WT/DS591/2  
 
18 February 2020  
(20-1252) Page: 1/5 
  Original: English  
 
COLOMBIA – ANTI -DUMP ING DUTIES ON FROZEN  FRIES  
FROM BELGIUM, GERMAN Y AND THE NETHERLAND S 
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  BY THE EUROPEAN UNI ON 
The following communication, dated 17 February 2020, from the delegation of the European Union 
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
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On 15 November 2019, the European Union requested consultations with the government of the 
Republic of Colombia (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 Agreement 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 and Trade 1994 (GATT 1994) concerning the imposition of ant i-dumping (AD) 
duties on certain imports of potatoes, prepared or preserved (otherwise than by vinegar or acetic 
acid), frozen ( frozen fries), originating in  Belgium, Germany and the Netherlands (the countries 
concerned)1. 
 
The consultations took place on 15 and 16 January 2020 in Geneva with a view to reaching a 
satisfactory settlement of the matter. Unfortunately, they failed to settle the dispute. The European 
Union therefore requests that a panel be established 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 GATT 1994, to examine the matter based on the standard terms of reference, as set 
out in Article 7.1 of the DSU.  
 
The measures at issue are 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 sub -
heading 2004.10.00.00 originating in Belgium, Germany and the Netherlands ( "products u nder 
investigation "). The measures at issue include, and are evidenced by, the following 
instruments/documents:  
 
• Ministry of Trade, Industry and Tourism Resolution Number 191 of 1 November 20172 
adopting the preliminary determination on the administrative investigation initiated by 
means of Decision 121 of 2 August 2017, published in the Official Journal No 50.406 of 
9 November 2018, page 43; 
• Ministry  of Trade, Industry and Tourism Resolution Number 257 of 9 November 20184 
adopting the final determination o n the administrative investigation initiated by 
 
1 WT/DS591/1, G/ADP/D133/1, G/VAL/D/14, G/L/1339.  
2 http://www.mincit.gov.co/mincomercioexterior/defensa -comercial/dumping/derecho s-antidumping -
vigentes/papa -congelada/resolucion -191-del-1º-de-noviembre -de-2017.aspx , last accessed on 
21 October  2019.  
3 http://svrpubindc.imprenta.gov.co/d iario/view/diarioficial/consultarDiarios.xhtml , last accessed on 
21 October 2019.  
4 http://www.mincit.gov.co/mincomercioexterior/defensa -comercial/dumping/derec hos-antidumping -
vigentes/papa -congelada/resolucion -no-257-del-9-de-noviembre -de-2018.aspx  , last accessed on 
21 October  2019.  WT/DS591/2  
 
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  Decision  121 of 2 August 2017, published in the Official Journal No 50.772 of 
9 November  2018, page 95; 
• 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 Germany6; 
• 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, 20187; 
• Ministry  of Trade, Industry and Tourism Resolution Number 093 of 13 May 2019 
addressing some requests for administrative review8, published in the Official Journal 
No 50.956, page 189. 
This request also covers any annexes thereto, notices, preliminary findings, re views, amendments, 
supplements, replacements, renewals, extensions, implementing measures or any other related 
measures.  
 
The measures at issue described above appear to be inconsistent with Colombia 's obligations under 
the following provisions of the cove red agreements:  
 
1. Article 2.1 of the Anti -Dumping Agreement, because Colombia, in its determination of 
dumping, failed to calculate dumping margins on the basis of a comparison between the 
export price of the products under investigation when exported fr om Belgium, Germany 
and the Netherlands into Colombia and the normal value of the like products in the 
exporting countries. In particular, Colombia did not rely on the correct source of 
information regarding export prices from Belgium, Germany and the Neth erlands and 
determined the export price of the products under investigation on the basis of the 
database managed by the Dirección de Impuestos y Aduanas Nacionales (DIAN) for all 
exporting producers rather than on the basis of the export price information provided 
by  investigated producers. For this reason, Colombia erroneously arrived at inflated 
dumping margins and also did not exclude a sample transaction from the calculation of 
the dumping margin of a particular producer.  
2. Article 6.8 and paragraphs  3 and 6 of Annex II, in conjunction with Article 2.1 of the 
Anti-Dumping Agreement, because Colombia determined that the products under 
investigation had been dumped on the basis of the facts available, even though it failed 
to determine that investigated  producers refused access to, or otherwise did not 
provide, necessary information within a reasonable period or significantly impeded the 
investigation. In particular, Colombia determined the export price of the products under 
investigation on the basis of  the database managed by the Dirección de Impuestos y 
Aduanas Nacionales ( DIAN) for all exporting producers rather than on the basis of the 
export price information provided by the investigated producers. Thus, Colombia failed 
to take into account, when it s determinations were made, all information which was 
verifiable, which was appropriately submitted so that it could be used in the 
investigation without undue difficulties and which was supplied in a timely fashion. 
Colombia also failed to inform the supp lying parties forthwith of the reasons for not 
accepting the evidence or information provided and failed to give the supplying party 
an opportunity to provide further explanations within a reasonable period.  
 
5 http://svrpubindc.i mprenta.gov.co/diario/index.xhtml;jsessionid=f3a676a718bd19151d80b155f949  , 
last accessed on 21 October 2019.  
6 http://srv calidad.mincomercio.gov.co/Practicas -Comerciales/Mincomercio/D -087-03-573-02-023-01-
95-PAPA-PUBLICA -T18.PDF  , document stamped with numbers 6055 to 6070, last accessed on 
21 October  2019.  
7 http://srvcalidad.mincomercio.gov.co/Practicas -Comerciales/Mincomercio/D -087-03-573-02-023-01-
95-PAPA-PUBLICA -T18.PDF  , document stamped with numbers 6071 to 6130, last accessed on 
21 October 2019.  
8 http://www.mincit.gov.co/mincomercioexterior/defensa -comercial/dumping/derechos -antidumpi ng-
vigentes/papa -congelada/resolucion -093-rd.aspx  , last accessed on 21 October 2019.  
9 http://svrpubindc.imprenta.gov.co/diario/view/diarioficial/consultarDi arios.xhtml  , last accessed on 
21 October 2019.  WT/DS591/2  
 
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  3. Articles 5.8 in conjunction with Articles 2.1 and 3 of the Anti -Dumping Agreement, 
because Colombia did not reject the application for initiating an anti -dumping 
investigation of the products under investigation, or did not terminate that investigation 
promptly, even though there was not sufficient evidence of either dumping or of injury 
to justify proceeding with the investigation. In particular, a proper dumping analysis 
concerning the products under investigation in keeping with the requirements of Artic le 
2.1 of the Anti -Dumping Agreement would not have led to any margins of dumping in 
excess of de minimis . 
4. Articles 2.1 and 2.6 of the Anti -Dumping Agreement because the product which 
Colombia considered as being dumped is not "like" the product when de stined for 
consumption in the exporting country. Colombia wrongly included, in the scope of the 
product under consideration, both traditional frozen fries and frozen specialities and 
failed to apply the terms "like product " as meaning identical, i.e. alike  in all respect to 
the product under consideration, or although it is not alike in all respects, having 
characteristics closely resembling those of the products under consideration.  
5. 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 due allowances for differences which affect price comparability, including for 
differences in physical characteristics and/or any other differences betwe en the products 
sold on the domestic markets in Belgium, Germany and the Netherlands, and the 
products under investigation sold on the export market, which were demonstrated to 
affect price comparability. Inter alia , Colombia disregarded the differences be tween 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 resulting from the use of  different types 
of oils.  
6. Article  2.4 of the Anti -Dumping Agreement because Colombia did not make a fair 
comparison between the export price and the normal value by deducting certain sea 
freight and insurance costs twice from the export price of a compa ny, thereby unduly 
lowering the export price.  
7. Article  2.4 of the Anti -Dumping Agreement because Colombia failed to indicate to the 
parties in question what information was necessary to ensure a fair comparison and 
imposed an unreasonable burden of proof  on those parties.  
8. Article  2.4.1 of the Anti -Dumping Agreement because Colombia converted the currency 
of the normal value and export price, the euro, into US dollars even though the 
comparison under Article 2.4 of the Anti -Dumping Agreement did not req uire such a 
conversion of currencies.  
9. Each of the obligations under Articles 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the Anti -Dumping 
Agreement because Colombia, in its injury determination, wrongly included 
non-dumped imports.  
10. Article  3.1 in conjunctio n with Article 3.2 of the Anti -Dumping Agreement because 
Colombia did not carry out an objective examination of the effect of the dumped imports 
on prices in the domestic market for the like product. Notably, Colombia 's injury 
determination did not include  data with respect to domestic prices and, in particular, 
whether there had been a significant price undercutting, price depression or price 
suppression by the dumped imports.  
11. Article  3.1 in conjunction with Article 3.4 of the Anti -Dumping Agreement b ecause 
Colombia did not make a determination of injury based on positive evidence and did not 
carry out an objective examination of the impact of the dumped imports on the domestic 
industry concerned. Rather than making the required evaluation of all relev ant economic 
factors and indices having a bearing on the state of the industry, Colombia unduly 
limited its analysis to examining seven of the economic factors and indices having a 
bearing on the state of the industry. Moreover, Colombia failed to make the  evaluation 
of all relevant economic factors and indices required by Article 3.4 of the Anti -Dumping 
Agreement by wrongly comparing an average of five semesters for the injury period 
with an average of two semesters for the dumping period.  
12. Article  3.5 of the Anti -Dumping Agreement because Colombia did not demonstrate that 
the dumped imports of the product under investigation are, through the effects of 
dumping, causing injury within the meaning of that agreement. In particular, Colombia 
looked into caus ation by examining dumped and non -dumped imports together and did 
not consider the increase in price of the raw material as a known factor, other than the WT/DS591/2  
 
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  products under investigation, which at the same time was injuring the domestic 
industry.  
13. Article  5.3 of the Anti -Dumping Agreement because Colombia failed to examine the 
accuracy and adequacy of the evidence provided in the application on dumping, injury 
and causation to determine whether there is sufficient evidence to justify the initiation 
of an i nvestigation.  
14. Article  5.8, first sentence of the Anti -Dumping Agreement because Colombia initiated 
an investigation  without the required sufficient evidence.  
15. Articles  6.1.2 and 6.2 in conjunction with Article 6.4 of the Anti -Dumping Agreement 
because Colombia  failed to make available promptly to other interested parties 
participating in the investigation, evidence presented in writing. Colombia also failed to 
provide all interested parties a full opportunity for the defence of their interests as we ll 
as timely opportunities to see all non -confidential information relevant to the defence 
of their interests with regard to, inter alia , the methodology used to calculate the 
dumping margin, including the adjustments made and the material injury analysis.  
16. Article  6.5 of the Anti -Dumping Agreement because Colombia failed to treat confidential 
information or information provided on a confidential basis as such and disclosed it 
without specific permission of the parties submitting it. For example , certain information 
provided by a party on a confidential basis was disclosed without its permission.  
17. Article  6.5 of the Anti -Dumping Agreement because Colombia treated as confidential, 
without showing good cause, information supplied by the applican t. In particular, 
although Colombia required the applicant to justify the confidential treatment of the 
information submitted, Colombia provided confidential treatment on its own initiative, 
in the absence of an indication by the applicant asserting the co nfidential nature of the 
information supplied, i.e. without good cause having been shown by the applicant.  
18. Article  6.5 of the Anti -Dumping Agreement and Article 10 of the Customs Valuation 
Agreement because Colombia has not treated information that is by nature confidential 
or information which was provided on a confidential basis by a party for the purposes 
of customs valuation, as such and because Colombia disclosed such information without 
specific permission of the party submitting it. In particular , Colombia published 
information of clients, price and volume per transaction for the exports made during the 
investigation period by one party, which is by nature confidential and whose 
confidentiality has not been waived.  
19. Article  6.5.1 of the Anti -Dumping Agreement because Colombia did not require the 
applicant to furnish non -confidential summaries of confidential information provided by 
it and which provide sufficient detail to permit a reasonable understanding of the 
substance of the information su bmitted in confidence. If the applicant claimed that the 
information was not susceptible of summary, Colombia failed to require that a statement 
of reasons be provided in support of that claim.  
20. Article 6.9 of the Anti -Dumping Agreement because Colombia  did not sufficiently inform 
all interested parties of the essential facts under consideration which form the basis of 
the decision to impose definitive anti -dumping measures, including the essential facts 
underlying the determinations of the existence of dumping and the calculation of the 
margins of dumping and the determination of injury. This precluded the possibility of 
interested parties to defend their interests, in particular to assess whether Colombia 's 
conclusions were supported by evidence and whe ther they reflected an objective 
examination of evidence.  
21. Article  12.2 in conjunction with 12.2.2 of the Anti -Dumping Agreement because 
Colombia did not disclose, in a public notice, essential information on dumping and 
injury and failed to provide in sufficient detail the findings and conclusions reached on 
all issues of fact and law considered material by the investigating authority, as well as 
all relevant information on the matters of fact and law and reasons which have led to 
the imposition of final measures. Colombia also failed to provide a public notice or a 
separate report with the relevant information on the matters of fact and law and the 
reasons which have led to the imposition of final measures, in particular the reasons for 
the rejection of relevant arguments or claims in relation to requested adjustments an d 
the refusal to exclude a sample transaction from the calculation of the dumping margin  
during the investigation.  
22. Colombia 's anti-dumping measures on the products under investigation also appear to 
be inconsistent with Articles 1, 9.1, 9.2, 9.3, 11.1 and 18.1 of the Anti -Dumping 
Agreement and Article VI of the GATT 1994 as a consequence of the breaches of the 
Anti-Dumping Agreement described above.  WT/DS591/2  
 
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As a result of these inconsistencies, Colombia 's measures, also appear to nullify or impair the 
benefits  accruing to the European Union, directly or indirectly, under the covered agreements.  
 
The European Union asks that this request for the establishment of a panel be placed on the agenda 
for the meeting of the Dispute Settlement Body to be held on 28 Febru ary 2020.  
 
 
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