WT/DS591/7  
 
10 October 2022  
(22-7585) Page: 1/93 
  Original: English  
 
COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES  
FROM BELGIUM, GERMANY AND THE NETHERLANDS  
NOTIFICATION OF AN APPEAL BY COLOMBIA UNDER ARTICLE 25 OF THE UNDERSTANDING ON 
RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),  
PARAGRAPH 5 OF THE AGREED PROCEDURES FOR ARBITRATION  
UNDER ARTICLE 25 OF THE DSU (THE "AGREED PROCEDURES")  
AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 6 October 2022, from the delegation of Colombia, is b eing 
circulated to Members.  
 
_______________  
 
 
Notification of an Appeal by Colombia under Article 25 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes ("DSU"), paragraph 5 of the Agreed Procedures 
for Arbitration under Arti cle 25 of the DSU (the "Agreed Procedures") and Rule 20 of the Working 
Procedures for Appellate Review  
 
Pursuant to paragraph 5 of the  Agreed Procedures1, Colombia hereby notifies the Dispute Settlement 
Body of its decision to initiate an arbitration unde r Article 25 of the DSU with regard to certain issues 
of law and legal interpretation covered in the Panel Report in the dispute Colombia – Anti-Dumping 
Duties on Frozen Fries from Belgium, Germany and the Netherlands . 
Pursuant to paragraph 5 of the  Agreed  Procedures and Rule 20(1) of the Working Procedures for 
Appellate Review, Colombia simultaneously files this Notice of Appeal and its Appellant Submission 
with the European Union and the third parties in the panel proceedings and with the WTO Secretariat.  
The Notice of Appeal includes the final report of the Panel in the working languages of the WTO.  
For the reasons elaborated in its Appellant Submission to the Arbitrators, Colombia appeals and 
requests the Arbitrators to reverse the findings, conclusions and recommendations of the Panel, with 
respect to the following errors of law and legal interpretation contained in the Panel Report2:  
1. The Panel erred in the interpretation and application of Article 5.3 as well as Article 5.2(ii), 
as requiring an applicant that presents third -country sales price as a basis for determining 
normal value to explain why it is “appropriate” that the application does not rely on domestic 
sales prices.3  The Panel similarly erred in finding that an investiga ting authority must, under 
Articles 5.2(iii) and 5.3, examine whether the use of third -country sales prices, instead of 
domestic sales prices, was "appropriate" in the specific facts and circumstances of the 
investigation, in order to satisfy the “accuracy ” and “adequacy” requirement in Article 5.3.  
Accordingly, Colombia requests the Arbitrators to reverse the Panel’s findings in paragraphs 
7.75, 7.78, 7.79, and 8.1.a.iii.  
 
1 WT/DS591/3/Rev.1, 22 April 2021.  
2 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , which apply mutatis 
mutandis  pursuant to paragraph 11 of the Agreed Procedures , this Notice of Appeal includes an indicative list of 
the para graphs of the Panel Report containing the alleged errors, without prejudice to Colombia's ability to 
refer to other paragraphs of the Panel Report during the arbitration proceedings.  
3 Panel Report, paras. 7.75, 7.78, 7.79, and 8.1.a.iii.  WT/DS591/7  
 
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  2. The Panel erred in the interpretation and application of Article 6.5 of the Anti -Dumping 
Agreement by finding that the investigating authority treated certain information in the 
revised application for the investigation as "confidential" without receiving a showing of 
"good cause".4 As that information was never treated as confidential, the Panel erred in 
finding that the authority was under an obligation to require and assess a showing of "good 
cause" within the meaning of Article 6.5. Accordingly, Colombia requests that the Arbitrators 
reverse the Panel's finding in paragraphs 7.126, 7. 152.a., and 8.1.b.i. of its Report that the 
investigating authority acted inconsistently with Article 6.5 of the Anti -Dumping Agreement.  
3. The Panel erred in the interpretation and application of Article 6.2 of the DSU by finding that 
the European Union’s c laim under Article 2.4 of the Anti -Dumping Agreement pertaining to 
packaging costs was within the Panel’s terms of reference.5  The Panel incorrectly held that 
the claim developed by the European Union before the Panel was the same as the claim 
pertaining  to an exporter's packaging costs that was contained in the panel request (but not 
developed before the Panel).  By treating these two issues as different arguments regarding 
the same claim in the panel request, rather than as different claims, the Panel e rred under 
Article 6.2.  Colombia requests that the Arbitrators reverse the Panel’s finding under Article 
6.2 of the DSU and consequently also declare moot and of no legal effect the Panel’s 
substantive finding under Article 2.46.   
Should the Arbitrators  agree with Colombia under Article 6.2 of the DSU, but consider that 
part of the Panel’s substantive finding still stands because it is based also on the European 
Union’s claim pertaining to the adjustment request, Colombia requests the Arbitrators to 
reverse the Panel’s finding under Article 2.4 of the Anti -Dumping Agreement based on the 
packaging adjustment issue7, on the ground that the Panel improperly made the case for 
the European Union and relieved it of its burden of proof. The European Union made no 
prima facie  case under Article 2.4 on the packaging adjustment issue.   
4. The Panel erred in the interpretation and application of Articles 3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping Agreement by finding that the term "dumped imports" ( importaciones objet o 
de dumping , in Spanish) does not include the imports from exporters that have a positive,  de 
minimis  dumping margin.8 The Panel ignored the ordinary meaning of the term "dumped 
imports" based on the definition of "dumping" in Article 2.1 of the Anti -Dumping Agreement. 
The Panel also ignored the immediate context provided in Article 3.5 and, instead, placed 
undue reliance on Article 5.8 to conclude that the term "dumped imports" does not include 
imports with  de minimis  dumping margins. Accordingly, Colomb ia requests the Arbitrator to 
reverse the Panel's finding in paragraphs  7.303, 7.307, and 8.1.e.i. of its Report that the 
investigating authority  acted inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -
Dumping Agreement by including in its in jury and causation determination imports from 
those exporters subject to positive,  de minimis  dumping margins.  
Pursuant to Rule 20(2)(c) of the Working Procedures for Appellate Review, the service address, 
telephone and facsimile numbers of Colombia are:  
Permanent Mission of Colombia to the WTO  
Rue de Lausanne 80 -82 
1202 Geneva  
Tel: + 41 22 919 05 10   
Fax: + 41 22 734 60 94  
 
_______________  
 
 
 
4 Panel Report, p aras. 7.126, 7.152.a., and 8.1.b.i.  
5 Panel Report, paras. 7.232, 7.233, 7.244, and 8.1.d.ii.  
6 Panel Report, paras. 7.244 and 8.1.d.iii.  
7 Panel Report, paras. 7.241, 7.244, and 8.1.d.iii.  
8 Panel Report, paras. 7.303, 7.307, and 8.1.e.i.  WT/DS591/7  
 
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COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM  
BELGIUM, GERMANY AND THE NETHERLANDS  
REPORT  OF THE PANEL  WT/DS591/7  
 
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  TABLE  OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ....... 13 
1.1   Complaint by the European  Union  ................................ ................................ ...............  13 
1.2   Panel establishment  and composition  ................................ ................................ ..........  13 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 13 
1.3.1    General  ................................ ................................ ................................ ................  13 
1.3.2    Working Procedures on Business Confidential Information  ................................ ...........  16 
1.3.3    Agreed procedures for arbitration under Article  25 of the DSU  ................................ ..... 16 
2   FACTUAL ASPECTS:  THE MEASURES AT ISSUE  ................................ ..........................  16 
3   PARTIE S' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ...............................  17 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ..................  18 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ....... 18 
6   INTERIM REVIEW  ................................ ................................ ................................ ..... 18 
7   FINDINGS  ................................ ................................ ................................ ................  19 
7.1   General issues relating to treaty interpretation, the standard of review,  
and burden of proof  ................................ ................................ ................................ .........  19 
7.1.1    Treaty interpretation  ................................ ................................ ..............................  19 
7.1.2    Standard  of review ................................ ................................ ................................ . 19 
7.1.3    Burden of proof  ................................ ................................ ................................ ..... 20 
7.2   Claims under Article  5.3 of the Anti -Dumping Agreement: the initiation of  
the investigation  ................................ ................................ ................................ ..............  20 
7.2.1    Introduction  ................................ ................................ ................................ ..........  20 
7.2.2    Applicable requirements  under Article  5.3 of the Anti -Dumping Agreement  ...................  21 
7.2.3    Definition of the product  under consideration  ................................ ............................  22 
7.2.3.1    Introduction  ................................ ................................ ................................ ....... 22 
7.2.3.2    Analysis  ................................ ................................ ................................ .............  23 
7.2.3.3    Conclusion  ................................ ................................ ................................ .........  27 
7.2.4    Representativeness  of the applicant  ................................ ................................ .........  27 
7.2.4.1    Introduction  ................................ ................................ ................................ ....... 27 
7.2.4.2    Analysis  ................................ ................................ ................................ .............  28 
7.2.4.3    Conclusion  ................................ ................................ ................................ .........  32 
7.2.5    Evidence used to determine the normal value  ................................ ...........................  32 
7.2.5.1    Introduction  ................................ ................................ ................................ ....... 32 
7.2.5.2    Analysis  ................................ ................................ ................................ .............  33 
7.2.5.3    Conclusion  ................................ ................................ ................................ .........  38 
7.2.6    Evidence relied upon for the injury analysis ................................ ...............................  38 
7.2.6.1    Introduction  ................................ ................................ ................................ ....... 38 
7.2.6.2    Analysis  ................................ ................................ ................................ .............  39 
7.2.6.3    Conclusion  ................................ ................................ ................................ .........  41 
7.2.7    Evidence concerning causation  ................................ ................................ ................  42 WT/DS591/7  
 
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  7.2.7.1    Introduction  ................................ ................................ ................................ ....... 42 
7.2.7.2    Analysis  ................................ ................................ ................................ .............  42 
7.2.7.3    Conclusion  ................................ ................................ ................................ .........  45 
7.2.8    Overall conclusion under Article  5.3 ................................ ................................ .........  45 
7.3   "Consequential" claim  under Article  5.8 of the Anti -Dumping Agreement  .........................  45 
7.4   Claims under Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement:  
MINCIT's  confidential treatment of certain information  ................................ ..........................  46 
7.4.1    Introduction  ................................ ................................ ................................ ..........  46 
7.4.2   Applicable requirements under Articles  6.5 and 6.5.1 of the Anti -Dumping  Agreement  ...... 47 
7.4.3    Whether Colombia acted inconsistently with Article  6.5 with respect to the redacted 
information in section  d(i) of FEDEPAPA's  revised application  ................................ .................  49 
7.4.4    Whether Colombia acted inconsistently with Article  6.5.1 with respect to the redacted 
information in section  d(i) of FEDEPAPA's  revised application  ................................ .................  52 
7.4.5    Whether Colombia acted inconsistently with Article  6.5 with respect to  the information  
in annex  10 of FEDEPAPA's  revised application ................................ ................................ .... 52 
7.4.6    Whether Colombia acted inconsistently with Article  6.5.1 with respect to the annex  10 
information in FEDEPAPA's  revised application  ................................ ................................ ..... 56 
7.4.7    Conclusion  ................................ ................................ ................................ ............  58 
7.5   Claims under Article  2.1, Article  6.8, and Annex II of the Anti -Dumping Agreement:  
MINCIT's alleged use of facts available  ................................ ................................ ...............  59 
7.5.1    Introduction  ................................ ................................ ................................ ..........  59 
7.5.2    Applicable requirements under Article  6.8 and paragraphs 3 and 6 of Annex II  ..............  60 
7.5.3    Analysis  ................................ ................................ ................................ ................  61 
7.5.4    Conclusion  ................................ ................................ ................................ ............  68 
7.6   Claims under Article  2.4 of the Anti -Dumping Agreement:  MINCIT's assessment of the 
exporters' requests for adjustments  ................................ ................................ ...................  69 
7.6.1    Introduction  ................................ ................................ ................................ ..........  69 
7.6.2    Applicable requirements under Article  2.4 of the Anti -Dumping  Agreem ent ...................  69 
7.6.3    MINCIT's  assessment of the exporters'  requests for product mix -related adjustments  .... 70 
7.6.3.1    Introduction  ................................ ................................ ................................ ....... 70 
7.6.3.2    Analysis  ................................ ................................ ................................ .............  71 
7.6.3.3    Conclusion  ................................ ................................ ................................ .........  73 
7.6.4    MINCIT's  assessment of Mydibel's  request for a packaging cost -related adjustment  ....... 73 
7.6.4.1    Introduction  ................................ ................................ ................................ ....... 73 
7.6.4.2    Analysis  ................................ ................................ ................................ .............  73 
7.6.4.2.1    The Panel's  terms of reference  ................................ ................................ ...........  74 
7.6.4.2.2    MINCIT's  basis for declining Mydibel's  adjustment request  ................................ ..... 75 
7.6.4.3    Conclusion  ................................ ................................ ................................ .........  77 
7.6.5    MINCIT's  assessment of Agrarfrost's  request for an oil cost -related adjustment  .............  78 
7.6.5.1    Introduction  ................................ ................................ ................................ ....... 78 
7.6.5. 2   Analysis  ................................ ................................ ................................ .............  78 
7.6.5.3    Conclusion  ................................ ................................ ................................ .........  83 WT/DS591/7  
 
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  7.6.6    Alleged failure to specify necessary information and imposition of an  unreasonable  
burden of proof  ................................ ................................ ................................ ................  83 
7.6.7    Conclusion  ................................ ................................ ................................ ............  83 
7.7   Claims under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement:  
MINCIT's  injury and causation determinations  ................................ ................................ ..... 83 
7.7.1    Introduction  ................................ ................................ ................................ ..........  83 
7.7.2    The European  Union's  "overarching" error claim under Articles  3.1, 3.2, 3.4, and 3.5  
of the Anti -Dumping  Agreement  ................................ ................................ ........................  84 
7.7.3    European  Union's  other claims under Articles  3.1, 3.2, 3.4, and 3.5  .............................  90 
7.7.4    Conclusion  ................................ ................................ ................................ ............  90 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ .. 91 WT/DS591/7  
 
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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 o f the Panel concerning  Business Confidential 
Information  11 
Annex  A-3 Additional Working Procedures of the Panel for virtual participation at the  
first substantive meeting  13 
Annex  A-4 Additional Working Procedures of the Panel for virtual participation at the  
second s ubstantive meeting  16 
Annex A -5 Additional Working Procedures of the Panel  to facilita te arbitration under 
Article  25 of the DSU  19 
Annex  A-6 Interim Review  20 
ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European  Union  24 
Annex  B-2 Integrated executive summary of the arguments of Colombia  33 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of Japan  64 
Annex  C-3 Integrated executive summary of the arguments of the United  States  69 
 
  WT/DS591/7  
 
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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 – 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 
Canada – Welded Pipe  Panel Report, Canada – Anti-Dumping Measures on Imports of Certain Carbon 
Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu , WT/DS482/R  and Add.1, adopted 25 January 2017, DSR 
2017:I, p. 7 
China – Broiler Products 
(Article  21.5 – US) Panel Report, China − Anti-Dumping a nd Countervailing Duty Measures on 
Broiler Products from the United States – Recourse to Article  21.5 of the DSU 
by the United States , WT/DS427/RW  and Add.1, adopted 28 February 2018, 
DSR 2018:II, p. 839 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance Stainless 
Steel Seamless Tubes ("HP -SSST") from the European  Union , WT/DS454/AB/R  
and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28 October 2015, DSR 
2015:IX, p. 4573 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Panel Reports, China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China  – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST") from the European  Union , 
WT/DS454/R  and Add.1 / WT/DS460/R , Add.1 and Corr.1, adopted 
28 October  2015, as modified by Appellate Body Reports WT/DS454/AB/R / 
WT/DS460/AB/R, DSR 2015:IX, p. 4789 
EC – Bed Linen  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India , WT/DS141/R , adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS1 41/AB/R, DSR 2001:VI, p. 2077 
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September  2005, and Corr.1, DSR 2005:XIX, p. 9157 
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28  July 2011, DSR 2011:VII, p. 3995 
EC – Fasteners (China ) Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 
28 July 2011, as modified by Appellate Body Re port WT/DS397/AB/R, DSR 
2011:VIII, p. 4289 
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February  2016, DSR 2016:I, p. 7 
EC – Hormones  Appellate Body Report, European Communities – Measures Concerning Meat and 
Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February  1998, DSR 1998:I, p. 135 
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 J anuary 2008, and Corr.1, DSR 
2008:I, p. 3 
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast 
Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 18 August 2003, 
as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701 
EU – Cost Adjustment 
Methodologies I I (Russia)  Panel Report, European  Union – Cost Adjustment Methodologies and Certain 
Anti-Dumping Measures on Imports from Russia (Second Complaint) , 
WT/DS494/R  and Add.1, circulated to WTO Members 24  July 2020 [appealed; 
adopt ion pending ] 
EU – Footwear (China)  Panel Report, European  Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22 February 2012, DSR 2012:IX, p. 4585 
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 
Japan – Alcoholic 
Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1  November  1996, DSR 1996:I, p. 97 
Korea – Certain Paper  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R , adopted 28 November 2005, DSR 2005:XXII, p. 10637  
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 WT/DS591/7  
 
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  Short Title  Full Case Title and Citation  
Korea – Pneumatic Valves 
(Japan)  Appellate Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves from 
Japan , WT/DS504/AB/R  and Add.1, adopted 30 September 2019, DSR 2019 :XI, 
p. 5637 
Korea – Pneumatic Valves 
(Japan)  Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan , 
WT/DS504/R  and Add.1, adopted 30 September 2019, as modified by Appellate 
Body Report WT/DS504/AB/R, DSR 2019:XI, p. 5935 
Korea – Stainless Steel 
Bars Panel Report,  Korea – Sunset Review of Anti -Dumping Duties  on Stainless Steel 
Bars, WT/DS553/R  and Add.1, circulated to WTO Members 3 0 November  2020 
[appealed; adoption pending ] 
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December  2005, DSR 2005:XXII, p. 10853  
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup 
(HFCS) from the United States , WT/DS132/R , adopted 24 February 2000, and 
Corr.1, DSR 2000:III, p. 1345 
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 
Morocco – Definitive AD 
Measures on Exercis e 
Books (Tunisia)  Panel Report, Morocco – Definitive Anti -Dumping Measures on School Exercise 
Books from Tunisia , WT/DS578/R  and Add.1 , circulated to WTO Members 
27 July 2021 [appealed; adopt ion pending]  
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; adoption pending]  
Russia – Commercial 
Vehicles  Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add.1, adopted 9 April 2018, as modified 
by Appellate Body Report WT/DS479/AB/R, DSR 2018:III, p. 1329 
US – Countervailing 
Measures (China)  Appellate Body Report, United States – Countervailing Duty Measures on Certain 
Products from China , WT/DS437/AB/R , adopted 16 January 2015, DSR 2015:I, 
p. 7 
US – Differential  Pricing 
Methodology  Panel Report, United States – Anti-Dumping Measures Applying Differential 
Pricing Methodology to Softwood Lumber from Canada , WT/DS534/R  and Add.1, 
circulated to WTO Membe rs 9 April 2019 [appealed; adoption pending]  
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventio nal Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, p. 3 
US – Large Civil Aircraft 
(2nd complaint)  Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012, DSR 
2012:I, p. 7 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood Lumber 
from Canada , WT/DS264/R , adopte d 31 August 2004, as modified by Appellate 
Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937 
US – Softwood Lumber VI 
(Article  21.5 – Canada)  Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to Article  21.5 of the 
DSU by Canada , WT/DS277/A B/RW , adopted 9 May 2006, and Corr.1, DSR 
2006:XI, p. 4865 
US – Steel Plate  Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Steel Plate from India , WT/DS206/R  and Corr.1, adopted 29  July 2002, DSR 
2002:VI, p. 2073 
US – Tuna II (Mexico) 
(Article  21.5 – Mexico)  Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article  21.5 of the 
DSU by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3  December  2015, 
DSR 2015:X, p. 5133 
US – Upland Cotton 
(Article  22.6 – US I) Decision by the Arbitrator, United States – Subsidies on Upland Cotton – 
Recourse to Arbitration by the United States under Article  22.6 of the DSU and 
Article  4.11 of the SCM Agreement , WT/DS267/ARB/1 , 31 August 2009, DSR 
2009:IX, p. 3871 
US – Wool Shirts and 
Blouses  Appellate Body Report, United States – Measure Affecting I mports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted  23 May 1997, and 
Corr.1, DSR 1997:I, p. 323 
 
  WT/DS591/7  
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short Title  
(if any)  Description/Long title  
COL-1 (BCI)  Mydibel's  comments on the 
essential facts technical 
report  Comments by interested parties on the essential facts 
technical report  
COL-8 Decree No. 1750 of 2015 
regulating the application of 
anti-dumping duties  MINCIT, Decree  No. 1750 of 2015 regulating the 
application of anti -dumping duties (1  September  2015)  
COL-10 (BCI)  Technical report on the 
initiation  MINCIT, Technical report on the initiation of the 
investigation, confidential version (August 2017)  
COL-11 Annex 10 of the revised 
application  Annex 10 of the revised application, non -confidential 
version  
COL-12  Political Constitution of Colombia  
COL-13  Law No. 1437 of 2011 establishing the Code of 
Administrative Procedure and Administrative Disputes  
COL-15 (BCI)  Technical report on essential 
facts (confidential version)  MINCIT, Technical report on essential facts, confidential 
version (27 August 2018)  
COL-16 (BCI)  Final technical report 
(confidential version)  MINCIT, Final technical report, confidential version 
(9 November  2018)  
COL-35-B Annexes to FEDEPAPA's 
application  Annexes to FEDEPAPA's application for the initiation of 
an investigation  
COL-36-A (BCI)  Annex 1 of the revised 
application  Annexes 1 -12 to FEDEPAPA's  revised application dated 
19 July 2017 
COL-41 (BCI)  Agrarfrost's export 
transactions  Export transactions provided by Agrarfrost and data 
corresponding to the DIAN database  
COL-42 (BCI)  Aviko's export transactions  Export transactions provided by Aviko an d data 
corresponding to the DIAN database  
COL-43 (BCI)  Mydibel's export transactions  Export transactions provided by Mydibel and data 
corresponding to the DIAN database  
COL-67 Revised application 
(confidential version)  Solicitud revisada de FEDEPAPA de 19 de julio de 2017 
radicada en el expediente confidencial  
EU-1a Notice of initiation  MINCIT, Resolution No. 121 of 2  August 2017 ordering 
the initiation of an administrative investigation with a 
view to determining the existence, degree and e ffect on 
the domestic industry of alleged dumping in imports of 
potatoes, prepared or preserved otherwise than by 
vinegar or acetic acid, frozen, originating in Belgium, the 
Netherlands (Holland) and Germany (2 August 2017)  
EU-2a Preliminary determination  MINCIT, Decision No. 191 of 1  November  2017 adopting 
the preliminary determination in the administrative 
investigation initiated by means of Resolution No. 121 of 
2 August  2017 (1 November  2017)  
EU-3a Final report on essential facts 
(public version)  MINC IT, Final technical report on essential facts, 
Investigation of alleged dumping in imports of potatoes 
prepared or preserved (otherwise than by vinegar or 
acetic acid, frozen) classified under tariff subheading 
2004.10.00.00, originating in Belgium, the Ne therlands 
(Holland) and Germany (27  August  2018)  
EU-4a Final technical report (public 
version)  MINCIT, Final technical report, public version 
(9 November  2018)  
EU-5a Final determination (public 
version)  MINCIT, Resolution No. 257 of 9  November  2018 
adopting the final determination in the administrative 
investigation initiated by means of Decision 121 of 
2 August 2017 (9  November  2018)  
EU-6a MINCIT's revocation decision  MINCIT, Resolution No. 093 of 13 May 2019 settling 
several applications for direct revocation (13 May 2019)  
EU-8a FEDEPAPA's application  Communication dated 22 June 2017 from FEDEPAPA to 
MINCIT requesting the initiation of an investigation and 
the imposition of provisional measures  
EU-9a MINCIT's  deficiency letter to 
FEDEPAPA  Communication dated 29 June 2017 from MINCIT to 
FEDEPAPA requesting additional information  
EU-10 Revised application  Letter dated 19  July 2017 from FEDEPAPA to MINCIT 
responding to the MINCIT's deficiency letter  
EU-12a Preliminary technical report  MINCIT, Preliminary technical report, public version 
(October 2017)  WT/DS591/7  
 
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  Exhibit  Short Title  
(if any)  Description/Long title  
EU-14 FEDEPAPA's certificate of 
existence and legal 
representation  Certificate of existence and legal representation of the 
non-profit entity FEDEPAPA, issued by  the Chamber of 
Commerce of Bogota (6  July 2017)  
EU-15 FEDEPAPA's responses to 
questions raised during the 
hearing  Letter dated 6  December  2017 from FEDEPAPA to 
MINCIT, responses to questions raised during the 
hearing  
EU-17a Responses to comments on 
essential facts  MINCIT's responses to comments on essential facts  
EU-18a European Commission's 
observations on essential 
facts European Commission's observations on the essential 
facts (10  September  2018)  
EU-22 (BCI)   Mydibel's questionnaire response, p hotos demonstrating 
packaging materials  
EU-23a Dumping investigation 
questionnaire for foreign 
producers and/or exporters  MINCIT's questionnaire for foreign producers and/or 
exporters  
EU-25a (BCI)   Agrarfrost's  comments on essential facts  
EU-26a (BCI)   Aviko's comments on essential facts  
EU-28a (BCI)  Agrarfrost's questionnaire 
response  Agrarfrost's  questionnaire response , confidential version  
EU-28.1 (BCI)  Agrarfrost's  questionnaire 
response, Excel workbook 
"ventas domésticas " Agrarfrost's questionnaire response , confidential 
version, Excel workbook " ventas domésticas "  
EU-29a (BCI)  Aviko's questionnaire 
response  Aviko's questionnaire response, confidential  version  
EU-29.1 (BCI)  Aviko's questionnaire 
response, Excel workbook 
"ventas domésticas " Aviko's questionnaire response, confidential version, 
Excel workbook " ventas domésticas " 
EU-29.2 (BCI)  Aviko's  questionnaire 
response, Excel workbook 
"ventas en Colombia"  Aviko's questionnaire response, confidential version, 
Excel workbook " ventas en Colombia " 
EU-30a (BCI)  Mydibel's questionnaire 
response  Mydibel's questionnaire response, confidential  version  
EU-30.1 (BCI)   Mydibel's questionnaire response, annex 3.2.1.2, 
3rd workbook " costes de manufactura " 
EU-34a (BCI)   Agrarfrost's submission to MINCIT dated 
1 December  2017 
EU-35a (BCI)   Agrarfrost's submission to MINCIT dated 
22 December  2017 
EU-36a Agrarfrost verification visit 
report  Agrarfrost verification visit report (17  May 2018)  
EU-36.1a (BCI)  Agrarfrost verification visit 
report, annex 9  Agrarfrost  verification visit report, annex 9 "Adjustment 
for type of oil"  
EU-37 (BCI)  MINCIT's response to 
Agrarfrost dated 
30 August  2018 Letter dated 30 August 2018 from MINCIT to Agrarfrost 
responding to the request for information on essential 
facts 
EU-41 (BC I)  Agrarfrost's submission to MINCIT dated 28 August 2018  
 
 
  WT/DS591/7  
 
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  ABBREVIATIONS USED  TO IN THIS REPORT  
Abbreviation  Description  
Agrarfrost  Agrarfrost GMBH & CO  
Agristo  Agristo N .V. 
Anti-Dumping Agreement  Anti-Dumping Agreement on Implementation of Article  VI of the General 
Agreement on Tariffs and Trade 1994  
Aviko  Aviko B.V.  
BCI business confidential information  
Clarebout  Clarebout Potatoes N .V. 
Congelagro  Congelados Agrícolas  S.A. 
Customs Valuation 
Agreement  Agreement on Implementation of Article  VII of the General Agreement on 
Tariffs and Trade 1994  
DIAN National Tax and Customs Directorate  
DIAN database  Customs database of the Colombian National Directorate for Taxes and 
Customs  
DSB Dispute Settlement Bod y 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Ecofrost  Ecofrost S .A. 
F.o.b.  free on board  
Farm Frites  Farm Frites International N .V. 
FEDEPAPA  Colombian Federation of Potato Producers  
Frozen Express  Productos Alimenticios Frozen Express S .A.S. 
GATT 1994  General Agreement on Tariffs and Trade 1994  
MINCIT  Ministry of Trade, Industry and Tourism  
Mydibel  Mydibel S.A.  
PUC product under consideration  
Soraca  Procesadora y Comercializadora de Alimentos  Soraca  S.A. 
Vienna Convention  Vienna Convention on the Law of Treaties, done at Vienna, 23 May  1969, 1155 
UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 
 
  WT/DS591/7  
 
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  1  INTRODUCTION  
1.1  Complaint  by the European  Union  
1.1.  On 15 November  2019,  the European  Union requested consultations with Colombia pursuant 
to Articles  1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU), Article  17 of the  Agreement on Implementation of Article  VI of the 
General  Agree ment on Tariffs and Trade 1994 (Anti -Dumping  Agreement), Article  19 of 
the Agreement on Implementation of Article  VII of the General  Agreement on Tariffs and Trade 1994 
(Customs Valuation  Agreement), and Article  XXIII of the General  Agreement on Tariffs an d 
Trade  1994 (GATT 1994)  with respect to the measures and claims set out below.9 
1.2.  Consultations were held on 15 -16 January 2020, but were unsuccessful in resolving the dispute.  
1.2  Panel  establishment  and composition  
1.3.  On 17 February 2020, the European  Union req uested the establishment of a panel pursuant to 
Articles  4.7 and  6 of the DSU, Article  17.4 of the Anti -Dumping  Agreement , Article  19 of the Customs 
Valuation  Agreement , and Article  XXIII of the  GATT  1994, to examine the matter based on the 
standard terms of reference, as set out in Article  7.1 of the DSU.10 Pursuant to the 
European  Union's  request, the Dispute Settlement Body (DSB ) established the Panel at its meeting 
on 29 June 2020 , in accordance with Article  6 of the DSU .11 
1.4.  Under its terms of reference, the Panel is required:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the European  Union in 
document WT/DS591/2 and to make such findings as wi ll assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.12 
1.5.  Based on an  agreement between the parties, the Panel was composed on 24 August 2020 as 
follows:  
Chairperson:  Mr Hanspeter TSCHAENI  
Members:   Ms Lea ne Cornet NAIDIN  
   Ms Margarita TRILLO -RAMOS  
1.6.  Brazil, China, Honduras, India, Japan, the Russian  Federation, Türkiye , and the United  States 
notified their interest in participating in the Panel proceedings as third parties.  
1.3  Panel  proceedings  
1.3.1   General  
1.7.  Upon the parties'  request, the Panel commenced the organizational process in these 
proceedings on 3  December  2020 and, in light of the challenges posed by the COVID -19 pandemic, 
decided  to conduct the organizational process through written consultations wi th the parties.  Based 
on these consultations, the Panel adopted its Working Procedures13 as well as a partial timetable  for 
these proceedings on 8 February 2021.14 
 
9 Request for consultations by the European  Union, WT/DS591/1, G/ADP/D133/1, G/VAL/D/14, 
G/L/1339 (European  Union's  consultations request). The measures and claims are set out in sections  2-3 
below.  
10 Request for the establishment of a panel by the European  Union, WT/ DS591/2  
(European  Union's  panel request) . 
11 DSB, Minutes of the meeting held on 29 June 2020, WT/DSB/M/442.  
12 Constitution note of the Panel, WT/ DS591/4.  
13 Working Procedures of the Panel (Annex  A-1). 
14 The timetable  proposed by the Panel to the parties on 21  December  2020 envisaged that the 
European  Union and Colombia would file their  first written submissions by 26 February 2021 and WT/DS591/7  
 
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  1.8.  In light of subsequent developments and multiple requests by the parties, the Panel further 
revised and updated the timetable  for these proceedings on:  
• 21 June 202115;  
• 28 June 202116;  
• 1 July 202117;  
• 4 August 202118;  
• 26 October 202119;  
• 7 February 202220;  
• 30 May 202221;  
 
26 March  2021, respectively. On 12 January 2021, Colombia r equested th e Panel to extend the deadline for  
filing its first written submission to 21 May 2021 . On the same date, the European  Union requested the Panel 
to extend the deadline for filing its first written submission to a date not  before 7 March 2021. After 
consider ing the parties'  requests, the Panel fixed 8 March 2021 as the date for the European  Union's  first 
written submission and 7 May 2021 for Colombia's  first written submission.  
15 On 27 May 2021, the Panel proposed 27 -29 July 2021 for its first substantive mee ting with the 
parties. On 31 May 2021, Colombia requested the Panel to organize the first substantive meeting either during 
the month of June through 9 July  2021 or, alternatively, during the first week of September 2021. On 2 June 
2021, the European  Union  communicated its availability for the first substantive meeting with the Panel from 
7-9 July 2021. On 9 June 2021 , having considered the parties'  positions, and taking account of certain 
technological constraints and the then -prevailing pandemic -related r estrictions that precluded a meeting from 
being held in June or early July, the Panel maintained its originally proposed dates of 27 -29 July 2021. On 
10 June 2021, Colombia request ed the Panel  to: (a) provide sufficient time (not earlier than 
17 September  2021) to respond  to the Panel 's questions ; and (b)  circulate at least some of the questions in 
advance of the first substantive meeting. The Panel partially granted Colombia's  request and adopted a revised 
timetable  on 21 June 2021  that set:  (i) 16 July 2021 as the date for issuing advance questions to the parties; 
(ii) 4 August 2021 as the date for issuing post -hearing questions to the parties; and (iii)  3 September 2021 as 
the date for receiving the parties'  written responses to the questions posed by the  Panel at the first substantive 
meeting.  
16 On 23  June 2021, the European  Union also requested the Panel to extend the deadline for filing its 
responses to the Panel's  questions from 3 September to 17 September 2021 . On 28  June 2021, given the 
parties'  shared position, the Panel granted the European  Union's  request and revised the timetable  accordingly.  
17 On 1 July 2021, the Panel communicated to the parties and the third parties the following 
dates:  (a) 27-29 July 2021 as the date for the first substantive meeting of the Panel with the parties; 
(b) 28 July 2021 as the date for the Panel's  session with the third parties; (c)  4 August 2021 as the date for 
issuing written questions to the third parties; and (d)  17 September 2021 as the date for receiving 
third-parties'  written responses to the questions posed by the Panel. The timetable  was updated accordingly.  
18 On 4 August 2021, the Panel communicated to the parties and third parties 24 September 2021 as 
the date for submitting the integrated executive summar ies of the third parties. On the same date, the Panel 
also communicated to the parties 29 October 2021 as the date for submitting their second written submissions. 
The timetable  was updated accordingly.  
19 On 14 October 2021, the Panel proposed 19 -20 January 2022 for its second substantive meeting with 
the parties. On 18 October 2021, Colombia requested the Panel to postpone this meeting to the week of 
7-11 February 2022. In a communication dated 21 October 2021, the European  Union did not oppose 
Colombia's  request and indicated its preference to hold the second substantive meeting on 
9-10 February  2022. Having considered the parties'  positions and the availability of the Panel,  the Panel 
revised the timetable  on 26 October 2021 and set 1 -2 February 2022 as the dates for the  second substantive 
meeting with the parties.  On 10 December 2021, Colombia further requested the Panel to postpone the dates 
of the second substantive meeting, on a tentative basis, to mid -April 2022. On 14 December 2021,  the 
European Union opposed Colombia's  request. Having considered the parties'  positions, the Panel rejected 
Colombia's  request on 15 December 2021 and maintained 1 -2 February 2022 as the dates for the second 
substantive meeting with the parties.  
20 On 2 February 20 22, at the end of the second substantive meeting with the parties, both parties 
requested the Panel for additional time for filing their responses to the questions posed  and their written 
comments on each other 's responses. Having considered the parties'  positions, the Panel granted this request 
and revised the timetable  on 7 February 2022  changing the two deadlines from 18 February to 
21 February  2022 and from 25 February to 1 March 2022, respectively. On the same date, the Panel also 
communicated to the p arties the following dates:  (a) 4 March 2022 as the date for submitting the integrated 
executive summaries of the parties; (b)  14 March 2022 as the date for issuing the descriptive part of its 
report; and (c)  28 March 2022 as the date for submitting commen ts on the descriptive part of the 
Panel's  report. The timetable  was updated accordingly.  
21 On 19 May 2022, with a view to completing its work in this matter by the end of July,  the Panel 
communicated to the parties the following dates: (a) 10 June 2022 for  the issuance of the interim report; 
(b) 24 June 2022 for parties to request review of part(s) of the report and to request an interim review 
meeting; and (c) 1  July 2022 for the parties to submit their comments on the requests for review . On 
23 May 2022, Colombia requested the Panel to grant a " short extension to comment on the interim report, 
having in mind that its issuance is going to happen " on 10 June 2022 , "just before the  [12th] WTO Ministerial " WT/DS591/7  
 
- 15 - 
 
  • 9 June 202222; and  
• 22 June 2022.23 
1.9.  On 21 December 2020, with a view to ensuring that these proceedings are conducted in an 
expeditious manner in the face of the challenges posed by the COVID -19 pandemic, the Panel 
proposed to pursue a round of written questions and answers with the parties following the receipt 
of their first  written submissions, and to hold the substantive meeting with the parties as well as the 
third parties'  session after the filing of the parties'  rebuttal submissions.24 On 12 January 2021, the 
European  Union stated that, for reasons of due process, it did  not consider it appropriate to deviate 
from the normal practice of two substantive meetings in this present dispute. On the same date, 
Colombia stated that, in light of the universal practice under the DSU to hold two substantive 
meetings, and because one  substantive meeting would not allow it to present its defen ce in an 
adequate manner , the maintenance of two substantive meetings was essential . Given the 
parties'  shared position, the Panel planned and organized these proceedings with two substantive 
meetings with the parties.  
1.10.   The European  Union and Colombia informed the Panel on 7 December 2020 that  they intended 
to present their written submissions and their oral arguments during the substantive meetings in 
English and Spanish, respectively.25 In light of the travel and organizational restrictions presented 
by the COVID -19 pandemic, and as acknowledged by both parties in their communications dated 
12 January 2021 , the Panel decided to conduct the first substantive meeting virtually by means of 
a novel software solution that allowed for both remote participation and secure simultaneous 
interpretation, while respecting the confidentiality of these proceedings. Consistent with the 
then-prevailing health guidelines, the Panel allowed a limited numbe r of the parties'  delegates to 
participate in this virtual meeting from the WTO premises. On 14  July 2021, the Panel adopted the 
Additional Working Procedures for virtual participation at the first substantive meeting.26 The Panel 
 
Conference.  On 24 May 2022, the European  Union informe d the Panel that it had no comments to offer on 
Colombia's request. On 30 May 2022, the Panel partially granted Colombia's request and communicated to the 
parties the following dates: (a) 9 June 2022 for the issuance of the interim report; (b)  28 June 2022  for the 
parties to request review of part(s) of the report and to request an interim review meeting; and (c ) 5 July 2022 
for the parties to submit their comments on  the requests for review . The timetable  was updated accordingly.  
22 On the morning of 9 June 2022, the parties "jointly request[ed] the Panel not to issue its Interim 
Report to the Parties today and to postpone the issuance of the Interim Report until Thursday 16 June 2022", 
when the parties "will have finished" with the 12th WTO Ministerial Conference. Granting their joint request on 
the same date, the Panel informed the parties that the Interim Report would be issued on 16 June 2022 and 
that the subsequent dates for the interim review process that had already been communicated to the parties  
would remain unchanged. The timetable was updated accordingly.  
23 On the night of 15 June 2022, the European Union stated that it was "considering whether to request 
the Panel to modify again its timetable and to delay the issuance of the Interim Report". The European Union 
stated that such a request could be submitted in the morning of 16 June 2022. On 16 June 2022, Colombia and 
the European Union jointly requested the Panel, inter alia , "not to issue its Interim Report to the parties 
today," and to "modif y its Timetable in order to provide that the Interim Report will not be issued to the parties 
before Thursday 30 June 2022." In light of this joint request, the Panel informed the parties on 16 June 2022 
that it would not issue its Interim Report that day,  and that it would issue a revised timetable in due course. 
On 22 June 2022, the Panel communicated to the parties the following dates: (a) 30 June 2022 for the 
issuance of the Interim Report; (b) 14 July 2022 for the parties to request review of part(s) o f the report and 
to request an interim review meeting; and (c) 21 July 2022 for the parties to submit their comments on the 
requests for review. The timetable was updated accordingly . 
24 The draft Working Procedures initially proposed by the Panel indicated  that, "[u]pon request by either 
party, or should the Panel consider it necessary, the Panel may, after consultation with the parties, decide to 
hold a second substantive meeting with the parties."  
25 We note that t he record of the underlying investigation is in Spanish and so are materials from that 
record that the parties placed  as exhibits on the Panel's record. For certain exhibits , the European  Union 
provided , in addition to  the original Spanish document (typically labelled as Exhibit EU -[…]a), a courte sy 
English translation (typically labelled as Exhibit EU -[…]b).  Colombia, for its part, did not "endorse[]" or 
"object []" to the "accuracy " of the English translations provided by the European  Union and requested the 
Panel to  conduct its analysis "on the basis of the official version of the exhibits, that is to say, the Spanish 
version".  (Colombia's  first written submission, paras. 4.2 -4.3). Where necessary, the Panel has relied on its 
own understanding of the Spanish texts of  the original exhibits and of Colombia's submissions that are a part 
of the Panel record. The English language version of this Panel Report contains the Panel's English translations 
of the original, Spanish texts, which can be found in the Spanish language  version of this Panel Report.  
26 Additional  Working Procedures of the Panel for virtual participation at the first substantive meeting  
(Annex  A-3). WT/DS591/7  
 
- 16 - 
 
  held its first substantiv e meeting with the parties on 27 -29 July 2021. A session with the third parties 
was convened on 28  July 2021.  
1.11.   In light of the prevailing epidemiological situation and  the stricter pandemic -related 
restrictions in place at the time , the Panel decided to hol d the second substantive meeting virtually, 
without the possibility for in -person attendance at the WTO premises. Accordingly, the entire 
meeting was convened using a secure software platform and, on 17 January 2022, the Panel adopted 
the Additional Workin g Procedures for virtual participation at the second substantive meeting.27 The 
Panel held its second substantive meeting with the parties on 1 -2 February 2022.  
1.12.   On 14  March  2022, the Panel issued the descriptive part of its Report to the parties. The Panel  
issued its Interim Report to the parties on 30 June 2022 . The Panel issued its Final Report to the 
parties on 29  August  2022.  
1.3.2   Working  Procedures  on Business  Confidential  Information  
1.13.   Following written consultations with the parties, the Panel adopted the A dditional Working 
Procedures for the protection of Business Confidential Information (BCI)  in these proceedings on 
8 February 2021.28 
1.3.3   Agreed  procedures  for arbitration  under  Article  25 of the DSU 
1.14.   On 13  July 2020, Colombia and the European  Union notified to  the DSB their mutual 
agreement,  "pursuant to Article  25.2 of the [DSU] to enter into arbitration under Article  25 of the 
DSU to decide any appeal from any final panel report as issued to the parties " in this dispute.29 In its 
Working Procedures for these proceedings, the Panel took "note of the Agreed Procedures for 
Arbitration under Article  25 of the DSU in this dispute notified by the parties on 13  July 2020 
(WT/DS591/3)  and of the joint requests of the parties to the Pan el formulated therein".30 
On 29 August 2022, the Panel, having consulted with the parties, adopted the Additional Working 
Procedures to facilitat e arbitration under Article  25 of the DSU.31 
2  FACTUAL  ASPECTS:  THE MEASURES  AT ISSUE  
2.1.  The European  Union's  panel request challenges the WTO -consistency of the 
anti-dumping  duties imposed by Colombia on imports of potatoes, prepared or preserved (otherwise 
than by vinegar or acetic acid), frozen, classified under tariff subheading 2004.10.00.00 originating 
in Belgium,  Germany, and the Netherlands, as set forth in the following documents32: 
a. Ministry of Trade, Industry and Tourism Resolution Number 191 of 1  November  2017 
adopting the preliminary determination on the administrative investigation initiated by 
means of Deci sion 121 of 2  August  2017, published in the Official Journal No . 50.406 of 
3 November  201733, page 4 ; 
b. Ministry of Trade, Industry and Tourism Resolution Number 257 of 9 November 2018 
adopting the final determination on the administrative investigation init iated by 
Decision  121 of 2 August 2017, published in the Official Journal No . 50.772 of 
9 November  2018, page 9 ; 
 
27 Additional Working Procedures of the Panel for virtual participation at the second substantive meeting 
(Annex  A-4). 
28 Additional Working Procedures of the Panel concerning Business Confidential Information 
(Annex  A-2). 
29 Agreed procedures for arbitration under Article  25 of the DSU , WT/DS591/ 3 (fn omitted). The parties 
revised these procedures on 20 April 2021, WT/DS591/3/Rev.1.  
30 Working Procedures of the Panel (Annex  A-1), para.  33. 
31 Additional Working Procedures of the Panel to facilitat e arbitration u nder Article 25 of the DSU  
(Annex  A-5). 
32 European  Union's  panel request, p p. 1-2.  
33 The date of publication of the preliminary determination indicated in the European  Union's panel 
request is 9  November  2018. However, as indicated in MINCIT's revocation decision , (Exhibit EU -6a), the 
preliminary determination was published in the Officia l Journal No. 50.406 on 3  November  2017.  WT/DS591/7  
 
- 17 - 
 
  c. Responses to the comments on the essential facts in the investigation of dumping of 
imports of potatoes, prepared or preserved, classified under tariff subheading 
2004.10.00.00 originating in Belgium, the Netherlands and Germany ; 
d. Final technical report, public version, investigation of alleged dumping of imports of 
potatoes, prepared or preserved (otherwise than by vinegar or acetic  acid), classified 
under tariff subheading 2004.10.00.00 originating in Belgium, the Netherlands 
(Holland ) and Germany ; and  
e. Ministry of Trade, Industry and Tourism Resolution Number 093 of 13 May 2019 
addressing some requests for administrative review, pub lished in the Official Journal 
No. 50.956, page 18 . 
2.2.  The European  Union also challenges any annexes  thereto , as well as  notices, preliminary 
findings, reviews, amendments, supplements, replacements, renewals, extensions, implementing 
measures or any other r elated measures.34 
3  PARTIES'  REQUESTS  FOR FINDINGS  AND RECOMMENDATIONS  
3.1.  The European  Union requests the Panel to make the following findings35: 
a. Colombia acted inconsistently with its obligations under Article  5.3 of the 
Anti-Dumping  Agreement by initiating the anti -dumping investigation on the basis of 
insufficient evidence of dumping, injury, and causal link between the dumped imports and 
the alleged injury;  
b. Colombia acted inconsistently with its obligations under Article  5.8 of the 
Anti-Dumping  Agreement by failing to reject the application submitted by the Colombian 
Federation of Potato Producers (FEDEPAPA), which did not include sufficient evidence to 
justify proceeding with the investigation;  
c. Colombia acted inconsistently with its obligations under Article  6.5 of the 
Anti-Dumping  Agreement by providing confidential treatment, on its own initiative, to the 
information supplied by the applicant, without any showing of good cause;  
d. Colombia acted inconsistently with its obligat ions under Article  6.5.1 of the 
Anti-Dumping  Agreement by failing to require the applicant to furnish non -confidential 
summaries in sufficient detail to permit a reasonable understanding of the substance of 
the information submitted in confidence, or by fa iling to require a statement of reasons in 
support of a claim that the information was not susceptible of summary;  
e. Colombia acted inconsistently with its obligations under Articles  2.1 and 6.8, and 
paragraphs  3 and 6 of Annex  II, of the Anti -Dumping  Agreem ent, by not using, in the 
calculation of the dumping margins, the information on export prices provided by the 
cooperating investigated companies, and instead using information from its customs 
database (Customs database of the National Customs and Excise Directorate 
(DIAN  database));  
f. Colombia acted inconsistently with its obligations under Article  2.4 of the 
Anti-Dumping  Agreement by not making due allowances for differences impacting price 
comparability (differences in product mix and differences in oil u sed in the preparation), 
by making undue adjustments (for packaging costs), and by not informing interested 
parties about the information required for the fair comparison;  
g. Colombia acted inconsistently with its obligations under Articles  3.1, 3.2, 3.4, and  3.5 of 
the Anti -Dumping  Agreement by erroneously including non -dumped imports in its injury 
and causation analyses;  
 
34 European  Union's  panel request, p. 2. 
35 European  Union's  first written submission,  paras.  331-332; second written submission, para.  143. WT/DS591/7  
 
- 18 - 
 
  h. Colombia acted inconsistently with its obligations under Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement by not conducting an objective examination, based on positive 
evidence, by failing to properly establish the effect of the dumped imports on prices in the 
domestic market for the like product, and by failing to adequately justify its findings;  
i. Colombia acted inconsistently wit h its obligations under Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement by not conducting an objective examination, based on positive 
evidence, by failing to properly consider all relevant economic factors and indices having 
a bearing on the state of th e industry, and by failing to adequately justify its findings; and  
j. Colombia acted inconsistently with its obligations under Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement by not conducting an objective examination, based on positive 
evidence, by failin g to demonstrate a causal link between the dumped imports and the 
injury to the domestic industry, and by failing to adequately justify its findings.  
3.2.  The European  Union further requests the Panel to recommend, pursuant to Article  19.1 of the 
DSU, that Colo mbia bring its measures into conformity with the GATT  1994 and the 
Anti-Dumping  Agreement.36 
3.3.  Having presented arguments in response to each of the European  Union's claims, Colombia 
requests  the Panel to reject the European  Union's  claims under Articles  2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 
5.3, 5.8, 6.5, 6.5.1 and 6.8, as well as paragraphs  3 and 6 of Annex  II, of the 
Anti-Dumping  Agreement, asserting, inter alia, that the European  Union has failed to make a 
prima  facie case that Colombia acted inconsistently with its obligations under these provisions. 
Colombia therefore also considers it inappropriate  for the Panel  to issue any recommendation s under 
Article  19.1 of the DSU.37 
4  ARGUMENTS  OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive su mmaries, provided to the Panel 
in accordance with paragraph  23 of the Working Procedures adopted by the Panel (see Annexes  B-1 
and B -2). 
5  ARGUMENTS  OF THE THIRD  PARTIES  
5.1.  The arguments of Brazil, Japan, and the United  States are reflected in their executive 
summaries, provided in accordance with paragraph  26 of the Working Procedures adopted by the 
Panel (see Annexes  C-1, C-2, and C -3). China, Honduras, India, the Russian Federation, and Türkiye 
did not make written or oral submissions before the Panel.  
6  INTERI M REVIEW  
6.1.  The Panel issued its Interim Report to the parties on 30  June 2022. On 14  July 2022, Colombia 
submitted a written request seeking a review of precise aspects of the Interim Report, and the 
European Union informed the Panel that it "ha[d] no commen ts on the Interim Report".38 On 
21 July 2022, the European Union submitted comments on Colombia's request for review. Neither 
party requested an interim review meeting.  
6.2.  The request and comments made at the interim review stage as well as the Panel's discussion 
and disposition thereof are set out in Anne x A-6. 
 
36 European  Union's  first written submission,  para. 333; second written submi ssion, para.  144. 
37 Colombia's  first written submission, paras.  13.231 -13.232; second written submission, 
paras.  14.1-14.2. 
38 European Union's communication (14  July 2022).  WT/DS591/7  
 
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  7  FINDINGS  
7.1  General issues  relating to treaty interpretation, the standard of review, and burden 
of proof  
7.1.1   Treaty interpretation  
7.1.  In Article  3.2 of the DSU , WTO Members "recognize" that the di spute settlement system serves, 
inter alia, to "clarify" the existing provisions of the covered agreements "in  accordance with 
customary rules of interpretation of public international law".39 Article  17.6(ii)  of the 
Anti-Dumping  Agreement similarly requir es panels to "interpret the relevant provisions of 
[that]  Agreement in accordance with customary rules of interpretation of public international law". 
It is generally accepted that the principles enumerated in Articles  31 and 32 of the 
Vienna  Convention on  the Law of Treaties (Vienna Convention)  are such customary rules.40  
7.1.2   Standard  of review  
7.2.  Panels examining the WTO -consistency of a challenged measure are generally bound by 
Article  11 of the DSU, which  provides, in relevant part, that:  
[A] panel should make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered  Agreements[.]  
7.3.  In addition, with respect to "matter[s]" concerning clai ms under the Anti -Dumping Agreement, 
Article  17.6 of the  Agreement provides that : 
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities'  establishment of the facts was proper and whether their 
evaluation of tho se facts was unbiased and objective. If the establishment of the 
facts was proper and the evaluation was unbiased and objective, even though the 
panel might have reached a different conclusion, the evaluation shall not be 
overturned;  
(ii) the panel shall interpret the relevant provisions of the  Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel 
finds that a relevant provision of the  Agreement admits of more than one 
permissible interpretation, the pan el shall find the authorities'  measure to be in 
conformity with the  Agreement if it rests upon one of those permissible 
interpretations.41 
7.4.  In light of these provisions, a panel examining an investigating authority's determination  should 
not conduct a de novo  review of the evidence, nor substitute its own judgment for that of the 
investigating authority.  The exact standard of review to be applied by a panel in examining an 
investigating authority's  determination in a given case is a "function of the substantive provisions of 
the specific covered agreements that are at issue in the dispute"42 as well as the "specific claim(s) 
put forth by a complainant".43 
 
39 We also note that Article  3.2 of the DSU provides that "[r]ecommendations and rul ings of the DSB 
cannot add to or diminish the rights and obligations provided in the covered Agreements".  
40 See e.g. Appellate  Body Reports, US – Gasoline , DSR 1996:I, pp.  15-16; and Japan – Alcoholic 
Beverages  II, DSR  1996:I, p. 104.  
41 Article  17.6 of the Anti -Dumping  Agreement is identified in Article  1.2 and Appendix  2 of the DSU as 
one of the "special or additional rules and procedures" which prevail over the DSU "[t]o the extent that there is 
a difference" between th ose provisions an d the provisions of the DSU.  
42 Appellate  Body Report s, US – Softwood Lumber VI  (Article  21.5 – Canada) , para. 95; 
US – Countervailing Measures (China) , para.  4.182.  
43 See e.g. Appellate  Body Report, US – Countervailing Measures (China) , para.  4.182.  WT/DS591/7  
 
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  7.1.3   Burden  of proof  
7.5.  The DSU does not contain any specific rules concerning  the allocation of the  burden of proof  in 
WTO dispute settlement proceedings . We agree with the observation that the "generally  accepted 
canon of evidence in … most jurisdictions, that the burden of proof rests upon the party … who 
asserts the affirmative of a par ticular claim or defence" is also followed in  WTO dispute settlement.44 
As such,  the complainant  – i.e. the European  Union in these proceedings – must "establish a 
prima  facie case of inconsistency with [the] provision [invoked] before the burden of showin g 
consistency with that provision is taken on by the defending party".45 A prima  facie case is one 
which, "in the absence of effective refutation by the defending party ", requires a panel  to find in 
favour of the complaining party.46  
7.2  Claims under Article  5.3 of the Anti -Dumping Agreement:  the initiation of the 
investigation  
7.2.1   Introduction  
7.6.  In the underlying proceeding , the Colombian Federation of Potato Producers (FEDEPAPA)  – the 
applicant – filed an application before MIN CIT – the Colombian investiga ting authority – requesting, 
on behalf of the domestic industry, the initiation of  an anti -dumping investigation into alleged 
dumping of imports of "potatoes, prepared or preserved (otherwise than by vinegar or acetic acid)" 
and exported to Colombia under "tariff subheading 2004.10.00.00 ".47 After reviewing this filing , 
MINCIT sent a deficiency letter to FEDEPAPA  request ing certain  supplement ary information  and 
clarifications .48 The applicant responded to MINCIT's request by submitting a  revised application.49 
Thereafter, MINCIT issued a " technical report" that analys ed the application and explain ed the basis 
for its decision to initiate the investigation.50 A resolution to initiate the investigation concerning the 
allegedly dumped import s from Belgium, the Netherlands, and Germany, was issued by MINCIT 
on 2 August 2017.51  
7.7.  The European  Union claims that Colombia acted inconsistently with its obligations under 
Article  5.3 of the Anti -Dumping Agreement because the evidence examined and reli ed upon by 
MINCIT was insufficient for an unbiased and objective investigating authority to justify the initiation 
of the investigation.52 Specifically, the European  Union challenges the manner in which  
MINCIT's  notice of initiation  considered : (a) the def inition of the product under consideration; ( b) the 
representativeness of the applicant; ( c) the evidence used to calculate the normal value; ( d) the 
evidence relied upon for the injury analysis; and ( e) the evidence concerning  the causal 
relationship.53  
7.8.  Colombia asserts that  the European  Union's claims should be rejected in their entirety because 
they are based on a "misunderstanding " of the facts  and of  the disciplines of the 
 
44 Appellate  Body Report, US – Wool Shirts and Blouses , DSR  1997:I, p. 335. 
45 Appellate  Body Report, EC – Hormones , para.  104. Colombia argues that, in light of paragraphs 3(1) 
and 5(1) of the Panel's Working Procedures, a prima  facie case must be established by  the European  Union no 
later than its first written submission . (See e .g. Colombia's second written submission, fn 88; and response to 
Panel question No. 1.17, paras. 96 -97 and fn 52).  We note, however, that neither paragraph 3(1) nor 
paragraph 5(1) contai ns any such requirement with respect to the demonstration of a " prima  facie" case by the 
complainant.  
46 Appellate  Body Report, EC – Hormones , para.  104. 
47 FEDEPAPA's application , (Exhibit EU -8a), para. 1. 
48 MINCIT's d eficiency letter  to FEDEPAPA,  (Exhibit EU -9a). 
49 Revised application, ( Exhibit EU -10). 
50 Technical report on the initiation , (Exhibit COL -10 (BCI) ). 
51 MINCIT elected to exclude imports from France from the investigation on the grounds that "there 
have been no imports since 2015" and tha t therefore "it [was] not appropriate to link these imports to the 
investigation". (Notice of initiation , (Exhibit EU -1a), section 1.4).  
52 European  Union 's first written submission , paras.  50 and 66 -67; second  written submission, 
paras.  41-42.  
53 European  Union's first written submission,  paras.  51-67; second written submission, paras.  4-41.  WT/DS591/7  
 
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  Anti-Dumping  Agreement.54 Colombia also maintains  that the European  Union fail s to make a 
prima  facie case in respect of certain claims.55  
7.9.  We begin our analysis by recalling the applicable requirements  of Article  5.3 of the 
Anti-Dumping Agreement (section 7.2.2). Subsequently, we consider whether, in light of the specific 
facts and circumstances of this dispute, Colombia acted inconsistently with Article  5.3 in respect of: 
(a) the definition of the product under consideration (section 7.2.3); (b) the representativeness of 
the applicant (section 7.2.4); (c) the evidence used to calculate the normal value (section  7.2.5 ); 
(d) the evide nce relied upon for the injury analysis (section  7.2.6); and (e) the evidence on the 
causal relationship (section 7.2.7). 
7.2.2   Applicable requirements  under Article  5.3 of the Anti -Dumping Agreement  
7.10.   Article  5.3 of the Anti-Dumping Agreement states that:  
The authorities shall examine the accuracy and adequacy of the evidence provided in 
the application to determine whether there is sufficient evidence to justify the initiation 
of an investigation.  
7.11.   Article  5.3 requires investigating authorities to determine whether there is "sufficient" 
evidence to justify the initiati on of an investigation and requires that, in making such a 
determination, the investigating authorities "examine" the "accuracy" and "adequacy" of the 
"evidence " provided " in the application ".56 The dictionary meanings of the words "accuracy" and 
"adequacy " include "the state or quality" of being "accurate" and "adequate", respectively.57 
The dictionary meaning of the word "accurate" includes "exact, precise; conforming exactly with the 
truth or with a given standard; free from error" .58 The dictionary mean ing of "adequate" comprises 
"fully satisfying what is required; quite sufficient, suitable, or acceptable in quality or quantity ."59 
The dictionary meaning of the word "sufficient" includes "enough for a particular purpose".60 
7.12.   Article  5.3 requires authorit ies to examine the evidence "in the application". We observe that 
Article  5.2 requires an "application" for initiation to include , inter alia, evidence of "(a) dumping, 
(b) injury … and (c) a causal link between the dumped imports and the alleged injury". We also 
observe that  Article  5.6, which concerns  initiation by an investigating authority without having 
received a written application, requires an authority to determine w hether there is "sufficient 
evidence of dumping, injury and a causal link" to justify the initiation of an investigation. These 
textual and contextual elements in Article  5 of the Anti -Dumping Agreement suggest  that the 
"evidence" in an application that au thorities must examine under Article  5.3 is evidence relat ing to 
the three elements necessary for the imposition of an anti -dumping measure, namely , evidence of 
dumping, injury, and a causal link between the two .61 That said, we recognize that the initiati on 
stage of an investigation is distinct from the "subsequent investigation".62 In this regard, we consider 
 
54 Colombia 's first written submission, para s. 5.3 and 6.2 .  
55 See e.g. Colombia's second written submission, paras.  3.3 and 2.60 -2.62; and response to Panel 
question No.  1.17, paras.  96-97.  
56 In this regard, we agree that " inherent in the very meaning of evidence  [in the context of Article  5.3] 
is its relationship to the facts that it tends t o establish, i.e. its relevance " and that the context provided by 
Article  5.2 confirms that " the evidence in the application must be 'relevant '". (Panel Report, Pakistan – BOPP 
Film (UAE) , para.  7.19 [appealed; adoption pending ]). 
57 Oxford Dictionaries online, definitions of "accuracy" 
https://www.oed.com/view/Entry/1281?redirectedFrom=accuracy#eid  and "adequacy"  
https://www.oed.com/view/Entry/2298?redirectedFrom=adequacy#eid  (accessed 1 0 May  2022), meaning 1, 
respectively.  
58 Oxford Dictionaries online, definition of "accurate" 
https://www.oed.com/view/Entry/1283?redirectedFrom=accurate#eid  (accessed 1 0 May 2022), meaning 3.  
59 Oxford Dictionaries online, definition of "adequate" 
https://www.oed.com/view/Entry/2299?rskey=MTPVBE&result=1&isAdvanced=false#eid  (accessed 
10 May 2022), adj., meaning 3a. 
60 Cambridge dictionary online, definition of "sufficient" 
https://dictionary.cambridge.org/dictionary/english/sufficient  (accessed 1 0 May 2022 ), adj., meaning 1.  
61 See e.g. Panel Reports, Guatemala – Cement II , para.  8.35; Argentina – Poultry Anti -Dumping 
Duties , para. 7.61; Mexico – Steel Pipes and Tubes , para.  7.21; and US – Softwood Lumber V , para.  7.77. 
62 See e.g. Article  5.7 and the heading of Article  5 of the Anti -Dumping Agreement . WT/DS591/7  
 
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  that the "quantity and quality" of the evidence needed to initiate an investigation are generally lesser 
than what is required to impose anti -dumpin g measures.63  
7.13.   Article  5.3 thus requires investigating authorities to "examine" whether an application 
contains "enough", "precise", and "suitable" evidence of dumping, injury, and causation to justify 
the initiation of an investigation. At the same time, we agree with a prior adopted DSB report that 
the provision "says nothing regarding the nature of the examination to be carried out. Nor does it 
say anything requiring an explanation of how that examination was carried out."64 Any review of an 
investigating authority's conduct under Article  5.3 must therefore be carried out  on a case -by-case 
basis, in light of the specific facts and circumstances at issue .65 
7.14.   The applicable standard of review for examining the European  Union's claims under Articl e 5.3 
therefore requires us to consider whether an unbiased and objective investigating authority could 
have determined that the application and the revised application that FEDEPAPA submitted to 
MINCIT contained "sufficient" evidence – based upon an exami nation of the "accuracy" and 
"adequacy" of the evidence – to justify the initiation of an anti -dumping investigation into imports 
of frozen fries from Belgium, Germany, and the Netherlands.66 
7.2.3   Definition of the product  under consideration  
7.2.3.1   Introduction  
7.15.   In its application of initiation, FEDEPAPA defined the product under consideration (PUC ) based 
on a narrative description  that, among other things, described the subject imports as:  "potatoes, 
with or without skin, that are cut in any way, processed in som e way (normally precooked and 
pre-fried), frozen and stored at low temperatures ". This narrative further stated that these products 
are "most commonly known in the market as 'precooked, pre -fried and frozen potatoes ' with the 
emphasis  on them being ready for final preparation and subsequent consumption". The narrative  
also indicated that these products are exported to Colombia "already precooked, pre -fried and 
frozen, under subheading 2004.10.00.00" and that "[t]he main raw materials us ed in the production 
of precooked, pre -fried and frozen potatoes  are fresh ( unprocessed ) potatoes, followed to a lesser 
degree by vege table oil, disodium pyrophosphate stabilizer (INS 450I), and certain other chemical 
elements."67 
7.16.   MINCIT drew upon this nar rative description when initiating the underlying investigation. 
Specifically, MINCIT's  notice of initiation  defined the PUC to be  "potatoes prepared or preserved 
(otherwise than by vinegar or acetic acid ), frozen, classified under tariff subheading 
2004.1 0.00.00".68  
7.17.   The European  Union claims that, by initiating the investigation on the basis of an 
"over-inclusive definition " of the PUC, MINCIT failed to discharge its "duty to verify whether that 
definition was appropriate "69, and to ensure that " there was sufficient evidence to launch an 
investigation with respect to the broad range of products covered " by that definition.70 According to 
the European  Union,  the fact that the definition  of the PUC includes tariff subheading 2004.10.00.00 
("potatoes , prepared or preserved otherwise than by vinegar or acetic acid, frozen ") means that the 
PUC " covers a wide range of potato preparations ".71 According to the European  Union, this definition 
was over -inclusive and unsupported by evidence because it include d: (a) products that were not 
imported (or were only imported in very small quantities)  into Colombia; and (b)  products for which 
 
63 See e.g. Panel Reports, Guatemala – Cement II , para.  8.35; Mexico – Steel P ipes and Tubes , 
para. 7.22; and Argentina – Poultry  Anti-Dumping Duties , para.  7.67. 
64 Panel Report, EC – Bed Linen , para.  6.198. See also Mexico – Corn Syrup , paras.  7.105 and 7.110.  
65 See e.g. Panel Report, Mexico – Steel Pipes and Tubes , para.  7.24. 
66 See e.g. Panel Report, Argentina – Poultry Anti -Dumping Duties , para.  7.60. See also Panel Reports, 
Mexico – Steel Pipes and Tubes , paras. 7.26 and 7.32; US – Softwood Lumber V , para.  7.79; and 
Guatemala  – Cement II , para.  8.31. 
67 Revised applicati on, (Exhibit  EU-10), section  8. (emphasis  original)  
68 Notice of initiation, ( Exhibit  EU-1a), section  1.2. 
69 European  Union's response to Panel question No. 1.2, para.  2. 
70 European  Union's response to Panel question No. 1.2, para.  7. 
71 European  Union's response to Panel question No. 1.2, para.  3. See also European  Union's  opening 
statement at the first meeting of the Panel, para. 9. WT/DS591/7  
 
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  it was unclear whether they were produced by the domestic industry .72 The European  Union asserts 
that an "investigating author ity should not limit itself to accepting whatever definition is used in the 
application" , but, rather , should  "determine independently if there is sufficient evidence to justify 
the initiation of an investigation in respect of the alleged dumping of a part icular product. "73 
7.18.   Colombia responds , inter alia, that the definition of the PUC cannot be challenged under 
Article  5.3 as this provision does not set out any relevant obligations. Recalling previous panels, 
Colombia adds that the Anti -Dumping  Agreement  also contains no provision defining the PUC but 
focuses , instead,  on the definition of the "like" product, which in turn must reflect the PUC selected 
by the investigating authority. According to Colombia, it  therefore follows  that an investigat ing 
authority enjoys "material discretion" to define  the PUC and that the Anti -Dumping  Agreement  does 
not envisage  a challenge against  this definition.74  
7.2.3.2   Analysis  
7.19.   The European  Union's Article  5.3 claim concerning the PUC requires us to consider  whether  
an unbiased and objective  investigating  authority could have determined that the evidence that 
FEDEPAPA provided in its application and revised application was "sufficient " to initiate an 
investigation on imports of frozen fries based on the definition of th e PUC  that identified the subject 
imports as " potatoes, prepared or preserved otherwise than vinegar or acetic acid, frozen, classified 
under tariff subheading 2004.10.00.00 ". 
7.20.   At the outset, we observe that the European  Union makes somewhat contradictory s tatements 
as part of its submissions to the Panel on this claim. On the one hand, the European  Union asserts 
that MINCIT's  "definition  of the [PUC] was over -inclusive ".75 On the other hand, the European  Union 
maintains that it " does not challenge the definition  of the 'product under consideration' under 
Articles  2.1 and 2.6 "76; nor does it allege " that Article  5.3 contains any requirement limiting the 
investigating authority 's discretion in defining  the product under consideratio n".77 
7.21.   Notwithstanding this, we understand the European  Union to, in essence, argue that, for its 
claim under Article  5.3, "[t] he evidence supporting the description of the alleged dumped product " 
was " lacking ", because, " if it had existed",  it "would have shown" that the product imported into 
Colombia from the countries concerned "consisted quasi exclusively of the so -called 'traditional chips 
or fries'" , such that  "the inclusion of other categories of prepared or frozen potatoes in the definition 
of the [P UC] was therefore unjustified and unwarranted".78 Specifically, we understand the 
European  Union to assert that MINCIT's  definition of the PUC was over -inclusive and unsupported 
by evidence because it included within its scope: (a) products that were not imported (or were only 
imported in very small quantities)  into Colombia; and (b)  products for which it was unclear whethe r 
they were produced by the domestic industry .79 
7.22.   Although the European  Union attempts to couch its arguments in evidentiary terms to fit 
within the scope of Article  5.3, its position appears to presuppose and imply that the provisions of 
the Anti -Dumping A greement, in fact, limit the definition of the PUC to include only those specific 
product categories: (a) that are actually imported into another country; and, (b) that are "like" the 
products actually produced by the domestic industry.80 In our view, ther efore, the 
European  Union's  arguments are related to the legal question of the obligations, if any, that the 
Anti-Dumping  Agreement imposes with respect to the scope of the definition of the PUC. The 
European  Union's arguments also raise the issue of the k ind of evidence that is required as part of 
 
72 European  Union's  opening statement at the first meeting of the Panel, para. 9. See also 
European  Union's  response to Panel question No. 1.2, para.  3; and first written submission, para. 51. 
73 European  Union's response to Panel question No. 1.2, para.  4. 
74 See e.g. Colombia's  first written submission, paras.  5.11-5.16 (referring to Panel Reports, 
Mexico  – Steel Pipes and Tubes , para.  7.21; and EC – Salmon (Norway) , para.  7.43); opening statement at the 
first meeting of the Panel, para.  2.4; and second written submission, paras.  2.4, 2.11, and 2.15.  
75 European  Union's second written submission, para.  4. (emphasis added)  
76 European  Union's  response to Panel question No. 1.2, para. 5. (emphasis added)  
77 European  Union's second written submission, para.  7. (emphasis added)  
78 European  Union's  response to P anel question No. 1.2, para. 7. 
79 European  Union's  opening statement at the first meeting of the Panel, para. 9. See also 
European  Union's response to Panel question No. 1.2, para.  3; and first written submission, para. 51. 
80 European  Union's  opening state ment at the first meeting of the Panel, para. 9. See also 
European  Union's response to Panel question No. 1.2, para.  3; and first written submission, para. 51. WT/DS591/7  
 
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  the application in support of the definition of the PUC and, specifically, whether the applicant  needs 
to include evidence demonstrating that all the specific categories of products within the scope of the 
defini tion of the PUC are, in fact, imported into another country and are also produced by the 
domestic industry. In this sense,  the European  Union's arguments that are  couched in evidentiary 
terms for the purpose of Article  5.3 also appear to be related to  the interpretative  issue of the 
obligations, if any, concerning the definition of the PUC and the evidence in support thereof  at the 
initiation stage  of an investigation.  
7.23.   With respect to the legal basis of its claim, we note that t he European  Union asserts  "that 
MINCIT failed to draw the appropriate conclusions from the fact that FEDEPAPA 's application and 
subsequent reply to a request for clarification did not contain all the information required by 
Article  5.2 subparagraphs (i) and (ii) of the Anti -Dumping Ag reement ".81 Article  5.2(ii) states, in 
relevant part, that:  
An application … shall include evidence of (a) dumping, (b) injury … and (c) a causal 
link between the dumped imports and the alleged injury. … The application shall contain 
such information as is  reasonably available to the applicant on the following:  
…  
a complete description of the allegedly dumped product[.]  
7.24.   Although Article  5.2(ii) requires an application to contain a  "complete description" of the 
"allegedly dumped product ", the provision does not otherwise define what may constitute a 
"complete" description or definition of the "allegedly dumped product" or the PUC .82 In this respect, 
we note that the European  Union " does not argue that Article  5.3 contains any requirement limit ing 
the investigating authority 's discretion in defining the product under consideration ".83 We also agree 
with prior adopted DSB reports that there is "no specific provision in the AD  Agreement concerning 
the selection, description, or determination, of a  product under consideration ".84 As such, we are of 
the view that  the treaty text does not require an applicant to ensure that the definition of  the PUC 
that it submits to an investigating authority  exclud es all those  specific product categories : that are 
not imported  into its country ; and that are not produced by the domestic industry . In the absence 
of such a definitional requirement, we cannot see how Article  5.2(ii) can be read to require an 
applicant to provide supporting evidence demonstrating that al l the specific categories of products 
within the range of products covered by the definition of the PUC are, in fact, imported into another 
country and are produced by the domestic industry. Consequently, there is no basis, under 
Article  5.3 read in light of Article  5.2(ii), to  fault an investigating authority for not examining the 
sufficiency of such evidence which is not required in the first place.  
7.25.   With respect to Article  5.2(i), the European  Union contends that MINCIT initiated the 
investigation based o n insufficient evidence regarding the extent to which the PUC "corresponded" 
to the "like" product manufactured by the domestic industry.85 In particular, the European  Union 
argues that while Article  5.2(i)  requires the applicant to "correctly describe" th e domestic production 
of the "like" product, FEDEPAPA requested MINCIT to initiate the investigation in respect of a range 
of products that was wider than the range of "like" products manufactured by domestic  Colombian  
 
81 European  Union's second written submission, para.  5. 
82 We note that Article  5.2(ii) uses the term "allegedly dumped product" and not "product under 
consideration". Other provisions of the Anti -Dumping Agreement, such as, e.g. Article  2.2.1.1, use the term 
"product under consideration". In the present proceedi ngs, we understand the parties to use these terms 
interchangeably, using various formulations, including the "product under consideration", the "product 
concerned", the "product in respect of which dumping was alleged", and "the product under investigation ". 
(See e.g. European  Union's first written submission, para.  51; European  Union's response to Panel 
question  No. 1.2, paras. 2 -3 and  5; Colombia's first written submission, paras. 5.9 and 5.13; 
Colombia's  second written submission, paras. 2.4 and 2.10).  See also Panel Report, US – Softwood Lumber V , 
para. 7.152  (noting that " the allegedly dumped product … is generally referred to in the AD Agreement as the 
'product under consideration '". (emphasis omitted)) . 
83 European  Union's second written submission, pa ra. 7. 
84 Panel Report, EC - Salmon (Norway) , para.  7.43. See also Panel Report, US – Softwood Lumber V , 
para. 7.153.  
85 European  Union's  opening statement at the first meeting of the Panel, para. 9. WT/DS591/7  
 
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  producers.86 Thus, according to the European  Union, MINCIT failed to verify the "accuracy " and 
"adequacy " of the evidence provided by the applicant in support of its "description of the domestic 
production"  of the "like" product for purposes of  Article  5.3 read in lig ht of Article  5.2(i) .87 
7.26.   Noting that the Anti -Dumping  Agreement does not require an authority to ensure that  the 
PUC include s only th ose exact "models" that are produced by the domestic industry , Colombia argues 
that any such  "rule" has no basis in the  treaty text.88 Colombia also notes that,  as Article  2.6 
expressly contemplates that the PUC and the domestic like product may not be identical, it is 
"perfectly possible " for the PUC to be defined to contain elements or models that are not produced 
by the dome stic industry.89 
7.27.   As we see it, the crux of the European  Union's  claim is that the applicant did not provide 
sufficient evidence demonstrating that the PUC "corresponded" to the "like" product  produced by 
the domestic industry , and that this omission led to  MINCIT using an  over-inclusive definition of the 
PUC.90 According to the European  Union , the applicant was required to provide such information 
because : Article  5.2(i) requires a "correct description" of the domestic production of the "like" 
product ; and,  it is "reasonable" to expect that an applicant will provide  "detailed and comprehensive" 
information about the range of products that are manufactured by the domestic industry that are 
"like" the PUC.91 
7.28.   Article  5.2(i)  states , in relevant part , as follows:   
The application shall contain such information as is reasonably available to the applicant 
on the following :  
… 
the identity of the applicant and a description of the volume and value of the domestic 
production of the like product by the app licant. Where a written application is made on 
behalf of the domestic industry, the application shall identify the industry on behalf of 
which the application is made by a list of all known domestic producers of the like 
product (or associations of domesti c producers of the like product ) and, to the extent 
possible, a description of the volume and value of domestic production of the like 
product accounted for by such producers [.] 
7.29.   Article  5.2(i) requires "a description of the volume and value of the domestic  production of 
the like product by the applicant ". In the case of an application made on behalf of the domestic 
industry, the provision requires , "to the extent possible, a description of the volume and value of 
domestic production of the like product acco unted for by [the domestic] producers ". We note that 
Article  5.2(i) does not use the terms "product under consideration" or "allegedly dumped product".  
We also note that the provision does not concern the issue of defining, describing, or determining 
the P UC. Rather, it focuses, inter alia, on information concerning the "domestic production of the 
like product". As such, we are of the view that Article  5.2(i) does not require an applicant to provide 
evidence demonstrating that the scope of the  definition of  the PUC "correspond[s] " exactly  to the 
scope of the " like product  manufactured by the domestic industry".92 
 
86 Specifically, the European  Union asserts that MINCIT's d efinition of the PUC contained within its 
scope  products for which it was unclear whether they were produced by the domestic industry . (See e.g. 
European  Union's, second written submission, para.  4). 
87 European  Union's  response to Panel question No. 12.1, para. 7; opening statement at the first 
meeting of the Panel, para. 9. See also European  Union's  response to Panel question No. 1.2, paras.  2-3. 
88 Colombia 's second written submission, para. 2.7. 
89 Colombia also argues that limiting the PUC only to models also produced by the domestic industry 
would result in a "circumvention " of the disciplines of the Anti -Dumping  Agreement , because this approach 
would effectively require importing countries to leave "gaps" in anti -dump ing measures, thereby allowing for 
the entry of product models sold at dumped prices that compete with the domestic industry 's products despite 
being slightly different. (Colombia 's second written submission, paras.  2.20-2.21) . 
90 European  Union's opening s tatement at the first meeting of the Panel, para.  9. 
91 European  Union's  opening statement at the first meeting of the Panel, para. 10. See also 
European  Union's first written submission, para. 51; and response to Panel question No. 1.2, paras.  2-3. 
92 Europ ean Union's opening statement at the first meeting of the Panel, para.  9.  WT/DS591/7  
 
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  7.30.   We further note that Article  2.6 defines the term "like product" as follows:  
Throughout this Agreement the term "like product" (" produit similaire ") shall be 
interpreted to mean a product which is identical, i.e. alike in all respects to the product 
under consideration, or in the absence of such a product, another product which, 
although not alike in all respects, has characteristics closely resembli ng those of the 
product under consideration.  
7.31.   The provision thus  defines the "like product" by comparing it  to the "product under 
consideration", i.e. a product which is either "identical " to the "product under consideration ", or in 
the absence of such a pr oduct, another product which has characteristics "closely resembling " those 
of the "product under consideration ". In this regard, we note and agree with the finding of a prior 
panel that:  
[T]he definition of "like product" implies a comparison with another product … the 
starting point can only be the "other product", being the allegedly dumped product. 
Therefore, onc e the product under consideration is defined, the "like product" to the 
product under consideration has to be determined on the basis of Article  2.6. However, 
in our analysis of the AD Agreement, we could not find any guidance on the way in 
which the "prod uct under consideration" should be determined.93  
7.32.   In relying on Article  5.2(i) to challenge the manner in which MINCIT  defined the PUC for the 
purpose of initiation, the European  Union suggests that the specific products that are produced by 
the domestic industry should serve as the "starting point" for defining the PUC and that the definition 
of the PUC (or, in this case , the allegedly dumped product) should correspond exactly to the "like" 
products produced by the domestic industry. This line of inquiry, in our view, effectively reverses 
the logic underlying the definition of the term "like product" and finds no basis in  the text of 
Articles  5.2(i) and 2.6.94 We thus disagree with the Europe an Union's argument that the range of 
products covered by MINCIT's definition of the PUC at the stage of initiation was inconsistent with 
Article  5.3 because it contained certain produ cts that were not produced by the domestic industry.  
7.33.   The European  Union presents two additional supporting arguments. First, the European  Union 
contends that, because Article  5.3 governs the obligations of the investigating authority at the phase 
of initia tion, it is at this stage that the investigating authority is required to examine "critically" the 
definition of the PUC and determine whether it is "appropriate".95 We note that while an investigating 
authority , at the time of initiation,  has to  make an i nitial decision as to the scope of the investigation , 
and give  "public  notice " of the "product involved " pursuant to Article  12.1.1(i),  the 
Anti-Dumping  Agreement  does not preclude an authority from continuing to adjust  or to refine the 
scope of the PUC du ring the course of an investigation.96  
7.34.   Second, th e European  Union  notes that adopting an "over -inclusive" definition of the PUC has  
repercussions for the subsequent conduct of an investigation . According to the European  Union, the  
fact that MINCIT  adopted an "over -inclusive" definition  of the PUC erroneously caused  sales prices 
of higher -value products in the domestic markets of the countries of origin to be  included in the 
calculation of the normal value and  the inclusion of these sales artificial ly inflated the margins of 
dumping found by MINCIT during the investigation.97 Colombia responds that the fact that the 
 
93 Panel Report, US – Softwood Lumber V , para.  7.153.  
94 See e.g. Panel Report, EC – Salmon (Norway) , para.  7.51 (noting that, "[i]t is clear that the subject 
of Article  2.6 is not the scope of the product that is the subject of an anti -dumping investigation at all. Rather, 
the purpose of Article  2.6, apparent from its plain language, is to define the 'like product'").  
95 European  Union's  response to Panel question No. 1.2, para. 4. 
96 See e.g. Panel Report, Mexico – Steel Pipes and Tubes , para.  7.343  (observing that nothing in the 
Anti-Dumping Agreement "prevent[s] an investigating authority from adjusting the definition of the product 
under investigation" , and that, "in certain circumstances, it might be necessary or highly appropriate for an 
investigating authority to adjust or refine its product definition in light of information collected and analysed in 
the course of the investigation that was not available to th e IA at the time of initiation" ). 
97 European  Union's  response to Panel question No. 12.1, para. 8. See also European  Union's  response  
to Panel question No. 1.3, paras.  10-11; and opening statement at the second meeting of the Panel, para.  8.  WT/DS591/7  
 
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  definition of the PUC has implications for other steps in the investigation does not mean that this 
definition can be challenged  under A rticle 5.3.98 
7.35.   We agree that the manner in which the PUC is defined at the initiation stage can have 
implications for an investigating authority's subsequent analysis. The WTO -consistency of any such 
subsequent analysis is, however, a distinct issue that wo uld have to be examined in light of the 
specific claims and provisions that may be presented by a complainant. As such, we share the view 
of a prior panel that the mere possibility that an authority's decision at one stage of an investigation 
might lead to  an error in its subsequent analysis is " not enough to persuade us to read obligations 
into the AD Agreement for which we can find no basis in the text of the Agreement ".99 
7.2.3.3   Conclusion  
7.36.   For the reasons set out above , we find that the European  Union  has not e stablished that  
Colombia acted inconsistently with Article  5.3 of the Anti -Dumping Agreement because  MINCIT failed 
to conclude "that the application did not provide sufficient evidence to justify opening an 
investigation on the alleged dumping of the full range of products falling under tariff subheading 
2004.10.00.00. "100 
7.2.4   Representativeness  of the applicant  
7.2.4.1   Introduction  
7.37.   When initiating  the underlying investigation MINCIT determined , inter alia, that "the party 
[represented by FEDEPAPA ] account s for 69% of the total volume of domestic production", and that 
this fulfilled  "the requirement … that it must account for over 50% [of the total production  of the 
like product ] in order for the investigation to be initiated."101 In addition, MINCIT noted th at 
FEDEPAPA attached to its revised application "a list of 45 'non applicant companies', in respect of 
which it stated that steps were being taken to obtain a written document demonstrating the support 
of the entire domestic industry."102  
7.38.   The European  Union claims that , in initiating the investigation, MINCIT acted inconsistently 
with Article  5.3 because  the application did not include sufficient evidence of the 
applicant 's representativeness of the domestic industry that manufactures the "like" product . The 
European  Union presents three grounds in support of its claim. First, the European  Union asserts 
that an apparent discrepancy  exists between statements that FEDEPAPA made in  section  3 of its 
revised application (stat ing that the domestic potato -processing industry represented 69% of the 
domestic market, not of the total production ) and statements that MINCIT made in its  decision of 
initiation (stat ing that FEDEPAPA 's members account for some 69% of the total volume of the 
domestic industry) .103 Second, the European  Union submits that  it is "not clear"  that the applicant 
actually represent ed potato -processing companies, both because FEDEPAPA 's certificate of existence 
and legal representation do es not specifically note that the federation's  objectiv es include "the 
representation, defence, and protection of the interests of the potato -processing industry" ; and 
because this  certificate does not indicate whether the potato -processing industry could be members 
of the Colombian federation of potato grower s.104 Finally, the European  Union asserts that  it was 
"not clear" , at the time of initiation, whether FEDEPAPA represented at least 25 % of the total 
production of the like product as required by Article  5.4 of the Anti -Dumping  Agreement .105 
 
98 Colombia 's second written submission, para. 2.4. See also Colombia's first written submission, 
para. 5.13. 
99 Panel Report, EC – Salmon (Norway) , para.  7.58. 
100 European  Union's second written submission, para.  5. 
101 Notice  of initiation, (Exhibit  EU-1a), section  1.1 (emphasis added); Decree No. 1750 of 2015 
regulating the application of anti -dumping duties , (Exhibit  COL-8), Article  21. 
102 Notice  of initiation, (Exhibit  EU-1a), section  1.1. 
103 European  Union's  first written submission, para. 55. 
104 See e .g. European  Union's  first written submission, para. 57; and second written submission, 
paras.  9-12. 
105 European  Union's  first written submission, para. 56; opening statement at the first meeting of the 
Panel, paras.  11-12. WT/DS591/7  
 
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  7.39.   Colombia responds , inter alia, that the alleged discrepancy between the use of the term 
"domestic market" and the term "domestic production" is a small "semantic error by FEDEPAPA".106 
Moreover, according to Colombia, the European Union "seeks to interpret Colombian law by 
questioning whether FEDEPAPA re presented, in a legitimate manner in accordance with Colombian 
law, the petitioning firms." For Colombia , nothing in the Anti -Dumping  Agreement limits the entities 
which, under the applicable domestic legislation, are entitled to represent petitioning firm s, nor the 
manner in which they wish to be represented, and as such, any determination of 
"representativeness" by an investigating authority is fully within the discretion of each Member. 
Colombia also asserts that  the record indicates that MINCIT evaluate d – in light of the regulations 
in force and all relevant facts – FEDEPAPA 's capacity to represent the petitioning firms and 
determined that it was empowered to do so under Colombian law107, and that MINCIT properly 
determined that the petitioning firms acc ounted for 69% of domestic production, thus satisfying the 
minimum thresholds of 25 % and 50 % required by Article  5.4. In any event, Colombia asserts that 
the European  Union's "representativeness" claim must fail because (a) the 
European  Union 's arguments r elate to Article  5.4 but it has failed to identify Article  5.4 among its 
claims ; and (b) the issue of industry support "does not form  part of  the matter of  'evidence ' under 
Article  5.3".108 
7.2.4.2   Analysis  
7.40.   The European  Union's "representativeness" claim requires us to consider  whether an unbiased 
and objective authority could have determined that the evidence that FEDEPAPA provided in the 
application (and revised application) regarding its ability to represent  the producers of t he domestic 
"like" product was sufficient to initiate the investigation in accordance with Article  5.3 of the 
Anti-Dumping  Agreement . 
7.41.   We recall that Article  5.3 requires an investigating authority to examine the "accuracy " and 
"adequacy " of the evidence of  dumping,  injury , and causal link between them, provided in the 
application , and to determine, on this basis, whether there is "sufficient" evidence to initiate an 
investigation.109 
7.42.   As we see it, t here are three key points of contention between the parties regarding the 
representativeness of the applicant : first, an alleged discrepancy  in the relevant evidence between 
"domestic market" and "domestic production"; second, whether  the applicant  was authorized to 
represent the domestic industry ; and third, wheth er FEDEPAPA's members accounted for at least 
25% of total production of frozen fries in Colombia . We examine each of these points , in turn.  
7.43.   As to the alleged discrepancy  in the relevant evidence , the parties do not dispute that there 
is an inconsistency between section  3 of the revised  application , which state s that the domestic 
potato -processing industry represented 69 % of the domestic  market , and section  1.1 of the decision  
of initiation , which st ates that FEDEPAPA 's members account for 69 % of the total volume of the 
domestic production . 
7.44.   Section  3 of FEDEPAPA 's revised application  reads , in relevant part, as follows : 
3 REPRESENTAT IVENESS  
Decree  1750  of 2015  sets out the provisions applicable to investigations concerning 
imports of products originating in WTO member countries that generate or cause 
dumping while affecting a significant portion of the domestic industry . 
Article  21 thereof states that " for the purposes  of initiating  an investigation,  an 
application  shall be considered  to have been made  by or on behalf  of the domestic  
industry  if it is supported  by those  domestic  producers  whose  collective  output  
constitutes  more than 50% of the total production  of the like product  produced  by that 
 
106 Colombia 's first written submission, paras.  5.19-5.20. 
107 See e.g.  Colombia 's first written submission, paras.  5.27-5.29 and 5.34.  
108 See e.g.  Colombia 's first written submission, paras.  5.25-5.29; closing statement at the first meeting 
of the Panel, para. 4; and secon d written submission, paras.  2.26 and 2.28 -2.30. 
109 See paragraph 7.12 above.  WT/DS591/7  
 
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  portion  of the domestic  industry  expressing  either  support  for or opposition  to the 
application ". 
That said, the following facts should be highlighted in relation to representativeness:  
…  
b. The national pro cessing industry, in accordance with " Annex  4", accounts for 69% 
of the domestic  market,  exceeding  the threshold  laid down  in the above -mentioned  
decree .110 
7.45.   In support of its position, t he European  Union  highlights  the last part of the  above  excerpt , 
where in FEDEPAPA states that "[t]he national processing industry" accounts for 69 % of "the 
domestic market" instead of referring to domestic production  as stated by MINCIT in the notice of 
initiation.111 The European  Union , however, does not explain how thi s discrepancy  demonstrates an 
alleged lack of evidence regarding the applicant 's representativeness of the total domestic 
production. Moreover, we consider  that the passages cited above could  reasonably be read to infer 
that the applicant wanted to refer t o 69% of domestic production . This is because  the figure of 69 % 
in this passage refers explicitly to the "threshold laid down [in Article  21 of the Decree No. 1750 of 
2015]" which requires compliance with the requirement of "more than 50% of the total production  
of the like product produced by that portion of the domestic industry expressing either support for 
or opposition to the application".112 We thus agree w ith Colombia  that this discrepancy  appears to 
be a  simple  "semantic error by FEDEPAPA".113 For this reason, we reject the 
European  Union's  argument that FEDEPAPA's  use of the term "domestic market" (in section  3 of the 
revised the application ) rather than  the term "domestic production"  demonstrates  that the revised 
application did not include sufficient evidence of the applicant 's representativeness of the domestic 
industry that manufactures the "like" product.  
7.46.   Turning to the question of whether  the applican t was authorized to act on behalf of the 
domestic industry, we note that t he parties ' disagreement concerns the basis on which the applicant 
claimed to represent the potato -processing industry. The parties do not dispute  that FEDEPAPA  relied 
on its certificate of existence and legal representation to demonstrate its ability to represent the 
potato -processing industry.114 Specifically, in its revised application, FEDEPAPA quoted this 
certificate , in relevant part, as follows :  
1 INFORMAT ION CONCERNING  THE APPLICANT  
…  
CORPORATE  PURPOSE : The Colombian Federation of Potato Producers 
(Fedepapa ) has the following objectives : (a) … (b) to represent, defend and protect the 
interests of potato growers before the national government and other pub lic and private 
entities in all areas related directly or indirectly to the potato production system; … 
 
110 Revised application, (Exhibit  EU-10), section  3. (italics and bold type  original ; underlining added)  
111 Specifically, the European  Union refers to the notice of initiation, which in relevant part, reads as 
follows : 
1.1 Representativeness  
The legal representative of the applicant FEDEPAPA  states that the party it represents accounts 
for 69% of the total volume of domestic production  and would therefore fulfil the requirement of 
Article  21 of Decree No. 1750 of 2015 that it must account for over 50% in order for the 
investigation to be init iated.  
(Notice of initiation, (Exbibit EU -1a), section  1.1 (bold type  original ; italics  added) ) 
112 Decree No. 1750 of 2015 regulating the application of anti -dumping duties , (Exhibit  COL-8), 
Article  21. (emphasis  added)  
113 Colombia's  first written submission , paras.  5.19-5.21. 
114 See e.g. Colombia's  first written submission, para.  5.31; and European  Union's  opening statement at 
the second meeting of the Panel, para.  11.  WT/DS591/7  
 
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  (k) to reaffirm the economic, social and political importance of potatoes and the potato 
industry before government agencies and private entities [.]115 
7.47.   The European  Union  contends that the basis on which the applicant claimed to represent the 
potato -processing industry was "not clear" because none of the objectives listed in 
FEDEPAPA 's certificate refer specifically to "the representation, defence, and pr otection of the 
interests of the potato -processing industry", and the wording of objective (k) is "vague and generic", 
in contrast to the precise wording of objective (b), which explicitly refers to "the representation, 
defence, and protection of the inter ests of the potato growers".116 Colombia responds that the 
Anti-Dumping  Agreement  does not "limit" the types of entities that may  represent petitioning firms, 
nor the manner in which they wish to be represented, and as such, this determination of 
"represent ativeness"  is fully within the "discretion" of each Member.117 Colombia also notes that  
MINCIT  evaluated – in light of the regulations in force and all relevant  facts – FEDEPAPA's  capacity 
to represent the three petitioning firms (Congelagro, Frozen Express , and Soraca ) and determined 
that it was empowered to do so under Colombian law.118 
7.48.   Article  5.1 of the Anti -Dumping  Agreement  recognizes that an application may be made "on 
behalf" of the domestic industry. Article  5.2(i) of the Anti -Dumping  Agreement  also states that an 
"application shall contain such information as is reasonably available to the applicant"  concerning 
"the iden tity of the applicant" and , where the application is made "on behalf" of the domestic 
industry, the application shall also "identify the industry on behalf of which the application is made 
by a list of all known domestic producers of the like product (or a ssociations of domestic producers 
of the like product)".  
7.49.   We note that nothing in the text of these provisions, or elsewhere in the 
Anti-Dumping  Agreement, provides guidance as to how the representation of domestic producers in 
an anti -dumping investigation  should be established  by an applicant .119 The Agreement  is thus silent 
as to the form or manner in which an applicant, acting "on behalf" of the domestic industry, must 
demonstrate that it has the capacity to represent domestic producers  of the like produc t 
(or associations of domestic producers of the like product) . 
7.50.   The European  Union  does not assert that FEDEPAPA 's certificate of existence and legal 
representation could per se not be used to demonstrate that FEDEPAPA has the capacity to represent 
the pota to-processing industry. Rather, the European  Union simply  argues that it was "not clear" 
from the objectives listed in this certificate that FEDEPAPA could represent the producers of the 
potato -processing industry because none of these objectives expressly  refer to "the representation, 
defence, and protection of the interests of the potato -processing industry", in contrast to the precise 
wording of objective (b) with respect to the  representation of potato growers.  
7.51.   We note, however, that the European  Union  has not pointed the Panel to any evidence in 
support of its argument that the fact that FEDEPAPA's  certificate  does not "explicitly" authorize it to 
represent the potato -processing industry before MINCIT prevents i t from doing so.  Specifically,  the 
European  Union  has not explained, much less demonstrated  on the basis of evidence , (i) how the 
allegedly "vague and generic" wording of objective (k) precludes  FEDEPAPA from representing the 
potato -processing industry , or (ii) how the fact that objective (b) explicitly refers to the 
"representation, defence, and protection of the interests of the potato growers" precludes  FEDEPAPA 
from represent ing potato -processing producers. We also observe that  the European  Union  has 
 
115 Revised application, (Exhibit  EU-10), section  1 (bold type  original) . See also  FEDEPAPA 's certificate of 
existence and legal representation , (Exhibit  EU-14), p. 498. 
116 See e .g. European  Union's  first written submission, para. 57; response to Panel question No.  1.5, 
paras.  14-15; and second written submission, paras.  9 and 12 . 
117 Colom bia's first written submission, paras.  5.27-5.29 and 5.34 -5.35; second written submission, 
para. 2.32. 
118 Colombia's  first written submission, para.  5.34. 
119 In this regard, we note Colombia's  assertion that "[t]he Anti -dumping  Agreement does not contain 
any provision, rule or requirement as to when and how and under what conditions an entity can represent 
domestic producers and act on 'behalf of' them", indicating therefore that it is within the "investigating 
authorities[']  full discretion to determine, und er the national legislation in force and, in each particular case, 
under what conditions an entity or person may validly represent domestic producers". (Colombia's  response to 
Panel question No.  1.3 paras.  4-5 (fn omitted)).  Apart from indicating the limit ations imposed by Article  5.4 on 
industry support, the European  Union does not appear to have disputed this assertion . 
(European  Union's  response to Panel question No. 1.4, para. 13).  WT/DS591/7  
 
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  neither argued, nor  pointed to any evidence  that demonstrates  that the petitioning firms are not, in 
fact, members of FEDEPAPA.120 
7.52.   Absent specific guidance in the Anti -Dumping  Agreement indicating how an applicant, acting 
"on behalf" of domestic producers, must establish that it has the capacity to represent these 
producers, as well as the lack of argument or evidence  presented  by the European  Union  for 
demonstrating tha t these producers were  not members of FEDEPAPA , we fail to see the basis for the 
European  Union's  argument that there was no evidence that FEDEPAPA represented the domestic 
industry that produced the domestic like product .121 
7.53.   The final issue  concerns whethe r the evidence  that FEDEPAPA provided in its application  was 
sufficient to establish that the application wa s expressly supported  by at least 25% of the domestic 
producers of the "like" product . Colombia asserts that , while the European  Union's  argument is  
related to Article  5.4, the European  Union  has failed to identify Article  5.4 among its claims, and 
therefore the subject of industry support is outside the Panel 's terms of reference .122 In response to 
questioning by the Panel, the European  Union  clarifie d that it does not raise a claim under 
Article  5.4.123 
7.54.   Even assuming (quod non ) that the obligations of Article  5.3 apply to the issue of industry 
support referred to in  Article  5.4, we are of the view that the European  Union  has not established 
that MINCIT failed to examine the accuracy and adequacy of the information in the application 
concerning the issue of  industry support. In particular, the European  Union  has not demonstrated , 
with supporting evidence , that the informat ion provided by FEDEPAPA was insufficient to establish 
that the application was supported by at least 25% of the domestic producers of the "like" product,  
and was therefore insufficient to justify initiating the investigation.124 
7.55.   In support of its argument,  the European  Union  refers to section  1.1 of MINCIT's  notice of 
initiation entitled "Representativeness" , which reads as follows :  
1.1 Representativen ess 
The legal representative of the applicant FEDEPAPA states that the party it represents 
accounts for 69 % of the total volume of domestic production and would therefore fulfil 
the requirement of Article  21 of Decree No. 1750 of 2015 that it must account for over 
50% in order for the investigation to be initiated.125  
In addition, the applicant attached a list  of 45 "non applicant companies", in respect of 
which it stated that steps were being taken to obtain a written document demonstrating 
the support of the entire domestic industry.126 
 
120 We also note Colombia's  assertion, which the European  Union has not countered, that the three 
companies represented by FEDEPAPA cooperated actively in the submission of documents and information to 
MINCIT . (Colombia 's second written submission, para. 2.24; opening statement at the second meeting of the 
Panel, para.  2.17). 
121 For the same reasons, we also decline to accept the European  Union's  argument that 
FEDEPAPA's  certificate of existence and legal representation does not indicate "in any form" that 
potato -processing companies could be members of th is federation.  (See e .g. European  Union's  first written 
submission, para.  57). In particular, the European  Union has not demonstrated that this certificate precludes 
FEDEPAPA from represent ing potato -processing producers.  
122 Colombia adds that the issue of industry support does not form part of the matter of "evidence" 
under Article  5.3 of the Anti -Dumping  Agreement. (Colombia's  response to Panel question No.  1.8, 
paras.  19-20; closing statement at the first meeting  of the Panel, para. 4; and second written submission, 
paras.  2.26-2.30). 
123 European  Union's  response to Panel question No.  1.7(a), para.  18. See also European  Union's  second 
written submission, para.  13. 
124 European  Union's  response to Panel questio n No. 1.7(a), para. 19; second written submission, 
para. 14. 
125 Decree No. 1750 of 2015 regulating the application of anti -dumping duties , (Exhibit  COL-8), 
Article  21. We note that Article  21 of Decree No. 1750 of 2015 refers to both the minimum thresholds of 50% 
and 25 % required by Article  5.4 of the Anti -Dumping  Agreement.  
126 Notice of initiation , (Exhibit  EU-1a), section  1.1. WT/DS591/7  
 
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  7.56.   According to the European  Union, the industry support of at least 25 % was "far from clear" 
from the text of the passages cited above .127 In our view, however, a c areful reading of these 
passages shows that the application was supported by "69% of the total volume of domestic 
production", indicating therefore that the applica tion met the minimum threshold of 25 % of the total 
production of the like product. We also recall that nothing in Article  5.3 sets out obligations with 
respect to how the examination of the evidence is to be undertaken or needs to be explained by 
investiga ting authorities.128 As a consequence, we do not see the basis for the 
European  Union's  argument that it was "unclear" that the application was supported by at least 25% 
of the total production of the like product . Moreover, a  mere allegation of a "lack of clarity" in an 
investigating authority 's determination does not demonstrate a lack of "sufficient" evidence for 
purposes of initiation within the meaning of Article  5.3. In fact, the European  Union recognizes that 
MINCIT did not fail to make a determinatio n with regard to the degree of support of the application 
by the domestic industry .129 
7.57.   The European  Union  also argues that because the application did not "clearly" identify the 
producers of the like product and included potato growers among the domestic in dustry, there were 
legitimate "doubts" about the extent to which FEDEPAPA represented the producers of the like 
product at the time of initiation.130 First, we note that section  3 of the revised application, which 
refers to the "representativeness" of FEDEP APA, states that "[t]he national processing industry … 
accounts for 69% of the domestic [production]".131 Second, annex  1 of the revised application 
provides a list of the domestic processing industry.132 Finally, as noted in section  7.2.6 below, the 
record evidence shows that the data considered by MINCIT in its injury analysis  relates  explicitly  to 
frozen precooked potatoes and to the potato -processing industry, indicating therefore that potato 
growers were not included in the definition of the domestic industry. Thus, the 
European  Union's  assertions that  the application did not "clearly" identify the producers of the "like" 
product and includ ed potato growers among the domestic industry do not correspond to the facts 
on the record . As such, we fail to see how th ese arguments can demonstrate the alleged lack of 
sufficient evidence establishing that the application was expressly supported by at least 25% of the 
domestic producers of the "like" product.  
7.2.4.3   Conclusion   
7.58.   For the foregoing reasons, we find that the European  Union has not established that Colombia 
acted inconsistently with its obligations under Article  5.3 because MINCIT did not have suff icient 
evidence demonstrating that FEDEPAPA represented the domestic producers of the "like" product  so 
as to justify initiating the underlying investigation . 
7.2.5   Evidence used  to determine  the normal value  
7.2.5.1   Introduction  
7.59.   As part of its revised application for t he initiation of the underlying investigation , FEDEPAPA  
stated that  "the export price for frozen precooked potatoes exported from Belgium, the Netherlands 
(Holland), Germany and France to the United  Kingdom during the period July  2014-June 2016 was 
used as  the basis for the normal value."133 In its notice of initiation, MINCIT determined the normal 
 
127 European  Union's  response to Panel question No.  1.7(a), para.  18. 
128 We agree with prior adopted DSB reports  that Article  5.3 does not speak to "the nature of the 
examination to be carried out ", nor does it require "an explanation of how that examination w as carried out ". 
(Panel Report, EC – Bed Linen , para. 6.198 ); nor does Article  5.3 "impose an obligation on the investigating 
authority to set out its resolution of all underlying issues considered in making [its determination of whether 
there is sufficien t evidence to justify initiation]". (Panel Report, Mexico – Corn Syrup , para.  7.102  
(emphasis  original) ). 
129 See e .g. European  Union's  second written submission, para. 13. 
130 European  Union's  second  written submission, para. 14. According to the European  Union, this "in 
itself" indicates that the evidence supporting the application was "sketchy" and "insufficient". ( Ibid. para. 15). 
131 As noted in paragraph  7.45 above, we understand that the applicant referred to 69% of "domestic 
production ". 
132 Revised application, (Exhibit  EU-10), section 11;  Annex 1 of the revised application , 
(Exhibit  COL-36-A (BCI)).  
133 Revised application , (Exhibit EU -10), section 10(a).  As noted in fn 51 above , MINCIT elected to 
exclude imports from France from the investigation at issue on the grounds that "there have been no imports 
since 2015" and that therefore "it [was] not appropriate to link these imports to the investigation". (Notice of 
initiation , (Exhibit EU -1a), section 1.4).  WT/DS591/7  
 
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  value "based on the information provided by the applicant", noting that the " applicant proposed " 
taking "the export price of frozen precooked potatoes from Belgium, the Netherlands (Holland), 
Germany and France to the United  Kingdom " during "the period from July  2014 [to] June 2016" as 
the basis for the normal value .134 
7.60.   The European  Union c laims that, by relying exclusively on the export price of frozen precoo ked 
potatoes from Belgium, the Netherlands, and Germany , to the United  Kingdom  – i.e. a 
"third  country" – for determining the normal value , MINCIT  acted inconsistently with Article  5.3 of 
the Anti -Dumping Agreement because it did not examine the "adequacy"  of the evidence provided 
in the application.135 Although the European  Union accepts that an investigating authorit y can rely 
on sale s prices to a third  country to calculate the normal value  for purposes of initiation136, it submits 
that under Article  5.2(ii i) of the Anti -Dumping Agreement, information on sale s prices in the 
domestic markets of the country or countries of origin is to be "preferred " for this purpose.137 
Highlighting the use of the term "where appropriate" in Article  5.2(iii), the European  Union argues 
that recourse to sales prices in third countries should " only occur where information on the price of 
sales in the domestic market of the country or countries of origin is not reasonably available to the 
applicant, or where, in accordance with … Articles  2.2 and 2.2.1 of the Anti -Dumping Agreement, 
the investigating authority determines that the sales in the domestic market of the exporting country 
do not permit a proper comparison with the export price ", such as in cases " where there are no such 
domestic sales in the ordinary course of trade, they are not representative or where, for other 
reasons, a proper comparison is not possible. "138 Emphasizing  that there was no indication of the 
existence of any of these conditions  in the underlying inv estigation139, the European  Union claims 
that MINCIT acted inconsistently with Article  5.3 because it did not question the "adequacy " of the 
evidence submitted by FEDEPAP A.140  
7.61.   Colombia responds that, although  the European  Union focuses on the term "where 
appropriate"  in Article  5.2(iii), it  does not explain the relevance of that provision in the context of a 
claim under Article  5.3.141 For Colombia, the use of the  term "where appropriate" in Article  5.2(iii) 
highlights that the applicant has the flexibility  and the "free choice" to submit the information on 
normal value that appears to the applicant to be the "most" appropriate and "relevant ".142 Colombia 
takes issue with the European  Union's reliance on Articles  2.2 and 2.2.1, noting that the strict criteria 
and hierarchies under those provisions do not apply at the stage of the initiation of an 
investigation.143 According to Colombia, the European  Union 's position  means effectively  that the 
initiation of an investigation requires a full investigation beforehand  and that, therefore, this 
approach  incorrectly mixes the key elements of an "investigation" with the requirements of an 
"initiation ".144 
7.2.5.2   Analysis  
7.62.   As discussed above, under Article  5.3, the determination as to whether there is "sufficient 
evidence to justify the initiation of an investigation" must be based on an examination of the 
"accuracy" and "adequacy" of the "evidence provided in the applicatio n". Article  5.3 thus requires 
authorities to examine the evidence "in the application" . Article  5.2, in turn, specifies what 
"evidence" and "information" is to be provided in the "application". Specifically, the provision  
requires  an "application " to inclu de evidence of "(a) dumping , (b) injury  … and (c)  a causal link 
 
134 Notice of initiation, ( Exhibit EU -1a), section 2.1.3.  
135 European  Union's response to Panel question No . 12.6, paras.  25-26 (noting that "[t] he 
European  Union does not express an opinion on whether that information was accurate or not. However, the 
European  Union considers that information on the export price of frozen precooked potatoes from Belgium, the 
Netherlands, and Germany to the United  Kingdom was not adequate evidence to serve as a basis for normal 
value calculations in the context of initiation. ") 
136 European  Union's second written submission, para.  16; response to Panel question No. 1.9(a), 
para. 29. 
137 European  Union's first written submission, para.  58; response to Panel question No. 12.6, para.  26. 
138 European  Union's second written submission, para.  16; response to Panel question No. 1.9(a), 
para. 29; and response to Panel question No. 12.6, para.  26. 
139 European  Union 's second written submission, para. 17. 
140 European  Union's response to Panel question No. 12.6, paras.  25-26. 
141 Colombia 's first written submission, para. 5.43; second written submission, para.  2.41. 
142 Colombia 's response to Panel question No. 1. 9(b), paras.  37-39. 
143 Colombia 's second written submission, para. 2.41; response to Panel question No. 1. 9(b), 
paras.  42-43 and 45 -66. 
144 Colombia 's second written submission, paras.  2.49-2.53. WT/DS591/7  
 
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  between the dumped imports and the alleged injury" .145 With respect to normal value, Article  5.2(iii) 
further requires that the " application shall contain such information as is reasonably avai lable to the 
applicant on ": 
[P]rices at which the product in question is sold when destined for consumption in the 
domestic markets of the country or countries of origin or export (or, where appropriate, 
information on the prices at which the product is so ld from the country or countries of 
origin or export to a third country or countries, or on the constructed value of the 
product) and information on export prices or, where appropriate, on the prices at which 
the product is first resold to an independent b uyer in the territory of the importing 
Member [.]  
7.63.   The reference to evidence provided "in the application" in Article  5.3 and the requirements of 
Article  5.2(iii), specifying in detail what evidence and information is to be included in "the 
application", es tablish, in our view, an explicit connection or link between these two provisions. As 
we see it, an examination of the accuracy and adequacy of the evidence in the application with a 
view to determining whether it is sufficient for initiation cannot be und ertaken in the abstract or in 
a vacuum. Rather, such an examination under Article  5.3 is informed by Article  5.2, including 
Article  5.2(iii).146 For this reason, we disagree with Colombia insofar as it argues that "the terms of 
Article  5.2 are not in princi ple relevant to assessing the European  Union's claim " under Article  5.3.147  
7.64.   Examining the context provided by Article  5.2(iii) for purposes of our assessment of 
MINCIT's  conduct under Article  5.3 in this dispute, we note that the provision envisages that the 
application shall contain certain information relating to the prices of the "product in question". 
Specifically, Article  5.2(iii) requires the application to contain "such information " as is "reasonably 
available " to the applicant  "on prices at which the product in question is sold when destined for 
consumption in the domestic markets of the country or countries of origin or export (or, where 
appropriate, information o n the prices at which the product is sold from the country or countries of 
origin or export to a third country or countries, or on the constructed value of the product) ".148 
7.65.   Article  5.2(iii) thus envisages the possibility of providing three types of pricing  information in 
the application: (a) information on prices at which the product in question is sold when destined for 
consumption in the domestic markets of the country or countries of origin or export  ("domestic sales 
prices"); or, "where appropriate", (b ) information on the prices at which the product is sold from the 
country or countries of origin or export to a third country or countries  ("third -country sales prices");  
or, also "where appropriate", (c) on the constructed value of the product  ("constructed value"). The 
possibility of providing third -country sales prices and constructed value is, unlike the case of 
domestic sale s prices , textually limited to "where" this is "appropriate" and forms part of a 
parenthetical text.  
7.66.   The parties diffe r in their interpretation of the term "where appropriate" in Article  5.2(iii). T he 
European  Union argues that the phrase "where appropriate" allows  an applic ation to provide  
information on third -country sales prices only : (a) when  information on domestic s ales prices in the 
countr ies of origin is not "reasonably available " to the applicant; or (b) when,  "in accordance with  
the detailed rules in  Articles  2.2 and 2.2.1 of the Anti -Dumping Agreement, the investigating 
authority determines that the sales in the  domestic market of the exporting country do not permit 
a proper comparison with the export price ".149 With respect to the second situation, the 
 
145 See paragraph 7.12 above.  
146 See e .g. Panel Report, Guatemala – Cement II , para. 8.35;  see also Panel Report, 
Morocco  – Definitive AD Measures on Exercise Books ( Tunisia) , para. 7.355 [appealed; adoption pending ] 
(noting that " Article  5.2 determines the content of the complaint submitted by the domestic industry and does 
not therefore create directly an obligation for the investigating authority. It is Article  5.3 that … sets the criteria 
for the review that the authority must undertake to determine whether the evidence contained in the complaint 
is sufficient  to justify the initiation of an investigation. We therefore agree … that Article  5.2 describes the 
evidence and information that an applicant  must include in its complaint, but that the relevant obligations that 
apply to the investigating authority are set out in Article  5.3.") 
147 Colombia's response to Panel question No. 1.9(d), para.  71; first written submission, para. 5.43; and 
second written submission, para.  2.41. 
148 This is to be read in light of the qualification in the chapeau  Article  5.2 that "such information" be 
"reasonably available to the applicant".  
149 European  Union's  response to Panel questi on No. 1.9 (a), para. 29; response to Panel question 
No. 12.3(c), para.  21. WT/DS591/7  
 
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  European  Union further explains that this is " the case where there are no such domestic sales in the 
ordinary co urse of trade, they are not representative or where, for other reasons, a proper 
comparison is not possible. "150 
7.67.   Colombia responds that the term "where appropriate" " indicates and underscores the free 
choice of the applicant to submit the information on nor mal value that appears to the applicant to 
be the most appropriate and relevant. "151 According to Colombia, the term "where appropriate" 
means that " if the applicant deems it appropriate, it may choose to submit information not on sales 
in the domestic mark et, but information on production costs or prices of exports to a 
third country. "152 Colombia avers that "the drafters included this phrase … most likely to indicate 
that, in the context of initiation … the Article  2.2 hierarchy of methods for determining n ormal value 
does not apply".153 Colombia submits that, e ven assuming that the term "where appropriate" 
requires "some form of explanation or explicit enquiry", this can be limited only to the question of 
whether "the third market data is 'appropriate ' or 'suited ' to be used as evidence of normal value" .154 
7.68.   We note, first, that Articles  5.2(iii) and 5.3 concern the contents of an application to initiate 
an investigation and an investigating authority's exami nation thereof with a view to determining 
whether they "justify the initiation of an investigation". In other words, the two provisions, by their 
terms, concern the initiation stage of an investigation, which is distinct from the "subsequent 
investigation" .155 Furthermore, as discussed above, Article  5.2 requires  an "application " to include 
evidence of "(a) dumping , (b) injury  … and (c)  a causal link between the dumped imports and the 
alleged injury" .156 Thus, initiation requires evidence of the same three el ements  (i.e. dumping, 
injury, and the causal link between them)  as those whose existence must be  ultimately  determined  
in order to impose anti -dumping measures.157 At the same time, we note the absence of a textual 
link between Article  5.2(iii), on the one hand, and Articles  2.2 and 2.2.1, on the other hand.158 
We also recall that t he "quantity and quality" of the evidence needed to initiate an investigation are 
generally lesser than  what is  required to impose anti -dumping measures .159 
7.69.   As noted above, the poss ibility of providing third -country sales prices in an application is, 
unlike the case of domestic sales prices , textually limited in Article  5.2 to "where" this is 
"appropriate". The dictionary definition of the word "where" includes "[i]n a or the case in  which …; 
 
150 European  Union's  response to Panel question No. 1.9 (a), para. 29; second written submission, 
para. 16. 
151 Colombia's response to Panel question No. 1.9(b), para.  37. 
152 Colombia 's response to Panel question No. 1. 9(b), para. 39. 
153 Colombia's response to Pan el question No. 1.9(b), para.  40. See also Colombia's response to Panel 
question No. 1.9(b ), paras.  42-64. 
154 Colombia's closing statement at the second meeting of the Panel, paras.  1.9-1.11. Colombia 
maintains that MINCIT addressed this question. (Ibid. para.  1.11).  
155 See e.g. Article  5.7 of the Anti -Dumping Agreement and the heading of Article  5.  
156 Similarly, Article  5.6 states that if an investigating authority  decides to initiate an investigation 
without having received a written application, i.e. on its own initiative, it " shall proceed only if [it] ha[s] 
sufficient evidence of dumping, injury and a causal l ink, as described in paragraph 2  [of Article  5], to justify the 
initiation of an investigation ".  
157 See e .g. Panel Reports, Guatemala – Cement II , para.  8.35; Mexico – Steel Pipes and Tubes , 
para. 7.21; and US – Softwood Lumber V , para.  7.77. 
158 We note tha t several third parties  in this dispute  highlight the limited relevance of Articles  2.1 
and 2.2 for purposes of Article  5.2(iii) . Brazil considers that the expression "where appropriate" in Article  5.2 
should not be interpreted based on Articles  2.1 and 2. 2, which concern later stages in the investigation to 
which a higher threshold of assessment applies. (Brazil 's third-party response to Panel question No. 1.3 (c), 
para. 11). For Japan, the term "where appropriate" does not refer to situations provided under Article  2.2 and 
is not limited to those situations, as there may be other situations that could satisfy the "where appropriate" 
requirement. (Japan 's third-party response to Panel question No. 1.3 (c), para. 12). The United  States  takes the 
position  that, unlike Articles  2.1 and 2.2, Article  5.2 does not indicate that an applicant must establish normal 
value based on the comparable price for the like product when destined for consumption in the export country, 
nor does this provision indicate that an application must establish that there are no sales of the like product 
when destined for consumption in the export country before the applicant may rely on information about 
third-country sales or constructed value. Moreover, the information provid ed in an application need not be of 
the same quantity or quality that would be necessary to make a preliminary or final determination. 
(United  States third-party response to Panel question No. 1.3 (c), para. 8). 
159 See paragraph 7.12 above. See also Panel Reports, Guatemala – Cement II , para.  8.35;  and Mexico 
– Steel Pipes and Tubes , paras.  7.22 and 7.27.  WT/DS591/7  
 
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  in the circumstances … in which".160 The word "appropriate" is defined, inter alia, as "[s] pecially 
fitted or suitable ".161 These definitions convey to us the notion of being "suitable" to the particular 
situation or circumstances at hand.162 For purposes of an investigating authority's examination under 
Article  5.3, therefore, the use of the term "where appropriate" implies, a t a minimum, the exercise 
of judgment as to the fitness , suitability , or "appropriateness",  of using third -country sales prices, 
instead of domestic sales prices , in light of the specific  situation  at hand. As relevant context, we 
also note that the chapea u of Article  5.2 states that "[s] imple assertion, unsubstantiated by relevant 
evidence, cannot be considered sufficient to meet the requirements of this paragraph. " Relatedly, 
we note that Article  5.2(iii) uses the term "where appropriate"163, and not the t erm "where the 
applicant considers  or deems  it appropriate".  
7.70.   For these reasons, we disagree with Colombia's interpretation that the use of the term "where 
appropriate" indicates that an applicant enjoys complete " free choice " to submit any information 
that it desires for calculating  normal value . Accepting Colombia's interpretation would deny any 
effect to the meaning or placement of the term "where appropriate", contrary to the principle of 
effectiveness in treaty interpretation. Rather, as we see it, an i nvestigating authority's examination, 
under Article  5.3, of the "adequacy" and sufficiency of the evidence for determining normal value 
for purposes of initiation requires, at the very least, an exercise of judgment as to the suitability or 
appropriateness  of using third -country sales prices, instead of domestic sales prices, in the specific 
situation before it. Finally, while Article  5.3 requires investigating authorities to examine the 
accuracy and adequacy of the evidence provided in the application  for purposes of initiation in a 
given case, we agree with prior adopted DSB reports that the provision says nothing regarding the 
nature of the examination to be carried out  in the abstract . Nor does it say anything requiring an 
explanation of how that examina tion was carried out.164 Any review of an investigating 
authority's  conduct under Article  5.3 must therefore be carried out on a case -by-case basis.165 
7.71.   In light of these requirements and the attendant standard of review, we turn to examine the 
facts of the u nderlying investigation.  
7.72.   In its application, FEDEPAPA stated that "[t]he implicit export prices from Belgium to Colombia 
compared with other countries nearer to Belgium are relatively low, with the United  Kingdom and 
Denmark standing out as countries parti cularly close to Belgium."166 MINCIT subsequently requested 
the applicant to submit information on, inter alia, "[a] definition of the normal value selected for the 
purpose of determining the dumping margin, as shown in Figure 3, that is to say, the price of the 
product under consideration set by Belgium, the destination country chosen, as well as the period 
that should correspond to June 2016 to June 2017."167 
7.73.   Responding to MINCIT's query, FEDEPAPA, in its revised application, did not address why it 
elected to provide third -country sales prices rather than domestic sales prices as the basis for the 
normal value calculation. Instead, it simply stated that the " export  price for frozen precooked 
potatoes exported from Belgium, the Netherlands (Holland), G ermany and France to the 
United  Kingdom during the period July  2014-June 2016 was used  as the basis for the normal 
value."168 The only further explanation offered by FEDEPAPA relates to its specific choice of the 
United  Kingdom for the third -country sales p rices:  
 
160 Oxford Dictionaries online, defin ition of " where " 
https://www.oed.com/view/Entry/228210?redirectedFrom=where#eid  (accessed 6 May 2022), adv., 
meaning  10b. 
161 Oxford Dictionaries online, definition of " appropriate " 
https://www.oed.com/view/Entry/9870?rskey=F8CcMO&result=1&isAdvanced=false#eid  (accessed 
5 May 2022), adj., meaning 5. 
162 See e .g. Decision by t he Arbitrator, US – Upland Cotton (Article  22.6 – US I), para.  4.46; and 
Panel  Report, EC – Tube or Pipe Fittings , para.  7.240.  
163 We note that the term "where appropriate" appears in the co -authentic Spanish and French texts of 
the Anti -Dumping Agreement  as "cuando proceda " and " le cas échéant ", respectively.  
164 Panel Report, EC – Bed Linen , para.  6.198. See also  Mexico – Corn Syrup , paras.  7.105 and  7.110 . 
165 See e .g. Panel Report, Mexico – Steel Pipes and Tubes , para.  7.24. 
166 FEDEPAPA's application , (Exhibit EU -8a), clause  10.  
167 MINCIT's deficiency letter to FEDEPAPA, (Exhibit EU -9a), numeral 2.   
168 Revised application , (Exhibit EU -10), section 10(a).  (emphasis added)  WT/DS591/7  
 
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  This country was chosen because other applications have already identified it as a major 
producer, importer and consumer of frozen precooked potatoes, and it is perhaps the 
largest market in Europe.  
The United  Kingdom and the countries covered by th is application are members of the 
European  Union and therefore subscribe to the free movement of goods within the 
common market, which would make the prices of exports from these countries to the 
British market very close to those in the domestic market of  the country that is the 
subject of this application.169 
7.74.   In its notice of initiation of  the investigation, MINCIT determined the normal value "based on 
the information provided by the applicant", noting that the " applicant " proposed taking "the export 
price of frozen precooked potatoes from Belgium, the Netherlands (Holland), Germany and France 
to the United  Kingdom during the period from July  2014 to June  2016" as the basis for the normal 
value .170 The notice of initiation further stated that:  
The applicant clarifies that the United  Kingdom is the chosen country due to the fact 
that, in other applications, it has already been identified as a major producer, importer 
and consumer of frozen precooked potatoes and is perhaps the largest market in 
Europe. Moreover, the United  Kingdom and the countries named in the application are 
members of the European  Union and therefore benefit from the free movement of goods 
through the common market, which would mak e the export prices of these countries to 
the British market very close to those found on the domestic market of the countries 
being studied.171 
7.75.   Thus, the applicant did not offer, and MINCIT accordingly did not examine, any reasons as to 
why information on domestic sales prices was not provided in the application for initiation. As part 
of its decision to initiate, MINCIT simply recited – without any further "examination" – the reasons 
provided by FEDEPAPA for choosing third -country sales prices to the Unite d Kingdom as the basis 
for determining normal value for purposes of initiation.172 In our view, the record thus indicates a 
complete absence of any explanation by FEDEPAPA or examination thereof by MINCIT as to why 
domestic sales prices were not contained i n the application and could not be used for purposes of 
initiation in the specific situation at hand.173 
7.76.   Colombia submits that the reference to "other applications" in FEDEPAPA's application and 
MINCIT's notice of initiation " refers to Brazil's initiation o f an anti -dumping investigation on imports 
of the same product from Germany, Belgium, France and the Netherlands ."174 The decision to initiate 
an anti -dumping investigation on frozen potatoes  by the Brazilian investigating authority was 
included as an annex  to FEDEPAPA's application.175 As Colombia acknowledges, the Brazilian 
authority's initiation decision contains not only a discussion as to the appropriateness of using 
United  Kingdom sales prices as the basis of normal value, but also the reasons as to how  and why 
the applicant in that investigation unsuccessfully attempted to obtain domestic sales prices in the 
first place.176  
 
169 Revised application , (Exhibit EU -10), section 10(a).  
170 Notice of initiation, ( Exhibit EU -1a), section 2.1.3.  
171 Notice of initiation , (Exhibit EU -1a), section 2.1.3.  
172 Any explanations that may have been provided after initiation are, in our view, not relevant to a 
claim under Article  5.3.  
173 Contrary to Colom bia's arguments, this does not mean that MINCIT was necessarily required " to 
provide explanations as to how the authority attempted to obtain information on the domestic market from the 
applicant ". (Colombia's response to Panel question No. 12.2, para.  30).  
174 Colombia's response to Panel question No. 12.8, para.  58. 
175 FEDEPAPA's application, (Exhibit EU -8a), annex 5. See also Colombia's response to Panel question 
No. 12.2(a), para.  55; and Annexes to FEDEPAPA's application , (Exhibit COL -35-B). 
176 Colombia p oints out that, " with regard to the calculation of the normal value, the applicant included 
as an annex in its application the Brazilian investigating authority's initiation decision in its anti -dumping 
investigation on frozen potatoes, in which it was explained that the Brazilian applicant was unable to obtain the 
internal price within the relevant European  Union member States, but was able to obtain information on the 
United  Kingdom's prices thr ough the Eurostat service. The Brazilian application also explained that the 
United  Kingdom was one of the largest frozen potato markets and, as part of the European  Union's  single 
market, an appropriate basis for the normal value. ". (Colombia's response t o Panel question No. 12.2, 
para. 55). WT/DS591/7  
 
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  7.77.   Based on the reference to "other applications" in the initiation decision above, Colombia 
submits that MINCIT " relied upon this inf ormation in essentially the same way as the Brazilian 
authority did. "177 We note however that there is nothing on the record before us indicating that 
FEDEPAPA made any attempt to obtain domestic sales prices (like the applicant in the Brazilian 
investigati on) or that it otherwise faced any difficulties (similar to those that were faced by the 
Brazilian applicant) in obtaining this information.178 In the absence of any such indication, and given 
our understanding of "where appropriate" as requiring the exerci se of judgment and a case -by-case 
assessment by the investigating authority, we disagree with Colombia that the mere reference to 
and inclusion of the Brazilian initiation decision suffices to establish MINCIT's compliance with 
Article  5.3 in the investiga tion at issue.  
7.78.   We therefore consider that MINCIT did not examine whether the use of third -country sales 
prices, instead of domestic sales prices, was "appropriate" in the specific facts and circumstances of 
the investigation at issue. Accordingly, we find that MINCIT acted inconsistently with Article  5.3 of 
the Anti -Dumping Agreement because it did not examine the "a dequacy " of the evidence contained 
in the application to determine whether there is "sufficient evidence " to justif y initiation.  
7.2.5.3   Conclusion  
7.79.   For the reasons set out above, we find that the European  Union has established that Colombia 
acted inconsistently with Article  5.3 of the Anti -Dumping Agreement because, by failing to examine 
whether the use of third -country sales prices, instea d of domestic sales prices, was "appropriate" in 
the specific facts and circumstances of the investigation at issue, MINCIT did not examine the 
"adequacy " of the evidence in the application to determine whether there is "sufficient " evidence to 
justify the initiation of the investigation . 
7.2.6   Evidence relied upon for the injury analysis  
7.2.6.1   Introduction  
7.80.   MINCIT determined that "there were grounds " to initiate  the underlying investigation "taking 
into account the existence of evidence of dumping and injury to the domestic industry caused by 
the low import prices and reflected in the negative performance in terms of market share, installed 
capacity and domestic profitability."179 
7.81.   The European  Union alleges that the evidence of injury examined and relied upon by MINCIT 
was insufficient to justify initiating the investigation because it is "clear" from both 
FEDEPAPA 's application and the notice of initiation that MINCIT relied, "to  a large extent", on the 
impact of the allegedly dumped imports on "farmers and on the prices for fresh potatoes", instead 
of the impact of the imports on the price of the domestic "like" product and on the domestic 
potato -processing industry manufacturing  the "like " product. On this basis, the European  Union 
contends that MINCIT did not respect "the limits" of the "domestic industry", as required by 
Article  3.1 of the Anti -Dumping  Agreement .180 
7.82.   Colombia responds, inter alia, that the European  Union  misunderstand s the facts because, for 
the material injury analysis (at the initiation, preliminary , and final stages), MINCIT considered 
"exclusively " the relevant data of producers of precooked frozen potatoes, and the discussion of the 
fresh potato sector simply provides the more general economic context for the investigation .181 
Colombia also indicates that the notice  of initiation mentions potato producers because they "are 
 
177 Colombia's response to Panel question No. 12.2, para.  38. 
178 Given our terms of reference, we do not make any findings on the WTO -consistency of the Brazilian 
authority's initiation decision.  
179 Notice of initiation, ( Exhibit  EU-1a), section  3. See also ibid. section  2.2 on "Analysis of Material 
Injury".  
180 European  Union's  first written submission, paras.  60 and 63 ; response to Panel question No.  1.13(b), 
para. 43; second written submission, paras.  29 and 33 ; and openin g statement at the first meeting of the 
Panel, para. 18. The European  Union further indicates that it was not clear whether  the applicant had 
established that the injury is a material injury, a threat of material injury, or a significant delay in the 
devel opment of the domestic industry .  
181 Colombia 's first written submission, para. 5.55. WT/DS591/7  
 
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  also victims of the injury caused to the local processing industry ".182 Colombia argues that, in any 
event,  MINCIT 's examination respects "the limits " of the PUC and, consequently , the scope of the 
domestic industry .183 Finally, Colombia recalls that Article  5.3 requires only that the record at the 
time of initiation conta in sufficient evidence to demonstrate the existence of, inter alia, injury, and 
considers that nothing in this provision requires the authority to publish any analysis of this 
evidence.184 
7.2.6.2   Analysis  
7.83.   In our view, t he central question that arises with respect to this claim is whether an unbiased 
and objective investigating authority could have determined that the evidence of injury that 
FEDEPAPA had submitted to MINCIT in its application and revised application was sufficient to justify  
the initiation of the investigation pursuant to Article  5.3 of the Anti -Dumping Agreement . 
7.84.   We recall that the text and context of Article  5.3 requires the investigating authority to 
examine the accuracy and adequacy of the evidence of, inter alia, injury that is provided in the 
application .185 Article  5.2(iv), which specifies the evidence of injury that an application must contain, 
requires  an applicant to provide such information , "as is reasonably available" to it, on the "evolution 
of the volume of the a llegedly dumped imports", the "effect of these imports on prices" of the 
domestic like product, and the "consequent impact of the imports" on the performance of the 
domestic industry, in terms of relevant domestic factors, such as those listed in Article  3.2 and 
Article  3.4 of the Anti -Dumping  Agreement.186 
7.85.   The parties do not dispute that the injury analysis  that MINCIT conducted as part of its 
decision to initiate refers to both potato -process ors and fresh  potato producers. Thus, the 
parties'  arguments rais e two questions:  first, whether MINCIT  did, in fact,  focus its injury analysis 
mainly  – or, "to a large extent" – on fresh potato  producers  and on prices of fresh potatoes rather 
than on producers of precooked potatoes and on prices of frozen precooked potatoes ; and second, 
if this was indeed the case, whether this focus by MINCIT was inconsistent with Article  5.3. 
7.86.   We note that MINCIT examined the injury to the domestic industry in section  2.2 of its notice 
of initiation entitled "Analysis  of Material Injury". The text of this section indicates, inter alia, that 
MINCIT examined the "import performance" of the allegedly dumped imports by evaluating the 
volume, trends, and market share of " potatoes  prepared or preserved otherwise than by vinegar o r 
acetic acid, frozen, imported under subheading 2004.10.00.00 ".187 This section  also indicates that 
MINCIT examined the impact of these imports on the performance of the potato -processing industry . 
In particular, we note that MINCIT examined certain econom ic factors  and indices , namely,  the 
 
182 Colombia 's first written submission, paras.  5.57-5.58; second written submission, para. 2.55 and 
fn 39.  
183 Colombia's  first written submission, paras.  5.61-5.62. 
184 Colombia 's second written submission, paras.  2.57-2.59. Colombia notes that the evidence that the 
authority had before it at the time of initiation is that contained in FEDEPAPA 's application and it s revised 
application (together with its annexed documents), which comprised the relevant evidence for establishing the 
existence of injury and causation for initiation purposes . 
185 See paragraph  7.12 above.  
186 Article  5.2(iv ) of the Anti -Dumping  Agreement, in relevant part, reads  as follow s: 
The application shall contain such information as is reasonably available to the applicant on the 
following:   
… 
information on the evolution of the volume of the allegedly dumped imports, the effect of these 
imports on prices of the like product in the dom estic market and the consequent impact of the 
imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing 
on the state of the domestic industry, such as those listed in paragraphs  2 and 4 of Article  3. 
187 For instance, MINCIT noted that the volume of these imports had increased in absolute terms during 
the period under review and that the F .o.b. prices of these imports registered a decrease during the same 
period. (Notice of initiation, ( Exhibit  EU-1a), section 2.2.3 ). See also Technical report on the initiation , 
(Exhibit  COL-10 (BCI) ), sections  2.2.1 and 2.2. 2. WT/DS591/7  
 
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  market share, capacity utilization, cost of production, profitability, and structure , of the 
potato -processing industry.188 
7.87.   MINCIT  also referred to the injury to potato farmers, by indicating that " if 100,000 tonnes of 
frozen precooked potatoes were to enter and potentially lead to the restructuring and/or 
disappearance of the domestic industry ", there would be a displacement of " 625,000 tonnes of fresh 
potatoes for industrial use ", affecting " 10,417 farmers ".189 MINCIT con cluded that, based on the 
information provided by the applicant, "there were grounds " to initiate  an investigation into imports 
of "potatoes, prepared or preserved otherwise than by vinegar or acetic acid, frozen, classified under 
tariff subheading 2004.10.00.00 ", originating in Belgium, the Netherlands , and Germany, "taking 
into account the existence of evidence " of "injury to the domestic industry ."190 
7.88.   The European  Union does not dispute these facts, but rather contends that it is "clear"  from 
the notice of initiation that, in reaching its conclusion, MINCIT relied , "to a large extent", on the 
impact of the allegedly dumped imports on potato farmers and on the prices for fresh potatoes 
(i.e. instead of data associated with the producers of  precooked potatoes and on prices of frozen 
precooked potatoes).  
7.89.   In support of its position , the European  Union refers to sections  2.2 and 2.2.2 of the notice of 
initiation191 which, in relevant part, read as follows : 
2.2 ANALYSIS OF MATERIAL INJURY  
The Colombian Federation of Potato Producers stated that both the potato -processing 
industry and Colombian farmers have suffered injury, which is reflected in various 
indicators such as market share, installed capacity and profitability, due to the low prices 
of the imported product.  
… 
2.2.2  Potato farmers  
The application mentions that in order to produce 1 kg of frozen precooked potatoes, 
2 kg of fresh potatoes are required with a 32% use of production per hectare. Therefore, 
with the Belgian market surpluses, if 100,000  tonnes of frozen precooked potatoes were 
to enter and potentially lead to the restructuring and/or disappearance of the dom estic 
industry , 625,000 tonnes of fresh potatoes for industrial use would be displaced, which 
would be equivalent to 15,625 hectares and 10,417  farmers affected, each with 
1.5 hectares on average.192  
7.90.   In our view, and contrary to the European  Union's  assert ion, these excerpts reveal that 
MINCIT did not  conduct an injury analysis with respect to the producers of fresh potatoes. 
In particular, we note that the second passage cited above (entitled " 2.2.2 Potato farmers ") does 
not identify or evaluate volume trends of the allegedly dumped imports but  considers the  
hypothetical scenario  of "100,000 tonnes of frozen precooked potatoes " imported from Belgium.  
Moreover, this passage does not examine the effect of these  hypothetical imports  on the prices of 
fresh potatoes , by evaluating, for instance, whether the prices of fresh potatoes were undercut, 
 
188 Notice of initiation, (Exhibit  EU-1a), section  2.2.1. The technical report on the initiation shows that 
MINCIT also examined the competitiveness of the potato -processing industry, and stresses that the half-yearly 
statements of results and production cost , as well as the table of injury variables of frozen potatoes, were also 
evaluated . (Technical report on the initiation, (Exhibit  COL-10 (BCI)), s ections  2.2.1 and 2.2. 3). 
189 Notice of initiation, (Exhibit  EU-1a), section  2.2.2. See also Technical report on the initiation , 
(Exhibit  COL-10 (BCI) ), section  2.2.3.  
190 Notice of initiation, (Exhibit  EU-1a), section  3. 
191 European  Union's  response to Panel question No.  1.13(a), para.  39. The European  Union considers it  
"apparent " from the notice of initiation, which relied exclusively on the statements made by FEDEPAPA  in its 
application , that the impact of the imports of frozen fries on the economic s ituation of Colombian potato 
farmers played a "prominent " role in the injury analysis at the stage of initiation . (European  Union's  second 
written submission, para.  33). See also European  Union's  response to Panel question No.  1.13(a), 
paras.  40-42. 
192 Notice of initiation, (Exhibit  EU-1a), sections  2.2 and 2.2.2 (emphasis  added ). These sections  are the 
only instances where MINCIT 's injury analysis at the time of initiation refers to producers of fresh potatoes.  WT/DS591/7  
 
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  depressed, or suppressed by these  hypothetical imports . Likewise, nothing in this passage analyses 
the consequent impact of these hypothetica l imports on the producers of fresh potatoes. Indeed, 
nothing in this passage shows that MINCIT evaluated  economic factors and indices such as actual 
and potential decline in sales, profits, or market share  of the producers of fresh potatoes . 
7.91.   Moreover, in our view, it can reasonably be inferred from the text of th e passage  in question  
that the "injury " alleged to the fresh potatoes producers is phrased as a consequence  of the 
"restructuring and/or disappearance of the domestic industry " (by displacing "625, 000 tonnes of 
fresh potatoes for industrial use")  which could potentially occur "if 100,000 tonnes of frozen 
precooked potatoes were to enter" into the Colombian domestic market. In other words, in our view, 
the alleged injury to the fresh potatoes produce rs is discussed  as a consequence  of the alleged injury 
to the potato -processing industry , further suggest ing that MINCIT's  injury analysis concerned only 
this industry.193 This is also confirmed by the fact that, as discussed in paragraph  7.86 above, the 
record indicates  that in considering whether the application contained sufficient evidence of injury, 
MINCIT focused its analysis on the alleged injury to the potato -processing industry .194 
7.92.   The European  Union  acknowledges that the injury examination that appears in 
MINCIT's  notice of initiation " explicitly " referred to the potato -processing industry , but maintains 
that "it is not less true " that this analysis also refer red to potato farmers  and, therefore, that " the 
limits " of the domestic industry as defined in Article  3.1 of the Anti -Dumping  Agreement were not 
respected .195 However, for the reasons set forth above, we disagree with the premise of the 
European  Union's  contention that MINCIT relied, "to a large extent", on the impact of the allegedly 
dumped imports on "farmers and on the prices for fresh potatoes". We therefore see no factual basis 
for the European  Union's  contention that the definition of the domestic industry was not respected 
as required by Article  3.1 because, according to the European  Union, it included the potato producers 
within its scope .196 
7.2.6.3   Conclusion  
7.93.   Based on the foregoing, we  reject the European  Union's  arguments that it is "clear" from the 
notice  of initiation that MINCIT relied, "to a large extent", on the impact of the allegedly dumped 
imports on "farmers and on the prices for fresh potatoes" , and that , for this reason, MINCIT  did not 
respect "the limits" of the "domestic industry ".197 Accordingly , we find that the European  Union  has 
 
193 In this regard, we note Colombia 's assertion  that potato producers were mentioned in the notice of 
initiation "only to give a complete picture of the entire potato sector" . Colombia also indicates that the mention 
of these producers is "similar" to the analysis of domestic economic interest in other  jurisdictions, for instance, 
the "Union interest" in the European  Union . (Colombia's  first written submission, para.  5.58; second written 
submission, fn  39). The European  Union disagrees with Colombia 's "public interest"  defence  for a number of 
reasons. (European  Union's  opening statement at the first meeting of the Panel, paras.  19-21). We do not 
consider it necessary to address the arguments of the parties in this regard because, as already noted, we are 
of the view that MINCIT  did not conduct an injury analysis with respect to the producers of fresh potatoes .  
194 Specifically, as noted in paragraph  7.86 above , MINCIT exami ned the evolution of imports of the 
allegedly dumped product and evaluated the consequent impact of those imports ( in terms of relevant 
economic factors and indices ) only with respect to the potato -processing industry. See also Notice of initiation, 
(Exhib it EU-1a), sections  2.2.1 and 2.2.3; and Technical report on the initiation , (Exhibit  COL-10 (BCI) ), 
sections  2.2.1-2.2.3. 
195 European  Union's  response to Panel question No.  1.13(b), para.  43; second written submission, 
para. 33. 
196 European  Union's  first written submission, para.  60; second written submission, paras.  29 and 33. In 
any event, we note that nothing in the record appears to indicate that the domestic industry in the underlying 
investigation included producers of fresh p otatoes, and the European  Union has provided no evidence 
demonstrating otherwise. In particular, we note that although MINCIT did not specifically set out a definition of 
the "domestic industry" at initiation, its views on the subject are clear from the no tice of initiation where 
MINCIT:  (a) defined the PUC as " potatoes  prepared or preserved otherwise than by vinegar or acetic acid, 
frozen, imported under subheading 2004.10.00.00 "; (b)  considered that " the product under investigation that 
is allegedly sold at dumping prices in Colombia and the product manufactured by the applicant firm supporting 
the application corresponds to : potatoes, prepared or preserved otherwise than by vinegar or acetic acid, 
frozen, classified under tariff subheading 2004.10.00.00, originating in Belgium, the Netherlands (Holland ) and 
Germany ", and also "stressed" that "the differences between the domestic and imported product, apart from 
usable yield and the colour of the pulp, tend to be null "; and (c)  determined that the party rep resented by the 
applicant account ed "for 69% of the total volume of domestic production ". (Notice of initiation, (Exhibit  EU-1a), 
sections  1.1-1.3).  
197 We do not agree with the European  Union's  assertion that Colombia's  submission of annexes 10 -12 
of FEDEP APA's  revised application after the first meeting of the Panel is not in accordance with WT/DS591/7  
 
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  not established that Colombia acted inconsistently with its obligations under Article  5.3 because the 
evidence of injury examined and relied upon b y MINCIT was insufficient to justify the initiation of 
the investigation.  
7.2.7   Evidence concerning causation  
7.2.7.1   Introduction  
7.94.   MINCIT determined that, "based on the information provided by the applicant ", "there were 
grounds " for ordering the initiation of  the under lying investigation, "taking into account the existence 
of evidence of dumping and injury to the domestic industry caused by the low import prices and 
reflected in the negative performance in terms of market share, installed capacity and domestic 
profitabi lity."198 
7.95.   The European  Union  claims that Colombia acted inconsistently with Article  5.3 because 
MINCIT did not  examine whether the evidence provided by the applicant was sufficient to establish 
a causal link between the European imports and the alleged inju ry for purposes of initiating the 
underlying investigation .199 Alleging that the evidence of causal link  in the application  was limited to 
a single  assertion by the applicant200, the European  Union  contends that such an  assertion, together 
with the evidence on the evolution of imports originating in Belgium, Germany and the Netherlands, 
was insufficient to establish a causal link between those imports and the alleged injury suffered by 
the domestic industry.201 
7.96.   Colombia maintains that the European  Union  has failed to discharge its burden of proof 
because its " superficial" allegation, "without proof or reference, does not suffice to establish a 
prima  facie case" .202 Noting that there is no obligation under Article  5.3 to pro vide an analysis or 
explanation of the evidence, Colombia submits that, in any case, MINCIT's  analysis is "sufficiently 
clear and rigorous" to meet any requirement for an explanation .203 Colombia also asserts that  the 
application contain ed information  that was "fully sufficient " to justify the initiation of the 
investigation .204 
7.2.7.2   Analysis  
7.97.   Before addressing the substance of its  claim, we note that, in its first written submission, the 
European  Union alleged that " there was no separate analysis  [in MINCIT's notice of initiation] of the 
existence of a causal link between the alleged injury and the volumes of imports ".205 Subsequently, 
in res ponse to questioning by the Panel, the European  Union clarified that  this allegation in its first 
written submission " merely supports the claim … that the applicant provided no evidence of a causal 
link between the imports originating in Belgium, Germany a nd the Netherlands and the alleged 
injury ".206 Given the European  Union's  clarification, we limit ourselves to examining its claim as it 
relates to the evidence concerning the causal link that was provided by the applicant and 
MINCIT's  examination thereof.  
 
paragraph  5(1) of the Working Procedures  of the Panel. (European  Union's  response to Panel question 
No. 12.9, para.  33). We note, in this regard, that paragraph  5(1) of the Working Procedures of the Panel allows 
for the submission, after the first substantive meeting, of factual evidence necessary for purposes of answering 
questions posed by the Panel.   
198 Notice of initiation, ( Exhibit  EU-1a), section  3. See also Techni cal report on the initiation, 
(Exhibit  COL-10 (BCI)), section  2.4. 
199 European  Union's  opening statement at the first meeting of the Panel, para. 23. See also 
European  Union's  second written submission, para. 40. 
200 The European  Union asserts that the evidence of causal link, "on the basis on which MINCIT took its 
initiation decision", was "limited to an assertion by the applicant that '[o]wing to the low prices of the imported 
product … the domestic product loses sh are compared to the European product '". (European  Union's  second 
written submission, para. 36). 
201 European  Union's  second written submission, paras.  36-37; opening statement at second meeting of 
the Panel, paras.  20-21.  
202 Colombia's  first written submissi on, paras.  5.70-5.71. 
203 Colombia 's first written submission, paras.  5.67-5.69. 
204 Colombia 's response to Panel question No. 1.17(a), para. 87; first written submission, para. 5.72. 
See also Colombia's  response to Panel question No. 1.17(a), paras.  88-91. 
205 European  Union's  first written submission, para.  65. 
206 European  Union's  response to Panel question No.  1.16(a), para.  46. WT/DS591/7  
 
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  7.98.   We recall that Article  5.3 requires the investigating authority to examine the "accuracy " and 
"adequacy " of the evidence of dumping, injury, and the causal link between them, that is contained 
in the application  in order " to determine whether there is sufficient evidence to justify the initiation 
of an investigation ".207 We also recall that Article  5.3 does not prescribe any specific requirement 
with respect to the manner in which an investigating authority is to examine the evidence  provided 
in the application. Nor does Article  5.3 requir e any specific  explanation of how such examination was 
conducted.208 Any review of an inve stigating authority 's examination under Article  5.3 must 
therefore be conducted on a case -by-case basis . 
7.99.   The central question we must consider with respect to this claim is whether  an unbiased and 
objective investigating authority could have determined that the evidence of causal link that was 
contained in FEDEPAPA's  application and revised application to MINCIT was sufficient to justify the 
initiation of the investigation pursuant t o Article  5.3. 
7.100.   The European  Union's  claim that MINCIT failed to examine the sufficiency of evidence of a 
causal link is grounded on two contentions. First, the European  Union highlights that the evidence 
in the application was "limited" to an assertion by the applicant that "[o]wing to the low prices of 
the imported product … the domestic product loses share compared to the European product" .209 
Second, for the European  Union, this assertion, together with the evidence on the evolution of 
imports  originating  in Belgium, Germany and the Netherlands , is insufficient to establish a causal 
link between those imports and the injury alleged by the domestic industry.210 Colombia responds 
that the evidence and allegations in the application and revised application wer e "more than 
sufficient " to justify the initiation of the investigation.211 
7.101.   We note, first, that, as Colombia points out, the evidence in the application concerning the 
causal link goes beyond the single "assertion" identified by the European  Union.212 For example, the 
application contains a graph depicting the "quarterly evolution of market shares" of imports in 
comparison to the domestic industry for 2014 -2015 and observes that " the share of imports in the 
past three years has grown by 63%, with that of the  domestic industry declining by 15% ".213 The 
application also states, together with supporting data, that the "decline in the share of the domestic 
industry along with a static market has resulted in  a loss (idle capacity)  of 60% compared with the 
installed  capacity of 90,000 tonnes/year, with actual production only being 
36,000  tonnes/month ."214 The revised application further states that the "low prices of the imported 
product have caused  significant changes in the market, leading  the consumer to seek out low -priced 
products and causing  the domestic product to lose its share to Europe. In some ca ses, the 
low-margin volume has increased, unlike for traditional potato products, which ends up  affecting 
profitability, capacity and structure ."215 Nowhere in its submissions does the European  Union address 
these statements and the information that was con tained in the application and the revised 
application or explain their alleged shortcomings. As a factual matter, therefore, we are unable to 
agree with the European  Union's  argument that the evidence in the application pertaining to the 
causal link was li mited to a single assertion made by the applicant.  
7.102.   We now turn to the European  Union's  argument that a single assertion by the applicant, 
together with the evidence on the evolution of imports originating in the three countries in question, 
was "insufficie nt" to establish a causal link .216 In support, the European  Union points out that, as 
acknowledged by FEDEPAPA, "the Colombian market for frozen fries grew by 33% between 2014 
and 2016"217 and that " Colombia does not deny that there were other sources of imp orts of the 
product, it only confirms that FEDEPAPA singled out the three European countries in its letter of 
 
207 See paragraph  7.12 above.  
208 See paragraph  7.13 above. See also Panel Report, EC  – Bed Linen , para. 6.198.  
209 European  Union's  second written submission, para.  36. 
210 See e .g. European  Union's  second written submission, para. 37. 
211 See e .g. Colombia 's response to Panel question No. 1.17(a) , paras.  87-91. 
212 Colombia's  first written submission, para.  5.72. See also Colombia's  response to Panel question 
No. 1.17(a), paras.  88-91. 
213 FEDEPAPA 's application, ( Exhibit  EU-8a), clause eight and graph  3. 
214 FEDEPAPA 's application, ( Exhibit  EU-8a), clause nine and table  2. (emphasis  added)  
215 Revised application, ( Exhibit  EU-10), section  10(d)(i)  (emphasis  added; fn omitted). See also fn 229 
below.  
216 European  Union's  second written submission, para.  37. 
217 European  Union's  second written submission, para.  37. WT/DS591/7  
 
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  19 July 2017 supplementing the application ".218 While we agree that the application notes the growth 
of the Colombian market219, we also note that t he applic ation indicate s that, notwithstanding the 
fact that "the [Colombian] market grew by 33%",  "the imported product [grew] by 66% while the 
domestic product grew by 13%" , "result[ing]" in an "alarming projection for the domestic product " 
by "losing domestic competitiveness and [market ] share ".220 The European  Union does not address 
this information contained in the application.  
7.103.   As to the European  Union's  argument concerning the existence of  "other sources of imports" 
of the like product into Colombia221, we note that while the application and revised application include 
data of imports originating in countries other than Belgium, the Netherlands, and Germany222, they 
also contain specific data regarding the imports originating in the three countries in qu estion.223 
The information considered by MINCIT  with respect to the condition of the domestic industry also 
focuses on the data of the countries concerned.224 Besides its mere assertion that there were "other 
sources of imports"225 the European  Union does not offer any further explanation of why it consi ders 
this to be problematic in light of the information actually contained in the application  and revised 
application.  
7.104.   Finally, we note that MINCIT did not determine that the domestic industry was injured solely 
because of a decline in market share.226 Rather, we observe that, in initiating the investigation, 
MINCIT  stated that it  took " into account the existence of evidence of dumping and injury to the 
domestic industry caused  by the low import prices and reflected in  the negative performance in 
terms of ma rket share, installed capacity and domestic profitability. "227 We further note that 
MINCIT 's causation determination referred to the allegations presented by the applicant228, and that 
the applicant  provided information and argument re lating to  the causal li nk between the allegedly 
dumped imports and the alleged injury, including (in addition to the factors above)  structure, 
competitiveness, and growth decline.229 In the absence of any discussion by the European  Union of 
these aspects of MINCIT's  examination, we are unable to find, as asserted by the European  Union, 
 
218 European  Union's  second written submission, para.  37. 
219 Revised application, ( Exhibit  EU-10), sectio n 10(d) (i). 
220 Specifically, the applicant indicated that "i n 2016, the market grew by 33% compared to 2014, with 
the imported product growing by 66% while the domestic product grew by 13%, losing competitiveness and 
share. This has resulted in an alarming projection for the domestic product. " (Revised application, 
(Exhibit  EU-10), section  10(d)(i) ). 
221 See e.g. European  Union's  second written submission, para.  37; and opening statement at the 
second meeting of the Panel, para.  21. 
222 See e.g . FEDEPAPA's application, (Exhibit EU -8a), clause six, graph 1 ; and clause eight, graph 3; and 
Revised application,  (Exhibit EU -10), section 9(b), tables  2-3 and graph 7.  
223 See e .g. Revised application, (Exhibit EU -10), section 9(b) tables  2-3 and graph  8, section 10(b)(i) 
table 5, and section 10(b)(i ii) table 7. We also note MINCIT's  observation in its notice of initiation that "[t]he 
share of the countries exporting frozen precooked potatoes to Colombia has changed dramatically over the 
period under review, with the rapid growth of imports from Belgium standing out above all. The sha re of these 
imports rose from 23% in the first half of 2014 to 57% in the second half of 2016, which means that the 
country's  share of Colombia's  imports has increased by 148% (197% in the first half of 2017)".  (Notice of 
initiation, (Exhibit  EU-1a), secti on 2.2.3.  
224 Notice of initiation, (Exhibit  EU-1a), sections  2.2.1 and 2.2.3.  
225 European  Union's  opening statement at the first meeting of the Panel, para.  22; second written 
submission, para.  37. 
226 We note in particular MINCIT 's statement in its notice of initiation that: 
In line with what has been demonstrated and submitted by FEDEPAPA, the investigating authority 
notes that there is evidence of dumping and injury and, in addition, the applicant considers that 
the facts presented above significantly compro mise the sector 's efforts to, inter alia, substitute 
imports of frozen precooked potatoes, increase the industrialization of domestic production and 
contribute to stabilizing domestic market prices. This is the result of the imports at dumping prices 
from Belgium, the Netherlands (Holland ) and Germany.  
(Notice of initiation, ( Exhibit  EU-1a), section  2.3) 
227 Notice of initiation, ( Exhibit  EU-1a), section  3. (emphasis  added)  
228 Notice of  initiation, (Exhibit  EU-1a), section  2.3. 
229 The applicant alleged that "in some cases" the "low -margin has increased" and that this "affect[ed] 
profitability, capacity and structure". (Revised application, (Exhibit  EU-10), section  10(d)(i)).  In particular, as 
observed by MINCIT in its notice of initiation, the applicant expla ined that " the volume of the food service 
sector (the sector on which import penetration has been concentrated ) has fallen by 4% ", and that such 
decrease " would have had the greatest impact on traditional products, which are three times more 
profitable than the products created to compete with the importers ", affecting therefore the " profitability, 
capacity and structure " of the potato -processing industry . (Notice of initiation, (Exhibit  EU-1a), section  2.2.1).  WT/DS591/7  
 
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  that this analysis was "limited" to the applicant's  assertion that market share decline was caused by 
the low prices of the imported product.230 
7.2.7.3   Conclusion  
7.105.   In light of the allocation of the burden of proof in these proceedings and the limited 
arguments presented by European  Union,  we find that the European  Union  has not established that 
Colombia acted inconsistently with its obligations under Article  5.3 because the evidence of causal 
link ex amined and relied upon by MINCIT was insufficient to justify the initiation of the investigation.  
7.2.8   Overall conclusion  under Article  5.3  
7.106.   For the reasons set out above, we find that:  
a. the European  Union  has not established that  Colombia acted inconsistently w ith Article  5.3 
of the Anti -Dumping Agreement because  MINCIT failed to verify that there was sufficient 
evidence to initiate the investigation with respect to the full range of products covered by 
tariff subheading 2004.10.00.00 ; 
b. the European  Union has not  established that Colombia acted inconsistently with its 
obligations under Article  5.3 because MINCIT did not have sufficient evidence 
demonstrating that FEDEPAPA represented the domestic producers of the "like" product  
so as to justify initiating the unde rlying investigation;  
c. the European  Union has established that Colombia acted inconsistently with Article  5.3 of 
the Anti -Dumping Agreement because, by failing to examine whether the use of 
third-country sales prices, instead of domestic sales prices, was " appropriate" in the 
specific facts and circumstances of the investigation at issue, MINCIT did not examine the 
"adequacy " of the evidence in the application to determine whether there is "sufficient " 
evidence to justify the initiation of the investigation;  
d. the European  Union  has not established that Colombia acted inconsistently with its 
obligations under Article  5.3 because the evidence of injury examined and relied upon by 
MINCIT was insufficient to justify the initiation of the investigation; and  
e. the European  Union  has not established that Colombia acted inconsistently with its 
obligations under Article  5.3 because the evidence of causal link examined and relied upon 
by MINCIT was insufficient to justify the initiation of the investigation.  
7.3  "Consequential " claim  under Article  5.8 of the Anti -Dumping Agreement  
7.107.   The European  Union  claims that , "[a]s a consequence of the lack of sufficient evidence to 
justify initiating the anti -dumping investigation "231, Colombia also acted inconsistently with the first 
sentence of Article  5.8 of the Anti -Dumping Agreement .232 For the European  Union, having 
determined that the application did not contain sufficient evidence of either dumping or injury to 
justify initiation, MINCIT should have  reject ed FEDEPAPA's application and terminate d the 
investigation .233 
7.108.   Colombia responds that the European  Union's consequential claim under Article  5.8 is 
without factual or legal basis234, and adds that the European  Union has not clearly explained  why, 
 
230 For the same reason, we are also unable to f ind, as asserted by the European  Union , that 
MINCIT 's analysis of causal link was "extremely limited" and was based on "the statements submitted by 
FEDEPAPA". Besides the issue that we have addressed in this paragraph, the European  Union does not explain 
why it considers MINCIT examination to be "extremely limited" for purposes of Article  5.3. 
(European  Union's  opening statement at the second meeting of the Panel, para. 20). 
231 European  Union's first written submission, para.  68. 
232 European  Union's first written submission, para.  68. 
233 See e.g. European  Union's first written submission, paras. 70 -71. The European  Union adds that 
because the initiation of the investigation is inconsistent with Articles  5.3 and 5.8, the whole investiga tion 
procedure is vitiated and cannot lead to a lawful imposition of anti -dumping duties on the subject imports.  
234 Colombia's first written submission, para.  6.2; second written submission, para.  3.1. WT/DS591/7  
 
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  in its view, MINCIT violated Article  5.8 and how this violation relates to the alleged violation of 
Article  5.3. Observing that  the European  Union has not included this explanation in either its first 
written submission or its first oral statement,  Colombia contends that  the European  Union has not 
made a prima  facie case on a timely basis, and therefore the Panel "must" reject the 
European  Union's claim under Article  5.8.235 
7.109.   The European  Union does not present any  independent bases for the alleged breach of 
Article  5.8 of the Anti -Dumping Agreement;  instead, its claim under th is provision is dependent 
entirely upon a finding that Colombia  acted inconsistently with Article  5.3 of the 
Anti-Dumping  Agreement.236 In the se circumstances – and having already found that Colombia acted 
inconsistently with Article  5.3 – we do not consider it necessary to make additional findings 
concerning the European  Union's Article  5.8 claim in order to provide a positive resolution to  the 
dispute  before us .237 
7.4  Claims  under  Articles  6.5 and 6.5.1  of the Anti-Dumping  Agreement : 
MINCIT's  confidential  treatment  of certain  informatio n  
7.4.1   Introduction  
7.110.   Following the receipt of the  "applicatio n for the initiation of an investigation into alleged 
dumping in  imports of potatoes, prepared or preserved (otherwise than vinegar or acetic acid ), 
frozen, classified under tariff subheading 2004.10.0 0.00 originating in Belgium, the Netherlands 
(Holland), France and Germany "238, MINCIT sent a deficien cy letter to the applicant , requesting , 
inter alia, "[t]he identification and justification of confidential documents and a summary or 
non-confidential version of these documents".239 The applicant , in its revised application,  stated  that 
"[t]he specific na mes of the domestic industry companies, all their financial information, and in 
general numerical, and any data that is classified as a trade secret, are confidential ."240 The applicant 
submitted annex  10 of its revised application as confidential informati on.241 The applicant also 
redacted certain information in  section  d(i) of the revised application, entitled "injury for the 
potato -processing industry" .242 MINCIT granted c onfidential treatment to " anything related to 
financial information or data considered to be part of trade secrets ", but stated that the specific 
names of the companies in the domestic industry cannot be considered confidential .243 
7.111.   The European  Union claims that Colombia acted inconsistently with its obligations under 
Articles  6.5 and 6.5.1 of the Anti -Dumping  Agreement when MINCIT elected to grant confidential 
treatment to the information in section  d(i) and annex  10 of FEDEPAPA 's revised application244 
because:  
 
235 Colombia's second written submission, para.  3.3. 
236 European  Union's second written submission,  para. 43; response to Panel question No. 2.1, para.  50. 
237 See e.g. Panel Reports, EU – Footwear (China) , para.  7.935; Argentina – Poultry Anti -Dumping 
Duties , para.  7.369; and US – Steel Plate , para.  7.103. See also Panel Report, US – Differential Pricing 
Methodology , paras. 7.114 -7.115.  
238 Notice of initiation, (Exhibit EU -1a), p. 1. As noted in fn  51 of this Report, MINCIT elected to exclude 
imports from France when it initiated the investigation because "there have been no imports since 2015" and 
therefore "it [was] not appropriate to link these imports to the investigation". (Notice of initiation, 
(Exhibit  EU-1a), sect ion 1.4). 
239 MINCIT's deficiency letter to FEDEPAPA , (Exhibit  EU-9a), numeral 5.  
240 Revised application, (Exhibit  EU-10), section 11.  
241 We note Colombia 's clarification that annex  10 of the revised application, (Exhibit  COL-11), refers to 
three separate annexes  (i.e. annex  10, annex  11, and annex  12), which contain confidential information of the 
three domestic companies on whose behalf the applicant filed its application , and that wer e provided directly to 
MINCIT by the se companies in accordance with MINCIT's  instructions  (i.e. by dividing it into annex  10, 
annex  11, and annex  12). (Colombia's  response to Panel question No.  1.1, para.  3). For ease of reference, w e 
will refer to these t hree annexes as "annex  10 of the revised application " or "annex  10". 
242 Revised application , (Exhibit  EU-10), section  10 d(i) . 
243 Notice  of initiation , (Exhibit  EU-1a), section  1.5. 
244 In response to questioning by the Panel, the European  Union confirmed that the information treated 
as confidential that forms the factual basis of its Articles  6.5 and 6.5.1 claims is the redacted information in 
section  d(i) of FEDEPAPA's  revised applicat ion and the confidential information contained in annex  10 thereto. 
(European  Union's  response to Panel question No.  3.1, para.  55). WT/DS591/7  
 
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  a. the applicant did not "actually show" the necessary "good cause " to tre at the information  
at issue  as confidentia l; 
b. MINCIT did not objectively determine whether the justification provided by the applicant 
constituted "good cause "; 
c. the applicant did not provide non -confidential summaries of the confidential information 
at issu e; and 
d. to the extent that the confidential information was not susceptible to summary, a 
statement of reasons supporting such claim was not provided.245 
7.112.   Requesting the Panel to reject these claims, Colombia asserts , inter alia, that 
MINCIT's  "methodology" for the confidential treatment of the information at issue complied with the 
requirements under Articles  6.5 and 6.5.1 and that none of the European  Union's  allegations have 
any factual basis .246 
7.113.   We begin our analysis by recalling  the applica ble requirements under Articles  6.5 and 6.5.1 
of the Anti -Dumping  Agreement  (section 7.4.2 ). We then turn to consider whether , in light of the 
specific facts and ci rcumstances of this dispute,  Colombia acted inconsistently with  the applicable 
requirements under  Articles  6.5 and 6.5.1 in respect of:  (a) the redacted information in 
section  d(i) of FEDEPAPA 's revised application ( sections  7.4.3 and 7.4.4 ); and (b ) the information 
contained in annex  10 of th e revised application ( sections  7.4.5  and 7.4.6 ). 
7.4.2   Applicable requirements under Articles  6.5 an d 6.5.1 of the Anti -Dumping  Agreement  
7.114.   Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement read as follows:  
Any information which is by nature confidential (for example, because its disclosure 
would be of significant competitive advantage to a competitor or because its disclosure 
would have a significantly adverse effect upon a person supplying the information o r 
upon a person from whom that person acquired the information), or which is provided 
on a confidential basis by parties to an investigation shall, upon good cause shown, be 
treated as such by the authorities. Such information shall not be disclosed withou t 
specific permission of the party submitting it.17 
 
17 Members are aware that in the territory of certain Members disclosure pursuant to a 
narrowly -drawn protective order may be required.  
The authorities shall require interested parties providing confiden tial information to 
furnish non -confidential summaries thereof. These summaries shall be in sufficient 
detail to permit a reasonable understanding of the substance of the information 
submitted in confidence. In exceptional circumstances, such parties may i ndicate that 
such information is not susceptible of summary. In such exceptional circumstances, a 
statement of the reasons why summarization is not possible must be provided.  
7.115.   Article  6.5 addresses the confidential treatment of certain information submitted  by 
interested parties to an investigation. It envisages the confidential treatment by investigating 
authorities of two categories of information:  (a) information that is "by nature confidential", or 
(b) information that is submitted "on a confidential bas is by parties to an investigation". These two 
categories of information are not mutually exclusive and, in practice, may often overlap .247 "[U]pon 
good cause shown", Article  6.5 requires an investigating authority to:  (a) treat such information as 
confident ial; and (b)  not disclose such information without the specific permission of the submitter. 
We agree with prior adopted DSB reports that the showing of "good cause" is a "condition precedent 
 
245 European  Union's first written submission, para s. 73-74 and 87. See also European  Union's  second 
written submission, para s. 45-55; closing statement at the first meeting of the Panel , para.  6; and closing 
statement at the second meeting of the Panel, para.  3. 
246 Colombia's  first written submission, paras.  7.3, 7.15-7.16, and 7.43 -7.44; second written 
submission, paras.  4.4-4.5 and 4.28; and opening statement at the first meeting of the Panel, paras.  5.1-5.3. 
247 Appellate  Body Report, EC – Fasteners  (China) , para. 536. WT/DS591/7  
 
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  for according  confidential treatment to information submitted to  an authority "248 and applies to both 
information that is by nature confidential as well as information that is submitted on a confidential 
basis.249 
7.116.   The text of Article  6.5 provides limited illustrative guidance on what constitutes "good 
cause "250 as well as the manner in which such good cause is to be "shown ".251 We agree with previous 
DSB reports that "good cause" refers to "a reason sufficient to justify the withholding of information 
from both the public and from the other parties interested in the investigation" such that there is a 
"risk of a potential consequence, the avoidance of which is important enough to warrant the 
non-disclosure of the information ".252 
7.117.   We also agree with related findings in prior DSB reports that, in determining the showing of 
"good cause ", investigating authorities are required to objectively assess the alleged "good cause" 
offered as the basis of the request for confidential treatment, and to examine the showing of such 
"good cause" in order to determine whether the request  is sufficiently substantiated .253 Article  6.5 
does not prescribe how the sufficiency of a showing of "good cause" is to be assessed by an 
investigating authorit y.254 Nonetheless, we recall that in examining the WTO -consistency of an 
investigating authority' s assessment, panels must not engage in a de novo review of the record of 
the investigation to determine for themselves whether the existence of "good cause" has been 
sufficiently substantiated by the party requesting confidential treatment .255 This means that the 
examination by panels of claims relating to the showing of "good cause" and its assessment by an 
investigating authority ought to be made "on the basis of the investigating authority's  published 
report and its related supporting documents, a nd in the light of the nature of the information at 
issue and the reasons given by the submitting party for its request for confidential treatment ."256 
7.118.   Moreover, the type of evidence and the extent of substantiation required to demonstrate the 
existence of "good cause" will necessarily depend upon the nature of the information at issue and 
the "good cause" alleged to exist .257 The confidentiality of certain kinds of information may be 
 
248 Appellate  Body Report , EC – Fasteners  (China ) (Article  21.5 – China) , para.  5.38. See also, Panel 
Reports, EU – Cost Adjustment  Methodologies  II (Russia) , para.  7.635; Russia  – Commercial  Vehicles , 
para. 7.241; and Korea  – Pneumatic  Valves  (Japan) , para.  7.423.  
249 See e.g. Appellate  Body Report, EC – Fasteners  (China) , para.  537; and Pa nel Report, 
Guatemala  – Cement II , para.  8.219.  
250 Article  6.5 provides examples of information that is "by nature" confidential, including information 
that is sensitive " because its disclosure would be of significant competitive advantage to a competitor or 
because its disclosure would have a significant ly adverse effect upon a person supplying the information or 
upon a person from whom that person acquired the information ". We agree with prior DSB findings that these 
examples " are helpful in interpreting 'good cause ' generally, because they illustrate th e type of harm that 
might result from the disclosure of sensitive information, and the protec table interests involved ". Specifically, 
these illustrative examples suggest that " a 'good cause ' which could justify the non -disclosure of confidential 
informatio n might include an advantage being bestowed on a competitor, or the experience of an adverse 
effect on the submitting party or the party from which it was acquired. " We also agree that t he "confidentiality 
of information that is 'by nature ' confidential wi ll often be readily apparent " and that  one such type of 
information is "commercially sensitive information not typically disclosed in the normal course of business, and 
which would likely be regularly treated as confidential in anti -dumping investigations" , including for example, 
"certain profit or cost data or proprietary customer information". (Appellate  Body Report, EC – Fasteners  
(China) , paras.  536 and 538, and fn 775). We note that a prior DSB report likewise considered that "sales price 
data may, in principle, constitute information 'by nature confidential'". (Panel Report , EU – Footwear  (China) , 
para. 7.744 ). 
251 See e.g. Panel Report, EU – Footwear  (China) , para.  7.684 (observing that Article  6.5 contains no 
guidance as to how good cause should be established, and that nothing in Article  6.5 requires "any particular 
form or means of showing good cause, or any particular type or degree of supporting evidence  which must be 
provided").  See also Appellate  Body Report, Korea  – Pneumatic  Valves  (Japan) , para. 5.399.  
252 Appellate  Body Report, EC – Fasteners  (China) , para.  537. See also Panel Reports, China  – HP-SSST  
(Japan ) / China  – HP-SSST  (EU), para. 7.291; Russia  – Commercial  Vehicles , para. 7.241; Korea  – Pneumatic  
Valves  (Japan) , para. 7.423 ; and EU – Cost Adjustment  Methodologies  II (Russia) , para. 7.636.  
253 Appellate  Body Report, EC – Fasteners  (China ) (Article  21.5 – China) , paras.  5.39-5.40. See also 
Panel Report, Korea – Pneumatic Valves (Japan) , paras. 7.427 and 7.440.  
254 Panel Report, EU – Footwear (China) , para.  7.728 . See also Appellate  Body Report s, 
China  – HP-SSST  (Japan ) / China  – HP-SSST  (EU), para. 5.97. 
255 Appellat e Body Report s, China  – HP-SSST  (Japan ) / China  – HP-SSST  (EU), para. 5.97. 
256 Appellate  Body Report s, China  – HP-SSST  (Japan ) / China  – HP-SSST  (EU), para. 5.97. 
257 Appellate  Body Report , EC – Fasteners  (China) , para. 539. See also, Panel Reports, EC – Fasteners  
(China) , para. 7.451; Korea  – Certain  Paper , para. 7.335; and Mexico  – Steel Pipes and Tubes , para. 7.378.  WT/DS591/7  
 
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  "readily apparent "258 and this may be a relevant factor for panels to consid er when examining the 
showing of "good cause" by the applicant and its subsequent assessment by an investigating 
authority .259 
7.119.   Article  6.5.1 obliges an investigating authority – using the term "shall" – to require the party 
providing confidential informatio n to furnish a "non -confidential summary" of such information. The 
provision stipulates that such summaries shall contain "sufficient detail to permit a reasonable 
understanding of the substance" of the confidential information. "In exceptional circumstanc es", the 
submitting parties are allowed to indicate that the confidential information at issue is not susceptible 
of summary. However, in such exceptional circumstances, a statement of the reasons as to why 
summarization is not possible must be provided. I n this regard, we agree with prior DSB reports 
that "Article  6.5.1 imposes an obligation on the investigating authorities to ensure  that sufficiently 
detailed non -confidential summaries are submitted to permit a reasonable understanding of the 
substance of  the confidential information; and, in exceptional circumstances, to ensure  that parties 
provide a statement appropriately explaining the reasons why particular pieces of confidential 
information are not susceptible of summary."260 
7.4.3   Whether  Colombia  acted  inconsistently  with Article  6.5 with respect  to the redacted  
information  in section  d(i) of FEDEPAPA 's revised  application  
7.120.   Section  d(i) of the revised application concerns the  injury  alleged by the applicant with 
respect to the Colombian  potato -processing industry . As noted, certain information in this 
section  was redacted by the applicant. This redacted information concerns, inter alia, the following 
data: (i)  in the main text of sec tion d(i) of the revised application : (a) injury indicators of the 
domestic industry (i.e. idle and installed capacity as well as actual production); (b)  market share 
trends during the period 2014 -2015; and (c)  domestic industry summary data (i.e. capacity  of the 
domestic industry; average production cost for frozen precooked potatoes in Colombia; domestic 
industry share in the frozen precooked potato market in Colombia; domestic industry installed 
capacity utilization; and idle capacity); and, (ii) in foot note 3 of section  d(i) of the revised 
application : the volume decrease of  the distributors of frozen potato es (food service).261 
7.121.   The European  Union argues that MINCIT  granted confidential treatment to this information 
"on its own initiative", without good cause having been shown by the applicant .262 Colombia raises 
three main arguments in defence of its position that, even in the absence of a showing of "good 
cause by the applicant",  there is no violation of  Article  6.5.263 First, with respect to the redacted 
information in footnote 3 of section  d(i) of the revised application , Colombia argues that since this 
information was not presented in any other document, and as co nfidential treatment was not 
requested, MINCIT decided not to use this information in the investigation, and it "simply" 
disregarded it pursuant to Article  6.5.2 of the Anti -Dumping  Agreement .264 Second, with respect to 
the redacted information in the main text of section  d(i) of the revised application , Colombia 
contends that confidential treatment was not granted to this information because such treatment 
was not requested, and in any event, the information appeared in "full" in the public record.  
Therefor e, Colombia argues  that the obligations under Article  6.5 do not apply to this information .265 
Third, Colombia maintains that confidentiality obligations do not apply to information for which no 
confidential treatment has been granted .266 
 
258 Appellate  Body Report , EC – Fasteners  (China ), para. 536. 
259 Appellate  Body Report, EC – Fasteners  (China ), para. 537. 
260 Appellate Body Report, EC – Fasteners (China) , para.  544 (emphasis added). See also Panel Reports, 
EC – Fasteners (China) , para.  7.515; Mexico – Steel Pipes and Tubes , para.  7.379 ; and 
Guatemala  – Cement  II, para.  8.213.  
261 Revised application , (Exhibit  EU-10), section  d(i); Revised application (confidential version), 
(Exhibit  COL-67), section  d(i). 
262 See e.g. European  Union's  first written sub mission, para.  73. 
263 See e.g. Colombia 's second written submission , paras.  4.8-4.23. 
264 Specifically, Colombia alleges that given the lack of a specific request for confidential treatment of 
the information contained in fn 3 of the revised application, MINCIT decided "not to take it into account" and 
"simply" disregarded it under Article  6.5.2. Colombia adds that this information "neither had an impact on nor 
was of any use in subsequent stages of the investigation".  (Colombia 's response to Panel question No. 13.2, 
paras.  60 and 6 4-67). 
265 Colombia 's second written submission , paras.  4.16-4.17;  response to Panel question No.  13.3, 
paras.  69-71 and 76; and comments on the European  Union's  response to Panel question No.  13.1, para.  1.51. 
266 See e .g. Colombia's response to Panel question No . 13.3, para.  69. WT/DS591/7  
 
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  7.122.   We note that nothing on the record indicates that the applicant showed "good cause" for the 
confidential treatment of any of the information contained in section  d(i), nor is there any indication 
that MINCIT specifically  requested that such "good cause" be  shown. Indeed, Colombia concedes 
that the applicant did not request confidential treatment of this information .267 The parties thus do 
not dispute that the applicant did not attempt to show "good cause" for the confidential treatment 
of this information. We recall that the showing of  "good cause " is a condition precedent for according  
confidential treatment to information submitted to an authority . In the present  case, as discussed 
in paragraph 7.126  below, it is apparent that MINCIT treated this information as confidential,  even 
in the absence of a showing of "good cause" by the applicant. As noted, Colombia raises three 
general arguments in defence of its position t hat in spite of the absence of a showing of good cause, 
it did not act inconsistently with its obligations under Article  6.5. 
7.123.   Turning to Colombia's  first defence  with respect to  the treatment of the  information  in 
footnote 3 of section  d(i) of the revised application , Article  6.5.2 envisages that  investigating 
authorities may take  the following actions  if they "find that a request for confidentiality  [of 
information]  is not warranted" : (a) to disregard such info rmation; or (b)  to take it into account on 
a confidential basis provided that "it can be demonstrated" that "the information is correct."268 
Colombia asserts that MINCIT disregarded the redacted information contained in footnote 3 of the 
revised application  in accordance with this provision. As noted above, however, Colombia 
acknowledges that the applicant did not make a request for the confidential treatment of this 
information.269 Moreover, there is no evidence before us indicating that MINCIT determined that 
confidential treatment of this information was "not warranted", and Colombia has not demonstrated 
otherwise.270 Finally , contrary to Colombia 's assertion that this information was disregarded under 
Article  6.5.2, the record evidence indicates that MINCIT 's injury analysis and determination did, in 
fact, consider the redacted information that was contained in footnote 3 of the revised application.271 
In these circumstances, we consider that Article  6.5.2 does not apply to the factual circumstances 
of this c ase. We therefore reject Colombia's  defence that this information was disregarded pursuant 
to Article  6.5.2.  
7.124.   Colombia's  second argument as part of its defen ce is concerned with the redacted 
information in the main text of the revised application. Colombia argues essentially that the 
availability of this redacted information elsewhere on the record discharges it from complying with 
its obligations under Article  6.5. Colombia contends that a "reasonable reading" of both the revised 
application and the original application enables "any reader" to see that it is the same information .272 
According to Colombia, a joint reading of the original and revised application "cl early shows" that 
the redacted information at issue was recorded "in full" in the original application .273 For Colombia, 
certain elements, such as the structure and content of the respective paragraphs, as well as the 
titles, the source of information, the structure, and the coordinates of each of the relevant tables, 
enable any reader to see (or to "easily infer")  that it is, "in reality", the same information .274 
 
267 Colombia 's response to Panel question No. 13.2, para. 67. 
268 Article  6.5.2 of the Anti -Dumping  Agreement reads as follows : 
If the authorities find that a request for confidentiality is not warranted and if the supplier of the 
information is either unwilling to make the information public or to au thorize its disclosure in 
generalized or summary form, the authorities may disregard such information unless it can be 
demonstrated to their satisfaction from appropriate sources that the information is correct.  
(fn omitted)  
269 Colombia 's response to Panel question No. 13.2, para. 67. 
270 In fact, as Colombia acknowledges, the only information for which MINCIT determined that no 
confidential treatment was warranted, is the information concerning the names of the petitioning firms. 
(Colombia's  response to Panel question No.  13.2, para.  62). 
271 For instance, section 2.2 of the notice of initiation, entitled " Analysis of Material Injury ", states that 
"the volume of the food service sector (the sector on which import penetration has been concentrat ed) has 
fallen by 4% in relation to 2015, which would have had the greatest impact on traditional products, which are 
three times more profitable than the products created to compete with the importers. According to the 
application, this has an effect on p rofitability, capacity and structure ." (Notice  of initiation , (Exhibit  EU-1a), 
section  2.2.1). See also Technical report on the initiation, (Exhibit  COL-10 (BCI)), section  2.2.3.  
272 Colombia's  response to Panel question No.  13.3, para.  73.  
273 Colombia's  second written submission, para.  4.16. 
274 Colombia 's second written submission , paras.  4.10-4.15; response to Panel question No. 13.3, 
para. 73. WT/DS591/7  
 
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  The European  Union maintains that it could not know that the information redacted from one 
document was "identical" to the information made public in another document .275 
7.125.   Absent any clear indication suggesting that the content of the redacted information was 
made available elsewhere in the record, we cannot see how the "reasonable" or "joint" reading  
advocated by Colombia could have enabled other interested parties in the investigation to become 
aware about the availability of the redacted information elsewhere on the record .276 Moreover, the 
elements  identified by Colombia  are, in our view, not enough  to demonstrate that the info rmation 
at issue was the same . In particular, t he fact that the relevant tables  share the same title, structure, 
and source of information does not , alone , demonstrate (or make it easy to " infer" ) that the specific 
"values" or "trends" redacted in one table are the same  as the "values" or "trends" allegedly available 
in another table.  We therefore disagree with Colombia's  argument that a joint reading of both 
applications "clearly shows", and enable s a reader to "easily infer", that the redacted information in 
the revised application was, "in reality", the same  as the relevant information contained in the 
original application.  
7.126.   Finally, we  turn to Colombia's  argument that t he premise of Article  6.5 is centred on 
information that has been granted confidential treatment , and given that the applicant never 
requested that the redacted information in the main text of the revised application be treated as 
confidential, MINCIT did not grant such treatment to this information, and therefore Article  6.5 does 
not apply.277 We are not convinced by Colombia's  argument that no confidential treatment was 
granted to the redacted information in the main text of the revised application. Colombia has not 
pointed to any ev idence  indicating that MINCIT found that confidential treatment of this information 
was not warranted, let alone that it considered whether such treatment was justified.278 Moreover, 
the fact that the applicant did not request confidential treatment for the information in question says 
nothing about whether MINCIT did, in fact, afford confidential treatment to this information. To the 
contrary, in our view, the fact that the  applicant submitted information on a redacted basis without 
a showing of  "good cause"  – coupled with the fact that MINCIT treated this information 
confidentially  – demonstrates a lack of compliance with Article  6.5. Colombia's  argument would 
render ineffe ctive the requirement of showing "good cause" by allowing (a)  interest ed parties to 
submit redacted information without a showing of "good cause" for confidential treatment; and 
(b) investigating authorities to maintain confidentiality of such information without "good cause" 
being shown.279 Accordingly, having received redacted information that was not accompanied by a 
showing of "good cause", we find that MINCIT granted confidential treatment to such information 
inconsistently with Article  6.5.280 
 
275 European  Union's  opening statement at  the second meeting of the Panel, para.  27; response to Panel 
question No.  13.1, para.  34. 
276 Colombia asserts that interested parties had "full" access to the redacted information at issue, to the 
point that it was the European  Union  itself that submitted this information to these proceedings in 
FEDEPAPA's  application , (Exhibit  EU-8a). (Colombia's  second written submission, para.  4.16; response to Panel 
question No.  13.3, para.  70). We fail to see how the submission of an exhibit in these  proceedings  establ ishes 
the "full access" alleged by Colombia as well as compliance  by the Colombian investigating authorities in the 
underlying  investigation  with the requirement  under  Article  6.5. 
277 Colombia 's response to Panel question No. 13.3, paras.  69-71 and 75 . Colo mbia adds that, in any 
event, this information was available in the public record. We have already addressed and rejected 
Colombia 's arguments in this regard . (See paragraph s 7.124 -7.125  above ). 
278 As Colombia acknowledges, MINCIT granted c onfidential treatment  to the information contained in 
annex 10 of the revised application and rejected it for the specific names of the companies in the domestic 
industry . (Colombia's response to Panel question No. 13.2, para.  62. See also Notice of initiation, 
(Exhibit  EU-1a), section 1.5).  
279 We note that in its revised application, the applicant submitted certain information in a redacted 
manner without a showing of good cause. Having received redacted information that was  not accompanied by 
a showing of good cause, MINCIT nevertheless extended confidential treatment to this information.  
280 Colombia all eges that since the redacted information in question was not treated as confidential, the 
issue the Panel should evaluate is  whether the record allowed for a correct understanding of the factual asp ects 
relevant to the investigation  as per Article  6.2 of the Anti -Dumping  Agreement. (Colombia's  response to Panel 
question No.  13.3, paras.  73-75; comments on the European  Union's  response to Panel question No.  13.1, 
para. 1.47).  Colombia's  submission ref ers to Article  6.2 while quoting the text of Article  6.4 of the 
Anti-Dumping  Agreement . It appears therefore that Colombia intended to refer to Article  6.4. However, we 
note that Article  6.4 applies to  information relevant to the presentation of the interested parties ' cases, used by 
the authorities , and not confidential within the meaning of Article  6.5. Thus, having found that MINCIT treated 
the relevant redacted information as confidential, we do not consider it necessary to address this argument b y 
Colombia.  WT/DS591/7  
 
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  7.4.4   Whether  Colombia  acted  inconsistently  with Article  6.5.1  with respect  to the 
redacted  information  in section  d(i) of FEDEPAPA 's revised  application  
7.127.   We recall that Article  6.5.1 of the Anti -Dumping  Agreement requires an investigating 
authority, when granting confide ntial treatment to information submitted by interested parties, to 
ensure that the party submitting such information provides a non -confidential summary thereof, or, 
in exceptional circumstances, provides a statement of the reasons as to why such summariza tion 
was not possible.  
7.128.   The European  Union alleges that the applicant did not provide non -confidential summaries 
of the confidential information at issue  and did not explain why this information could not be 
summarized in a manner that allowed other interested parties to understand its substance .281 
Colombia rejects the European  Union's  claims on the ground that this information was not treated 
as confidential and therefore Article  6.5.1 does not ap ply.282 
7.129.   Article  6.5.1 applies in respect of information  properly treated as confidential under 
Article  6.5. We have already found that Colombia acted inconsistently with Article  6.5 with respect 
to MINCIT's  confidential treatment of the redacted information in section  d(i) of the revised 
application. In  these circumstances, we do not consider it necessary to  make further findings on the 
European  Union's  Article  6.5.1 claim concerning the provision of non -confidential summaries for that 
information , or an explanation as to why such summariz ation was not possible , in order to provid e 
a positive resolution to the dispute before us .283 
7.4.5   Whether  Colombia  acted  inconsistently  with Article  6.5 with respect  to the 
information  in annex  10 of FEDEPAPA 's revised  application   
7.130.   Annex  10 of the revised appl ication, entitled "Table on Injury Variables", contains certain 
economic and financial information  about the  three petitioning companies (Congelagro, Soraca , and 
Frozen Express ) on behalf of whom  FEDEPAPA filed its application . Specifically, annex  10 contains 
the following information, presented in a tabular form:  (a) sales revenue; (b ) sales costs; (c ) gross 
profit; (d ) gross profit margin; (e ) gross nominal price; (f ) production volume; (g ) consumption by 
producers; (h ) sales volume; (i ) initial and final inventory; (j ) installed capacity and use; (k ) direct 
employment; (l ) export volume; and (m ) wages.284 While the table in annex  10 of the revised 
application  lists these categories of information, the  exact  individual values for each category  are 
redacted for all petitioning companies.285  
7.131.   The parties do not dispute that the applicant requested confidential treatment for this 
information and that it provided an explanation as to why this information ought  to be treated as 
confidential. The part ies also do not dispute that MINCIT granted confidential treatment to the 
information in annex  10. Rather, the parties'  arguments centre around two main issues:  (a) whether 
the applicant demonstrated the necessary "good cause" to protect the annex  10 infor mation286; and 
 
281 European  Union's  first written submission, para.  87. 
282 Colombia's  opening statement at the second meeting of the Panel, para.  3.2. 
283 We recall that prior DSB reports have found that, where an investigating authority errs in its 
treatment of c onfidential information, it is not necessary to address claims concerning the provision of 
non-confidential summaries or an explanation as to why such summarization was not possible in order to 
provide a positive resolution to the dispute . (See e.g. Panel Reports, Russia  – Commercial  Vehicles , 
para. 7.249; and Korea  – Stainless  Steel Bars, para.  7.239). 
284 Annex  10 of the revised application, (Exhibit  COL-11). 
285 As noted in fn 241 above , annex  10 of the revised application refers to three separate annexes  
(i.e. annex  10, annex  11, and annex  12), which contain confidential information of the three domestic 
companies on whose behalf the applicant filed its application , and that were provided directly to MINCIT by 
these companies in accordance with MINCIT's  instructions  (i.e. by dividing it into annex  10, annex  11, and 
annex  12). (Colombia's  response to Panel question No.  1.1, para.  3).  
286 In its first written submission, the European  Union argues that "MINCIT  did not require the applicant 
to show good cause for keeping confidential the information supplied". However, in response to Panel question 
No. 3.2, the European  Union acknowledges that "MINCIT requested that the applicant substantiates the 
reasons that j ustify the confidential treatment of the information submitted." From the last statement, we thus 
understand that the European  Union is not further pursuing its claim that MINCIT "did not require the applicant 
to show good cause". (European  Union's first w ritten submission, para.  87; response to Panel question No. 3.2, 
para. 56). WT/DS591/7  
 
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  (b) whether MINCIT objectively assessed the "good cause" that the applicant provided to MINCIT 
when MINCIT elected to grant confidential treatment to the annex  10 information .  
7.132.   On the first issue, we recall that the applicant requested confid ential treatment of the 
information contained in annex  10 on the grounds that "[t]he specific names of the domestic industry 
companies, all their financial information, and in general numerical, and any data that is classified 
as a trade secret, are confid ential".287 The European  Union  asserts that not hing in the record 
indicates that the applicant "actually showed" the necessary "good cause " for the confidential 
treatment sought, and, in particular, argues that the "simple assertion " that all the information 
relating to the domestic industry constituted "business secrets" does not amount to a showing of 
"good cause".288 Colombia maintains tha t the European  Union's  position is factually unfounded.289  
7.133.   We recall that our examination of whether "good cause" has been shown should be 
undertaken in light of the nature of the information at issue. The European  Union  alleges that "it is 
not at all cert ain that all commercial and financial information deserves confidential treatment and 
even less that it constitutes a 'business secret'".290 We note, h owever, that the 
European  Union's  argument does not concern the showing of good cause for " all commercial and 
financial information"  in the abstract . Rather, the European  Union's  argument relates to the showing 
of "good cause" for the specific  information contained in annex  10. 
7.134.   We observe that, apart from making a general assertion  that not "all commercial and  
financial information " deserves confidential treatment or constitute s a "business secret" , the 
European  Union  has not explained why the precise reason provided by the applicant (namely, that 
the information in annex  10 constitutes a "trade secret" ) cannot amount to a showing of "good 
cause" for the specific types of information that are  actually  contained in annex  10.291 In addition to 
observing that it does not challenge the showing of good cause by, for example, allegi ng that the 
specific information in annex  10 does not constitute a "trade secret", we also note that the 
European  Union agrees that some of the information contained in annex  10 could , in fact,  constitute 
a trade or business secret.292 In these circumstance s, and given the allocation of the burden of proof  
as noted in paragraph  7.5 of this Report,  we find that the European  Union  has not established that 
the applicant failed to show "good cause" as to why  the information in annex  10 should be accorded 
confidential treatment .293 
7.135.   We now turn to the second issue as to whether MINCIT objectively assessed the "good cause" 
invoked by the applicant for the confidential treatmen t of the information in annex  10. The 
European  Union claims that MINCIT did not objectively examine whether the reasons provided by 
the applicant constituted "good cause" because:  (a) MINCIT "simply accepted" the 
applicant 's assertion that the financial in formation in annex  10 constituted "business secrets" and 
determined that information of a commercial and financial nature is confidential "by its very nature"; 
and (b ) MINCIT treated the commercial information provided by the domestic industry as 
confident ial, while disclosing similar information provided by the European exporters.294 Colombia 
disagrees with th e European  Union's  understanding of  the facts, and maintains that its  assertions 
constitute  unsubstantiated allegations.295  
 
287 Revised application, (Exhibit  EU-10), section  11. As noted in paragraph   7.110  of this Report, MINCIT 
revealed the "specific names of  the domestic industry companies".  
288 European  Union's  first written submission, para.  73; response to Panel question No. 3.2, para. 56; 
and opening statement at the first meeting of the Panel, para. 26. 
289 See e.g. Colombia's  second written submission, paras.  4.4 and 4.19.  
290 European  Union's  response to Panel question No.  3.4(d), para.  64. (emphasis  added)  
291 For example, the European  Union does not explain why, and which of, the  specific information in 
annex 10 (i.e. sales, profits, prices, production, consumption, inventories, installed capacity, employment, 
exports, and wages ) cannot constitute a "trade secret"  and should therefore not be treated confidentially.  
292 Specifically, the  European  Union stated  that "[it] does not exclude that some of the information 
contained in [annex  10], which MINCIT treated as confidential, could constitute a trade or business secret". 
(European  Union's  opening statement at the second meeting of the Panel, para.  29). 
293 In reaching this conclusion, we express no views as to whether FEDEPAPA's statement did, in fact, 
constitute "good cause" shown  for purposes of Article  6.5. 
294 European  Union , response to Panel question No. 3.4(d), paras.  63-64; second written submission, 
para. 49; and opening statement at the second meeting of the Panel, para. 29. 
295 Colombia 's second written submission, paras.  4.4 and 4. 20-4.23; response to Panel question 
No. 3.4(c), para.  132; and opening statement at the se cond meeting of the Panel, paras.  3.3-3.4. Colombia 
also argues that given that the European  Union's  arguments regarding MINCIT's  lack of "objective assessment" WT/DS591/7  
 
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  7.136.   We recall that our task of reviewing whether MINCIT objectively assessed the alleged "good 
cause" is informed by the investigating authority 's published documents, the nature of the 
information at issue, and the reasons given by the party seeking confident ial treatment. In this 
instance, we note that, in its notice  of initiation, MINCIT accepted the applicant 's request for 
confidentiality on the grounds that " anything related to financial information or data considered to 
be part of trade secrets can be reg arded as confidential, since it is considered to be sensitive 
information that is protected by law, the disclosure of which would seriously damage the companies 
involved ."296 In light of the above, and in accordance with relevant Colombia n domestic law297, 
MINCIT concluded that it "shall, as requested, restrict access to the confidential information 
submitted by the applicant, in order to protect the applicant 's economic, financial and industrial 
trade secrets".298  
7.137.   While  some interested parties, including the European Commission, subsequently objected 
to MINCIT 's decision to grant confidential treatment  to the annex  10 information299, we note that 
MINCIT explained its decision to continue to treat the information at issue as confidential by stating 
that: "[t]his information was submitted as confidential in compliance with the requirements of the 
Anti-Dumping  Agreement  and [the relevant Colombian domestic law]"300, and because its content, 
"under constitutional or legal provisions must be subject to restriction, in particular the economic 
and financial figures which, due to their nature, were submitted in confidence by the Colombian 
producers, given that their discl osure could give a significant advantage to a competitor."301 MINCIT 
also observed  that no specific legal reasons that would oblige the investigating authority to consider 
that such information should be made public were specified by interested parties, nor  was there any  
recourse to the administrative process envisa ged by Article  26 of the Code of Administrative 
Procedure and Administrative Disputes.302 
7.138.   Based on the above, and contrary to the European  Union's  argument, we do not consider 
that MINCIT "simply" accepted the reasons presented by the applicant  when it determined to provide 
confidential treatment to the annex  10 information .303 To the contrary , MINCIT 's published 
statements reveal that it took into account various factors as part of its examination, 
including : (a) the fact that the information under annex  10 was submitted "in confidence" by the 
Colombian producers; ( b) the "economic and financial" nature of the figures in annex  10; (c) the 
need to "protect the applicant 's economic, financial and indus trial trade secrets"; ( d) the harm that 
would be caused to the submitters of the information by the disclosure  of this information304; and 
(e) the status of the information under Colombian domestic law. MINCIT 's examination was 
therefore not limited solely to whether "commercial and financial information " is confidential 
information "by its very nature" or whether such information is protected under domestic law.305 
 
form the basis for the European  Union's  argument regarding "good cause", these arguments should  have been 
provided in the first written submission in accordance with paragraph  3(1) of the Working Procedures . 
(Colombia's  response to Panel question No.  3.4(b), fn  88). For the reasons explained in fn 45 of this Report, we 
decline to accept this argument.  
296 Notice of initiation , (Exhibit EU -1a), section 1.5.  
297 Namely, Political Constitution of Colombia , (Exhibit  COL-12); Articles 15 and 74; Law No. 1437 of 
2011 establishing the Code of Administrative Procedure and Administrative Disputes , (Exhibit  COL-13), 
Article  24.1; and Decree No. 1750 of  2015 regulating the application of anti -dumping duties , (Exhibit  COL-8), 
Article  24.11, para . 1, and Articles  41 and 75. We note  that the  European  Union does not challenge the 
consistency of any of these provisions with the Anti -Dumping  Agreement.   
298 Notice  of initiation , (Exhibit  EU-1a), section  1.5. The technical report o n the initiation , the p reliminary 
technical report , the f inal technical report , and the f inal report on essential facts confirm MINCIT's  confidential 
treatment determination and repeat much of the assessment set out in the notice of initiation. (Technical 
report on the initiation, (Exhibit COL-10 (BCI)), section  1.7; Preliminary technical report, (Exhibit EU -12a), 
section  1.7; Final technical report (public version) , (Exhibit EU -4a), section 1.7; and Final report on essential 
facts (public version) , (Exhibit EU -3a), section 1.7 ). 
299 See e.g. European Commission 's observations on essential facts , (Exhibit  EU-18a), pp. 2-3. See also 
Responses to comments on essential facts, (Exhibit  EU-17a), p.  17. 
300 See e.g. Responses to comments on essential facts, (Exhibit  EU-17a), p.  21.  
301 See e.g. Final determination  (public version), (Exhibit  EU-5a), p. 2. 
302 Final determination  (public version), (Exhibit  EU-5a), p. 2. See also P reliminary technical report, 
(Exhibit EU-12a), p. 37. 
303 European  Union's  response to Panel question No. 3.4(d), para. 63. 
304 Specifically, MINCIT noted the "serious[] damage to the companies involved" by potentially 
conferring "a significant advantage to a competitor" . (See paragraph 7.136  above).  
305 According to the European  Union , the "fact that the financial information may be protected under 
domestic law is not sufficient to establish 'good cause'  within the meaning of Article  6.5 of the 
Anti-Dumping  Agreement , as the type of information protected by domestic law may vary widely among WT/DS591/7  
 
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  In our view, MINCIT 's published statements demonstrate that it considered these factors, together 
with others, in arriving at its conclusion.  
7.139.   Turning to the nature of the information at issue, we recall that the table in annex  10 
contains  information concerning:  (a) sales revenue; (b ) sales costs; (c ) gross profit; (d ) gross profit 
margin; (e ) gross nominal price; (f ) production volume; (g ) consumption by producers; (h ) sales 
volume; (i ) initial and final inventory; (j ) installed capacity and use; (k ) direct employment; 
(l) export volume; and (m ) wages .306 Although the European  Union  seeks to challenge 
MINCIT's  decision to treat this information as confidential by making a general argument that "it is 
not at all certain that all commercial and financial information deserves confidential treatment an d 
even less that it constitutes a 'busi ness secret'"307, we note that the European  Union  concedes that 
the type of  information contained in annex  10 could , in fact,  constitute a trade or business secret.308 
Indeed, as we note above, the European  Union  has not attempt ed to demonstrate that the spe cific 
information in annex  10 does not  – or could not  – constitute a "trade secret ". Furthermore, we note 
Colombia's  argument that the type of information in annex  10 for which confidential treatment  was 
sought is protected as confidential in every anti-dumping investigation worldwide, including by the 
European Commission .309 The European  Union, for its part, does not counter Colombia's  assertion 
by explaining, for example, why the specific types of operational and financial information in 
annex  10 co ncerning domestic producers cannot be confidential.310 Given the above, we are unable 
to find that MINCIT 's examination of the explanation provided by the applicant was deficient for 
purposes of Article  6.5 of the Anti -Dumping  Agreement . 
7.140.   The European  Union  also argues that MINCIT disclosed similar information provided by the 
European exporters and that such disparate treatment undermines Colombia 's assertion that all such 
information is confidential "by nature" .311 Colombia responds  that the European  Union  fails to specify 
what "similar information" it refers to, and in any event, it cannot be argued that information ceases 
to be confidential merely because an investigating authority "inappropriately" disclosed similar 
information.312 
7.141.   We note that, irrespective  of whether the information at issue is confidential "by nature " or 
is "submitted to authorities on a confidential basis ", the granting of confidentiality is generally 
triggered by a party 's request  accompanied by a showing of  "good cause ".313 In this instance, 
however, the  European  Union  has neither alleged nor demonstrated that the investigated exporters 
requested confidential treatment for any information that they provided to MINCIT that was allegedly 
 
different municipal laws", but the "term 'good cause ' must be given an autonomous interpretation in its conte xt 
and in the light of the object and purpose of the Anti -Dumping  Agreement."  (European  Union's  response to 
Panel question No.  3.4(a), para.  59 (emphasis  added)).  In this regard, however, we note that the justification 
provided  by the applicant was that th e information at issue constituted a "trade secret" . (Revised application, 
(Exhibit EU -10), section 11). The domestic law upon which MINCIT relied in its assessment shows only one of 
the reasons why MINCIT accepted such justification. (Notice of initiation , (Exhibit EU -1a), section 1.5) . 
306 Annex  10 of the revised application, (Exhibit  COL-11). 
307 European  Union's  response to Panel question No. 3.4(d), para. 64. 
308 European  Union's  opening statement at the second meeting of the Panel, para. 29. 
309 Colombia 's first written submission, para. 7.34; second written submission, para. 4.22; and response 
to Panel question No. 3.4(b), para. 127.  
310 We note Colombia's  argument that "given the importance and sensitivity" of the information 
contained in annex  10, the European  Union should have at least indicated which of the numerous information 
elements contained in annex  10 it considers  could not be deemed a "business secret" , in order  to demonstrate 
the merits of its submission. ( Colombia 's second written submission, para. 4.21). 
311 European  Union's  response to Panel question No. 3.4(d), para. 64; second written submission , 
para. 49; and opening state ment at the second meeting of the Panel, para. 29. The European  Union argues 
that MINCIT disclosed individualized information on sales prices provided by the investigated exporters, but 
kept confidential all information on prices provided by the domestic i ndustry, including aggregated prices, 
averages , and trends.  (European  Union's  first written submission, para.  86).  
312 In particular, Colombia argues that "by complaining about the alleged disclosure of certain 
confidential  information of European exporters , the European Union seems to call into question, rather than its 
confidential nature, the fact that it was disclosed", and adds that "[t]his could give rise, if anything, to an 
independent violation of the obligation of confidentiality of that information ", but "in no case can the 
European  Union argue that certain information loses its confidential character merely because an authority has 
inappropriately disclosed similar information."  (Colombia's  opening statement at the second meeting of the 
Panel, para.  3.4 (emphasis original) ). 
313 See e.g. Appellate  Body Report, EC – Fasteners  (China ), para.  537 (finding that "the requirement to 
show 'good cause ' … applies to both [categories of ] information  [information that is confidential by nature, and 
information that has been submitted to authorities on a confidential basis]".)  WT/DS591/7  
 
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  similar to the domestic producers'  annex  10 info rmation . Given this important fact, we fail to  see 
how the European  Union's  "disparate treatment" argument is relevant to – or can support  – its 
assertion that MINCIT did not objectively determine whether the explanation provided by the 
applicant  constitut es a showing of  "good cause".314 
7.142.   Based on the foregoing, we find that the European  Union  has not demonstrated,  with respect 
to the information contained in annex  10 of the revised application : (a) that the applicant failed to 
show the necessary "good cause " for the confidential treatment requested ; and (b)  that MINCIT did 
not objectively assess the showing of "good cause" as the basis of granting confidential treatment . 
Accordingly, we find that the European  Union has not established that Colombia acted inco nsistently 
with Article  6.5 of the Anti -Dumping  Agreement in respect of the information contained in annex  10 
of the revised application.  
7.4.6   Whether  Colombia  acted  inconsistently  with Article  6.5.1  with respect  to the 
annex  10 information  in FEDEPAPA 's revised  application   
7.143.   The parties do not dispute  that MINCIT requested the applicant to provide "a summary or 
non-confidential version" of all information for which confidential treatment was requested.315 The 
parties also do not dispute that the applicant d id not provide a non -confidential summary of the 
confidential information contained in annex  10.316  
7.144.   The European  Union, however, argues that it is the task of the investigating authority to 
"ensure " that parties provide meaningful summaries of the confiden tial information submitted by 
them (e.g. through indexation or ranges) .317 Colombia responds  that it did not act inconsistently 
with Article  6.5.1 because the Article  does not require a summary to be provided in "exceptional 
circumstances" and the applicant  explain ed why the information contained in annex  10 was not 
susceptible of summar y.318  
7.145.   We recall  that, whenever an authority elects to accord confidential treatment to a particular 
piece of information, Article  6.5.1 mandates that the authority "shall require" the party that provided 
the information to also "furnish" a non -confidential summary of tha t information.319 This 
non-confidential summary need not be provided in "exceptional circumstances" , provided that the 
party that submitted the information indicates that it "is not susceptible of summary" and provides 
a "statement of the reasons why summar ization is not possible ". The question we must therefore 
consider is whether the applicant  provided a statement of the reasons as to why summarization was 
not possible.  
7.146.   Colombia's  position on this question is grounded in the following statements  made by t he 
applicant:  
 
314 For the same reasons, we disagree with the European  Union's  argument that this "disparate" 
treatment demonstrates  that MINCIT did not objectively assess whether the content of the non -disclosed 
information could have a prejudicial effect on the transparen cy and due  process interests of other parties 
involved in the investigation . (See e.g. European  Union's  second written submission, para.  49). 
315 MINCIT's  deficiency letter to FEDEPAPA , (Exhibit  EU-9a), para.  5. 
316 Colombia 's response to Panel q uestion No. 3.5(a), para.  133; European  Union's  second written 
submission, para.  50. 
317 European  Union's second written submission, para.  54. 
318 Colombia's  responses to Panel questions No.  3.5(b), para.  137 and No.  3.5(c), paras.  138-141; 
second written submission, para. 4.4.  
319 To the extent that Colombia argues that MINCIT  acted consistently with Article  6.5.1 because it 
"requested " a non -confidential summary of the  confidential  information, we disagree. (Colombia's  first written 
submission, para.  7.38). Using the mandatory "shall", Article  6.5.1 obliges an investigating authority to 
"require" that a non -confidential summary be "furnished" by the concerned party. The dictionary definition of 
"require" includes "to … insist on having (something) from or of someone".  (Oxford Dictionaries online, 
definition of "require" https://www.oed.com/view/Entry/163258?rskey=teYJjL&result=2#eid  (accessed 
21 April 2022), v. meaning 6.b)) . In our vie w, a single request by MINCIT, and the fact that such summaries 
were ultimately  not "furnished"  in the underlying investigation , are insufficient to bring Colombia into 
conformity  with the obligation under Article  6.5.1.  Our view is supported by the Spanish and French versions of 
the treaty text, which read, respectively, as follows: "[l]as  autoridades exigirán  a las partes interesadas que 
faciliten información confidencial que suministren resúmenes no confidenciales de la misma " and "[l]es 
autorités exigeront  des parties intéressées qui fournissent des renseignements confidentiels qu'elles en 
donnent des résumés non confidentiels ." (emphas is added)  WT/DS591/7  
 
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  a. The applicant's  request for confidential treatment, which  states,  in relevant part : "all the 
[domestic industry companies'] financial information, and in general numerical , and any 
data classified as a trade secret, are confidential" .320  
b. The applicant 's response , to a question posed  at the public hearing as to why it d id not 
provide the figures of the companies it represents for assessment by all interested parties , 
that: "[t]he  Federation has provided the information nec essary for assessment by the 
interested parties. However, it has always stated that financial information, and in general 
numerical , classified as a trade secret must be kept confidential."321  
7.147.   According to Colombia, these statements demonstrate that summar ization was not possible 
because the financial information submitted in confidence was "numerical". In particular, Colombia 
argues that this "numerical" claim should be read in the relevant context that annex  10 was 
individually submitted by each of three petitioning companies and therefore the financial information 
was directly related to each of the companies. Thus, Colombia contends that  this information could 
not have been summarized without revealing it to at least the other stakeholders in the domesti c 
industry.322 
7.148.   The European  Union, however,  maintains that : (a) the applicant 's indication of what 
information it considers confidential does not amount to an explanation as to why that information 
is not susceptible of summar y; and ( b) the alleged "numeric al" reason does not constitute a 
"sufficient" explanation of why "all" the information contained in annex  10 was not susceptible of 
summar y since most numerical information can be summarized through indexation or indication of 
ranges.323 
7.149.   In our view, the three  sentences  that are cited by Colombia324 reflect the explanation that 
the applicant provided for requesting confidential  treatment , but they do not indicate why the specific 
information contained in annex  10 could not be summarized , or why the situation constituted 
"exceptional circumstances " that would have justified the absence of summarization . In addition, we 
recall that annex  10 concerns different elements of information ( i.e. sales, profits, price, production, 
consumption, invento ries, installed capacity, employment, exports, and wages). These statements, 
however, do not refer to any specific elements of this information for which non -confidential 
summaries were not provided. Moreover, we note that, while various methods of summari zation 
may be used by parties in anti -dumping investigations325, nothing in the above statements indicate s 
why "exceptional circumstances" prevented the applicant from employing a ny particular method of 
 
320 Revised application, (Exhibit  EU-10), section 11 . (emphasis  added ) 
321 FEDEPAPA's  responses  to questions  raised during the hearing, (Exhibit  EU-15), p.  3007. 
(emphasis  added)  
322 See e.g. Colombia 's first written submission, paras.  7.40-7.41; and response to Panel question 
No. 3.5(c), paras.  138-141 and fn 105. Colombia adds that such justification was provide d in good time and in 
the correct form, and was sufficient for treating as confidential the information contained in annex  10. 
(Colombia's  second written submission, para.  4.27). 
323 See e.g. European  Union's  opening statement at the second meeting of the Panel, para.  31; and 
second written submission, paras.  53-54. In light of the European  Union's  arguments, we reject 
Colombia's  contention that the "sufficiency" of the justification given by FEDEPAPA is not part of the 
European  Union's  position . (Colombia 's second written submission, paras.  4.26-4.27 and fn 88; response to 
Panel question No.  3.5(c), para.  142).  For the reasons explained in fn 45 of this Report, we also reject 
Colombia 's contention that this argument should have been submitted by the European  Union  in its first written 
submission as required by paragraph  3(1) of the  Working Pro cedures  of the Panel.  (Colombia 's second written 
submission, fn 88). 
324 See paragraph  7.146  above.  
325 Colombia disagrees with the European  Union  that the information at issue could be summarized 
through indexation. (Colombia's  closing statement at the second meeting of the Panel, para. 1.21). However, 
Colombia does not counter the European  Union assertion that this information could be summarized through an 
indication of ranges.  Moreover, nothing in the record indicates that any efforts were made to explore the 
possibilities or potential alternatives for the summarization of the confidential information at issue (or for 
certain pieces of such confi dential information).  WT/DS591/7  
 
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  summarization.326 We thus fail to see how these stateme nts support Colombia's  assertion that the 
applicant explained why the information contained in annex  10 was not susceptible of summary .327 
7.150.   Finally, we note Colombia's  argument that MINCIT  explained the "obvious" reasons why this 
information could not be summarized, and that based on the explanation by FEDEPAPA328, and the 
very "nature" of that information, MINCIT was convinced that it could not be summarized as it could, 
even in summary for m, "cause irreversible harm ".329 While we note that MINCIT discussed the 
confidentiality  of the information at issue under Colombian domestic law330, we do not consider that 
this reflects the explanation that is now provided by Colombia in these panel procee dings as to why 
summarization  of such information  was not possible. In any event, as we have found above, a 
"statement of the reasons why summarization is not possible" – which is a " must" under 
Article  6.5.1  – was not provided in the underlying investigat ion. 
7.151.   In light of the foregoing, we find that the European  Union  has establish ed that Colombia 
acted inconsistently with its obligations under Article  6.5.1 because : (a) MINCIT did not "require" 
the applicant to "furnish"  non-confidential summaries of the i nformation contained in annex  10 to 
which confidential treatment was granted; and (b ) to the extent  that this information was not 
susceptible of summary, a statement of the reasons as to why summarization was not possible was 
not provided.  
7.4.7   Conclusion   
7.152.   Based on the foregoing, with respect to the European  Union's  claims under Articles  6.5 
and 6.5.1 of the Anti -Dumping  Agreement challenging MINCIT's  confidential treatment of the certain 
information in section  d(i) and annex  10 of FEDEPAPA's  revised applica tion, we find that:  
a. the European  Union has established that Colombia acted inconsistently with its obligations 
under Article  6.5 with respect to the redacted information in section  d(i) of 
FEDEPAPA's  revised application  because MINCIT granted confidential treatment to th is 
information without a showing of  "good cause " by the applicant . Given our finding of 
 
326 We agree with findings from a prior adopted DSB report that while "various methods of 
summarization are used by parties and investigating authorities in anti -dumping investigations, such as 
indexing data, providing trends analysis,  and aggregating data from multiple producers", it is incumbent "on 
the submitting party to explain, inter alia, why present circumstances prevent it from employing  [a given]  
method." ( Appellate  Body Report , EC – Fasteners  (China) , fn 786). 
327 We note that prior adopted DSB reports have considered  that a statement of why summarization is 
not possible cannot be considered an appropriate statement if:  it "speaks to a justification for providing 
confidential treatment in the first place"; it does not "address the issue of why summarization of the 
information is not possible, or why the particular information presents exceptional circumstances that would 
justify a failure to provide a non -confidential summary"; and it is a "single statement" which r epeats a 
"justification for treating a number of different pieces of information as equally unsusceptible to 
summarization." (Appellate  Body Report, EC – Fasteners  (China) , para.  553. See also Panel Reports, 
EC – Fasteners  (China) , para.  7.516; and China  – HP-SSST  (Japan ) / China  – HP-SSST  (EU), para. 7.326 ).  
328 Specifically, Colombia states that " FEDEPAPA indicated on at least two occasions, [that] the 
information for which confidential treatment was requested is of a 'numerical ' nature and cannot therefor e be 
summarized. Moreover, the trends in each producer's different variables cannot be summarized without 
disclosing their confidential information. For example, if indexed values are used to describe the trend of such 
variables, other interested parties w ill not learn the actual values, but will learn of the trend, which is also 
confidential as its disclosure could be used commercially by other companies. In the words of [MINCIT] , its 
disclosure could 'cause irreversible harm '". (Colombia's first written s ubmission, para.  7.41 (referring to 
Revised application , (Exhibit EU -10), folio 521; FEDEPAPA 's responses  to questions raised during the hearing, 
(Exhibit EU -15), folio 3006 ; and Responses to comments on essential facts, (Exhibit EU -17a), pp. 11 -12)). 
329 Colombia 's first written submission, paras.  7.41-7.43 (referring to Responses to comments on 
essential facts, (Exhibit EU -17a), pp. 11 -12). 
330 In support of its position, Colombia refers to MINCIT's  statements that "[r] egarding the lack of 
non-confidential  summaries  … it should be mentioned that, in accordance with the provisions of the WTO 
Anti-Dumping  Agreement  and Decree 1750 of 2015, the right of defence and due process ha s not been 
violated, given the company 's confidentiality rights under [Colombian d omestic law] protecting the 
confidentiality of company economic and financial data where disclosure thereof may cause irreparable harm ." 
Moreover, "[w]ith regard to the provision of information about injury, it is reported that the economic and 
financial f igures, due their nature , were provided by the Colombia producers as confidential  information, since 
their disclosure could generate a significant competitive advantage to a competitor.  This confidentiality was 
maintained in accordance with Colombian laws and Article  6.5 of the Anti -Dumping  Agreement." (Responses to 
comments on essential facts, (Exhibit  EU-17a), p.  11 (emphasis  added)).  WT/DS591/7  
 
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  inconsistency, we do not consider it necessary to make further findings on the 
European  Union's  claim under Article  6.5.1 concerning the information in s ection d(i) of 
the revised application in order to provide a positive resolution to the dispute before us;  
b. the European  Union has not established that Colombia acted inconsistently with its 
obligations under Article  6.5 in respect of the information contai ned in annex  10 of the 
revised application because the European  Union  has not demonstrated:  (a) that the 
applicant failed to show the necessary "good cause " for the confidential treatment 
requested ; and (b)  that MINCIT did not objectively assess the showin g of "good cause" as 
the basis of granting confidential treatment; and  
c. the European  Union has established that Colombia acted inconsistently with its obligations 
under Article  6.5.1 with respect to the information contained in annex  10 of 
FEDEPAPA 's revise d application because : MINCIT did not "require" the applic ant to 
"furnish " non -confidential summaries of the confidential  information contained in 
annex  10; and, to the extent that this information was not susceptible of summary, a 
statement of the reasons  as to why summarization was not possible was not provided.  
7.5  Claims under Article  2.1, Article  6.8, and Annex II of the Anti -Dumping Agreement: 
MINCIT's alleged  use of facts available  
7.5.1   Introduction  
7.153.   In calculat ing the margins of dumping for the exporter s subject to the investigation , including 
Agrarfrost, Aviko, and Mydibel, MINCIT  used export pricing information that it extracted from 
Colombia's official import statistics (the "DIAN database" or "DIAN data"331).332 MINCIT did not base 
its dumping determination on the export prices that exporters submitted to the authority  in their 
respective questionnaire responses.333 
7.154.   The European  Union claims that , in so doing,  MINCIT "in fact" applied facts available without 
being entitled to do so and thus acted  inconsistently with Article  6.8 and paragraph  3 of Annex  II of 
the Anti -Dumping Agreement, and, relatedly, Article  2.1 and paragraph  6 of Annex  II of the 
Anti-Dumping Agreement .334 
7.155.   The European  Union supports these claims by asserting that: (a)  an authorit y may only  
resort to facts available  in accordance with the requirements of Article  6.8; (b)  none of the 
requirements under Article  6.8 were fulfilled in the underlying investigation because the exporters 
fully responded to MINCIT's request for information ; and (c)  the export price data that the exporters 
provided  to MINCIT satisfied all the criteria set forth in paragraph  3 of Annex  II335 and MINCIT did 
not find to the contrary .336 As such , the European  Union contends that , in making its dumping 
determination,  MINCIT was required to use the pricing data that the exporters provided to the 
authority as  it had no basis under  Article  6.8 or paragraph  3 of Annex  II to use the DIAN data.337 
7.156.   The European  Union also contends that MINCIT did not  inform the exporters of the reasons 
as to why it elected to  disregard the pricing information that they had supplied , contrary to 
 
331 DIAN is the acronym for Colombia 's National Tax and Customs  Directorate  (Dirección de Impuestos y 
Aduanas Nacionales ). 
332 Final technical report (public version) , (Exhibit  EU-4a), sections  2.1, 2.5, and 2.5.1-2.5.3. 
333 MINCIT used export price information extracted from the DIAN database to determine dumping 
margins for the individually investigated exporters (i .e. Agristo, Clarebout, Ecofrost, Mydibel, Farm Frites, 
Aviko, and Agrarfrost – all of which responded to MINCIT 's exporter questionnaire) and any "other" 
non-responding exporters from Belgium, Germany and the Netherlands. ( Final technical report  (public v ersion) , 
(Exhibit  EU-4a), sections  2.1, 2.5, and 2.5.1 -2.5.3). MINCIT applied definitive anti -dumping duties on imports 
from Agrarfrost, Aviko, and Mydibel  as well as on imports from any "other" exporters from the Netherlands.  
334 European  Union's  first writ ten submission, para s. 99, 120, and 131 . 
335 European  Union's  first written submission, para.  128. 
336 European  Union's  first written submission, paras.  93 and 102.  
337 European  Union's  first written submission, paras.  110 and 128.  WT/DS591/7  
 
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  paragraph  6 of Annex  II.338 Finally, the European  Union asserts that , as a consequence of infringing 
Article  6.8 and Annex II, MINCIT also  acted inconsistently with Article  2.1.339 
7.157.   Colombia , for its part,  responds that MINCIT did not resort to facts available when it elected 
to use the DIAN data, and that, therefore, the facts available disciplines do not apply  to 
MINCIT's  determination .340 Specifically, Colombia presents two arguments in this regard. First, 
Colombia argues that  the DIAN data do not constitute facts available, "best information available", 
or "secondary [source] information ".341 Rather, these data represent what Colombia describes as 
"primary  [source] information ".342 In Colombia's view, this is because the DIAN data pertain directly 
to the exporter s concerned343 and are "identical, in essence and origin"344 to – or "essentially the  
same"345 as – the data that the exporters provided in their questionnaire responses.  Given this, 
Colombia argues that it was within  MINCIT's discretion to select the DIAN data as being "more 
appropriate" for its calculations .346 
7.158.   Second, Colombia notes that MINCIT never made any express facts available finding  
pursuant to Article  6.8 and paragraph  3 of Annex  II – for instance , by observing  that the exporters 
did not provide the requested "necessary " information .347 According to Colombia, the absence of an  
explicit and formal determination by  MINCIT in this regard indicates that MINCIT did not use facts 
available in determining export prices and that, therefore, the rules concerning the use of facts 
available do not apply in the present context.348  
7.159.   In sum, Colombia contends that, given that MINCIT did not use facts available,  the 
European  Union's  claims under Article  6.8 and Annex  II, as well as its consequential Article  2.1 
claim, must fail.   
7.160.   Notwithstanding the above, Colombia argues that, in the e vent that the Panel were to find 
that the DIAN data constituted facts available, MINCIT nonetheless complied with Article  6.8 and 
Annex II. In this regard, Colombia asserts that MINCIT took into account the information that the 
exporters had provided and i nformed them of its decision to use the DIAN data.349 Colombia also 
contends that MINCIT  afforded the exporters an opportunity to comment on this issue and that the 
authority explained the reasons for its decision in response to the comments that were made by 
several exporters.350 
7.161.   We begin our examination  by recall ing the applicable requiremen ts under  Article  6.8 and 
paragraph s 3 and 6 of Annex  II (section  7.5.2 ). Next, we consider whether MINCIT used "facts 
available" within the meaning of Article  6.8 a nd, if so, whether it acted in accordance with the 
requirements that govern an investigating authority's resort to facts available (section  7.5.3 ). 
7.5.2   Applicable requ irements under  Article  6.8 and paragraphs 3 and 6 of Annex II  
7.162.   Article  6.8 of the Anti -Dumping Agreement provides  that: 
 
338 European  Union's  first written submission, para.  130. 
339 European  Union's  first written submission, para.  129; response to Panel question No.  4.8, para.  100. 
340 Colombia's  first written submission, paras.  8.3, 8.36, and 8.39.  
341 Colombia's  first written submi ssion, paras.  8.2, 8.37, 8.52, and 8.56 ; second written submission, 
paras.  5.1-5.18. 
342 Colombia's  first written submission, paras.  8.2, 8.7, 8.37, 8.40, and 8.46 -8.47; second written 
submission, para.  5.9. 
343 Colombia's  first written submission, paras.  8.2, 8.37,  and 8.46-8.47. 
344 Colombia's  first written submission, paras.  8.2, 8.7, 8.37, 8.47, 8.51, and 8.59 . 
345 Colombia's  second written submission, paras.  5.3, 5.9, and 5.11.  
346 Colombia's  first written submission, paras.  8.2-8.3, 8.7, 8.36, 8.38, 8.52, 8.88-8.89, and 8.96 ; 
response s to Panel question s No. 4.2(a), para. 145, No. 4.2(b), para.  148, and No.4.2(c), para.  149; and 
second written submission, para.  5.3. 
347 Colombia's  first written submission, paras.  8.39 and 8.63-8.78. 
348 Colombia's  opening statement at the first meeting of the Panel, para.  3.7. 
349 Colombia's  opening statement at the first meeting of the Panel, para.  3.9; response to Panel 
question No.  14.2(a), para s. 81-85. 
350 Colombia's  opening statement at the first meeting of the Pan el, para.  3.9; response to Panel 
question No.  14.2(a), para.  85. WT/DS591/7  
 
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  In cases in which any interested party refuses access to, or otherwise does not provide, 
necessary information within a reasonable period  or significantly impedes the 
investigation, preliminary and final determinations, affirmative or negative, may be 
made on the basis of the facts available. The provisions of Annex II shall be observed 
in the application of this paragraph.  
7.163.   The first senten ce of Article  6.8 lists three types of circumstances in which an investigating 
authority may elect to use "facts" that are otherwise  "available " in order to make its 
"determinations". Recourse to facts available is thus limited to situations in which  an interested party 
refuse s access to, or otherwise d oes not provide  necessary information, or where it significantly 
impede s the investigation.  
7.164.   The second sentence of Article  6.8 sets out the relationship between Article  6.8 and 
Annex  II, entitled "Best information available in terms of paragraph 8 of Article  6", and stipulates 
that the "provisions of Annex II shall be observed in the application of" Article  6.8. Paragraph  3 of 
Annex II provides, in relevant part, that "[a]ll information which is verifiab le, which is appropriately 
submitted so that it can be used in the investigation without undue difficulties, [and] which is 
supplied in a timely fashion … should be taken into account when determinations are made". 
Paragraph  6 of Annex  II requires, inter alia, that "[i]f evidence or information is not accepted, the 
supplying party should be informed forthwith of the reasons therefore, and should have an 
opportunity to provide further explanations within a reasonable period".  
7.5.3   Analysis  
7.165.   The parties disagree as  to whether MINCIT resorted to the use of facts available and, if so, 
whether it acted inconsistently with the requirements of Article  6.8 and Annex  II by electing not to 
use the export prices provided by the exporters in their questionnaire responses and,  instead, using 
the DIAN data. As we see it, a key question in this regard is whether the DIAN data constitute "facts 
available" within the meaning of Article  6.8 and Annex  II. 
7.166.   In considering this question, we recall that Article  6.8 permits an investigati ng authority to 
use "facts available" as the "basis" of its determinations when an "interested party refuses access 
to, or otherwise does not provide, necessary information within a reasonable period or significantly 
impedes the investigation". We also not e that Annex  II similarly contains several requirements that 
regulate the circumstances in which an investigating authority may resort to, and use, facts 
available  – e.g. by regulating, inter alia, the manner in which an authority may request necessary 
information  – and the conditions under which an authority should take information into account.  
7.167.   As part of our analysis below (paragraphs  7.168 -7.185 ), we discuss six considerations that 
we deem relevant to our evaluation of the European  Union's claim: (a) MINCIT's request for export 
price information ; (b) the exporters' question naire responses containing  the requested export 
prices ; (c) the DIAN data as the basis for MINCIT's determination ; (d) the origin of the DIAN data ; 
(e) the dissimilarity between the DIAN data and the exporters' export prices ; and ( f) the absence of 
a facts  available determination pursuant to the Article  6.8 criteria . Having reviewed these 
considerations, we  undertake an overall evaluation of the matter, including the question of whether 
the DIAN data constitute facts available and, if so, whether MINCIT act ed inconsistently with the 
requirements of Article  6.8 (paragraphs  7.186 -7.192 ). 
First consideration – MINCIT's request for export price information  
7.168.   We note that , at the outset of the investigation , MINCIT  issued a questionnaire to the 
investigated exporters in which the authority asked for, inter alia, company -specific information, 
including sales prices per export transaction to Colombia during the period of investigation .351 
Second consideration – The exp orters' questionnaire responses with the requested export prices  
7.169.   The three exporters at issue  – Agrarfrost , Aviko , and Mydibel  – were among the companies 
that provided questionnaire responses and supplied the requested export price information to 
 
351 Dumping investigation questionnaire for foreign pro ducers and/or exporters, (Exhibit  EU-23a), 
section  5. WT/DS591/7  
 
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  MINCIT.352 MINCIT's final technical report notes that these exporters "participated" and 
"collaborated" in the investigation, including by providing "timely" questionnaire responses.353 
Third consideration – The DIAN data as the basis for MINCIT's determination  
7.170.   Article 6.8 permits investigating authorities to make determinations "on the basis of the facts 
available" in the three situations envisaged thereunder. In the circumstances of the present dispute, 
we note that MINCIT made its dumping determination "on the basi s of" export price information  that 
was necessary for the calculation of the margins of dumping. However, in making  this determination, 
MINCIT did not use  the pricing information  that the exporters provided in the ir questionnaire 
responses and used the DIA N data instead.354 The latter data thus constituted the actual  export 
price information that MINCIT used a s the "basis" of its dumping determination.  
7.171.   We note that, while not disputing that MINCIT relied on the DIAN data to make its dumping 
determination,  Colombia argues that it would be incorrect to state that MINCIT rejected , or did not 
use, the export price information that exporters provided in the questionnaire responses.355 Rather, 
Colombia asserts that MINCIT  proceeded in two steps. First, Colombia asserts that MINCIT used the 
DIAN data as a "starting point" in its calculations to determine "initial" F.o.b. (free on board) export 
prices.356 Second, Colombia asserts that MINCIT then used the cost information con tained in the 
exporters' questionnaire responses to adjust F.o.b. export prices to ex -factory levels. Therefore, in 
Colombia's view, MINCIT used, and took into account , information that the exporters had provided 
when the authority calculated ex -factory ex port prices.357 We note, however, that MINCIT's reliance 
on the exporters' cost information for calculating deductions or adjustments does not alter the fact 
that MINCIT used – and based its determination on – the export prices extracted from the DIAN 
datab ase, rather than the export prices that the exporters had provided in their questionnaire 
responses.  
Fourth consideration – The origin of the DIAN data  
7.172.   With respect to the operation of its domestic import regime, Colombia explains that 
importers provide th e National Tax and Customs Directorate  (DIAN) with information on import 
transactions when they complete and submit their import declarations.358 DIAN collects this 
information in its DIAN database. Colombia adds that, in the circumstances of this dispute, the 
importers of the product under investigation supplied, inter alia, exporter -specific export price 
information to DIAN in their import declarations.359 In our view, therefore, the data that MINCIT 
extracted from the DIAN database in the underlying invest igation did not originate from export price 
information that the exporters  provided during the investigation , for instance, as part of their 
responses to MINCIT's specific questionnaire request for export prices.360 Rather, the importers  
provided the DIAN d ata in an administrative procedure – and to an administrative authority – that 
was unrelated to the anti -dumping investigation conducted by MINCIT.  
7.173.   Notwithstanding the fact that the DIAN data did not originate directly from the exporters, 
we note that Colo mbia refers to two elements that, in its view, establish a "link" between the 
importers and the exporters.361 First, Colombia argues that the importers relied on data and 
documents from the exporters when they provided export price information to the DIAN d atabase 
in their import declarations.362 Second, Colombia contends that according to domestic Colombian 
law the information in the import declarations had to match the information in the underlying 
 
352 Final technical report (public version) , (Exhibit  EU-4a), sections  2.1, 2.5,  and 2.5.1-2.5.3. 
353 Final technical report (public version) , (Exhibit  EU-4a), sections  2.1, 2.5, and 2.5.1-2.5.3. 
354 Final technical report (public version) , (Exhibit  EU-4a), sections  2.1, 2.5, and 2.5.1-2.5.3. 
355 Colombia's  response to Panel question No.  14.2(a), paras.  81-82. 
356 Colombia's  first written submission, paras.  8.5, 8.21 -8.22, and 8.30 -8.31; responses to Panel 
questions No.  4.2(a), para.  146, No.  4.2(b), para.  147, and No.  4.2(c), para.  149. 
357 Colombia' s response to Panel question No. 14.2(a), paras.  81-82. 
358 Colombia's first written submission, paras. 8.13 -8.14. 
359 Colombia's  first written submission, paras.  8.14-8.15 and 8.47;  response to Panel question 
No. 4.3(b), para.  151. 
360 Colombia's  first written submission, paras.  8.14-8.15 and 8.47;  response to Panel question 
No. 4.3(b), para.  151. 
361 Colombia's  response to Panel question No.  4.4, para.  162. 
362 Colombia's  first written submission, para.  8.15; response to Panel question No.  4.4, para.  162. WT/DS591/7  
 
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  supporting documents, such as the invoices.363 In response t o questioning by the Panel seeking 
further clarification on the relationship between the importers and the exporters, and the 
documentation provided to the DIAN database, Colombia , however,  acknowledges that the importers  
did not submit to the DIAN databas e any documents with export price information that the exporters 
had issued and, in particular, they did not provide any invoices .364 We also note 
Colombia 's statement that the importers were not agents of the exporters, and therefore did not act 
in their name and at their direction, when submitting the import declarations.365 Moreover, and 
significantly, not only did the two data sets stem from different entities (impor ters and exporters, 
respectively) and different administrative procedures (customs procedures and anti -dumping 
investigation, respectively), but they were, in any event, not the same.366 We address this latter 
point in the following paragraphs.  
Fifth consid eration – The dissimilarity between the DIAN data and the exporters' export prices  
7.174.   Colombia argues that MINCIT did not use facts available in the circumstances of this case 
because the export prices extracted from the DIAN database and the export prices th at the exporters 
provided in the questionnaire responses were (essentially) the same. In this regard, Colombia 
variously refers to the data sets as being " identical, in essence and origin"367, "equivalent"368, and 
"essentially the same"369, other than for "sm all differences" in "technical details".370 This being the 
case, Colombia argues, MINCIT had discretion to elect to use the DIAN data without resorting to 
facts available.371 
7.175.   The European  Union disagrees with Colombia and argues that the data sets differed 
significantly, both in terms of the prices for specific export transactions and the overall composition 
of the sets of export transactions.372 In particular, the European  Union describes in detail the 
differences as they relate to the content, form, structur e, and the source of the data.373 
7.176.   Irrespective of the various ways in which Colombia characterizes the similarities between 
the data, we consider that, based on both parties' factual descriptions provided to the Panel, the 
data sets did, in fact, differ in several respects.374 In particular:  
 
363 Colombia's  first written submission, para.  8.15; response s to Panel question s No. 4.4, para.  162; and 
Nos. 4.5(a) and 4.5(b), para.  167. 
364 Colombia's  responses to Panel question s Nos. 4.5(a) and 4.5(b ), para.  168 and fn  118. According to 
Colombia, importer s were under a legal obligation to keep relevant documentation for five years in case of an 
audit.  
365 Colombia's  response to Panel question No.  4.4, para.  161. 
366 The European  Union argues that, irrespective of the fact whether the data sets were the same or  not, 
MINCIT was only permitted to use the export price data that the exporters  provided in and for the purpose of 
the investigation . (European  Union's  opening statement at the first meeting of the Panel, para.  36; second 
written submission, paras.  57 and 60; responses to Panel questions No.  4.3(a), paras.  73-75 and 77, and 
No. 14.2(b), paras.  39-40; comments on Colombia's  response to Panel question No.  14.2(a), para.  15). In the 
European  Union's  view, MINCIT could not properly use data that was collected f rom a different source outside 
the investigation , and for  a different purpose, absent a finding that the conditions in Article  6.8 and Annex  II 
for recourse to the facts available mechanism were met. (European  Union's  second written submission, 
paras.  57 and 60).  In paragraphs  7.172 -7.173 , we discuss these aspects of the DIAN data. Our discussion of 
this issue is among the elements that we consider in our overall assessment in paragraphs  7.168 -7.192  in 
order to resolve the European  Union's claim.  
367 Colombia's  first written submission, paras.  8.2, 8.7, 8.37, 8.47, 8.51, and 8.59 . 
368 Colombia's  responses to Panel questions No.  4.2(a), para.  145, No.  4.2(b), para.  148, and 
No. 4.2(c), para.  149. 
369 Colombia's  second written submission, paras.  5.3, 5.9, and 5.11.  We note that when asked by the 
Panel, Col ombia acknowledged that the data sets were "not 'identical' in the strict sense of the word". 
(Colombia's responses to Panel questions No.  4.3(a) and No. 4.3(b), para.  151).  
370 Colombia's  second written submission, paras.  5.9 and 5.11 . 
371 Colombia's  first written submission, paras.  8.2-8.3, 8.7, 8.36, 8.38, 8.52, 8.88-8.89, and 8.96 ; 
response s to Panel question s No. 4.2(a), para.  145, No.  4.2(b), para.  148, and No.  4.2(c), para.  149; second 
written submission, para.  5.3. 
372 European  Union's  response to Panel question No.  4.3(a), paras.  78-79; second written submission, 
para. 61; and opening statement at the second meeting of the Panel, paras.  36-37. 
373 European  Union's  response to Panel question No.  4.3(c), paras.  81-95; second written submis sion, 
paras.  62-66. 
374 Colombia's  response s to Panel question s No. 4.3(b), para.  151, No. 4.3(d )(i), paras. 152-157 
(referring to Agrarfrost's export transactions, (Exhibit  COL-41 (BCI)); Aviko's export transactions, WT/DS591/7  
 
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  a. the numerical export price values in the two data sets differed both in terms of currency 
denomination and level of trade (INCOTERMS).375 Moreover, the exporters provided export 
prices per product type, whereas the data set extracted from the DIAN database contained 
prices of merchandise imported under subheading 2004.10.00.00, without differentiating 
between product types;  
b. further , as per  MINCIT 's questionnaire request,  the exporters provided export prices for 
individual sales transactions .376 By contrast, each export price in the DIAN database was 
calculated as an average price of several invoices and several sales transactions.377 
Individual transaction -specific prices  and average prices are, in our view, not the same; and  
c. as regards Agrarfrost, Aviko, and Mydibel, the two data sets were also partially composed 
of different export transactions.378 The data set that MINCIT extracted from the DIAN 
database included certain transactions, and corresponding export prices, that were not 
contained in the exporters' data in their questionnaire responses, and vice versa .379 This 
was mainly because the exporters and MINCIT selected relevant export transactions 
differently. The exporters reported export transactions for which the sale (by invoice date) 
occurred  during the period of investigation. By contrast, MINCIT selected transactions for 
which the DIAN database indicated that the customs declaration was made during the 
period of investigation .380 
7.177.   Therefore, when questioned by the Panel about its assertion tha t the two sets of data were 
(essentially) the same, Colombia did not sufficiently substantiate its position.381 To the contrary, as 
explained above, the parties' statements, including those by Colombia, indicate that the data sets 
differed significantly in  their scope and content.   
 
(Exhibit  COL-42 (BCI)); and Mydibel's export transactions, (Exhibit COL -43 (BCI))) , and No.  4.3(d) (ii), 
paras. 158-159; European  Union's  response to Panel question No.  4.3(c), paras.  81-95; second written 
submission, paras.  62-66. 
375 Exporters reported their export prices in EUR and o n a CIF basis, while the export prices in the DIAN 
database were expressed in USD and at F.o.b. level. MINCIT thus made the necessary conversions when using 
the DIAN data. (Colombia's  first written submission, paras.  8.16 and 8.51, and fn  121; Colombia's r esponses to 
Panel questions No.  4.3(b), para.  151, and Nos.  4.5(a) and 4.5(b) , para s. 165-166; European  Union's  first 
written submission, para. 106 and fn 140; and European  Union's response to Panel question No.  4.3(c), 
paras.  86-90). 
376 Dumping investigation questionnaire for foreign producers and/or exporters , (Exhibit  EU-23a), 
section  5. 
377 According to Colombia, the DIAN database is fed with information from import declarations. Each 
import declaration typically aggregates the prices from severa l invoices. Each invoice, in turn, may relate to 
one or several sales transactions.  Each export price extracted from the DIAN database thus represents an 
average price of the invoices covered by a given import declaration where each of the invoices concern ed may 
relate to several sales transactions. (Colombia's  response to Panel question No.  4.3(b), para.  151).  
378 Colombia notes that the data sets for the exporter Clarebout, whose exports were not subject to 
definitive anti -dumping duties, were composed of t he same transactions. (Colombia's  response to Panel 
question No.  4.3(d)(i), para.  156).  
379 Colombia's  response to Panel question No.  4.3(d)(i), paras.  152-157 (referring to Agrarfrost's  export 
transactions , (Exhibit  COL-41 (BCI)); Aviko's export transaction s, (Exhibit  COL-42 (BCI)); and Mydibel's  export 
transactions , (Exhibit  COL-43 (BCI))).  
380 Colombia's  first written submission, paras.  8.19 and 8.26; response to Panel question No.  4.3(d)(ii), 
para. 158; European  Union's  response to Panel question No.  4.3(e) (ii), para.  95. Colombia also notes that 
MINCIT selected export transactions from the DIAN database according to the date on which the merchandise 
was cleared from the customs procedures and released on the domestic market. (Colombia's  response to Panel 
question No.  4.3(d)(ii), para.  158).  
381 Colombia responded only by outlining the differences in the data but not by showing that the data 
were indeed (essentially)  the same. (Colombia's  responses to Panel questions No.  4.3(b), para.  151, and 
No.4.3(d)(i), par as. 152 -157).  WT/DS591/7  
 
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  Sixth consideration – The absence of a facts available determination pursuant to the Article  6.8 
criteria  
7.178.   Turning to the reasons provided by MINCIT for using the DIAN data (as reflected in the 
investigation record), we note that t he authority provided the following reply in response to queries 
by certain interested parties concerning, in their view, the unjustified use of facts available382: 
With regard to  the unjustified rejection of information duly submitted by the companies, 
in our investigations Colombia's official source for import data is the National Tax and 
Customs Directorate (DIAN). The DIAN obtains its data from information reported by 
the importer, which is supported by documents issued by the exporter and is used to 
calculate the FOB export price to Colombia.  
Under the Colombian Customs  Code, import declarations must match the information 
contained in the documents on which they were based, failing which the declarant shall 
be held liable as specified in Article  40 of De cree 390 of 2016 (Customs Code), which 
states, inter alia: "The declarant shall be responsible for submitting the 
documents required to support the customs declaration, in compliance with 
the legal requirements, as well as for the authenticity of the documents . The 
declarant shall also be responsible for the payment of duties and taxes, interest, the 
value of the recovery fee and any penalties that may be incurred." (Underlining and 
bold type added).  
Accordingly, the sales listed by each of the compani es must be strictly related to what 
is stated in the customs declaration, which means that the information in the DIAN 
database can be considered useful, reliable and effective evidence for calculating the 
export price .383 
7.179.   Based on the excerpt above, we und erstand MINCIT's reasoning justifying its use of the 
DIAN data to proceed as follows: the DIAN database was of an official nature; importers provided 
information to the DIAN database based on documents from the exporters; the information in the 
import decl arations had to match the information in the underlying supporting documents; the 
export prices in the exporters' questionnaire responses therefore had to accord with the information 
in the customs declarations; and the DIAN data was thus " useful, reliable  and effective evidence ". 
7.180.   We note that MINCIT provided no further reasoning on this matter in its determination. 
Hence, our review of the record of the investigation indicates that the authority did not state explicitly 
that it resorted to facts available in order to determine the export price information that it used to 
calculate the margins of dumping. Specifically, it made no express findings concerning the 
circumstances that would permit an authority to resort to the use of facts available pursuant to 
Article 6.8, such as the exporters refusing access to, or otherwise not providing the requested export 
price information, or significantly impeding the investigation. MINCIT also did not find explicitly that 
the exporters' reported export price information was not verifiable, was not appropriately submitted 
such that it could not be used in the investigation without undue difficulties, or was not supplied in 
a timely fashion, as envisaged under paragraph 3 of Annex  II for proper recourse to facts available.  
7.181.   Elaborating on these facts, Colombia argues that MINCIT cannot be considered to have 
resorted to facts available because it did not explicitly and formally decide to use facts available,  
pursuant to the criteria in Article  6.8 and paragraph  3 of Annex II .384 Colombia contends that such 
a decision would, however, be necessary for the facts available disciplines in Article  6.8 and Annex  II 
to apply.385 Colombia also states that "it obviously does not propose" that an investigating authority 
has unfettered discr etion to decide whether the facts available disciplines apply by simply 
characteriz ing its conduct as recourse to facts available or not.386 According to Colombia, "[h]owever, 
 
382 Agrarfrost's  comments on essential facts (Exhibit  EU-25a (BCI)) , section  III.4; 
European  Commission 's observations on essential facts, (Exhibit EU -18a), section  2.1(a).  
383 Response s to comments on essential facts (Exhibit  EU-17a), p. 13. (emphasis original)  
384 Colombia's  first written submission, paras.  8.39 and 8.63 -8.78. See also Colombia's  opening 
statement at the first meeting of the Panel, para.  3.7. 
385 Colombia's  first written submission, paras.  8.39 and 8.63 -8.78. See also Colo mbia's  opening 
statement at the first meeting of the Panel, para.  3.7. 
386 Colombia's  opening statement at the first meeting of the Panel, para.  3.7. WT/DS591/7  
 
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  the exact opposite position can also not be correct. It cannot be irrelevant  if an investigating 
authority explicitly invokes or not the relevant secondary information provisions during the 
investigation".387 
7.182.   The European  Union agrees that MINCIT  made no explicit facts available determination. 
According to the European  Union , however,  an objective assessment of MINCIT's  determination 
indicates that the authority nonetheless used facts available and that Article  6.8 and Annex II apply 
in the circumstances of  this case.388 The third parties that expressed a view on this matter agree 
with the European  Union  that, depending on the circumstances, an investigating authority may be 
considered to use facts available even if it does not state so e xplicitly .389 
7.183.   We note Colombia's arguments that "[t]he rules on the 'best information available' are also 
not applicable because … an explicit finding by an investigating authority is a condition for applying 
the[se] provisions "390 and that "it cannot be irr elevant" whether or not an authority made such a 
determination.391 
7.184.   We accept that the absence of an explicit determination pursuant to the criteria in Article  6.8 
and paragraph 3 of Annex II may be relevant in assessing whether an investigating authority ha d 
recourse to facts available. However, we do not consider that this fact alone is necessarily conclusive 
for our analysis. In fact, it would be inappropriate to define the nature of an investigating 
authority's  conduct solely by reference to the fact that  the authority did or did not expressly engage 
in the kind of evaluation that is required by Article  6.8 and paragraph  3 of Annex  II. To do so would 
risk conflating the question of whether an authority resorted to facts available with the separate 
issue of  the authority's alleged (non -) compliance with the substantive requirements for a proper 
use of  facts available.  
7.185.   In our view, therefore,  a case -by-case analysis that takes into account all relevant 
circumstances is required  to determine whether an investi gating authority , in fact,  used facts 
available. Depending on the circumstances, such analysis may indicate that an investigating 
authority had de facto  recourse to the  use of facts available , despite its omission to state so explicitly.  
Overall evaluation  based on the six considerations discussed above  
7.186.   In paragraphs 7.168 -7.185  above, we have discussed six considerations that are relevant to 
our analysis of the case at hand. To recall, our review of the specific circumstances of the case 
indicates that (a)  MINCIT  requested the exporters at issue to provide company -specific information 
concerning the ir export prices ; (b) the exporters provided the solicited information fully and on a 
timely basis in direct response to MINCIT's request; (c)  MINCIT used export price information as the 
basis of its dumping margin calculations but in doing so did not use the export prices that MINCIT 
had requested and that exporters had provided in their questionnaire responses and, instead, used 
the DIAN data; (d)  the DIAN data were no t provided by the exporters as part of the investigation 
but were sourced from information provided by importers as part of their customs procedures; 
 
387 Colombia's  opening statement at the first meeting of the Panel, para.  3.7. (emphasis  added)  
388 European  Union's opening statement at the first meeting of the Panel, paras.  32-34; response to 
Panel question No.  4.7, para.  99. 
389 Brazil's  response to Panel question No.  3.2, paras.  25-26; Japan's  third-party submission, para.  18; 
Japan's  response to Panel question No. 3.2, para.  31; and United  States'  response to Panel question No.  3.2, 
para. 21. 
390 Colombia's first written submission, para.  8.39. See also ibid.  paras.  8.64 (" an explicit determination, 
by an investigating authority, is one of the key conditions for applying the WTO rules on the use of the best 
information available. In fact, the rules on the best information available rely on the authority making such a 
determination."), 8.66 (" if the investigating authority does not determine that an investigated company has 
failed to provide the necessary information (incomplete, unverifiable, etc.) or that the company refuses to 
cooperate with the investigation, the rules on the best information available do not apply."), and 8.68 (" an 
investigating authority's explicit determination of whether use was made of the best information available is 
the key criterion for determining whether, legally, such use has been made.").  
391 Responding to Japan's submission that "Article  6.8 and Annex II apply regardles s of whether the 
investigating authority chooses to categorize its approach as 'recourse to the 'facts available' mechanism'" 
(Japan's third -party submission, para.  18), Colombia denies " that an investigating authority may decide, on its 
own and with total  discretion , whether certain information constitutes secondary information or not " but 
asserts that " the exact opposite position can also not be correct. It cannot be irrelevant if an investigating 
authority explicitly invokes or not the relevant secondary  information provisions during the investigation. " 
(Colombia's  opening statement at the first meeting of the Panel, para.  3.7 (emphasis original)).  WT/DS591/7  
 
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  (e) the DIAN data and the export prices that the exporters had provided were not the same but 
differed sig nificantly; and (f)  MINCIT did not determine affirmatively that one or more of the 
conditions in Article  6.8 and paragraph  3 of Annex  II for recourse to facts available were satisfied.  
7.187.   Consistent with our task to take into account all the relevant circumst ances of a proceeding 
when determining whether an authority resorted to facts available392, we consider that in the 
particular facts of this dispute, the DIAN data constitute "facts available" for the purposes of 
Article  6.8.393 We recall that Article  6.8 pe rmits the use of "facts available" in cases where an 
"interested party refuses access to, or otherwise does not provide, necessary information within a 
reasonable period or significantly impedes the investigation" . The parties agree that MINCIT made 
no suc h finding concerning the exporters in the underlying investigation. To the contrary, MINCIT 
indicated  in its determination – and the parties do not dispute  – that the exporters  at issue  had fully 
participated and cooperated in the investigation, including by providing a complete and timely 
response to MINCIT's request for export price information.  Therefore, absent a determination that 
the exporters refused access to, or otherwise did not provide, necessary information concerning 
export prices within a reas onable period of time, or significantly impeded the investigation,  we are 
of the view that MINCIT did not comply with the requirements of Article  6.8 in basing its 
determination on the DIAN data rather than the export prices that the exporters had provided  in 
their questionnaire responses.  
7.188.   Colombia argues that, even if the Panel were to find that the DIAN data constituted facts 
available , MINCIT complied with Article  6.8 and Annex  II because:  the authority  informed the 
exporters of its decision to  use the D IAN data in the essential facts disclosure; the exporters 
subsequently had ample opportunity to comment  on this matter and several exporters provided 
comments ; and , MINCIT explained the reasons for its decision in response to those comments.394 
Colombia's f actual assertions about the exchange of information and comments between MINCIT 
and the exporters do not, however, change our assessment that MINCIT used facts available without 
the requisite determination that the exporters ref used access to, or otherwise  did not provide, 
necessary information concerning export prices within a reasonable period of time, or significantly 
impeded the investigation . 
7.189.   In its closing statement  at the second meeting of the Panel and in its response to the 
Panel's  written question s following that meeting, Colombia makes two additional points. First, it 
asserts that it made "initial arguments" in its opening statement at the first meeting of the Panel to 
the effect that MINCIT complied with the substantive requirements of Article  6.8 and Annex II, 
should the Panel consider that these provisions apply.395 Second, Colombia argues that principles of 
due process oblig e the Panel to afford Colombia a specific opportunity to present additional  
arguments on this matter i n the event that the  Panel were to  consider that the DIAN data constituted 
"facts available ".396 
7.190.   With respect to Colombia 's first point, we note that in par agraph  7.188  above we have 
already considered what Colombia characterizes as "initial arguments"  concerning MINCIT's alleged 
compliance with Article  6.8 and Annex  II and have found that they do not change our assessment 
that MINCIT used facts available without determining that the requisite Article  6.8 conditions existed 
to do so.  
7.191.   As to Colombia 's second point, we also reject Colombia's demand for a separate and 
additional opportunity to elaborate further on its alternative arguments in the event that we were to 
disagree with Colombia on the legal characterization of the DIAN data. We make three remarks in 
this regard. First, we note that due process does not mandate a panel to "test" its intended reasoning 
 
392 See paragraph  7.185  above.  
393 We need not, and do not, take any position on the question of whether MINCIT would not have used 
facts available if the data sets had, in fact, been the same . 
394 Colombia's  opening statement at the first meeting of the Panel, para.  3.9. See also 
Colombia's  response to Panel question No.  14.2(a), para.  85. 
395 Colombia's  closing statement at the second meeting of the Panel, para.  1.19 (referring to its opening 
statement at the first meeting of the Panel, para.  3.9). See also Colombia's response to Panel 
question  No. 14.2(a), para.  85. 
396 Colombia's  closing statement at the second meeting of the Panel, para. 1.19; response to Panel 
question No.  14.2(a), para.  84. WT/DS591/7  
 
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  with the parties in advance.397 Second, we recall that, at least since the receipt of the 
European  Union's first written submission, Colombia was on notice of the European  Union's  claim 
that MINCIT acted inconsistent ly with Article  6.8 and several provisions of Annex  II.398 
Subsequently, Colombia had ample opportunity to present its defence in two written submissions, 
during two substantive meetings, and in two sets of responses to the Panel's questions. In fact, we 
note that Colombia presented several (what it now describes as "initial") arguments on this matter 
in its opening statement at the first meeting of the Panel.399 Colombia quotes these arguments in 
full in its response to the Panel's written questions after th e second substantive meeting.400 
Moreover, we observe that, in its opening statement at the second substantive meeting, Colombia 
stated that, in respect of the facts available claim, "[t]he different approaches – both factual and 
legal – of Colombia and the  European  Union have been sufficiently explored in the parties' previous 
communications".401 Third, our determination that MINCIT did not comply with the requirements of 
Article  6.8 rests on Colombia's statements that MINCIT did not find that the exporters concerned 
refused access to, or otherwise did not provide, necessary information or significantly impeded the 
investigation.402 As noted in paragraph  7.187  above, t he use of facts available in a  WTO-consistent  
manner would, however, require the authority to find that one or more of these Article  6.8 criteria 
are satisfied. Colombia's own arguments thus present the elements that are necessary and sufficient 
to find tha t MINCIT did not respect the conditions under Article  6.8. Given this, we do not see the 
need to provide Colombia with another opportunity to further clarify and elaborate its position on 
this issue.  
7.192.   Based on the discussion in paragraphs  7.186 -7.191  above, we find that MINCIT did not 
comply with the requirements of Article  6.8 because: (a)  the DIAN data constituted facts available 
for the purposes of Article  6.8; and (b)  MINCIT used that  data without determining that the criteria 
under Article  6.8 for proper recourse to facts available were satisfied.  
7.193.   The European  Union also advances claims of inconsistency under paragraphs 3 and 6 of 
Annex  II.403 These claims are premised on the view that MINCIT improperly resorted to facts 
available and thus concern essentially the same factual issues already addressed in the context of 
its Article  6.8 claim.  In addition, the European  Union pursues a consequentia l claim under Article  2.1 
that depends on a finding of inconsistency of Article  6.8.404 Having already found in favour of the 
European  Union with respect to its claim under  Article  6.8, we do not consider it necessary to make 
further findings concerning the se additional claims in order to provide a positive resolution to the 
dispute before us.  
7.5.4   Conclusion  
7.194.   Based on the above, we find that the European  Union has established that Colombia acted 
inconsistently with its obligations under Article  6.8 because MINCIT  disregarded the export prices 
that the exporters had provided in their questionnaire responses and, instead, elected to use export 
prices extracted from the DIAN database to make its dumping determination. In light of this finding,  
we do not  consider it n ecessary to make additional findings as to whether Colombia also acted 
inconsistently with its obligations under paragraphs  3 and 6 of Annex II and Article  2.1 in order to 
provide a positive resolution to the dispute before us . 
 
397 In this respect we agree with the approach taken in Appellate  Body Reports,  US – Large Civil Aircraft 
(2nd complaint) , para.  1137; US – Tuna II (Mexico)  (Article  21.5 – Mexico ), para.  7.177; and Panel Report, 
China – Broiler Products (Article  21.5 – US), Addendum , Annex  A-3, para.  1.1. 
398 European  Union's  first written submission, paras.  127-130. 
399 Colombia's  opening statement at the first meeting of the Panel, para.  3.9. 
400 Colombia's  response to Panel question No.  14.2(a), para.  85. 
401 Colombia's  opening statement at the second meeting of the Panel, para.  4.1. 
402 Colombia's  first written submission, paras.  8.39, 8.63, 8.72, and 8.77; responses to Panel questions 
No. 4.2(a), para.  145, No. 4.2(b), para.  148, and No. 4.2(c), para.  149. 
403 European  Union's  first written submission, paras.  128-130 and 332.  
404 European  Union's  response to Panel question No.  4.8, para.  100. WT/DS591/7  
 
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  7.6  Claims under Article  2.4 of the Anti -Dumping Agreement:  MINCIT' s assessment of the 
exporters'  requests for adjustments  
7.6.1   Introduction  
7.195.   The European  Union  claims that Colombia acted inconsistently with its obligation s under the 
first and third sentence s of Article  2.4 of the Anti -Dumping  Agreement  to make a fair comparison 
between export price and normal value , and to make due allowances for differences affecting price 
comparability.405 According to the European  Union, MINCIT did not make several necessary 
adjustments to account for differ ences between the products that the European producers sold 
domestically and the products that they exported to Colombia. Specifically, the European  Union  
asserts that MINCIT 's price comparison was not fair because  MINCIT improperly:  (a) declined all 
reque sts to make  adjustment s to account for the fact that the exporters  sold different product mixes 
in the domestic and Colombian market s406; (b) denied Mydibel 's request to make an adjustment to 
account for differences in packaging costs, and, instead, deducted certain (other)  packaging costs 
from the export price, but not the normal value407; and (c)  declined Agrarfrost 's request to make 
certain cost adjustments to  account for the fact that Agrarfrost primarily used more expensive oil to 
prepare potato products  sold in the domestic market than it used to prepare potato products that 
were exported to Colombia.408 
7.196.   The European  Union  also claims that Colombia acted inco nsistently with its obligations under 
the last sentence of Article  2.4 of the Anti -Dumping  Agreement  because  MINCIT  "failed to indicate 
to the [exporters]  what information it considered necessary to make a fair comparison and imposed 
an unreasonable burden  of proof on them ".409 
7.197.   In response, Colombia asserts, inter alia, that MINCIT was entitled to deny the adjustment s 
because the exporters did not sufficiently substantiate  their requests .410  
7.198.   Colombia also asserts that certain elements of the European  Union's  Article  2.4 claims fall 
outside the Panel 's jurisdiction  because the European  Union's request for the establishment of a 
panel (panel request) did not provide a "brief summary of the legal basis of the complaint sufficient 
to present the problem clearly",  contrary to the requirements of Article  6.2 of the DSU .411 
7.199.   We begin by recalling  the applicable requirements of Article  2.4 (section  7.6.2). Next, we 
examine  each of the European  Union's  claims regarding the manner in which MINCIT assessed the 
exporters ' adjustment requests (sections  7.6.3-7.6.6). 
7.6.2   Applicable  requirements  under  Article  2.4 of the Anti -Dumping  Agreement  
7.200.   Article  2.4 of the Anti -Dumping  Agreement  provides, in part:  
A fair comparison shall be made between the export p rice and the normal value. This 
comparison shall be made at the same level of trade, normally at the ex -factory level, 
and in respect of sales made at as nearly as possible the same time. Due allowance 
shall be made in each case, on its merits, for differe nces which affect price 
comparability, including differences in … physical characteristics, and any other 
differences which are also demonstrated to affect price comparability. … The authorities 
 
405 European  Union's  first written submission, paras.  132-134, 179, 192, 205, and 332; second written 
submission, paras.  69-82. 
406 European  Union's  first written submission, paras.  133 and 149-179; second written submission, 
paras.  70-72. 
407 European  Union's  first written submission, paras.  133 and 180-192; second written submission, 
paras.  73-75. 
408 European  Union's  first written s ubmission, paras.  133 and 193-205, second written submission, 
paras.  76-82. 
409 European  Union's  first written submission, paras.  133 and 206-208. 
410 Colombia's  first written submission, paras.  9.1-12.4; second written submission, paras.  6.1-8.27. 
411 Colombia' s first written submission, paras.  10.3-10.22.  WT/DS591/7  
 
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  shall indicate to the parties in question what information is  necessary to ensure a fair 
comparison and shall not impose an unreasonable burden of proof on those parties.412 
7.201.   Article  2.4 requires investigating authorities to make a "fair comparison " between the export 
price and the normal value, and  imposes  certain re quirements  on authorities to achieve this 
objective . In particular, Article  2.4 requires investigating authorities to make "[d]ue allowance … in 
each case, on its merits, for differences which affect price comparability". The provision  provides an 
illustra tive list of the types of differences that may affect price comparability, including "differences 
in … physical characteristics"  and " any other differences " that may be relevant in this regard . 
7.202.   While  Article  2.4 requires  authorities to ensure that the comp arison is fair, the provision  only 
requires an allowance to be made for differences that are "demonstrated to affect price 
comparability ". Thus, parties seeking  the adjustments bear the burden of substantiat ing – through  
argument s and evidence  – their requests to account for differences affecting price comparability.  
Investigating authorities are not obliged to make the adjustments if the parties requesting such 
adjustments do not demonstrate that the differences underlying their request affect p rice 
comparability .413 
7.6.3   MINCIT's  assessment of the exporters'  requests for product mix -related 
adjustments  
7.6.3.1   Introduction  
7.203.   The European  Union claims that MINCIT  did not make the "fair comparison" required by 
Article  2.4 because the authority did not account for alleged differences in the mix of products sold 
in the home market compared to the Colombian market .414 Specifically, the European  Union notes 
that Agrarfr ost, Aviko , and Mydibel415 claimed that their export sales consisted  mostly  of "traditional" 
potato products that have lower production costs and thus sell at lower prices, while their home 
market sales comprised a significant volume of "speciality" potato products with higher production 
costs and sales prices . 
7.204.   The European  Union  asserts  that the exporters substantiated  their adjustment requests with 
arguments and evidence establishing the existence of physical differences between the product 
types, the cost and price impact  of these differences , and disparate  sales volumes of each product 
type in the domestic and export markets.416 The European  Union thus argues417 that MINCIT rejected 
the adjustment  requests as unsubstantiated without any proper  basis.418 
7.205.   Colombia responds that MINCIT was entitled to reject the exporters ' product mix 
adjustment s because the companies did not sufficiently  substantiate their requests .419 Specifically, 
 
412 Fn omitted.  
413 A similar  conclusion  was reached  in, for example, Appellate  Body Reports, EC – Fasteners  (China) , 
para. 488; EC – Fasteners  (China)  (Article  21.5 – China) , paras.  5.163 and 5.204; and Panel Reports, 
EC – Fasteners  (China) , para.  7.298; Korea  – Certain  Paper , para.  7.147.  
414 European  Union's  first written submission, paras.  133 and 149-179; second  written submission, 
paras.  70-72. 
415 In setting out the content s of its product mix -related claim in its first written submission, the 
European  Union refers to three companies whose exports were subject to definitive anti -dumping duties 
(Agrarfrost, Aviko , and Mydibel)  and three companies whose exports were not (Agris to, Clarebout , and 
Ecofrost). (European  Union's  first written submission, paras.  156-161 and 172 ). In response to a question from 
the Panel, the European  Union clarified that it does not request the Panel to make separate findings concerning 
MINCIT's  treatment of the latter group of exporters and that its arguments in this regard are intended as 
supporting i ts principal assertions concerning Agrarfrost, Aviko , and Mydibel. (European  Union's  response to 
Panel question No.  5.1, para.  101).  
416 European  Union's  first written submission, paras.  133, 149, 151 -161, 167 -169, and 171; responses 
to Panel questions No.  5.2, paras.  108-112 and No.  5.3, paras.  113-119. 
417 European  Union's  first written submission, paras.  163, 165, 172, and 174 -178. 
418 We note that MINCIT performed a single comparison of weighted average export price and weighted 
average normal value for the product under investigation, rather than a type -by-type comparison with multiple 
averaging.  
419 Colombia's  first written submission, paras.  9.5, 9 .13, 9.41, 9.47, and 9.50; opening statement at the 
first meeting of the Panel, para.  4.1; second written submission, para.  6.2; and opening statement at the 
second meeting of the Panel, para.  5.1. WT/DS591/7  
 
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  Colombia asserts that  the materials provided by the exporters in support of their requests contained 
contradictory , implausible, inconsistent  and unsupported  information.420 
7.6.3.2   Analysis  
7.206.   The European  Union  asserts that Agrarfrost, Aviko , and Mydibel  requested product 
mix-related adjustments in a timely manner and provided all necessary  data, explanations and 
evidence to substantiate their requests.421 Colombia does not dispute that the exporters sought 
product mix adjustments but contends that MINCIT appropriately denied the adjustments because 
the exporters did not sufficiently substant iate their requests.422 As we see it, the parties'  arguments 
raise the following two key issues:  
a. first, whether MINCIT did, in fact, deny the exporters'  product mix adjustments on the 
basis that the requests were, as Colombia asserts, not sufficiently subst antiated423; and  
b. second, insofar as MINCIT declined the requests because they were not sufficiently 
substantiated, whether MINCIT's  record findings indicate that the authority had an 
adequate basis for its decision.  
7.207.   As to the first issue, based solely on MI NCIT's response to Aviko's  comments on the essential 
facts disclosure424, Colombia asserts that the authority denied Agrarfrost's, Aviko's  and 
Mydibel's  product -mix adjustments because it determined that none of these exporters had 
sufficiently substantiate d their requests.425 Specifically, Colombia notes426 that MINCIT's  reply to 
Aviko's  comments on the essential facts disclosure states, in relevant part, as follows:  
[T]he panel in [ EC – Fasteners  (China) ] … made the following observations, among 
others:   … "If it is not demonstrated to the authorities that there is a difference affecting 
price comparability, there is no obligation to make an adjustment ."427 
… 
In accordance with the foregoing, the Investigating Authority does not consider it 
necessary to calculate the dumping margin by type of product as Aviko requests, and 
considers that the way in which the calculation was performed by Colombia is 
suitable and represents the value of the product being investigated .428 
7.208.   Although MINCIT did not develop its reasoning in detail, we are of the view that these 
statements indicate that MINCIT's  rationale for denying Aviko's  adjustment request was related to 
the matter of  insufficient substantiation ("'If it is not demonstrated  to the authorities that there is a 
difference affecting price comparability ' … In accordance with the foregoing, …"). We therefore find 
sufficient evidence  on the record of the investigation indicat ing that MINCIT denied Aviko's  request 
because it considered that the company did not properly substantiate its product -mix adjustment 
request . 
 
420 Colombia's  first written submission, paras.  9.11-9.50; s econd written submission, para.  6.2. 
421 European  Union's  first written submission, paras.  149, 154 -160, and 171 -172; second written 
submission, para.  71. 
422 Colombia's  first written submission, paras.  9.5, 9.13, 9.41, 9.47, and 9.50; opening statement at the  
first meeting of the Panel, para.  4.1; second written submission, para.  6.2; and opening statement at the 
second meeting of the Panel, para.  5.1. 
423 We note the European  Union's  position that the allegation of insufficient substantiation was " ex-post 
rationalisation" and a "post -facto claim". (European  Union's  first written submission, para.  207; opening 
statement at the first meeting of the Panel, para.  59). 
424 Colombia's first written submission, para.  9.13. 
425 Colombia's  first written submission, para.  9.13 (referring to Responses to comments on essential 
facts, (Exhibit  EU-17a), section  4). 
426 Colombia's  first written submission, para.  9.13. 
427 Responses to comments on essential facts, (Exhibit  EU-17a), section  4 (quoting Panel Report, 
EC – Fasteners  (China) , para.  7.298 , in turn quoting Panel Report, Korea – Certain Paper , 
para. 7.147 ). (emphasis added by MINCIT omitted)  
428 Responses  to comments on essential facts, (Exhibit  EU-17a), section  4. WT/DS591/7  
 
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  7.209.   We note, however , that MINCIT's  statements are made in the context of, and are limited to, 
MINCIT's  assessment o f Aviko's  request and do not appear to respond to either Agrarfrost's  or 
Mydibel's  request. We also observe that Colombia has not pointed to any other material on the 
record of the underlying investigation that would indicate that MINCIT denied Agrarfrost 's and 
Mydibel 's product mix adjustments because it found that these companies did not sufficiently 
substantiate their requests.  
7.210.   Our assessment of the first issue thus indicates that MINCIT's reason to deny 
Aviko's  adjustment was related to the issue of ins ufficient substantiation, but that MINCIT did not 
deny Agrarfrost's and Mydibel's adjustments for the same reason.  
7.211.   As Colombia has not established that MINCIT did, in fact, determine that Agrarfrost and 
Mydibel had not sufficiently substantiate d their requ ests for product -mix adjustments , we reject 
Colombia's  arguments in this regard as ex post explanations. We also note that Co lombia does not 
argue  – and the record of the investigation does not indicate  – that MINCIT denied Agrarfrost's  and 
Mydibel's adjustments for any other reason. Given this, we consider that the authority did not have 
any proper basis to deny Agrarfrost's  and Mydibel's  requests.  Consequently, we focus the remainder 
of our analysis on MINCIT's assessment of Aviko's request . 
7.212.   Turning to the second issue, we next examine whether MINCIT had an adequate basis for 
its decision to deny Aviko's  adjustment because the exporter did not sufficiently substantiate its 
request. We assess this question in light of MINCIT's findings on the  record of the investigation and 
the parties' arguments in these proceedings.  
7.213.   With respect to MINCIT's findings on the record of the investigation, we recall that 
MINCIT's  assessment of Aviko's  request is limited to a few elements: a quote from the WTO pan el 
report in EC – Fasteners  (China ); a statement that Aviko's requested adjustment was not 
"necessary"; and a finding that MINCIT's own calculation was "suitable" and " represent [ative of]  the 
value of the product being investigated ".429 To us, however, noth ing in these statements indicates 
why MINCIT determined that Aviko did not sufficiently substantiate its adjustment request.  
7.214.   The European  Union asserts that MINCIT had no basis for its denial decision because Aviko 
sufficiently substantiated its request wi th arguments and information, including information 
concerning the differences in physical characteristics between the product types, the corresponding 
impact on costs and prices, and the sales volumes by product types for domestic and export sales.430 
In response, Colombia takes issue with certain allegedly flawed elements in Aviko's arguments and 
information .431 Specifically, Colombia asserts that MINCIT had reason to determine that Aviko did 
not substantiate its request because the exporter's  statements an d information were:  (a) "illogical" 
and "confusing "432; (b) made in response to a question in the exporter's  questionnaire that was 
unrelated to the issue of adjustments433; (c)  unsupported by factual evidence434; and 
(d) inconsistent with Aviko's comments on  essential facts435 and with statements on the record made 
by other exporters .436 We note, however, that Colombia does not point to anything on the 
investigation record that would indicate that any of the alleged "deficiencies "437 that Colombia now 
claims before us as vitiating Aviko's  request were part of MINCIT's own  assessment. In fact, based 
on the record of the investigation before us (including MINCIT's determinations and other 
 
429 See paragraph 7.207  above.  
430 European  Union's first written submission, para.  157 and fn 198 (refer ring to Aviko's  questionnaire 
response, (Exhibit EU -29a (BCI)) , sections 3.1 and 3.4, annexes 1 -12; Questionnaire response, Excel 
workbook "ventas domésticas", (Exhibit EU -29.1 (BCI)); Questionnaire response, Excel workbook "ventas en 
Colombia", (Exhibit E U-29.2 (BCI)); and Aviko's comments on essential facts, (Exhibit EU -26a (BCI)), 
section  III). 
431 Colombia's  first written submission, paras.  9.15-9.33. 
432 Colombia's  first written submission, paras.  9.17, 9.21, 9.23, and 9.26.  
433 Colombia's  first written subm ission, paras.  9.22 and 9.24.  
434 Colombia's  first written submission, paras.  9.25 and 9.28.  
435 Colombia's  first written submission, para.  9.31. 
436 Colombia's  first written submission, paras.  9.29 and 9.32.  
437 Colombia's  second written submission, paras.  6.5 an d 6.9.  WT/DS591/7  
 
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  documents438), MINCIT does not appear to identify or explain any reasons for its conclusion that 
Aviko did not sufficiently substantiate its adjustment request.  
7.215.   We therefore  consider that MINCIT denied Aviko's  request without , on the record of the 
investigation,  engag ing with, and evaluat ing the substance  of, the arguments and information that 
Aviko provided in support of its adjustment request, let alone providing the  reasons  underlying its 
conclusion that the exporter did not sufficiently substantiate its request. Absent such elements in 
MINCIT's determi nation, we consider that MINCIT lacked an adequate basis to determine that Aviko 
did not sufficiently  substantiate its adjustment request.  
7.6.3.3   Conclusion  
7.216.   Based on the above, we consider that the record of the investigation does not indicate that 
MINCIT had any  proper basis for its decision to deny Agrarfrost's and Mydibel's product mix -related 
adjustment requests. Separately, we conclude that MINCIT had no proper basis for its finding that 
Aviko had not sufficiently substantiated its product mix -related adjustm ent request. In sum, we 
therefore find that the European  Union has established that Colombia acted inconsistently with its 
obligation under Article  2.4 to make a "fair comparison" because MINCIT denied the product 
mix-related adjustments that Agrarfrost, A viko, and Mydibel had requested.  
7.6.4   MINCIT's  assessment  of Mydibel 's request  for a packaging  cost-related  adjustment  
7.6.4.1   Introduction  
7.217.   In its questionnaire response, the Belgian exporter Mydibel  requested an adjustment to 
account for what it claimed to be differences in packaging costs that varied depending on product 
types and customer specifications .439 MINCIT did not make the requested adjustment , but instead  
deducted certain export packaging costs from the export price, without making any corresponding 
adjustment  to the normal value.440 
7.218.   The European  Union claims that Colombia acted inconsistently with the requirement under 
Article  2.4 to make a fair comparison  because MINCIT did not grant Mydibel's  adjustment request 
and, instead, elected to exclude certain packaging costs from the export price but retained packaging 
costs on the normal value side .441 
7.219.   Colombia responds that this claim falls outside the Panel's  terms of reference because the 
European  Union's  panel request does not comply with the requirements of Article  6.2 of the DSU .442 
Colombia also argues that the claim must, in any event, fail on its merits because MINCIT made the 
necessary adjustment consiste ntly with Article  2.4.443 
7.6.4.2   Analysis  
7.220.   The parties' arguments raise the following two key issues:  
a. whether  the Panel has jurisdiction over the European  Union's  packaging cost -related 
claim; and, if so,  
 
438 Final report on the essential facts  (public version) , (Exhibit EU -3a), section  2.4.2; Responses  to 
comments on essential facts, (Exhibit  EU-17a), section  4; Final technical report (public version), 
(Exhibit  EU-4a), section  2.4.2; and Final technical report (confidential version), (Exhibit  COL-16 (BCI)), 
section  2.4.2 . 
439 European  Union's  first written submission, paras.  182-183; Mydibel's  questionnaire response, 
(Exhibit  EU-30a (BCI)), section  5. 
440 Responses  to comments on essential facts, (E xhibit  EU-17a), section  7. 
441 European  Union's  first written submission , paras.  133, 181, 183 -184, 186, 189, and 191.  
442 Colombia's  first written submission, paras.  10.3-10.22.  
443 Specifically, Colombia argues that (a) MINCIT deducted the cost for export pack aging from the 
export price but retained the cost for "normal", or "base", packaging material on the export price and normal 
value sides given that the latter cost item was common to export and domestic sales; and (b) the cost for 
"base" packaging was part  of the manufacturing costs, and, as such, should not be deducted from the 
ex-factory price.  (Colombia's  first written submission, paras . 10.24 and 10.26 -10.27;  responses to Panel 
questions No.  5.5(a), paras.  184-186, and No.  5.6, para.  190). WT/DS591/7  
 
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  b. whether the European  Union has established that MINCIT lacked a proper basis to decline 
the requested adjustment  and to deduct, instead, certain packaging costs from the export 
price but not from the normal value . 
7.6.4.2.1   The Panel's  terms of reference  
7.221.   Article  6.2 of the DSU reads , in relevant part , as follows : 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
7.222.   The requirement to "provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly" is central to establishing a panel's  jurisdiction. The legal basis of the 
complaint – i.e. the claim – is one of the element s constituting the "matter referred to the DSB"444, 
which, in turn, forms the basis of a panel's  terms of reference.  
7.223.   Colombia argues that the European  Union's  panel request does not provide the requisite 
brief summary of the legal basis of the complaint because the European  Union's  description of this 
claim in its first written submission is substantively different from what is in its panel request .445 
Specifically, Colombia points out that paragraph  5 of the panel request refers to MINCIT's  alleged 
disregard  of "differences in packaging", whereas in its first written submission the European  Union 
challenges MINCIT's  decision to deduct packaging costs from the export price but not from the 
normal value .446 
7.224.   The European  Union counters that paragraph  5 of the pan el request provides the requisite 
brief summary of the legal basis of its complaint because that paragraph  refers to "differences in 
packaging ".447 
7.225.   In order to assess whether, in light of Colombia's specific contentions, the 
European  Union's  panel request p resents a brief summary of the legal basis of the complaint, we 
review both the panel request and the statement of claim contained in the European  Union's  first 
written submission.  
7.226.   Paragraph 5 of the European  Union's  panel request states that the challenged measures 
appear to be inconsistent with Colombia's  obligations under Article  2.4 of the 
Anti-Dumping  Agreement because:  
Colombia did not make a fair comparison between the export price and the normal 
value. In particular, Colombia did not make d ue allowances for differences which affect 
price comparability , including for differences in physical characteristics and/or any other 
differences between the products sold on the domestic markets in Belgium, Germany 
and the Netherlands, and the products u nder investigation sold on the export market , 
which were demonstrated to affect price comparability. Inter alia, Colombia disregarded  
the differences between the types of products, the different proportions of high and low 
value products exported to Colombia, as compared to domestic sales in Belgium, 
Germany and the Netherlands, as well as differences in packaging  and differences 
result ing from the use of different types of oils.448 
7.227.   In paragraph  5 of the panel request, the European  Union describes the elements of its 
Article  2.4 complaint as being:  (a) the alleged failure to "make a fair comparison between the export 
price and the normal value"; (b)  "[i]n particular", the alleged failure to "make due allowances for 
differences … affect[ing] price comparability"; and (c)  as an example (" inter alia"), 
Colombia's  alleged disregard for "differences in packaging".  
 
444 Article  7.1 of the  DSU. 
445 Colombia's  first written submission, paras.  10.3-10.22.  
446 Colombia's  first written submission, paras.  10.10, 10.12, and 10.14.  
447 European  Union's  opening statement at the first meeting of the Panel, paras.  54-55. 
448 Emphasis  added.  WT/DS591/7  
 
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  7.228.   The European  Union develops it s claim in the first written submission by stating, inter alia, 
that: 
While Mydibel had claimed some adjustments relating to slight differences in packaging 
costs depending on the product type and client, MINCIT not only ignored this claim, but 
even worse,  included the full packaging costs on the normal value side and none on the 
export price side.449 
7.229.   The European  Union's  statement of its claim in its first written submission thus focuses on 
MINCIT's  decision to deny Mydibel's  request to account for asserted  variation s in packaging costs 
and to deduct, instead, packaging costs from the export price without making any deduction on the 
normal value side.  
7.230.   Colombia argues that there is a substantive difference between the 
European  Union's  statement in its panel r equest, which relates to MINCIT's  disregard of "differences 
in packaging", and the claim that it makes in its first written submission that MINCIT deducted 
packaging costs from the export price only .450 
7.231.   We recall that Article  6.2 of the DSU states that the panel request need only provide a "brief 
summary" of the "legal basis of the complaint"  – i.e., the claim. Therefore, a complainant need not 
include the arguments  in support of a claim  in its panel request but it must do so in its submissions 
during the pa nel proceedings .451 Moreover, we consider that a complainant's arguments  relate to, 
inter alia, the precise reasons as to how and why a respondent is alleged to have acted 
WTO-inconsistently . Accordingly, the European  Union's  panel request did not need to engage in 
detail with all  the factual aspects of the calculation that led to Colombia 's alleged failure to perform 
a fair comparison . In particular, it was not necessary for the panel request to outline which specific 
adjustment was allegedly not  – or inco rrectly  – made and why.  
7.232.   Consequently, t he European  Union's  assertions that MINCIT disregarded "differences in 
packaging" and only deducted packaging costs from the export price constitute arguments, not 
claims. We therefore consider that Article  6.2 of the  DSU does not require the European  Union to 
include its "unilateral deduction" argument in the panel request in order to provide a brief summary 
of the legal basis of the complaint.  
7.233.   Based on the above, we find that Colombia has not established that the 
European  Union's  panel request does not satisfy the requirements of Article  6.2 of the DSU and that, 
therefore, its packaging cost -related claim falls outside the Panel's  terms of reference.  
7.6.4.2.2   MINCIT 's basis  for declining  Mydibel 's adjustment  request  
7.234.   Turning to  the second issue, we note that Mydibel requested an adjustment to account for 
certain differences in packaging costs.  Mydibel stated that it used the same packaging materials  
(i.e. bags, cardboard boxes, pallets, and shrink -wrap foil ) in all of its sales,  but the costs of these 
common components differed between products made for export and domestic sales (due to 
differences in  product types and customer specifications).452 In particular, Mydibel submitted that, 
unlike in the Colombian market, customers in its domestic market requested packaging material that 
incurred higher costs .453 
7.235.   The European  Union claims that MINCIT erred in declining the requested adjustment for 
differences in the cost of the common packaging components. In the European  Union's  view, 
MINCIT's  decision to deduct packaging costs from the export price but not from the normal value 
compounded the  error.454 Colombia asserts that Mydibel's  export and domestic sales both incurred 
the same costs for an equally applicable "normal", or "base", pac kaging component, while the 
 
449 European  Union's  first written submission, para.  183. 
450 Colombia's  first written submission, paras.  10.10 -10.14.  
451 The same view was taken in Appellate  Body Report, Korea  – Pneumatic  valves  (Japan) , paras.  5.6 
and 5.31.  
452 Mydibel's  questionnaire response,  (Exhibit  EU-30a (BCI)), section  5; Mydibel's comments on the 
essential facts technical report, (Exhibit  COL-1 (BCI)), p p. 10-11 and 21.  
453 Mydibel's comments on the essential facts technical report , (Exhibit  COL-1 (BCI) ), p. 21. 
454 European  Union's  first written submission, para.  183. WT/DS591/7  
 
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  company's  export sales incurred extra costs for "export" packaging .455 For Colombia, therefore, 
MINCIT  appropriately deducted export packaging costs from the export price but retained "base" 
packaging costs as part of the export price and the normal value .456 
7.236.   The European  Union disagrees with Colombia's  distinction between "export" and "base" 
packaging, and  the corresponding packaging costs .457 According to the European  Union, 
Mydibel's  products did not require any unique or different type of export  packaging material for its 
sales to Colombia, and thus did not incur what Colombia claims to be additional "exp ort" packaging 
costs.458 Accordingly, the European  Union suggests that when MINCIT deducted the purported 
"export" packaging costs, MINCIT, in fact, deducted the full amount of normal packaging costs from 
the export price but none from the normal value.459 
7.237.   The parties'  arguments, as we understand them, address different types of packaging costs 
and, hence, distinct and unrelated types of adjustments. On the one hand, the 
European  Union's  arguments focus on the fact that Mydibel asked MINCIT to make an  adjust ment 
to account for alleged cost differences  that (as a result of differences in product types and customer 
specifications)  arise when using the same types of packaging materials for products that are either 
sold domestically or exported to Colombia. On th e other hand, Colombia's  rebuttal arguments relate 
to an adjustment that MINCIT made to account for the fact that Mydibel's  export sales allegedly 
incurred additional – and different – packaging costs than its domestic sales. In our view, this 
disconnect b etween the parties'  arguments is reflected in the statements that Mydibel and MINCIT 
made on the record of the investigation.  
7.238.   In paragraph 7.234  above, we  described  the nature of Mydibel's packaging cost adjustment 
request, including the fact that  the company  asserted that it utilized the same packaging material 
for its domestic and export sales460 and that the cost of these common packaging components varied 
dependin g on product types and customer specifications.461 To account for this difference, in 
annex  3.2.1.2 of its questionnaire response , Mydibel listed the cost of "packaging material" as one 
of the elements of the cost of manufacture and , for each product type, identified the amount incurred 
for packaging.462 In Mydibel's  submissions to MINCIT placed on the Panel's  record, the company did 
not identify expressly any separate categories of, on the one hand, what Colombia describes as 
"base" packaging costs applicabl e to all export and domestic sales and, on the other hand, "export" 
packaging costs that export sales incurred additionally. Mydibel also did not request any adjustment 
to account for differences related to such types of packaging costs. To the contrary, Mydibel noted 
explicitly that its exports did not incur any additional packaging costs distinct from those incurred in 
its domestic sales and that the packaging costs as well as the cost of manufacture more generally, 
as listed  in annex  3.2.1.2 of the ques tionnaire response, did not differ as such between export and 
domestic sales .463 
 
455 Colombia's  first written submission, para.  10.24; response to Panel question No.  5.5(a), 
paras.  184-186. 
456 Colombia's  first written submission, paras.  10.25 -10.26; response to Panel question No.  5.6, 
para. 190. 
457 European  Union's  opening statement at the first meeting of the Panel, para.  56; second written 
submission, para.  74. 
458 European  Union's  first written  submission, para.  182; opening statement at the first meeting of the 
Panel, para.  56; second written submission, para.  74; and opening statement at the second meeting of the 
Panel, para.  44. According to the European  Union, "the packaging for a product sh ipped overseas or sold 
domestically uses exactly the same elements:  bags, cardboard boxes, pallets, shrinkwrap foil. Packaging costs 
are only those costs needed to package the product until it is a collection of boxes on a pallet, with plastic foil 
around.  The only thing needed in addition for overseas sales is a container in which the pallets are loaded. The 
costs for such containers are not packaging costs; they are freight costs." (European  Union's  opening 
statement at the first meeting of the Panel, par a. 56). 
459 European  Union's  second written submission, para.  74; opening statement at the second meeting, 
para. 44. 
460 Mydibel 's questionnaire response, photos demonstrating packaging materials, (Exhibit  EU-22 (BCI)); 
Mydibel's comments on the essential fact s technical report, (Exhibit  COL-1 (BCI) ), pp. 12 and 14-16. 
461 Mydibel's  questionnaire response, (Exhibit  EU-30a (BCI)), section  5; Mydibel's comments on the 
essential facts technical report, (Exhibit  COL-1 (BCI)), p p. 10-11 and 21.  
462 Mydibel's  questionnai re response, (Exhibit  EU-30a (BCI)), section  5; Mydibel's questionnaire 
response, annex  3.2.1.2, 3rd workbook " costes de manufactura", (Exhibit  EU-30.1 (BCI)).  
463 Mydibel's  comments on the essential facts technical report , (Exhibit  COL-1 (BCI) ), pp. 14 and 17.  WT/DS591/7  
 
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  7.239.   In its response to Mydibel's  comments on the essential facts  disclosure , MINCIT stated that 
it deducted " export  packaging material" from the export price.464 In this context, MI NCIT also 
determined that it did not make any normal value adjustment for packaging costs because it 
considered that " packaging  costs … are part of the production … costs of the product, and are 
therefore already included in the ex -factory price" .465 
7.240.   While MINCIT did not expressly use the terms "normal" or "base" packaging in its response, 
Colombia claims that MINCIT's  distinction between "export" and "base" packaging is reflected in 
MINCIT's  reference to "export packaging materia l".466 Colombia also asserts that, by separately 
referring to "packaging costs", MINCIT intended to refer to " base" packaging costs that were an 
"integral part" of the production costs and, as such, should not be deducted from the ex -factory 
price.467 
7.241.   Based on the above, for Colombia, therefore, MINCIT explained that it adjusted for "export" 
packaging costs but declined to make a normal value adjustment for "base" packaging costs. We 
need not determine conclusively whether MINCIT's record supports Colombia's assertions on this 
issue, sp ecifically, as they relate to the alleged findings on "base" packaging. E ven in the event that 
Colombia' s assertions were supported by MINCIT's record,  it would follow from 
Colombia's  arguments and the record of the investigation that MINCIT 's adjustment f or export 
packaging costs and its alleged findings concerning "base" packaging costs were unconnected 
to – and did not address – Mydibel's  specific request for an adjustment for variations in packaging 
costs related to differences in product types and cust omer specifications.  
7.242.   We also observe that the rationale offered by  MINCIT  concerning "export" and, as Colombia 
asserts, "base" packaging costs does not appear to be linked to information on the investigation 
record that might support making such a distinction. To the contrary, as discussed in 
paragraph  7.238  above, Mydibel's  arguments and evidence on the investigation record appear to 
contradict this distinction  and remain uncontested . In these Panel proceedings, the European  Union 
also d isagrees with the alleged distinction, pointing to relevant evidence that Mydibel had adduced 
in the underlying investigation.468 In response to questioning by the Panel, Colombia neither 
substantiated its assertions concerning the existence of export and b ase packaging costs, nor 
attempted to rebut the European  Union's  arguments to the contrary .469 
7.243.   Based on the above, we consider that MINCIT addressed a packaging cost adjustment that 
was of a different type and of a different nature than the one that Mydibel  had requested and that, 
in any event, does not appear to be supported by the facts on the record of the underlying 
investigation. MINCIT's  consideration of packaging costs thus did not respond to the substance of 
Mydibel's  specific packaging cost -related adjustment and failed to provide a proper basis to deny 
that request.  
7.6.4.3   Conclusion  
7.244.   In light of the foregoing, we disagree with Colombia that the European  Union's  claim 
under  Article  2.4 concerning packaging cost adjustment falls outside the Panel's  terms of reference. 
We also conclude that the European  Union  has established that MINCIT had no proper basis to deny 
Mydibel's  adjustment request  and to deduct certain other packaging costs from the export price 
instead. Consequently, we find that the European  Union has established that Colombia acted 
inconsistently with  Article  2.4 because, by denying Mydibel's packaging cost adjustment request, 
MINCIT failed to make a "fair comparison".  
 
464 Response s to comments on essential facts, (Exhibit  EU-17a), section  7. (emphasis  added)  
465 Responses t o comments on essential facts, (Exhibit  EU-17a), section  7. (emphasis added)  
466 Colombia's  response to Panel question No.  5.6, para.  190. 
467 Colombia's  first written submission, para.  10.27; response to Panel question No.  5.6, para.  190. 
468 European  Union's  opening statement at the first meeting of the Panel, para.  56; se cond written 
submission, para.  74. 
469 Colombia's  response to Panel question No.  5.5(b), paras.  187-189; second written submission, 
para. 7.3; and opening statement at the second meeting of the Panel, para.  5.1. WT/DS591/7  
 
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  7.6.5   MINCIT 's assessment  of Agrarfrost 's request  for an oil cost-related  adjustment  
7.6.5.1   Introduction  
7.245.   In its questionnaire response , the German exporter Agrarfrost requested an adjustment  to 
account for the fact that it primarily used more expensive sunflower oil to prepare potato products 
sold domestically , while using only cheaper palm oil to prepare  potato products  exported to 
Colombia .470 
7.246.   The European  Union  claims  that Colombia acted inconsistently with  the requirement under 
Article  2.4 to make a "fair comparison" because  MINCIT improperly denied 
Agrarfrost's  adjustment  request. Specifically, the European  Union argues that MINCIT erred in 
concluding that Agrarfrost did not provide the underlying invoices necessary to substantiate the 
adjustment.471 In the European  Union's view, Agrarfrost substantiated its request with argum ents 
and evidence , including the underlying invoices,  establishing the existence of the oil -related 
differences and the effect that these differences had on Agrarfrost's  costs and price s.472 The 
European  Union  asserts  that Agrarfrost provided the necessary invoices to MINCIT during 
verification, and that  the verification report establishes that  the authority accepted and verified these 
documents together with all other supporting information.473 Separately, the European  Union notes 
that MINCIT, in its decision on Agrarfrost's subsequent request for direct revocation (revocation 
decision) , referred to the exporter's  alleged failure to substantiate its adjustment claim.474 The 
European  Union also ob serves that MINCIT issued its revocation decision in an administrative review 
proceeding after the investigation had been completed. The European  Union thus considers that the 
"lack of substantiation" argument constituted an ex post rationalization and a post facto 
justification.475 
7.247.   Colombia responds that MINCIT was permitted  to reject Agrarfrost 's oil cost adjustment 
because , as MINCIT stated in the preliminary determination and in its post -investigation revocation 
decision476, the exporter  did not provide documentary evidence to support its assertions  and thus 
did not substantiate its request .477 Specifically, Colombia contends that, throughout the 
investigation, including during the verification visit, Agrarfrost failed to provide invoices related to 
the purchase of the different types of oil and that, despite the European  Union's  assertions to the 
contrary, the record of the investigation contains no such materials .478 
7.6.5.2   Analysis  
7.248.   The parties'  arguments raise the following two key issues for ou r consideration:  
a. first, whether Agrarfrost 's alleged failure to substantiate its request with invoices was , in 
fact, the reason provided by  MINCIT  for denying the adjustment  request  when  the 
authority  made  its final determination  on this matter  during  the underlying  investigation ; 
and 
 
470 Agrarfrost's  questionnaire response, (Exhibi t EU-28a (BCI)), section  6. 
471 European  Union's  first written submission, paras.  196, 200 -201, and 204; opening statement at the 
first meeting of the Panel, paras.  57-59; and response to Panel question No.  5.10, paras.  145-146. 
472 European  Union's  first writ ten submission, paras.  133, 193 -195, 197, and 203; response to Panel 
question No.  5.10, paras.  136-141; and second written submission, para.  76. 
473 European  Union's  first written submission, paras.  198-199; opening statement at the first meeting of 
the Pane l, para.  58; second written submission, para.  79; responses to Panel questions No.  5.9, 
paras.  128-134; No.  5.10, paras.  142-144; and No. 15.3(a), para.  47; and comments on Colombia's  response 
to Panel question No.  15.2, paras.  17-18. 
474 European  Union's  first written submission, paras.  201 and 204.  
475 European  Union's  first written submission, para.  207; opening statement at the first meeting of the 
Panel, para.  59. 
476 Colombia's  first written submission, para.  11.9; responses to Panel questions No.  5.7, 
paras.  192-196 and No.  5.8, paras.  198-199. 
477 Colombia's  first written submission, para.  11.6; second written submission, paras.  8.23-8.25; 
response to Panel question No.  15.4, para.  106; and comments on the European  Union's  response to Panel 
question No.  15.3, para.  1.61. 
478 Colombia's  first written submission, para.  11.6; second written submission, paras.  8.23-8.25; 
response to Panel question No.  15.4, para.  106; and comments on the European  Union's  response to Panel 
question No.  15.3, para.  1.61. WT/DS591/7  
 
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  b. second, insofar as MINCIT declined the adjustment request on grounds of insufficient 
substantiation, whether the record of the investigation indicates that the authority had an 
adequate basis for its decision.  
7.249.   We begin by cons idering the first question  and review, in turn, the relevant facts and findings 
from (a)  the preliminary stage of the investigation ; (b) the final stage of the investigation; and 
(c) the post -investigation administrative review procedure . 
7.250.   As to the preliminary stage of the investigation, we note that i n its questionnaire response  
dated 28 September 2017 , Agrarfrost asked for three cost -related adjustments, including one for oil 
cost-related differences.479 In its exporter questionnaire, MINCIT request ed respondents to provide 
relevant evidence justifying any claimed adjustments480 and Agrarfrost provided certain 
explanations, data, and quantifications for its requested oil adjustment.481 However, the exporter 
did not, in its questionnaire response, provi de MINCIT with any actual invoices that corroborated the 
alleged oil -related cost differences.482 
7.251.   In its preliminary determination of 1 November 2017, MINCIT disregarded all investigated 
exporters'  home market sales data, including all requests for adjustme nts, because they were not 
sufficiently substantiated, including by supporting evidence such as commercial invoices .483 At the 
preliminary stage of the investigation, Agrarfrost's  oil adjustment was therefore among the entire 
set of home market sales inform ation that MINCIT considered to be insufficiently substantiated.  
7.252.   In submissions to MINCIT dated 1 and 22  December  2017, Agrarfrost noted that the relevant 
underlying invoices comprised a very large volume of documents; asserted that it was therefore 
unable  to translate and submit these materials; and requested MINCIT to conduct an on -site 
verification visit to verify and confirm the existence and accuracy of the invoices supporting the 
three adjustments.484 
7.253.   MINCIT conducted  a verification visit at Agrarfrost 's facilities  on 15-17 May 2018. The 
parties agree that  the oil adjustment was  among the topics covered during the verification . 
Section  2.5 of MINCIT 's verification report and annex 9 appended to the report address the oil 
cost-related adjustment.485 The European  Union  asserts that the oil cost -related statements in the 
verification report and in annex  9 demonstrate that during the verification visit Agrarfrost provided, 
and MINCIT  verified, all requested underlying invoices.486 Colombia disagrees and contends  that the 
statements in both documents reflect Agrarf rost's own unsubstantiated and unsupported arguments 
and assertions .487 Specifically,  Colombia  asserts that  MINCIT included t hese statements in the record 
of the verification visit for transparency purposes and did not endorse or otherwise subscribe to the ir 
content .488  
7.254.   While we note the parties' disagreement, our line of inquiry discussed in 
paragraphs  7.248 -7.249  above does not require us to determine wh ether the verifica tion report and 
 
479 Agrarf rost's  questionnaire response, (Exhibit  EU-28a (BCI)), section  6. 
480 Dumping investigation questionnaire for foreign producers and/or exporters, (Exhibit  EU-23a), 
section  6. 
481 Agrarfrost's  questionnaire response, (Exhibit  EU-28a (BCI)), section  6; Agrarfros t's questionnaire 
response, Excel workbook "ventas domésticas", (Exhibit  EU-28.1 (BCI)).  
482 European  Union's  response to Panel question No.  15.3(a), para.  43. 
483 Preliminary determination, (Exhibit  EU-2a), section  2.1.1.  
484 Agrarfrost's  submission to MINCIT dated 1 December 2017, (Exhibit  EU-34a (BCI)); 
Agrarfrost's  submission to MINCIT dated 22  December 2017, (Exhibit  EU-35a (BCI)), pp. 2 and 8 -10. 
485 Agrarfrost verification visit report, (Exhibit  EU-36a); Agrarfrost verification visit r eport, annex  9, 
(Exhibit  EU-36.1a (BCI)).  
486 European  Union's  first written submission, paras.  198-199; opening statement at the first meeting of 
the Panel, para.  58; second written submission, paras.  77 and 79 -82; opening statement at the second 
meeting of  the Panel, paras.  45-55; and responses to Panel questions No.  5.9, paras.  128-133; No.  5.10, 
paras.  142-143; and No.  15.3(b), para.  48; and comments on Colombia's  responses to Panel questions 
No. 15.2, paras.  16-18 and No.  15.4, paras.  19-20. 
487 Colombia's  first written submission, para.  11.8; second written submission, paras.  8.3-8.22; 
responses to Panel questions No.  5.9(a), paras.  200-201; and No. 15.2, paras.  87-101; and comments on the 
European  Union's  responses to Panel questions No.  15.1, paras.  1.53-1.54; and No.  15.3(a), paras.  1.55-1.62. 
488 Colombia's  first written submission, para.  11.8; second written submission, paras.  8.3-8.22; 
responses to Panel questions No.  5.9(a), paras.  200-201; and No. 15.2, paras.  87-101; and comments on the 
European  Union's  responses to Panel questions No.  15.1, paras.  1.53-1.54; and No.  15.3(a), paras.  1.55-1.62. WT/DS591/7  
 
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  annex  9 demonstrate that Agrarfrost provided the requested invoices to MINCIT during the 
verification visit.  Rather, at this stage of the analysis, we turn to MINCIT's statements from the final 
stage of the investigation in order to assess whether MINCIT did, in fact, deny the adjustment 
because it found that the request was insufficiently substantiated.  
7.255.   On 27 August 2018 , MINCIT issued the essential facts disclosure. The disclosure document 
indicates that MINCIT explicitly accepted two of A grarfrost's  three adjustment requests, namely, the 
adjustments for marketing and sales costs, and packaging costs.489 While the document 
acknowledges that Agrarfrost also requested an oil adjustment490, it neither made explicit the 
decision to deny the adjus tment, nor explained the reasons for such a  denial . Following a separate 
inquiry from Agrarf rost491, MINCIT  subsequently confirmed that it had not granted the oil adjustment 
but still did not explain the reasons underlying its decision.492 
7.256.   In its comments on the essential facts disclosure dated 10  September  2018, Agrarfrost 
contested MINCIT's denial of the reque sted adjustment.493 The exporter referred to the information 
provided in its questionnaire response and the elements that MINCIT had verified during the on -site 
verification visit.  
7.257.   MINCIT subsequently issued a separate document responding to the interested 
parties'  comments on the essential facts disclosure, addressing Agrarfrost's  remarks on the oil 
adjustment as follows:  
With regard to the adjustments to the normal value requested by Agrarfrost concerning 
a product type named WP since it is not exported to  Colombia, as well as by type of oil 
used, we clarify that the dumping margin was not determined by type of product s in 
the investigation, since types of products were not identified in the export database 
from DIAN. In any event, these requests will be su bmitted for consideration by the 
Committee.494 
7.258.   We understand MINCIT's  response to mean that the authority declined the oil adjustment 
because the price data contained in the DIAN database that MINCIT used to calculate the dumping 
margins did not distinguish  between product types but instead comprised aggregate data.  
7.259.   In response to questioning by the Panel on  the content of MINCIT's  response to 
Agrarfrost's  essential facts comments, Colombia asserts that:  
There appears to be a drafting error in this paragraph , since the reference to the 
adjustment requested on the basis of oil type does not seem relevant in this context. 
Therefore, the explanation provided in the above -mentioned paragraph, referring to the 
types of products and the DIAN database, is not releva nt to the issue of the oil 
cost-related adjustment.  
Rather, [MINCIT]  rejected this request for the reason that Colombia has been giving 
since the beginning of this dispute : The company could not back up its factual 
allegations and claims with relevant docu ments, whether verifiable or verified during 
the verification visit.495 
7.260.   In our view, Colombia's  arguments concerning the content and meaning of 
MINCIT's  respo nse to Agrarfrost's  comments are not persuasive for three reasons. First, while we 
accept that "dra fting errors" can and do occur, we are of the view that Colombia's  assumptions 
(i.e. "[t]here appears  to be a drafting error in this paragraph, since the reference to the adjustment 
 
489 Final report on essential facts (public version), (Exhibit  EU-3a), section  2.4.3; Technical report on 
essential facts (confidential version), (Ex hibit COL-15 (BCI)), section  2.4.3.  
490 Final report on essential facts (public version), (Exhibit  EU-3a), section  1.10.6 ; Technical report on 
essential facts (confidential version), (Exhibit  COL-15 (BCI)), section  1.10.6 . 
491 Agrarfrost's  submission to MINCIT  dated  28 August 2018, (Exhibit  EU-41 (BCI)), item 1(d).  
492 MINCIT's  response to Agrarfrost dated 30 August 2018, (Exhibit  EU-37 (BCI)), item 1(d).  
493 Agrarfrost's  comments on essential facts, (Exhibit  EU-25a (BCI)), section  III.2. 
494 Responses to comments on  essential facts, (Exhibit  EU-17a), section  4. 
495 Colombia's  response to Panel question No.  15.5, paras.  108-109. (fn omitted)  WT/DS591/7  
 
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  requested on the basis of oil type does not seem  to be relevant"496), in an d of themselves, do not 
provide a sufficient basis to disregard the clear text of MINCIT's  findings. Second, we note that 
MINCIT's  stated reason for denying the oil adjustment is consistent with the authority's  general line 
of reasoning  during the investig ation that the format of the DIAN data did not allow a type -based 
analysis.497 Third, had there been an error in the drafting of MINCIT's  response to 
Agrarfrost's  comments, MINCIT had opportunities to rectify that error in its final determination and 
in the  accompanying final technical report. MINCIT, however, did not correct or revise any aspect of 
its prior reasoning on this issue when it issued these final documents on 9  November  2018.  
7.261.   To the contrary, MINCIT's  assessment of the oil adjustment in the fin al technical report is 
identical to the assessment in the essential facts disclosure, discussed in paragraph  7.255  above. 
Thus, MINCIT acknowledged the existence of  Agrarfrost's  request but did not make the adjustment; 
it neither made explicit the decision to deny the adjustment, nor explained the reasons for that 
(implicit)  decision .498 
7.262.   In our view, therefore, during the final stage of the investigation, MINCIT appears to have: 
either provided a conclusory statement that the adjustment was not made499; or acknowledged  – but 
implicitly refused  – the request without explaining the reasons fo r its decision .500 However, when it 
replied directly to Agrarfrost's  comments, MINCIT justified its decision to  reject the request  based 
on the fact that its decision to use the DIAN database did not permit the authority to conduct a 
product -level cost comp arison.501 
7.263.   Having reviewed the relevant facts and findings from the investigation, we  now consider 
Colombia's  arguments relating to the contents of MINCIT's  post-investigation revocation decision . 
In this regard, we note that on 1 and 11 March 2019 – i.e. several months after MINCIT had issued 
the final determination in the underlying investigation – the European Commission and Agrarfrost 
lodged requests for direct revocation of MINCIT 's final determination . These requests sought at a 
review by MINCIT, inter alia, of its decision to deny Agrarfrost's  oil cost adjustment request .502 On 
13 May 2019, MINCIT issued its decision rejecting the requests for administrative review and 
upholding, inter alia, its earlier decision to deny the oil  cost adjustment  request.  
7.264.   Colombia explains that , under its domestic law, the direct revocation procedure is an 
administrative review procedure conducted by the same authority that issued the contested 
decision.503 It serves the limited purpose of : determining, upon request, whether the act of the 
authority is manifestly contrary to law or to public or social interest, or causes undue harm ; and 
revoking the challenged decision if one of these conditions is met.504 
7.265.   In dismissing the request for revoca tion of the decision to deny the oil adjustment, MINCIT 
stated in the revocation decision that it could not establish the adjustment because 
Agrarfrost's  questionnaire response had failed to supply supporting evidence, including invoices, 
necessary to subs tantiate its adjustment claim.505 MINCIT's revocation decision also stated that while 
Agrarfrost indicated on the record of the verification visit that it had provided oil -related invoices, 
such materials were, in fact, absent from the record of the investi gation.506 
 
496 Emphasis added.  
497 See e.g. Final technical report (public version), (Exhibit  EU-4a), sections  1.10.8.2 and 1.10.13.2; 
Final tech nical report (confidential version), (Exhibit  COL-16 (BCI)), sections  1.10.8.2 and 1.10.13.2; and 
Responses  to comments on essential facts, (Exhibit  EU-17a), section  7. 
498 Final technical report (public version), (Exhibit  EU-4a), sections  1.10.6 and 2.4.3; Final technical 
report (confidential version), (Exhibit  COL-16 (BCI)), sections  1.10.6 and 2.4.3.  
499 MINCIT's  response to Agrarfrost  dated 30 August 2018, (Exhibit  EU-37 (BCI)), item 1(d).  
500 Final report on essential facts (public version), (Exhibit  EU-3a), section  2.4.3; Technical report on 
essential facts (confidential version), (Exhibit  COL-15 (BCI)), section  2.4.3; Final technical report (public 
version), (Exhibit  EU-4a), sections  1.10.6 and 2.4.3; and Final technical report (confidential version), 
(Exhibit COL-16 (BCI)), sections  1.10.6 and 2.4.3.  
501 Responses to comments on essential facts, (Exhibit  EU-17a), section  4. 
502 European  Union's  first written submission, para.  15. 
503 Colombia's  first written submission, para.  11.11.  
504 Colombia's  first written submission, fn  211; response to Panel question No.  5.7, para.  193. 
505 MINCIT's  revocation decision, (Exhibit  EU-6a), section  II.6.2. See also ibid. section  II.5.3.  
506 MINCIT's  revocation decision, (Exhibit  EU-6a), section  II.6.2. See also ibid. section  II.5.3.  WT/DS591/7  
 
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  7.266.   Colombia argues that the "lack of substantiation" argument in the revocation decision 
demonstrates that MINCIT denied the adjustment for the same reason in the investigation .507 
According to Colombia, the content of MINCIT's  revocation decision cl arifies, elaborates upon, and 
"complement[s]" the record of the investigation, such that the Panel must read the record of the 
underlying investigation "in conjunction with" the revocation decision when evaluating 
MINCIT's  rationale for declining Agrarfros t's oil adjustment.508 
7.267.   The European  Union responds, inter alia, that any "lack of substantiation " explanation that 
MINCIT may have provided must be regarded  as an "ex post rationalisation" because it was raised 
only in MINCIT 's revocation decision  after the  underlying investigation  was completed.509 
7.268.   The parties'  arguments raise the question of whether the Panel should consider the events 
and explanations following the completion of the investigation  (in this instance, the contents of 
MINCIT's  post-investigation  revocation  decision ) to evaluate whether, in the investigation 's final 
determination , MINCIT implicitly denied the oil cost adjustment because of insufficient 
substantiation. We note, in this r egard, Colombia's clarification that, under its domestic law, 
MINCIT 's revocation proceeding and the underlying investigation  are formally separate from one 
another  and serve  different purpose s.510 Colombia has also indicated  that, in the circumstances of 
this case, the findings that appear in the revocation decision are not a part of the record of the 
underlying investigation, are not incorporated into the final determination , and do not supplement, 
alter, or otherwise supersede any reasoning contained in the final determination .511 
7.269.   In light of Colombia's  statements that the underlying investigation and the revocation 
proceeding, as well as their respective records, are separate and distinct from one another, we do 
not consider it appropriate to rely on the content of the revocation d ecision  to conclude that the 
record of the investigation  demonstrates that MINCIT rejected Agrarfrost's  adjustment because of 
insufficient substantiation. This is particularly true given that the reason that MINCIT offered for 
rejecting Agrarfrost's  adjust ment in the revocation decision differs entirely from the reason MINCIT 
provided in response to Agrarfrost's  comments on the essential facts disclosure (namely, that the 
DIAN database did not permit the authority to conduct a product -level cost comparison ). We are 
therefore of the view that, contrary to Colombia's  assertion, MINCIT's  revocation decision does not 
"complement", and thus cannot "be read in conjunction with", the statements made by MINCIT on 
this issue during the final stage of the investigatio n. 
7.270.   The above review of the relevant facts and findings indicates that MINCIT's  reasons for 
denying the requested adjustment evolved during the underlying investigation . In the preliminary 
determination, MINCIT denied the reques t on grounds that it was  insufficiently substantiated. 
Subsequently, in its responses to the comments on essential facts, MINCIT no longer asserted that 
it had denied the adjustment because of insufficient substantiation but stated, instead, that the 
adjustment was incompatible with t he format of MINCIT 's preferred pricing data.512 
MINCIT 's explanations in the responses to the comments on essential facts marked the last instance 
during the investigation when the authority expressly considered the matter at issue; the final 
determination  does not contain any new or different reasoning on this issue, nor does it indicate that 
MINCIT reversed or modified the reasoning set forth in its responses to the comments on essential 
facts.  
7.271.   In light of the above , we consider  that, contrary to Colombia 's assertions, MINCIT 's stated 
reason for ultimately declining the adjustment in the investigation appears to have been different 
from – and unrelated to  – the alleged  failure to substantiate and provide supporting invoices.  
Therefore, we consider that Col ombia's  assertions in this regard constitute ex post rationalization 
that we cannot rely upon for our present assessment. Moreover, we recall that Colombia's  "lack of 
 
507 Colombia's  first written submission, para.  11.9; response to Panel question No.  5.8, para.  199. 
508 Colombia's  response to Panel question No.  5.7, paras.  194-195; oral respons e to Panel question 
No. 5.7 at the first meeting of the Panel.  
509 European  Union's  first written submission, paras.  204 and 207; opening statement at the first 
meeting of the Panel, para.  59. 
510 Colombia's  response to Panel question No.  5.7, para.  193. 
511 Colombia's  oral response to Panel question No.  5.7 at the first meeting of the Panel.  
512 This is consistent with the fact that, where appropriate, MINCIT made a specific and express "lack of 
substantiation" determination in response to the adjustment -related c omments on the disclosure of essential 
facts. Specifically, as discussed in paragraphs  7.207 -7.210  above, MINCIT did so with respect to  certain 
(Aviko) but not all (Agrarfrost  and Mydibel ) of the exporters ' product mix adjustments . WT/DS591/7  
 
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  substantiation" argument is the only ground on which it seeks to rebut the European  Union 's claim. 
Given that we reject this argument, and absent any other rebuttal arguments, we are unable to 
conclude that MINCIT had a proper basis to deny Agrarfrost's  oil cost -related adjustment request.  
7.6.5.3   Conclusion  
7.272.   Based on the above, we find that the Europe an Union has established that Colombia acted 
inconsistently with Article  2.4 because, by denying Agrarfrost's oil cost -related adjustment request, 
MINCIT failed to make a "fair comparison".  
7.6.6   Alleged  failure  to specify  necessary  information  and imposition  of an unreasonable  
burden  of proof  
7.273.   The European  Union  argues that Colombia acted inconsistently with its obligations under the 
last sentence of Article  2.4 of the Anti -Dumping  Agreement because  MINCIT failed  both to indicate 
to the exporters wha t information was necessary to support their adjustment requests , and imposed 
an unreasonable burden of proof on  the exporters to substantiate these requests .513 In particular, 
the European  Union  contends that despite the exporters ' submissions containing e xplanations and 
corroborating data, MINCIT rejected the requested adjustments without seeking clarifications or 
information from the exporters.514 
7.274.   Colombia responds that this claim is purely consequential and must fail because it has 
rebutted the European  Union's  principal claim that MINCIT acted inconsistently with the "fair 
comparison" requirement of Article  2.4.515 
7.275.   In our view, the facts underlying the European  Union's claim at hand are not materially 
different from those that serve as the basis for its claim that MINCIT did not make a "fair comparison" 
as required by the first sentence of Article  2.4. Having already found that MINCIT acted 
inconsistently with the "fair compar ison" requirement of Article  2.4, we do not consider it necessary 
to make further findings on the European  Union's claim under the last sentence of Article  2.4 in 
order to provide a positive resolution to the dispute before us.  
7.6.7   Conclusion  
7.276.   Based on the fore going, we find that our terms of reference encompass the 
European  Union's  packaging cost -related adjustment claim under Article  2.4. Further, we conclude 
that the European  Union  has established that Colombia acted inconsistently with its Article  2.4 
obliga tion to make a "fair comparison " by denying : 
a. the product mix -related adjustment s requested by Agrarfrost, Aviko and Mydibel;  
1. Mydibel's  packaging cost -related adjustment request; and  
b. Agrarfrost's  oil cost -related  adjustment  request.  
7.277.   We do not consider it necessary to make additional findings as to whether Colombia also 
acted inconsistently with its obligations under the last sentence of Article  2.4 in order to provide a 
positive resolution to the dispute before us.  
7.7  Claims under  Articles 3.1, 3. 2, 3.4, and 3.5 of the Anti -Dumping Agreement: 
MINCIT's  injury and causation determinations  
7.7.1   Introduction  
7.278.   The European  Union  claims that MINCIT 's determinations concerning the  existence of 
material injury as well as the causal link  are inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping  Agreement  on several grounds. The European  Union argues that  MINCIT 's entire 
 
513 European  Union's  first written submission, paras.  133 and 206 -208. 
514 European  Union's  first written submission, para.  207. 
515 Colombia's  first written submission, paras.  12.3-12.4. WT/DS591/7  
 
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  injury and causation analysis is invalidated by an "overarching " error or flaw  because it included 
imports from the countries unde r investigation that were not found to have been "dumped" in its 
evaluation ("non -dumped imports").516 According to the European  Union , this error in the "global 
approach"517 adopted by MINCIT is "of such magnitude and is so intrinsic to the remainder of the  
injury and causation analysis" that it leads to an "independent violation" of Article  3.1 as well as 
"consequential violations" of Articles  3.2, 3.4, and 3.5518 of the Anti -Dumping  Agreement . 
7.279.   Separately – and in addition to its "overarching error" claim – the European  Union also 
presents other discrete grounds in support of its claims challenging MINCIT's  analysis of:  "price 
effects" under Articles  3.2 and 3.1519; impact on  the domestic industry under Articles  3.4 and 3.1520; 
and the causal link under Articles  3.5 and 3.1.521 
7.280.   Colombia, for its part, responds to each of the European  Union's  claims and maintains, 
ultimately, that the European  Union has failed to make a prima  facie case that MINCIT acted 
inconsistently with Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping  Agreement in the underlying 
investigation .522 
7.281.   We begin our analysis by examining the European  Union's  claim of an "overarching" error 
under Articles  3.1, 3.2, 3.4, and 3.5 and subsequently address the other grounds pres ented by the 
European  Union in support of its claims under Articles  3.1, 3.2, 3.4, and 3.5.  
7.7.2   The European  Union's  "overarching " error  claim  under  Articles  3.1, 3.2, 3.4, and 3.5 
of the Anti-Dumping  Agreement  
7.282.   As a factual matter, the parties agree523 and the record confirms524 that MINCIT based its 
injury and causation  determinations on  all investigated  imports , including those  from exporters  for 
whom it determined:  (a) de minimis  final margins of dumping (Clarebout (Belgium), Agristo  
(Belgium), and Other Companies (Belgium) ) ("de minimis  margin imports "); and ( b) negative  final 
margins of dumping (Ecofrost (Belgium ) and Farm Frites (the Netherlands) ) ("negative margin 
imports").  
7.283.   The European  Union claims that MINCIT acted inconsistent ly with Articles  3.1, 3.2, 3.4, 
and 3.5 by erroneously treating de minimis  and negative margin imports as "dumped imports" for 
purposes of its injury and causation analyses .525 Colombia presents a two -pronged response, 
maintain ing, first,  that the term "dum ped imports"  in Articles  3.1, 3.2, 3.4, and 3.5  includes within 
its scope de minimis  margin imports.526 Second, as to negative -margin imports, Colombia appears 
to accept that they do not constitute "dumped imports" for purposes of Article  3, but it neverthe less 
 
516 European  Union's  first written submission, para. 248. 
517 European  Union's  opening statement at the second meeting of the Panel, paras.  56-57. 
518 European  Union's  first written submission, para. 212. 
519 The European  Union  argues that MINCIT 's "price effects " analysis is inconsistent with Articles  3.2 
and 3.1, inter alia, because it did not include adequate data relating to domestic prices and did not adequately 
examine whether there had been significant price undercutting, price depression, or price suppression by the 
dumped imports . See e.g. European  Union's  first written submission, para. 213; and second written 
submission, paras.  106-128. 
520 The European  Union  considers MINCIT 's "impact " analysis to be inconsistent with Articles  3.4 
and 3.1, inter alia, because it only examined 7 of the 15 economic factors and indices having a bearing on the 
state of the industry and failed to conduct an objective examination of all the relevant factors . (See e.g. 
European  Union's  first written submission, para. 214; and second written submission,  paras.  129-138).  
521 For the European  Union , MINCIT failed to adequately examine the causal link between the alleged 
material injury and the alleged dumping  thus acting inconsistently with Articles  3.5 and 3.1. (See e.g. 
European  Union's  first written submi ssion, para. 215; and second written submission, paras.  139-142). 
522 Colombia's  first written submission, para.  13.231; second written submission, para.  14.1. 
523 Colombia's  response to Panel question No.  6.1; European  Union's  response to Panel question 
No. 6.1; European  Union's first written submission, paras.  245-246; and Colombia 's first written submission, 
para. 13.11.  
524 Final technical report (public version) , (Exhibit  EU-4a), pp. 81-84 and 89 -90. 
525 European  Union's  response to Panel question No.  6.2, par a. 165. 
526 Colombia 's first written submission, para. 13.14.  WT/DS591/7  
 
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  maintains that the treatment of a "small volume" of negative margin imports as "dumped imports" 
by MINCIT does not undermine its injury and causation determinations .527 
7.284.   As we see it, the first point of disagreement between the parties relates to whether imports 
from exporters that have been assigned a  de minimis  dumping margin can be considered to be 
"dumped imports"  within the meaning of Article  3, such that an authority  may include such 
"de minimis  margin imports" in its  analysis of  injury and causation.528 
7.285.   Colombia argues that MINCIT 's interpretation of the term "dumped imports" as including 
de minimis  margin imports is a "permissible" interpretation within the meaning o f the second 
sentence of Article  17.6(ii ) of the Anti -Dumping  Agreement .529 The second sentence of 
Article  17.6(ii) concerns situations "[w]here the panel finds that a relevant provision of the  
Agreement  admits of more than one permissible interpretation". The first sentence of 
Article  17.6(ii ) requires that panels "shall interpret the relevant provisions of the  Agreement  in 
accordance with customary rules of interpretation of public international law".  
7.286.   The question of whether  a relevant provision admits of more than one "permissible " 
interpretation – the situation contemplated under the second sentence – thus depends on w hether 
more than one such interpretation emerges when the Panel examines the provision in accordance 
with the "customary rules of interpretation of public international law"  – that is, when the Panel 
applies the first sentence of Article  17.6(ii).  As the s tarting point of our interpretative  analysis,  we 
must therefore interpret the term "dumped imports" in Articles  3.1, 3.2, 3.4, and 3.5 in accordance 
with the customary rules of interpretation of public international law, as reflected in  Articles  31 
and 32 of the Vienna Convention.530 
7.287.   Article  3.1 requires that a "determination of injury … shall be based on positive evidence and 
involve an objective examination of both (a ) the volume of the dumped  imports  and the effect of 
the dumped  imports  on prices in the d omestic market for like products, and (b ) the consequent 
impact of these  imports  on domestic producers of such products" .531 Article  3.2 focuses on the 
volume and price effects of "dumped imports". With respect to "the volume of the dumped  
imports "532, the p rovision requires that "the investigating authorities shall consider whether there 
has been a significant increase in dumped  imports , either in absolute terms or relative to production 
or consumption in the importing Member" . With regard to the "effect  of the dumped imports  on 
prices"533, Article  3.2 requires that "the investigating authorities shall consider whether there has 
been a significant price undercutting by the dumped  imports  as compared with the price of a like 
product of the importing Member, or whether the effect of such imports  is oth erwise to depress 
prices to a significant degree or prevent price increases, which otherwise would have occurred, to a 
significant degree".534 Article  3.4 stipulates certain requirements for an investigating 
authority 's "examination of the impact of the dumped imports  on the domestic industry concerned". 
Finally, Article  3.5 requires the "demonstration of a causal relationship between the dumped  imports  
and the injury to the domestic industry".535 
7.288.   The text of Articles  3.1, 3.2, and 3.4 indicates that an inves tigating authority 's ultimate 
determination of injury is focused on the volume of the "dumped imports" and their effect on prices 
in the domestic market, as well as the impact of "dumped imports" on the domestic industry. 
 
527 Colombia 's first written submission, para. 13.41.  According to Colombia, a " contextual analysis " of 
Article  3 of the Anti -Dumping  Agreement, in light of Articles  2 and 17.6(i)  of the Anti -Dumping  Agreement and 
Article  11 of the DSU,  "confirms that the objective of the injury disciplines is to ensure the objectivity of the 
authority 's analysis " and reveals " that not every error or inaccuracy gives rise to a violation of Article  3.1 of the 
Anti-Dumping  Agreement , but rather only those errors or inaccuracies that are of such magnitude that they 
undermine the objectivity of the overall injury and causation examination." (Colombia's  response to Panel 
question No.  6.6, para.  223 (emphasis original ); first written submission, paras.  13.32 -13.37).  
528 In the event that we conclude, as a matter of treaty interpretation, that imports from exporters with 
a de minimis  margin of dumping do not fall within the scope of the term "dumped imports " in Article  3, we 
agree with  the findings of the panel in EC – Salmon (Norway)  that the factual issue of  "the volume of such 
imports is irrelevant".  (Panel Report, EC – Salmon  (Norway) , fn 763).  
529 Colombia's  response to Panel question No.  6.4, para.  218. 
530 See paragraph 7.1 above.  
531 Emphasis added . 
532 Emphasis  added.  
533 Emphasis added.  
534 Emphasis added . 
535 Emphasis added . WT/DS591/7  
 
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  Article  3.5 requires investigating  authorities to further examine whether the "dumped imports" are 
"causing" injury to the domestic industry. Given that all of these provisions are aimed at an 
investigating authority 's determination of injury caused by "dumped imports ", we consider that the 
term "dumped imports" carr ies the same meaning across these provisions.  
7.289.   Article  3 does not define the term "dumped imports". For Colombia, the ordinary meaning 
of the term "dumped imports" is set out in Article  2.1536, which provides, in relevant part, th at "a 
product is to be considered as being dumped, i.e.  introduced into the commerce of another country 
at less than its normal value, if the export price of the product exported from one country to another 
is less than the comparable price, in the ordinar y course of trade, for the like product when destined 
for consumption in the exporting country." According to Colombia "had the drafters of the 
Anti-Dumping  Agreement wanted to limit the scope of the term 'dumped imports'  in Articles  3.1, 
3.2, 3.4, and/or 3.5, they could have readily done so in an explicit manner", e.g. by inserting a 
"qualifier" or a "footnote". In contrast to these provisions, Colombia notes that, in Articles  3.3 and 
9.4 of the Anti -Dumping  Agreement, the drafters "ex plicitly " limited  dumping margins as those 
above the de minimis  threshold.537 
7.290.   The European  Union, for its part, responds that Colombia's  "approach ignores the role and 
function of the investigation in the overall framework established by the Anti -Dumping  Agreement 
which contain s guarantees to protect both [the] domestic industry and companies subject to 
investigations ".538 Questioning the relevance of the contextual elements identified by Colombia, the 
European  Union submits, instead, that it "follows from the logic of Article  1 read together with 
Article  5 of the Anti -Dumping  Agreement that any determination of injury under  Article  3 of the 
Anti-Dumping  Agreement leading to the imposition of an anti -dumping measure can only be made 
in respect of imports which have been the subject of an investigation ".539 For the European  Union, 
this "necessarily precludes consideration of th ose imports in respect of which an investigation was 
or ought to have been immediately terminated in accordance with the terms of Article  5.8 of the 
Anti-Dumping  Agreement", and "[h]ence it excludes imports in respect of which the dumping margin 
was de minimis".540 
7.291.   We note that the parties identify different textual and contextual elements in support of their 
positions. Our task, under the applicable rules of interpretation as reflected, inter alia, in 
Article  31(1) of the Vienna Convention, is to interpret the Anti -Dumping  Agreement "in good faith in 
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in 
light of its object and purpose".  Furthermore, the interpretative principle of effectiveness which flows 
from A rticle 31 of the Vienna Convention , requires us to seek to interpret the treaty as a whole and 
to read all applicable provisions in a way that gives meaning to all of them, harmoniously.541 We are 
thus not free to adopt a reading that would result in reduci ng treaty provisions  to redundancy or 
inutility.542 
7.292.   In this case, we consider that Article  5.8 provides important context for the interpretation of 
the term "dumped imports" in Article  3. Article  5 is entitled "Initiation and Subsequent 
Investigation". Article  5.1 refers to "an investigation to determine the existence, degree and effect 
of any alleged dumping". Article  5 thus regulates an investigating authority 's initiation and 
subsequent  investigation  to determine the " existence , degree  and effect  of any alleged dumping".543 
Therefore, in addition to  other provisions such as  Article  2.1, the  relevant  sub-paragraphs  of Article  5 
 
536 Colombia's  second written subm ission, paras.  9.9-9.11. 
537 Colombia's second written submission, para.  9.31; response to Panel question No. 6.3, para. 206. 
538 European  Union's  response to Panel question No.  6.2, para.  168. 
539 European  Union's  response to Panel question No.  6.2, para.  165. 
540 European  Union's  response to Panel question No.  6.2, para.  165. 
541 See e.g. Appellate  Body Reports, Argentina  – Footwear  (EC), para.  81; and Korea  – Dairy, para.  81. 
We are not persuaded by Colombia that the question before us is " whether the 'contextual ' reading of other 
provisions of the Anti -Dumping  Agreement  could contradict the ordinary meaning of a term " that is reflected, 
in this instance, in Article  2.1 of the Anti -Dumpin g Agreement. (Colombia's  second written submission, 
para. 9.15). In our view, t he ordinary meaning  of treaty terms  is linked inextricably with context and we agree 
with prior adopted DSB reports that "[i] nterpretation pursuant to the customary rules codifi ed in Article  31 of 
the Vienna Convention is ultimately a holistic exercise that should not be mechanically subdivided into rigid 
components ". (Appellate  Body Report, EC – Chicken  Cuts, para.  176).  
542 See e.g. Appellate  Body Report, US – Gasoline , p. 23. 
543 Emphasis added.  WT/DS591/7  
 
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  are applicable to and regulate the entire investigation to dete rmine the existence , degree , and effect  
of any alleged dumping.544 The second and third sentences of Article  5.8 provide that : 
There shall be immediate termination in cases where the authorities determine that the 
margin of dumping is de minimis , or that th e volume of dumped imports, actual or 
potential, or the injury, is negligible.  The margin of dumping shall be considered to be 
de minimis  if this margin is less than 2 per cent, expressed as a percentage of the 
export price.  
7.293.   The definition of the word  "imm ediate"  includes  "occurring, accomplished, or taking effect 
without delay or lapse of time; done at once; instant "545, and the definition of the word  "termination" 
includes  the "action of putting an end to something or of bringing something to a close ".546 
An "investigation", as discussed above, is aimed at determining the " existence, degree and effect  of 
any alleged dumping". The requirement to " immediate[ly]  terminat[e]"547 an investigation pursuant 
to Article  5.8 thus requir es an authority to end its inve stigation without delay  – or immediately  – as 
soon as it determines that the margin of dumping is de minimis , i.e. less than 2 % of the export 
price.  Furthermore, the use of the term "dumped imports" in Article  3 indicates that the  
determination of injury u nder that provision  concerns the effects  of any dumping  that has been  
found to exist. In this sense, the determination of injury follows – and takes into account – the 
determination of the existence and degree of any alleged dumping (i.e. the determination  of the 
margin of dumping).548  
7.294.   Once a producer or exporter has been assigned a  de minimis  margin of dumping, the 
continued treatment of any imports  from that producer or exporter  as "dumped imports" , in any 
subsequent injury and causation analyses under Ar ticle 3, would render ineffective the requirement , 
under Article  5.8, to "immediate[ly] terminate" the investigation.549 Article  5.8 thus provides useful 
context for the interpretation of the term "dumped imports" in Articles  3.1, 3.2, 3.4, and 3.5 as 
excluding  all imports from producers or exporters that have been assigned a de minimis  margin of 
dumping.  
7.295.   In support of its position that there is "no link" between Article  5.8 and Article  3, Colombia 
refers to Articles  9.4 and 3.3 to stress that when drafters did decide to qualify the dumping margins 
as those above the de minimis  threshold, they did so expressly.550  
7.296.   Article  3.3 states , in relevant part,  as follows:  
Where imports of a product from more than one country are simultaneously subject to 
anti-dumping investigations, the investigating authorities may cumulatively assess the 
effects of such imports only if they determine that (a ) the margin of du mping 
established in relation to the imports from each country is more than de minimis  as 
defined in paragraph  8 of Article  5 and the volume of imports from each country is not 
negligible.  
 
544 We note that Article  1 of the Anti -Dumping  Agreement states that  an "anti-dumping measure shall 
be applied only under the circumstances provided for in Article  VI of GATT  1994 and pursuant to investigations 
initiated and conducte d in accordance with the provisions of this  Agreement". (fn  omitted)  
545 Oxford Dictionaries online, definition of " immediate " 
https://www.oed.com/view/Entry/91838?redirected From=immediate#eid  (accessed 4 May 2022), adj., 
meaning 4.b.  
546 Oxford Dictionaries online, definition of "termination" 
https://www.oed.com/view/Entry/199427?redirectedFr om=termination#eid  (accessed 4 May 2022) , 
meaning  2.a. 
547 Emphasis added.  
548 This is supported by Article  3.4, which states that t he "examination of the impact of the dumped 
imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and 
indices  … including … the magnitude  of the margin  of dumping ". (emphasis added)  
549 See e.g. Panel Report, EC – Salmon  (Norway) , para. 7.627 (noting that there is " no rational basis on 
which the imports which are not legally cog nizable as 'dumped ' because a de minimis  margin has been 
calculated for the producer/exporter in question could be included in the volume of dumped imports taken into 
account in assessing the question of injury. In our view, the consequences from a determi nation that there is 
no legally cognizable dumping must be taken into account in the injury analysis "). 
550 Colombia 's response to Panel question No. 6.3, para. 204; second written submission, para.  9.23. WT/DS591/7  
 
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  The provision addresses the specific circumstances under which inve stigating authorities may 
cumulatively assess the effects of imports of a product from more than one country that are 
simultaneously subject to anti -dumping investigations. While both parties rely on Article  3.3 as 
context for purposes of interpreting Arti cles 3.1, 3.2, 3.4, and 3.5, neither contends that the 
provision is directly applicable to the case at hand. Moreover, we note that Article  3.3 is limited  to 
enumerating the specific  conditions for cumulation of the effects of the imports from more than one 
country  and, in this sense, has a narrow er scope  than Articles 3.1, 3.2, 3.4, and 3.5.551  
7.297.   Article  9.4, together with Article  6.10, imposes certain requirements on investigating 
authorities when they limit their examination to a reasonable number o f interested parties or 
products by using samples in cases where the number of exporters, producers, importers or types 
of products involved is so large as to make the determination of individual margins of dumping  
"impracticable ". In such cases, Article  9.4 prescribes certain limits on the anti -dumping duties 
applied to imports from exporters or producers that are not included in the examination (the 
so-called "all -other's" rate). For determining these limits, the provision clarifies that "the authorities 
shall disregard for the purpose of this paragraph  any zero and de minimis  margins and margins 
established under the circumstances referred to in paragraph  8 of Article  6". Similar to Article  3.3, 
Article  9.4 therefore also has a different scope than Articles 3.1, 3.2, 3.4, and 3.5. The latter 
provisions concern an investigating authority 's determination of injury caused by "dumped imports" 
from producers and exporters that are examined  by an investigating authority. By contrast, 
Article  9.4 focuses on the d etermination of the so -called "all others" rate, i.e. the anti -dumping duty 
that is applied to imports from exporters or producers that are not examined  by an investigating 
authority.  
7.298.   Given that the specific situations contemplated under Articles  9.4 and 3 .3 have a 
considerably different – and narrower – scope than an investigating authority 's overall determination 
of injury  and causation pursuant to Articles  3.1, 3.2, 3.4, and 3.5,  we disagree with Colombia that 
the context provided by Articles  9.4 and 3.3 establishes that there is "no link" between Article  5.8 
and Article  3. Rather, the fact that Articles  9.4 and 3.3 refer to Article  5.8 and " de minimis margins", 
and make Article  5.8 operational in the specific  situations contemplated u nder these provisions 
highlights to us the contextual relevance of Article  5.8 for purposes of the general  injury and 
causation determinations under Article  3.552 
7.299.   Colombia also relies upon the panel report  in Canada  – Welded  Pipe in support of its position  
that the notion of "dumping" does not have a de minimis  component.553 However, the part of the 
panel's  findings that Colombia relies upon  concerns the  interpret ation of  the term "dumping" for  the 
purpose s of Article  7.1(ii), which is limited to the applicat ion of provisional measures by investigating 
authorities.554 We note that the same panel also evaluated Chinese Taipei 's claim that Canada acted 
inconsistently with Articles  3.1, 3.2, 3.4, 3.5, and 3.7 by treating imports from exporters determined 
to have de minimis  margins of dumping as "dumped imports" within the meaning of these 
provisions.555 In finding against Canada on this issue, the panel stated that "Article  5.8 effectively 
means that there is no legally cognizable dumping by an exporter with a final de minimis  margin of 
dumping" and that, therefore, "imports from that exporter should not be treated as 'dumped ' for the 
purpose of the analysis and final determi nations of injury and causation".556 The findings in 
Canada  – Welded  Pipe therefore do not support Colombia's  position.  
7.300.   Noting that  "only a final determination of a de minimis  margin of dumping … triggers 
immediate termination under Article  5.8"557, Colombia  explains that, under its legal system , a "final 
determination" of dumping margins does not occur until the end of the investigation, i.e. in the final 
report or determination. Colombia thus questions how the requirement under Article  5.8 to 
 
551 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  220. 
552 See also Appellate  Body Report, Mexico  – Anti-Dumping  Measures  on Rice, para. 220. 
553 Colombia 's response to Panel question No. 6.3, para. 205 (referring to Panel Report, 
Canada  – Welded  Pipe, para.  7.59).  
554 Colombia acknowledges that the Panel's  findings at issue were made in a "slightly different context" . 
(Colombia 's response to Panel question No. 6.3, para. 205). See also Panel Report, Canada  – Welded  Pipe, 
para. 7.64 (noting that "it is only a final determination of a de minimis  margin of dumping that triggers 
immediate termination under Article  5.8").  
555 Panel Report, Canada  – Welded  Pipe, para.  7.79. 
556 Panel Report, Canada  – Welded  Pipe, para.  7.83. 
557 Colombia 's response to Panel question No. 6.3, para. 209 (quoting Panel Report, Canada  – Welded  
Pipe, para. 7.64).  WT/DS591/7  
 
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  immediate ly terminat e an investigation would apply when an authority legitimately determines a 
de minimis  margin  for a producer or exporter , at the same time as the  authority makes its  
determination of injury and causation.558 Referring to the findings in  Mexico  – Anti-Dumping  
Measures  on Rice, Colombia asserts that " the only way to terminate immediately an investigation, 
in respect of producers or exporters for which a de minimis  margin of dumping is determined, is to 
exclude them from the scope of the order ".559 
7.301.   We note, first, that, contrary to Colombia's  assertion, the findings in Mexico  – Anti-Dumping  
Measures  on Rice did not concern the situation  "when an authority legitimatel y determines the 
de minimis  margins of dumping at the end of the investigation, at the same time as the 
determination of injury and causation".560 Instead , the interpretive issue in that dispute, inter alia, 
was whether the term "margin of dumping" in Article 5.8 "refers to the individual margin of dumping 
of an exporter or producer rather than to a country -wide margin of dumping".561 As to the specific 
factual situation in that dispute, the finding that "the only way to terminate immediately  an 
investigation , in respect of producers or exporters for which a de minimis  margin of dumping is 
determined, is to exclude them from the scope of the order"562 was made in light of the observation 
that, "for the purposes of Article  5.8, there is one investigation and not  as many investigations as 
there are exporters or foreign producers" .563 This is different from the scenario now presented by 
Colombia where an authority determines the de minimis  margins of dumping at the end of the 
investigation, at the same time as its determination of injury and causation.  
7.302.   Moreover, we observe that althoug h Article  5.8 requires immediate termination of an 
investigation  in certain situations , the provision  does not prescribe the specific manner in which this 
termination is to be carried out.  In other words, the provision prescribes the end but leaves the 
choice of means to achieve that end to investigating authorities.  While investigating authorities thus 
enjoy certain freedom to structure and conduct their investigations as they consider appropriate, 
this cannot be used as a justification for non -compliance with the unambiguous requirement under 
Article  5.8 to terminate immediately an investigation  in cases where the authorities determine that 
the margin of dumping is de minimis .564 As we have found above, o nce a producer or exporter has 
been assigned a  de minimis margin of dumping, the continued treatment of any imports  from that 
producer or exporter  as "dumped imports" , in any subsequent injury and causation analyses under 
Article  3, would render ineffective the requirement , under Article  5.8, to "immediate[l y] terminate" 
the investigation.  
7.303.   We therefore disagree with Colombia that an interpretation of the term "dumped imports" 
as including de minimis  margin imports is "permissible" within the meaning of  the second sentence 
of Article  17.6(ii)  of the Anti -Dumping  Agreement.565 Instead, our interpretation of the 
Anti-Dumping  Agreement leads us to agree with prior adopted DSB reports that the context provided 
by "Article  5.8 means that there is no legally co gnizable dumping by an exporter with a final 
 
558 Colombia 's response to Panel question No. 6.3, para. 210. 
559 Colombia's  response to Panel question No.  6.3, para.  210 (quoting Appellate  Body Report, 
Mexico  – Anti-Dumping  Measures  on Rice, para. 219). 
560 Colombia 's response to Panel question No. 6.3, para. 210. 
561 Appellate  Body Report, Mexico  – Anti-Dumping  Measure s on Rice, para. 216. 
562 Appellate  Body Report, Mexico  – Anti-Dumping  Measures  on Rice, para. 219. (emphasis original)  
563 Appellate  Body Report, Mexico  – Anti-Dumping  Measures  on Rice, para.  218. We also note the 
Appellate Body's observation that, in that case, "the order establishing anti -dumping duties came after the final 
determination of a margin of dumping of zero per cent was made for Farmers Rice and Riceland [(the exporters 
at issue)], but the order nevertheless covered these exporters." (Appellate  Body Report, 
Mexico  – Anti-Dumping  Measures  on Rice, para.  219 (emphasis original)).  
564 Panel Report, EC – Salmon  (Norway) , para.  7.628 (noting that " Article  5.8 requires termination o f 
the investigation upon a determination of de minimis  margins for imports from a particular foreign producer or 
exporter, and thus leads to the conclusion that there is no legally cognizable dumping. A consistent 
interpretation of the term 'dumped ' requir es that such imports be excluded from the 'dumped 
imports ' considered in the analysis of injury (and causation, of course) )." 
565 Colombia's  response to Panel question No.  6.4, para.  218. Given our unambiguous conclusion 
resulting from the interpretative exe rcise under Article  31 of the Vienna Convention, we do not consider it 
necessary to have recourse to the supplementary means of interpretation within the meaning of Article  32 of 
the Vienna Convention, including the preparatory work of the Anti -Dumping  Agreement, and the other 
interpretative elements that are presented by the parties.  WT/DS591/7  
 
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  de minimis  margin of dumping", and, "[a]ccordingly, imports from that exporter may not be treated 
as 'dumped imports ' for the purpose of the Article  3 injury analysis" .566 
7.304.   Turning to the inclusion of negative mar gin imports – i.e. imports from exporters with overall 
negative dumping margins – in MINCIT's  injury and causation analyses, we note that Colombia does 
not contest that such imports do not constitute "dumped imports" for purposes of Articles  3.1, 3.2, 
3.4, and 3.5. Colombia instead argues that the treatment of a "small volume" of negative margin 
imports as "dumped imports"  by MINCIT  does not undermine the objectivity of its injury and 
causation analyses.567 The issue of whether it is permissible to treat imp orts from exporters with  
overall  negative  margin s as "dumped " for purposes of  the injury  and causation  analys es is not, in 
our opinion, a question of fact that is to be addressed in light of the  circumstances in different 
investigations. Instead, we consid er that the issue relates to the legal  interpretation of the term 
"dumped imports".568 On the latter point, even Colombia does not argue that such negative margin 
imports constitute "dumped imports" for purposes of Article  3 and, in any event, we cannot see  how 
an unbiased and objective investigating authority could have included imports from exporters with 
negative overall margins in its assessment of the injury caused by "dumped imports".  
7.305.   For the above reasons, we find that the European  Union has establish ed that Colombia acted 
inconsistently with its obligations under Articles  3.1, 3.2, 3.4, and 3.5, because MINCIT included in 
its injury and causation determinations imports from the exporters  that were determined  to 
have: (a) final  de minimis  margins of dumping (Clarebout (Belgium), Agristo  (Belgium), and Other 
Companies (Belgium)); and ( b) final  negative  margins of dumping (Ecofrost (Belgium ) and Farm 
Frites (the Netherlands)).  
7.7.3   European  Union's  other  claims  under  Articles  3.1, 3.2, 3.4, and 3.5 
7.306.   In addition to its "overarching" error claim examined above, the European  Union also 
presents other discrete grounds in support of its claims challenging MINCIT's  analysis of:  "price 
effects" under Articles  3.2 and  3.1569; impact on domestic industry unde r Articles  3.4 and 3.1570; 
and causal link under Articles  3.5 and 3.1.571 In response to questioning by the Panel, the 
European  Union  stated that, "should the Panel uphold the overarching claim, the European  Union  
would  not consider  it essential  for the Pane l to make finding [s] on the other grounds in support of 
its claims of a violation of Article  3.2, 3.4 and 3.5 of the Anti -Dumping  Agreement ".572 In light of 
this clarification by the European  Union, and having found in favour of the European  Union with 
respect of its claim relating to the "overarching" flaw in MINCIT's  injury and causation 
determinations, the Panel is not called upon to make furth er findings  with respect to the other 
grounds presented by the European  Union in support of its claims challenging MINCIT's  analysis of 
the "price effects" under Articles  3.2 and 3.1;  the impact on domestic industry under Articles  3.4 
and 3.1 ; and the causal link under Articles  3.5 and 3.1.  
7.7.4   Conclusion  
7.307.   Based on the foregoing, we find that the European  Union has established that Colombia 
acted inconsistently with its obligations under Articles  3.1, 3.2, 3.4, and 3.5, because MINCIT 
included in its injury and causation  determinations imports from the exporters that were determined 
to have:  (a) final de minimis  margins of dumping (Clarebout Potatoes (Belgium), Agristo (Belgium), 
 
566 Panel Reports, Canada  – Welded  Pipe, para.  7.88; EC – Salmon  (Norway) , para.  7.628.  
567 Colombia's  first written submission, para.  13.41. According to Colombia, a "contextual analysis" of 
Article  3 of the Anti -Dumping  Agreement, in light of Articles  2 and 17.6(i)  of the Anti -Dumping  Agreement and 
Article  11 of the DSU, "confirms that the obj ective of the injury disciplines is to ensure the objectivity  of the 
authority's  analysis" and reveals "that not every error or inaccuracy gives rise to a violation of Article  3.1 of the 
Anti-Dumping  Agreement, but rather only those errors or inaccuracies that are of such magnitude that they 
undermine the objectivity of the overall injury and causation examination" . (Colombia's  response to Panel 
question No.  6.6, para.  223 (emphasis original); first written submis sion, paras.  13.32 -13.37).  
568 See e.g. Panel Report, EC – Salmon  (Norway) , para. 7.628 . 
569 See e.g. European  Union's  first written submission, para. 213; and second written submission, 
paras.  106-128. 
570 See e.g.  European  Union's  first written submission, para. 214; and second written submission, 
paras.  129-138. 
571 See e.g. European  Union's  first written submission, para. 215; and second written submission, 
paras.  139-142 
572 European  Union's  response to Panel question No.  10.1, para.  378. (emphasis  added)  WT/DS591/7  
 
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  and Other Companies  (Belgium)); and ( b) final negative  margins of dumping (Ecofrost 
(Belgium ) and Farm Frites (the Netherlands)).  
7.308.   In light of this finding, we are not called upon to make further findings with respect to the 
other grounds presented by the European  Union in support of its claims challenging 
MINCIT's  analysis of the "price e ffects" under Articles  3.2 and 3.1; the impact on domestic industry 
under Articles  3.4 and 3.1 ; and the causal link under Articles  3.5 and 3.1 . 
8  CONCLUSIONS  AND RECOMMENDATION  
8.1.  For the reasons set out in this Report, we conclude as follows:  
a. with respect to the European  Union's claims concerning MINCIT's decision to initiate the 
underlying investigation:  
i. the European  Union has not established that Colombia acted inconsistently with 
Article  5.3 of the Anti -Dumping Agreement because MINCIT faile d to verify that 
there was "sufficient" evidence to initiate the investigation with respect to the full 
range of products covered by tariff subheading 2004.10.00.00;  
ii. the European  Union has not established that Colombia acted inconsistently with 
its obligat ions under Article  5.3 because MINCIT did not have "sufficient" evidence 
demonstrating that FEDEPAPA represented the domestic producers of the "like" 
product so as to justify initiating the underlying investigation;  
iii. the European  Union has established that Colombia acted inconsistently with 
Article  5.3 of the Anti -Dumping Agreement because, by failing to examine 
whether the use of third -country sales prices, instead of domestic sales prices, 
was "appropriate" in the specific facts and circumstances of the in vestigation at 
issue, MINCIT did not examine the "adequacy" of the evidence in the application 
to determine whether there is "sufficient" evidence to justify the initiation of the 
underlying investigation;  
iv. the European  Union has not established that Colomb ia acted inconsistently with 
its obligations under Article  5.3 because the evidence of injury examined and 
relied upon by MINCIT was insufficient to justify the initiation of the underlying 
investigation;  
v. the European  Union has not established that Colomb ia acted inconsistently with 
its obligations under Article  5.3 because the evidence of causal link examined and 
relied upon by MINCIT was insufficient to justify the initiation of the underlying 
investigation; and  
vi. having found that Colombia acted inconsist ently with its obligations under 
Article  5.3, the Panel does not consider it necessary to make additional findings 
concerning the European  Union's claim under Article  5.8 of the Anti -Dumping 
Agreement in order to provide a positive resolution to the presen t dispute.  
b. With respect to the European  Union's claims concerning the confidential treatment of 
certain information by MINCIT:  
i. the European  Union has established that Colombia acted inconsistently with its 
obligations under Article  6.5 of the Anti -Dumping Agreement with respect to the 
redacted information in section  d(i) of FEDEPAPA's  revised application because 
MINCIT granted confidential treatment to this information without a showing of 
"good cause" by the applicant. Given this finding of inconsistency, the Panel does 
not consider it necessary to make further findings on the European  Union's  claim 
under Article  6.5.1 concerning the information in section d(i) of the revised 
application in order to provide a positive resolution to the present dispute;  WT/DS591/7  
 
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  ii. the European  Union has not established that Colombia acted inconsistently with 
its obligations under Article  6.5 in respect of the information contained in 
annex  10 of the revised application because the European  Union has not 
demonstrated:  (a) that the applic ant failed to show the necessary "good cause" 
for the confidential treatment requested; and (b)  that MINCIT did not objectively 
assess the showing of "good cause" as the basis of granting confidential 
treatment; and  
iii. the European  Union has established that Colombia acted inconsistently with its 
obligations under Article  6.5.1 of the Anti -Dumping Agreement with respect to 
the information contained in annex  10 of FEDEPAPA's  revised application 
because: MINCIT did not " require " the applicant to " furnish " non -confidential 
summaries of the confidential information contained in annex  10; and, to the 
extent that this information was not susceptible of summary, a statement of the 
reasons as to why summarization was not possible was not provided.  
c. With respect to the E uropean  Union's claims concerning the alleged use of "facts 
available" by MINCIT:  
i. the European  Union has established that Colombia acted inconsistently with its 
obligations under Article  6.8 of the Anti -Dumping Agreement because MINCIT 
disregarded the expo rt prices that the exporters had provided in their 
questionnaire responses and, instead, elected to use export prices extracted from 
the DIAN database to make its dumping determination; and  
ii. having found that Colombia acted inconsistently with its obligatio ns under 
Article  6.8, the Panel does not consider it necessary to make additional findings 
as to whether  Colombia also acted inconsistently with its obligations under 
paragraphs  3 and 6 of Annex II and Article  2.1 in order to provide a positive 
resolution to the present dispute.  
d. With respect to the European  Union's claims concerning MINCIT's assessment of the 
exporters' requests for adjustments:  
i. the European  Union has established that Colombia acted inconsistently with its 
obligation to make a "fair compari son" under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied the product mix -related adjustments 
requested by Agrarfrost, Aviko, and Mydibel;  
ii. the European  Union's claim under Article  2.4 of the Anti -Dumping Agreement 
concerning Mydibel's  packaging cost -related adjustment request falls within the 
Panel's  terms of reference;  
iii. the European  Union has established that Colombia acted inconsistently with its 
obligation to make a "fair comparison" under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied Mydibel's  packaging cost -related adjustment 
request;  
iv. the European  Union has established that Colombia acted inconsistently with its 
obligation to make a "fair comparison" under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied Agrarfrost's  oil cost -related adjustment 
request; and  
v. having found that Colombia ac ted inconsistently with its obligation to make a "fair 
comparison" under Article  2.4, the Panel does not consider it necessary to make 
additional findings as to whether Colombia also acted inconsistently with its 
obligations under the last sentence of Arti cle 2.4 in order to provide a positive 
resolution to the present dispute.  WT/DS591/7  
 
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  e. With respect to the European  Union's claims concerning MINCIT's injury and causation 
determinations:  
i. the European  Union has established that Colombia acted inconsistently with its 
obligations under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement 
because MINCIT included in its injury and causation determinations imports from 
the exporters that were determined to have:  (a) final de minimis  margins of 
dumping (Clarebout (Be lgium), Agristo (Belgium), and Other Companies 
(Belgium)); and (b)  final negative  margins of dumping (Ecofrost (Belgium)  and 
Farm Frites (the Netherlands)); and  
ii. having found that Colombia acted inconsistently with its obligations under 
Articles  3.1, 3.2, 3.4, and 3.5, the Panel is not called upon to make further 
findings with respect to the other grounds presented by the European  Union in 
support of its claims challenging MINCIT's  analysis of the "price effects" under 
Articles  3.2 and 3.1; the impact on do mestic industry under Articles  3.4 and 3.1; 
and the causal link under Articles  3.5 and 3.1.  
8.2.  Pursuant to Article  19.1 of the DSU, we recommend that Colombia bring its measures into 
conformity with its obligations under the GATT 1994 and the Anti -Dumping Agr eement.  
__________