WT/DS494/7  
 
1 September  2020 
(20-5934) Page: 1/11 
  Original: English  
  
 
EUROPEAN UNION – COST ADJUSTMENT METHODOLOGIES AND  CERTAIN  
ANTI -DUMPING MEASURES ON IMPORTS FROM RUSSIA (SECOND COMPLAINT)  
NOTIFICATION OF AN APPEAL BY THE E UROPEAN  UNION  UNDER ARTICLE 16.4 AND ARTICLE 17 .1  
OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE  
SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 28 August  2020,  from the delegation of the European  Union , 
is being circulated to Members.  
 
_______________  
 
Pursuant to Article  16.4 and Article  17.1 of the DSU the European  Union  hereby notifies to the 
Dispute Settlement Body its decision to appeal to the Appellate  Body certain issues of law covered 
in the Panel  Report and certain legal interpretations developed by the Panel in the dispute 
European  Union  – Cost Adjustment Methodologies and Certain Anti -Dumping Measures on Imports 
from Russia (Second Complaint) (WT/DS494/R). Pursuant to Rule  20(1) of the Working Proc edures 
for Appellate  Review , the European  Union  simultaneously files this Notice of Appeal with the 
Appellate  Body Secretariat.  
The European  Union  is restricting its appeal to those errors that it believes constitute serious errors 
of law or legal interpretation that need to be corrected. Non -appeal of an issue does not signify 
agreement therewith.  
For the reasons to be further elaborated in its su bmissions to the Appellate  Body, the 
Europea n Union appeals, and requests the Appellate  Body to reverse, modify, or declare moot and 
of no legal effect, the findings, conclusions, rulings and recommendations of the Panel, with respect 
to the following erro rs of law or legal interpretations contained in the Panel  Report :1 
1  THE ALLEGED "COST ADJUSTMENT METHODOLOGY " "AS SUCH " 
1.1  Existence, precise content, attribution, general and prospective application  
There is what may reasonably be described as a route through the decision tree of the Anti -Dumping 
Agreement that both parties and the Panel agree exists, since it results from the terms of the treaty 
and has been confirmed by the case law, consisting of t he following steps: normal value is to be 
established not on the basis of domestic sales, but costs of production; the records of the 
investigated firm do not reasonably reflect  the costs of production and sale of the investigated 
product for one or more i tems ( second condition  of the first sentence of Article  2.2.1.1 of the 
Anti-Dumping Agreement); the recorded cost is rejected; the investigating authority uses 
information from a third country; that information is adjusted so that it represents the costs o f 
production in the country of origin, without it being necessary to re -introduce the record previously 
rejected.  
 
1 Paragraph numbers provided in the following description of the legal errors of the Panel are intended 
to indicate the primary instance of the errors. These errors may also be reflected in or have consequences for 
other parts of the Panel  Report , and the E uropean  Union also appeals all findings and conclusions deriving from 
or relying on the appealed errors. The European  Union also emphasises that the paragraphs listed in this 
Notice  of Appeal comprise only an "indicative list", pursuant to Rule 20(2)(d)(ii i) of the Working Procedures for 
Appellate Review.  WT/DS494/7  
 
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  This same decision tree is re -stated in EU municipal anti -dumping law in certain provisions of the 
EU Basic Anti -Dumping Regulation that the P anel rightly found to be WTO consistent.  
If one were to hypothetically consider the repeated application of these provisions by a particular 
WTO Member in, for example, a dozen cases, one could categorise them in different ways. However, 
two categories are  relevant for the purpose of this appeal: those cases in which the "as applied " 
measure would be WTO consistent because it would comply with all of the above provisions; and 
those cases in which the "as applied " measure would be WTO inconsistent because th e second 
condition of the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement would have been 
wrongly applied (that is, the investigating authority would have found that a particular recorded cost 
does not reasonably reflect the cost associated  with the production and sale of the product under 
investigation, whereas in reality it did reasonably reflect such cost).  
Russia defined  its alleged measure (the so -called "cost adjustment methodology ") by describing 
the above route through the decision t ree (in both WTO law and EU law) and by adding an additional 
element: the alleged unlawful  application of the second condition  of the first sentence of 
Article  2.2.1.1 of the Anti -Dumping Agreement. Russia added this second element because otherwise 
Russia 's alleged measure would just consist of the above route through the decision tree, which 
would mean that once the Panel would have confirmed that the relevant provisions of the EU Basic 
Anti-Dumping Regulation were WTO consistent (which it rightly did), R ussia's "as such " claim would 
necessarily have to be dismissed, because no additional measure would exist. Furthermore, 
Russia's  own municipal anti -dumping law foresees the above route through the decision tree as 
lawful, which is why Russia was obliged to  add the alleged additional element of unlawfulness.  
Russia was alleging much more than the existence of one or more "as applied " cases falling into the 
second category outlined above. Russia was alleging, in effect, that the Commission has secretly 
legislated (or adopted a measure akin to legislation) in a manner that directly contradicts both the 
Anti-Dumping Agreement and the EU Basic Anti -Dumping Regulation. As Russia would have it, it is 
as if there exists, secretly, somewhere inside the Commission, a document that somehow directs 
that, even in cases where the records do reasonably reflect , the investigating authority must 
determine that the records do not reasonably reflect . This is an extremely serious allegation, 
calling into question the good faith of the European  Union . It is untrue. Manifestly, the facts referred 
to by the Panel are incapable of supporting such a legal characterisation.  
The consequence  that the Panel and Russia would appear to assume would be that the EU can 
never again follow the above particular route through the decision tree in a case relating to 
Russia  (Panel  Report , paragraph  7.37). That is manifestly incorrect. Each case depends on its facts. 
The European  Union  cannot be precluded in general and abstract terms from following a particular 
lawful path through the decision tree where that would be justified by the facts of a particular case.  
The Panel addressed the question of whether or not Russia had demonstrated  the existence and 
precise content of the alleged measure, as well as attribution and general and prospective 
application, in Section  7.2.2.3 of the Panel  Report . It is this Section as a whole, and particularly the 
conclusion in paragraph  7.64 that Russia had demonstrated the existence and precise content of the 
alleged measure (as well as attribution and general and prospective application), that contain legal 
errors in the application of the law to the facts.  
There are different facets of the Panel's lega l errors readily apparent from its analysis:  
• The Panel appears to have understood that Russia was required to demonstrate: existence; 
precise content; attribution; and general and prospective application. But the Panel has 
confounded  these distinct issues.  At paragraph  7.25 the Panel opines that existence is 
demonstrated by establishing precise content, attribution and general and prospective 
application. That is incorrect. These matters are distinct. A complainant might provide a 
precise description of its  alleged measure and a Panel might opine as to how the EU might act 
in the future. This is not the same thing as, and not to be equated with, existence. In the 
structure that follows, the Panel addresses precise content (7.2.2.3.1), attribution (7.2.2.3.2)  
and general and prospective application (7.2.2.3.3), but it never specifically and discretely 
addresses the central live issue (existence), before concluding that the alleged measure exists 
at paragraph  7.64. 
• In the description of the supposed precise con tent of the alleged measure as defined by Russia, 
the Panel toggles  between excluding  the element of unlawfulness  and including  it. At 
paragraph  7.28 it is excluded; at paragraph  7.30 and footnote 92 it is included; at WT/DS494/7  
 
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  paragraphs  7.44 and 7.57 it is again excluded. This alternation between one description and 
another is intolerable in what is supposed to be an analysis of "precise content ". 
• At paragraph  7.32 the Panel attempts to resolve this issue by "understanding Russia to mean " 
something "additional " and "unrelated " to the second condition in the first sentence of 
Article  2.2.1.1. However, the language used by the Panel ( "whether the recorded input prices 
are significantly low, or affected by government regulation or other situations considered by 
the in vestigating authorities as "distortions " in the country of origin ") is capable  of fitting 
within the four corners of the second condition, depending on the facts of a particular case. 
In this respect, it cannot be reasonably contested that the record that might fail the 
second  condition in the first sentence of Article  2.2.1.1 could be a record relating to an input 
cost. Nor can it be reasonably contested that such record might fail the requisite test because 
the amount is abnormally low, for example becaus e of the existence of a non -arm's length 
relationship between the investigated firm and the supplier of the raw material. Nor can it be 
reasonably contested that the supplier could be either a private entity or the State or an entity 
whose behaviour is att ributable to the State. The Anti -Dumping Agreement is concerned with 
whether or not dumping exists, as defined objectively by the treaty, not with the reasons why 
dumping might be occurring. Thus, the language used by the Panel does not disclose anything 
unlawful per se . Thus the Panel has not respected the central feature of the alleged measure 
as defined by Russia, namely the alleged additional element of unlawfulness.  
• The Panel has considered the existence of a number of "as applied " measures in itself  
sufficient  to establish the existence of an "as such " measure. This is apparent from 
paragraph  7.36 of the Panel  Report . This is incorrect.  
• In any event, such reasoning cannot be sustained when the measures referred to have not 
even been found to be WTO inconsistent (as is the case for all but one), especially when such 
inconsistency is part of the complainant's definition  of the alleged measu re. At 
paragraph  7.38 to 7.47 the Panel addresses 17 specific anti -dumping measures, but makes 
no finding that they are WTO inconsistent.2 
• When it comes to consider attribution  (at paragraph  7.48), the Panel opines that the "as 
applied " acts are attributa ble to the EU (which is true) and that they are "part of " the alleged 
"as such " measure. This is manifestly incorrect. Russia has never even alleged that the "as 
applied " acts are "part of " the alleged "as such " measure. Rather, Russia alleged that the "as 
applied " acts were instances of the application of the alleged "as such " measure. In doing so, 
Russia merely assumed the existence of the "as such " measure. As the EU explained to the 
Panel, the difficulty for Russia is that the alleged element of unlawfu lness was part of 
Russia's  own definition, but has not even been demonstrated with respect to the "as applied " 
measures (bar one, according to the Panel). The truth is that there was no evidence of 
attribution because the "as such " measure does not exist. The Panel was not entitled to avoid 
this truth through the manifestly erroneous device employed in paragraph  7.48. 
• At paragraph  7.54 the Panel has clearly misunderstood the concept of "general application ". 
If an exporting Member does a particular thing se veral times, and an investigating authority 
in an exporting Member reacts accordingly, it does not follow that there is a measure of 
"general application " with that precise content. The measures of general application are the 
provisions of the Anti -Dumping  Agreement and the EU Basic Anti -Dumping Regulation that set 
out the particular route through the decision tree. They are of general application because 
they always apply  to future fact patterns, leading to one outcome or the other. Several "as 
applied " measures do not amount to generality in this sense.  
 
2 The European  Union makes the following conditional  appeal. If the Appellate  Body considers that the 
Panel made findings of WTO -inconsistency with respect to the "as applied " measures (other than the "as 
applied " measure relating to welded tubes and pipes), for example (but not only) at paragraph 7.106 of the 
Panel  Report  (quod non ), then the European  Union appeals such findings, because these matters were clearly 
not within the Panel 's terms of reference . Such matters are not covered by the panel request and any such 
findings would therefore be inconsistent with Article  6(2) of the DSU, which requires a panel request to identify 
the specific measures at issue and provide a brief summary of the legal basis  of the complaint sufficient to 
present the problem clearly.  WT/DS494/7  
 
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  • The Panel has also clearly misunderstood the concept of "prospective " (at paragraph  7.55 
and following). It is correct that a particular outcome does not need to be certain; but the 
very essence of a measur e of prospective application is that it will be applied to all future fact 
patterns, leading to one outcome or another. In this context, referring to case law of the 
European Court of Justice, the Panel rightly rejects the proposition that in its definitio n of the 
alleged "as such " measure Russia has identified a "principle of EU law ", because it obviously 
has not (paragraph  7.61). However, the Panel also refers to the EU investigating authority 
relying on such case law. But the only things that have prospective application are the 
provisions of the Anti -Dumping Agreement and the EU Basic Anti -Dumping Regulation that 
trace the particular route through the decision tree; once again the Panel omits any reference 
to the alleged unlawful element of the mea sure as defined by Russia.  
The WTO treaties make it clear that dispute settlement proceedings must concern a "measure " of 
another Member. This is clear, notably, but not only, from Article  3.3 of the DSU, which uses the 
terms "measures taken by another Mem ber". As confirmed by the case law, a complainant must 
demonstrate that an alleged "measure " exists and what the precise content of such measure is 
supposed to be, as well as attribution to the defendant Member; and an alleged "as such " measure 
must also b e demonstrated to be of general and prospective application.  
For these reasons, the Panel's conclusions in paragraphs  7.64 (and 8.1(a)(i)) that Russia 
demonstrated existence, precise content, attribution and general and prospective application of the 
alleged "as such " measure, as defined by Russia, constitute legal errors in the application of the law 
(notably Article  3.3 of the DSU) to the facts, and should be reversed. Reversal on any one of these 
five requirements  would require reversal of the Panel's fi ndings on this "as such " claim in their 
entirety.  
Consequently , reversal on any one or more of these five issues would require the Panel's 
subsequent findings and conclusions regarding the supposed WTO -inconsistency of the alleged "as 
such" measure to also  be reversed or declared moot and of no legal effect (Section  7.2.4.3, in 
particular paragraph  7.107; Section  7.2.6.2, in particular paragraph  7.131; paragraphs  8.1(a)(ii) 
and 8.1(a)(iv)).  
1.2  The legal standard under the first sentence of Article  2.2.1.1 of t he Anti -Dumping 
Agreement  
The European  Union  appeals the Panel's statement of the legal standard under the first sentence of 
Article  2.2.1.1 of the Anti -Dumping Agreement set forth in Section  7.2.4.2 of the Panel  Report  (and 
referenced at paragraph  7.238) because it is incomplete . This amounts to an error in the 
interpretation of the law. The following circumstances may result in abnormal and unreliable data 
and may be relevant to the application of the first sentence of Article  2.2.1.1:  
• imports from a coun try which has a complete or substantially complete monopoly of its trade 
and where all domestic prices are fixed by the State;3 
• multiple currency practices that constitute a form of dumping by means of a partial 
depreciation of a country's currency, being practices by governments or sanctioned by 
governments;4  
• an absence of domestic sales;5 
• domestic sales not in the ordinary course of trade by reason of price;6 
• domestic sales not in the ordinary course of trade other than by reason of pr ice;7 
• domestic sales that are otherwise not comparable;8 
• a particular market situation;9 
 
3 GATT  1994, Article  VI:1, Ad Note to Paragraph 1, second paragraph.  
4 GATT  1994, Ad Note to Paragraphs 2 and 3, second paragraph.  
5 GATT  1994, Article  VI:1(b); Anti -Dumping Agreement, Article  2.2. 
6 GATT  1994, Article  VI:1(a); Anti -Dumping Agreement, Articles 2.1, 2.2 and 2.2.1.  
7 GATT  1994, Article  VI:1(a); Anti -Dumping Agreement, Articles 2.1 and 2.2.  
8 GATT  1994, Article  VI:1(a); Anti -Dumping Agreement, Article  2.1. 
9 Anti-Dumping Agreement, Article  2.2. WT/DS494/7  
 
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  • a low volume of domestic sales;10 
• a price to a third country that is not appropriate;11 
• a price to a third country that is not representative;12 
• a price to a third country that is not in the ordinary course of trade by reason of price;13 
• a price to a third country that is not in the ordinary course of trade other than by reason of 
price;14 
• a price to a third country that is otherwise not comparable;15 
• records that ar e not in accordance with the generally accepted accounting principles of the 
exporting country;16 
• records that do not reasonably reflect the costs associated with the production and sale of the 
product under consideration;17 
• records that do not suitably and sufficiently correspond to and reproduce those costs incurred 
by the investigated exporter or producer that have a genuine relationship with the production 
and sale of the specific product under consideration;18 
• records that are unreliable or inaccurate, or which do not capture all costs incurred, or which 
over- or understate the costs incurred, or which are not accurate and faithful within acceptable 
limits;19 
• non-arms-length transactions that affect the reliability of the reported costs;20 
• other practices that affect the reliability of the reported costs;21 
• cost allocations that have not been historically utilized by the exporter or producer;22 
• the use of inappropriate amortization and depreciation periods and allowances for capital 
expenditur es and other development costs; 23 
• non-recurring items of costs which benefit future and/or current production for which 
appropriate adjustments have not been made;24 
• circumstances in which costs during the period of investigation are affected by start -up 
operations for which appropriate adjustments have not been made;25 
• any differences affecting comparability for which due allowance has not been made;26 
 
10 Anti-Dumping Agreement, Article  2.2 and footnote 2.  
11 Anti-Dumping Agreement, Article  2.2. 
12 Anti-Dumping Agreement, Article  2.2. 
13 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.  
14 GATT  1994, Article  VI:1(b)(i); Anti -Dumping Agreement, Article  2.2. 
15 GATT  1994, Article  VI:1(b)(i); Anti -Dumping Agreement, Article  2.2. 
16 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.1.  
17 GATT  1994, Article  VI:1(b)(ii); Anti -Dumping Agreement, Article s 2.2 and 2.2.1.1. See also: 
Panel  Report , US – Softwood Lumber V, paras.  7.250 -324; Panel  Report , Egypt -Steel Rebar , para.  7.393; 
Panel  Report , EC-Salmon (Norway) , para.  7.481.  
18 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.56. 
19 Appellate  Body Report, paras.  6.56 (the Panel's interpretation does not conflict with the 
Appellate  Body's understanding) and 6.41; Panel  Report , EU – Biodiesel (Argentina) , para.  7.242 and 
footnote  400. 
20 Appellate  Body Report, paras.  6.56 (the Panel's interpretatio n does not conflict with the 
Appellate  Body's understanding) and 6.41; Panel  Report , EU – Biodiesel (Argentina) , para.  7.242 and 
footnote  400. See  also: Anti -Dumping Agreement, Article  2.3 ("association or a compensatory arrangement"); 
Appellate  Body Repor t, US – Hot-Rolled Steel , paras.  159-180. 
21 Appellate  Body Report, paras.  6.56 (the Panel's interpretation does not conflict with the 
Appellate  Body's understanding) and 6.41; Panel  Report , EU – Biodiesel (Argentina) , para.  7.242 and 
footnote  400. 
22 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.1.  
23 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.1.  
24 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.1.  
25 Anti-Dumping Agreement, Articles 2.2 and 2.2.1.1.  
26 GATT  1994, Article  VI:1 and 2; Anti -Dumping Agreement,  Article  2.4 and footnote 7.  WT/DS494/7  
 
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  • fluctuations in exchange rates (which must be ignored);27 
• sustained movements in exchange rates during t he period of investigation during the 
preceding 60 days;28 
• any other abnormal situation affecting comparability.29  
1.3  The application of the legal standard under the first sentence of Article  2.2.1.1 of the 
Anti-Dumping Agreement  
The European  Union  appeals the Panel's application of the legal standard under the first sentence of 
Article  2.2.1.1 contained in Section  7.2.4.3 and paragraphs  7.97 to 7.107 and 8.1(a)(ii) of the 
Panel  Report . In particular, the Panel was wrong to conclude that "the reasons underlying the 
rejection of the recorded costs under the Cost Adjustment Methodology are not distinguishable " from 
those considered in two prior "as applied " cases (para graph  7.101); and th at the alleged Cost 
Adjustment Methodology involves an assessment of the "reasonableness " of the relevant costs 
(para graph  7.102).  
1.4  The legal standard under Article  2.2 of the Anti -Dumping Agreement  
The European  Union  appeals the Panel's statement of the le gal standard under Article  2.2 of the 
Anti-Dumping Agreement set forth in Section  7.2.6.2 of the Panel  Report  because it is incomplete . 
This amounts to an error in the interpretation of the law. The Panel should have included a statement 
to the effect that , in adjusting information or data from a third country, an investigating authority is 
not required to re -use data or information that has already been lawfully rejected, or to return to a 
calculation or outcome that is the same as the calculation or outco me that would result from the use 
of such lawfully rejected data or information. The Panel should not have dismissed this aspect of the 
legal standard as "irrelevant ", as it did in paragraph  7.130 (which paragraph is included in this 
appeal).  
The European  Union  also appeals the Panel's statement that the making of any such adjustment 
would not depend on whether such adjustments have been invoked and justified by the investigated 
companies (paragraph  7.129).  
1.5  The application of the legal standard under Articl e 2.2 of the Anti -Dumping 
Agreement  
The European  Union  appeals the Panel's application of the legal standard under Article  2.2 of the 
Anti-Dumping Agreement contained in Section  7.2.6.3 and paragraphs  7.124 to 7.131 and 8.1(a)(iv) 
of the Panel  Report . In p articular, although the Panel is supposed to be addressing the alleged "as 
such" measure, it conducts its assessment by reference to the "as applied " measures 
(para graph  7.124, final sentence). The Panel asserts that there is no explanation  about how out -
of-country information is adjusted to reflect costs in the country of origin. However, it is entirely 
surreal for Russia to define an alleged measure (which does not exist) as not including something; 
and for the Panel to then find that the absence (or non -existence) of that something makes the 
alleged measure WTO inconsistent. There is no "as such " explanation because there is no "as such " 
measure. In the "as applied " measures the European  Union  explains that it uses out -of-country 
information as a proxy for the costs in the country of origin, which is then adjusted to remove 
elements specific to the third country (such as tax) resulting, by definition, in a proxy for the cost in 
the country of o rigin. The European  Union  is not required to adjust back to data that has been 
properly rejected.  
The Panel should have included a statement to the effect that, in adjusting information or data from 
a third country, an investigating authority is not requir ed to re -use data or information that has 
already been lawfully rejected, or to return to a calculation or outcome that is the same as the 
calculation or outcome that would result from the use of such lawfully rejected data or information. 
The Panel should  not have dismissed this aspect of the legal standard as "irrelevant ", as it did in 
paragraph  7.130 (which paragraph is included in this appeal).  
 
27 Anti-Dumping Agreement, Article  2.4.1.  
28 Anti-Dumping Agreement, Article  2.4.1.  
29 GATT  1994, Article  VI:1 and 2; Anti -Dumping Agreement, Articles 2.1, 2.2 and 2.4.  WT/DS494/7  
 
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  The European  Union  also appeals the Panel's statement that the making of any such adjustment 
would not depend on whether such adjustments have been invoked and justified by the investigated 
companies (paragraph  7.129).  
2  CLAIMS CONCERNING THE ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN 
WELDED TUBES AND PIPES  
2.1  Claim of inconsistency with the first sentence of Article  2.2.1.1 of the Anti -Dumping 
Agreement  
The European  Union  appeals the Panel's findings that the measure at issue is inconsistent with the 
first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement contained in Sections  7.6.2.2 
and 7.6.2.3 and paragraph s 7.238 to 7.253 and 8.1(f)(i) of the Panel  Report . These findings are 
vitiated by the same errors of interpretation and application that the Panel has committed in its 
assessment of the alleged "as such " measure. The European  Union  correctly applied the r elevant 
provision in the measure at issue. The European  Union  did not apply a standard of "reasonableness " 
(para graph s 7.242 to 7.243). The nature of the government measure was different from that in 
EU - Biodiesel (Argentina)  (para graph  7.246). The Panel has failed to properly appreciate the 
documents associated with Russia's Accession to the WTO (para graph  7.251).  
2.2  Claim of inconsistency with Article  2.1.1 of the Anti -Dumping Agreement  
The European  Union  appeals the Panel's findings that the measure at iss ue is inconsistent with 
Article  2.1.1 of the Anti -Dumping Agreement contained in Sections  7.2.5.7 and 7.2.5.8 and 
paragraphs  7.259 to 7.262 and 8.1(f)(ii) of the Panel  Report . These findings are vitiated by the same 
errors of interpretation and application  that the Panel has committed in its assessment of the alleged 
"as such " measure. They are also grounded in and essentially consequential to the Panel's erroneous 
findings with respect to the preceding matter.  
2.3  Claim of inconsistency with Article  11.3 of th e Anti -Dumping Agreement  
The European  Union  appeals the Panel's findings that the measure at issue is inconsistent with 
Article  11.3 of the Anti -Dumping Agreement contained in Section  7.6.4 and paragraphs  7.263 to 
7.274 and 8.1(f)(iii) of the Panel  Report . These findings are vitiated by the same errors of 
interpretation and application that the Panel has committed in its assessment of the alleged "as 
such" measure. They are also grounded in and essentially consequential to the Panel's erroneous 
findings with respect to the two preceding matters.  
3  CLAIMS CONCERNING THE ANTI -DUMPING MEASURES ON IMPORTS OF AMMONIUM 
NITRATE FROM RUSSIA ( "THE AN MEASURES ") 
3.1  The Preliminary Ruling of the Panel (Annex D -1 of the Report)  
Unconditional appeals against the Preli minary Ruling  
The European  Union  unconditionally appeals the Panel's Preliminary Ruling that, in respect of claim 
#2 against the AN measures, the panel request meets the requirements of Article  6.2 of the DSU.30 
By this ruling, the Panel erred in the inter pretation and application of Article  6.2 of the DSU.  
The Panel erred in the interpretation  of Article  6.2 of the DSU by conflating the two distinct 
requirements to identify the "specific measures at issue " and to "provide a brief summary of the 
legal basis of the complaint sufficient to present the problem clearly ". The Panel, in essence, found 
that a panel request can identify the specific measure at issue by indicating the legal basis of the 
complaint. Under the Panel's approach, the respondent is re quired to guess, on the basis of the 
claims , which measure  or which aspects of the measure are being challenged.31 
 
30 Annex D -1, paras.  4.38 and 5.1.  
31 Annex D -1, paras.  4.30 – 4.32 (in particular, para. 4.31: "We read this as indicating that while the 
simple listing of provisions of the WTO Agreements is normally not sufficient to "present the problem clearly", 
the obligation contained in a particular provision may nevertheless be sufficiently specific, to allow the 
defendant to understand what is at stake and to prepare its defence. ").  WT/DS494/7  
 
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  Furthermore, the Panel erred in the application  of Article  6.2 of the DSU. When applying its flawed 
interpretation of Article  6.2, specifical ly with respect to the requirement to identify the specific 
measures at issue, the Panel accepted that the measure at issue can be identified simply as the 
"initiation " of an expiry review (a required step in any expiry review), without any indication 
whatsoever of any aspect of such initiation that is said to give rise to a WTO -inconsistency, and that 
the absence of any such indication can be remedied by reference to the legal claims made in the 
panel request and/or the first written submission.32  
Conditi onal appeals against the Preliminary Ruling  
Next, the European  Union  appeals several further aspects of the Panel's Preliminary Ruling 
conditionally . This part of the appeal is conditioned upon a finding of WTO -inconsistency with respect 
to the relevant cl aim, based on any appeal by Russia. In the following paragraphs, the 
European  Union indicates the specific aspects of the Preliminary Ruling subject to conditional appeal, 
as well as the relevant claims.  
First, with respect to claims #1, #9 and #17 against  the AN measures, the Panel erred in the 
application of Articles 4.4 and 6.2 of the DSU.  
Specifically, the Panel erred by finding that the following forms part of its terms of reference:  
1. Claim #1 (which is a claim dealing specifically with the product sco pe of the measures 
at issue) to the extent that it relates to IGAN, a set of products not mentioned at all in 
Russia's consultation request;  
2. Claim #9, to the extent that it encompasses Article  6.10 of the Anti -Dumping 
Agreement, a provision that was not mentioned in Russia's consultation request at all;  
3. Claim #17, to the extent that it encompasses Article  6.2 of the Anti -Dumping 
Agreement, a provision that was not mentioned in Russia's consultation request at all.  
With respect to each of these aspects of the Preliminary Ruling, the Panel erred in finding that certain 
elements of Russia's case formed part of the measures at issue and/or of the legal basis of the 
complaint despite agreeing with the European  Union  that those elements were not mentioned in 
Russia's consultations request at all.33 Furthermore, the Panel erred by simply assuming, without 
requiring any factual basis for such assertion or assumption, that these elements "reasonably 
evolved " during the consultations.34 With respect to the expansion of claim #1 to IGAN, the Panel 
also erred by finding that there is no change in the essence of the dispute, despite the fact that the 
very essence of claim #1 is the investigating authority's alleged extension of the scope of the 
measures to certain produc ts.35 With respect to the expansion of claim #9 to Article  6.10, the Panel 
erred by finding that the dispute can be expanded to Article  6.10, not mentioned in the consultations 
request, on the mere basis that the Article  6.10 claim is "closely connected to  the other claims made 
by Russia " and that "the issue in dispute and the factual circumstances leading to the alleged 
violation appear closely connected ".36 With respect to the expansion of claim #17 to Article  6.2, the 
Panel similarly erred by finding tha t the addition of Article  6.2 does not change the essence of the 
dispute on the mere basis that the obligations in Article  6.2 are "closely related " to those in 
Articles  6.1.3 and 6.4.37  
Through these errors, the Panel permitted Russia to unlawfully expan d the scope of the dispute, in 
violation of the requirements of Article  4.4. and 6.2 of the DSU.  
 
32 Annex D -1, paras.  4.36 – 4.38. 
33 The Panel agreed that these elements were not present in the consultations request: Annex D -1, 
paras.  3.7 (claim #1 and IGAN), 3.24 (claim #9 and Article  6.10) and 3.35 (claim #17 and Article  6.2). 
Nevertheless, the Panel  concluded that they are within its terms of reference: Annex D -1, paras.  3.10 (claim 
#1 and IGAN), 3.25 (claim #9 and Article  6.10), and 3.39 (claim #17 and Article  6.2), as well as para.  5.1.  
34 Annex D -1, paras.  3.9 and 3.10 ( claim #1 and IGAN ), 3.19 -3.22 and 3.25 (claim #9 and 
Article  6.10), 3.39 (claim #17 and Article  6.2). 
35 Annex D -1, para.  3.8. 
36 Annex D -1, para.  3.24. 
37 Annex D -1, paras.  3.37-3.39. WT/DS494/7  
 
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  3.2  Claim #2 (alleged failure to ensure that the expiry review request was duly 
substantiated, in violation of Article  11.3 of the Anti -Dumping Agreement)  
When fin ding, in respect of Russia's claim #2 against the AN measures, that the European  Union  
breached Article  11.3 of the Anti -Dumping Agreement "by failing to verify whether the constructed 
normal value included in the request was based on the cost of productio n in the country of origin, 
and, as a consequence, by failing to ensure that the review request was duly substantiated ",38 the 
Panel erred in the application of Article  11.3 of the Anti -Dumping Agreement.  
The Panel erred by finding that, in order to ensure  that the expiry review request was duly 
substantiated, the Commission was required to determine and indicate, in the notice of initiation, 
whether the normal value calculated by the applicant and put forward in its expiry review request 
was based on the c ost of production in the country of origin, regardless of the relevance of that 
calculation to the Commission's assessment of the likelihood of recurrence of dumping.  
In doing so, the Panel read into Article  11.3 a requirement that is not there (i.e. a re quirement to 
elaborate on certain questions in the notice of initiation). Furthermore, the Panel contradicted its 
own correct statement of the legal standard under Article  11.3, according to which an expiry review 
request "is not required to demonstrate, a s a certainty, that if the measures were to lapse, dumping 
and injury would be likely to recur or continue. "39 For the Panel, in order to ensure that the expiry 
review request was duly substantiated, the Commission was required, at the initiation stage, to 
agree with each affirmation provided in the application and provide a reasoned explanation for each 
such agre ement. Thus, the Panel conflated the evidentiary requirements imposed at the stage of 
initiation with those imposed at the stage of the final determination.  
The Panel further erred by failing to even address the relevance of the dumping margin calculations  
submitted by the applicant to the Commission's decision to initiate the expiry review. The Panel 
simply assumed that "the European Commission accepted as evidence of "dumping" and "likelihood 
of recurrence of dumping" the calculation made by the petitione rs"40 and that thereby the 
Commission chose "to rely on assumptions made by the applicant. "41 This approach plainly 
contradicts the Panel's own finding that "there was no dumping margin calculation made in the 
course of the expiry review ".42 Given that, as the Panel itself found, the Commission's likelihood 
determination was not at all based on a dumping margin calculation (including a calculation of a 
constructed normal value in Russia), the Panel was, at the very least, wrong to assume that  a 
dumping margin calculation provided by the application was relevant to the Commission's decision 
to initiate the expiry review.  
Finally, the Panel erred by failing to explain why, even assuming arguendo  that the applicants' 
dumping margin calculation w as relevant to the Commission's decision to initiate the expiry review, 
it was necessary for the Commission to determine (and explain in the notice of initiation), already 
at the stage of initiation, that that calculation was based on the cost of productio n in the country of 
origin.  
3.3  Claim #16 (alleged delays in making available evidence presented in writing by 
interested parties in violation of Article  6.1.2 of the Anti -Dumping Agreement)  
The Panel erred in the interpretation and application of Article  6.1.2 of the Anti -Dumping Agreement 
by finding that the obligation to make promptly available "evidence presented in writing by one 
interested party " includes an obligation to promptly provide "access to file ", in the abstract, 
regardless of any specific evid ence.43 In other words, the Panel concluded that Article  6.1.2 can be 
infringed by an alleged delay in providing "access to file " even when the alleged delay does not 
concern any specific evidence, indeed even when no (new) evidence has been submitted by a n 
interested party at all.  
 
38 Paras. 7.349 and 8.1 (g) (ii).  
39 Para. 7.333.  
40 Para. 7.346.  
41 Para. 7.348.  
42 Paras. 7.525 – 7.528.  
43 Paras. 7.612 -7.615.  WT/DS494/7  
 
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  Furthermore, the Panel erred in the interpretation and application of Article  6.1.2 of the 
Anti-Dumping Agreement by failing to examine or take into account, when deciding whether or not 
the evidence was "made available promptly ", the fact that the interested parties were able to make 
presentations shortly after receiving the evidence at issue,44 and thereby failing to give proper weight 
to the context of the proceeding in question and to the opportunities for the parties to parti cipate in 
the investigation after the evidence has become available.45  
In addition, the Panel failed to make an objective assessment of the facts when agreeing with 
Russia's four individual claims of violation of Article  6.1.2 of the Anti -Dumping Agreemen t, for the 
following reasons:  
- The Panel incorrectly counted, as part of the alleged delays, periods between the insertion 
of documents on the non -confidential file and the interested parties' actual consultation of 
those documents, which is not attributabl e to the Commission.46 For example, the Panel 
counted the second alleged delay from RFPA's request to access the file to RFPA's actual 
consultation of the file;47  
- The Panel reversed the burden of proof by requiring the European  Union  to demonstrate 
which parts of the alleged delays should be attributed to the interested parties; 48 
- With respect to the first alleged instance of delay, the Panel failed to take into account the 
actual possibilities of obtaining access to the two submissi ons at issue (dated 10 and 
20 March) at the time of the initial request to access the file (10  March). Specifically, had 
access been granted in the week of 10  March, neither of those two submissions could have 
been included in the non -confidential file at that time.49 
- The Panel found delays in making evidence available to the interested parties even though 
no evidence had been identified by Russia at all;50 
- For the third and fourth alleged instances of delay, the Panel incorrectly, and with no basis 
in the evidence, equated RFPA's actual consultation of the relevant submission with the date 
of the insertion of the submission in the non -confidential file. The Panel also improperly 
counted the alleged delay from the date of the submission, and not from the dat e when the 
Commission received the submission.51 
- For the fourth alleged delay, the Panel ignored the undisputed fact that the relevant 
submission (dated 12  May, received 14  May) was not yet even received by the Commission 
on the date of RFPA's first consul tation of the non -confidential file (13  May).52 
3.4  Claim #17 (alleged failure to make the full text of the petition available to the 
interested parties upon initiation of the expiry review in violation of Article  6.1.3 of the 
Anti-Dumping Agreement)  
The Panel erred in the interpretation and application of Article  6.1.3 of the Anti -Dumping Agreement 
when finding that the European  Union did not comply with its obligation to make the full text of the 
petition available to the interested parties upon initiati on of the expiry review.53  
First, the Panel erred in the interpretation of Article  6.1.3 by finding that the disclosure obligation 
contained therein refers to a specific document (a certain version of the expiry review request), as 
opposed to the "text", i.e. the textual content, of the initiation request.54  
 
44 Section  7.7.6.1.2.  
45 Panel  Report , EU – Footwear (China) , para.  7.583.  
46 Paras.  7.609 -7.611.  
47 Para. 7.609 (b).  
48 Para. 7.609 (b).  
49 Para. 7.609 (a).  
50 Paras.  7.609 (b), 7.612 – 7.615.  
51 Para. 7.609 (c).  
52 Para. 7.609 (c).  
53 Paras. 7.625, 8.1. (g) (xiii).  
54 Para. 7.624.  WT/DS494/7  
 
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  Second, the Panel erred in the application of Article  6.1.3 because it found that the document that 
the Commission was required to make available was the version of the petition dated 28  March  2013, 
regardless of whether or not this document was relied upon by the Commission in order to initiate 
the expiry review. Strikingly, the Panel made this finding even though it agreed with the 
European  Union  that "the 'request' which needs to be disclosed under Article  6.1.3, and which 
constitutes the 'relevant' information that was actually 'used' by the authority within the meaning of 
Article  6.4, is the request on the basis of which the expiry review was initiated."55 
_______________  
In the event of a cross-appeal by Russia, the European  Union  reserves the right, in addressing any 
such cross -appeal, to disagree with any statement in the Panel  Report  made in the context of a 
matter on which the European  Union  prevailed.  
In commencing this appeal, in acco rdance with Article  16(4) of the DSU and Rule 20(1) of the 
Working Procedures for Appellate Review, the European  Union  is aware that, as a matter of fact, 
temporarily, there are currently an insufficient number of Appellate  Body Members to constitute a 
division due to the obstruction of appointments by the United  States . In these circumstances, the 
European  Union  stands ready, as it will always stand ready, to move, together with the 
Russian  Federation, to final resolution of the dispute in appeal proceedin gs pursuant to Article  25 of 
the DSU, on a reciprocal basis, based on the Multiparty Interim Arrangement (MPIA) and an 
arbitration agreement as set forth in the standard agreed default procedures contained in Annex 1 
of the MPIA.56 
In these exceptional cir cumstances, and in the interests of fairness and orderly procedure in the 
conduct of the appeal, in accordance with Rule 16(1) and (2) of the Appellate  Body Working 
Procedures, the European  Union  will await further instructions from the division, when it m ay 
eventually be composed, or the Appellate  Body, regarding any further steps to be taken by the 
European  Union  in this appeal.57  
 
__________  
 
 
55 Paras. 7.623 -7.624 and footnote 956.  
56 JOB/DSB/1/Add.12, 30 April 2020.  
57 Absent which, this document is deemed to also be the EU appellant submission.