 
inconsistent with Article  5.2(a) of the Agreement on Safeguards, "for the same reasons".508 The 
European  Union contends th at the European  Commission fully conformed with the requirements of 
Article  XIII of the GATT 1994.509 The European  Union also contends that Article  5.2(a) of the 
Agreement on Safeguards does not apply to TRQs.510 On these bases, the European  Union requests 
the Panel to reject Turkey's  claims.  
7.275.   In the following sections, we first address Turkey's  claims under the relevant provisions of 
Article  XIII:2 of the GATT 1994 (section  7.9.1), and then Turkey's  claim under Article  5.2(a) of the 
Agreement on Safeguards (section  7.9.2).  
7.9.1   Article  XIII:2 of the GATT  1994  
7.276.   In the definitive determina tion, the European  Commission determined that " a country 
specific [TRQ]  should be allocated to countries having a significant supplying interest, based on their 
imports over the last 3  years ".511 While the import volumes data from the first six months of 20 18 
were on the record before the European  Commission, the European  Commission did not take those 
data into account when it allocated the country -specific shares in the TRQs for the relevant product 
categories.  
 
503 Article  7.1 of the Agreement on Safeguards provides:  
A Member shall apply safeguard measures only for such period of time as may be necessary to 
prevent or remedy serious injury and to facilitate adj ustment. The period shall not exceed 
four years, unless it is extended under paragraph  2. 
504 Turkey's  first written submission, para.  333; response to Panel question No.  13, para.  51. 
505 European  Union's  first written submission, para.  279. 
506 Turkey makes other arguments in support of its claim under Article  XIX:1(a), and we have already 
found tha t the definitive safeguard is inconsistent with Article  XIX:1(a).  
507 Turkey's  first written submission, para.  336. 
508 Turkey's  first written submission, para.  336.  
509 European  Union's  first written submission, para.  296. 
510 European  Union's  first written subm ission, para.  285. 
511 Definitive determination, (Exhibit  TUR-5), recital  147. WT/DS595/R  
 
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  7.277.   First, Turkey argues that the European  Commiss ion's decision to allocate the 
country -specific shares in the TRQs based solely on import volume data from 2015 to 2017 and 
without considering data from the first six months of 2018 was inconsistent with Article  XIII:2(d) of 
the GATT 1994 on the following  alternative grounds:  (a) the "previous representative period" used 
by the European  Commission should have included the first half of 2018, because the first half of 
2018 formed part of the MRP preceding the application of the safeguard, and because in the  first 
half of 2018 the European  Union had introduced new trade remedy measures (the representative 
period argument); or (b) there had been changes in imports shares from various countries following 
the imposition of new trade remedies measures in the firs t half of 2018, and these changes were a 
"special factor" of which the European  Union did not take due account (the special factor 
argument).512 Turkey  asserts that the Panel must address the special factor argument "if [it] were 
to be concluded that there was no obligation for the European  Union to have included the first 
six months of 2018 into the representative period".513 
7.278.   Second, Turkey argues that for the same reasons, this allocation of country -specific shares 
was inconsistent with the chapeau  of Article  XIII:2.514  
7.279.   Below, we first set out the applicable requirements of Article  XIII:2 of the GATT 1994. We 
then address Turkey's  claim under Article  XIII:2(d) of the GATT 1994, before turning to 
Turke y's claim under the chapeau  of Article  XIII:2 of the GATT 1994.  
7.9.1.1   The applicable  requirements  of Article  XIII:2 of the GATT  1994   
7.280.   Article  XIII:2 chapeau  and Article  XIII:2(d ) of the GATT  1994, in relevant part, provide:   
In applying import restrictions to a ny product, contracting parties shall aim at a 
distribution of trade in such product approaching as closely as possible the shares which 
the various contracting parties might be expected to obtain in the absence of such 
restrictions and to this end shall o bserve the following provisions:  
… 
(d) In cases in which a quota is allocated among supplying countries the contracting 
party applying the restrictions may seek agreement with respect to the allocation of 
shares in the quota with all other contracting part ies having a substantial interest in 
supplying the product concerned. In cases in which this method is not reasonably 
practicable, the contracting party concerned shall allot to contracting parties having a 
substantial interest in supplying the product sha res based upon the proportions, 
supplied by such contracting parties during a previous representative period, of the total 
quantity or value of imports of the product, due account being taken of any special 
factors which may have affected or may be affecti ng the trade in the product . 
7.281.   The chapeau  to Article  XIII:2 provides that "in applying import restrictions" to a product, the 
contracting parties "shall aim at a distribution of trade … approaching as closely as possible the 
shares which the various contrac ting parties might be expected to obtain in the absence of such 
restriction s". The ordinary meaning of "aim" includes "[t] o have (something) as an object, intention, 
or desired outcome  … to seek to achieve or obtain ", and to " direct one 's course towards a particular 
point or destination, or to make this one 's object ".515 This provision therefore requires a Member, 
when applying import restrictions to a product, to seek to achieve or obtain a distribution of trade 
that approaches, "as closely as possible", th e shares that other Members "might be expected to 
obtain" in the overall imports of the product concerned "in the absence of such restrictions ".516 The 
phrase such restrictions  refers to the import restrictions that are applied by the Member concerned 
under  Article  XIII:2. The chapeau  further specifies that the subparagraphs  that follow shall be 
observed to achieve the "end" specified in the chapeau . The Ad Note to Article  XIII:2(d) refers to 
 
512 Turkey's  first written submission, paras.  347-348; response to Panel question No.  43, para.  89. 
513 Turkey's  response to Panel question No.  43, para.  89. 
514 Turkey's  first written submission, para.  352; response to Panel question  No. 44, para.  90. 
515 Oxford Dictionar ies online, definition of "aim" , v., meanings 6 and 7, 
https://www.oed .com/view/Entry/4348?rskey=daocNi&result=4&isAdvanced=false#eid  (accessed 
22 September  2021).  
516 Emphasis added.  WT/DS595/R  
 
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  the chapeau  as containing a "general rule". The provisions of Articles  XIII:2(a) to XIII:2(d) specify 
ways in which the general rule in the chapeau  of Article  XIII:2  may be fulfilled in certain instances .517 
7.282.   Subparagraph  (d), which concerns "cases in which a quota is allocated among supplying 
countries" as the means to achieve the "end" stipulated in the chapeau , prescribes two  methods 
through which the Member concerned may determine the "allocation of shares in the quota" among 
Members that have "a substantial interes t in supplying the product concerned". The present dispute 
involves the second of these methods, which is set out in the second sentence of Article  XIII:2(d). 
This method requires the Member applying the import restriction at issue to allocate shares in th e 
quota for imports of the product concerned among the relevant contracting parties "based upon the 
proportions, supplied by such contracting parties during a previous representative period". Aside 
from specifying that the previous period to be used for th is purpose must be representative , the 
provision does not prescribe how long the period must be or what must be the start and end points 
of this period. Notably, the provision refers to "a" previous representative period, not "the" previous 
representative period. Further, the second sentence of Article  XIII:2(d) also requires the Member 
applying the import restriction at issue to take " due account " of "any special factors which may have 
affected or may be affecting the trade in the product " when allotting s hares in the quota to the 
relevant Members.  
7.9.1.2   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
Article  XIII:2(d)  of the GATT  1994  
7.283.   Turkey contends that the European  Commission acted inconsistently with Article  XIII:2(d) 
of the  GATT 1994 on the following two alternative518 grounds:  (a) the European  Commission failed 
to properly choose the previous representative period for the purposes of Article  XIII:2(d) by not 
including the first six months of 2018 in the representative period  (the representative period 
argument)519; and (b) the European  Commission failed to take into account the change in the share 
of imports from the exporting countries following "the newly imposed trade defence measures" 
during the first half of 2018 as a "sp ecial factor" that justified the adjustment of the TRQ allocation 
(the special factor argument).520 We will first consider the representative period argument, and then 
the special factor argument.  
7.9.1.2.1   The representative  period  argument   
7.284.   Turkey argues that the European  Commission should have included the first six months of 
2018 in the reference period used to allocate country -specific shares in the TRQs for relevant product 
categories, because the first half of 2018 formed part of the MRP preceding the appl ication of the 
safeguard, and because in the first half of 2018 the European  Union had introduced new trade 
remedy measures.521 According to Turkey, by not including data from the first six months of 2018, 
and instead allocating the country -specific shares in the TRQs based on data from January  2015 to 
December  2017, the European  Commission did not allocate country -specific shares in the TRQs for 
various product categories based on the MRP not distorted by the TRQs, and therefore acted 
inconsistently with Ar ticle XIII:2(d).522  
7.285.   The European  Union argues that there is no general rule in Article  XIII:2(d) of the 
GATT  1994 always requiring the use of the most recent three -year period preceding the entry into 
force of a TRQ.523 The European  Union also asserts that the reference period used by the 
European  Commission, i.e. 2015 -2017, was also a recent one, and meets the criterion of a "previous 
representative period".524 According to the European  Union, the consideration of average imports 
during the last three calendar years prior to the initiation of the investigation (in this instance, 
2015-2017) fulfils the requirements of Article  XIII of the GATT 1994.525 The European  Union also 
 
517 Appellate  Body Reports, EC – Bananas III (Article  21.5 – Ecuador II) / EC – Bananas III 
(Article  21.5 – US), para.  338. 
518 Turkey's  response to Panel question No.  43, para.  89. 
519 Turkey's  first written submission, para.  351. 
520 Turkey's  response to Panel question No.  43, para.  89. 
521 Turkey's  first written submission, para.  348. 
522 Turkey's  first written submission, paras.  348 a nd 351.  
523 European  Union's  first written submission, para.  288; comments on Turkey's  response to Panel 
question No.  43, para.  70 (both referring to Panel Report, EU – Poultry Meat (China) , para.  7.353 ). 
524 European  Union's  first written submission, para.  290. 
525 European  Union's  first written submission, para.  291. WT/DS595/R  
 
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  contends that unlike the obligation in respect of the examination of the increase in imports, the 
obligation in respect of the previous representative period did not require a significant focus on the 
first six months of 2018.526 The European  Union adds that, in fact, it is important to use full years 
to ensure representativeness, because of seasonal variations.527 
7.286.   We note that in the definitive determination the European  Commission determined that a 
country -specific TRQ should be allocated to cou ntries having a share of more than 5% of imports for 
the product category concerned in the period 2015 -2017, and that a global TRQ based on the 
average of the remaining imports in the same period should be allocated to all other supplying 
countries.528 The Commission based  the size of the TRQs, country -specific as well as global, on  the 
average  volume of  imports in the period 2015 -2017, plus 5%.529 
7.287.   Referring to the panel reports in EC – Bananas  III (Article  21.5 – Ecuador)  and US – Line 
Pipe, Turkey argues that it is necessary for the "previous representative period" for purposes of 
Article  XIII:2(d) to be the MRP not distorted by restrictions, i.e. not distorted by the TRQ in 
question.530 Turkey argues that to achieve this, the European  Commi ssion should have allocated 
country -specific shares in the TRQs based on data including the first half of 2018.531  
7.288.   We note that the second sentence of Article  XIII:2(d) requires the allocation of 
country -specific shares in a TRQ based on proportions suppli ed by the relevant Members during 
"a previous representative period ".532 The use of the indefinite article  "a" instead of the 
definite  article  "the" in reference to the notion of "previous representative period" shows that the 
Member applying the TRQ has a margin of discretion in selecting a previous period that it considers 
to be representative for the purpose of allocating country -specific shares in the TRQ at issue.533 
Indeed, the panel in EC – Bananas  III (Article  21.5 – Ecuador) , to which Turkey refers i n support of 
its contention, noted that "Members have a degree of discretion in choosing a previous 
representative period".534 We also do not consider that the observation of the panel in US – Line 
Pipe referred to by Turkey that "trade flows before the imp osition of a safeguard measure provide 
an objective, factual basis for projecting what might have occurred in the absence of that measure" 
supports the proposition that only the MRP before the application  of the TRQ, including where 
applicable the most recent half -year, could constitute a valid previous representative period for the 
purpose of Article  XIII:2(d).  
7.289.   The period 2015 -2017 used by the European  Commission to allocate country -specific shares 
in the TRQs comprised the most recent three calendar y ears before the initiation  of the 
investigation.535 We have some difficulty with the notion that the European  Union could be held to 
have acted inconsistently with Article  XIII:2(d) of the GATT 1994 on the ground that the period it 
used to allocate shares i n the TRQs was not the most recent, despite the inclusion of the three most 
recent full years before the initiation of the investigation. In our view, the 
European  Commission's  decision to consider the most recent three calendar years before the 
initiation  of the investigation for the allocation of country -specific shares in the TRQs was within the 
margin of discretion available to the European  Commission in selecting a previous representative 
period pursuant to Article  XIII:2(d) of the GATT 1994. Therefore , we reject Turkey's  contention that 
 
526 European  Union's  first written submission, paras.  292-294. 
527 European  Union's  first written submission, para.  295. 
528 Definitive determination, (Exhibit  TUR-5), recitals  146-147. 
529 Definitive determination, (Exhibit  TUR-5), recitals  144 and 146 -147. 
530 Turkey's  first written submission, para.  351 (referring to Panel Reports, EC – Bananas  III 
(Article  21.5 – Ecuador) , para.  6.39; and  US – Line Pipe , para.  7.54).  
531 Turkey's  first written submission, para.  351; second written submission, para.  237. 
532 Emphasis added.  
533 We note that the panel in EU – Poultry  Meat (China)  also took the view that "the reference to 
'a' previous representative period in Article  XIII:2(d) i mplies that there is no general rule that applies in all 
cases regarding the selection of the reference period". (Panel Report, EU – Poultry  Meat (China) , para.  7.349).  
534 Panel Report, EC – Bananas  III (Article  21.5 – Ecuador) , para. 6.50. We also note tha t the 
observation of the panel to which Turkey refers in support of its contention was made by the panel when 
discussing its view that "if data from a period are out of date or imports distorted because the relevant market 
is restricted, then using that pe riod as a representative period cannot achieve the aim of the chapeau ". 
(Ibid.  para. 6.39). In this case, Turkey has not argued that data from the period 2015 -2017, which were used 
by the European  Commission to allocate country -specific shares in the relevant TRQs, were "out of date". 
Turkey has also not contended that imports in this period were distorted by restrictions.  
535 The notice of initiation of the investigation is dated 26  March  2018. (Notice of initiation, 
(Exhibit  TUR-1), p.  29). WT/DS595/R  
 
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  the European  Commission was obliged to include data from the first six months of 2018 in the period 
used as the basis to allocate country -specific TRQs on the basis that these were the most recent 
data undistorted by th e TRQs.  
7.290.   Turkey also argues that the use of data relating to the first six months of 2018 was necessary 
because the European  Commission had imposed a number of trade remedies in that period that 
resulted in a significant change in the shares of imports from  a number of countries.536 Turkey 
contends that imports from countries not subject to AD/CV measures  increased to the detriment of 
imports from countries subject to those measures.537 Turkey asserts that had the first six months of 
2018 been included in the period based on which country -specific shares were allocated, 
Turkey  would have received larger country -specific quotas and would have been allocated a 
country -specific TRQ for at least two additional product categories.538 
7.291.   We consider that the imposition o f trade remedies by the European  Commission in the first 
six months of 2018 does not establish that the period 2015 to 2017 could not have been a previous 
representative period for the purpose of the second sentence of Article  XIII:2(d) of the GATT 1994. 
We do not see anything in the text of Article  XIII:2(d) that makes a period in which new trade 
remedies have been imposed a mandatory part of the "previous representative period" for the 
allocation of country -specific shares in the TRQ at issue in a particu lar investigation. Turkey has not 
demonstrated that the imposition of new trade remedies in 2018 made it necessary to include the 
first six months of 2018 in this proceeding, and indeed it has not even identified the new trade 
remedies  at issue, or explain ed how they differed from trade remedies already applied during 
2015-2017. Therefore, in our view, the imposition of trade remedies by the European  Commission 
in the first six months of 2018 and any associated change in the proportions of imports supplied by 
various countries does not, by itself, call into question the representativeness of the period 2015 to 
2017 for the purpose of Article  XIII:2(d) in this case. In this regard, we agree with the observation 
of the panel in EU – Poultry  Meat (China)  that " there is nothing unusual about Members applying 
WTO-consistent measures which may, directly or indirectly, affect the importation of certain 
products".539 Thus, we do not consider that the application of trade remedies in 2018 undermined 
the representativen ess of the period 2015 -2017 for the purposes of the second sentence of 
Article  XIII:2(d) of the GATT 1994.  
7.292.   Finally, we note Turkey's  assertion that the European  Commission's  consideration of data 
from the first six months of 2018 in its examination of incr ease in imports "confirms that the data 
relating to that period was reliable and relevant for the purpose of imposing the safeguard measures 
at issue".540 To the extent that Turkey is arguing that the inclusion of the first six months of 2018 in 
the examina tion of increase in imports obliged the European  Commission to include the first 
six months of 2018 in the period based on which it allocated country -specific shares in the TRQs, we 
disagree. Article  XIII:2(d) does not necessarily require the period used a s the "previous 
representative period" to allocate country -specific shares in a TRQ and the period used by the 
competent authority to examine increased imports in a safeguard investigation to be identical. 
Indeed, in this case, even under Turkey's  argument s the two  periods would not correspond, given 
that the European  Commission assessed the increase in imports based on data for 2013 -June 2018, 
whereas we understand Turkey to be calling for an allocation of TRQ shares based on data for 
2015-June 2018. We th erefore reject Turkey's  additional argument.  
7.293.   Based on the foregoing, we reject Turkey's  contention that the European  Commission was 
required to include the first six months of 2018 in the period based on which it allocated 
country -specific shares in the r elevant TRQs to fulfil the requirements of Article  XIII:2(d) of the 
GATT 1994. Having rejected Turkey's  contentions concerning the representative period, we now 
 
536 Turkey's  first written submission, para.  348; second written submission, para.  239. 
537 Turkey's  first written submission, para.  348; response to Panel question No.  43, para.  88. 
538 Turkey's  first written submission, paras.  349-350. 
539 Panel Report, EU – Poultry  Meat (China) , para. 7.337. Although this observation was made by the 
panel when addressing the question whether certain sanitary and phytosanitary (SPS) measures that reduced 
China's  ability to export the relevant products were a "special factor" under Article  XIII:2(d), we consider that 
based on the same logic, AD/CV measures  do not, in and of themselves, undermine the representativeness of 
the reference period selected to allocate shares in a TRQ in all circumstances.  
540 Turkey's  second written submission, para.  238. WT/DS595/R  
 
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  proceed to examine the special factor argument, which Turkey presented as an alternative to the  
representative period argument.541 
7.9.1.2.2   The special  factor  argument   
7.294.   Turkey argues that the change in the share of imports from the exporting countries following 
the new trade remedies imposed during the first half of 2018 was a "special factor" that required an 
adjustment to the TRQ allocations.542 Turkey asserts that the r eduction in imports following the 
imposition of the new AD/CV measures  from the countries subject to those measures constitutes a 
special factor that has affected or is affecting the trade in the product concerned.543 Referring to the 
report of the panel in EU – Poultry  Meat (China) , Turkey argues that the reference in Article  XIII:2(d) 
of the GATT 1994 to special factors that "may be affecting" trade implies that a special factor that 
the competent authority ought to consider in allocating shares in a TRQ may arise between the end 
of the representative period and the time of the allocation of the TRQ.544 
7.295.   We agree with Turkey that by referring to " special factors which … may be affecting " trade 
in the product concerned, Article  XIII:2(d) recognizes the possibility that developments outside the 
previous representative period could constitute special factors, of which due account must be taken 
in the allocation of shares. We also note that the panel in EU – Poultry  Meat (China) found that "in 
certain exceptional (i.e. 'special'  circumstances), changes  in the imports  shares  held by different  
Members  that have occurred between the end of the representative period selected and the time of 
the TRQ being allocated" could constitu te a special factor under Article  XIII:2(d) of the GATT 1994.545 
However, in that dispute China put forth evidence before that panel that indicated that the increase 
in China's  imports into the European  Union following the relaxation of certain EU sanitary and 
phytosanitary (SPS) measures after the representative period at issue was "significant[]", 
"dramatic", "steady", "continuous" and "rapid".546 In contrast, Turkey has not placed sufficient 
evidence before us that would illustrate the existence, or the ex tent, of the purported "change in 
the share of imports from the exporting countries" and "the reduction in imports … from countries 
subject to those measures" that, according to Turkey, took place following the imposition of the new 
AD/CV measures  by the E uropean  Union in 2018.547 
7.296.   In its first written submission, Turkey provided data illustrating the difference between the 
country -specific TRQs that the European  Commission allocated to Turkey for various product 
categories and Turkey's  annual average import volumes for those product categories based on data 
from 2015 to June 2018.548 According to Turkey, these data show that Turkey would have received 
larger country -specific shares in the TRQs if the shares had been allocated based on data from 2015 
to June  2018, and that Turkey also would have been allocated country -specific TRQs for 
two additional product categories.549 While we agree that the data period that Turkey believes the 
European  Union should have used would have been more beneficial to Turkey for several product 
categories, this fact, without more, does not establish that special factors existed that the 
Europe an Commission was required to account for when it allocated the country -specific TRQ shares. 
The data submitted by Turkey do not show that the difference in the proportions of EU imports from 
Turkey that Turkey points to arose due to the imposition of trad e remedies in the first half of 2018, 
and indeed Turkey has not even identified those new trade remedies.  
7.297.   We also note that the data that Turkey provided show that for certain product categories, 
namely product categories 9, 19, 25, and 26, Turkey's  annua l average import volume based on data 
from 2015 to June  2018 was in fact lower than the country -specific TRQ that the 
European  Commission allocated to Turkey based on data from 2015 -2017.550 Further, for 
two product categories, 4 and 27, in respect of which  Turkey argues that it would have received a 
country -specific TRQ had the European  Commission used data from 2015 to June  2018, we note 
 
541 Turkey's  response to Panel question No.  43, para.  89. 
542 Turkey's  response to Panel question No.  43, para.  89.  
543 Turkey's  response to Panel question No.  43, para.  89. 
544 Turkey's  response to Panel question No.  43, para.  89 (referring to Panel Report , EU – Poultry  Meat 
(China) , para.  7.355).  
545 Panel Report, EU – Poultry  Meat (China) , para. 7.363. (emphasis added)  
546 Panel Report,  EU – Poultry Meat (China) , paras.  7.364, 7.366, 7.369 , and 7.377.  
547 Turkey's  response to Panel question No.  43, para.  89. 
548 Turkey's  first written submission, paras.  349-350. 
549 Turkey's  first written submission, paras.  349-350. 
550 Turkey's  first written submission, para.  349. WT/DS595/R  
 
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  that Turkey's  data show that the change in Turkey's  share in the overall imports would have been 
only 1% (an increase fr om 4% to 5%).551 This is sharply in contrast to the magnitude of the change 
in China's  import share of the two products in respect of which the panel in EU – Poultry  Meat (China)  
found that the change in import shares following the relaxation of the SPS mea sures was a special 
factor. In that proceeding, the evidence demonstrated that China's  share for one of the products 
rose from 0% in the representative period (2006 -2008) to 27.1% in 2009, 40.7% in 2010, and 
52.8% in 2011. Likewise, for the other product, China's  share changed from 0% in the 
representative period (2006 -2008), to 8.7% in 2009, 17.6% in 2010, and 61.1% in 2011.552 Notably, 
in respect of another product at issue in that case, for which China's  import share changed from 0% 
in the representative period (2006 -2008) to 2.8% in 2009, 1.5% in 2010, and 2.9% in 2011, the 
panel did not find that the change in import shares after the representative period constituted a 
special factor.553  
7.298.   Thus, the change in China's  import shares of the relevant products following the relaxation 
of the SPS measures  in EU – Poultry  Meat (China)  was of a significantly greater magnitude than the 
change in Turkey's  import shares of several product categories following the imposition of the new 
AD/CV measures  that Turkey refers  to. Therefore, Turkey's  reliance on the EU – Poultry  Meat (China)  
panel report to support the special factor argument is inapposite.  
7.299.   For these reasons, we do not consider that Turkey has established the existence of a special 
factor that the European  Commission improperly failed to take into account in allocating 
country -specific shares in TRQs for the relevant product categories. We therefore disagree with 
Turkey's  special factor argument.  
7.9.1.3   Whether  Turkey  has established  that the definitive  safeguard  is inconsistent  with 
the chapeau  of Article  XIII:2 of the GATT  1994  
7.300.   Turkey argues that by failing to take into account the first six months of 2018 in determining 
the country -specific shares of TRQs, the European  Union also acted inconsistently w ith the chapeau  
of Article  XIII:2 of the GATT 1994.554 According to Turkey, the country -specific shares determined 
on the basis of data from 2015 -2017 do not approach as closely as possible the shares in the trade 
of the products concerned that Turkey would  be expected to obtain in the absence of the 
safeguard  measure.555 In response to a Panel question, Turkey indicated that the same facts and 
arguments underly Turkey's  claims under Article  XIII:2(d) and the chapeau  of Article  XIII:2 of the 
GATT  1994.556  
7.301.   The European  Union argues that it acted in full conformity with Article  XIII of the GATT 1994 
and ensured that the allocation of the TRQs approached as closely as possible the shares that various 
Members may be expected to obtain in the absence of the TRQs.557 
7.302.   In our evaluation of Turkey's  claim under Article  XIII:2(d) of the GATT 1994 we have found 
that Turkey has not established that data for a period including January to June  2018 w ere 
representative of trade flows in the absence of restrictions , but data fo r the period  2015-2017 were 
not. We have also found that Turkey has not established that the changes in import shares of various 
countries following the introduction of trade remedies in early 2018 was a special factor that had to 
be taken into account in the allocation of country -specific shares in the TRQs. Given that 
Turkey's  claim under the chapeau  of Article  XIII:2 of the GATT 1994 rest on these same grounds, 
we find that Turkey has not established that the European  Union acted inconsistently with the 
chapeau  of Article  XIII:2 of the GATT 1994.  
7.9.2   Article  5.2(a)  of the Agreement  on Safeguards   
7.303.   Turkey argues that "for the same reasons" as those underlying its claims under the relevant 
provisions of Article  XIII:2(d) of the GATT 1994, the definitive safeguard is also inconsistent with 
 
551 Turkey's  first written submission, para.  350. 
552 Panel Report, EU – Poultry  Meat (China) , para.  7.364.  
553 Panel Report, EU – Poultry  Meat (China) , paras.  7.364 and 7.369.  
554 Turkey's  first written submission, para.  352. 
555 Turkey's  first written submission, para.  352. 
556 Turkey's  response to Panel questio n No.  44, para.  90.  
557 European  Union's  first written submission, paras.  291 and 296.  WT/DS595/R  
 
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  Article  5.2(a) of the Agreement on Safeguards.558 According to T urkey, given that the text of 
Article  5.2(a) is "to a large extent identical" to that of Article  XIII:2(d), the European  Union's  failure 
to allocate country -specific shares in the TRQs based on a "previous representative period" would 
give rise to an incon sistency not only with Article  XIII:2(d) of the GATT 1994 but also with 
Article  5.2(a) of the Agreement on Safeguards.559, 560 
7.304.   Referring to the panel report in US – Line Pipe, the European  Union contends that 
Article  5.2(a) of the Agreement on Safeguards is not applicable to TRQs.561 Therefore, the 
European  Union request the Panel to reject Turkey's  claim under Article  5.2(a) of the 
Agreement  on Safeguards.  
7.305.   Article  5.2(a) of the Agreement on Safeguards provides:   
In cases in which a quota is allocated among s upplying countries, the Member applying 
the restrictions may seek agreement with respect to the allocation of shares in the quota 
with all other Members having a substantial interest in supplying the product concerned. 
In cases in which this method is not reasonably practicable, the Member concerned shall 
allot to Members having a substantial interest in supplying the product shares based 
upon the proportions, supplied by such Members during a previous representative 
period, of the total quantity or value o f imports of the product, due account being taken 
of any special factors which may have affected or may be affecting the trade in the 
product.  
7.306.   The European  Union, relying on a finding of the panel in US – Line Pipe, argues that a TRQ 
is not a "quota" in th e sense of Article  5.2(a) of the Agreement on Safeguards.562 Turkey, on the 
other hand, disagrees with that finding of the panel in US – Line Pipe and argues that TRQs include 
a "quota" component, and that Article  5.2(a) applies to TRQs.563  
7.307.   While the partie s disagree as to whether Article  5.2(a) of the Agreement on Safeguards 
applies to TRQs and therefore to the measure at issue, we consider that even assuming  arguendo  
that it does, Turkey has not establish ed that the European  Union acted inconsistently with  the 
provision. As noted above, Turkey asserts, on the same grounds as those that it relied on in the 
context of its claim under Article  XIII:2(d) of the GATT 1994, that the European  Union's  failure to 
allocate country -specific shares in the TRQs based on a "previous representative period" gave rise 
to an inconsistency with Article  5.2(a) of the Agreement on Safeguards.564 However, as we have 
found above, Turkey has not established that the period used by the European  Commission for the 
allocation of country -specific shares in TRQs did not qualify as a "previous representative period" 
under Article  XIII:2(d) of the GATT 1994.565 On this arguendo  basis, we consider that the relevant 
findings that we made when addressing Turkey's  claim under Article  XIII:2(d) of  the GATT 1994 
apply to Turkey's  claim under Article  5.2(a) of the Agreement on Safeguards. Therefore, Turkey has 
not established that the definitive safeguard was inconsistent with Article  5.2(a) of the 
Agreement  on Safeguards.  
 
558 Turkey's  first written submission, para.  353; second written submission, para.  242. 
559 Turkey's  second written submission, para.  242. 
560 See also United States'  third-party response to Panel question No.  9, para.  27; 
Canada's  third-party response to the Panel question No.  9, paras.  3-5; Switzerland's  third-party response to 
Panel question No . 9, paras.  13-17; and Brazil's  third-party response to Panel question No.  9, paras.  25-28.  
561 European  Union's  first written submission, para.  285 (referring to Panel Report, US – Line Pipe, 
para. 7.69); response to Panel question No.  45, para.  100. 
562 European  Union's  response to Panel question No.  45, para.  100. 
563 Turkey's  response to Panel question No.  45, paras.  95-96. 
564 Turkey's  second written submission, para.  242.  
565 We note that the parties have not argued that the notion of "a previous representati ve period" under 
Article  5.2(a) of the Agreement on Safeguards differs substantively from that under Article  XIII:2(d) of the 
GATT 1994. We need not, and do not, take any view on this issue, because Turkey has argued that the 
definitive safeguard is incons istent with Article  5.2(a) of the Agreement on Safeguards "for the same reasons" 
as those underlying Turkey's  claim under Article  XIII:2(d) of the GATT 1994, and we have disagreed with those 
reasons in addressing Turkey's  claim under Article  XIII:2(d) of t he GATT 1994.  WT/DS595/R  
 
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  7.10  Reduction  in the pace  of liberalization  and increased  restrictiveness   
7.308.   Turkey claims that the definitive safeguard was inconsistent with Articles  7.4 and 5.1 of the 
Agreement on Safeguards because the first and the second review regulations566 made it more 
restrictive and reduced its pace of liberalization .567 The European  Union contends that 
Turkey's  claims under Articles  7.4 and 5.1 of the Agreement on Safeguards ought to be rejected.568 
7.309.   In the sections below, we first address Turkey's  claim under Article  7.4 of the Agreement on 
Safeguards (section  7.10.1 ) and we then turn to Article  5.1 of the Agreement on Safeguards 
(section  7.10.2 ). 
7.10.1   Article  7.4 of the Agreement  on Safeguards   
7.310.   Turkey argues that the definitive safeguard was inconsistent with Article  7.4 of the 
Agreement on Safeguards for the following reasons:   
a. by reducing the pace of liberalization of the  TRQs from 5% at the end of the first and the 
second years of the application of the definitive safeguard (as stipulated in the definitive 
determination) to 3% at the same points in time (pursuant to the first review regulation), 
the European  Union acted i nconsistently with Article  7.4 of the Agreement on 
Safeguards569; and  
b. certain modifications made to the definitive safeguard through the first and the second 
review regulations made the definitive safeguard more restrictive than originally 
determined, inconsistently with Article  7.4 of the Agreement on Safeguards.570 
7.311.   Below, we first recall the applicable requirements of Article  7.4 of the Agreement on 
Safeguards (section  7.10.1.1 ), and we then address each of these arguments, in turn 
(sections  7.10.1.2.1  and 7.10.1.2.2 ).  
7.10.1.1   The a pplicable  requirements  of Article  7.4 of the Agreement  on Safeguards  
7.312.   The first  sentence of Article  7.4 of the  Agreement on Safeguards provides:   
In order to facilitate adjustment in a situation where the expected duration of a 
safeguard measure as notified under the provisions of paragraph  1 of Article  12 is over 
one year, the Membe r applying the measure shall progressively liberalize it at regular 
intervals during the period of application . 
7.313.   The first sentence of Article  7.4 of the  Agreement on Safeguards applies to measures with 
an expected duration of over one year. The first sente nce provides that the covered safeguard s 
"shall" be liberalized progressively at regular intervals. Thus, the first sentence imposes the 
obligation on the Member applying a covered safeguard to liberalize the measure (a)  "progressively" 
and (b) at "regular  intervals". The ordinary meaning of "progressive" includes "[p] roceeding by steps 
or stages ".571 The provision does not prescribe what the magnitude of progressive liberalization 
should be at each liberalizing step. The ordinary meaning of "regular" includ es "[r] ecurring or taking 
place repeatedly at (short) uniform intervals " and "[r] ecurring or repeated at fixed times (although 
not necessarily at uniform intervals )".572 The provision does not prescribe how long the regular 
intervals between each liberalizi ng step must be, or at what point in time the progressive 
liberalization must begin.573 The first sentence of Article  7.4 also indicates, however, that the 
 
566 See para.  2.4 above.  
567 Turkey's  first written submission, para.  355. 
568 European  Union's  first written submission, para.  306. 
569 Turkey's  first writte n submission, para.  365.  
570 Turkey's  first written submission, para.  366. 
571 Oxford Dictionar ies online, definition of "progressive ", meaning 3  
https://www.oed.com/vie w/Entry/152244?redirectedFrom=progressive#eid  (accessed 22  September  2021).  
572 Oxford Dictionaries online, definition of " regular ", meanings c and d  
https://www.oed.com/vi ew/Entry/161414?redirectedFrom=regular#eid  (accessed 22  September  2021). 
See also Panel Report, Ukraine  – Passenger  Cars, para.  7.362.  
573 Panel Report, Ukraine  – Passenger  Cars, paras.  7.363 -7.364.  WT/DS595/R  
 
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  purpose of the requirements contained in the sentence is "to facilitate adjustment" of the domestic 
industry.  
7.10.1.2   Whether Turkey has established  that the definitive safeguard is inconsistent 
with Article  7.4 of the Agreement on Safeguards  
7.10.1.2.1   Whether  the reduction  in the pace  of liberalization  was inconsistent  with 
Article  7.4 
7.314.   We recall that in the definitive determination, the European  Commission announced that it 
would increase the size of each TRQ by 5% at the end of the first and second years of the application 
of the definitive safeguard.574 Subsequently, in the first review  regulation, the European  Commission 
changed the pace of liberalization to " 3% + 3% for the second and third  year of application of the 
safeguard measures ".575  
7.315.   Turkey argues that the requirement under Article  7.4 of the Agreement on Safeguards to 
"progress ively liberalize" the safeguard "at regular intervals" implies that once the 
competent  authorities have determined a schedule of liberalization, they cannot decrease the pace 
of liberalization.576 Turkey argues that the object and purpose of Article  7.4 of the Agreement on 
Safeguards, i.e. to "facilitate adjustment", also supports Turkey's  view that Article  7.4 does not 
permit a reduction in the pace of liberalization once a schedule of liberalization has been announced, 
because a reduced pace would create a  disincentive for the domestic industry to undertake 
adjustment.577 Turkey posits that the requirement of progressive liberalization is consistent with the 
reference in the preamble of the Agreement on Safeguards to "the importance of structural 
adjustment and the need to enhance rather than limit competition in international markets".578 
Turkey argues that the immediate context provided by the second and third sentences of Article  7.4 
also supports Turkey's  view that once announced, the pace of liberalizatio n cannot be decreased.579 
On this basis, Turkey argues that the European  Union acted inconsistently with Article  7.4 of the 
Agreement o n Safeguards by reducing the pace of liberalization from 5% to 3% for the second and 
the third years of the application of  the definitive safeguard.580 
7.316.   The European  Union argues that by setting the pace of liberalization at 3% for the second 
and third  years of the application of the definitive safeguard, it fulfilled the requirement of 
progressive liberalization set out in Art icle 7.4 of the Agreement on Safeguards.581 
The European  Union contends that nothing in the text of the Agreement on Safeguards supports 
Turkey's  view that once a competent authority has determined a schedule of liberalization, it cannot 
decrease the pace o f liberalization.582 The European  Union argues that acceptance of Turkey's  view 
would imply that a Member that announces a pace of liberalization of 5% after each year of operation 
of the measure and then revises it to 3% will be found to have acted inconsistently with Articl e 7.4, 
but not a Member that applies the 3% liberalization pace after each year of operation of the measure  
without making any initial announcement. According to the European  Union, this would incentivize 
Members to announce a low pace of liberalization in itially, thus forestalling the announcement of a 
higher pace of liberalization that would provide a "more demanding signal to the domestic industry 
as regards how it is expected to adjust".583 
7.317.   Among the third parties, the Republic of Korea  takes the view th at, as there are no 
WTO disciplines governing the degree of liberalization that a Member must implement, as long as a 
safeguard measure applied for longer than one  year is liberalized at regular intervals, the degree of 
each liberalization could vary.584 For the United Kingdom, Article  7.4 of the Agreement on Safeguards 
does not prohibit a reduction in the pace of liberalization after an initial schedule of liberalization had 
 
574 Definitive determination, (Exhibit  TUR-5), recital  188; First review regulation, (Exhibit  TUR-9), 
recital  134. 
575 First review regulation, (Exhibit  TUR-9), recital  147. 
576 Turkey's  first written submission, para.  356; second written submission, paras.  247-249. 
577 Turkey's second written submission, para.  252. 
578 Turkey's  second written submission, para.  253. 
579 Turkey's  first written submission, paras.  357-358; second written submission, para.  250. 
580 Turkey's  first written submission, para.  365; second written submission, para.  254. 
581 European  Union's  first written submission, paras.  300 and 302.  
582 European  Union's  first written submission, paras.  301-302. 
583 European  Union's  first written submission, para.  302. 
584 Korea's  third-party statement, para.  31. WT/DS595/R  
 
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  been set, as long as the revised pace of liberalization results in progressive libe ralization.585 
Switzerland argues that Article  7.4 of the Agreement o n Safeguards does not permit a reduction in 
the pace of liberalization.586  
7.318.   We recall that Turkey refers to the first sentence of Article  7.4, which requires Members to 
progressively liberalize  safeguards imposed for more than a year  at regular intervals during the 
period of application , as the basis for its argument.587 The questi on before us, therefore, is whether 
the first sentence of Article  7.4 precludes a Member from reducing the rate of liberalization to be 
achieved at regular intervals after initially announcing a higher rate, as the European  Union did in 
this case. We consi der that nothing in the ordinary meaning of the text of Article  7.4 of the 
Agreement on Safeguards indicates that a Member is necessarily precluded from doing so. Article  7.4 
requires Members to "progressively liberalize … at regular intervals". As explain ed above, this means 
that there must be liberalization, in steps, at regular intervals. The liberalization of a safeguard 
measure can be "progressive", i.e. p roceeding by steps or stages , even if a Member reduces the 
magnitude of liberalization to be achie ved at "regular intervals" after initially announcing a different 
magnitude.588  
7.319.   Turkey argues that the "object and purpose of Article  7.4" is "to facilitate adjustment", and 
that a reduction in the pace of liberalization relative to the initially announced  pace is contrary to 
that object and purpose.589 Turkey refers to the observation of the panel in Ukraine  – Passenger  
Cars that "[d]elaying liberalization in this way could create a disincentive for the domestic industry 
to undertake appropriate efforts at adjustment from the outset of the period of application".590 We 
note that t he panel  in Ukraine  – Passenger  Cars expressed the concern that Turkey refers to in 
relation to the issue of a Member "not taking any liberalization steps until a late stage in the p eriod 
of application of a safeguard measure".591 That issue is not the same as the issue before us, 
i.e. whether Article  7.4 precludes a Member from reducing the magnitude of liberalization to be 
achieved at regular intervals after initially announcing a di fferent magnitude. Therefore, we consider 
Turkey 's reliance on th is observation of the panel in Ukraine  – Passenger  Cars to be inapposite.  
Aside from this reference to the panel in Ukraine  – Passenger  Cars, Turkey has not provided any 
other basis in support of its assertion that a reduction in the pace of liberalization relative to the 
initially announced pace does not facilitate adjustment. We note that even if the Member applying 
the safeguard reduces the m agnitude of liberalization to be achieved at regular intervals after initially 
announcing a different magnitude, the domestic industry will be exposed to a higher amount of 
competition from imports after each liberalization. Turkey has not shown why such l iberalization will 
not facilitate adjustment. Therefore, we disagree with Turkey's  argument concerning the objective 
of Article  7.4.  
7.320.   We recall Turkey's  argument that the context provided by the first and the second sentence 
of Article  7.4 of the Agreement  on Safeguards also supports its view that once announced, the pace 
of liberalization cannot be decreased. Referring to the report of the panel in Argentina  – 
Footwear  (EC), Turkey argues that the only modifications to a safeguard that the second and 
third sentences contemplate are those that decrease its restrictiveness.592 The second and 
third sentences of Article  7.4 provide:   
If the duration of the measure exceeds three years, the Member applying such a 
measure shall review the situation not later than t he mid -term of the measure and, if 
 
585 United  Kingdom's  third-party statement, para.  14; third -party submission, paras.  21-22. 
586 Switzerland's  third-party submission, para.  29. 
587 Turkey's  first written submission, para.  356. 
588 We note that the panel in Ukraine  – Passenger  Cars found that "a Member can … comply with its 
obligation in Article  7.4 even if it has not previously provided a timetable for progressive liberalization". (Panel  
Report, Ukraine  – Passenger  Cars, para.  7.360). The finding made by that panel accords with our 
understanding of Article  7.4 of the Agreement on Safeguards. In particular, as noted by the Republic of Korea, 
if there is no obligation in Article  7.4 to provide a timetable for liberalizatio n, it seems difficult to conclude that 
a change in the magnitude of liberalization to be achieved at "regular intervals" relative to the initially 
announced magnitude would per se be a violation of Article  7.4. (See Korea's  third-party submission, 
para. 32). 
589 Turkey's  first written submission, para.  357; second written submission, para.  252. 
590 Turkey 's second written submission, para. 252 (referring to Panel Report, Ukraine  – Passenger  Cars, 
para. 7.362).  
591 Panel Report, Ukraine  – Passenger  Cars, para.  7.362. 
592 Turkey's  first written submission, para.  358; second written submission, para.  250 (referring to Panel 
Report, Argentina  – Footwear  (EC), para.  8.303).  WT/DS595/R  
 
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  appropriate, withdraw it or increase the pace of liberalization. A measure extended 
under paragraph 2 shall not be more restrictive than it was at the end of the initial 
period, and should continue to be liberalized.  
7.321.   The second sentence applies to safeguard s whose duration exceeds three years. The second 
sentence requires the Member applying such a safeguard to withdraw the measure, or increase the 
pace of liberalization, "if appropriate" in light of a review to be perform ed not later than the mid -term 
of the measure. We note that nothing in the second sentence of Article  7.4 bears upon the question 
as to whether the pace of liberalization can be slowed relative to the initially announced pace in 
situations other than one i n which an increase in the pace of liberalization is found to be "appropriate" 
pursuant to a review of a measure the duration of which exceed three years.  Therefore, we do not 
consider that the context provided by the second sentence of Article  7.4 support s the view that the 
first sentence of Article  7.4 necessarily precludes a reduction in the pace of liberalization of a 
safeguard measure relative to the initially announced pace.  
7.322.   The third sentence of Article  7.4 applies to "[a] measure extended under para graph 2", 
i.e. a safeguard that is extended beyond the duration of four years in accordance with Article  7.2 of 
the Agreement on Safeguards. The third sentence stipulates that such a measure shall not be more 
restrictive than it was at the end of the initi al period of application. Although this sentence 
contemplates an upper limit to the restrictiveness of a certain category of safeguard s, in respect of 
liberalization the sentence only states that the measure "should continue to be liberalized". This 
senten ce says nothing about the pace of liberalization even in relation to the specific type of 
safeguard s to which it applies. Thus, we do not see anything in the third  sentence of Article  7.4 that 
supports Turkey's  view that the first sentence of Article  7.4 necessarily precludes a reduction in the 
pace of liberalization relative to the initially announced pace.  
7.323.   We also consider that Turkey's  reliance on the observation of the panel in 
Argentina  – Footwear  (EC) that "[t]he only modifications of safeguard measur es that Article  7.4 
contemplates are those that reduce  its [sic] restrictiveness (i.e., to eliminate the measure or to 
increase the pace of its liberalisation pursuant to a mid -term review)" to be inapposite.593 The panel 
made this observation in the context of its evaluation of a claim under Article  12 of the 
Agreement  on Safeguards concerning Argentina's  alleged failure to notify certain modifications to 
the safeguard at issue that, in the EC's  view, made the m easure more restrictive than originally 
applied. The panel noted that the Agreement on Safeguards does not contemplate restrictive 
modifications to a safeguard, and hence does not contain notification requirements for such 
modifications. However, the panel  explicitly declined to express a view as to the substantive 
compliance of such modifications with Article  7 of the Agreement on Safeguards.594 Thus, the panel 
report referred to by Turkey does not support Turkey's  arguments concerning the Article  7.4 claim . 
7.324.   We are therefore not persuaded that the first sentence of Article  7.4 precludes a Member 
from reducing the magnitude of liberalization to be achieved at regular intervals after initially 
announcing a different magnitude.  
7.325.   Turkey contends that the Europea n Commission's adjustment of the pace of liberalization on 
the ground that the liberalization foreseen in the definitive determination could cause the import 
volume in the third year of the application to reach the same level as that in 2018, was improper.595 
Agreeing with Switzerland, Turkey contends that adjusting the pace of liberalization based on 
developments after the imposition of the definitive safeguard that are unrelated to the increased 
imports on the basis of which the safeguard was applied, woul d fail to achieve the purpose of 
facilitating adjustment to the new competitive conditions caused by the increased imports.596 
Pursuant to the said adjustment, even though the TRQs would be liberalized by 3% for the second 
and the third years of the definit ive safeguard's  application instead of 5% as foreseen in the 
definitive determination, the domestic industry would nevertheless be exposed to higher levels of 
import competition because of that liberalization. Turkey has neither explained nor pointed to 
anything in the record evidence that would show why such liberalization would not facilitate 
adjustment of the domestic industry in this case.  
 
593 Panel Report, Argentina  – Footwear  (EC), para.  8.303. (emphasis original)  
594 Panel Report, Argent ina – Footwear  (EC), para.  8.303.  
595 Turkey'  second written submission, para.  255. 
596 Turkey's  second written submission, para.  257. WT/DS595/R  
 
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  7.326.   Thus, we disagree with Turkey's  argument that by reducing the pace of liberalization of the 
TRQs from 5% for the s econd and the third years of the definitive safeguard's  application as 
stipulated in the definitive determination, to 3% through the first review regulation, the 
European  Union made the definitive safeguard inconsistent with Article  7.4 of the Agreement on  
Safeguards.  
7.10.1.2.2   Whether  certain  modifications  to the definitive  safeguard  resulted  in an 
inconsistency  with Article  7.4  
7.327.   Turkey argues that the definitive safeguard is inconsistent with Article  7.4 of the 
Agreement  on Safeguards because certain modifications introduced with the first and second review 
regulations made it more trade restrictive than originally determined.597 The European  Union argues 
that the modifications to the definitive safeguard made through the first and second review 
regulat ions are consistent with Article  7.4 of the Agreement on Safeguards.598  
7.328.   Among the third parties, Switzerland argues that the Panel must assess whether the 
modifications that Turkey points to made the safeguard more restrictive and, if so, it must conclude 
that such modifications are inconsistent with Article  7.4 of the Agreement on Safeguards.599 
7.329.   Turkey identifies the following  modifications to the definitive safeguard , made through the 
first and the second review regulations , as having made the definitive s afeguard more restrictive 
than originally determined :  
a. the establish ment of  a limitation for each exporting country not to exceed a share of 30% 
of the global TRQ for product category 1600; 
b. the restriction of  imports under product category 4.B to those expo rters that could 
demonstrate an end -use in the automotive sector601;  
c. the imposition of  a cap of 30% per country on the use of the global TRQ for product 
categor ies 13 and 16602;  
d. the reduction  of the pace of liberalization603;  
e. the decision to manage country -specific TRQs on a quarterly basis604;  
f. the division of the global TRQ for product category 1 into country -specific TRQs and a 
residual TRQ605; and  
g. the revision of the system of access to the residual TRQ during the last quarter for the 
third year o f the definitive safeguard for countries having a country -specific TRQs.606  
7.330.   We note that in respect of all the modifications listed in the previous paragraph, apart from 
items (b) and (d), Turkey has only identified the modifications concerned and asserted  that the 
modifications made the definitive safeguard more restrictive than originally determined  in a manner 
inconsistent with Article  7.4 of the Agreement on Safeguards. We do not consider that the mere 
identification of these modifications is sufficient , without any accompanying explanation, to 
demonstrate that the modifications made the definitive safeguard more restrictive than originally 
determined in a manner inconsistent with Article  7.4 of the Agreement on Safeguards. We therefore 
consider that Tur key has not established a prima  facie case that the modifications identified in 
 
597 Turkey's  first written submission, para.  366; second written submission, para.  263. 
598 European  Union's  first written submission, para.  305. 
599 Switzerland's  third-party submission, para.  31. 
600 First review regulation , (Exhibit  TUR-9), Article  1(1)(a), recital 26. 
601 First review regulation , (Exhibit  TUR-9), Article  1(1)(a), recitals  29-40. 
602 First review regulation , (Exhibit  TUR-9), Article  1(1)(b), recital  94. 
603 First review regulation , (Exhibit  TUR-9), Article  1(2)(b), recital  156.  
604 Second review regulation, ( Exhibit  TUR-12), Article  1(1)(a) and Annex II, recital  40. 
605 Second review regulation, ( Exhibit  TUR-12), Article  1(1)(a) and Annex II, recital  49. 
606 Second review regulation, ( Exhibit  TUR-12), Article  1(1)(b) and Annex III, recital 88. WT/DS595/R  
 
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  items  (a), (c), (e), (f), and (g) above made the definitive safeguard more restrictive than originally 
determined in a manner inconsistent with Article  7.4 of the Agreement on Safeguards.  
7.331.   We therefore turn to address Turkey's  argument concerning the modification to the definitive 
safeguard listed in item (b) in paragraph  7.329  above, namel y the restriction of  imports under 
product category 4.B to those exporters that could demonstrate an end -use in the automotive sector . 
In the first review regulation, the European  Commission introduced a requirement for importers to 
demonstrate that the pr oduct concerned was intended for end -use in the automotive sector, in order 
to be categorized in product category 4.B (automotive end -use requirement).607 At the same time, 
the European  Commission extended and revised the scope of product category 4.A to en sure that 
products that were no longer eligible to be categorized in product category 4.B could be categorized 
as belonging to product category  4.A.608 Turkey argues that with the introduction of the automotive 
end-use requirement, the access to the TRQ for  product category 4.B became more burdensome, 
and thus more restrictive than originally determined and therefore inconsistent with Article  7.4 of 
the Agreement on Safeguards.609 
7.332.   We note, and the parties confirmed610 in response to a question from the Panel, that the 
automotive end -use requirement was revoked retroactively through the amending regulation of 
15 January 2020 , less than four months after being introduced through the first review regulation, 
which entered  into force on 1  October  2019.611 Given that the automotive end -use requirement is 
no longer in force, we need not consider Turkey's  argument concerning the automotive end -use 
requirement in order to resolve the present dispute, and we decline to do so.  
7.333.   As regards Turkey's  argument concerning item (d) in paragraph  7.329  above, namely the 
reduction in the initially announced  pace of liberalization , we have already rej ected 
Turkey's  arguments concerning the consistency of this modification with Article  7.4 of the 
Agreement  on Safeguards in section  7.10.1.2.1  above.  
7.10.2   Article  5.1 of the Agreement  on Safeguards  
7.334.   Turkey argues that by making the definitive safeguard more restrictive than originally 
determined and by reducing the pace of liberalization through the first and the second review 
regulations, the European  Union failed to apply the definitive measure only to the extent necessary 
to prevent serious injury and to facilitate adjustment, thus acting inconsistently with Article  5.1 of 
the Agreement on Safeguards.612 Specifically, Turkey argues that by increasing the restrictivene ss 
and reducing the pace of liberalization of the definitive safeguard when the assessment of injury or 
threat thereof remained the same, the European  Union no longer applied the definitive safeguard 
only to the extent "necessary to prevent or remedy serio us injury".613 Further, according to Turkey, 
by making the definitive safeguard more restrictive and reducing the pace of liberalization, the 
European  Union also created a disincentive for the domestic industry to undertake appropriate 
efforts at adjustment .614  
7.335.   The European  Union contends that the Panel must reject Turkey's  claim under Article  5.1 of 
the Agreement on Safeguards.615 
7.336.   We note that Turkey relies on the same facts and arguments to support its claim under 
Article  5.1 of the Agreement on Safeguards as it did to support its claim under Article  7.4 of the 
Agreement on Safeguards, addressed in section  7.10.1.2  above. We found above in 
 
607 First review regulation, (Exhibit  TUR-9), recital  35. 
608 First review regulation, (Exhibit  TUR-9), recital  37. 
609 Turkey's  second written submission, para.  262. 
610 Turkey's  response to Panel question No.  53, para.  1; European  Union's  response to Pan el question 
No. 53, para.  7. 
611 European Commission Implementing Regulation (EU) 2020/35 , (Exhibit  TUR-10), recital  9 ("[t] he 
present Regulation should be  given retroactive effect, thereby revoking, as from 1  October  2019, the end -use 
requirement introduced by the amending Regulation "); First review regulation, (Exhibit  TUR-9), Article  3, 
recital  36.  
612 Turkey's  first written submission, para.  367. We recall that Turkey also presented other arguments in 
support of its claim under Article  5.1, which  we have examined separately, in section  7.8.1 above.  
613 Turkey's  first written submission, para.  367. 
614 Turkey's  first written submission, para.  367. 
615 European  Union's  first written submission, para.  306. WT/DS595/R  
 
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  section  7.10.1.2.2  that Turkey did not provide any explanation as to how the relevant modifications 
to the definitive safeguard made through the first and the second review regulations that Turke y 
points to made the measure more restrictive in a manner that would give rise to an inconsistency 
with Article  7.4 of the Agreement on Safeguards.616 We also rejected in section  7.10.1.2.1  
Turkey's  contention that the reduction in the pace of liberalization of the definitive safeguard 
necessarily creates a disincentive for the domestic industry to undertake adjustment. Given that 
Turkey's  claim under Article  5.1 rests  on the same grounds and suffers from the same flaws, we find 
that Turkey has not establish ed that the European  Union acted inconsistently with Article  5.1 of the 
Agreement on Safeguards.  
7.11  Article  II:1 of the GATT  1994  
7.337.   Turkey also claims that the definitive  safeguard is inconsistent with Article  II:1(b) of the 
GATT 1994. Turkey argues that the 25% out -of-quota duty set out in the definitive safeguard 
constitutes "other duties or charges" within the meaning of Article  II:1(b), and that as a result of 
the clai med inconsistencies with Article  XIX:1(a) of the GATT 1994, those duties or charges are not 
excused by Article  XIX and are therefore inconsistent with Article  II:1(b).617 
7.338.   We recall that we have already found that the definitive safeguard (i) is inconsistent  with 
Article  XIX:1(a), because the European  Commission did not establish that the increase in imports 
was "as a result of" the unforeseen developments it relied upon and  did not identify the obligations 
whose effect resulted in the injurious increase in i mports, and (ii) is inconsistent with Article  4.1(b) 
of the Agreement on Safeguards, because it rests on a determination of threat of injury that is not 
"based on facts". In view of this, we do not find it necessary to examine whether, for the same 
reasons , the definitive safeguard is also inconsistent with Article  II:1 of the GATT 1994.  
8  CONCLUSIONS,  RECOMMENDATION,  AND REQUEST  FOR A SUGGESTION  
8.1.  For the reasons set out in this Report, we conclude as follows:  
a. Turkey has established  that the definitive safeguard is inconsistent with:  
i. Article  XIX:1(a) of the GATT 1994, because the European Commission did not 
ascertain that the increase in imports to ok place as a result of the 
unforeseen  developments it had identified, and did not identify in its published reports 
the obligations whose effect resulted in the increase in imports; and  
ii. Article  4.1(b) of the Agreement on Safeguards, because two central el ements of the 
European  Commission's  determination of a threat of serious injury were not "based on 
facts" as required by that provision.  
b. Turkey has not established  that the definitive safeguard is inconsistent with:  
i. Article  XIX:1(a) of the GATT 1994 and Ar ticles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 
4.2(c) of the Agreement on Safeguards because of the 
European  Commission's  approach to product scope;  
ii. Article  XIX:1(a) of the GATT 1994 and Articles  2.1 and 4.2(a) of the Agreement on 
Safeguards because of alleg ed errors in the European Commission's determination of 
an increase in imports;  
iii. Article  5.1 of the Agreement on Safeguards because the European Commission did not 
take into account data from the first six months of 2018 in determining the size of the 
TRQs,  or because of the double remedy regulation, or because the European Union 
reduced the pace of liberalization or allegedly made the measure more restrictive;  
 
616 As noted in para.  7.332  above, we need not make findings on Turkey's  arguments concerning the 
automotive end -use requirements as that requirement is no longer in force.  
617 Turkey's  first written submission, paras.  375-380. WT/DS595/R  
 
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  iv. Article XIII:2(d) and the chapeau  of Article  XIII:2 of the GATT 1994 and Article  5.2(a) 
of the Agreement  on Safeguards because the European  Commission did not take into 
account data from the first six months of 2018 in allocating the TRQs;  and 
v. Article  7.4 of the Agreement on Safeguards be cause the European Union reduced the 
pace of liberalization and allegedly made the measure more restrictive .  
c. We do not consider it necessary to decide whether the definitive safeguard is inconsistent 
with: 
i. Article s 4.1(a) and 4.2(a) of the Agreement on Sa feguards  for reasons substantively 
identical to those put forward under Article  4.1(b)  of the Agreement on Safeguards ; 
ii. Article  2.1 of the Agreement on Safeguards  as a consequence of the inconsistency with 
Article  4.1(b)  of the Agreement on Safeguards ; 
iii. Article  4.2(b) of the Agreement on Safeguards because of errors in the determination 
of causation ; 
iv. Articles  2.1, 5.1, and 7.1  of the Agreement on Safeguards  as a con sequence of the 
claimed inconsistency with Article  4.2(b)  of the Agreement on Safeguards ; and  
v. Article  II:1(b) of the GATT 1994  as a consequence of the inconsistency with 
Article  XIX:1(a) of the GATT 1994 . 
d. The automotive end -use requirement is no longer in  force, and we do not consider it in 
reviewing the definitive safeguard . 
e. The provisional safeguard is no longer in force , and we do not make findings on its 
consistency with the covered agreements .  
8.2.  Under Article  3.8 of the DSU, "where there is an infringe ment of the obligations assumed under 
a covered agreement, the action is considered prima facie  to constitute a case of nullification or 
impairment ". We conclude that, to the extent that the definitive safeguard is  inconsistent with the 
GATT 1994 and the Agreement on Safeguards, it has  nullified or impaired benefits accruing to Turkey 
under those  agreement s. 
8.3.  Pursuant to Article  19.1 of the DSU, we recommend that the European Union bring its measure 
into conformity w ith the Agreement on Safeguards and the GATT 1994.  
8.4.  In addition to requesting recommendations, Turkey asks us to suggest that the European  Union 
implement our recommendation by revoking the safeguard at issue, pursuant to Article  19.1 of the 
DSU.618 
8.5.  Article  19.1 of the DSU contains two  prongs. First, "[w]here a panel or the Appellate Body 
concludes that a measure is inconsistent with a covered agreement, it shall recommend that the 
Member concerned bring the measure into conformity with that agreement ".619 Thus, panels are 
required to make such a recommendation when an inconsistency is established. Second, "[i]n 
addition … the panel or Appellate Body may suggest ways in which the Member concerned could 
implement the recommendations".620 Thus, suggestions are add itional to recommendations, and the 
choice whether to make such suggestions falls squarely within the discretion of each panel.621  
 
618 Turkey's  first written submission, para.  382. 
619 Emphasis added; fn omitted.  
620 Emphasis added.  
621 See also e.g. Appellate  Body Report, US – Continued  Zeroing , para.  389. WT/DS595/R  
 
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  8.6.  Some panels have made suggestions under Article  19.1 of the DSU.622 Others have preferred 
to decline to do so, reasoning in pa rticular that the choice on the manner of implementation is, in 
the first place, for the Member concerned.623  
8.7.  In this case, we decline to make a suggestion under Article  19.1 of the DSU.  
__________  
 
 
 
622 Panel Reports, Argentina  – Poultry  Anti-Dumping  Duties , paras.  8.3-8.7; US – Offset  Act 
(Byrd  Amendment) , para.  8.6; US – Cotton  Yarn, paras.  8.4-8.5; Guatemala  – Cement  II, paras.  9.4-9.6; US – 
Underwear , paras.  8.1-8.3; Mexico  – Steel Pipes and Tubes , paras.  8.7-8.12; Ukraine  – Passenger  Cars, 
paras.  8.7-8.8; US – Lead and Bismuth  II, para.  8.2; India – Quantitative  Restrictions , paras.  7.1-7.7; EC – 
Bananas  III (Article  21.5 – Ecuador) , paras.  6.154 -6.159; EC – Trademarks  and Geographical  Indications  
(Australia)  and EC – Trademarks  and Geographical  Indications  (US), paras.  8.4-8.5; EC – Export  Subsidies  on 
Sugar  (Australia),  EC – Export  Subsidies  on Sugar  (Brazil),  and EC – Export  Subsidies  on Sugar  (Thailand) , 
paras.  8.6-8.8; and Pakistan  – BOPP  Film (UAE)  [appealed by Pakistan 22  February  2021] , para.  9.6. 
623 See e.g. Panel Report, Australia  – Anti-Dumping Measures on Paper , para.  8.6.