WT/DS578/R  
27 July 2021 
(21-5786) Page: 1/89 
 Original:  French  
 
  
MOROCCO - DEFINITIVE ANTI -DUMPING MEASURES  
ON SCHOOL EXERCISE BOOKS FROM TUNISIA  
FINAL REPORT OF THE PANEL  
BCI redacted, as indicated [[***]]  
 
  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  TABLE OF CONTENTS  
1  INTRODUCTION  ................................ ................................ ................................ .........  12 
1.1  Tunisia's complaint  ................................ ................................ ................................ .... 12 
1.2  Establishment and composition of the Panel  ................................ ................................ .. 12 
1.3  Panel proceedings  ................................ ................................ ................................ ..... 12 
1.3.1  General  ................................ ................................ ................................ .................  12 
1.3.2  Preliminary ruling  ................................ ................................ ................................ ... 13 
2  FACTUAL ASPECTS  ................................ ................................ ................................ ..... 14 
2.1  The measures at issue  ................................ ................................ ...............................  14 
3  PARTIES'  REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................ . 14 
4  ARGUMENTS OF THE PARTIES  ................................ ................................ ....................  17 
5  ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ .........  17 
6  INTERIM REVIEW  ................................ ................................ ................................ ....... 17 
7  FINDINGS  ................................ ................................ ................................ ..................  18 
7.1  General principles regarding treaty interpretation, the applicable standard of re view 
and burden of proof  ................................ ................................ ................................ .........  18 
7.1.1  Treaty interpretation  ................................ ................................ ...............................  18 
7.1.2  Stand ard of review  ................................ ................................ ................................ .. 18 
7.1.3  Burden of proof  ................................ ................................ ................................ ...... 19 
7.2  Tunisia's claims concerning dumping  ................................ ................................ ............  19 
7.2.1  Tunisia's claims concerning the construction of the normal value of certain models 
of exercise books  ................................ ................................ ................................ .............  23 
7.2.1.1   Whether the reasonable amount for profits was calculated in a manner 
consistent with Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement  ..............................  23 
7.2.1.1.1   Introduction  ................................ ................................ ................................ ..... 23 
7.2.1.1.2   Analysis  ................................ ................................ ................................ ...........  24 
7.2.1.1.2.1   Has Tunisia established that the amount used by MIICEN as a reasonable 
amount for profits was inconsistent with Articles  2.2 and 2.2.2 of the Anti -Dumping 
Agreement?  ................................ ................................ ................................ ....................  24 
7.2.1.1.2.2   Has Tunisia established a consequential violation of Article 2.1?  ............................  26 
7.2.1.1.3   Conclusion on the reasonable amount for profits  ................................ ....................  27 
7.2.1.2   Whether excluding sales of su bsidized numbered and watermarked exercise 
books from the establishment of the reasonable amount for profits was inconsistent with 
Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement  ................................ ....................  28 
7.2.1.2.1   Introduction  ................................ ................................ ................................ ..... 28 
7.2.1.2.2   Analysis  ................................ ................................ ................................ ...........  29 
7.2.1.2.2.1   Has Tunisia established that excluding sales of subsidized numbered and 
watermarked exercise books from the establishment of the reasonable amount for profits 
was inconsistent with Articles  2.2 and 2.2.2 of the Anti -Dumping Agreement?  ..........................  29 
7.2.1.2.2.2   Has Tunisia established a consequential violation of Article  2.1? ............................  32 
7.2.1.2.3   Conclusion on the decision to exclude numbered and watermarked exercise 
books  ................................ ................................ ................................ .............................  32 
7.2.1.3   Whether including the distribution cost in the constructed normal value was 
inconsistent with Articles  2.1 and 2.2 of the Anti -Dumping Agreement  ................................ ..... 32 WT/DS578/R  
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  7.2.1.3. 1  Introduction  ................................ ................................ ................................ ..... 32 
7.2.1.3.2   Analysis  ................................ ................................ ................................ ...........  33 
7.2.1.3.2.1   Has Tunisia establi shed that the normal value constructed by MIICEN was 
inconsistent with Article  2.2 of the Anti -Dumping Agreement?  ................................ ................  33 
7.2.1.3.2.2   Has Tunisia established a consequential violation of Article  2.1? ............................  35 
7.2.1.3.3   Conclusion on the inclusion of distribution costs in the constructed normal 
value  ................................ ................................ ................................ .............................  35 
7.2.2  Tunisia's claims concerning fair comparison  ................................ ................................  35 
7.2.2.1   Whether the determination concernin g licences as a factor affecting price 
comparability was inconsistent with Articles 2.1, 2.4 and 12.2.2 of the Anti -Dumping 
Agreement  ................................ ................................ ................................ ......................  35 
7.2.2.1.1   Introduction  ................................ ................................ ................................ ..... 35 
7.2.2.1.2   Analysis  ................................ ................................ ................................ ...........  36 
7.2.2.1.2.1   Tunisia's claim under Article  2.4 of the Anti -Dumping Agreement  ...........................  36 
7.2.2.1.2.1.1 Did MIICEN indicate to SOTEFI what information was necessary to ensure a 
fair comparison?  ................................ ................................ ................................ ..............  37 
7.2.2.1.2.1.2 For its part, did SOTEFI "demonstrate" that licences affected price 
comparability?  ................................ ................................ ................................ .................  38 
7.2.2.1.2.1.3 Conclusion on consistency with Article 2.4  ................................ ........................  39 
7.2.2.1.2.2   Tunisia's claim under Article 2.1 of the Anti -Dumping Agreement  ...........................  39 
7.2.2.1.2.3   Tunisia's claim under Article 12.2.2 of the Anti -Dumping Agreement  ......................  40 
7.2.2.1.3   Conclusion on licences  ................................ ................................ .......................  41 
7.2.2.2   Whether the mathematical formula used by MIICEN to calculate the margin of 
dumping was inconsistent with Articles 2.1 a nd 2.4 of the Anti -Dumping Agreement  ..................  41 
7.2.2.2.1   Introduction  ................................ ................................ ................................ ..... 41 
7.2.2. 2.2  Analysis  ................................ ................................ ................................ ...........  42 
7.2.2.2.2.1   The mathematical formula used by MIICEN was erroneous  ................................ ... 43 
7.2.2.2.2.2   Does the fair comparison principle apply to the formula used to calculate the 
margin of dumping?  ................................ ................................ ................................ .........  44 
7.2.2.2.2.3   Does the calculation error made by MIICEN violate Article 2.4 of the 
Anti-Dumping Agreement?  ................................ ................................ ................................  45 
7.2.2.2.2.4   Does the calculation error made by MIICEN violate Article 2.1 of the 
Anti-Dumping Agreement?  ................................ ................................ ................................  46 
7.2.2.2.3   Conclusion  on the mathematical formula  ................................ ...............................  47 
7.3  Tunisia's claims regarding the determination of injury  ................................ .....................  47 
7.3.1  Whether MIICEN examined the effects of imports on the price of the domestic 
product in a manner inconsistent with Article 3.1 and the second sentence of Article 3.2 
of the Anti -Dumping Agreement  ................................ ................................ .........................  47 
7.3.1.1   Introduction  ................................ ................................ ................................ ........  47 
7.3.1.2   Analysis  ................................ ................................ ................................ ..............  48 
7.3.1.2.1   Applicable requirements of Article 3.1  and the second sentence of Article 3 .2 of 
the Anti -Dumping Agreement  ................................ ................................ ............................  48 
7.3.1.2.2   Was MIICEN's consideration of price undercutting consistent with Articles 3.1 
and 3.2 of the Anti -Dumping Agreement?  ................................ ................................ ............  49 
7.3.1.2.3   Was MIICEN's examination of price depression objective and based on positive 
evidence?  ................................ ................................ ................................ .......................  54 WT/DS578/R  
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  7.3.1.2.4   Was MIICEN's consideration of price suppression objective and based on 
positive evidence?  ................................ ................................ ................................ ............  56 
7.3.1.3   Conclusion  on the examination of the effects of imports on prices  ...............................  59 
7.3.2  Whether MIICEN objectively considered the volume of Tunisian imports in relation 
to domestic production and consumption of exercise books  ................................ ....................  59 
7.3.3  Whether MIICEN  examined objecti vely the state of the domestic industry  .......................  61 
7.3.3.1   Introduction  ................................ ................................ ................................ ........  61 
7.3.3.2   Analysis  ................................ ................................ ................................ ..............  61 
7.3.3.2.1   Applicable requirements of Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement  ................................ ................................ ................................ ......................  61 
7.3.3.2.2   Was the analysis of the domestic industry's sales and market share objective?  ...........  62 
7.3.3.2.3   Was the analysis of t he domestic industry's production objective?  ............................  64 
7.3.3.2.4   Was the analysis of the profitability of the domestic industry objective?  ....................  67 
7.3.3.3   Conclusion on the examination of the state of the domestic industry  ............................  70 
7.4  Tunisia's claims regarding the causation determination  ................................ ...................  70 
7.4.1  Introduction  ................................ ................................ ................................ ...........  70 
7.4.2  Analysis  ................................ ................................ ................................ ................  71 
7.4.2.1   Applicable requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement  ...........  71 
7.4.2.2   Was the causation examination, based on the flawed analyses of the imports' 
price effects and of the injury indicia, inconsistent with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement?  ................................ ................................ ................................  71 
7.4.2.3   Did MIICEN act inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement by failing to examine the effects of competition from Imprimerie Moderne on 
the dom estic industry?  ................................ ................................ ................................ ..... 72 
7.4.3  Conclusion on the causation examination  ................................ ................................ ... 74 
7.5  Claims by Tunisia concerning the initiation of the investigation  ................................ .........  74 
7.5.1  Introduction  ................................ ................................ ................................ ...........  74 
7.5.2  Analysis  ................................ ................................ ................................ ................  76 
7.5.2.1   Applicable requirements of Article 5.2 of the Anti-Dumping Agreement  ........................  77 
7.5.2.2   Applicable requirements of Article 5.3 of the Anti -Dumping Agreement  ........................  78 
7.5.2.3   Applicable requirements of Article 5.8 of the Anti -Dumping Agreement  ........................  79 
7.5.2.4   Conclusion on the standard of review applicable in this dispute  ................................ ... 79 
7.5.2.5   Application of the standard of review to the facts raised by the parties  .........................  80 
7.5.2.5.1   Did MIICEN's examination of the export price evidence comply with the 
provisions of Article 5 .3? ................................ ................................ ................................ ... 81 
7.5.2.5.2   Did MIICEN's examination of the normal value evidence comply with the 
provisions of Article 5.3?  ................................ ................................ ................................ ... 84 
7.5.3  Conclusion  ................................ ................................ ................................ .............  87 
8  CONCLUSIONS AND RECOMMENDATIONS  ................................ ................................ .. 87 
 WT/DS578/R  
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  LIST OF ANNEXES  
 
ANNEX A  
PANEL DOCUMENTS  
 Table of contents  Page No.  
Annex A -1 Working Procedures of the Panel  4 
Annex A -2 Additional Working Procedures of the Panel Concerning  Business 
Confidential Information  11 
Annex A -3 Preliminary Ruling by the Panel  13 
Annex A -4 Interim Review  25 
ANNEX B  
ARGUMENTS OF THE PARTIES  
 Table of contents  Page No.  
Annex  B-1 Integrated executive summary of the arguments of Tunisia  33 
Annex  B-2 Integrated executive summary of the arguments of Morocco  58 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
 Table of contents  Page No.  
Annex C -1 Integrated executive summary of the arguments of Canada  81 
Annex C -2 Integrated executive summary of the arguments of the United States  84 
Annex C -3 Integrated executive summary of the arguments of Japan  87 
Annex C -4 Integrated executive summary of the arguments of the European Union  91 
  WT/DS578/R  
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from Brazil , 
WT/DS241/R , adopted 19 May 2003  
Canad a – Wheat 
Exports and Grain 
Imports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27 Septem ber 2004  
EC – Tube or Pipe 
Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , adopted 18 August 
2003 
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  
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 
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 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on Imports 
of Cotton -Type Bed Linen from India , WT/DS141/AB/R , adopted 12 March 2001  
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/DS141/AB/R  
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23 July 1998  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat-Rolled Electrical Steel from the United States , WT/DS414/AB/R , 
adopted 16 November 2012  
China – GOES  Panel Report, China – Countervailing and Anti -Dumping Duties on Grain Oriented 
Flat-Rolled Electrical Steel from the United States , WT/DS414/R  and Add.1, 
adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R  
China – X-Ray 
Equipment  Panel Report, China – Definitive Anti -Dumping Duties on X -Ray Security Inspection 
Equipment from the European Union , WT/DS425/R  and Add.1, adopted 24 April  
2013 
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United Stat es, WT/DS440/R  and Add.1, adopted 18 June 
2014 
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  
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  
China – Cellulose Pulp  Panel Report, China - Anti-Dumping Measures on Imports of Cellulose Pulp from 
Canada , WT/DS483/R  and Add.1, adopted 22 May 2 017 
China — Broiler 
Products (Article  21.5 
– US) Panel Report, Anti-Dumping and 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 Fe bruary 2018  
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  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain Corrosion -
Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  and Corr.1, 
adopted 19 December 2002  WT/DS578/R  
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  US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot -
Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 23 August 2001  
US – Softwood 
Lumber V  Panel Report, United States – Final Dumping Determination on Softwood Lumber 
from Canada , WT/DS264/R , adopted 31 August 2004, as  modified by Appellate 
Body Report WT/DS264/AB/R  
US – Softwood 
Lumber V (Article 21.5 
– Canada)  Appellate Body Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , 
WT/DS264/AB/RW , adopted 1 Sept ember 2006  
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/AB/RW , adopted 9 May 2006, and Corr.1  
US – Countervailing 
Duty Investigation on 
DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2 005 
US – COOL  Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/AB/R  / WT/DS386/AB/R , adopted 23 July 2 012 
US – Orange Juice 
(Brazil)  Panel Report, United States – Anti-Dumping Administrative Reviews and Other 
Measures Related to Imports of Certain Orange Juice from Brazil , WT/DS382/R , 
adopted 17 June 2011  
US – OCTG (Korea)  Panel Report, United States – Anti-Dumping Measures on Certain Oil Country 
Tubular Goods from Korea , WT/DS488/R  and Add.1, adopted 12 January 2018  
US – Zeroing (EC)  Panel Report, United States – Laws, Regulations and Methodology for Calculating 
Dumping Margins ("Zeroing") , WT/DS294/R , adopted 9 May 2006, as modified by 
Appellate Body Report WT/DS294/AB/R  
US – Zeroing (Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/AB/R , adopted 23 January 2007  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/AB/R , 
WT/DS178/AB/R , adopted 16 May 2001  
US – Poultr y (China)  Panel Report, United States – Certain Measures Affecting Imports of Poultry from 
China , WT/DS392/R , adopted 25 October 2010  
Guatemala – Cement 
II Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R , adopted 17 November 2000  
India – Agricultural 
Products  Panel Report, India – Measures Concerning the Importation of Certain Agricultural 
Products , WT/DS430/R  and Add.1, adopted 19 June 2015, as modified by Appellate 
Body Report WT/DS430/AB/R  
Japan – DRAMs 
(Korea)  Panel Report, Japan – Countervailing Duties on Dynamic Random Access Memories 
from Korea , WT/DS336/R , adopted 17 December 2007, as modified by Appel late 
Body Report WT/DS336/AB/R  
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 
Mexico – Anti-
Dumping Measures on 
Rice Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, as 
modified by Appellate Body Report WT/DS295/AB/R  
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United  States – Recourse to Article 21.5 of the DSU by the 
United States , WT/DS132/AB/RW , adopted 21 November 2001  
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  
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 on 18 January 2021 [appealed by Pakistan 22 
February 2021]  
Russia – Commercial 
Vehicles  Appellate Body Report, Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/AB/R  and Add.1, adopted 9 April 
2018 
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  WT/DS578/R  
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  Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of 
Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , adopted 5 April 
2001, as modified by Appellate Body Report WT/DS122/AB/R  
EU – Fatty Alcohols 
(Indonesia)  Panel Report, European Union – Anti-Dumping Measures on Imports of Certain 
Fatty Alcohols from Indonesia , WT/DS442/R  and Add.1, adopted 29 September 
2017, as modified by Appellate Body Report WT/DS442/AB/R  
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Footwear from 
China , WT/DS405/R , adopted 22 February 2012  
Ukraine – Ammonium 
Nitrate  Panel Report, Ukraine - Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/R , Add.1 and Corr.1, adopted 30 September 2019, as upheld by 
Appellate Body Report WT/DS493/AB/R  
  WT/DS578/R  
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  EXHIBITS  REFERRED TO IN THIS REPORT  
Exhibit  Short title  Description/Long title  
MAR-CONF -3 
(BCI)  Report on the definitive 
determination  Ministère de l'industrie, de l'investissement, du commerce 
et de l'économie numérique du Royaume du Maroc, 
Rapport final sur la détermination de l'existence du 
dumping, du dommage et du lien de causalité (version 
confidentielle)  
MAR-6 Reply from SOTEFI to the 
deficiency letter dated 
15 August  2017 Réponse de la SOTEFI à la lettre de défaillance du 15 août 
2017 (4 septembre 2017)  
MAR-11 Submission by SITPEC and 
SOTEFI  Enquête antidumping concernant des importations de 
cahiers originaires de T unisie, soumission de SITPEC et 
SOTEFI (27 février 2018)  
MAR-CONF -15 
(BCI)  SOTEFI's responses to the 
questionnaire  Réponse de SOTEFI au questionnaire d'enquête pour la 
mise en œuvre des mesures antidumping; questionnaire 
destiné aux producteurs/exportateu rs de cahiers en 
Tunisie  
MAR-21  SOTEFI, Catalogue 2017 -2018 
MAR-22 SOTEFI, Catalogue 2016  SOTEFI, Catalogue 2016 (27  October  2016)  
TUN-2, 
MAR-10 Initiation report  Ministère de l'industrie, de l'investissement, du commerce 
et de l'économie numérique du Royaume du Maroc, 
Rapport d'ouverture d'enquête, requête déposée par les 
producteurs de cahiers concernant la mise en œuvre des 
mesures antidumping sur les importations de cahiers 
originaires de la Tunisie  
TUN-3, MAR -9 Petition  Requête pour l a mise en œuvre des mesures antidumping 
sur les importations de cahiers originaires de Tunisie 
déposée par La MAPAF, Med Paper et Promograph 
(10  mars 2017)  
TUN-5, 
MAR-17 Report on the preliminary 
determination  Ministère de l'industrie, de l'investissement, du commerce 
et de l'économie numérique du Royaume du Maroc, 
Rapport sur la détermination préliminaire de l'existence du 
dumping, du dommage et du lien de causalité  
TUN-7, MAR -1 Report on the definitive 
determination  Ministère de l'industrie, de l'investissement, du commerce 
et de l'économie numérique du Royaume du Maroc, 
Rapport final sur la détermination de l'existence du 
dumping, du dommage et du lien de causalité  
TUN-8 Circular No.  5895/211  Ministère de l'économie et des finan ces du Royaume du 
Maroc, Circulaire n° 5895/211 relative à l'institution d'un 
droit de douane antidumping définitif sur les importations 
des cahiers originaires de Tunisie  
TUN-9 Official Journal No.  6744 of 
17 January  2019 Bulletin Officiel n° 6744, Arrêt é conjoint du Ministère de 
l'industrie, de l'investissement, du commerce et de 
l'économie numérique et du Ministère de l'économie et des 
finances n° 3758.18 (10 décembre 2018)  
TUN-10 (BCI)  Revised data provided by 
SITPEC  Fichier Excel intitulé SITPEC COP  28.5.2018, données 
rerévisées fournies par la SITPEC  
TUN-11 (BCI)  Revised data provided by 
SOTEFI  Fichier Excel intitulé SOTEFI VENTEDOM COPDOM REVISE 
CONFIDENTIEL du 23 mai 2018, données révisées 
fournies par la SOTEFI  
TUN-12 (BCI)  Excel file  containing the 
dumping margin calculation 
(SITPEC)  Fichier Excel contenant le calcul de la marge de dumping 
transmis avec les faits essentiels du 8 octobre 2018 
(SITPEC)  
TUN-14 (BCI)  Excel file containing the 
dumping margin calculation 
(SOTEFI)  Fichier E xcel contenant le calcul de la marge de dumping 
transmis avec les faits essentiels du 8 octobre 2018 
(SOTEFI)  
TUN-16 (BCI)  Excel file submitted as an 
attachment to SITPEC's 
responses to the initial 
questionnaire dated 
10 July 2017 Fichier Excel intitulé " SITPEC réponse questionnaire 
annexes VENTEMAR VENTEDOM VENTETIER", soumis en 
pièce jointe aux réponses de la SITPEC au questionnaire 
initial le 10 juillet 2017  
TUN-21 Presentation by SITPEC and 
SOTEFI  (30 April 2018)  Enquête antidumping sur les importations de cahiers 
originaires de Tunisie Audition publique (30 avril 2018) 
présentation de la SITPEC et de la SOTEFI  
TUN-29 Tunisian exporters' comments 
on the investigation 
(27 February  2018)  Commentaires de la SOTEFI et de la SITPEC sur l'enquête 
(27 février 2018)  WT/DS578/R  
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  Exhibit  Short title  Description/Long title  
TUN-30 (BCI)  Excel file on the applicants  Fichier Excel intitulé Annexe 2 Participation Requête 
PUBLIC, soumis avec la requête de la MAPAF, Med Paper 
et Promograph (10 mars 2017)  
TUN-35 (BCI)  SITPEC's responses to the initial 
questionnaire  Réponses de la SITPEC au questionnaire initial d'enquête 
(10 juillet 2017)  
TUN-44 (BCI)  List of licensed products sold in 
the domestic and export 
markets  Annexe 2.1 à la réponse des exportateurs du 4 septembre 
2017 à la lettre de défaillance  transmise par le MIICEN (15 
août 2017)  
TUN-48  Annex 17, export invoice  Annexe 17 à la requête pour l'ouverture de 
l'enquête - Facture à l'exportation  
TUN-49   Annexe 11b à la requête pour l'ouverture de 
l'enquête - Preuves valeur normale  
TUN-50 (BCI)  Annex 14a, domestic 
transportation in Tunisia  Annexe 14a à la requête pour l'ouverture de 
l'enquête - Transport interne en Tunisie  
TUN-51 (BCI)  Annex 14b, input c osts in 
Tunisia  Annexe 14b à la requête pour l'ouverture de 
l'enquête - Coût des facteurs en Tunisie  
TUN-55 (BCI)  Excel file provided with 
SOTEFI's responses to the 
MIICEN questionnaire  Réponses de la SOTEFI au questionnaire d'enquête relatif 
aux cahiers vendues sur le marché tunisien  
TUN-66 MAPAF's responses to the 
questionnaire  Réponses de la MAPAF au questionnaire d'enquête pour la 
mise en œuvre des mesures antidumping; questionnaire 
destiné aux producteurs/exportateurs de cahiers en 
Tunisie  
TUN-67 Promograph's responses to the 
questionnaire  Réponses de Promograph au questionnaire d'enquête pour 
la mise en œuvre des mesures antidumping; 
questionnaire destiné aux producteurs/exportateurs de 
cahiers en Tunisie  
TUN-72 Email dated  4 May 2018 Courriel e n date du 4  mai 2018 adressé à 
M. Charles  Julien, intitulé "Relance/Tableaux de calcul de 
marge de dumping"  
 WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  
BCI Business Confidential Information  
Dhs dirham  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
FOB Free on board  
GATT 1994 General Agreement on Tariffs and Trade 1994  
Imprimerie Moderne  Imprimerie Moderne S.à.r.l.  
Le Livre  Imprimerie Le Livre  
MAPAF  Manufacture de Papiers et Fournitures  
Med Paper  Med Paper S.A.  
MIICEN  Ministry of Industry, Investment, Trade and the Digital Economy of Morocco  
Promograph  Promograph S.à.r.l.  
SITPEC  Société industrielle de transformation de papiers, d'emballage et de cartons  
Sopalemb  Sopalemb S.A.  
SOTEFI -Selecta  SOTEFI S.à.r.l.  
Vienna Convention  Vienna Convention on the Law of Treaties, done at Vienna, 2 3 May 1969, 115 
UNTS 331; 8  International Legal Materials 679  
WTO World Trade Organization  
Yamama  Yamama Group  
 
  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  1  INTRODUCTION  
1.1  Tunisia's complaint  
1.1.  On 21 February  2019, Tunisia requested consultations with Morocco pursuant to A rticle 4 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes  (DSU), 
Article  17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (Anti -Dumping Agreement) and Article XXIII:1 of the General Agreement on Tariffs 
and Trade 1994 (G ATT 1994) with respect to the measures and claims set out below.1 
1.2.  Consultations were held on 11 and 1 2 June 2019 but failed to resolve this dispute.  
1.2  Establishment and composition of the Panel  
1.3.  On 19 September  2019, Tunisia requested the establishment of a panel pursuant to Article  6 
of the DSU with standard terms of reference .2 At its meeting on 2 8 October  2019, the Dispute 
Settlement Body (DSB) established a panel, in accordance with Article  6 of the DSU.3 
1.4.  The Panel's  terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Tunisia in document 
WT/DS578/2  and to make suc h findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 9 March  2020, Tunisia requested that the Director -General determine the composition of 
the Panel, pursuant to Article  8.7 of the DSU . On 19 March  2020, the Director -General accordingly 
composed the Panel as follows:  
Chair:   Mr Gilles Le Blanc  
Members:   Ms Vera Kanas Grytz  
Mr Gustavo Nerio Lunazzi  
1.6.  Brazil, Canada, China, the European  Union, Japan, Madagascar, the Russian Federation 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.  Following consultation with the parties, the Panel adopted its Working Procedures5 on 
8 May 2020 and Add itional Working Procedures Concerning Business Confidential Information (BCI)6 
on 28 May 2020. 
1.8.  The Panel issued a partial timetable on 8 May 2020 and revised it on 2 9 January  2021. Pursuant 
to Article 12.10 of the DSU, which provides that "in examining a complaint against a developing 
country Member, the panel shall accord sufficient time for the developing country Member to prepare 
and present its argumentation", the Panel took into account the respondent's status as a developing 
country Member when prepa ring and revising the timetable for the process . Thus, the Panel 
accommodated both Morocco's and Tunisia's requests for ample time to prepare the first and second 
written submissions.  
 
1 Tunisia's request for consultations, WT/DS578/1.  
2 Tunisia's request for establishment of a panel, WT/DS578/2 (Tunisia's panel request).  
3 DSB, Minutes of Meeting held on 28 October 2019, WT/DSB/M/436.  
4 Constitution note of the Panel, WT/DS578/3.  
5 Working Procedures of the Panel (Annex A -1). 
6 Additional Working Procedures of the Panel Concerning Business Confid ential Information (Annex  A-2). WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  1.9.  The parties presented their first written submissions on 1 1 June 2020 (T unisia) and 
23 July 2020 (Morocco) . The Panel held a first substantive meeting with the parties on 23 and 
24 September  2020. A session with the third parties took place on 2 4 September  2020. As 
restrictions to curb the spread of COVID -19 prevented the pane lists from travelling to Geneva, the 
Panel conducted the meeting via secure videoconference.  
1.10.  The Panel held a second substantive meeting with the parties on 27 and 2 8 January  2021. In 
view of the public health restrictions in force, the entire meeting took  place via secure 
videoconference.  
1.11.  On 8 March  2021, the Panel issued the descriptive part of its Panel R eport to the parties . The 
Panel issued its Interim Report to the parties on 7 May 2021 and issued its Final Report to the parties 
on 28 June 2021 . 
1.3.2   Preliminary ruling  
1.12.  On 19 June 2020, Morocco submitted to the Panel a request for a preliminary ruling, arguing 
that certain grievances  set forth  in Tunisia's first written submission do not appear in the panel 
request or are too vague . Morocco requested the Panel to make a preliminary ruling that the 
submission of those claims was not in accordance with Article 6.2 of the DSU and that they were 
therefore not properly before the Panel's jurisdiction . Morocco thus  requested the Panel to find that7: 
a. the claim under Articles 2.1, 2.2 and 2.2.2, relating to the "distribution costs", is outside 
the Panel's terms of reference because it was not specified in the panel request8; 
b. the claim under Article 2.2.2, relating t o the exclusion of domestic sales in Tunisia, made 
in Tunisia's first written submission, is outside the Panel's terms of reference because it 
was not specified in the panel request9; 
c. the claim under Articles 2.1, 2.2 and 2.2.2, relating to the exclusion "from the calculation 
of the profit margin of administrative costs and certain expenses not part of the product 
price", made in Tunisia's first written submission, is outside the Panel's terms of reference 
because it was not specified in the panel request10; 
d. the claim under Article 2.4 of the Anti -Dumping Agreement, relating to the mathematical 
formulas used by Morocco to calculate the margin of dumping, made in Tunisia's first 
written submission, is outside the Panel's terms of reference because it was not  specified 
in the panel request11; 
e. the claim under Articles 3.1 and 3.2 is outside the Panel's terms of reference because it 
was not clearly stated in the panel request, in violation of Article 6.2 of the DSU12; 
f. the following claims made by Tunisia in the panel request have been abandoned : the 
violation of Article 5.8 of the Anti -Dumping Agreement specified in paragraph 1 of the 
panel request ; the violation of Article 6.8 and paragraphs 3, 5, 6 and 7 of Annex II of the 
Anti-Dumping Agreement specified in pa ragraph 4 of the panel request ; the violation of 
Article 2.2.1.1 of the Anti -Dumping Agreement specified in paragraph 5 of the panel 
request ; the violation of Articles 3.1 and 3.2 of the Anti -Dumping Agreement, concerning 
the fact that "the investigating a uthority failed to properly and objectively consider the 
volume of the dumped imports, in absolute terms", specified in paragraph 7 a) of the panel 
request ; the claim specified in paragraph B.11 of the panel request13; and 
 
7 Morocco's preliminary ruling request. See also Morocco's  first written submission, para.  284. 
8 Morocco's preliminary ruling request, section II.B.1.  
9 Morocco's preliminary ruling request, section II.B.2.  
10 Morocco's preliminary ruling request, section II.B.3.  
11 Morocco's preliminary ruling request, section II.B.4.  
12 Morocco's preliminary ruling request, section II.B.5.  
13 Morocco's preliminary ruling request, section III.A.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 14 - 
  g. Tunisia's claim under Articles 3. 1 and 3.2 of the Anti -Dumping Agreement, according to 
which the Ministry of Industry, Investment, Trade and the Digital Economy (MIICEN) of 
Morocco failed to objectively consider the volume of imports in relative terms, concerns 
an examination that Morocco  was not required to carry out, and therefore cannot be 
upheld.14 
1.13.  Tunisia submitted its response to the preliminary ruling request to the Panel on 8 July 2020. 
Canada, the European Union, Japan and the United States submitted their comments on the request 
on 10 July 2020. 
1.14.  The Panel issued it preliminary ruling on 1 4 September  2020.15 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns the definitive anti -dumping measure imposed by Morocco on imports of 
school exercise books from Tunisia, as a result  of the investigation initiated by MIICEN.  
2.2.  On 5 November  2018, MIICEN published the Report on the Definitive Determination of 
Dumping, Injury and Causation, recommending the imposition of definitive anti -dumping duties on 
imports of Tunisian exercise books .16 The definitive measure imposed by Morocco came into force 
on 14 January  2019 for a period of five years .17 The anti -dumping duty rates imposed by Morocco 
on Tunisian exporters of school exercise books are as follows : SOTEFI - 27.71 %, SITPEC - 15.69 %, 
other Tunisian exporters - 27.71 %.18 
3  PARTIES'  REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  This section contains the parties' requests for findings and recommendations, as set forth in 
their respective first and second written submissions.  
3.2.  Tunisia re quests that the Panel find that Morocco acted inconsistently with19: 
a. Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement , by failing to exclude 
administrative costs and other expenses from the profit margin calculation used to 
calculate the construct ed normal value;  
b. Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement , by improperly excluding sales 
of numbered or watermarked exercise books from the profit margin calculation used to 
calculate the constructed normal value;  
c. Articles 2.1 and 2.2 of t he Anti -Dumping Agreement , by including the "distribution cost", 
comprising the domestic transportation cost, port charges and ocean freight costs, in the 
calculation of the constructed normal value for the [[***]] models of SOTEFI exercise 
books;  
d. Articles  2.1 and 2.4 of the Anti -Dumping Agreement , by using an erroneous  formula to 
compare normal value to the export price;  
e. Articles 2.1 and 2.4 of the Anti -Dumping Agreement , by disregarding the use of licences 
as a characteristic that affects the product's pr ice when classifying the product under 
consideration;  
 
14 Morocco's preliminary ruling requ est, section III.B.  
15 Preliminary Ruling of the Panel (Annex A -3). 
16 Report on the definitive determination (Exhibits TUN -7, MAR -1). 
17 Circular No. 5895/211 (Exhibit TUN -8); Official Journal No. 6744 of 17 January 2019 (Exhibit TUN -9), 
pp. 38 and 39.  
18 Tunisia's first written submission, paras. 3.1 -3.8; Tunisia's panel request, section A.  
19 Tunisia's second written submission, para. 7.1. See also Tunisia's  first written submission, para.  9.1. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 15 - 
  f. Article 12.2.2 of the Anti -Dumping Agreement , by failing to address, in its report on the 
definitive determination, the key factual elements when determinin g the impact of 
licensing on the cost and pric e of the exercise books under licence;  
g. Articles 3.1 and 3.2 of the Anti -Dumping Agreement , by failing to conduct an objective 
examination of the evolution of Tunisian imports in relative terms and by finding that those 
imports had increased during the inve stigation period;  
h. Articles 3.1 and 3.2 of the Anti -Dumping Agreement , by finding, erroneously, that there 
was price undercutting;  
i. Articles 3.1 and 3.2 of the Anti -Dumping Agreement , by finding, erroneously, that the 
domestic product's price was depressed;  
j. Articles 3.1 and 3.2 of the Anti -Dumping Agreement , by finding, erroneously, that the 
domestic product's price was suppressed;  
k. Articles 3.1 and 3.4 of the Anti -Dumping Agreement , by determining that the domestic 
industry had been materially injured on the basis, erroneously, of the negative 
performance of four economic factors;  
l. Articles 3.1 and 3.5 of the Anti -Dumping Agreement , by finding a causal link based on 
invalid considerat ions; 
m. Articles 3.1 and 3.5 of the Anti -Dumping Agreement , by ignoring the negative effects 
resulting from competition from Moroccan producers not part of the domestic industry ; 
and 
n. Articles 5.2, 5.3 and 5.8 of the Anti -Dumping Agreement , by considering, im properly, that 
there was sufficient evidence to justify initiating an investigation.  
3.3.  Tunisia further requests that the Panel recommend that Morocco immediately bring its 
measures into conformity with its WTO obligations .20 Moreover, Tunisia requests the Pa nel to issue 
a suggestion, under the second sentence of Article 19.1 of the DSU, that Morocco meet its obligations 
by revoking  the anti -dumping measure at issue.21 
3.4.  With regard to the Panel's jurisdiction, Morocco requests the Panel to find that22: 
a. claim B.5 in Tunisia's panel request is, by reason of the reference to multiple obligations, 
not consistent with Article 6.2 of the DSU because the wording is too imprecise;  
b. claim B.6 in Tunisia's panel request is, by reason of the reference to multiple ob ligations, 
not consistent with Article 6.2 of the DSU because the wording is too imprecise;  
c. claim B.3 in Tunisia's panel request has, by reason of the absence of any further 
development of arguments under Article 2.2.1 of the Anti -Dumping Agreement by Tuni sia, 
been abandoned by Tunisia ; and 
d. claim B.4 in Tunisia's panel request has, by reason of the absence of any further 
development of arguments under Article 6.8 of the Anti -Dumping Agreement, been 
abandoned by Tunisia.  
 
20 Tunisia's  first written submission, para.  9.2; second written submission, para.  7.2. 
21 Tunisia's  first written submission, para.  9.3; second written submission, para.  7.3. 
22 Morocco's second written submission, para. 308.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 16 - 
  3.5.  Furthermore, with regard to Tunisia's  claims under Article 2 of the Anti -Dumping Agreement, 
Morocco requests the Panel to find that23: 
a. under Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement:  
i. the claim relating to the "profit margin" is inadmissible because the arguments in 
support th ereof were never raised before the authority;  
ii. Tunisia's claim regarding the "actual declared profit margins" is legally flawed and, in 
any case, is not properly before the Panel ; and 
iii. the claim relating to "numbered or watermarked exercise books" must be re jected 
because it lacks any factual or proper  legal basis.  
b. under Articles 2.1 and 2.2 of the Anti -Dumping Agreement, the claim relating to 
"distribution costs" is inadmissible because the arguments in support thereof were never 
raised before the authority;  and 
c.  under Articles 2.1 and 2.4 of the Anti -Dumping Agreement:  
i. the claim relating to "formulas" is inadmissible because the arguments in support 
thereof were never raised before the authority and the claim is, in any case, devoid of 
any factual or legal b asis; and 
ii. the claim relating to "licences" must be rejected because it lacks any factual or legal 
basis.  
3.6.  With regard to Tunisia's claims under Article 3 of the Anti -Dumping Agreement, Morocco 
requests the Panel to find that24: 
a. under Articles 3.1 and 3.2 of  the Anti -Dumping Agreement:  
i. Tunisia's conditional claims are not necessary to dispose of the dispute and that judicial 
economy should be exercised in respect thereof;  
ii. the claim relating to the examination of "import volumes in relative terms" must be 
rejected because it is devoid of any legal basis;  
iii. the claim relating to "undercutting" must be rejected because it is devoid of any legal 
basis;  
iv. the claim relating to the " investigation  period" must be rejected because it is devoid 
of any legal basis ; and 
v. the Panel may exercise judicial economy with regard to Tunisia's other claims, given 
the cumulative nature of the examination obligation.  
b. under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, Tunisia's claim must be 
rejected because the arguments relat ing to "upward trends", to the alleged "seasonality" 
and to the domestic industry's alleged "strategy" are all devoid of any factual and legal 
basis; and 
c. under Articles 3.1 and 3.5 of the Anti -Dumping Agreement, Tunisia's claim must be 
rejected because the  arguments relating to the causa tion determination and to 
non-attribution are devoid of any factual and legal basis.  
 
23 Morocco's second written submission, para. 308. See also Morocco's  first written submi ssion, 
para. 284. 
24 Morocco's second written submission, para. 308. See also Morocco's  first written submission, 
para. 284. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 17 - 
  3.7.  With regard to Tunisia's claims under Article 5 of the Anti -Dumping Agreement, Morocco 
requests the Panel to find that25: 
a. under Article 5.2  of the Anti -Dumping Agreement:  
i. Tunisia's claims must be rejected because Tunisia has failed to establish a prima facie  
case by ignoring the key condition of "reasonably available to the applicant" ; and 
ii. alternatively, Tunisia's claims must be rejected beca use they are devoid of any legal 
basis.  
b. under Article 5.3 of the Anti -Dumping Agreement, Tunisia's claims must be rejected 
because Article 5 does not provide for a succession  of multiple obligations and, 
furthermore, Tunisia's claims are devoid of any lega l basis;  and 
c. under Article 5.4 of the Anti -Dumping Agreement, Tunisia's claim must be considered to 
have been abandoned because Tunisia stated that it is not pursing its claim.  
3.8.  Lastly, with regard to Tunisia's claims under Article 12 of the Anti -Dumping Ag reement, 
Morocco requests the Panel to find that26: 
a. Tunisia's claim under Article 12.2.2 of the Anti -Dumping Agreement, with respect to sales 
of numbered or watermarked exercise books, must be considered to have been abandoned 
because Tunisia stated that i t is not pursing its claim ; and 
b. Tunisia's allegedly still active claim under Article 12.2.2 of the Anti -Dumping Agreement, 
concerning the difference in the use of licences, must be rejected because it has been 
treated as an afterthought.  
4  ARGUMENTS OF THE P ARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph  24 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 Canada, the European Union, Japan and the United States are reflected in 
their executive summaries, provided in accordance with paragraph 27 of the Working Procedures 
adopted by the Panel (see Annexes C -1, C-2, C-3 and C -4). Brazil, China, Madagascar and t he 
Russian Federation did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  On 21 May 2021, Tunisi a submitted a written request for  the review of  precise aspects of th e 
Interim Re port. Morocco, meanwhile, did not request an interim review. The parties did not request 
an interim review meeting . On 4 June 2021, Morocco submitted comments on Tunisia's requests for 
review . Our discussion and disposition of those requests and comments are set out in Annex A-4. 
 
 
25 Morocco's second written submission, para. 308. See also Morocco's  first written submission, 
para. 284. 
26 Morocco's second written  submission, para. 308. See also Morocco's  first written submission, 
para. 284. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7  FINDINGS  
7.1  General principles regarding treaty interpretation, the applicable standard of review 
and burden of proof  
7.1.1   Treaty interpretation  
7.1.  Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreemen ts "in accordance with customary rules of interpretation 
of public international law" . Article 17.6(ii) of the Anti -Dumping Agreement similarly requires panels 
to interpret that Agreement's provisions in accordance with the customary rules of interpretatio n of 
public international law . The principles codified in Articles  31 and 32 of the Vienna Convention are 
generally accepted as such customary rules.  
7.1.2   Standard of review  
7.2.  Article 11 of the DSU provides, in relevant part, that:  
[A] panel should make an object ive 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, Article  17.6 of the Anti -Dumping  Agreement sets forth the special standard of 
review applicable to disputes under the Anti -Dumping  Agreement:  
(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 those 
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 interpr et 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 panel sha ll find the authorities' measure to be in conformity with the 
Agreement if it rests upon one of those permissible interpretations.  
7.4.  Thus, Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement together establish 
the standard of review we will apply with respect to both the factual and the legal aspects of the 
present dispute . When a panel is reviewing an investigating authority's determination, the "objective 
assessment" standard in Article  11 of the DSU requires a panel to review whether the a uthority has 
provided a reasoned and adequate explanation as to (a)  how the evidence on the record supported 
its factual findings ; and (b) how those factual findings support the overall determination .27 In 
reviewing an investigating authority's determinati on, a panel should not conduct a de novo review 
of the evidence, nor substitute its judgement for that of the investigating authority . A panel must 
limit its examination to the evidence that was before the investigating authority during the 
investigation a nd must take into account all such evidence submitted by the parties to the dispute .28 
At the same time, a panel must not simply defer to the conclusions of the investigating authority ; a 
panel's examination of those conclusions must be "critical and searc hing".29 
7.5.  In the context of Article  17.6(i) of the Anti -Dumping  Agreement, the Appellate  Body has noted 
that, while the text of this provision is couched in terms of an obligation on a panel, in effect it 
defines when an investigating authority can be considered to have acted inconsistently with the 
Anti-Dumping  Agreement in the course of its "establishment" and "evaluation" of the relevant 
facts.30 Therefore, a panel must assess if the establishment of the facts by the investigating authority 
 
27 Appellate  Body Reports, US – Countervailing Duty Investigation on DRAMS , para.  186; US – Lamb , 
para. 103. 
28 Appellate Body Report, US – Countervailing Duty Investigation on D RAMS , para.  187. 
29 Appellate Body Report, US – Softwood Lumber VI  (Article  21.5 – Canada) , para.  93. 
30 Appellate Body Report, US – Hot-Rolled Steel , para.  55. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 19 - 
  was prope r and if the evaluation of those facts by that authority was unbiased and objective .31 If 
these broad standards have not been met, a panel must hold the investigating authority's 
establishment or evaluation of the facts to be inconsistent with the Anti -Dumping Agreement.32 
7.6.  We note, as a preliminary remark, that Morocco requests us to reject two of Tunisia's 
grievances relating to the calculation of normal value33 and one of its grievances relating to fair 
comparison34, on the grounds that the issues raised before the Panel were not first raised before the 
investigating authority . Morocco thus requests us to:  
[D]eclare as inadmissible all Tunisia's claims concerning  arguments that Tunisia or its 
exporters could have raised before the authority,  but did not .35 
7.7.  Morocco considers that, by examining those arguments made by Tunisia, the Panel would be 
conducting a de novo review , prohibited under  Article 17.6(i) of the Anti -Dumping Agreement , since 
"the authority could not consider and address them".36 
7.8.  Before exami ning Tunisia's arguments in support of its claims concerning  the determination of 
normal value and fair comparison, we will therefore ensure that the findings requested from us do 
not lead to a de novo review of any evidence or arguments that might not hav e been submitted to 
the investigating authority.  
7.1.3   Burden of proof  
7.9.  The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO agreement must assert 
and prove its claim . Therefore, as the complaining party in this proceeding, Tunisia bears the burden 
of demonstrating that the challenged aspects of the measures at issue are inconsistent with the 
Anti-Dumping Agreement and G ATT 1994. A  complaining party sa tisfies its burden when it 
establishes a prima facie  case, namely a case which, in the absence of effective refutation by the 
defending party, leads a panel to rule in favour of the complaining party .37 Lastly, it is generally for 
each party asserting a fa ct to provide proof thereof.  
7.2  Tunisia's claims concerning dumping  
7.10.  In this dispute, Tunisia presents two sets of grievances to the Panel concerning the margin of 
dumping determined by the Moroccan investigating authority in its anti -dumping investigation on 
exercise books.  
7.11.  The first set of grievances is based on Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping 
Agreement and addresses the establishment of the normal value of the exercise books . Tunisia 
explains that it raises "three arguments" on this issue38: 
a. MIICEN acted inconsistently with Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping 
Agreement by not excluding administrative costs and certain expenses that are not part 
of the product 's price from the calculation of the profit margin;  
b. MIICE N acted inconsistently with Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping 
Agreement by , erroneously,  excluding sales of numbered or watermarked exercise books 
from the calculation of the profit margin used for the constructed normal value ; and 
 
31 Appellate Body Report, US – Hot-Rolled Steel , para.  56. 
32 Appellate Body Report, US – Hot-Rolled Steel , para.  56. 
33 Morocco's first written submission, paras.  60, 61, 64 and 65. See also Morocco's  response to Panel 
question s No. 1.8, para.  34; and No.  1.7, para.  27. 
34 Morocco's second written submission, para.  101. 
35 Morocco's first written submission, para.  62 (bold  type original; italic s added). See also ibid., 
para. 31. 
36 Morocco's second written submission, paras.  8 and 22.  
37 Appellate  Body Report, EC – Hormones , paras.  98 and 104.  
38 Tunisia's second written submission, para.  2.1. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 20 - 
  c. MIICEN act ed inconsistently with Articles  2.1 and 2.2 of the Anti -Dumping Agreement by 
including a "distribution cost" in the reconstructed normal value of most of SOTEFI's 
exercise book models.  
7.12.  The second set of grievances, based on Articles 2.1 and 2.4 of the Anti -Dumping Agreement, 
accuses the Moroccan investigating authority of failing to  carry out a fair comparison between the 
normal value and export price of the exercise books . Tunisia explains that it raises two arguments 
on this issue39: 
a. MIICEN acted inconsis tently with Articles 2.1 and 2.4 of the Anti -Dumping Agreement by 
using an erroneous  formula to compare the normal value with the export price ; and 
b. MIICEN acted inconsistently with Articles 2.1 and 2.4 of the Anti -Dumping Agreement by 
disregarding the use of licences of certain exercise books sold by SOTEFI for the purposes 
of comparing the normal value with the export price.  
7.13.  In the following sections, we examine  these claims, starting with those addressing the 
determination of normal value . Before carrying  out this examination , we note, nevertheless, that 
Morocco requests us to find that some of the claims made by Tunisia in its Panel request fall outside 
our jurisdiction.40 
7.14.  We already answered, in our preliminary decision of 14  September  2020, the question  of 
whether the "claims" relating to ( a) the distribution cost, ( b) the exclusion of administrative costs 
and certain expenses that are not part of the product 's price from the calculation of the profit margin, 
and ( c) the mathematical formulas used to calculate the margin of dumping, were "missing" from 
the panel request .41 In this regard, we noted that:  
Morocco does not ask us to rule on whether the claims, set forth in paragraphs B.5 and 
B.6 of the panel request, are made in accordance  with Article 6. 2 of the DSU . Morocco's 
request is limited to asking the Panel to rule that new claims are presented in the first 
written submission, which is not in conformity with Article 6.2, and that these claims 
therefore fall outside the Panel's terms of reference.42 
7.15.  We had concluded that Morocco had failed to demonstrate that the grievances concerning the 
distribution cost, the exclusion of administrative costs and certain expenses from the calculation of 
the profit margin, and the mathematical formulas used to calculate the margin of dumping were 
"claims" that were "missing" from the panel request.43 
7.16.  In its second written submission, Morocco presents new objections concerning our jurisdiction . 
This time, the objections directly address the conformity of paragrap hs B.5 and B.6 of the panel 
request with Article 6.2 of the DSU . These objections concern the same grievances relating to (i) the 
distribution cost, (ii) the exclusion of administrative costs and certain expenses that are not part of 
the product 's price fr om the calculation of the profit margin, and (iii) the mathematical formulas 
used to calculate the margin of dumping . Morocco no longer asserts that these "claims" are "missing" 
from the panel request, but rather that the manner in which Tunisia formulated  paragraphs B.5 and 
B.6 of its request is not in conformity  with the requirements of Article 6.2, as interpreted by the 
Appellate Body in Korea – Pneumatic Valves (Japan) .44 
7.17.  Tunisia considers that Morocco's new submission was late and argues that the Panel  should 
not reopen the question of its terms of reference at this stage of the procedure . Nevertheless, Tunisia 
addresses the merits of Morocco's objections.45 
 
39 Tunisia's second written submission, para.  3.1. 
40 Morocco's second written submission, para.  6. 
41 Preliminary ruling of the Panel, section  3.2 
42 Preliminary ruling of the Panel, para.  3.20.  
43 Preliminary ruling of the Panel, paras.  3.35 and 3.42.  
44 Morocco 's second written submission, paras.  61 and 72.  
45 Tunisia's response to Panel question Nos.  1.27 and 1.28, paras.  28-51. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.18.  We recall that our working procedures provide that:  
4. (1)  If Morocco considers that the Panel s hould make a ruling before the issuance of 
the Report that certain measures or claims in the panel request or the complainant's 
first written submission are not properly before the Panel, the following procedure 
applies . Exceptions to this procedure shall be granted upon a showing of good cause.  
a. Morocco shall submit any such request for a preliminary ruling at the 
earliest possible opportunity and in any event no later than in its first 
written submission to the Panel . Tunisia shall submit its response t o the 
request before the first substantive meeting of the Panel, within a 
reasonable period to be determined by the Panel in light of the request.  
7.19.  Paragraph 4. (2), however, provides that "[t]his procedure is without prejudice to the parties' 
right to requ est other types of preliminary or procedural rulings during the proceeding, and to the 
procedures that the Panel may follow with respect to such requests."  
7.20.  The working procedures therefore require parties to submit their objections concerning the 
Panel's j urisdiction "at the earliest possible opportunity and in any event no later than in its first 
written submission to the Panel" . This rule allows the Panel to take note of any objections concerning 
its jurisdiction as soon as possible and, if it sees fit, t o resolve those matters in the form of a 
preliminary ruling, after having gathered the comments of the requesting party (Tunisia in this 
particular case) and third parties, if appropriate.  
7.21.  In the present case, we find that Morocco did not submit all its ob jections concerning the 
panel request in its preliminary ruling request  of 1 9 June 2020. In its request, Morocco presented 
arguments concerning the conformity  of Tunisia's claim under Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement with Article 6.2 of the DSU, to which we responded in our preliminary 
ruling . Other objections on the same grounds could therefore have been submitted as part of the 
same request.  
7.22.  Although we share Tunisia's view that Morocco's new submissions were late, we believe it is 
important to leave no room for doubt concerning our jurisdiction before examining Tunisia's 
substantive requests . We have therefore decided to respond to Morocco's  objections, after having 
invited Tunisia to submit a full response.46 
7.23.  In our preliminary ruling we recalled the requirements under Article  6.2.47 
7.24.  In this particular case, Morocco's request relates to the fact that the provisions raised by 
Tunisia in parag raphs B.5 (Articles 2.1, 2.2 and 2.2.2) and B.6 (Articles 2.1 and 2.4) contain several 
obligations48 and therefore do not set out  an "obligation that is distinct and well defined"49, contrary 
to the requirements of Article 6.2 as interpreted by the Appella te Body in Korea – Pneumatic Valves 
(Japan) .50 
7.25.  We disagree with Morocco's objections for the following reasons.  
 
46 Tunisia's response to Panel question Nos.  1.27 and 1.28, paras.  28-51. See also Tunisia's response to 
Morocco's preliminary ruling  request.  
47 Preliminary ruling of the Panel, section  3.1 
48 Morocco's second written submission, paras.  58, 59, 71 and 72.  
49 Morocco's second written submission, para.  60. See also ibid. para. 42 (quoting Appellate Body 
Report, Korea – Pneumatic Valves (Japan) , para.  5.89).  
50 Morocco's second written submission, paras.  31-49. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.26.  Paragraph B.551 of Tunisia's panel request refers to Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the 
Anti-Dumping Agreement . These provisions concer n the establishment of normal value by the 
investigating authority and contain multiple obligations in that regard . When read together, however, 
these provisions relate to  the obligation to establish normal value based on the cost of production 
plus a reas onable amount for administrative, selling and general costs and for profits . Furthermore, 
Tunisia asserts that MIICEN committed errors "leading to the calculation of an artificially high normal 
value".52 
7.27.  Given these factors and the standard of review recal led above, it is clear to us that this panel 
request, as drafted, is consistent with Article 6.2 of the DSU, since:  
a. it clearly establishes which specific aspect of the measure at issue is being addressed (the 
construction of normal value) ; and 
b. it clearly sets out the provisions of the Anti -Dumping Agreement that are alleged to have 
been violated : as such, although Articles 2.1 and 2.2 of the Anti -Dumping Agreement 
contain multi -layered obligations in relation to the establishment of normal value, A rticles 
2.2.1.1 and 2.2.2 refer, "[f]or the purpose of paragraph  2" (i.e. for the purposes of 
constructing normal value), to the amount of "costs" that the investigating authority must 
use in its calculation.  
7.28.  Tunisia also explicitly connected the measure a t issue with the obligation that is alleged to 
have been violated, by stating that the investigating authority committed errors leading to the 
calculation of an artificially high normal value.  
7.29.  The exact manner in which the investigating authority violated the provisions in question, i.e. 
the demonstration that the measure does indeed infringe the identified treaty provisions, comes 
under arguments , which Tunisia must develop in its submissions . In particular, in our opinion, Tunisia 
did not have to indicate  which element in the calculation led to "the calculation of an artificially high 
normal value".  
7.30.  Furthermore, in its preliminary ruling, the Panel recalled that "in considering the sufficiency 
of a panel request, submissions and statements made during the course of the panel proceedings, 
in particular the first written submission of the complaining party, may be consulted in order to 
confirm the meaning of the words used in the panel request and as part of the assessment of whether 
the ability of the respon dent to defend itself was prejudiced".53 
7.31.  In this particular case, the Panel's review of Tunisia's first written submission allowed it to 
"confirm the meaning of the words used", in particular, which aspect of the calculation Tunisia is 
challenging and the distinction it made between its claims and its arguments.  
7.32.  With respect to paragraph B.654 of the panel request, it also seems to us that Tunisia 
indicated : 
a. what the specific aspect of the measure at issue was (the comparison between the normal 
value and th e export price) ; and 
 
51 In paragraph B.5 of its panel request, Tunisia requests the Panel to find that Morocco violated: 
"Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the Anti -Dumping Agreement and Article  VI:1 of GATT  1994, because 
the investigating authority committed errors leading to the calculation of an artificially high normal value. In 
particular, but not exclusively, when reconstructing normal value, the authority failed to take into account  all 
the sales made in Tunisia for the calculation of the profit margin" . 
52 Panel request, para.  B.5. 
53 Preliminary ruling, para. 3.4, (quoting Appellate Body Report, US – Carbon Steel , para.  127).  
54 In paragraph B.6 of its panel request, Tunisia requests the Panel to find that Morocco violated: 
"Article 2.4 of the Anti -Dumping Agreement and Article VI:1 of GATT  1994, because the investigating authority 
failed to make a fair comparison between the normal value and the export price, by not making allowance, in 
particular, for all the physical characteristics affecting price comparability that were cited by the exporters".  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  b. the provisions alleged to have been violated : Article 2.4 of the Anti -Dumping Agreement, 
which obliges the investigating authority to make  a fair comparison between the export 
price and the normal value55, and Article VI:1 of G ATT 1994.56 
7.33.  Tunisia also explicitly connected the measure at issue with the obligation that is alleged to 
have been violated by stating that "the investigating authority failed to make a fair comparison 
between the export price and the normal value", which indicat es that the relevant legal basis is 
limited to the first sentence of Article 2.4 of the Anti -Dumping Agreement .57 We do not believe that 
Tunisia should have explained in its panel request which factual aspects of the comparison lead to 
an unfair comparison  and, in particular, which adjustments were not made by the authority or which 
aspects of the calculation led to an unfair comparison.  
7.34.  In the light of the foregoing, we decide to reject Morocco's objections concerning the 
conformity of paragraphs  B.5 and B .6 of the panel request with Article  6.2 of the DSU.  
7.35.  We shall now examine Tunisia's claims concerning the determination of dumping.  
7.2.1   Tunisia's claims concerning the construction of the normal value of certain models 
of exercise books  
7.2.1.1   Whether the reasonable amount for profits was calculated in a manner consistent 
with Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement  
7.2.1.1.1   Introduction  
7.36.  We recall that under certain circumstances, listed in Article  2.2 of the Anti -Dumping 
Agreement, an investigating authority  may decide to "construct" the normal value of the product 
subject to an anti -dumping investigation . This happens when sales of the like product in the domestic 
market of the exporting country do not permit a "proper comparison" . The normal value may then 
be constructed using "the cost of production in the country of origin plus a reasonable amount for 
administrative, selling and general costs and for profits" .58 To that end, the Anti -Dumping Agreement 
provides that the amount for profits shall be based on "actual data pertaining to production and 
sales in the ordinary course of trade of the like product by the exporter or producer under 
investigation".59 
7.37.  To "construct" the normal value of certain exercise book  models of the two Tunisian 
producers/exporters that took part in the investigation60, the Moroccan investigating authority used 
a "reasonable amount" for profits, within the meaning of Article 2.2 of the Anti -Dumping Agreement.  
7.38.  Tunisia claims that MIICEN overestimated ("inflated"61) the amount for profits by including 
expenditure that was unrelated to profits .62 While recognizing that the Anti -Dumping Agreement 
does not prescribe a methodology or define a reasonable profit, "Tunisia considers that a reasonable 
amount for profits must , at the very least, exclude all elements that are not part of the profits".63 
 
55 The Appellate Body in EC – Bed Linen  distinguished , in Article 2.4,  between a "general obligation to 
make a 'fair comparison'" and the "s pecific obligations" set forth in the subsequent sentences of Article  2.4. 
(Appellate Body Report, EC – Bed Linen , para. 59 ) 
56 In the end, Tunisia did not pursue its claim under Article  VI:1 of GATT 1994. (Tunisia's response to 
Panel question No.  2.22, par a. 132).  
57 A reading of Tunisia's first written submission confirms that the legal basis selected  by Tunisia is 
indeed limited to the first sentence of Article  2.4 of the Anti -Dumping Agreement. See Tunisia's first written 
submission, paras.  5.93-5.97.  
58 Article 2.2 of the Anti -Dumping Agreement.  
59 Article  2.2.2 of the Anti -Dumping Agreement.  
60 MIICEN constructed a normal value for "  models  of exercise book exported to Morocco and not sold in 
the Tunisian market, as well as for models that did not exceed th e standing threshold and models that were 
not sold in the ordinary course of trade". (Tunisia's first written submission, para.  5.12)  
61 Tunisia's second written submission, para.  2.17. 
62 Tunisia's response to Panel question No.  1.4, para.  21. 
63 Tunisia's r esponse to Panel question No.  1.4, para.  26. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.39.  Tunisia is of the opinion that  such a profit margin is not a "reasonable amount … for profits"64 
within the meaning of Article  2.2 and that, contrary to the requirements of Arti cle 2.2.2, it does not 
reflect "actual data"65 pertaining to domestic "sales" .66 Lastly, Tunisia considers that, as a result of 
the error in the calculation of the profit margin of the two producers/exporters, "MIICEN did not 
have a valid factual basis to 'consider', under Article 2.1 of the Anti -Dumping Agreement, the product 
"as being dumped".67 
7.2.1.1.2   Analysis  
7.40.  We recall that Morocco requests, in the first instance, that we do not to examine this argument 
put forward by Tunisia, on the grounds that it would amou nt to asking the Panel to conduct a de 
novo review, which is prohibited under Article  17.6(i) of the Anti -Dumping Agreement . In this case, 
Morocco asserts that the interested parties never raised this matter before the authority and 
therefore cannot do so for the first time before us.68 
7.41.  We consider Morocco's objection to be without merit.  
7.42.  We recall that Article  17.6(i) of the  Anti-Dumping Agreement, read together with the 
provisions of Article  11 of the DSU, sets out the standard to be applied by panels whe n assessing 
whether a Member's investigating authorities have "established" and "evaluated" the facts 
consistently with that Member's obligations under the covered agreements .69 This provision 
precludes a panel from substituting the investigating authority  by engaging in an independent 
fact-finding exercise .  However, if requested to do so by the parties, a panel must determine whether 
the authority's establishment of the facts was proper and whether its evaluation of those facts was 
unbiased and objective.  
7.43.  In this case, Tunisia is not asking us to re -evaluate the facts and substitute our evaluation for 
that of the authority . It is asking us to find, on the basis of the facts contained in the investigating 
authority's record, that the authority did not apply a reasonable amount for profits, in a manner 
inconsistent with Articles  2.2 and 2.2.2 of the Anti -Dumping Agreement . It is therefore a question 
of application of the rules of the Anti -Dumping Agreement, which clearly falls within our jurisdiction.  
7.44.  We will therefore proceed to examine the arguments put forward by Tunisia.  
7.2.1.1.2.1   Has Tunisia established that the amount used  by MIICEN as a reasonable 
amount for profits was inconsistent with Articles  2.2 and 2.2.2 of the Anti -Dumping 
Agreement?  
7.45.  Tunisia's argumen t under Article 2.2.2 of the Anti -Dumping Agreement "relates to the fact 
that a profit margin that includes, in addition to ordinary profits, administrative costs and other 
expenses that are not part of the price of the product could not be based on 'actua l data' pertaining 
to sales in the ordinary course of trade of the like product" .70 Furthermore, "since the profit margin 
was obtained using an erroneous formula, it cannot be described as 'reasonable' within the meaning 
of Article  2.2 of the Anti -Dumping Agreement".71 
7.46.  The relevant provisions of Articles  2.2 and 2.2.2 of the Anti -Dumping Agreement stipulate 
that when an investigating authority constructs the normal value of the like product, it does so based 
on the "cost of production in the country of orig in plus a reasonable amount for administrative, 
selling and general costs and for profits" . In turn, the reasonable amount for profits  must be "based 
on actual data pertaining to production and sales in the ordinary course of trade of the like product 
 
64 Tunisia's second written submission, para.  2.45. 
65 Tunisia's second written submission, para.  2.18. 
66 In response to a Panel question, Tunisia confirmed that it does not dispute that MIICEN decided to 
estimate a reasonable amount for profits rather than us e the exporters' actual declared profits. (Tunisia's 
response to Panel question No.  1.24, para.  18. See also Morocco's second written submission, paras.  126 and 
127) 
67 Tunisia's response to Panel quest ion No.  1.4, para.  29. 
68 Morocco's first written submission, paras.  60 and 61.  
69 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84. 
70 Tunisia's response to Panel question No.  1.24, para.  18. See also Tunisia's response to Panel question 
No. 1.4, para.  23; and second written submission, paras.  2.16 and 2.18.  
71 Tunisia's first written submission, para.  5.58.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  by the exporter or producer under investigation" . Article 2.2.2 does not provide for any particular 
methodology in order to determine those amounts72 based on "actual data" : only if these amounts 
cannot be determined on that basis does the Anti -Dumping Agreeme nt envisage alternative methods 
in subparagraphs (i), (ii) and  (iii) of Article 2.2.2.  
7.47.  MIICEN's report on the definitive determination73 and the electronic files provided by MIICEN 
to producers/exporters show how the Moroccan investigating authority determ ined the reasonable 
amount for profits attributable to sales of exercise books in the Tunisian market . Specifically, the 
report on the definitive determination states:  
[T]he profit margin was obtained from costs of production  data and sales prices  and 
adjustments  data provided by the Tunisian exporters in their responses to the 
questionnaires and in the additional information submitted to the Ministry in response 
to the deficiency letters.74 
7.48.  The electronic files sent to the two Tunisian producers/exporters that cooperated with the 
investigation with the essential facts75 show that the average profit margin of exercise books sold in 
the domestic market was determined by MIICEN by subtracting a unit cost of production for each 
declared sale  from the unit sales price , then adding the profit/loss amount from all sales . Tunisia 
challenges before us the respective composition of the unit sales price and the unit cost of production 
used for each of the two producers/exporters.76 
7.49.  With respect to S ITPEC , in its response to MIICEN, the company declared a non -adjusted unit 
price (as charged to the customer) and an adjusted unit price, i.e. taking into account  certain selling  
expenses charged to the customer.77 The company also declared a cost of produ ction for each sale, 
which consisted of fixed and variable manufacturing costs.78 For its calculation of the profit margin, 
MIICEN used the non -adjusted unit price and the cost of production declared by SITPEC .79 
Subtracting these two figures therefore res ults in a profit margin that includes  not only the profit 
itself, but also expenses that are not linked to the profit (such as "taxes", "credit costs", "discounts" 
and "domestic transportation").  
7.50.  With respect to  SOTEFI,  in its response to MIICEN, the company declared the value and 
quantity sold for each transaction, as well as an adjusted unit price, which thus takes into account 
certain selling  expenses charged to the customer .80 Concerning the cost of production, the c ompany 
declared a cost of production that included "administrative costs and financing costs" . It also 
declared separately a distribution cost and a marketing cost .81 In response to MIICEN's deficiency 
letter, SOTEFI clarified that th ose cost categories comprised  the following:  
 
72 Panel Report, US – Softwood Lumber V , para. 7.263. See also Morocco's comments on Tunisia's 
response to Panel question No.  1.24, para.  64. 
73 Report on the definitive determination (Exhibits TUN -7, MAR -1). 
74 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 95. (emphasis added)  
75 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)).  
76 Tunisia's first written submission, para.  5.36.  
77 SITPEC declared the unit price per tonne in the Excel file submitted as an attachment to SITPEC's 
responses to the initial questionnaire dated 10  July 2017 (Exhibit TUN -16 (BCI)). In its responses to the initial 
questionnaire, SITPEC indicated that the mode of delivery for domestic sales was " rendu dépôt client " (return 
delivery customer  ), which means that the sal es price included certain selling  costs charged to the customer. 
(SITPEC's responses to the initial questionnaire (Exhibit TUN -35 (BCI)))  
78 The cost of production is taken from the "Copdomvaleur harmonie pivot" sheet . (Revised data 
provided by SITPEC (Exhi bit TUN -10 (BCI)) , column P ) 
79 The non -adjusted unit price appears in column N of the "Profitabilité" sheet of the Excel file containing 
the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)). The adjusted unit price appears in column Q 
of the same  sheet.  
80 These price data come from the Excel file provided with SOTEFI's responses to the MIICEN 
questionnaire (Exhibit TUN -55 (BCI)). The mode of delivery given for domestic sales is "rendu magasin " (in-
store), which means that the invoice price included certain selling  costs charged to the customer. We 
understand that these data were revised in the Excel file named SOTEFI VENTEDOM COPDOM REVISE 
CONFIDENTIEL dated 23  May 2018 (Exhibit TUN -11 (BCI)).  
81 Those data come from column F of the COPDOM and H.2 sheets of the Excel file provided with 
SOTEFI's responses to the MIICEN questionnaire (Exhibit TUN -55 (BCI)). We understand that these data were 
 WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 26 - 
  The cost of production comprises : consumed purchases of raw materials or 
consumables, staff costs other than distribution and marketing costs,  depreciation and 
provision expenses, State, tax and duties payments, and net financial co sts. The 
distribution cost consists of : transportation costs and distribution staff costs . The 
marketing costs comprises the marketing expenditure (sponsorship, advertising, fairs, 
licences, etc.) and the staff costs of the marketing service.82 
7.51.  To calculat e SOTEFI's profit margin, MIICEN used a non -adjusted unit price, which therefore 
includes not only the cost of production declared by SOTEFI, but also certain selling  expenses 
charged to the customer .83 Meanwhile, the unit cost of production used by MIICEN  comprises fixed 
and variable manufacturing costs, as well as a "distribution cost" and a "marketing cost".84 
Subtracting these two figures therefore results in a profit margin that includes  not only the profit 
itself, but also expenses that are not linked  to the profit (such as credit costs, rebates and refunds).  
7.52.  We note that Morocco does not contest  these factual elements presented by Tunisia .85 In 
particular, Morocco does not contest  that the "profit" used by MIICEN for the two exporters is greater 
than the difference between the ex -factory level sales price and the cost of production . Nevertheless, 
Morocco asserts that MIICEN did indeed use actual data provided by the two producers/exporters .86 
Therefore:  
[I]n all its calculations, the authority used the data it received from the exporters, and 
only those data pertaining to production and sales . There is therefore no doubt that the 
amounts "for administrative, selling and general costs and for profits" were "b ased on 
actual data pertaining to production and sales".87 
7.53.  Morocco states that the cost of production and profits data submitted by one of the two 
Tunisian exporters (SOTEFI) were not presented in the format required by MIICEN, which created a 
certain amou nt of "confusion" regarding the exact composition of the cost of production, the 
administrative costs, the cost price and the profits.88 
7.54.  We are aware that it can be difficult for a company to extract the data required by an 
investigating authority from its  accounts, and that errors may slip into responses to the investigation 
questionnaires . Similarly, it can be difficult for the investigating authority to interpret the responses 
provided by the interested parties . Nevertheless, any error or ambiguity in th e manner in which a 
company responds to the authority's questions does not exempt the investigating authority from its 
obligation to ensure "the accuracy of the information supplied by interested parties upon which their 
findings are based"89 and to establ ish the facts " proper [ly]". Nor does such an error or ambiguity 
exempt a Member from its obligation to establish the product's normal value, in accordance with the 
provisions of Articles  2.2 and 2.2.2 of the Anti -Dumping Agreement . The obligation to "base"  the 
amount used for the profits on "actual data" unquestionably rests with the investigating authority : 
that obligation is not limited to gathering data from businesses, but also implies that the authority 
must use the data correctly to determine the amou nt for profits on that basis . In this case, MIICEN 
did gather the relevant data, but failed to establish the actual profit from the sale of exercise books.  
7.2.1.1.2.2   Has Tunisia established a consequential violation of Article 2.1?  
7.55.  Lastly, we recall that Tunisia requests us to find that, as a result of the error in the calculation 
of the profit margin of the two producers/exporters, "MIICEN did not have a valid factual basis to 
 
revised in the Excel file named SOTEFI VENTEDOM COPDOM RE VISE CONFIDENTIEL dated 23  May 2018 
(Exhibit TUN -11 (BCI)).  
82 Reply from SOTEFI to the deficiency letter dated 15  August 2017 (Exhibit MAR -6), p. 7.  
83 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column Q of 
the "Pr ofitabilité" sheet.  
84 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column R of 
the "Profitabilité" sheet; Fichier Excel intitulé SOTEFI VENTEDOM COPDOM REVISE CONFIDENTIEL du 
23 mai 2018, données révisées fournies p ar la SOTEFI (Exhibit TUN -11 (BCI)), columns I, J and K.  
85 Morocco's response to Panel question No.  1.1, para.  12. 
86 Morocco's comments on Tunisia's response to Panel question No.  1.24, para.  53. 
87 Morocco's comments on Tunisia's response to Panel question  No. 1.24, para.  59. (emphasis original)  
88 Morocco's response to Panel question No.  1.2, paras.  13, 14, 15 and 17.  
89 Article  6.6 of the Anti -Dumping Agreement.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  'consider', under Article  2.1 of the Anti -Dumping Agreem ent, the product 'as being dumped'" .90 In 
particular, Tunisia considers that normal value established on the basis of an "inflated" amount for 
profits cannot constitute a "comparable price" within the meaning of Article 2.1 of the Anti -Dumping 
Agreement . In response to a Panel question, Tunisia indicated that its claim under Article  2.1 was 
"consequential to its claims under Article  2.2 and Article  2.2.2. As a result, a finding of violation of 
the latter provisions would necessarily lead to a finding of vio lation of Article  2.1".91, 92 In general, 
Tunisia "is of the opinion that any inconsistency with any obligation under Article  2 of the 
Anti-Dumping Agreement that has the effect of inflating the margin of dumping leads to an 
inconsistency with the requirement in Article  2.1 that a product 'is to be considered as being dumped' 
only if the normal value is higher than the export price".93 
7.56.  Morocco responds that "when an authority makes a calculation error in relation to one of the 
other provisions of Ar ticle 2, a panel cannot find, on that basis alone, that there was no dumping 
under Article  2. Indeed, a panel is simply not in a position to duplicate an authority's calculations 
based on its own assessment of what a correct method would be in a given set of circumstances ". 
Moreover, Morocco considers that:  
Article 2.1 is not a consequential  obligation to be invoked as a result of another violation, 
but is instead a separate obligation that must be asserted and established.94 
7.57.  We note that other panels and t he Appellate Body have regarded Article  2.1 of the 
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations.95 
Furthermore, we do not share Tunisia's view that a violation of Article  2.2 and/or Article  2.2.2 of the  
Anti-Dumping Agreement "would necessarily result in a finding of violation of Article  2.1". In that 
sense, we consider that, in order to establish a violation of Article  2.1, even a consequential violation, 
the party requesting those findings must explain  how the measure at issue specifically violates that 
provision of the Anti -Dumping Agreement.  
7.58.  In the present case, we consider that Tunisia's arguments in support of its claim under 
Article  2.1 are the same as those developed in support of its claim under Articles  2 and 2.2.2 of the 
Anti-Dumping Agreement . In our view, they are not sufficient to establish what Morocco's obligations 
under Article  2.1 are, or how those obligations were violated as a result of errors made by MIICEN 
when it established a reason able amount for profits.  
7.2.1.1.3   Conclusion on the reasonable amount for profits  
7.59.  We therefore conclude that Tunisia has shown that the amount used by the investigating 
authority to construct the exercise books ' normal value was not based "on actual data pertaining  to 
production and sales in the ordinary course of trade of the like product by the exporter or producer 
under investigation" and, therefore, is not in conformity  with Article  2.2.2 of the Anti -Dumping 
Agreement . Consequently, the figure used by MIICEN to establish the profit margin of the two 
Tunisian exporters was not a "reasonable amount" for profits within the meaning of Article  2.2 of 
the Anti -Dumping Agreement . We also conclude, however, that Tunisia has failed to  demonstrate 
any violation of Article  2.1 of the Anti -Dumping Agreement.  
7.60.  We now turn to Tunisia's argument concerning MIICEN's decision to exclude subsidized 
numbered and watermarked exercise books from the determination of the reasonable amount for 
profits.  
 
90 Tunisia's response to Panel question No.  1.4, para.  29. 
91 Tunisia's response to Panel question  No. 1.26, para.  20. 
92 Tunisia also considers that the Panel could apply the principle of judicial economy to this claim in the 
event of a finding of violation of  Article  2.2. (Tunisia's response to Panel question No.  1.25, para.  19) 
93 Tunisia's response t o Panel question No.  1.26, para.  24. 
94 Morocco's comments on Tunisia's response to the Panel questions, para.  22. (emphasis added)  
95 Appellate  Body Report, US – Zeroing (Japan) , para.  140; Panel Report, Ukraine – Ammonium Nitrate , 
para. 7.120.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.2.1.2   Whether excluding sales  of subsidized numbered and watermarked exercise 
books from the establishment of the reasonable amount for profits was inconsistent with 
Articles  2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement  
7.2.1.2.1   Introduction  
7.61.  The second issue raised by Tunisia in this case also concerns the determination of the 
reasonable amount for profits within the meaning of Article  2.2 of the Anti -Dumping Agreement . We 
recall that MIICEN constructed the normal value of certain models of exercise books96 and sought to 
determine a "reason able amount" for profits using the sales price and the cost of production reported 
by the two Tunisian producers/exporters that cooperated with the investigation.  
7.62.  The investigation record shows that MIICEN decided nevertheless that, for this calculation, i t 
would disregard the sales price and the cost of production of certain models sold in the domestic 
market, on the grounds that they were subject to an export ban . Those models were the numbered 
and watermarked exercise books subsidized by the Tunisian Gov ernment . The profit margin used to 
construct the normal value of certain exercise book models is therefore not based on the profit 
generated from the sale of numbered and watermarked exercise books in the domestic market.  
7.63.  Tunisia makes the case before us t hat the investigating authority had "no valid justification 
for excluding the numbered or watermarked exercise books from the calculation of the profit 
margin"97, because:  
a. numbered and watermarked exercise books are actually included in the definition of t he 
product under investigation and are therefore "like" products within the meaning of 
Article  2.2.2 (which is not contest ed by Morocco)98, 99; and 
b. the authority did not determine that the sales of numbered and watermarked exercise 
books were made at a loss during the investigation period or that they did not take place 
in the ordinary course of trade (which is not conteste d by Morocco).100 
7.64.  Tunisia's a rgument is therefore that:  
Sales of numbered and watermarked exercise books – which are covered by the 
definition of the product under consideration – [are] (1) "actual" sales (2) made "in the 
ordinary course of trade" (3) of the "like product" and, theref ore, these sales should 
have been taken into account for the purpose of calculating the profit margin.101 
7.65.  Regarding the alleged violations of the Anti -Dumping Agreement, Tunisia argues that, by 
excluding numbered and watermarked exercise books from the calc ulation, MIICEN acted 
inconsistently with Article  2.2.2 of the Anti -Dumping Agreement . According to Tunisia, Morocco also 
breached its obligation under Article  2.2 to add a "reasonable amount" for profits when  constructing 
normal value.  
7.66.  Tunisia adds that t he market share of subsidized numbered exercise books in Tunisia was 
sizeable during the investigation period (up to [[***]]  % of domestic sales of the two Tunisian 
exporters/producers that cooperated with the investigation) .102 As a result, the exclusion o f 
numbered and watermarked exercise books from the calculation of the profit margin of each 
producer greatly inflated the profit margin, "since the profits from sales of this type of exercise book 
 
96 MIICEN con structed a normal value for "exercise book models exported to Morocco and not sold in the 
Tunisian market, as well as for models that did not exceed the standing threshold and models that were not 
sold in the ordinary course of trade". (Tunisia's first wri tten submission, para.  5.12; report on the definitive 
determination (Exhibits TUN -7, MAR -1), paras.  91 and 92)  
97 Tunisia's first written submission, section  5.2.4.2.  
98 Tunisia's first written submission, paras.  5.62 and 5.63.  
99 Tunisia's response to Panel question No.  1.4, para.  39 (quoting the report on the definitive 
determination (Exhibit MAR -CONF -3 (BCI)), para.  56). 
100 Tunisia's first written submission, para.  5.67.  
101 Tunisia's response to Panel question No.  1.4, para.  42. 
102 Tunisia's response to Panel question No.  1.20, para.  14. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 29 - 
  are lower" .103 Therefore, according to Tunisia, "an inflated  profit margin necessarily results in both 
an inflated normal value and an inflated margin of dumping, which is inconsistent with the definition 
of 'dumping' set forth in Article  2.1 of the Anti -Dumping Agreement".104 
7.67.  Tunisia clarifies, however, that it does not dispute the fact that MIICEN decided to calculate a 
profit margin instead of relying on the profits declared by the exporters105, and that it is not pursuing 
its claim under Article 12.2.2 of the Anti -Dumping Agreement concerning sales of numbered or 
watermarked exercise books.106 
7.68.  Lastly, concerning the order of analysis of its claims, we note that Tunisia requests us to 
address first the claim under Articles  2.2 and 2.2.2, then, if we find that both provisions or either of 
the two were violated, to find that there was a "consequential" violation of Article  2.1 of the 
Anti-Dumping Agreement107 or to "take note of the fact that Tunisia requested a finding of 
inconsistency with each of those provisions but  that the Panel decided to exercise judicial 
economy".108 
7.2.1.2.2   Analysis  
7.2.1.2.2.1   Has Tunisia established that excluding sales of subsidized numbered and 
watermarked exercise books from the establishment of the reasonable amount for profits 
was inconsistent with Articles  2.2 and 2.2.2 of the Anti -Dumping Agreement?  
7.69.  On the matter of the exclusion of numbered and watermarked exercise books, MIICEN 's report 
on the definitive determination indicates:  
Concerning sales of so -called "numbered" exercise books, these types of exercise books 
are produced using state-subsidized off set paper, which is watermarked, unlike the 
so-called "super" school exercise books, which are made of paper that is not subsidized . 
These numbered exercise books are sold only in the domestic market and it is strictly 
prohibited to export them . In additio n, the exporters explained that the watermarked 
paper used to produce the numbered exercise books is purchased from the Tunisian 
National Cellulose and Esparto Paper Company (a public company) at a regulated 
transfer price and that this watermarked paper m ay not be used for exercise books 
destined for export … Furthermore, heavy penalties are imposed if exercise books made 
of watermarked paper are exported . Thus, given these facts, and for the purposes of a 
fair comparison between the normal value and the e xport price, sales of these 
(numbered) types of exercise books were not included in the calculation of the normal 
value, since no comparable types of exercise books made with watermarked paper are 
sold for export to Morocco.109 
7.70.  In practice, although sales o f numbered and watermarked exercise books were indeed 
declared by the two producers/exporters that cooperated with the investigation, those sales were 
excluded from the calculation of the reasonable amount for profits used to construct the normal 
value of certain other models of exercise books .110 It is clear from the passage quoted above that 
the reason why numbered and watermarked exercise books were excluded was because of the 
export ban imposed on these exercise books.111 Tunisia notes, however, that MIIC EN did include 
 
103 Tunisia's response to Panel question No.  1.4, para.  43. See also Tunisia's first written submission, 
para. 5.68.  
104 Tunisia's response to Panel question No.  1.4, para.  43. 
105 Tunisia's response to Panel question No.  1.24, para. 18. 
106 Tunisia's response to Panel question No.  1.5, para.  44. 
107 Tunisia's response to Panel question No.  1.26, para.  20. 
108 Tunisia's response to Panel question No.  1.25, para.  19. 
109 Report on the definitive determination (Exhibits TUN -7, MAR -1), par a. 94. ( fns omitted)  
110 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)): although sales of these exercise 
books do appear in the "Vent edom brut" sheet, they do not appear in the "Ventedom" sheet, which was used 
as the basis for calculating the reasonable amount for profits. (See also Tunisia's first written submission, 
para. 5.8) 
111 We note that, in its preliminary determination, the inve stigating authority had asserted that 
numbered and watermarked exercise books were "excluded from the scope of the definition of the product 
 WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 30 - 
  other models of exercise books that were not exported in the calculation of the reasonable amount 
for profits.112 
7.71.  We recall that Article  2.2 of the Anti -Dumping Agreement establishes how the normal value 
of the product under investigation is determined when domestic sales of the like product do not 
allow for a proper comparison with the export price . In those specific circumstances, the normal 
value may be constructed . This constructed normal value includes, in particular, a " reasonable 
amount" for profits, which is determined pursuant to Article  2.2.2:  
For the purpose of paragraph  2, the amounts for administrative, selling and general 
costs and for profits shall be based on actual data pertaining to production and sales in 
the ordinary course of trade of the like product by the exporter or producer under 
investigation.  
7.72.  This provision sets out three principles on which these costs and profits must be "based" : the 
investigating authority must use (a)  actual data from domestic pro duction and sales , (b) of the like 
product , and (c)  in the ordinary course of trade.  
7.73.  Morocco's defence is based primarily on the argument that any determination of dumping is, 
by definition, a matter of comparing two prices – a domestic price (normal value ) and an export 
price113 – for the same product or for a like product , and that the reference to "actual data pertaining 
to production and sales" in Article  2.2.2 is not a reference to all sales, but to those that are subject 
to a fair comparison.114 
7.74.  We share Morocco's view that the reference to "actual data pertaining to production and sales" 
in Article  2.2.2 "does not refer to all sales" of the like product by the producer/exporter concerned . 
In point of fact, that article states that the investigating authority should disregard sales that were 
not in the ordinary course of trade.  
7.75.  In this dispute, however,  Morocco insists that sales of the numbered and watermarked 
exercise books were  excluded not because of the "extraordinary" nature of those sales in the 
Tunisian market, and therefore the potentially "extraordinary" nature of the profits from those sales, 
but solely because the exercise books are subject to an export ban . Therefore, although MIICEN 's 
report on the definitive determination notes that the paper used is " state-subsidized" and is 
purchased "at a regulated transfer price", and therefore might not reflect "sales [made] under 
normal conditions of competition in the domestic market"115, Morocco confirmed, in response to the 
Panel's questions, that " [t]he question … of the watermarked exercise books is very simple and is 
based entirely on the authority's specific determination in respect of the watermarked exercise 
books : does A rticle 2.2.2 require an authority to examine products which, under the legislation of 
the exporting country, are not allowed to be exported?"116 Similarly, in response to Tunisia's 
arguments pertaining to whether sales of numbered and watermarked exercise b ooks were 
"ordinary" or not, Morocco considered that those assertions were "not relevant" .117 In the light of 
Morocco's explanations, we will not examine whether sales of numbered and watermarked exercise 
 
under consideration". (Report on the preliminary determination, (Exhibit MAR -17), p ara. 25) Nevertheless, in 
respon se to a Panel question, Morocco accepted that " [t]he purpose of paragraph  25 of the preliminary 
determination was to explain that numbered exercise books had been excluded from the calculation of the 
normal value, and not from the definition of the product ". (Morocco's response to Panel question No.  1.5, 
para. 24) We note also that MIICEN's final report states that "the exclusion of the so -called  'numbered' 
exercise books is for technical needs linked to the dumping calculation (comparison of normal value and export 
price of comparable sales) and in no way influences the definition of the product under investigation and/or the 
product under consideration, since this definition is established on the basis of the product's technical 
considerations and customs  considerations stemming from the customs tariff". (Report on the definitive 
determination (Exhibits TUN -7, MAR -1), para. 56)  
112 Tunisia's second written submission, para.  2.47. 
113 Morocco's second written submission, para.  141. 
114 Morocco's second written su bmission, para.  142. 
115 Report on the definitive determination (Exhibits TUN -7, MAR -1), para.  94 and fn 26.  
116 Morocco's response to Panel question No.  1.22, para.  13 (quoting Morocco's opening statement at 
the second meeting of the Panel, para.  66). See also Morocco's  first written submission, para.  69: "the 
fundamental issue, already underlined in the Essential F acts (a document on which the exporters have 
commented) and confirmed several times by Tunisia and the exporters, was the fact that these exercise 
books are not exported, under penalty of heavy sanctions" ". (emphasis original)  
117 Morocco's first written sub mission, para.  71. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 31 - 
  books could have been excluded from the calculation of the reasonable amount for profits, on the 
grounds that those sales did not take place in the ordinary course of trade.  
7.76.  The question before us, therefore, is whether excluding sales that did not take place in the 
ordinary course of trade, as explicitly e nvisaged in Article  2.2.2, is the only possible exclusion, or 
whether other domestic sales may be excluded from the determination of the reasonable amount 
for profits for other reasons . Since Article  2.2.2 does not provide for other exceptions, we must 
consider the context of this provision and, in particular, the other paragraphs of Article  2. 
7.77.  Before us, Morocco and the European Union justify the exclusion of the numbered and 
watermarked exercise books based on the need to make a fair comparison between th e normal value 
and the export price, within the meaning of the first sentence of Article  2.4. Thus, the European 
Union asserts that:  
When the type of product, not -exported or rarely exported, is sold in substantial 
quantities in the market of the country of origin, consideration of the price of domestic 
sales of this type of product is likely to distort the normal value of the product under 
consideration, either by inflating its normal value or by unduly reducing it.118 
7.78.  The European Union therefore consider s that "insofar as the exclusion of sales of numbered 
or watermarked exercise books from the calculation of the profit margin of Tunisian exporters seeks 
to ensure a fair comparison  between the export price and the normal value, no breach of Articles  2.1, 
2.2 and 2.2.2 of the Anti -Dumping Agreement can be found to exist as a result of that exclusion" .119 
For its part, Morocco asserts that:  
The authority simply excluded sales of products that, under Tunisian law, are not 
exported from Tunisia "for technical n eeds linked to the dumping calculation 
(comparison of normal value and export price for comparable sales)".120 
7.79.  Morocco also considers that:  
Tunisia's claim would have an absurd outcome  for anti -dumping investigation s, since it 
would mean that, for the purposes of the dumping calculation, products would have to 
be taken into account that, under the laws of the exporters' host country, are unable to 
be dumped.121 
7.80.  We recall that Article  2.2 concerns the determin ation of the  normal value, and in particular a  
constructed normal value . It states that the purpose of constructing a normal value is to allow a "fair 
comparison" when domestic sales of the like product do not permit such a comparison . Therefore, 
in this case, MIICEN constructed the normal value of ce rtain models (other than numbered and 
watermarked exercise books) the sales of which did not permit a "proper comparison", either 
because they did not take place in the ordinary course of trade or because their volume in the sense 
of Article  2.2 was too sm all.122 This is therefore a separate issue to the one addressed by Article  2.4, 
which concerns (a)  comparability between the normal value so ascertained and the export price ; 
and (b) the comparison of these two prices, i.e. the calculation of the margin of dumping.  
7.81.  We also recall that Tunisia does not challenge before us Morocco's right to exclude numbered 
and watermarked exercise books from the comparison, on the grounds that numbered and 
watermarked exercise books are not exported and are, therefore, in fa ct, unable to be dumped . 
What Tunisia does contest  is that these sales not being taken into account in the calculation of the 
reasonable amount for profits under Article  2.2, i.e. in the construction of the normal value of those 
models of exercise books th at are exported.  
7.82.  In our opinion, it is not clear from the investigation record – and Morocco has failed to 
demonstrate before us – that including sales of numbered and watermarked exercise books in the 
 
118 European  Union's  third-party submission, para.  25. 
119 European  Union's  third-party submission, para.  27. (emphasis added)  
120 Morocco's first written submission, para.  71 (quoting the report on the definitive determination, 
(Exhibit MAR -1), para.  56). 
121 Morocco's first written submission, para.  73. 
122 Tunisia's first written submission, para.  5.12.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 32 - 
  determination of the reasonable amount for profits wou ld not result in a normal value that would 
permit  a "proper comparison" with the export price . Conversely, disregarding domestic sales of those 
exercise books led to a reasonable amount for profits that was not "based" on "actual data pertaining 
to product ion and sales in the ordinary course of trade of the like product by the exporter or producer 
under investigation", within the meaning of Article  2.2.2 of the Anti -Dumping Agreement.  
7.2.1.2.2.2   Has Tunisia established a consequential violation of Article  2.1? 
7.83.  Lastly, we recall that Tunisia requests that, if a violation is found under Articles  2.2 and 2.2.2, 
we find a "consequential" violation of Article  2.1 of the Anti -Dumping Agreement123 or "take note of 
the fact that Tunisia requested a finding o f inconsistency with each of those provisions but that the 
Panel decided to exercise judicial economy" .124 In this regard, we note that Tunisia does not develop 
specific arguments in support of its claim under Article  2.1 and does not explain how additional  
findings under Article  2.1 would help to settle the dispute.  
7.84.  We noted above125 that other panels and the Appellate Body have regarded Article  2.1 of the 
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations .126 
Furthermore, we indicated that we did not share Tunisia's opinion that a violation of Article  2.2 or 
Article  2.2.2 of the Anti -Dumping Agreement "would necessarily result in a finding of violation of 
Article  2.1". In that sense, we consider that, in order  to establish a violation of Article  2.1, even a 
consequential violation, the requesting party must explain how the measure at issue specifically 
violates that provision of the Anti -Dumping Agreement.  
7.85.  In the present case, we consider that Tunisia's argument s in support of its claim under 
Article  2.1 are the same as those developed in support of its claim under Articles  2 and 2.2.2 of the 
Anti-Dumping Agreement . In our view, they are not sufficient to establish what Morocco's obligations 
are under Article  2.1, or how those obligations were violated by the exclusion of the numbered and 
watermarked exercise books.  
7.2.1.2.3   Conclusion on the decision to exclude numbered and watermarked exercise 
books  
7.86.  In the light of the foregoing, we conclude that Tunisia has demonstrated that, by excluding 
sales of numbered and watermarked exercise books, MIICEN did not base the reasonable amount 
for profits on "actual data pertaining to production and sales in the ordinary course of trade of the 
like product by the exporter o r producer under investigation", thereby violating Article  2.2.2. 
Morocco therefore violated Article  2.2 of the Anti -Dumping Agreement by not using a "reasonable 
amount" for profits when constructing the normal value of certain models of exercise books . We also 
conclude, however, that Tunisia has failed to  demonstrate any violation of Article  2.1 of the 
Anti-Dumping Agreement.  
7.2.1.3   Whether including the distribution cost in the constructed normal value was 
inconsistent with Articles  2.1 and 2.2 of the Anti -Dumpi ng Agreement  
7.2.1.3.1   Introduction  
7.87.  Tunisia takes issue with MIICEN for including in the constructed normal value expenses related 
to the distribution cost (domestic transportation and port fees), which are not among the normal 
value components described in Article  2.2 of the Anti -Dumping Agreement.  
7.88.  Tunisia maintains that "domestic transportation costs are not included in the 'cost of 
production' or in the 'administrative [and] selling...costs'" described in Article  2.2. Therefore, MIICEN 
erred by including domestic transportation costs in the reconstructed normal value.127 
 
123 Tunisia's response to Panel question No.  1.26, para.  20; second written submission, para.  2.50.  
124 Tunisia's response to Panel question No.  1.25, para.  19. 
125 Para. 7.57.  
126 Appellate  Body Report, US – Zeroing (Japan) , para.  140; Panel Report, Ukraine – Ammonium Nitrate , 
para. 7.120.  
127 Tunisia's first written submission, para.  5.83; second written submission, para.  2.52.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.89.  Tunisia also claims that "including the 'per -unit distribution cost' in the normal value 
calculation caused the margin of dumping to increase" in a manner that is inconsistent with the 
provisions of  Article  2.1 of the Anti -Dumping Agreement.128 
7.2.1.3.2   Analysis  
7.90.  We recall that Morocco requests, in the first instance, that we do not examine this argument 
put forward by Tunisia, on the grounds that it would amount to asking the Panel to conduct a de 
novo review,  prohibited under Article 17.6(i) of the Anti -Dumping Agreement . In this case, Morocco 
asserts that the interested parties never raised this matter before the authority and therefore cannot 
do so for the first time before us.129 
7.91.  We consider Morocco's object ion to be without merit.  
7.92.  We recall that Article  17.6(i) of the  Anti-Dumping Agreement, read together with the 
provisions of Article  11 of the DSU, sets out the standard to be applied by panels when assessing 
whether a Member's investigating authorities hav e "established" and "evaluated" the facts 
consistently with that Member's obligations under the covered agreements .130 This provision 
precludes a panel from substituting the investigating authority by engaging in an independent 
fact-finding exercise . Howeve r, if requested to do so by the parties, a panel must determine whether 
the authority's establishment of the facts was proper and whether its evaluation of those facts was 
unbiased and objective.  
7.93.  In this case, Tunisia is not asking us to re -evaluate the fa cts and substitute our evaluation for 
that of the authority . It is asking us to find, on the basis of the facts contained in the investigating 
authority's record, that the authority did not construct the normal value in a manner consistent with 
Articles  2.1 and 2.2 of the Anti -Dumping Agreement . It is therefore a question of application of the 
rules of the Anti -Dumping Agreement, which clearly falls within our jurisdiction.  
7.94.  We will therefore proceed to examine the arguments put forward by Tunisia.  
7.2.1.3.2.1   Has Tunisia established that the normal value constructed by MIICEN was 
inconsistent with Article  2.2 of the Anti -Dumping Agreement?  
7.95.  We recalled above that the investigating authority constructed a normal value for certain 
models sold by SOTEFI.131 
7.96.  The investig ation record shows that, for SOTEFI, this normal value was constructed by adding 
the "cost price"132 and the "profit" established by MIICEN on the basis of data provided by SOTEFI .133 
However, the spreadsheet that MIICEN provided with the essential facts sho ws that, in this case, 
the "cost price" was the sum of a "unit production cost"134 and a "unit distribution cost", including 
domestic transportation and port fees .135 Morocco does not dispute this factual description of the 
composition of the normal value es tablished by MIICEN.  
7.97.  Tunisia therefore takes issue with the investigating authority for including a "unit distribution 
cost" in the constructed normal value of certain SOTEFI models, even though Article  2.2 of the 
Anti-Dumping Agreement describes construct ed normal value as being composed of the "cost of 
 
128 Tunisia's first written submission, paras.  5.85 and 5.87.  
129 Morocco's first written submission, paras.  63-65. 
130 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84. 
131 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)) , in the "Cout 
de production" sheet. See also Tunisia's first written submission, paras.  5.77-5.79; second written submission, 
paras.  2.54-2.56.  
132 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column M of 
the "Cout de production" sheet.  
133 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column N of 
the "Cout de production" sheet.  
134 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column J  of 
the "Cout de production" sheet.  
135 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column K of 
the "Cout de production" sheet.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  production in the country of origin plus a reasonable amount for administrative, selling and general 
costs and for profit".136 
7.98.  The question before us is therefore whether a distribution cost that includes do mestic 
transportation and port fees could, in this case, be included in the constructed normal value of 
certain SOTEFI models.  
7.99.  The parties agree that the Anti -Dumping Agreement does not contain a precise definition (or 
a methodology for determining the amo unt) of each component of normal value .137 Morocco 
therefore asserts that "what should be included in the 'cost of production' depends on the specific 
circumstances of each case" .138 Tunisia, for its part, accepts that "the terms 'cost of production in 
the country of origin' and 'administrative, selling and general costs' are not explicitly defined in the 
Anti-Dumping Agreement" .139 Thus, while "administrative, selling and general costs" is a concept 
"widely used in the fields of business management and accoun tancy… there is no formal definition 
that can be used to identify its components . Each company therefore has some margin of discretion 
in determining how to classify certain expenses".140 
7.100.   Nevertheless, Tunisia recalls that "Article  2.2.1 mentions that 'per unit … costs of production' 
refers to 'fixed and variable' costs" .141 On the other hand, it considers that, if the investigating 
authority decides to construct normal value at the "ex -factory stage", it should take into account 
only administrative, selling and general costs and expenses that are part of an ex -factory level 
price-.142 In this case, the "distribution cost" (and, in particular, the costs for transportation from 
the factory door to the delivery point specified in the contract) is not part of the ex-factory level 
price. It would therefore not be "reasonable" to include the "distribution cost" in a constructed normal 
value at the ex -factory level.143 
7.101.   Morocco responds that the authority is not accountable for any error that may occur in the 
construction of normal value when that error is based on data provided by the producers/exporters 
that cooperated with the investigation . In the case at hand, MIICEN considers that it simply accepted 
exporters' data as presented and that "if an error occur red in the formula for the constructed profit 
margin, that was not brought to its attention".144 
7.102.   We disagree with Morocco's argument . First, we note, like Tunisia, that SOTEFI did declare 
a unit distribution cost separately  from the cost of production145 and that it broke down the content 
of that distribution cost ("domestic transportation + port fees") . There was therefore no ambiguity 
regarding the components of these different elements . Furthermore, as we already noted above146, 
any error or ambiguity in th e manner in which an interested party responds to the authority's 
questions does not exempt the investigating authority from its obligation to ensure "the accuracy of 
the information supplied by interested parties upon which their findings are based"147 and to 
establish the facts " proper [ly]". Nor does such an error or ambiguity exempt a Member from its 
obligation to establish the product's normal value, in accordance with the provisions of Article  2.2 of 
the Anti -Dumping Agreement.  
7.103.   In the case at hand, we c onsider that Tunisia has demonstrated that, although MIICEN 
constructed the normal value of certain models of exercise books at the ex -factory level148, it 
 
136 Tunisia's first written submission, para.  5.83.  
137 Morocco's response to Panel question  No. 1.9, paras.  37 and 38.  
138 Morocco's response to Panel question No.  1.9, para.  39. 
139 Tunisia's response to Panel question No.  1.9, para.  55. 
140 Tunisia's response to Panel question No.  1.9, para.  57. See also Tunisia's second written submission, 
paras.  2.58 and 2.59.  
141 Tunisia's response to Panel question No.  1.9, para.  56. 
142 Tunisia's response to Panel question No.  1.9, para.  58. See also European  Union's  third-party 
response to Panel question No.  1.2, paras.  11-13. 
143 Tunisia's response to Panel question  No. 1.9, para.  59. 
144 Morocco's response to Panel question No.  1.9, para.  43. 
145 Tunisia's second written submission, para.  2.65; Excel file containing the dumping margin calculation 
(SOTEFI) (Exhibit TUN -14 (BCI)), column K in the "Cout de production" shee t. 
146 See paragraph 7.54 above.  
147 Article  6.6 of the Anti -Dumping Agreement.  
148 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 103.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  included domestic transportation costs and port fees in its calculation149, which are not part of normal 
value at the ex -factory level . We therefore conclude that the amount used by MIICEN as normal 
value for certain SOTEFI models is not a correct "normal value" within the meaning of Article  2.2 of 
the Anti -Dumping Agreement.  
7.2.1.3.2.2   Has Tunisia established a consequential violation of Article  2.1? 
7.104.   Lastly, we recall that Tunisia requests us to find that "MIICEN acted inconsistently with 
Article  2.1 of the Anti -Dumping Agreement, because a normal value inflated by the inclusion of the 
'distribution cost' results  in an inflated margin of dumping" .150 In this regard, we note that Tunisia 
does not develop specific arguments in support of its claim under Article  2.1 and does not explain 
how additional findings under Article  2.1 would help to settle the dispute.  
7.105.   We noted above151 that other panels and the Appellate Body have regarded Article  2.1 of the 
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations .152 
Furthermore, we indicated that we did not share Tunisia's view that a  violation of Article  2.2 or 
Article  2.2.2 of the Anti -Dumping Agreement "would necessarily result in a finding of violation of 
Article  2.1". In that sense, we consider that, in order to establish a violation of Article  2.1, even a 
consequential violation,  the requesting party must explain how the measure at issue specifically 
violates that provision of the Anti -Dumping Agreement.  
7.106.   In the present case, we consider that Tunisia's arguments in support of its claim under 
Article  2.1 are the same as those developed in support of its claim under Article  2.2 of the 
Anti-Dumping Agreement . In our view, they are not sufficient to establish what Morocco's obligations 
are under Article  2.1 , or how those obligations were violated as a result of errors made by MII CEN 
when it established the normal value.  
7.2.1.3.3   Conclusion on the inclusion of distribution costs in the constructed normal value  
7.107.   In view of the foregoing, we conclude that Tunisia has established that the inclusion of 
distribution costs in the constructed norma l value of certain models of SOTEFI exercise books was 
inconsistent with the obligation under Article  2.2 of the Anti -Dumping Agreement to construct normal 
value on the basis of the "cost of production in the country of origin plus a reasonable amount for 
administrative, selling and general costs and for profit" . We also conclude, however, that Tunisia 
has failed  to demonstrate any violation of Article  2.1 of the Anti -Dumping Agreement.  
7.108.   We now turn to Tunisia's claims concerning Articles  2.1 and 2.4 of the Anti-Dumping 
Agreement.  
7.2.2   Tunisia's claims concerning fair comparison  
7.2.2.1   Whether the determination concerning licences as a factor affecting price 
comparability was inconsistent with Articles 2.1, 2.4 and 12.2.2 of the Anti -Dumping 
Agreement  
7.2.2.1.1   Introduction  
7.109.   Tunisia asserts that MIICEN should have taken into account the existence of a licence 
agreement between SOTEFI and the [[***]] company under the factors affecting price 
comparability .153 According to Tunisia, the investigating authority had all the information ne cessary 
 
149 Tunisia's second written submission, para.  2.62. 
150 Tunisia's second written submission, para.  2.73. 
151 See paragraph 7.57 above.  
152 Appellate  Body Report, US – Zeroing (Japan) , para.  140; Panel Report, Ukraine – Ammonium Nitrate , 
para. 7.120.  
153 For Tunisia, this licence agreement constitutes an authorization to use an intellectual property right 
(for example, a design on the cover of the exercise books) and generates a significant price difference, 
particularly as a result of the royalties to be paid by SOTEFI. (Tunisia's first written submission, paras. 5.127 -
5.132; second written submission, para. 3. 37) WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  to make allowance for this difference in the typology of the different exercise book models154 or to 
make an adjustment for physical characteristics155 when comparing the normal value and the export 
price. Thus, according to Tunisia:  
First, the [dome stic industry] itself acknowledged in the petition that licence use 
affected the price of exercise books by up to 5 -10%. Second , SOTEFI provided a list of 
all the licensed exercise book models exported to Morocco . Third, SOTEFI placed on 
the record the con tract entered into with the [[***] ] company requiring SOTEFI to pay 
[[***] ] so that the exercise books could bear an image of this entertainment company . 
Fourth , SOTEFI reported all sales of licensed and non -licensed exercise books in the 
Excel file dated 23 May 2018.156 
7.110.   Tunisia considers that if, despite the information on the investigation record, MIICEN 
considered that it required additional information, or wished that the information before it be 
submitted in a different format, MIICEN should have "'indi cate[d] … what information [was] 
necessary to ensure a fair comparison' as required by Article 2.4 of the Anti -Dumping Agreement".157 
7.111.   According to Tunisia, this difference had a significant impact on the margin of dumping 
calculated by MIICEN since, "by lumping together licensed and unlicensed exercise books in order 
to compare normal value and export price, the 'margin  of dumping ' for such models was inflated 
significantly".158 
7.112.   Tunisia therefore claims that the investigating authority violated the fair comparison 
obligation under Article 2.4 of the Anti -Dumping Agreement by failing to make due allowance for 
this difference in physical characteristics . It also requests the Panel to find that this violation of 
Article 2.4 gives rise to a " consequentia l" violation of Article 2.1 of the Anti -Dumping Agreement .159 
Lastly, Tunisia claims that MIICEN's decision to not take licences into account is not based on the 
evidence on the record and is, therefore, inconsistent with Article 12.2.2 of the Anti -Dumping 
Agreement.160 
7.2.2.1.2   Analysis  
7.2.2.1.2.1   Tunisia's claim under Article  2.4 of the Anti -Dumping Agreement  
7.113.   The relevant provisions of Article  2.4 of the Anti -Dumping Agreement  state that: 
A fair comparison shall be made between the export price and the normal value. … Due 
allowance shall be made in each case, on its merits, for differences which affect price 
comparability … and any other differences which are also demonstrated  to affect price 
comparability. … The authorities shall indicate to the parties in question what 
 
154 The record shows that MIICEN classified the exercise books according to certain characteristics 
"affecting price comparability", namely: the types of binding, the exercise books' format, the number of pages, 
the paper grammage, the types of cover and the t ypes of varnish used on the cover. However, it refused to 
make allowances for  three other physical characteristics requested by SOTEFI: the presence of round corners, 
the ruling and the use of licences. (Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 85; 
see also Tunisia's first written submission, para. 5.138; and second written submission, para. 3.36)  
155 Tunisia's first written submission, para. 5.139.  
156 Tunisia's response to Panel question No. 2.7, paras. 53  and 54 (italics original ; fns omitted; bold  
type added). Tunisia adds that in the presentation by the exporters' representative at the public hearing on 30 
April 2018, it was also noted that the determination of "types/specifications" should include the use of licences. 
(Presenta tion by SITPEC and SOTEFI  (30 April 2018) (Exhibit TUN -21), p. 8; Tunisia's first written submission, 
para. 5.133. See also Tunisia's  second written submission, paras.  3.41-3.45)  
157 Tunisia's response to Panel question No.  2.7, para. 54. See also Tunisia's second written submission, 
para. 3.53.  
158 Tunisia's first written submission, para. 5.138; second written submission, para. 3.59.  
159 Tunisia's response to Panel question No. 2.9, paras. 68 and 69. See also Tunisia's second written 
submission, para. 3.38.  
160 Tunisia's  first written submission, para.  5.143; second written submission, para.  3.67. In response to 
a Panel question, Tunisia states, however, that it does not "object to the Panel exercising judicial economy with 
respect to Tunisia's claim under Article  12.2.2 of the Anti -Dumping Agreement, insofar as the Panel finds an 
inconsistency with Articles 2.4 and 2.1 of the Anti -Dumping Agreement". (Tunisia's response to Panel question 
No. 2.20, para.  130. See also Tunisia's second written submission, fn 90)  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  inform ation is necessary to ensure a fair comparison and shall not impose an 
unreasonable burden of proof on those parties.161 
7.114.   This article focuses on the comparison between the normal value and the export price and 
contains the requirements enabling an investiga ting authority to ensure a "fair" comparison . In 
particular, it provides that the investigating authority shall, in its comparison, "make allowance" for 
differences which affect the "comparability" between the normal value and the export price . 
Article 2.4 does not prescribe a specific methodology for making allowance for such differences and 
therefore leaves the authorities the choice to classify the product under investigation  by types 
presenting the same characteristics and/or to make the necessary adjus tments when making the 
comparison.  
7.115.   Article 2.4 also allocates the burden of proof between the interested parties and the 
investigating authority in order to make allowance for differences affecting price comparability.  
7.116.   Thus, the obligation to ensure a "fai r comparison" is lies on the investigating authorities162 
and it is therefore up to them to "make allowance" for differences when making a comparison . 
However, it is up to the party seeking an adjustment to "demonstrate" that there is a difference and 
that it affects price comparability . Therefore, in other dispute settlement proceedings, exporters 
were found to bear the burden of substantiating, "as constructively as possible", their requests for 
adjustments . Failing this, there is no obligation for the aut hority to make an adjustment .163 In turn, 
the last sentence of Article 2.4 further states that the authorities shall nevertheless indicate to the 
parties what information is necessary to ensure a fair comparison, without imposing an 
"unreasonable" burden of  proof on those parties.  
7.117.   This process, which is likely to continue throughout the investigation, has been described as 
a "dialogue" between the authority and interested parties .164 The distribution of the burden of proof 
between the authority and the intere sted parties is the same, regardless of the method used by the 
authority to "make allowance" for differences affecting price comparability . Article 2.4 does not 
differentiate in this regard between whether the investigating authority uses - for the purposes of 
comparability - a typology of models or makes adjustments at the comparison stage.  
7.118.   In the present dispute, we are therefore faced with two questions in the light of Tunisia's 
arguments:  
a. Did the investigating authority indicate to SOTEF I what information was necessary to 
ensure a fair comparison?  
b. Did SOTEFI demonstrate that licenses affected price comparability?  
7.119.   In the following paragraphs, we examine these two questions in turn.  
7.2.2.1.2.1.1 Did MIICEN indicate to SOTEFI what informati on was necessary to ensure a 
fair comparison?  
7.120.   The investigation record shows that MIICEN did establish a "dialogue" with SOTEFI in respect 
of the requested adjustments:  
a. The questionnaire sent to SOTEFI upon initiation of the investigation requested the 
company to explain "in detail" each of the requested adjustments, including by reporting 
"actual expenditure" and indicating whether such expenditure is subsidized . A specific 
section was provided for the requested adjustments relating to the physical charact eristics 
of the exercise books . The company was also requested to identify the market value of 
those adjustments and the corresponding references in the company's accounts, so that 
 
161 Fn omitted; emphasis added.  
162 Appellate  Body Report, EC – Fasteners (China) , para.  487 (quoting Appellate  Body Report, US – Hot-
Rolled Steel , para.  178).  
163 Appellate Body Report, EC – Fasteners (China) , para. 488 (quoting Panel Report, EC – Tube or Pipe 
Fittings, para. 7.158).  
164 Appellate Body Report, EC – Fasteners (China) , para.  489. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  they could be verified .165 Lastly, the company was asked to report the adjus tments in the 
electronic file in the "Ventedom" sheet.166 
b. Subsequently, "[o]n 1 5 August  2017, MIICEN sent the exporters a deficiency letter in 
which it asked the following question : '[p]lease explain further whether there are any 
licensed trademarks used on the covers of the exercise books'".167 
c. Lastly, on 4 May 2018, M IICEN requested SOTEFI to revise "the classification used" for 
domestic sales and for sales to Morocco "by adding cover criteria (varnished or not, 
laminated, cardboard, under  licence, etc.)".168 
7.2.2.1.2.1.2 For its part, did SOTEFI "demonstrate" that licences affected price 
comparability?  
7.121.   The record shows that SOTEFI did not request an adjustment in its questionnaire response . 
It is only in response to the deficiency letter t hat SOTEFI provided a list of licensed exercise books 
sold in the Tunisian and export markets169, and the licence contract between SOTEFI and the [[***]] 
company .170 It also appears that in a revised version of its initial response to MIICEN's questionnaire,  
SOTEFI included a column in the "Ventedom" sheet of its electronic file to distinguish between those 
exercise books that were sold under licence and those that were sold without a licence.171 
7.122.   Subsequently, the report on the definitive determination states that "[f]ollowing the 
publication of the preliminary determination … [the exporters] requested that other criteria be 
included in the classification and comparison, namely : types of covers (coated paper, coated 
cardboard, rigid, PP -rigid), cover varnishes (without varnish, UV varnish or acrylic varnish, 
polypropylene, film), the presence of round corners (with or without), rul ed (5/5, 10/10, seyes, 
uniseyes -uni) and the use of licences".172 
7.123.   It can therefore be deduced that, having not requested an adjustment for licences in its 
initial response to the questionnaire, SOTEFI clarified its request in various exchanges with the 
investigating authority.  
7.124.   However, as Morocco notes before us173, it is clear from the record that SOTEFI never 
provided the info rmation requested by the authority in the questionnaire, that is to say, by explaining 
the requested adjustment in detail, reporting the actual expenditure, as well as the market value of 
these adjustments and the corresponding references in the company's accounts . Similarly, the 
revised electronic spreadsheet submitted to MIICEN by SOTEFI does refer to which exercise book 
models are sold under licence, but does not demonstrate how that difference affected price 
comparability .174 
7.125.   Another panel considered tha t an exporter was not obliged to request an adjustment in its 
response to the initial questionnaire and could do so later in the investigation .175 We agree . However, 
we believe that there remains a requirement to provide the information requested by the aut hority, 
provided that the burden of proof imposed on the exporter is not "unreasonable", within the meaning 
 
165 SOTEFI 's response s to the questionnaire (Exhibit MAR -CONF -15 (BCI)), p. 31.  
166 SOTEFI 's response to the questionnaire (Exhibit MAR -CONF -15 (BCI)), p. 31.  
167 Tunisia's response to Panel question No. 2.1, para. 81; Morocco's second written submission, para. 
152. 
168 Email dated 4  May 2018 (Exhibit TUN -72). 
169 List of licensed products sold in the domestic and export markets (Exhibit TUN -44 (BCI)).  
170 Tunisia's response to Pan el question No.  2.1, para. 81.  
171 Tunisia's response to Panel question No. 2.7, para. 53 and fn 31. See also revised data provided by 
SOTEFI (Exhibit TUN -11 (BCI)), column N of the "Ventedom" sheet. The data relating to licences also appear in 
the file prov ided by MIICEN. (Excel file containing the dumping margin calculation (SOTEFI) (TUN -14 (BCI)), 
column M of the "Ventedom brut" sheet). In this regard, see Tunisia's second written submission, para 3.43.  
172 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), para. 83.  
173 Morocco's first written submission, fn 75. See also Morocco's response to Panel question No. 2.3, 
para. 51.  
174 Morocco's first written submission, fn 75.  
175 Panel Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , para. 7.83 . WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  of the last sentence of Article 2.4 of the Anti -Dumping Agreement . We note that in the present 
dispute, Tunisia does not assert that the burden of p roof imposed by MIICEN was "unreasonable".  
7.2.2.1.2.1.3 Conclusion on consistency with Article 2.4  
7.126.   In view of the foregoing, it therefore appears that the investigating authority did comply with 
the requirement of Article 2.4 of the Anti -Dumping Agreement  by indicating to SOTEFI what 
information was necessary to ensure a fair comparison . However, the record shows that SOTEFI 
never provided the information requested by MIICEN and therefore failed to "demonstrate" that 
licences affected price comparability w ithin the meaning of Article 2.4 of the Anti -Dumping 
Agreement.176 
7.127.   Tunisia insists that, in this case, SOTEFI was not asking for a precise adjustment for each 
transaction, but for an allowance to be made for licences in the classification of the exercise bo oks 
by model . It asserts that, unlike a strict adjustment, the creation of a classification by model at the 
start of the investigation would not require specific information on the magnitude of the price 
difference.177 
7.128.   As noted above178, we are not convinced  that how an authority decides to make allowances 
for differences affecting price comparability (by developing a typology of different models or by 
making adjustments) changes the burden of proof falling on the authority and the interested parties, 
respect ively. It is up to the party seeking an adjustment to "demonstrate" that there is a difference 
and that it affects price comparability . It is also incumbent on this party to respond "as constructively 
as possible" to requests for information made by the au thority, provided that it does not impose an 
unreasonable burden of proof.  
7.129.   We therefore conclude that Tunisia has failed to  demonstrate that Morocco violated the 
provisions of Article 2.4 in this case.  
7.2.2.1.2.2   Tunisia's claim under Article 2.1 of the Anti -Dumping Agreement  
7.130.   Tunisia also requests the Panel to find that the alleged violation of Article 2.4 gives rise to a 
"consequential " violation of Article 2.1 of the Anti -Dumping Agreement.179 
7.131.   In particular, Tunisia explains that, "any inconsistency with Article 2.4 of the Anti -Dumping 
Agreement that has the effect of inflating the margin of dumping leads to an inconsistency with the 
requirement under Article 2.1 that a product 'is to be considered as being dumped' only if the normal 
value is higher than the export price".180 
7.132.   It also explains that:  
[I]nsofar as the Panel finds that, by disregarding the use of licences as a relevant 
criterion for the classification of the product under consideration, MIICEN failed to  make 
a fair comparison,  this is inconsistent not only with Article 2.4 but also, and 
consequentially, with Article 2.1, which requires a comparison between the normal value 
and the export price.181 
7.133.   Having failed to find any "inconsistency with Article 2.4 of the Anti -Dumping Agre ement that 
has the effect of inflating the margin of dumping ", or find that "by disregarding the use of licences, 
MIICEN failed to  make a fair comparison", we need not consider whether there is a "consequential" 
violation of Article 2.1.  
 
176 The panel in EC – Tube or Pipe Fittings , faced with similar facts, reached the same conclusion.  (Panel 
Report, EC – Tube or Pipe Fittings , para. 7.189)  
177 Tunisia's second written submission, para. 3.52.  
178 See para. 7.117 above.  
179 Tunisia's response to Panel question No. 2.9, paragraphs 68 and 69.  
180 Tunisia's response to Panel question No.  2.9, para. 68.  (with italics in the original)   
181 Tunisia's response to Panel question No.  2.9, para. 69.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.2.2.1.2.3   Tunisia's claim u nder Article 12.2.2 of the Anti -Dumping Agreement  
7.134.   We recall that Tunisia makes a claim under Article 12.2.2 of the Anti -Dumping Agreement.182 
7.135.   Thus, Tunisia considers that MIICEN's explanation that the record lacked "satisfactory 
justification of [the effect  of the licences] on costs and prices and … their impact on price 
comparability is insignificant"183 does not comply with the obligation contained in Article 12.2.2 to 
indicate all relevant information.184 
7.136.   The provisions of Article 12.2.2 , relevan t to this case, state that:  
A public notice of conclusion or suspension of an investigation in the case of an 
affirmative determination providing for the imposition of a definitive duty … shall 
contain, or otherwise make available through a separate report, all relev ant information 
on the matters of fact and law and reasons which have led to the imposition of final 
measures. … In particular, the notice or report shall contain the information described 
in subparagraph 2.1, as well as the reasons for the acceptance or r ejection of relevant 
arguments or claims made by the exporters and importers[.]  
7.137.   Tunisia refers to several panel reports that have interpret ed Article 12.2.2 as follows:  
[Requiring] that the investigating authority set forth in the relevant opinion or repor t 
"the findings and conclusions reached on all issues of fact … considered material by the 
investigating authorities" . An "issue of fact" under Article 12.2.2 was interpreted to be 
an "issue that [had] arisen in the course of the investigation and that mus t necessarily 
be resolved in order for the investigating authorities to be able to reach their 
determination".185 
7.138.   Conversely, Morocco insists that Article 12.2.2 of the Anti -Dumping Agreement only requires 
an authority to discuss the "relevant" arguments in  its report .186 It considers that "[w]here an 
interested party has not presented arguments before an authority, there is consequently no 
'argument' to be evaluated by the authority and, a fortiori, there is no argument to be disclosed 
under Article 12.2.2 a nd, ultimately, there is nothing for a panel to examine".187 
7.139.   In this case, MIICEN referred in its report on the definitive determination to SOTEFI's 
arguments concerning the licences, as follows:  
a. The report states that at the meetings held on 3 0 April 2018, "the matter of allowance not 
being made for characteristics was discussed at length" and that MIICEN informed the 
exporters "that their background files did not allow certain characteristics to be taken into 
consideration because [the files] were not completed, nor did they make it possible to 
justify [the characteristics] importance".188 
b. The report then states that MIICEN "did not include in the classification certain 
characteristics for which there was no satisfactory justification of their e ffect on costs or 
prices, and whose impact on price comparability was found to be insignificant . This 
concerns ruling, round corners and the use of licences".189 
7.140.   The report on the definitive determination therefore does explain that the exporters 
requested that allowance be made for licences as a difference affecting price comparability . The 
 
182 Tunisia's  first written submission, para.  5.143; second written submission, para.  3.67. See also 
Tunisia's response to Panel question No. 1.5, para. 48.  
183 Tunisia's first written submission, para. 5.143 (quoting the report on the definitive determination, 
(Exhibit TUN -7), para. 85).  
184 Tunisia's response to Panel question No.  1.5, para. 48.  
185 Tunisia quotes Panel Reports, EC – Tube or Pipe Fittings , para.  7.424; and  EU – Footwear (China) , 
para. 7.844. (Tunisia's response to Panel question No.  1.5, para. 46)  
186 Morocco's response to Panel question No. 2.23, para. 21. 
187 Morocco's response to Panel question No. 2.23, para.  26. 
188 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 84.  
189 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 84.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  report does not cite all the evidence on the record, which, according to Tunisia, should have led 
MIICEN to grant an adjustment for the licences, such as the c ontract between SOTEFI and the 
[[***] ] company, or the revised spreadsheet indicating which models were sold under licence . 
However, like other  previous  panels, we do not understand Article 12.2.2 to "impose a formalistic 
obligation to identify each and ev ery relevant argument and explicitly provide the reasons for 
accepting or rejecting each such argument" .190 On the other hand, we consider it essential that the 
report explain "the reasons" for rejecting the argument that MIICEN should have "made allowance"  
for licences as a factor affecting price comparability.  
7.141.   However, on this point, Tunisia considers191 (and Morocco recognizes192) that paragraph 85 
of the report on the definitive determination is imprecise . Thus, this paragraph can be read as 
indicating both that there was no satisfactory justification for the effect of the licences on costs or 
prices and that MIICEN nevertheless found that their impact on price comparability was 
"insignificant" . We consider that this sentence is contradictory since an autho rity could only find that 
the impact of licences on price comparability is insignificant if the record contained justifications in 
this regard.  
7.142.   Moreover, before us, Morocco adds that the term "insignificant" used in this context was, in 
fact, referring to the share of licensed exercise books in the volume of exercise books exported to 
Morocco .193 However, this aspect of MIICEN's findings does not appear on the investigation record 
and therefore cannot be used before us to explain MIICEN's decision to reject SOTEFI's request for 
an adjustment . We also find that the adjective, "insignificant", does apply to "the impact on price 
comparability" in MIICEN's report.  
7.143.   We therefore consider that the contradictory nature of paragraph 85 of the report on the 
definitive determination does not allow interested parties to understand why the request for an 
adjustment or classification for licences was rejected by MIICEN . We conclude, for this reason, that 
the report on the definitive determination does not give "the reasons for the … rejection of relevant 
arguments or claims made by the exporters" and that Morocco did not therefore act in conformity 
with the provisions of Article 12.2.2 of the Anti -Dumping Agreement.  
7.2.2.1.3   Conclusion on licences  
7.144.   In view of the foregoing, we therefo re conclude that Morocco did not act in conformity with 
the provisions of Article 12.2.2, by failing to explain clearly the reasons for the rejection of the 
exporters' argument to take licences into account as a factor that may affect price comparability . 
However, we reject Tunisia's claim that Morocco violated the fair comparison obligation by failing to 
take due account of licences as a factor affecting price comparability . Having failed to find any 
inconsistency with Article 2.4, we need not consider whe ther there is a "consequential" violation of 
the provisions of Article 2.1 of the Anti -Dumping Agreement.  
7.2.2.2   Whether the mathematical formula used by MIICEN to calculate the margin of 
dumping was inconsistent with Articles 2.1 and 2.4 of the Anti -Dumping Agre ement  
7.2.2.2.1   Introduction  
7.145.   Tunisia contests the  mathematical formula used by MIICEN to establish the margin of 
dumping of the two Tunisian exporters that participated in the investigation . Tunisia contests, in 
particular, the numerator and the denominator chosen b y the Moroccan investigating authority, for 
the following reasons:  
MIICEN calculated , erroneously , the overall dumping amount placed in the numerator 
of the dumping margin formula, as well as the total export value placed in the 
denominator of that formula . These errors resulted, against all logic, in a "margin of 
dumping" expressed in a unit of volume (a percentage of the volume of sales in the 
 
190 Panel Report, US – OCTG (Korea) , para. 7.301.  
191 Tunisia's response to Panel question No.  2.8, para. 64.  
192 Morocco's response to Panel question No. 2.3. paras. 49 -53. 
193 Morocco's response to Panel question No.  2.3, para. 52.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  Moroccan market), instead of a margin of dumping in a unit of currency (a percentage 
of the export price),  which is contrary to the very nature of the margin of dumping.194 
7.146.   Tunisia summarizes its claims as follows:  
Tunisia requests the Panel to examine whether the calculation of the margin of dumping 
obtained on the basis of a formula containing a numerator and  a denominator expressed 
in a unit of volume violates the obligation under Articles 2.4 and 2.1 to make a "fair 
comparison" between the normal value and the export price.195 
7.147.   It asserts that these errors led to an "inflated" margin of dumping for the two exporters and 
that this margin is inconsistent both with the obligation to make a "fair comparison" between the 
normal value and the export price within the meaning of Article 2.4 , and, in a "consequential" 
manner196 (i.e. subject to a finding of violation of Article 2.4), with Article 2.1 of the Anti -Dumping 
Agreement.197 
7.148.   Morocco, for its part, takes the view that Tunisia is contesting intermediate calculations that 
do not represent the margin of dumping as such, and that therefore cannot be contested on the  
basis of Article 2.4 .198 Morocco also asserts that the fair comparison obligation in Article 2.4 of the 
Anti-Dumping Agreement does not apply to the facts described by Tunisia . Morocco thus explains 
that: 
Tunisia requests the Panel to build from the first sentence of Article 2.4 a "catch -all" 
obligation where any calculation error in the "comparison after having obtained both 
the normal value and the export price" results in a twofold violation of Article 2.4 and, 
"consequentially", Article 2.1.199 
7.149.   Thus, if Tunisia had wanted to contest MIICEN's calculation method, it should have relied on 
Article 2.4.2 of the Anti -Dumping Agreement and not on the first sentence of Article 2.4:  
Tunisia chose not to make a claim under Article 2.4.2 in its panel request . The Pa nel 
should reject Tunisia's attempt to raise arguments concerning issues specifically 
addressed in Article 2.4.2 by erroneously importing them to the first sentence of Article 
2.4 through Article VI:2 of G ATT 1994.200 
7.2.2.2.2   Analysis  
7.150.   We recall that Morocco request s, in the first instance, that we do not examine this argument 
put forward by Tunisia, on the grounds that it would amount to asking the Panel for a de novo  
review, prohibited under Article 17.6(i) of the Anti -Dumping Agreement . In this case, Morocco 
asserts that the interested parties never raised this matter before the authority and therefore cannot 
do so for the first time before us.201 
7.151.   We consider Morocco's objection to be without merit.  
7.152.   We recall that Article  17.6(i) of th e Anti-Dumping Agr eement, read together with Article  11 
of the DSU, sets out the standard to be applied by panels when assessing whether a Member's 
investigating authorities have "established" and "evaluated" the facts consistently with that 
Member's obligations under the c overed agreements .202 This provision precludes a panel from 
substituting the investigating authority by engaging in an independent fact -finding exercise . 
 
194 Tunisia's first written submission, para. 5.88.  
195 Tunisia's res ponse to Panel question No. 2.14, para. 88.  
196 Tunisia's response to Panel question No. 2.18, paras. 113 and 114.  
197 Tunisia's panel request contains a claim under Article VI:1 of GATT 1994 relating to the fair 
comparison obligation. However, in its response s to the Panel's questions, Tunisia indicates that it is not 
pursuing this claim. (Tunisia's response to Panel question No. 2.21, para. 132)  
198 Morocco's second written submission, para. 101.  
199 Morocco's comments on Tunisia's response to Panel question No. 2.16, para. 155.  
200 Morocco's comments on Tunisia's response to Panel question No. 2.16, para. 158.  
201 Morocco's second written submission, para. 101.  
202 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  However, if requested to do so by the parties, a panel must determine whether the 
authority's  establish ment of the facts was proper and whether its evaluation of those facts was 
unbiased and objective.  
7.153.   In this case, Tunisia is not asking us to re -evaluate the facts and substitute our evaluation 
for that of the authority . It is asking us to find, on the basi s of the facts contained in the investigating 
authority's record, that the authority determined the margin of dumping of Tunisian 
producers/exporters in a manner that was inconsistent with Articles 2.1 and 2.4 of the Anti -Dumping 
Agreement . It is therefore  a question of application of the rules of the Anti -Dumping Agreement, 
which clearly falls within our jurisdiction.  
7.154.   We will therefore proceed to examine the arguments put forward by Tunisia.  
7.155.   In the sections that follow, we conclude that the mathematical fo rmula used by MIICEN to 
calculate the margin of dumping was erroneous, and we analyse whether this error constitutes, as 
Tunisia assert s, a violation of the fair comparison obligation in Article 2.4 of the Anti -Dumping 
Agreement.  
7.2.2.2.2.1   The mathematical formula u sed by MIICEN was erroneous  
7.156.   The record, and particularly the electronic spreadsheets sent by the authority to the 
producers/exporters cooperating in the investigation, show that the margins  of dumping for each of 
them were established as follows:  
7.157.   As regard s the formula's numerator , the spreadsheets show that MIICEN compared, for each 
exercise book model, the normal value and the export price and, in doing so, obtained a dumping 
amount per model203 that it then expressed as a percentage of the export price .204 The problem 
identified by Tunisia does not stem from this intermediate calculation, but from the fact that MIICEN 
then, for each model, multiplied the exported amounts205 by the percentage of du mping obtained 
per model206 and presented this result as the "dumping amount"207 for each model . This result does 
not, however, represent the value of dumping per model, but simply a portion of the exports of each 
model . The sum of these "dumping amounts" is therefore, in reality, only a sum of fractions of 
exports by model . This figure is, logically, irrelevant to the calculation of a margin of dumping.  
7.158.   As regards the formula's denominator , these same exhibits show that MIICEN divided this 
"dumpin g amount" by the amounts exported.208 
7.159.   The result of this division does not allow for the expression of a percentage of dumping for 
the product exported by each producer/exporter, insofar as it represents the division of a partial 
export volume by the total volume of exports . The calculation made by MIICEN does not therefore 
represent a margin of dumping.  
7.160.   In making this finding, we are not questioning the fact that a margin of dumping can be 
expressed in different ways and, in particular, in ad valorem  form, i.e. by expressing the dumping 
value as a percentage of the export value, or in a specific form, i.e. in a unit of currency per unit of 
volume . What is at issue here is the ability of MIICEN's formula to express dumping when using as 
a numerator a figure t hat does not represent an amount of dumping but rather an irrelevant export 
volume.  
 
203 Excel file conta ining the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column H of the "Dumping" sheet.  
204 Excel file containing the dumping margin calculation (SITPEC) (Ex hibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column K of the "Dumping" sheet.  
205 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the du mping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column G of the "Dumping" sheet.  
206 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)), column J of 
the "Dumping" tab; Excel file containing the dumping margin calcu lation (SOTEFI) (Exhibit TUN -14 (BCI)), 
column K of the "Dumping" sheet.  
207 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), column L of the "Dumping" sheet.  
208 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)); Excel file 
containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), cell L116 of the "Dumping" sheet.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 44 - 
  7.161.   Having established that the formula used by MIICEN was erroneous, there are two questions 
we must address in order to respond to Tunisia's claim under Article 2.4 of the An ti-Dumping 
Agreement:  
a. whether the fair comparison obligation really applies to the issue of the calculation of 
margins of dumping, which is more specifically covered by the second subparagraph of 
Article 2.4 (Article 2.4.2) ; and, if so,  
b. whether the error i dentified by Tunisia in the mathematical formula used to calculate the 
margin of dumping really violates the fair comparison principle set out in Article 2.4.  
7.162.   We will address these two questions in turn in the following paragraphs.  
7.2.2.2.2.2   Does the fair comparison  principle apply to the formula used to calculate the 
margin of dumping?  
7.163.   In other dispute settlement proceedings, the obligation to make a fair comparison was found 
to apply not only to price comparability issues, but also to the calculation of the margin of dumping, 
as described in Article 2.4.2.209 
7.164.    That finding was based primarily on the following elements:  
a. the fact that provisions on currency conversions and the establishment of margins of 
dumping during the investigation phase are not contained in separ ate paragraphs of 
Article  2 but are indented as subparagraphs of Article 2.4 means that these provisions and 
the provisions in the chapeau of Article 2.4 are part of a whole210; and 
b. the expression " [s]ubject to the provisions governing fair comparison in paragraph 4" in 
Article 2.4.2 supports an interpretation that the "fair comparison" requirement is of 
broader application than the issue of price comparability.211 
7.165.   We find this approach to be convincing and are adopting it in this dispute.  
7.166.   In the present case, we note that the comparison  between the normal value and the export 
price of each exercise book model is not - in itself - the root of the problem : this comparison was 
made for each model sold and gave rise to the establishment of interme diate margins expressed in 
percentage terms, which are accurate .212 The problem identified by Tunisia instead concerns the 
aggregation  of these intermediate margins and, in particular, the use, as numerator, of a figure that 
is irrelevant to the calculation  of the margin of dumping.  
7.167.   Another panel took the view that the process of aggregation was an integral part of the 
comparison that is undertaken between export prices and weighted -average normal values and thus 
fell "squarely within the 'comparison' that i s envisaged and regulated under the first sentence of 
Article 2.4" .213 We also note that Tunisia refers to the provisions of Article VI:2 of GATT to provide 
context and asserts that:  
Article VI:2 of G ATT 1994 defines the "margin of dumping" as "the price di fference 
determined" between the export price and the normal value . This "price difference" is, 
necessarily, related to the comparison between the normal value and the export price . 
Therefore, the obligation to make a "fair comparison" within the meaning o f the first 
sentence of Article 2.4 (in order to identify the "price difference" referred to in Article 
VI:2 of G ATT 1994) applies to the entire dumping margin calculation, i.e. to the whole 
 
209 See, for example, Pane l Report, US — Zeroing (EC) , para. 7.258.  
210 Panel Report, US - Zeroing (EC) , para. 7.254.  
211 Panel Report, US - Zeroing (EC) , para. 7.255.  
212 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN -12 (BCI)), column J of 
the "Dumping" sheet; Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN -14 (BCI)), 
column K of the "Dumping" sheet.  
213 Panel Report, US - Orange Juice (Brazil) , para. 7.144.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 45 - 
  mathematical process of comparison after having identified both t he normal value and 
the export price.214 
7.168.   We agree with the finding that the fair comparison obligation applies not only to the 
comparison made between the normal value and the export price for each model or transaction, but 
also to the aggregation of these individual margins so as to reflect a margin of dumping for the 
product as a whole . From this perspective, we therefore agree with Tunisia's argument that the fair 
comparison principle does apply to the mathematical formula used by MIICEN to calculate the margin 
of dumping of the two Tunisian exporters.  
7.2.2.2.2.3   Does the calculation error made by MIICEN violate Article 2.4 of the 
Anti-Dumping Agreement?  
7.169.   Having decided that the fair comparison principle was indeed applicable to the mathematical 
formula used by MIICEN, we still need to determine whether the error identified by Tunisia 
constitutes a violation of this obligation.  
7.170.   In the case on the zeroing of margins of dumping, the panel considered that:  
[I]n order to determine what is "fair" under the [Anti-Dumpi ng] Agreement in relation 
to the calculation of margins of dumping, we must take into account substantive rules 
and concepts in the [Anti-Dumping]  Agreement relevant to the issue of the 
determination of margins of dumping . In particular, our analysis must take  into account 
Article 2.4.2 of the [Anti-Dumping]  Agreement, which is the only provision of the [Anti-
Dumping]  Agreement that specifically addresses the subject of methods of determining 
margins of dumping.215 
7.171.   While the conclusion drawn by that panel at the  time - that zeroing negative  margins of 
dumping is not necessarily inconsistent with the fair comparison obligation - was subsequently 
invalidated by the Appellate Body, its reasoning relating to "what is fair" for the calculation of 
margins of dumping se ems, in our view, to be relevant in the context of the present dispute . Indeed, 
as the same panel observed, Article 2.4.2 of the Anti -Dumping Agreement is "the only provision of 
the … Agreement that specifically addresses the subject of methods of determin ing margins of 
dumping" . Article 2.4.2 of th e Anti-Dumping Agreement "explains how domestic investigating 
authorities must proceed in establishing 'the existence of margins of dumping', that is, it explains 
how they must proceed in establishing that there is dumping".216 
7.172.   In the present case, we recall that Tunisia does not claim in its written submissions that the 
erroneous methodology used by MIICEN is inconsistent with Article 2.4.2 of the Anti -Dumping 
Agreement . We cannot therefore examine the conformity of the formula used by MIICEN with the 
provisions of Article 2.4.2 in order to draw conclusions as to its conformity with Article 2.4 . 
Nevertheless, Tunisia has demonstrated that the mathematical formula used by MIICEN was 
incorrect and did not therefore r epresent a dumping calculation . The fact that Tunisia did not raise 
an argument under Article 2.4.2 does not therefore, in our view, preclude a finding that Morocco 
violated the Article 2.4 fair comparison obligation.  
7.173.   The Larousse dictionary defines the te rm "équitable" (fair) as that which is "conforme à 
l'équité, à la justice" (in accordance with fairness, with justice) .217 Similarly, the Le Robert dictionary, 
defines it as that which is "conforme à l'équité, qui ne lèse personne" (in accordance with fairn ess, 
which does not wrong anyone).218 
7.174.   In US — Softwood Lumber V , the Appellate Body defined the "[t]he term 'fair' … [as] 
connot[ing] impartiality, even -handedness, or lack of bias" .219 In that case, the Appellate Body 
 
214 Tunisia's response to Panel question No. 2.16, para. 96.  (with italics in the original)  
215 Panel Report, US - Zeroing (EC) , para. 7.262.  
216 Appellate Body Report, EC - Bed Linen , para. 51. (emphasis original)  
217 Dictionnaire Larousse, definition of "équitable" https://www.larousse.fr/dictionnaires/francais/  per 
centc3  per centa9quitable/30708  (accessed 15 April 2021).  
218 Dictionnaire Le Robert, definition of "équitable" https://dictionnaire.lerobert.com/definition/equitable  
(accessed 15 April 2021).  
219 Appellate Body Report, US — Softwood Lumber V (Article 21.5 — Canada) , para. 138.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  considered that the use of zeroing in a transaction -to-transaction comparison was not "fair" within 
the meaning of Article 2.4 of the Anti -Dumping Agreement because:  
[T]he use of zeroing under the transaction -to-transaction comparison methodology 
artificially inflates the magnitude of dumping, resulting in higher margins of dumping 
and making a positive determination of dumping more likely . This way of calculating 
cannot be described as impartial, even -handed, or unbiased . For this reason, we do not 
consider that the calculation of " margins of dumping", on the basis of a 
transaction -to-transaction comparison that uses zeroing, satisfies the "fair comparison" 
requirement within the meaning of Article 2.4 of the Anti -Dumping Agreement.220 
7.175.   In the present case, we are not ruling on whether  the error identified by Tunisia "tends to 
result in higher margins of dumping" . Indeed, we recall another panel's conclusion that:  
[T]he obligation under Article 2.4 is focused on the "comparison" between export price 
and normal value, not its impact . In other words, it is the nature of the "comparison" 
itself, and not the results of that comparison, that is disciplined under Article 2.4.221 
7.176.   We share this view . The fact that MIICEN's error "accidentally" led to a margin of dumping 
higher than that which wou ld have been the case with a correct mathematical formula is not sufficient 
to prove a violation of Article 2.4.  
7.177.   In this case, we found that the calculation methodology used was incapable of:  
a. correctly expressing dumping, i.e. determining whether Tunisian exercise books are 
introduced into the commerce of Morocco at less than their normal value ; and 
b. yielding a result that correctly reflects the margin of dumping for each producer/exporter.  
7.178.   This is therefore the nature of the comparison made by MIICEN, which  (a) by not permitting 
dumping to be expressed correctly, i.e. by not permitting a determination as to whether Tunisian 
exercise books are introduced into the commerce of Morocco at less than their normal value ; and 
(b) by not reflecting the reality of the  dumping attributable to each exporter, is incapable of ensuring 
a fair comparison.  
7.179.   In the light of the foregoing, we therefore conclude that MIICEN's use of an erroneous 
formula did indeed violate the fair comparison obligation contained in Article 2.4 of  the Anti -Dumping 
Agreement.  
7.180.   We turn next to Tunisia's claim under Article 2.1.  
7.2.2.2.2.4   Does the calculation error made by MIICEN violate Article 2.1 of the 
Anti-Dumping Agreement?  
7.181.   With regard to the alleged violation of Article 2.1 of the Anti -Dumping Agreement, Tunisia 
summarizes its claim as follows:  
MIICEN failed to  make a fair comparison as required under Article 2.4, and therefore 
did not correctly establish whether the product under consideration "is to be considered 
as being dumped" under the ter ms of Article 2.1 of the Anti -Dumping Agreement.  
Accordingly, if the Panel finds inconsistency with the first sentence of Article 2.4 in 
respect of the use of an erroneous mathematical formula to calculate the margin of 
dumping, any inconsistency with Arti cle 2.1 will necessarily be consequential.222 
 
220 Appellate Body Report, US - Softwoo d Lumber V (Article 21.5 — Canada) , para. 142.  
221 Panel Report, US — Orange Juice (Brazil) , para. 7.156.  
222 Tunisia's response to Panel question No. 2.18, paras. 113 and 114.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 47 - 
  7.182.   We noted above223 that other panels and the Appellate Body have regarded Article 2.1 of the 
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations.224 
Furthermore, we co nsider that establishing a violation of Article 2.1, even a consequential one, 
requires the requesting party to explain how the measure at issue specifically violates that provision 
of the Anti -Dumping Agreement.  
7.183.   In the present case, we consider that Tunis ia's arguments in support of its claim under Article 
2.1 are the same as those developed in support of its claim under Article 2.4 of the Anti -Dumping 
Agreement . In our view, they are not sufficient to establish what Morocco's obligations are under 
Article  2.1, or how these obligations were violated on account of the error made by MIICEN in the 
choice of mathematical formula for calculating the margin of dumping.  
7.2.2.2.3   Conclusion  on the mathematical formula  
7.184.   In view of the foregoing, we therefore conclude that Tun isia has demonstrated that Morocco 
violated Article 2.4 of the Anti -Dumping Agreement by using an erroneous mathematical formula to 
calculate the margin of dumping of the Tunisian exporters . We also conclude, however, that Tunisia 
has failed to  demonstrate  any violation of Article 2.1 of the Anti -Dumping Agreement.  
7.3  Tunisia's claims regarding the determination of injury  
7.185.   In this dispute, Tunisia criticizes several aspects of the determination of injury by the 
Moroccan investigating authority . According to Tun isia, MIICEN acted inconsistently with:  
a. Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing to objectively analyse the 
volume of imports relative to the domestic production and consumption of exercise 
books225; 
b. Articles 3.1 and 3.2 of the Anti -Dumping Agreement by erroneously and non -objectively 
analysing the effects of imports on the price of domestic exercise books ; and 
c. Articles 3.1 and 3.4 of the Anti -Dumping Agreement by failing to objectively analyse the 
economic situation of the Moroccan indu stry. 
7.186.   First, we analyse the claim concerning the effects of Tunisian imports on prices and address 
the other two claims in turn in the following sections.  
7.3.1   Whether MIICEN examined the effects of imports on the price of the domestic 
product in a manner incon sistent with Article 3.1 and the second sentence of Article 3.2 
of the Anti -Dumping Agreement  
7.3.1.1   Introduction  
7.187.   As part of this claim, Tunisia challenges MIICEN's findings on the effects of Tunisian imports 
of exercise books on the prices of the domestic produc t. MIICEN's report on the definitive 
determination states:  
The dumped imports of exercise books originating in Tunisia had a significant  effect on 
the prices of the locally manufactured exercise book in terms of undercutting, significant  
price depression a nd price suppression of locally manufactured exercise books.226 
 
223 Para. 7.57.  
224 Appellate Body Report, US - Zeroing (Japan) , para. 140; Panel Repor t, Ukraine - Ammonium Nitrate , 
para. 7.120.  
225 At the first hearing, Tunisia clarified that it was making two separate claims under Articles 3.1 and 
3.2 of the Anti -Dumping Agreement. One of the claims relates to the analysis of the volume of imports relati ve 
to production and domestic consumption, while the other addresses certain aspects of the examination of the 
effects of imports on the price of the domestic product. However, Tunisia would like the Panel to address the 
three price effects referred to in Article 3.2 and to make findings on each of these effects. (Tunisia's response 
to Panel question No. 3.2 at the first meeting of the Panel)  
226 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180. (emphasis added)  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 48 - 
  7.188.   Tunisia's claim is thus divided into three parts : the "erroneous" and non -objective 
examination of price undercutting, price depression and price suppression.  
7.189.   Below, we address these three grievances outlined  by Tunisia.  
7.3.1.2   Analysis  
7.3.1.2.1   Applicable requirements of Article 3.1  and the second sentence of Article 3 .2 of 
the Anti -Dumping Agreement  
7.190.   Article 3.1 of the Anti -Dumping  Agreement provides:  
A determination of injury for purposes of Article  VI of GATT  1994 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 domestic market 
for like products, and (b) t he consequent impact of these imports on domestic producers 
of such products.  
7.191.   Article 3.1 requires a determination of injury to be based on positive evidence and involve 
an objective examination . The term "positive evidence" in Article 3.1 refers to "the f acts 
underpinning and justifying the injury determination" and relates to "the quality of the evidence that 
[an investigating authority] may rely upon in making a determination" .227 The word "positive" means 
that the "evidence must be of an affirmative, obj ective and verifiable character, and ... credible".228 
7.192.   The term "objective examination", on the other hand, is concerned with the investigative 
process itself, i.e. "the way in which the evidence is gathered, inquired into and, subsequently, 
evaluated" .229 In order to qualify as "objective", the investigative pr ocess must "conform to the 
dictates of the basic principles of good faith and fundamental fairness" and be conducted "in an 
unbiased manner, without favouring the interests of any interested party, or group of interested 
parties, in the investigation" .230 Moreover, to conduct an objective examination, the authority must 
take into account conflicting evidence and plausible explanations that may contradict  its own 
hypotheses.231 
7.193.   The Anti -Dumping Agreement does not establish a specific period or any guidance for  the 
selection of the period of injury data collection . However, regardless of the period selected, the 
investigating authority must ensure that its examination of the data from the selected period is 
objective and based on positive evidence.  
7.194.   The second se ntence of Article 3.2 of the Anti -Dumping  Agreement provides for an 
examination by the investigating authority of the effects of imports on the price of the like product:  
With regard to the effect of the dumped imports on prices, the investigating authorit ies 
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 otherwise to depress prices to a significant deg ree 
or prevent price increases, which otherwise would have occurred, to a significant 
degree . No one or several of these factors can necessarily give decisive guidance.  
7.195.   Article 3.2 refers to three types of price effects that are separated by the words "or"  and 
"otherwise" . The use of the word "or" indicates, in our view, that the investigating authority may 
rely on one of the three price effect inquiries to meet the requirements of this provision . Moreover, 
 
227 Appellate Body Repor t, US - Hot-Rolled Steel , paras. 192 and 193.  
228 Appellate Body Report, US - Hot-Rolled Steel , para. 192. See also Appellate  Body Report, 
China  ‒ GOES , para.  126. 
229 Appellate Body Report, US - Hot-Rolled Steel , para. 193.  
230 Appellate Body Report, US - Hot-Rolled Steel , para. 193. See also Appellate  Body Report, 
China  ‒ GOES , para.  126. 
231 Panel Report, Pakistan — BOPP Film (UAE) , para. 7.258. See also Appellate Body Report, 
US - Softwood Lumber VI (Article 21.5 - Canada) , para . 97. WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 49 - 
  this Article does not impose specific methodologie s for this examination, and the Appellate Body 
considered that the investigating authority had a measure of discretion in this regard.232 
7.196.   However, Article 3.1 and the second sentence of Article 3.2, read together, require the 
authority to conduct an objecti ve examination based on positive evidence . Furthermore, these three 
types of effects describe separate economic mechanisms, which require separate evidence to be 
proven . Therefore, a price effect examination requires an investigating authority to take into  account 
the differences between the three price effects, as the elements relevant to the consideration of 
significant price undercutting differ from those relevant to the consideration of significant price 
depression and suppression .233 For this reason, we  do not agree with Morocco's cross -cutting 
argument that "[p]rice undercutting, price depression and price suppression [are not]  … set in stone 
or immune to change" and "Article 3.2 does not identify three separate categories of price analysis, 
each with i ts own separate basket of evidence".234 
7.197.   Thus, the price undercutting examination provided for in the second sentence of Article 3.2 
must establish a "link between the price of subject imports and that of like domestic products" .235 
This inquiry requires a "d ynamic assessment of price developments and trends in the relationship 
between the prices of the dumped imports and those of domestic like products over the entire period 
of investigation (POI)" .236 This means that the investigating authority cannot conduct  this analysis 
"by a static examination of whether there is a mathematical difference at any point in time during 
the POI without any assessment of whether or how these prices interact over time" .237 At the same 
time, price depression and price suppression inquiries are intended to determine whether the 
dumped imports have "explanatory force" for the occurrence of such price effects.238 
7.198.   Whether a price effect qualifies as "significant" depends on the evidence before the authority, 
how long the observed effect  has been taking place and to what extent, as well as the relative 
market shares of the products .239 In another dispute settlement proceeding, it was found that "[i]n 
all cases, an investigating authority must, pursuant to Article 3.1, objectively examine all positive 
evidence, and may not disregard relevant evidence suggesting that prices of dumped imports have 
no, or only a limited, effect on domestic prices".240 
7.199.   Bearing these considerations in mind, we shall proceed to examine MIICEN's  determination 
regarding the effects of imports on prices.  
7.3.1.2.2   Was MIICEN's consideration of price undercutting consistent with Articles 3.1 
and 3.2 of the Anti -Dumping Agreement?  
7.200.   Tunisia's first grievance concerns the consideration of significant price underc utting of 
Tunisian exercise books in relation to the price of Moroccan exercise books.  
7.201.   In the present case, Tunisia takes issue with the investigating authority for having:  
a. compared the price of Tunisian exercise books with a notional ("reconstructed") pri ce of 
Moroccan exercise books;  
b. reconstructed this notional price on the erroneous basis of the profit margin of Tunisian 
exporters ; and 
c. based its consideration on a single year rather than the entire period of investigation.241 
 
232 Appellate Body Report, Korea - Pneumatic Valves (Japan) , para. 5.233.  
233 Appellate  Body Report, China - GOES , para.  137. 
234 Morocco's second written submission, paras. 202 and 203; response to Panel question No. 3.17, 
para. 57. 
235 Appellate  Body Repor t, China - GOES , para.  136. 
236 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU) , para.  5.159.  
237 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU) , para.  5.160.  
238 Appellate  Body Report, China - GOES , para.  136. 
239 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU) , para.  5.161.  
240 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU) , para.  5.161.  
241 Tunisia's second written submission, para. 4.44.  WT/DS578/R  
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  7.202.   We begin by recalling the fac ts as they appear in the record and we will consider the 
arguments of the parties with regard to the relevant obligations under Articles 3.1 and 3.2.  
7.203.   The record shows that MIICEN did not find any price undercutting when comparing the price 
of the imported Tunisian exercise books with the prices reported by Moroccan producers . MIICEN, 
however, considered that the prices reported by Moroccan producers were not profitable, because 
of import pressure on prices242, and therefore should be replaced, for the purpos es of considering  
price undercutting, by a target selling price . Thus, the authority "reconstructed" the price of the 
domestic product by including a profit margin of 15 % to 25%, based on the profit margin made by 
the Tunisian exporters in their domestic m arket.243 
7.204.   Tunisia's first argument  concerning the price undercutting examination is that the selection 
of a notional price is "contrary to the very nature of the concept of 'price undercutting' under Article 
3.2, which relates to a comparison between two ac tual prices" . It specifically contests the fact that 
the constructed price of the domestic product was not the actual price charged in the Moroccan 
market by the domestic industry, but rather, a hypothetical price based on a scenario in which there 
were no dumped imports.244 Tunisia argues that the authority "had already reached its conclusion 
on the effects of imports on the price of the domestic product" before conducting its price 
undercutting analysis .245 It also recalls that, in other dispute settlement proceedings, it was found 
that the price undercutting inquiry required "a dynamic assessment of price developments and 
trends in the relationship between the prices of the dumped imports and those of domestic like 
products over the entire period of investi gation (POI)".246 
7.205.   Morocco responds that Article 3.2 does not refer to the "actual" price .247 It also asserts that, 
in the particular scenario where sales of the domestic product are made at a loss, Article 3.2 allows 
the investigating authority to reconstruc t this price at the profitable level, for the purposes of the 
price undercutting analysis .248 To support this argument, Morocco draws our attention to the 
distinction that Article 2.2.1 of the Anti -Dumping Agreement makes between profitable and 
non-profitable prices . This provision allows the investigating authority to disregard certain 
non-profitable transactions in the calculation of normal value.249 
7.206.   We do not agree with Morocco on this point.  
7.207.   In our view, even if Article 2.2.1 allows the investigat ing authority to exclude sales not being 
made in the ordinary course of trade from the construction of normal value because of their price, 
this provision applies to the determination of dumping and not to the determination of injury . As 
Tunisia points out , the price comparison in the price undercutting analysis is different from the price 
comparison in the margin of dumping  calculation .250 Furthermore, Article 2.2.1 sets out strict 
conditions for disregarding unprofitable sales in determining normal value : these sales "may be 
disregarded in determining normal value only if the authorities determine that such sales are made 
within an extended period of time in substantial quantities and are at prices which do not provide 
for the recovery of all costs within a  reasonable period of time" .251 As the possibility of disregarding 
certain sales, because of their prices, is explicitly and conditionally established in the very specific 
 
242 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 134.  
243 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 136.  
244 Tunisia relies on Canada's assertion that "an examination of significant price undercutting should be 
based on actual prices, and not on hypothetical prices based on a scenario in which there are no dumped 
imports." (Tunisia's second written submission, pa ra. 4.49 (quoting Canada's third -party written submission, 
para.10)) See also Tunisia's first written submission, para. 6.39 ("the purpose of adjustments cannot be to 
completely replace actual prices") and para 6.42.  
245 Tunisia second written submission, pa ra. 4.51. Canada agrees and considers that "while the analysis 
under Article 3.2 is aimed at determining whether the dumped imports are causing injury through their price 
effects, the method of constructing a target price presupposes  that imports have such  effects." (Canada's 
third-party written submission, para. 11 (emphasis original))  
246 Tunisia's first written submission, para. 6.35 (quoting Appellate Body Reports, China - HP-SSST 
(Japan) / China - HP-SSST (EU) , para. 5.159). See also Tunisia's second wri tten submission, para. 4.47.  
247 Morocco's  first written submission, paras.  127 and 131; second written submission, para.  199. 
248 Morocco's first written submission, para. 130; opening statement at the first meeting of the Panel, 
paras. 89 and 92; and second written submission, paras. 199, 200 and 208.  
249 Morocco's second written submission, para. 200.  
250 Tunisia's opening statement at the second meeting of the Panel, para. 5.4.  
251 Fns omitted.  WT/DS578/R  
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  context of constructing normal value, we do not think that such discretion may be pre sumed in the 
context of the price undercutting examination.  
7.208.   However, although Article 3.2 does not refer to "actual" prices, the context of this article 
provides useful guidance as to the nature of the prices to be used for the undercutting examination . 
First, Article 3.1 of the Anti -Dumping Agreement provides that a determination of injury shall be 
based on an objective examination of "the effect of the dumped imports on prices in the domestic 
market  for like products" .252 As price undercutti ng is one of these effects, this provision indicates 
that, in its Article 3.2 analysis, the investigating authority must examine prices that are related to 
the domestic market  conditions of the importing Member, i.e. the actual prices charged and not 
hypot hetical prices . Second, with regard to the prevention of price increases, the investigating 
authority must consider whether the effect of the dumped imports is "otherwise to prevent price 
increases, which otherwise would have occurred,  to a significant deg ree".253 The use of the 
conditional in this passage (in italics) suggests that the authority may have recourse to a 
counterfactual analysis of the domestic prices that would have been charged in the absence of 
dumped imports . Therefore, the possibility of r ecourse to a counterfactual analysis is expressly  
provided for in the text of the Agreement . But, as noted by Canada, such terms are not used in 
relation to the undercutting examination254, and thus the wording of Article 3.2 regarding the price 
undercuttin g analysis does not permit the construction of a target price for the domestic product.255 
7.209.   Lastly, we recall that Articles 3.1 and 3.2 require the investigating authority to examine the 
"effects" of imports on the price of the domestic product in order to b e able to subsequently 
determine whether such imports are causing injury to the domestic industry by means of these 
effects . In the light of this objective, we agree with Tunisia's argument that "if the investigating 
authority constructs the price of the d omestic product, it will no longer be possible to identify the 
'effect' that imports actually [ sic] have on the price of the domestic product using the resulting 
ratio" .256 This confirms the interpretation that the investigating authority must examine the p rices 
of the domestic product that are actually charged in the market and not hypothetical prices.257 
7.210.   We therefore find that MIICEN's price undercutting analysis, based on the comparison of the 
price of Tunisian imports and the constructed price of the domestic product, does not meet the 
requirements of Article 3.2 of the Anti -Dumping Agreement.  
7.211.   We recall that Tunisia raises a second argument  regarding the construction of this target 
selling price : it considers that MIICEN "improperly" used the Tunisian exporters' profit margin to 
attribute it to Moroccan producers, on the grounds that it was "legitimate for Moroccan producers to 
be able to aspire to the same level of profit [as] their Tunisian counterparts in their domestic 
market" .258 In the light of our  finding that MIICEN's price undercutting analysis, based on the 
comparison of the price of Tunisian imports and the hypothetical price of the like product, was not 
consistent with Article 3.2 of the Anti -Dumping Agreement, we consider that it is not neces sary for 
us to address this argument from Tunisia separately.259 
7.212.   The third argument  raised by Tunisia concerning the price undercutting examination refers 
to the period of time during which the examination was conducted . The record indicates that this 
exami nation only concerned the period from 1 May 2016 to 3 1 April 2017, while the injury 
investigation period was spread over four years and four months .260 Tunisia's first grievance is that 
this examination over a year is not sufficient to make a "dynamic asses sment of price developments 
 
252 Emphasis added.  
253 Emphasis added.  
254 Canada's third -party written su bmission, para. 10.  
255 See also European Union's third -party written submission, para. 105.  
256 Tunisia's first written submission, para. 6.40.  
257 We note that Canada and the European Union agree with Tunisia that the practice of reconstructing 
the price of do mestic producers is not consistent with the notion of price undercutting. (Canada's third -party 
written submission, paras. 9 -11; European  Union's  third-party written submission, paras.  103-105) 
258 Tunisia's first written submission, paras. 6.48 and 6.49 (qu oting the report on the definitive 
determination (Exhibit TUN -7), para. 140).  
259 Tunisia's  first written submission, paras.  6.48-6.54; second written submission, paras.  4.64-4.72. 
Tunisia admits that a finding regarding the construction of the price of the domestic product in its favour would 
render unnecessary a finding regarding the selection of the profit margin for the purposes of constructing the 
price of the domestic product. (Tunisia's response to Panel question No. 3.18, paras.  139 and 140)  
260 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 29 and 145.  WT/DS578/R  
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  and trends" .261 It recalls that in another dispute settlement proceeding, the Appellate Body found 
that an inquiry into price undercutting could not be limited to a "static examination of whether there 
is a mathematical differenc e at any point in time during the POI without any assessment of whether 
or how these prices interact over time".262 
7.213.   Morocco argues that the investigating authority  "conducted a more deeply dynamic analysis 
by examining all the evidence before it and recogni zing that price effects over a long period are 
necessarily fluid".263 Morocco also explains that MIICEN did not try to link the price effects observed 
in the market to the "immutable categories" in the second sentence of Article 3.2.264 
7.214.   We note that MIICEN's  undercutting examination was in fact limited to finding an 
undercutting margin of 11.24 %, by comparing the constructed price of the domestic product 
(index  100) to the price of the imported Tunisian exercise book (index 89.89) for the period from 
1 May 2016 to 3 0 April 2017. This comparison formed the basis of its conclusion that "the dumped 
imports of exercise books originating in Tunisia had a significant effect on the prices of the locally 
manufactured exercise book in terms of undercutting" .265 MIICEN's  reasoning therefore does not 
demonstrate any analysis of price "trends in the relationship between the prices of the dumped 
imports and those of domestic like products", including whether import and domestic prices are 
moving in the same or contrary direc tions. It is well established that finding a "mathematical 
difference" between import prices and domestic prices does not meet the requirements of Article 3.2 
regarding the price undercutting examination .266 We agree with this interpretation . Therefore, we 
find that MIICEN did not examin e price undercutting in a manner consistent with Article 3.2 of the 
Anti-Dumping Agreement, by disregarding price trends and focusing only on a comparison between 
a single constructed price of the domestic produc t and the price of the imported product.  
7.215.   Tunisia further considers that the inconsistency between the injury investigation period and 
the period used for the price undercutting examination does not satisfy the requirements of 
Articles  3.1 and 3.2 .267 Tunisia emphasizes that MIICEN selected the investigation period from 
1 January  2013 to 3 0 April 2017 for the injury investigation .268 However, when analysing price 
undercutting, MIICEN took only the last 12 months of the investigation period into consideration 
without explaining this inconsistency.269 
7.216.   We note that the title of Article 3 "Determination of Injury " and the wording of Article 3.5 
("[i]t must be demonstrated that the dumped imports are, through the effects of dumping, as set 
forth in paragraphs 2 and 4 , causing injury within the meaning of this Agreement")270 confirm that 
consideration of price effects is one of the steps in the determination of injury . As Tunisia recalls271, 
this inquiry is part of a "logical progression ... leading to an investigating authority's ultimate injury 
and causation determination" .272 Therefore, in order to determine whether imports cause, through 
the effects of dumping (including price effects) injury, the effects analysed must, in principle, relate 
to the period  selected for the examination of the economic situation of the domestic industry.  
7.217.   The record shows that MIICEN indicated that the period from 1 January  2013 to 
30 April 2017 was the period of data collection for the purposes of the injury assessment273; 
however, it made the price comparison for the purposes of the price undercutting analysis only on 
the basis of the last 12 months of that period . For the reasons outlined above, we consider that 
MIICEN failed to conduct an objective examination, as it selecte d a different period of price 
 
261 Tunisia's first written submission, para. 6.44.  
262 Tunisia's first written submission, para. 6.44 (quoting Appellate Body Reports, China - HP-SSST 
(Japan) / China - HP-SSST  (EU), para. 5.160).  
263 Morocco's opening statement at the first meeting of the Panel, para. 84. (emphasis original)  
264 Morocco's opening statement at the first meeting of the Panel, paras. 86 and 91 -96. 
265 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180.  
266 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU) , para.  5.160.  
267 Tunisia's response to Panel question No. 3.14, paras. 134 and 138. See also Tunisia's response to 
Panel question No. 3.19, paras.  146-148. 
268 Tunisia's response to Panel question No. 3.14, paras. 135 -136. 
269 Tunisia's responses to Panel questions No. 3.14, paras. 136 -137; No. 3.20, para. 151.  
270 Emphasis added.  
271 Tunisia's response to Panel question No. 3.14, paras. 134 and 137 (referring to Appellate Body 
Report, China - GOES , para. 128).  
272 Appellate  Body Report, China - GOES , para.  128. 
273 Report on the definitive determination, para. 29 (Exhibits TUN -7, MAR -1). M IICEN examined several 
injury indic ia, as well as price depression and price suppression over a period of four years and four months.  WT/DS578/R  
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  undercutting analysis from the one used for the rest of the injury analysis and did not show good 
cause in its report for selecting a different period.274 
7.218.   We note that, according to Morocco, when the price effects analysis period is the same as 
the dumping analysis  period , there is a presumption of conformity with the requirements of 
Article  3.1.275 In this regard, MIICEN noted that " [w]ith regard to the undercutting assessment, the 
Ministry made a comparison, for the period from May 2016 to April 2017, corresponding to the 
margin of dumping determination period ".276 
7.219.   In order to assess whether a presumption of conformity  is created when  the periods of price 
undercutting analysis coincide s with the period of dumping analysis, we find Mexico - Anti-Dumping 
Measures on Rice  to be relevant, as the respondent in that case raised a similar argument to justify 
the selection of the period of injury  analysis . We recall that the Appellate Body rejected this 
argument, noting that the determinations of dumping and injury are not "integrated" and that "these 
determinations are two separate operations relying on distinct data seeking to determine differen t 
things" .277 Another panel also expressed the view that the Anti -Dumping Agreement does not contain 
any rule as to the relationship between or overlap of the period of dumping analysis and the period 
of injury analysis .278 We share this view . Nothing in the  text of the Anti -Dumping Agreement requires 
the period of undercutting and the period of dumping analysis to coincide . Moreover, the 
Anti-Dumping Agreement does not establish a presumption of conformity should the two periods 
overlap.  
7.220.   We note that, becaus e it limited itself to a one -year period, MIICEN did not consider the 
evidence of the interaction between domestic and import prices over the period of four years and 
four months that had been placed on the record .279 Moreover, those data indicated that the  price of 
imports was higher than the price of the domestic product between 2014 and 2016 . In the light of 
these facts, we agree with Tunisia280 that, because of the inconsistent selection of the price 
undercutting examination period, MIICEN disregarded cer tain evidence that did not support its 
conclusion.  
7.221.   Morocco also draws the Panel's attention to the fact that "in practice, the authority 
systematically takes a period of more than three years to assess injury indicators and factors, except 
for undercutting "281 and that "the period selected is defined in a pre -existing rule" (Decree 
No. 2-12-645).282 Even if the selection of the undercutting examination period was not arbitrary, 
this selection creates a doubt as to whether the undercutting analysis conducted over the 12 -month 
period can serve as a valid basis for the final determination of injury, for which most of the factors 
were examined over a period of four years and four months . The fact that MIICEN's actions are 
based on a pre -existing rule th erefore does not address the lack of objectivity resulting from the 
inconsistency between the periods selected  for the purposes of investigating injury.283 
7.222.   For the reasons set out above, we find that MIICEN's analysis fails to reflect an objective 
examinati on of price undercutting under Article 3.1 and the second sentence of Article 3.2 of the 
Anti-Dumping Agreement.  
 
274 We note that a panel has ruled on a similar topic:  
[T]here is a prima facie  case that an investigating authority fails t o conduct an "objective" examination 
if it examines different injury factors using different periods. Such a prima facie  case may be rebutted if 
the investigating authority demonstrates that the use of different periods is justifiable on the basis of 
objec tive grounds (because, for example, data for more recent periods was not available for certain 
injury factors).  
(Panel Report, Argentina - Poultry Anti -Dumping Duties , para. 7.283)  
275 Morocco's response to Panel question No. 3.15(b), para.  40. 
276 Emphasis ad ded. 
277 Appellate Body Report, Mexico - Anti-Dumping Measures on Rice , para. 183.  
278 Panel Report, EC - Tube or Pipe Fittings , para. 7.320.  
279 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148 and 191.  
280 Tunisia's comments on Morocco's response to Panel question No. 3.15(b), paras. 76 and 77.  
281 Morocco's response to Panel question No. 3.16, paras.  46 and 47.  
282 Morocco's response to Panel question No. 3.15(b), para.  41. 
283 We note that the provisions of Decree No. 2 -12-645 have n ot been challenged before us and are 
therefore not ruling on their conformity with the Anti -Dumping Agreement. Our findings are limited to MIICEN's 
decision to examine the existence of price undercutting during the period from May 2016 to April 2017 in the  
anti-dumping investigation in this case.  WT/DS578/R  
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  7.3.1.2.3   Was MIICEN's examination of price depression objective and based on positive 
evidence?  
7.223.   The second aspect of the examination of the effect of im port prices on the price of domestic 
exercise books criticized by Tunisia concerns MIICEN's consideration  of price depression.  
7.224.   First, we note that Morocco requests that we exercise judicial economy for Tunisia's 
grievances regarding significant price suppr ession and price depression should we find that the 
authority conducted a proper  price undercutting analysis .284 In the previous section, we concluded 
that MIICEN's price undercutting examination did not meet the requirements of Article 3.2 . As the 
conditio n for Morocco's request has not been met, we shall proceed to assess MIICEN's determination 
regarding the other price effects.  
7.225.   In the present case, Tunisia takes issue with MIICEN for having:  
a. used a distorted factual basis when  considering whether price de pression existed to a 
significant degree285; and 
b. failed to sufficiently explain how imports had the effect of decreasing the price of Moroccan 
exercise books, when the price of imports increased.286 
7.226.   For Tunisia, MIICEN's conclusion that "significant" price depression exists is therefore not 
based on an objective examination and positive evidence within the meaning of Articles 3.1 and 3.2 
of the Anti -Dumping Agreement.287 
7.227.   The record shows that MIICEN conducted its price depression examinati on on the basis of 
the data presented in the table below288: 
Table  1 
(Index 2013 = 100)  
 2013  2014  2015  2016  2016  
(Jan-April)  2017  
(Jan-April)  
Average unit selling price of 
the domestic industry 
(Dhs/tonne)  100 99.11  98.53  98.31  93 94 
Source:  Report on the definitive determination (Exhibits TUN -7, MAR -1), para.148.  
7.228.   The report on the definitive determination thus concludes that:  
The average selling price charged by the domestic industry remained at a very low level 
without being able to rise to satisfactory levels . In index terms, this price was 100 in 
2013 and then decreased to 94 during the first four months of 2017.289 
7.229.   The report attributes this decline in prices to pressure from imports, because "domestic 
producer s of exercise books are forced to constantly match the low prices on the market offered by 
the competition, who are primarily importers of Tunisian exercise books" .290 The record also shows 
that, starting from a comparable level in 2013, the price of exerci se books, respectively, decreased 
(for Moroccan exercise books) and increased (for exercise books imported from Tunisia) between 
2014 and 2016.291 
7.230.   Tunisia argues, first, that MIICEN used a distorted factual basis to consider whether  price 
depression existed to a significant  degree . According to Tunisia, this analysis is inconsistent with 
 
284 Morocco's  first written submission, paras.  147, 148 and 167; second written submission, para.  188. 
285 Tunisia's first written submission, paras. 6.58 -6.63 and 6.69; second written submission, paras. 
4.75-4.87.  
286 Tunisia's first written submission, paras. 6.64 -6.69; second written submission, paras. 4.88 -4.92. 
287 Tunisia's first written submission, para 6.63.  
288 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 148.  
289 Report on the definitive deter mination (Exhibits TUN -7, MAR -1), para. 146.  
290 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), para. 147.  
291 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148 and 191.  WT/DS578/R  
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  Articles 3.1 and 3.2 of the Anti -Dumping Agreement, insofar as MIICEN simply "compare[d] the 
selling price of the domestic product from 2013 to its price from the first four months of 2017"292, 
which "accentuate[d] the fall in the price" by finding a 6 % drop, when the price decrease observed 
between 2013 and 2016 was only 1.69 %.293 Tunisia notes that, although the price for the whole of 
2016 is signific antly higher than the price for the period January -April 2016, MIICEN disregarded 
what appears to be a seasonal fluctuation in prices during the first months of the year and failed to 
ensure that the data for the four-month period could be compared with those for the full  year.294 
Lastly, Tunisia argues that MIICEN should have examined the price trends for the four full years to 
conclude whether the price depression could be characterized as "significant".295 
7.231.   Morocco responds that MIICEN found , in a "holistic " manner , that the impact of the three 
price effects under Article 3.2 was significant .296 We note, however, that contrary to Morocco's 
assertions, it is clear from the report on the definitive determination that MIICEN did not examine 
the three price effec ts in a holistic manner, but rather, addressed these three effects in separate  
sections .297 Moreover, even if the authority did not describe the price depression as " notable " 
("significant"), it used the French synonym " importante "298, confirming that MIICEN  implicitly 
examined whether price depression existe d "to a significant degree", as stated by Tunisia.299 
7.232.   With regard to the factual basis for this examination, like Tunisia300, we observe that, to find 
a decline in the price of the domestic product, the investigating authority relied on a comparison 
between an index of "100 in 2013 [that] decreased to 94 during the first four months of 2017" .301 
As MIICEN'S only finding regarding movements in domestic prices during the period 2013 -2017, we 
agree with Tunisia that this finding served as a basis for MIICEN's conclusion of "importante " 
("significant") price depression .302 However, the data for an entire year usually provide a more 
accurate picture of the situation than the data for part  of the year.303 In this case, the data available 
to MIICEN showed a significant difference between the price index for the whole of 2016 and the 
price index for the first four months of 2016 (98.31 compared to 93) . We therefore consider that an 
objective a nd unbiased authority should at least have explained why, notwithstanding the price 
difference between the full year and the first four months of the year, the data for four months (in 
2017) compared with the data for entire years could be decisive in judg ing the magnitude of price 
depression . Yet, we do not find any discussion on this point in MIICEN's report on the definitive 
determination.  
7.233.   We recall that Tunisia also considers that instead of focusing on an end -point-to-end-point 
analysis (2013 and the f irst four months of 2017), MIICEN should have examined the price trends 
during the four full years in order to conclude whether the price depression could be characterized 
as "significant" .304 Morocco responds that the authority observed a downward trend in  prices 
throughout the period of data collection and was not limited to an end -point-to-end point analysis .305 
We understand that Tunisia specifically criticizes the fact that the authority failed to examine the 
magnitude of the price decline during the per iod of investigation . The record indicates that MIICEN 
found a gradual decline in the prices of Moroccan exercise books throughout the period of 
investigation306, without addressing the magnitude of this decline . However, it also shows that the 
price declin e was, at most, only 1.69 % during the four full years between 2013 and 2016 . MIICEN 
nevertheless disregarded those data and instead chose, without explaining why, to substantiate its 
 
292 Tunisia's second written submission, par a. 4.86; response to Panel question No. 3.12, para. 126.  
293 Tunisia's first written submission, paras. 6.59 and 6.61; second written submission, para. 4.86.  
294 Tunisia's first written submission, para. 6.60; response to Panel question No. 3.12, para. 126. 
295 Tunisia's  first written submission, paras.  6.61 and  6.62; second written submission, paras.  4.82 and 
4.83; and response to Panel question No.  3.10, paras.  113 and 114.  
296 Morocco's first written submission, paras.  154 and 155.  
297 Report on the definit ive determination (Exhibits TUN -7, MAR -1), paras. 128 -150. 
298 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180.  
299 Tunisia's second written submission, paras. 4.77 and 4.78.  
300 Tunisia's second written submission, paras. 4.78 and 4.86.  
301 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 146.  
302 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180.  
303 02 The Appellate Body noted, in a slightly different context, that " examining data relating t o the 
whole year would result in a more accurate picture of the 'state of the domestic industry' than an examination 
limited to a six -month period". (Appellate Body Report, Mexico - Anti-Dumping Measures on Rice , para. 183)  
304 Tunisia's  first written submis sion, paras.  6.61 and  6.62; second written submission, paras.  4.82 and 
4.83; and response to Panel question No.  3.10, paras.  113 and 114.  
305 Morocco's first written submission, paras.  156 and 157.  
306 Report on the definitive determination (Exhibits TUN -7, MA R-1), paras. 146 and 147.  WT/DS578/R  
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  conclusion of " importante " price depression on the basis of an end -point-to-end-point comparison 
of the period of investigation . In our view, this approach undermines the objectivity of MIICEN's 
analysis of whether price depression existed to a significant degree . 
7.234.   We now turn to Tunisia's second argument concerning the price de pression examination . In 
view of the "opposite" trend in the respective prices of Moroccan exercise books and exercise books 
imported during the period, Tunisia considers that "Tunisian imports" had no "explanatory force" for 
the fall in the price of the d omestic product and that, therefore, MIICEN was not in a position to find 
that price depression was the result of "' the effect' of Tunisian imports ".307 
7.235.   The investigation record confirms that the prices of Tunisian exercises books were higher 
than those of the exercise books produced by the Moroccan industry between 2014 and the first four 
months of 2017 .308 While the price of imports increased (in comparison to 2013) in 2014, 2015 and 
2016, the price of the domestic product decreased during the same  period .309 Thus, not only were 
the prices of the Tunisian product higher than the price of the domestic like product, but they also 
followed an opposite trajectory .310 Although this evidence was available to the authority, the price 
depression section of th e report does not contain any analysis of these data . We recall that MIICEN 
found that "domestic producers of exercise books [were] forced to constantly match the low prices  
on the market offered by the competition, who [were] primarily importers of Tunisi an exercise 
books"311, but did not explain how this conclusion was consistent with the data on the pricing of 
Tunisian exercise books. Moreover, MIICEN failed to explain how imports would have had the effect 
of depressing prices when import prices were high er than the price of the domestic like product . On 
this point, we agree with two previous panels, which considered that such a situation could create a 
doubt as to the impact of imports on domestic prices and therefore required an explanation from 
the auth ority.312 We therefore consider that by disregarding this evidence that could contradict its 
conclusions, MIICEN failed to conduct an objective examination of whether the dumped imports of 
Tunisian exercise books had the effect of depressing the prices of d omestically produced exercise 
books.  
7.236.   We therefore consider that  by disregarding certain evidence on the magnitude of the decline 
in the prices of the domestic product and the interaction between the prices of the domestic and the 
Tunisian product, MIICEN f ailed to consider objectively whether price depression existed to a 
significant degree, as required by Article 3.1 and the second sentence of Article 3.2 of the 
Anti-Dumping Agreement.  
7.3.1.2.4   Was MIICEN's consideration  of price suppression objective and based on 
positive evidence?  
7.237.   The third and final aspect of the examination of the effect of import prices on the price of 
domestic exercise books criticized by Tunisia concerns the objectivity of the examination of price 
suppression within the meaning of Articles 3. 1 and 3.2 of the Anti -Dumping Agreement.  
7.238.   In the present case, Tunisia takes issue with MIICEN for  both: 
a. having used a distorted factual basis when considering whether there had been  significant 
price suppression313; and 
b. not having analysed in an objective manner whether the price suppression observed was 
due to imports.314 
 
307 Tunisia's first written submission, para 6.68. (original emphasis)  
308 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148, 149 and 191.  
309 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 148 and 191.  
310 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148, 149 and 191.  
311 Emphasis added.  
312 Two previous panels considered that the investigating authority should have provided an explanation 
of how it had concluded  that there was price depression in a situation where the prices of the dumped imports 
were higher than the price of the domestic like product. (Panel Reports, China - Cellulose Pulp , para. 7.86; 
China - Autos (US) , para. 7.272)  
313 Tunisia's first written s ubmission, paras. 6.74, 6.77 and 6.78; second written submission, paras. 
4.96-4.103.  
314 Tunisia's first written submission, paras. 6.80 -6.84; second written submission, paras. 4.104 -4.108.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 57 - 
  7.239.   We address these two arguments in turn below.  
7.240.   In its first line of argument ation, Tunisia claims that MIICEN chose a distorted factual basis 
for assessing whether the observed increase in the ratio between the cost of production and the 
selling price of the domestic product was "to a significant degree".315 
7.241.   In Morocco's view, this argument by Tunisia falls outside the scope of the claim made in 
paragraph B.7 .c. of the pa nel request .316 We recall that this paragraph reads as follows:  
[T]he analysis regarding the depression of sales prices and the prevention of price 
increases is not based on positive evidence and does not involve an objective 
examination .317 
7.242.   In this regard, Morocco notes that Tunisia's arguments concerning the characterization of 
10% and 3 % values as "significant" raise a question of interpretation of the word "significant", 
whereas Tunisia's claim in the panel request is limited to the issues of an objective  examination and 
positive evidence.318 
7.243.   We disagree with Morocco in this respect . As in its price depression arguments, Tunisia 
challenges the investigating authority's choice  of factual basis  for finding a "significant" increase in 
the ratio between the cos t of production and the selling price of Moroccan exercise books .319 This 
means that we should examine the objectivity of MIICEN's analysis of price suppression data . This 
argument is therefore not outside the scope of the claim made in the panel request.  
7.244.   The investigation record shows that in its price suppression analysis, MIICEN relied on the 
data in the table below . It found that the cost of production of the domestic product had increased 
"from 100 in 2013 to 101 in 2016 and 103 in 2017", while the selling price of exercise books gradually 
decreased from 2013 onwards . The authority thus noted that the ratio between the cost of 
production and the selling price of exercise books produced by the domestic industry increased "from 
100 in 2013 to 110 in 20 17". This confirmed, in its view, "the presence in the domestic market of 
pressure preventing the domestic industry from increasing its prices".320 
Table 2  
(Index 2013 = 100)  
 2013  2014  2015  2016  2016  
(Jan-April)  2017  
(Jan-April)  
Average cost of production 
of the domestic industry 
(Dhs/tonne)  100 102.26  98.76  101.24  103 102.81  
Average selling price of 
the domestic industry 
(Dhs/tonne)  100 99.11  98.53  98.31  93 94 
Unit margin  -100 -917.86  -157.14  -862.5  -2693 -2388 
Cost of production / 
Selling price  100 104 101 103 111 110 
Source:  Report on the definitive determination (Exhibits TUN -7, MAR -1), para.149.  
7.245.   We note that the comparison of the index for the full year 2013 (100) with the index for the 
first four months of 2017 (110) was MIICEN's only finding concerning the ratio between the cost of 
production and the selling price of domestic exercise books . On this basis, MIICEN concluded that 
 
315 Tunisia's first written submission, paras. 6.78 and 6.79; second written submission, paras. 4.95 -
4.103.  
316 Morocco's first written submission, paras. 163 and 164.  
317 Tunisia's panel request, para.  B.7.c. (emphasis added)  
318 Morocco's first written submission, paras. 163 and 164.  
319 Tunisia's first written submission,  para. 6.78.  
320 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 149.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  "dumped imports of Tunisian exercise books have had … the effect of ... preventing [price] 
increase[s] to a significant degree ".321 
7.246.   The above table shows that there were considerable variations in the ratio between the cost 
of production and the selling price of Moroccan exercise books in 2016 (index 103 for the whole year 
as opposed to index 111 dur ing the January -April period) . In Tunisia's view, this indicates that the 
data for the four months of the year were unreliable as a basis for the definitive finding of significant 
price suppression .322 Indeed, in our opinion, an objective and unbiased autho rity should have at 
least addressed this difference between the full year and the first four months of the year and 
explained why, notwithstanding this difference, the data for the four -month period could be 
compared with the data for full years when exami ning the increase in the ratio between the cost of 
production and the selling price of the exercise books . MIICEN's report on the definitive 
determination does not, however, contain any discussion of this matter . 
7.247.   In this regard, Tunisia also considers that MIICEN failed to objectively analyse the trends in 
the ratio between the cost of production and the selling price during the investigation period in order 
to be able to assess whether prices were suppressed to a "significant" degree .323 As we have already 
noted, Article 3.2 of the Anti -Dumping  Agreement requires the investigating authority to consider 
whether the effect of the dumped imports is to "prevent price increases, which otherwise would have 
occurred, to a significant degree ".324 This m eans that the magnitude  of the price suppression can 
have consequences for the finding of this effect . We note, however, that MIICEN failed to examine 
the evolution of the ratio between the cost of production and the selling price of exercise books 
through out the entire investigation period, and focused exclusively on comparing the data for 2013 
and the first four months of 2017 . The record shows that between 2013 and 2016 the annual increase 
in the ratio between the cost of production and the selling price  of exercise books was up to 4 % (in 
2014), while comparing the 2013 data with the data for the first four months of 2017 showed an 
increase of 10 %. MIICEN therefore chose to rely on the comparison of the 2013 data with the data 
for the first four months of  2017, without explaining why this limited comparison was more relevant 
than the trend over the four full years .325 This failure to examine the evolution of the ratio between 
the cost of production and the selling price of exercise books throughout the enti re investigation 
period, together with the absence of any explanation as to the choice of factual basis for finding 
price suppression to a significant degree, reflects, in our view, a lack of objectivity.  
7.248.   We recall that Tunisia raises a second argument acc ording to which the facts gathered by 
the investigating authority contradicted its assertion that the Tunisian imports were exercising 
"pressure preventing the domestic industry from increasing its prices to a level that [would] enable 
it to cover its prod uction and selling  costs" .326 In particular, Tunisia highlights the analysis of trends 
in the prices of the import s and the domestic product and the cost of production, which shows that 
in three of the four years and four months of the investigation period "the price  of the  import s was 
above the cost of production of the [domestic industry] which , in turn , was above the price of the 
domestic product".327 
7.249.   We recall that consideration of price suppression requires the investigating authority to 
consider whether this price effect is a consequence  of subject imports .328 In another dispute 
settlement proceeding, it was found that "an investigating authority may n ot disregard evidence 
regarding elements that call into question the explanatory force of dumped imports for significant 
price suppression" .329 We note that the only paragraph in MIICEN's report dedicated to the analysis 
 
321 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 150. (emphasis added)  
322 Tunisia's response to Panel question No. 3.11, paras. 120 and 124.  
323 Tunisia's first written submission, paras. 6.73 -6.79 and 6.84; second written submission, paras. 
4.94-4.103.  
324 Emphasis added.  
325 Morocco contends that "[w]hen an industry is not only unable to recover the increase in production 
costs, but also sells at a l oss over a long period of time , any price suppression is by definition significant". 
According to Morocco, an increase of 3 % is "clearly 'significant'". (Morocco's first written submission, paras. 
165 and 166 (bold type and underlin ing original)) We note t hat this reasoning is not reflected in MIICEN's 
report. Given our standard of review, we are unable to rely on this explanation.  
326 Tunisia's second written submission, para. 4.108 (quoting the report on the definitive determination 
(Exhibit MAR -CONF -3 (BCI )), para. 149).  
327 Tunisia's second written submission, para. 4.107.  
328 Appellate Body Report, China - GOES , para. 136. See also Appellate  Body Report, 
Russia  - Commercial Vehicles , para.  5.53.  
329 Appellate  Body Report, Russia - Commercial Vehicles , para.  5.96. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  of price suppression does not mentio n Tunisian imports .330 Having concluded that the cost of 
production and the ratio between the cost of production and the selling price of the domestic product 
had increased, MIICEN asserted that this "indicate[d] the presence in the domestic market of 
press ure preventing the domestic industry from increasing its prices to a level that [would] enable 
it to cover its production and selling  costs" .331 Beyond that, MIICEN failed to examine whether this 
price pressure stemmed from the Tunisian imports . At the same  time, in the following paragraph, 
the investigating authority found that the dumped imports of Tunisian exercise books had had the 
"effect of ...preventing [price] increase[s] to a significant degree" .332 This conclusion is therefore not 
based on an object ive analysis of the Tunisian imports' explanatory force for the price effect observed 
by MIICEN.  
7.250.   The record shows that between 2014 and 2016 (i.e. for three years of a data collection period 
of four years and four months), the price of the imports was abov e the domestic industry 's cost of 
production, which, in turn, was above the price of the domestic product .333 Nevertheless, MIICEN 
did not examine the interaction among  the price of the domestic product, the cost of production and 
the price of the Tunisian imports , and did not explain why the domestic producers could not increase 
their prices between 2014 and 2016, when the prices of Tunisian exercise books were higher than 
the price of the domestic product and the cost of production of the domestic product.  
7.251.   In these circumstances, we believe that an objective and unbiased authority should not have 
ignored the evidence that called into question the Tunisian imports' explanatory force for the price 
suppression . We therefore conclude that MIICEN's analysis was inconsistent with Article 3.1 and the 
second sentence of Article 3.2 of the Anti -Dumping Agreement.  
7.3.1.3   Conclusion  on the examination of the effects of imports on prices  
7.252.   On the basis of these elements, we find that MIICEN considered price undercut ting, price 
depression and price suppression in a manner that was inconsistent with Article 3.1 and the second 
sentence of Article 3.2 of the Anti -Dumping Agreement.  
7.3.2   Whether MIICEN objectively considered the volume of Tunisian imports in relation 
to domest ic production and consumption of exercise books  
7.253.   Tunisia claims that MIICEN failed to consider objectively the volume of imports in relative 
terms compared to production or consumption in Morocco .334 Morocco, for its part, requests the 
Panel to either reject  this claim335 or resort to the principle of judicial economy.336 
7.254.   In what follows, we consider whether resorting to the principle of judicial economy in relation 
to this claim would be justified.  
7.255.   We recall that the investigating authority's consideration of the volume of the imports and 
their price effects pursuant to Article 3.2 "is also subject to the overarching principles, under 
Article[  ] 3.1 ..., that it be based on positive evidence and involve an objective examination" .337 The 
detailed  requirements applicable to the investigating authority's consideration of the volume of the 
imports are set out in the first sentence of Article 3.2 of the Anti -Dumping Agreement:  
With regard to the volume of the dumped imports, the investigating authorit ies 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.  
7.256.   Morocco contends, first of all, that since the examination under Article 3.1 and the first 
sentence of Article 3.2 is disjunctive , after having considered the volume of imports in absolute 
 
330 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 149.  
331 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 149.  
332 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 150.  
333 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148, 149 and 191 
(tables).  
334 Tunisia's first written submission, paras. 6.16 -6.33; second written submission, paras. 4.29 -4.42. 
335 Morocco's first written submission, para. 14; second written submi ssion, para. 179.  
336 Morocco's second written submission, para. 175.  
337 Appellate Body Report, China - GOES , para. 130.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  terms, the authority was not required to consider an increase in volume in relative terms .338 Morocco 
therefore requests the Panel to resort to judic ial economy with respect to this claim .339 Tunisia 
responds that if a  discretionary analysis serves as the basis for a conclusion of injury, it must meet 
the requirements of Article 3.1 of the Anti -Dumping Agreement.340 
7.257.   We note that Article 3.2 does indeed provide for three alternative examinations of the 
increase in imports (which can be assessed " either  in absolute terms or relative to production or 
consumption in the importing Member") and does not require the authority to conduct more than 
one of these examinations .341 However, Article 3.1 requires that "[a] determination of injury ... 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 domestic market for like 
products, and (b) the consequent impact of these imports on domestic producers of such products" . 
On its face, the obligation  in Article 3.1 applies to the analysis of the volume of dumped imports and 
does not distinguish between m andatory analyses and discretionary  analyses that an authority may 
undertake under Article 3.2 . On the basis of this text, we agree with Tunisia's argument342 that, if 
the authority chose to undertake an analysis of the evolution of the volume of imports no t only in 
absolute terms but also in relative terms and to base its conclusions on that analysis, the analysis 
must comply with the requirements of Article 3.1 in its entirety.343 
7.258.   In the present case, MIICEN considered the volume of imports in three ways (i n absolute 
terms, relative to consumption and relative to production)344 and reached its definitive conclusion of 
material injury on the basis of, inter alia , its consideration of the volume of Tunisian imports in 
relative terms .345 Thus, having chosen to un dertake this consideration and having relied in part 
thereon in its definitive injury determination, MIICEN was required to comply with the requirements 
of Articles 3.1 and 3.2 of the Anti -Dumping Agreement.  
7.259.   Morocco also contends that the Panel's findings regarding this claim would not be needed 
"to resolve the dispute and [would be] of no relevance for the implementation of any DSB 
recommendations" .346 It should be recalled that Tunisia only contests the two considerations in 
relative terms and does not adv ance any argument regarding the consideration of the volume of 
Tunisian imports in absolute terms347 that also served as the basis for the  investigating authority's  
definitive conclusion of injury .348 Nevertheless, Tunisia explains that the finding regarding the 
increase in imports in relative terms forms an integral part of the injury determination and that, 
therefore, the Panel's finding on this issue "would have practical effects for resolving this dispute".349 
7.260.   We do not agree with Tunisia . Even if  we upheld  this claim by Tunisia, Morocco could, in 
principle, rely, at the implementation stage, on the consideration of the volume of imports in absolute 
 
338 Morocco's preliminary ruling  request, paras. 50 -53; second written submission, para. 173.  
339 Morocco's second written submission, paras. 173, 175 and 176.  
340 Tunisia's response to Morocco's preliminary ruling  request, para. 8.5.  
341 Emphasis added. The parties agree that Article 3.2 does not require consideration of the increase in 
imports in absolute terms and in relative terms. (Morocco's fi rst written submission, para. 14; preliminary 
ruling  request, para. 52 (referring to Panel Report, China - Cellulose Pulp , paras. 7.34 -7.38); and Tunisia's 
response to Morocco's preliminary ruling  request, para. 8.5)  
342 Tunisia's response to Morocco's preli minary ruling  request, paras. 8.6 -8.10; second written 
submission, paras. 4.37 and 4.38.  
343 We recall in this regard another panel's findings that the investigating authority was not required to 
consider the volume of imports in relative terms, but by under taking such an examination  and relying thereon 
for its injury determination, it was indeed subject to the requirements of Articles 3.1 and 3.2 of the Anti -
Dumping Agreement. (Panel Report, Pakistan - BOPP Film (UAE) , para. 7.281)  
344 Report on the definitive  determination (Exhibits TUN -7, MAR -1), paras. 110 -125. 
345 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 180 and 181. We note that 
the indexed data on the volume of Tunisian exports compared to domestic production and consumption are 
given in paragraph 123 of the non -confidential version of MIICEN's report . (Report on the definitive 
determination (Exhibits  TUN-7, MAR -1), para. 123) Howeve r, MIICEN's analysis in paragraph s 122-125 of the 
report  (in the confidential and non -confidential versions ) is based on unindexed data from the confidential 
version of MIICEN's report . (Report on the definitive determination  (Exhibit  MAR-CONF -3 (BCI)), para. 123) 
346 Morocco's second written submission, para. 175.  
347 Tunisia's response to Morocco's preliminary ruling  request, fn 1. 
348 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 180 and 181.  
349 Tunisia's opening statement at the second  meeting of the Panel, para. 4.4.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  terms, which has not been contested by Tunisia . From this perspective, our finding would not 
contrib ute to resolving this dispute.  
7.261.   We recall that "[t]he practice of judicial economy ... allows a panel to refrain from making 
multiple findings that the same measure is inconsistent with various provisions when a single, or a 
certain number of findings of in consistency, would suffice to resolve the dispute".350 
7.262.   In these proceedings, Tunisia contests both MIICEN's examination of the volume of imports 
and the examination of the effects of imports on the prices of the domestic product . In an injury 
determination,  these two examinations are closely linked . Thus, Article 3.1 requires "an objective 
examination of ... (a) the volume of the dumped imports and the effect of the dumped imports on 
prices in the domestic market for like products" .351 Furthermore, Article 3. 2, which concerns the 
examination of the effects of the imports on prices and the examination of the volume of imports, 
explicitly states that "[n]o one or several of these factors can necessarily give decisive guidance" . 
In view of this close relationship  between the two examinations and the inconsistencies we have 
found in the examination of the effects of imports on the prices of the domestic product, it is not 
necessary for us to rule on this claim in order to resolve this dispute.  
7.3.3   Whether MIICEN  examined objectively the state of the domestic industry  
7.3.3.1   Introduction  
7.263.   Tunisia claims that the investigating authority violated Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement by failing to conduct an objective analysis of the factors listed in Article 
3.4.352 
a. First, Tunisia contends that MIICEN ignored the fact that several factors had evolved 
positively.353 
b. Second, Tunisia criticizes the authority's decision to rely on the data from 
January -April 2017 to find negative trends in the sales, market share and output of the 
domestic industry, despite the positive trends in these factors between 2013 and 2016.354 
c. Third, Tunisia argues that MIICEN failed to objectively examine the negative profitability 
of the domestic industry.355 
7.264.   Morocco rejects this claim in its entirety.356 
7.3.3.2   Analysis  
7.265.   We begin by briefly recalling the requirements of Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement before turning to the consideration of Tunisia's three arguments.  
7.3.3.2.1   Applicable requirements of Articles 3.1 and 3.4 of the Anti -Dump ing Agreement  
7.266.   Article 3.4 of the Anti -Dumping Agreement provides as follows:  
The examination of the impact of the dumped imports on the domestic industry 
concerned shall include an evaluation of all relevant economic factors and indices having 
a bearing on  the state of the industry, including actual and potential decline in sales, 
profits, output, market share, productivity, return on investments, or utilization of 
capacity ; factors affecting domestic prices ; the magnitude of the margin of dumping ; 
 
350 Appellate Body Report, Canada - Wheat Exports and Grain Imports , para. 133. (emphasis added)  
351 Emphasis added.  
352 Tunisia's first written submission, paras. 6.85 -6.134; second written submission, paras. 4.110 -4.154.  
353 Tunisia's first written submission, paras. 6.99 -6.106; second written submission, paras. 4.112 -4.120.  
354 Tunisia's first written submission, paras. 6.107 -6.120; second written submission, paras. 4.121 -
4.139.  
355 Tunisia's first written submissi on, paras 6.121 -6.132; second written submission, paras. 4.140 -
4.152.  
356 Morocco's first written submission, paras. 168 -196; second written submission, paras. 213 -241. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  actual a nd potential negative effects on cash flow, inventories, employment, wages, 
growth, ability to raise capital or investments . This list is not exhaustive, nor can one 
or several of these factors necessarily give decisive guidance.  
7.267.   This provision focuses on the state of the domestic industry357 and lists 15 factors that are 
to be evaluated by the investigating authority . It is apparent from the text of Article 3.4 that this 
provision does not prescribe a particular methodology for the evaluation of, or weight to be attributed 
to, the various factors .358 As stated in the last sentence of Article  3.4, the list of 15 factors is not 
exhaustive, nor can one or several of these factors necessarily give decisive guidance . In the light 
of this last sentence, several pan els have held that Article 3.4 does not require all relevant factors, 
or even a majority of them, to show negative developments in order for injury to be found.359 
7.268.   Since the first sentence of Article 3.4 requires an examination of the impact of dumped 
impor ts on the domestic industry, the Appellate Body noted that Article 3.4 is concerned with "the 
relationship between subject imports and the state of the domestic industry" .360 In other words, the 
investigating authority is required to examine "the 'explanato ry force' of subject imports for the 
state of the domestic industry" .361 However, under this provision, the investigating authority is " not 
required to demonstrate that dumped imports are causing injury to the domestic industry, which is 
an analysis specifically mandated by Article 3.5".362 
7.269.   The obligation set out in Article  3.4 must be read in the light of Article  3.1, which requires 
that a de termination of injury be based on positive evidence and involve an objective examination . 
The Appellate Body has stated that these two provisions read together "instruct [ ] investigating 
authorities to evaluate, objectively and on the basis of positive evidence, the importance and the 
weight to be attached to all the relevant factors".363 
7.3.3.2.2   Was the analysis of the domestic industry 's sales and market share objective?  
7.270.   Regarding the analysis of the domestic industry 's sales and market share, Tunisia criticizes 
MIICEN's decision to give determinative weight to the data for the period January -April 2017, without 
taking into account the seasonal nature of exercise book sales .364 According to Tunisia, the 
investigating authority should have attributed more  importance to the fact that sales and market 
share increased between 2013 and 2016.365 
7.271.   In order to address this argument, we review in detail the analysis conducted by MIICEN . In 
this case, MIICEN noted that "[s]ales of exercise -books ... [had] increased s lightly as of 2014 and 
then [fallen] by 9 points in January -April 2017 compared to the same period in 2016" .366 Similarly, 
MIICEN considered that the increase in market share had been "slight and insufficient, followed, 
however, by a decline in the first fo ur months of 2017" .367 In its conclusion of material injury, MIICEN 
explained that "[t]he state of the domestic exercise book industry [ was] of material injury indicated 
 
357 Appellate Body Reports, Korea - Pneumatic Valves (Japan) , para. 5.167; China - HP-SSST (Japan) / 
China - HP-SSST (EU) , para. 5.204.  
358 Appellate Body Reports, Korea - Pneumatic Valves (Japan) , para. 5.168; China - HP-SSST ( Japan ) / 
China - HP-SSST (EU) , para. 5.204.  
359 Panel Reports , China - Cellulose  Pulp, para. 7.117; EU - Footwear (China) , para. 7.413; EC - Tube or 
Pipe Fittings , para. 7.329; and EC - Bed Linen (Article 21.5 - India) , para. 6.163.  
360 Appellate Body Report, Korea - Pneumatic Valves (Japan) , para. 5.166 (quoting Appellate Body 
Report, China - GOES , para. 149).  
361 Appell ate Body Report, Korea  - Pneumatic Valves  (Japan) , para. 5.166 (quoting Appellate Body 
Reports, China  - HP-SSST  (Japan) / China  - HP-SSST  (EU), para. 5.205, in turn quoting Appellate Body Report, 
China  - GOES , para. 149).  
362 Appellate Body Report, Korea  - Pneumatic Valves  (Japan) , para. 5.166 (quoting Appellate Body 
Reports, China  - HP-SSST  (Japan) / China  - HP-SSST  (EU), para. 5.205, in turn referring to Appellate Body 
Report, China  - GOES , para. 150 (emphasis original)).  
363 Appellate Body Report, Korea  - Pneumatic Valves  (Japan) , para. 5.168 (quoting Appellate Body 
Reports, China  - HP-SSST  (Japan) /  China  - HP-SSST  (EU), para. 5.207).  
364 Tunisia's first written submission, paras. 6.117 and 6.119; second written submission, paras. 4.133 
and 4.135.  
365 Tunis ia's first written submission, para. 6.120.  
366 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 160.  
367 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 160.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  by … the decline … in sales [and] market share recorded in the first four months of 201 7 despite 
their positive development during the period 2013 -2016".368 
7.272.   MIICEN relied on the data presented below369: 
Table 3  
(Index 2013 = 100)  
 2013  2014  2015  2016  2016  
(Jan-April)  2017  
(Jan-April)  
Sales of exercise books in 
Morocco (tonnes)  100 114 117 122 27 18 
Domestic industry's 
market share  100 103 100 103 68 35 
Source:  Report on the definitive determination (Exhibits TUN -7, MAR -1), para.161.  
7.273.   It is therefore our understanding that the investigating authority found a decline in sales and 
market share solely  on the basis of the fall in these indices in January -April 2017 compared to the 
same period in 2016 and despite the upward trend between 2013  and 2016.  
7.274.   The question before us is whether, by giving determinative weight to the comparison of the 
data for four -month periods from 2016 and 2017 in its analysis of sales of exercise books and market 
share, MIICEN examined these two injury factors in an  objective manner.  
7.275.   We note that, according to MIICEN's findings, deliveries of exercise books do not occur 
regularly throughout the year, but are concentrated in the months of April and May:  
[S]ales of exercise books are, by nature, seasonal . Indeed, the s ector is driven by the 
start of the school year . Wholesalers or large -scale retailers place orders with exercise 
book manufacturers around December . Production begins then and orders are delivered 
during  April and May , in anticipation of back -to-school pur chases.370 
7.276.   Tunisia contends that  "MIICEN had sufficient  data not to rule out the possibility that the 
decline in sales and market share in January -April 2017, compared to January -April 2016, had been 
largely offset during the rest of the year" .371 Indeed, since the January -April period ends in the 
middle of the period when deliveries take place, this four -month period does not take into account, 
by definition, deliveries that take place in May, which can create an incomplete picture of the 
evolution of sales and market share . Thus, the confidential data for the year 2016 showed that the 
domestic industry's market share was lower in the period January -April [[***]]  % when compared 
to its market share for the entire year [[***]]  %.372 For these reasons, we agree with Tunisia that 
an objective and unbiased authority should have taken into account the seasonality of sales in its 
assessment of the importance of the data for the periods January -April 2016 and 2017, and 
examined the possibility that the declin e in these indices in the first four months of 2017 was not 
sufficiently representative . However, the paragraphs presenting MIICEN's analysis of sales and 
market share contain no remarks on either the seasonal nature of exercise book sales or the 
reliabili ty of the data for the January -April period . For this reason, we consider that giving 
determinative weight to the data for the four -month periods without addressing whether these data 
present a representative picture of the evolution of these factors affec ts the objectivity of the 
analysis.  
7.277.   In response, Morocco stresses that the authority compared the same  seasons (the first four 
months of 2016 with the first four months of 2017) and that the industry's seasonal nature was 
therefore not a relevant considera tion.373 Regarding this argument, we agree with Tunisia that the 
 
368 Report on the definitive determination (Exhibits TUN -7, MAR-1), para. 180.  
369 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 161.  
370 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 63. See also the initiation 
report (Exhibits TUN -2, MAR -10), para. 11. (emphasis added)  
371 Tunisia's first written submission, para. 6.119; and second written submission, para. 4.135.  
372 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), para. 161. See also Tunisia's 
second written submission, para. 4.11.  
373 Morocco's first writt en submission, para. 189; and response to Panel question No. 4.2, para. 78.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  comparison between the first four months of 2016 and the first four months of 2017 is problematic 
"because the period selected, while the same for 2016 and 2017, ends in the middle of the peri od 
during which sales occur"374 and therefore does not take into account subsequent deliveries . We 
consider that an objective and unbiased authority should have explained how it took into account 
the possibility that the decline in sales and market share du ring the first four months was offset later 
in the year, and why this consideration does not affect the comparability of the two four -month 
periods . Thus, the fact that the same months were compared does not change our reasoning above.  
7.278.   Morocco also draws o ur attention to a panel's finding that "nothing in Article 3.1 prohibits an 
investigating authority from focusing on a part of the period of investigation for a more detailed 
analysis of developments during that part of the period of investigation" .375 We agree that nothing 
in Article 3.1 prohibits an authority from examining part of the investigation period in more detail . 
In this case, however, we consider that MIICEN failed to conduct an objective examination of the 
sales and market share of the domestic industry, since it gave determinative weight  to the data for 
the four -month periods, without reconciling this approach with its finding regarding the seasonality 
of exercise book sales.  
7.279.   Lastly, according to Morocco, since the date of the initiation of the investigation was 
11 May 2017, MIICEN did not have a full set of data for 2017 and therefore took into account the 
available data for the first four months of 2017 . Morocco asserts that taking into account the 
available data for the most recent period is n ot inconsistent with Articles 3.1 and 3.4 .376 Indeed, 
taking into account recent data is generally desirable, as such data may reveal current injury .377 
However, we note that Tunisia is not contesting the choice of investigation period or the taking into 
account of data for the first four months of 2017, but rather the fact that MIICEN decided to draw 
definitive conclusions from these data without taking into consideration the seasonality of the 
product at issue .378 We consider that, while taking into accou nt the data for the first four months of 
2017, MIICEN could have examined what weight to give to these data in the context of its own 
findings regarding the seasonal nature of sales and in  the light of the data for the four-month period 
of 2016 and for that year as a whole . 
7.280.   Based on the foregoing, we find that MIICEN failed to conduct an objective examination of 
the evolution of the sales and market share of the domestic industry, as required by Articles 3.  
7.3.3.2.3   Was the analysis of the domestic industry's produc tion objective?  
7.281.   Tunisia criticizes the examination of the domestic industry's production because "it was not 
objective for MIICEN to give decisive weight to the data for January -April 2017".379 According to 
Tunisia, production is affected by the seasonality  of the product at issue, and the data for the  
four-month period are not necessarily representative and reliable as a basis for a definitive 
judgement .380 Tunisia highlights that production "increased over the four full years of the 
investigation period, a nd that MIICEN erroneously concluded that production performed negatively 
based on the data for January -April 2017."381 
7.282.   We recall that, according to MIICEN, the domestic industry's production "increased by 33 
points between 2013 and 2016, to then decrease o ver the first four months of 2017" .382 MIICEN also 
noted that one of the domestic producers had been forced to stop production in 2017 because of the 
pressure from Tunisian imports of exercise books .383 MIICEN pointed out that "the positive 
developments in production between 2013 and 2016, examined in the light of the non -profitable 
sales made [during] this entire period, give rise to the conclusion that the increase in production is 
not an indication of the performance of the [domestic indus try], which explains the [domestic 
 
374 Tunisia's second written submission, para. 4.17.  
375 Morocco's second written submission, para. 222 (quoting Panel Report, Russia - Commercial 
Vehicles , para. 7.42).  
376 Morocco's fi rst written submission, para. 191; second written submission, para. 225.  
377 Appellate Body Report, Mexico - Anti-Dumping Measures on Rice , paras. 166 and 167.  
378 Tunisia's second written submission, para. 4.10.  
379 Tunisia's second written submission, para. 4.130.  
380 Tunisia's  first written submission, para. 6.111; second written submission, paras. 4.128 and 4.129.  
381 Tunisia's second written submission, para. 4.128. See also Tunisia's response to Panel question 
No. 4.5, para. 158.  
382 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 153.  
383 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 153.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  industry 's] inability to maintain this pace and led it to decrease its production in 
January -April 2017".384 Lastly, MIICEN relied upon this decrease in production (and three other 
factors) in its finding of injury.385 
7.283.   In its analysis, MIICEN relied upon the data set forth in the table below386: 
Table  2 
(Index 2013 = 100)  
 2013  2014  2015  2016  2016 
(Jan-April)  2017 
(Jan-April)  
Domestic exercise book 
production (tonnes)  100 117 118 133 42 34 
Source:  Report on the definitive determination (Exhibits TUN -7, MAR -1), paragraph 123.  
7.284.   Thus, the question before us is whether, by giving determinative weight to the first four 
months of 2017 in its analysis of domestic production, MIICEN examined this inj ury factor in an 
objective manner.  
7.285.   We begin our analysis with Tunisia's main argument that the seasonality of the product 
means that the data relating to exercise book production for the four -month period are unreliable . 
To support its position, Tunisia re fers to MIICEN's finding concerning the seasonality of the 
product .387 We have already examined this finding, but we recall it below:  
It should be noted that sales of exercise books are, by nature, seasonal . Indeed, the 
sector is driven by the start of the school year . Wholesalers or large -scale retailers place 
orders with exercise book manufacturers around December . Production begins  then and 
orders are delivered during  April and May, in anticipation of back -to-school 
purchases.388 
7.286.   According to Tunisia, this  finding demonstrates that "[p]roduction does not therefore take 
place regularly throughout the year but is dictated by the orders, which are placed around 
December."389 Tunisia asserts that "the central question linked to seasonality is to what extent  this 
proportion  [in January -April] varies from one year to the next ".390 MIICEN's finding does not provide 
any indication of what fraction  of production takes place between January and April of each year and 
whether the proportion of production for this period varies depending on the year . The production 
data set forth in the table also fail to provide indications in this regard because 2016  is the only year 
for which we find data for the January -April period, as well as for the full year . The record does not 
therefore show to what extent the proportion of production that takes place between January and 
April varies from one year to the next . For this reason, we are not convinced that the information 
before the authority clearly indicated what impact the seasonality of the sales of exercise books had 
on production in the January -April period.  
7.287.   Tunisia criticizes two further aspects of MIICEN's analysis of production.  
7.288.   First, Tunisia draws our attention to the fact that MIICEN used a limited set of data for the 
four months of 2017, without putting them in the context of the data for the entirety of 2017 . In 
 
384 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 153.  
385 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180.  
386 We note that the table in paragraph 153 of MIICEN's report on the definitive determination contains 
a transposition error in the data for January -April 2017. Table 4 therefore uses the correct data taken from 
paragraph 123 of MIICEN's report. (Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 123; 
Morocco's first written submission, paras. 185 and 186; and Tunisia's second written submission, 
paras.  4.3-4.9, 4.11, 4.127 and 4.128)  
387 Tunisia's second written submission, para. 4.6; response to Panel question No. 4.5, paras. 154 -156. 
388 Initiation report (Exhibits TUN -2, MAR -10), para. 11; report on the preliminary determination 
(Exhibits TUN -5, MAR -17), para. 32; and report on the definitiv e determination (Exhibits TUN -7, MAR -1), 
para. 63. (emphasis added)  
389 Tunisia's second written submission, para. 4.11.  
390 Tunisia's response to Panel question No.  4.5, para. 158. (emphasis original)  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  this respect, Tunisia compares MIICEN's approach to that of the Mexican investigating authority in 
Mexico - Anti-Dumping Measures on Rice  and Mexico - Steel Pipes and Tubes , in which the authority 
examined an incomplete set of data, which did not allow it to make an objective examination of 
injury.391 
7.289.   We consider that the requirements of Article 3.1 mean that an investigating authority is 
obliged to ensure that the data on which it bases its injury determination accurately and credibly 
reflect the state of the domestic industry . As we have already noted, the data for the whole year 
typically provide a more accurate picture of the state of the domestic industry than the data for part 
of the year .392 In a similar vein, we agree with the panel in Mexico - Steel Pipes and Tubes , which 
cautioned a gainst the use of "temporal subsets within a period, without a sufficient explanation and 
without a consideration as to whether the developments within that temporal subset are reflective 
of developments throughout the period or whether and why these subse ts are justified and not 
anomalous."393 
7.290.   It is apparent from MIICEN's explanation that the decrease in production observed during 
the period January -April 2017 was a key element  of the conclusions of injury . In this regard, we 
note that MIICEN failed to explain how it had ensured that the four -month period provided a reliable 
picture of the production trends and was not anomalous . In these circumstances, focusing 
definitively on a very limited subset of data  within the investigation period in order to dra w a 
definitive conclusion on the production trends demonstrates, in our view, a lack of objectivity.  
7.291.   Second , Tunisia criticizes the fact that MIICEN based its conclusions on the decrease in 
production in January -April 2017, while the rest of the investigat ion period (the four full years from 
2013 to 2016) showed a positive trend .394 The record shows that MIICEN did indeed describe this 
four-year positive trend in its examination, but chose to focus on the decrease in production in 
January -April 2017.395 
7.292.   We consider that, in the light of the 33 -point increase in production over four years, an 
objective and unbiased authority should have outlined why it considered the data for the four -month 
period of 2017 to be determinative . However, the only explanation that we find in the report on the 
definitive determination is that "the positive developments in production between 2013 and 2016, 
examined in the light of the non -profitable sales made [during] this entire period, give rise to the 
conclusion that the increase in production is not an indication of the performance of the [domestic 
industry], which explains the [domestic industry 's] inability to maintain this pace and led it to 
decrease its production in January -April 2017".396, 397 In our view, this sentence does n ot explain 
why the data for the first four months of 2017 more accurately reflected the state of the domestic 
industry than the data over four years.  
7.293.   We recall that Morocco refers to the findings of the panel in Russia  - Commercial Vehicles  to 
support its position that an investigating authority may "compare the data for part of an investigation 
period to the data for the corresponding period of the previous year" .398 Although the Russian 
investigating authority did compare two half -year peri ods in its injury analysis, the question before 
us in the present case is different . Indeed, in th at other case, the European Union was not claiming 
 
391 Tunisia's opening statement at the first meeting of the Panel, para. 8.6 (referring to Panel Reports, 
Mexico - Anti-Dumping Measures on Rice , paras. 7.85 and 7.86; and Mexico - Steel Pipes and Tubes , para. 
7.254).  
392 The Appellate Body noted that "examining data relating to the whole year would result in a more 
accurate picture of the 'state of the domestic industry' than an examination limited to a six -month period". 
(Appellate Body Report, Mexico - Anti-Dumping Measures on Rice , para. 183) See also Panel Report, Mexico - 
Steel Pipes and Tubes , para. 7.255.  
393 Panel Report, Mexico - Steel Pipes and Tubes , para. 7.252.  
394 Tunisia's response to Panel question No.  4.5, para. 158.  
395 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 153.  
396 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 153.  
397 In the same paragraph of the report, MIICEN noted that "one of the largest domestic producers of 
exercise books was forced to stop production in 2017 owing to the market situation characterized by an 
increased presence of dumped imports o f Tunisian exercise books". (Report on the definitive determination 
(Exhibits TUN -7, MAR -1), para. 153) However, neither MIICEN during  the investigation, nor Morocco in the 
context of this dispute , argued that the period January -April 2017 was determinativ e because of  to this 
production  shutdown . 
398 Morocco's second written submission, para. 223 (referring to Panel Report, Russia  - Commercial 
Vehicles , para. 7.39).  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  that the Russian authority had based its determination on half -year data, thereby ignoring the trend 
over s everal years .399 However, what is at issue before us is precisely the fact that MIICEN relied 
exclusively upon the data for the first four months of 2017 in its finding of a decline  in the domestic 
industry's production.  
7.294.   In sum mary, we recall that, under Ar ticle 3.1 of the Anti -Dumping Agreement, the 
investigating authority is required to conduct an objective examination of the evidence before it . 
More specifically, it must ensure that the data substantiating  its determination credibly and 
accurately reflect  the state of the domestic industry . In our view, an objective authority should have 
explained why a decrease in the first four months of 2017 was more relevant than a trend over four 
years and should have addressed how the data for the four months were re presentative of the state 
of the domestic industry . The absence of an explanation of these points affects, in our view, the 
objectivity of the examination conducted by MIICEN.  
7.295.   Based on these elements, we find that MIICEN failed to conduct an objective exam ination of 
the developments in the Moroccan industry's production, as required by Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement.  
7.3.3.2.4   Was the analysis of the profitability of the domestic industry objective?  
7.296.   Tunisia argues that MIICEN failed to conduct an objective and unbiased examination of the 
profitability of the domestic industry .400 Specifically, according to Tunisia, MIICEN ignored evidence 
concerning profitability .401 Therefore, Tunisia argues that the price of the domestic product has 
always been low er than  the price of Tunisian exercise books, and that the domestic industry thus 
had some  margin to convert its losses into profit by increasing its prices .402 Tunisia asserts that 
MIICEN had before it all the elements to conclude that the negative profitability was not a sign of 
injury, but rather a business strategy .403 MIICEN therefore possessed evidence enabling it to 
question the impact of the imports on the negative profitability of the domestic industry.404 
7.297.   Morocco defends MIICEN's decision to base its finding of injury on the negative profitability . 
In this connection, Morocco contends that "profitability is the primus  inter pares  of indicators" .405 
According to Morocco, the data demonstrate that the purported margin for manoeuvre in terms of 
price was "barely perceptible" or "non -existent" .406 Furthermore, Morocco emphasizes the fact that 
MIICEN did not have before it any evidence pointing to a business strategy whereby  the domestic 
industry decided to sell at a loss.407 
7.298.   In the light of the parties ' arguments, the question before us is whether MIICEN assessed 
the negative profitability of the domestic industry in an objective manner.  
7.299.   We recall that MIICEN found negative profitability in the domestic industry during the entire 
period of investigation, which is supported by the record data.408 MIICEN expressly linked the 
negative profitability to the impact of the Tunisian imports  on price s. The authority thus found that 
"[i]n order to maintain production and sales volumes, the domestic industry was forced to offer 
prices lower than the prices of the dumped imports from Tunisia, thereby sacrificing its profit margins 
and accepting  to sell a t a loss" .409 MIICEN also stressed the importance of profitability as a key 
 
399 Panel Report, Russia  - Commercial Vehicles , paras. 7.28, 7.32 -7.52.  
400 Tunisia's first writte n submission, para. 6.121; response to Panel question No. 4.3, para. 135.  
401 Tunisia's second written submission, paras. 4.146 and 4.151.  
402 Tunisia's second written submission, paras. 4.144 and 4.145; response to Panel question No. 4.3, 
paras. 135, 138 and 139. 
403 Tunisia's first written submission, para. 6.130; second written submission, para. 4.146.  
404 Tunisia's second written submission, paras. 4.148 and 4.151; response to Panel question No. 4.3, 
paras. 135 and 140.  
405 Morocco's first written submission, par a. 194. (emphasis original)  
406 Morocco's second written submission, paras. 232 and 233.  
407 Morocco's second written submission, para. 237.  
408 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 174; Morocco's first written 
submission, p. 64. We note that, in its first written submission, Tunisia challenged the data underlying the 
calculation of profitability. However, after having consulted the confidential data presented  by Morocco, Tu nisia 
abandoned this argument. (Tunisia's second written submission, para. 4.143; response to Panel question 
No. 4.1, para. 127)  
409 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 173.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  indicator of injury and explained the relationship between the prices and profitability levels as 
follows:  
Moreover, if the establishment of material injury is not necessarily depen dent on the 
negative development of all the economic indicators of a domestic industry, then surely 
these economic indicators do not and cannot all have equal weight . The Ministry thus 
considers profitability to be one of the key indicators, since it repre sents the ultimate 
objective of any company . Price level is another important indicator of material injury 
because of  its major and direct impact on profitability . In the present case, negative 
levels of profitability were found throughout the period considered and the pressure on 
prices, particularly from the dumped imports of Tunisian exercise books, prevented the 
[domestic industry] from reaching non -injurious pric e levels, as has been mentioned 
above . The pressure exerted by the dumped imports of Tunisian exercise books was so 
significant over the first months of 2017 that the [domestic industry] was no longer able 
to maintain its production and sales volumes, demo nstrating that, at the end of the 
investigation period, the [domestic industry] was in a situation that had become 
untenable .410 
7.300.   We begin by assessing Tunisia's main argument that MIICEN should have examined whether 
the negative profitability of the domesti c industry was the result of a domestic industry strategy . In 
response to our request to explain why MIICEN should have conducted such an examination under 
Articles 3.1 and 3.4  of the Anti -Dumping Agreement, Tunisia clarified that it "[was] not claiming th at 
an investigating authority [was] required to systematically analyse whether negative profitability 
may be the result of something other than imports, such as a business strategy of the [domestic 
industry], under Articles 3.1 and 3.4" .411 Instead, Tunisia  asserts that, in the light of the evidence 
before it, MIICEN should have called into question the explanation offered by the applicants  (in 
particular, that the negative profitability was due to the need to maintain a low price level in the 
face of the Tu nisian imports).412 
7.301.   It should be recalled that Article 3.4 of the Anti -Dumping Agreement requires an examination 
of "the impact of the dumped imports on the domestic industry" and an evaluation of all relevant 
economic factors and indices "having a bearing on the state of the industry" . Nothing in the text of 
this provision requires the investigating authority to examine all the possible causes of the indices 
showing negative developments .413 In this regard, we agree with the Appellate Body's view that 
Article 3.5 of the Anti -Dumping Agreement covers a broader scope than the examination under 
Article 3.4 and requires a non -attribution analysis .414 The investigating authority must examine other 
known injury factors as part of this analysis . Therefore, we are not  convinced that the investigating 
authority was required to examine under Articles 3.1 and 3.4 of the Anti -Dumping Agreement 
whether the negative profitability was attributable  to reasons other than the imports . According to 
our assessment, Tunisia's argum ent falls within the scope of Article 3.5 rather than that of 
Article  3.4.415 We thus agree with Morocco's view that MIICEN was not required to examine this 
particular issue, albeit for different reasons.  
 
410 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 178. (emphasis added)  
411 Tunisia's response to Panel question No.  4.3, para. 137.  
412 Tunisia's response to Panel question No. 4.3, paras. 135, 137, 139 and 140.  
413 Two third parties expressly support this view. (Ca nada's third -party response to Panel question No. 
3.1, para. 1; European Union's third -party response to Panel question No. 3.1, para. 23) The European Union 
adds that "Article 3.4 of the Anti -Dumping Agreement could thus require the examination of the que stion of 
whether the negative profitability is due to reasons other than the dumped imports - only if this examination is 
necessary  for considering 'the impact' of these imports on the domestic industry". (European Union's third -
party response to Panel que stion No. 3.1, para. 22 (emphasis original)) The United States , meanwhile,  notes 
that "[t]he reasons underlying observed trends [in the state of the domestic industry], however, [are] 
generally more relevant to an analysis of causation under Article 3.5 of  the [Anti -Dumping] Agreement". 
(United States' third -party response to Panel question No. 3.1, para. 5)  
414 Appellate Body Report, China - GOES , para. 150.  
415 We note that the panel in China - X-Ray Equipment  was confronted with  a very similar claim and 
comm ented that:  
In the Panel's view, Nuctech's alleged start -up situation, business expansion and aggressive pricing 
strategy are best considered as potential causes of an industry's condition, rather than factors indicative 
of the state of the industry akin t o those listed in Article 3.4 of the Anti -Dumping Agreement.  
(Panel Report, China - X-Ray Equipment , para. 7.255)  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.302.   We now turn to the assessment of Tunisia's argument that MIICEN failed to objectively 
examine the evidence casting  doubt on the explanatory force of the imports for the negative 
profitability . In particular, Tunisia states that, in 2014, 2015 and 2016, the price of the imports was 
above  the domestic industry's cost of production, which, in turn, was above  the price of the domestic 
product .416 According to Tunisia, the domestic industry thus had some margin to increase its prices 
while keeping them below the p rice of the Tunisian imports .417 Tunisia asserts that, by ignoring th ose 
data that contradicted the applicant 's explanation regarding the impact of the imports on 
profitability, MIICEN failed to conduct an objective examination of this evidence .418 
7.303.   Given tha t the first sentence of Article 3.4 requires an examination of the impact of dumped 
imports on the domestic industry, this Article is concerned with "the relationship between subject 
imports and the state of the domestic industry" .419 Accordingly, the inves tigating authority is 
required to examine "the 'explanatory force' of subject imports for the state of the domestic 
industry".420 
7.304.   We note that, according to the questionnaire responses from two producers, the price level 
of Tunisian imports was a factor in the setting of prices for the domestic industry.421 
7.305.   The data taken from the record by Tunisia demonstrate that the price of the Tunisian imports 
exceeded the domestic industry's cost of production between 2014 and 2016 (for three years of a 
data collection period of four years and four months) which, in turn, exceeded the price of the 
domestic product .422 However, the analysis of the domestic industry 's profitability conducted by 
MIICEN makes no reference to the interaction among  the prices of the domestic product, the Tunisian 
product and the cost of production of the domestic product . MIICEN simply asserted that "the 
dumped imports of Tunisian exercise books prevented the [domestic industry] from reaching 
non-injurious price levels"423 and that "[i ]n order to maintain production and sales volumes, the 
domestic industry was forced to offer prices lower than the prices of the dumped imports from 
Tunisia, thereby sacrificing its profit margins and accepting  to sell at a loss."424 
7.306.   Morocco contends that t he domestic industry was seeking to maintain its market share by 
reducing its prices to remain competitive .425 In this regard, MIICEN clarified that the domestic 
industry had chosen to continue "selling at prices as competitive as those of Tunisian exporter s in 
order to limit market share losses, thereby directly affecting profitability margins" .426 We have found 
above that MIICEN's conclusions concerning the developments in the domestic industry's market 
shares and sales were not based on an objective examin ation of the data . We also note that MIICEN's 
explanation fails to consider  the specific interaction among  the prices of the domestic product, the 
Tunisian product and the cost of production of the domestic product . The record shows that not only 
were the prices of the Tunisian product higher than the price of the domestic like product, but they 
also followed an opposite trajectory  between 2014 and 2016 .427 However, MIICEN failed to explain 
why, in view of the upward trend in the prices of the Tunisian product, the domestic industry was 
forced to continue lowering its prices, thereby sacrificing its profits . MIICEN thus failed to examine 
in an objective manner whether the subject imports had "explanatory force" for the negative 
profitability of the domestic producers.  
 
416 Tunisia's second written submission, para. 4.145; response to Panel question No. 4.3, para. 139.  
417 Tunisia's second written submission, para . 4.145; response to Panel question No. 4.3, para. 135.  
418 Tunisia's second written submission, para. 4.148; response to Panel question No. 4.3, para. 135.  
419 Appellate Body Report, Korea  - Pneumatic Valves (Japan) , para. 5.166 (quoting Appellate Body 
Report , China  - GOES , para. 149).  
420 Appellate Body Report, Korea  - Pneumatic Valves (Japan) , para. 5.166 (quoting Appellate Body 
Reports, China  - HP-SSST  (Japan)/China  - HP-SSST  (EU), para. 5.205, which quotes Appellate Body Report, 
China  - GOES , para. 149).  
421 MAPAF's responses to the questionnaire (Exhibit TUN -66), p. 16, section F.2 (" Fixation des prix  "); 
and Promograph's responses to the questionnaire (Exhibit TUN -67), p. 16, sect ion F.2 ("Fixation des prix  "). 
422 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148, 149 and 191 
(tables); Tunisia's response to Panel question No. 4.3, para. 138; and second written submission, para. 4.144.  
423 Report on the defi nitive determination (Exhibits TUN -7, MAR -1), para. 178.  
424 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 173.  
425 Morocco's first written submission, para. 194; second written submission, para. 216.  
426 Report on the definitive determin ation (Exhibits TUN -7, MAR -1), para. 176.  
427 Report on the definitive determination (Exhibit MAR -CONF -3 (BCI)), paras. 148, 149 and 191.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.307.   For the reasons set out above, we conclude that MIICEN failed to examine the negative 
profitability of the domestic industry in an objective manner and therefore violated Articles 3.1 and 
3.4 of the Anti -Dumping Agreement.  
7.308.   We note t hat Tunisia also argues that MIICEN did not take into account the fact that many 
factors showed positive developments in its finding of injury .428 On the basis of another panel 
decision, Tunisia asserts that the authority must explain in a "thorough and per suasive" manner why 
the positive performances were "outweighed by any other factors".429 Tunisia considers that MIICEN 
has not provided such an explanation.430 
7.309.   We note that MIICEN's definitive conclusion regarding the state of the domestic industry was 
based  on the negative development of four factors : the domestic industry's production, sales, market 
share and profitability .431 The fact that we have concluded that MIICEN's examination of these four 
factors was not objective means that entire conclusion regard ing the state of the domestic industry 
is inconsistent with the requirements of Articles 3.1 and 3.4 of the Anti -Dumping Agreement . 
Accordingly, we consider that there is no need to address this additional argument made by  Tunisia 
in order to resolve this dispute.  
7.3.3.3   Conclusion on the examination of the state of the domestic industry  
7.310.   In view of the foregoing , we find that MIICEN violated Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement by failing to conduct an objective examination of the developments in the 
domestic industry's sales, market share and production , and by failing to examine in an objective 
manner, on the basis of the evidence before it, whether the negative profitability of the domestic 
industry was due to the Tunisian import s. 
7.4  Tunisia's claims regarding the causation determination  
7.4.1   Introduction  
7.311.   Tunisia claims that MIICEN violated Articles 3.1 and 3.5 of the Anti -Dumping Agreement for 
two reasons : (a) because it found a causal relationship between the injury observed and the Tu nisian 
imports on the basis of its flawed analysis of the volume of imports in relative terms, of the effects 
of the imports on prices, and of the state of the domestic industry432; and (b) because it failed to 
properly examine competition from domestic pro ducers (specifically Imprimerie Moderne) as part of 
its analysis of non -attribution factors.433 
7.312.   With regard to Tunisia's first argument, Morocco recalls that it is contesting  Tunisia's claims 
under Articles 3.2 and 3.4 and, on this basis, requests that we a lso reject the related claim 
concerning the causation examination .434 With regard to Imprimerie Moderne, Morocco explains that 
the exporters did not submit evidence of competition from this company in the Moroccan market 
and that the company did not coopera te with the investigation .435 Therefore, MIICEN was not 
required to examine the effects of the presence of this company on the market.436 
7.313.   In the next section, we recall the requirements of Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement concerning the cau sation examination . We then examine Tunisia's two grievances.  
 
428 Tunisia's first written submission, paras. 6.99 -6.106; second written submission, paras. 4.112 -4.120.  
429 Tunisia's firs t written submission, para. 6.105 (quoting Panel Report, Thailand  - H-Beams , 
para. 7.249 ). 
430 Tunisia's first written submission, para. 6.106.  
431 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 180.  
432 Tunisia's first written submission, paras. 7.10 -7.15; second written submission, paras. 5.3 -5.6. 
433 Tunisia's first written submission, paras. 7.16 -7.29; second written submission, paras. 5.7 -5.24.  
434 Morocco's first written submission, para. 205.  
435 Morocco's opening statement at the first meeting of the Panel, paras. 108 and 109; opening 
statement at the second meeting of the Panel, para. 104; and response to Panel question No. 5.6, para. 83.  
436 Morocco's second written submission, para. 246.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.4.2   Analysis  
7.4.2.1   Applicable requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement  
7.314.   We have set out the requirements of Article 3.1 above and shall not repeat them here.  
7.315.   The relevant provisio ns of Article 3.5 of the Anti -Dumping  Agreement provide that:  
It must be demonstrated that the dumped imports are, through the effects of dumping, 
as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement . 
The demonstration of a causal relationship between the dumped imports and the injury 
to the domestic industry shall be based on an examination of all relevant evidence 
before the authorities . The authorities shall also examine any known factors other than 
the dumped imports which at the same time are injuring the domestic industry, and the 
injuries caused by these other factors must not be attributed to the dumped imports.  
7.316.   Article 3.5, together with Article  3.1, thus establishes a number of obligations . First, it "must 
be demonstrated that the dumped imports are, through the effects of dumping, as set forth in 
paragraphs 2 and 4, causing injury" . This demonstration "shall be based on an examination of all 
relevant evidence before the authorities".  
7.317.   By virtue of t he phrase "through the effects of dumping, as set forth in paragraphs  2 and 4", 
the causation analysis is the culmination of a logical progression in the injury analysis . The Appellate 
Body noted that "to the extent that a panel f[ound] that an investigati ng authority's volume, price 
effects, and impact analyses [were] inconsistent with its obligations under Articles  3.2 and 3.4, such 
inconsistencies would likely undermine an investigating authority's overall causation determination 
and consequentially  lead to an inconsistency with Article  3.5".437 Similarly, other panels have found 
violations of Article 3.5 based on the inconsistencies of the investigating authorities' analyses with 
Articles 3.2 and 3.4.438 
7.318.   Under the third sentence of Article 3.5, the investigating authority is required to examine 
any known factors other than the dumped imports which at the same time are injuring the domestic 
industry . The Appellate Body noted that the obligation to conduct this non -attribution analysis is 
triggered whe n the factor at issue (a) is "known" to the investigating authority ; (b) is a factor "other 
than dumped imports" ; and (c) is injuring the domestic industry at the same time as the dumped 
imports.439 
7.319.   Lastly, we note that the Anti -Dumping Agreement "does not expressly state how such factors 
should become 'known' to the investigating authority, or if and in what manner they must be raised 
by interested parties, in order to qualify as 'known'".440 
7.4.2.2   Was the causation examination , based on the flawed analyses of the  imports ' 
price effects and of the injury indic ia, inconsistent with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement?  
7.320.   Tunisia considers that MIICEN's conclusion that Tunisian imports had contributed to the 
injury to the domestic industry was based on : (a) the effects of the volume of Tunisian imports, 
(b) the effects of the imports on the prices of the domestic product, and (c) the analysis of the 
economic situation of the domestic industry .441 According to Tunisia, the inconsistency of the injury 
examina tion with Articles 3.1, 3.2 and 3.4 of the Anti -Dumping Agreement means that MIICEN had 
no grounds to conclude that there was a causal relationship between the dumped imports and the 
injury found and it therefore violated Articles 3.1 and 3.5.442 
 
437 Appellate Body Report, Korea - Pneumatic Valves (Japan) , para. 5.196. (emphasis original)  
438 Appellate Body Reports, China  - X-Ray Equipment , para. 7.239; China  - Autos  (US), paras. 7.327 
and 7.328; Russia  - Commercial Vehicles , para. 7.182; and China  - Broiler Products  (Article 2 1.5 - US), 
para. 7.186.  
439 Appellate Body Report, EC - Tube or Pipe Fittings , para. 175.  
440 Appellate Body Report, EC - Tube or Pipe Fittings , para. 176.  
441 Tunisia's first written submission, para. 7.10; second written submission, para. 5.5.  
442 Tunisia's first written submission, paras. 7.10 -7.15; second written submission, paras. 5.3 and 5.4.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.321.   In the rep ort on the definitive determination, MIICEN concluded that "the increase in dumped 
imports of exercise books originating in Tunisia, because  it coincides with the deterioration of the 
domestic industry, and in view of the volume and prices of these imports , is a cause of the material 
injury suffered by the [domestic industry]" .443 This finding suggests that MIICEN based its causation 
determination on the increase in the volume of imports, the effects of the imports on prices and the 
injury to the domestic in dustry.  
7.322.   We recall that, under Article  3.5 of the Anti -Dumping Agreement, the investigating authority 
is required to demonstrate that the dumped imports are, through the effects of dumping, as set 
forth in paragraphs  2 and 4 , causing injury . This means that  the flawed analyses under Articles 3.2 
and 3.4 may consequentially lead to an inconsistency with Article 3.5.444 
7.323.   We have found several inconsistencies with Articles 3.2 and 3.4 in MIICEN's analysis of the 
effects of the imports on the prices of the domestic product, as well as in the analysis of the indic ia 
of the domestic industry underlying the determination of material injury . These inconsistencies lead 
us to conclude that the causation examination was also inconsistent with Article 3.5 . We consid er in 
this regard that relying, in the causa tion examination, upon analyses under Articles 3.2 and 3.4 that 
were not objective within the meaning of Article 3.1 of the Anti -Dumping Agreement taints the 
causation analysis, meaning that it too cannot be obje ctive.  
7.324.   Accordingly, we conclude that the analysis of the causal relationship between the injury 
found and the Tunisian imports was inconsistent with Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement.  
7.4.2.3   Did MIICEN act inconsistently with Articles 3.1 and 3.5  of the Anti -Dumping 
Agreement by failing to examine the effects of competition from Imprimerie Moderne on 
the domestic industry?  
7.325.   We note that, in the present case, MIICEN defined the domestic industry as comprising three 
of the five domestic producers of exercise books (MAPAF, PROMOGRAPH and Med Paper) .445 As part 
of its non -attribution analysis, MIICEN examined competition among these producers .446 While 
MIICEN noted the existence of two other domestic producers - Imprimerie Moderne and 
Sopalemb - which acc ounted for 30 -40% of domestic exercise book production in 2016447, it did not 
examine competition from these two other producers as a non -attribution factor.  
7.326.   Tunisia contends that MIICEN was aware of the significant presence of Imprimerie Moderne 
in the Mor occan market and that competition from Imprimerie Moderne was a "known factor" that 
"injur[ed] the domestic industry" within the meaning of the third sentence of Article 3.5 .448 Tunisia 
specifically challenges the fact that MIICEN failed to  examine the effe cts of competition from 
Imprimerie Moderne on the state of the domestic industry and, thus, violated Articles 3.1 and 3.5 of 
the Anti -Dumping Agreement.449 
7.327.   We recall that, under the requirements of Article 3.5, the investigating authority is required 
to conduct a non -attribution analysis when the factor at issue  (a) is "known" to the investigating 
authority , (b) is a factor "other than dumped imports" , and (c) is injuring the domestic industry at 
the same time as the dumped imports.450 
 
443 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 219.  
444 Appellate Body Report, Korea - Pneumatic Valves (Japan) , para. 5.196.  
445 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 14 and 73.  
446 Report on the definitive determination (Exhibits TUN -7, MAR -1), paras. 198 -200. 
447 Initiation report (Exhibits TUN -2, MAR -10), para. 6; report on the definitive determination 
(Exhibits  TUN-7, MAR -1), paras. 14, 16 and 77.  
448 Tunisia's response to Panel question No.  5.2, para. 144.  
449 Tunisia's response to Panel question No. 5.1, para. 143; second written submission, para. 5.24. 
Tunisia clarifies that, "according to the data before MIICEN, Imprimerie Moderne was the only producer other 
than the applicants  with the ability to adversely affect the state of the [domestic industry]" (Tunisia's second 
written submission, para. 5.15) In the light of these explanations, we understand that T unisia is not claiming a 
violation of Article 3.5 on the grounds that MIICEN failed to examine competition from Sopalemb as a known 
factor injuring  the domestic industry.  
450 Appellate Body Report, EC - Tube or Pipe Fittings , para. 175.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.328.   With reg ard to the requirements of Article 3.5, we do not share Tunisia's position that mere 
knowledge of the existence of a potential injury factor is sufficient to trigger the obligation to 
investigate this factor .451 We recall that Article 3.5 requires the examination of "any known factors 
other than the dumped imports which at the same time are injuring the domestic industry ." Other 
panels have considered that if there is no evidence before an investigating authority to indicate that 
a factor is injuring th e domestic industry, the investigating authority is not required to examine this 
factor as part of the non -attribution analysis .452 We agree with this interpretation and adopt it for 
the purposes of our examination.  
7.329.   Morocco does not contest the fact that th e exporters drew MIICEN's attention to competition 
from Imprimerie Moderne .453 It is therefore clear that the presence of Imprimerie Moderne was 
"known" to the authority . It is also undisputed that competition from Imprimerie Moderne was a 
factor "other tha n the dumped imports".  
7.330.   However, the parties disagree as to whether there was evidence before MIICEN to indicate 
that competition from Imprimerie Moderne caused injury to the domestic industry .454 The question 
before us is therefore whether MIICEN had eviden ce before it concerning the negative effects of the 
presence of Imprimerie Moderne on the state of the domestic industry.  
7.331.   On this point, Tunisia provided us with the following elements : the data reflecting Imprimerie 
Moderne's production, the estimation of  Imprimerie Moderne's market share and certain submissions 
made by exporters to MIICEN . We shall examine these elements in turn.  
7.332.   According to MIICEN, Imprimerie Moderne began operations in 2015 .455 We note that the 
main argument put forward by Tunisia is th at the presence of Imprimerie Moderne in the Moroccan 
market was very significant, as indicated by its share of domestic production .456 MIICEN found that 
Sopalemb and Imprimerie Moderne accounted for 30 -40% of the domestic production of exercise 
books in 20 16.457 Given that Sopalemb "produced only extremely limited volumes of exercise 
books"458, Tunisia, on the basis of the record data, estimates that Imprimerie Moderne's share of 
production must have been [[***]]  % in 2015 and [[***]]  % in 2016 .459 According t o Tunisia, "this 
producer can be expected to have had a significant share of the market" and could have had an 
impact on the domestic industry's market share.460 
7.333.   In our view, the data on this company's share of production do not provide specific 
indications  as to the effect of competition from Imprimerie Moderne on the domestic industry, 
because the record does not demonstrate what proportion of  this producer 's sales  were made in the 
Moroccan market and in export markets , and how its sales affected the domestic industry . Thus, we 
agree with Morocco that "[i]t is unclear, on the basis of the facts before the authority, what fraction  
of Imprimerie Moderne's production was exported during the final year of the investigation perio d, 
what competition existed with the products at issue, and what actual competition existed in the 
market".461 
7.334.   Both parties confirm that MIICEN did not establish Imprimerie Moderne's market share .462 
However, Tunisia insists that the market share of this pro ducer was significant . According to the 
estimate made by Tunisia on the basis of the data contained in the initiation report, its market share 
 
451 Tunisia's first wri tten submission, para. 7.20 (referring to Panel Report, China  - GOES , para. 7.636).  
452 Panel Reports, EU - Fatty Alcohols (Indonesia) , para. 7.196; China - X-Ray Equipment , para. 7.267.  
453 Morocco's comments on Tunisia's response to Panel question No. 5.9, p ara. 245  a). 
454 Tunisia's first written submission, paras. 7.21 -7.28; second written submission, paras. 5.14 -5.24; 
Morocco's opening statement at the first meeting of the Panel, paras. 108 and 109; opening statement at the 
second meeting of the Panel, para. 104; response to Panel question No. 5.6, para. 83; and comments on 
Tunisia's response to Panel question No. 5.9, paras. 245 -247. 
455 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 77.  
456 Tunisia's response to Panel question No.  5.9, para. 166.  
457 Initiation report (Exhibits TUN -2, MAR -10), para. 6.  
458 Report on the definitive determination (Exhibits TUN -7, MAR -1), para. 77.  
459 Tunisia's second written submission, para. 5.15 (referring to the Excel file on the applicants  
(Exhibit  TUN-30 (BCI), " Représentativité " sheet ); report on the definitive determination (Exhibit MAR -CONF -3 
(BCI)), paras. 210 and 211.  
460 Tunisia's second written submission, para. 5.15.  
461 Morocco's response to Panel question No. 5.11, para. 60  d). 
462 Tunisia's response to Panel question No. 5.9, paras. 160 -165; Morocco's comments on Tunisia's 
response to Panel question No. 5.9, paras. 241, 242 and 245  b). WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  would have been around 13 %.463 Tunisia obtained this figure by multiplying the domestic industry's 
market share ta ken from the initiation report (45 -50%) by Imprimerie Moderne's share of domestic 
production (30 %).464 This calculation presumes that this company sold all its exercise books in the 
Moroccan market and does not take into account the possibility that it may be export -oriented . As 
we have already noted, the investigation record does not indicate what fraction  of Imprimerie 
Moderne 's sales were made in the Moroccan market . For this reason, we cannot rely upon this 
estimate by Tunisia, which is not substantiated  by evidence.  
7.335.   Tunisia also asserts that the entry into the market of a producer that rapidly gained a large 
share of domestic production would certainly have influenced the domestic industry's pricing 
decisions .465 However, the investigation record does not  provide information on the price levels of 
the exercise books offered by Imprimerie Moderne466 allowing for an assessment  of whether this 
producer could have exert ed pressure on domestic industry  prices . This assertion by Tunisia thus 
remains speculation that is unsubstantiated by evidence in the investigation record.  
7.336.   Lastly, Tunisia refers to the exporters' submissions to MIICEN . The exporters drew MIICEN's 
attention to the fact that Imprimerie Moderne had opened a new factory in 2014 (citing the 
company's website) .467 They also asserted that "new producers, such as the company Imprimerie 
Moderne, [were] successfully develop[ing] new brands ( e.g. Bleu Marine) and [had] expanded their 
production and sales" .468 Although these assertions confirm the emergence of a new Moroccan 
producer of exercise books, they did not provide other elements as to the effects of competition 
from Imprimerie Moderne on the state of the domestic industry.  
7.337.   In sum mary, we are not convinced that an objective autho rity would have concluded, on the 
basis of the elements contained in the record, that competition from Imprimerie Moderne was 
injuring the domestic industry . For this reason, we find that MIICEN was not obliged to examine 
competition from Imprimerie Modern e as part of its analysis of non -attribution factors.  
7.338.   We note that Tunisia does not raise any independent arguments in support of its claim under 
Article 3.1 . Thus, Tunisia has failed to establish that Morocco violated Article 3.1 of the Anti -Dumping 
Agree ment by failing to examine the effects of competition from Imprimerie Moderne.  
7.4.3   Conclusion on the causation examination  
7.339.   In view of the foregoing , we conclude that MIICEN's analysis of the causal relationship 
between the injury found and the Tunisian imports  was inconsistent with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement.  
7.340.   With regard to the non -attribution examination of the injury caused by other known factors, 
Tunisia has failed to establish that Morocco violated Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement by failing to examine the effects of competition from Imprimerie Moderne.  
7.5  Claims by Tunisia concerning the initiation of the investigation  
7.5.1   Introduction  
7.341.   Tunisia questions whether the complaint filed with MIICEN by the domestic industry 
conta ined sufficient evidence of dumping .469 Tunisia submits that MIICEN should not have initiated 
 
463 Tunisia's first written submission, para. 7.24 (referring to  the initiation report (Exhibit TUN -2), 
table  11). 
464 Tunisia's first written submission, para. 7.24 and fn 346.  
465 Tunisia's response to Panel question No. 5.9 at the second hearing; comments on Morocco's 
response to Panel question No. 5.11, para. 98.  
466 Tunisia's first written submission, para. 7.27. Exhibit  TUN-30 reflects the value of Imprimerie 
Moderne's production for  2015 and 2016. (Excel file listing the applicants  (Exhibit TUN -30 (BCI)))  However , 
those data do not indicate whether Imprimerie Moderne exerted pressure on domestic industry prices.  
467 Tunisian exporters' comments on the investigation (27 February 2018) (Exhibit TUN -29), p. 11.  
468 Tunisia's response to Panel question No. 5.9, para. 166; Tunisian exporters' comments on the 
investigation (27 February 2018) (Exhibit TUN -29), p. 10.  
469 Although Tunisia's panel request stated that "the petition ... does not contain sufficient evidence of 
dumping, injury or causation", Tunisia confirmed that its claims under Article 5 are based solely on there being 
insufficient evidence of dumping. (Tu nisia's response to Panel question No.  6.2, para. 153)  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  the investigation because of a lack of evidence of dumping or, at least, it should have explained in 
its notice of initiation how the evidence was sufficient to ju stify initiating an investigation .470 Tunisia 
requests the Panel to find that:  
MIICEN failed to sufficiently examine the accuracy and adequacy of the evidence 
provided in the application to justify the initiation of an anti -dumping investigation in 
accordan ce with Article 5.3 of the Anti -Dumping Agreement . Contrary to the provisions 
of Article 5.2 of the Agreement, the petition filed by the three petitioning firms does not 
contain sufficient evidence of dumping, in particular a demonstrable normal value in 
Tunisia . However, despite that deficiency, MIICEN failed to terminate the investigation, 
as required by the first sentence of Article 5.8 of the Anti -Dumping Agreement.471 
7.342.   Tunisia therefore considers that several pieces of evidence included in the domestic 
industry's complaint were insufficient to meet the criteria set out in Article 5.2 of the Anti -Dumping 
Agreement:  
a. The export price evidence  was based on just one invoice from the period from 
December  2015 to November  2016, and the notice of initia tion did not include any 
explanation as to why "export prices on that day should be considered representative of 
the whole dumping investigation period".472 
b. The export price information was limited to just a few models of the product under 
investigation, ev en though the investigation covered a wide range of products with very 
different prices.473 
c. The domestic transport adjustment made by the applicant  to convert the FOB price into 
an ex -factory price did not reflect the various domestic means of transport use d in Tunisia 
to move the product concerned, because of the differences in the weight of the exercise 
books and the variable distances between the factories and ports of export474 (for the 
same reason, Tunisia criticizes  the adjustment for the same value mad e to the sales prices 
in Tunisia to determine the normal value) .475 Tunisia also notes that the adjustment 
corresponds to a return journey between the factory and the port of export, without 
justification.476 
d. The normal value evidence  was based on the online  catalogues of a retail supermarket 
chain and retail bookshops, but without demonstrating that the prices shown in those 
catalogues were those of the Tunisian product .477 Moreover, those catalogues only show 
the price of certain models of the product, but t he complaint fails to explain how these 
prices were representative.478 
e. The distribution margins used for the normal value were adjusted on the basis of 
information concerning the business practices of a Moroccan wholesaler, but the applicant  
fails to explain why these margins were representative of practices in Tunisia .479 
Meanwhile, the margins were adjusted on the basis of wholesale prices even though the 
references used for the normal value in Tunisia corresponded to retail prices.480 
f. Lastly, the adjustment for royalties for certain licensed exercise books was not based on 
evidence of such payments in the Tunisian market.481 
 
470 Tunisia's  first written submission, para.  8.8. 
471 Tunisia's  first written submission, para.  8.1. See also Tunisia's second written submission, 
para. 6.65.  
472 Tunisia's first written submission, para. 8 .22. 
473 Tunisia's first written submission, para. 8.23.  
474 Tunisia's first written submission, para. 8.26.  
475 Tunisia's first written submission, para. 8.37.  
476 Tunisia's first written submission, para. 8.27.  
477 Tunisia's first written submission, para. 8.31.  
478 Tunisia's first written submission, paras. 8.33 and 8.34.  
479 Tunisia's first written submission, para. 8.35.  
480 Tunisia's first written submission, para. 8.36.  
481 Tunisia's first written submission, para. 8.38.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.343.   We note that Tunisia does not contend that the complaint is devoid of elements cited in 
paragraph (iii) of Article 5.2 of the Anti -Dumping Agreement . When examining the record, it appears 
that the complaint  did include information on export prices of the product under investigation, and 
on the normal value of the like product on the Tunisian market . What is at issue is therefore the 
sufficiency and relevance482 of that evidence, taking into account what could reasonably be expected 
from the applicants . 
7.344.   With regard to the alleged violation of Article 5.3, Tunisia asserts that MIICEN did not act as 
an unbiased and objective authority, as it failed to examine suffi ciently the accuracy and adequacy 
of the evidence relating to the export price and the normal value contained in the petition to initiate 
an investigation .483 In particular, according to Tunisia, MIICEN should have assessed:  
a. whether the prices in the export  documents and the domestic sales in Tunisia, limited to 
certain models from the range of models of the product under investigation, were 
representative of the export prices and normal values of the product under consideration 
as a whole;  
b. whether the expor t prices set on one day were representative of export prices for the 
whole investigation period;  
c. whether the information contained in the catalogues submitted as evidence of the normal 
value was accurate in relation to the producers in question or those wh o made the product 
at issue ; and 
d. whether the adjustments applied to the export price and to the normal value were based 
on correct assumptions.484 
7.345.   Although these four arguments concerning the examination conducted by the authority are 
advanced in support of  its claim under Article 5.3, Tunisia clarified, in response to the Panel's 
questions, that they are "closely linked to evidentiary shortfalls identified by Tunisia within the 
meaning of Article 5.2" .485 Tunisia argues that "by failing to conduct such an ex amination, MIICEN 
acted inconsistently with Articles 5.3 and 5.8 of the Anti -Dumping Agreement".486 
7.346.   In this regard, Tunisia explains that it is requesting "a finding of inconsistency with each of 
these provisions (5.2, 5.3 and 5.8)"487, but that "if the Pane l considers that, based on the standard 
of review applicable to Articles 5.2 and 5.3, it could resolve Tunisia's claim  by finding a violation of 
one of these two provisions (and Article 5.8), Tunisia will not object to the Panel exercising judicial 
economy  in respect of the other provision in question".488 
7.347.   Meanwhile, Morocco asks us to find "that there is no independent obligation for the authority  
under Article 5.2"489 and that MIICEN did not act inconsistently with Articles 5.3 and 5.8 of the 
Anti-Dumping A greement by agreeing to initiate an investigation.490 
7.5.2   Analysis  
7.348.   We recall that Article 5 of the Anti -Dumping Agreement concerns "initiation and subsequent 
investigation" . It specifies the conditions under which an investigating authority may accept a 
complai nt and initiate or terminate an investigation.  
7.349.   The arguments advanced by Tunisia in this dispute question both the sufficiency of the 
evidence provided by the domestic industry and the examination of the evidence by the investigating 
 
482 Tunisia's second written submission, para. 6. 65. 
483 Tunisia's first written submission, para. 8.41.  
484 Tunisia's first written submission, para. 8.43.  
485 Tunisia's response to Panel question No. 6.23, para. 176.  
486 Tunisia's first written submission, para. 8.44.  
487 Tunisia's response to Panel question No. 6.22, p ara. 175. 
488 Tunisia's response to Panel question No. 6.22, p ara. 174. 
489 Morocco's comments on Tunisia's response to Panel question No. 6.22, para.  250. (emphasis 
original)  
490 Morocco's second written submission, para. 306.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  authority . We shall therefore begin by analysing Morocco's obligations  under Articles 5.2, 5.3 and 
5.8 of the Anti -Dumping Agreement . We will then examine the parties' arguments under these 
provisions and the facts on the investigation record.  
7.5.2.1   Applicable requirements of Article 5.2 of the Anti -Dumping Agreement  
7.350.   Article 5.2 o f the Anti -Dumping Agreement consists of a "chapeau" and four subparagraphs 
that describe the "information" that must be included in the written application submitted by the 
domestic industry or on its behalf to initiate an investigation (the complaint) . The chapeau states 
that a complaint:  
[S]hall include evidence of (a) dumping, (b) injury within the meaning of Article  VI of 
GATT  1994 as interpreted by this Agreement and (c) a causal link between the dumped 
imports and the alleged injury . Simple assertion , unsubstantiated by relevant evidence, 
cannot be considered sufficient to meet the requirements of this paragraph . The 
application shall contain such information as is reasonably available to the applicant on 
the following[.]  
7.351.   The "information" on dumping (subparagraph (iii) of Article 5.2) relates to the normal value 
and the export price as established by the applicant .491 Other panels have been of the opinion that 
Article 5.2 (iii) should be read in the light of Article 2 of the Anti -Dumping Agreement, whi ch defines 
dumping and methodologies for establishing a margin of dumping .492 This information covers the 
various components of the dumping margin calculation, i.e. elements for determining a normal value 
(on the basis of either the sales price or a reconst ructed normal value), an export price, as well as 
any adjustments as may be necessary for a fair comparison.  
7.352.   Meanwhile, the chapeau provides that "evidence of dumping" must "substantiate" the normal 
value, export price and adjustments submitted by the applicant. The definition of the word "étayer" 
("substantiate ") states that this verb means "[s]outenir quelque chose par des arguments, des 
preuves, le fonder, l'établir ou en être la base, la preuve"493 ("to support something with arguments, 
evidence, to dete rmine it, to establish it or to be grounds for , proof of it"), while the word "preuve" 
("evidence ") is defined as an "[é]lément matériel … qui démontre, établit, prouve la vérité ou la 
réalité d'une situation de fait ou de droit"494 (a "material element … that demonstrates, establishes, 
proves the truth or reality of a de facto  or de jure  situation "). This word choice indicates that the 
information provided in support of the complaint must have some probative value . With regard to 
dumping, the applicant  must provide evidence that permits  the actual  normal value, export price 
and value of any adjustments to be established for the period identified in the complaint . A normal 
value and export price not substantiated "by r elevant evidence" would be "insufficient" to meet the 
requirements of Article 5.2.495 
7.353.   Article 5.2 nevertheless accepts that the applicant can only be required to provide such 
evidence as is "reasonably available to [it]" . The standard of evidence required i n a complaint may 
therefore not go beyond what information may be reasonably available to a firm that is part of the 
domestic industry, which excludes, in particular, confidential information . This stipulation has been 
interpreted in other dispute settleme nt procedures as seeking "to avoid putting an undue burden on 
the applicant to submit information which is not reasonably available to it" .496 Meanwhile, a number 
 
491 Article 5.2(iii) provides that the complaint shall include "information on the prices at which the 
product is sold from the country or countries of origin or export ... and information on export prices or, where 
appropriate, on the prices at which the prod uct is first resold to an independent buyer in the territory of the 
importing Member".  
492 Panel Report, Guatemala - Cement II , para. 8.35. See also Panel Report, Pakistan - BOPP Film 
(UAE) , para. 7.22.  
493 Dictionnaire Larousse, definition of "étayer" 
https://www.larousse.fr/dictionnaires/francais/%c3%a9tayer/31335  (accessed 14 April 2021).  
494 Dictionnaire Larousse, definition of "preuve" 
https://www.larousse.fr/dictionnaires/francais/preuve/63855  (accessed 14 April 2021).  
495 As stated in Panel Report, Pakistan - BOPP Film (UAE) , "inherent in the very meaning of evidence is 
its relationship to the facts that it tends to establish, i.e. its relevance. Information that does not tend to 
establish the facts called for does not fit this definition". ( Ibid., para. 7.19 ( fn omitted))  
496 Panel Report, US - Softwood Lumber V , para. 7.54.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  of panels have recognized that the quantity and quality of evidence provided at the complaint stage 
would necessarily be lower than the evidence required to impose anti -dumping measures.497 
7.354.   Lastly, we note that the parties differ over whether Article 5.2 of the Anti -Dumping 
Agreement lays down obligations, the violation of which may be found by a pa nel. In that respect, 
Tunisia maintains that by "setting forth, in a prescriptive manner, the basic content of an application 
for initiating  an anti-dumping investigation, Article 5.2 imposes an obligation  that the authorities 
must comply with when assessi ng such an application" .498 On the other hand, Morocco considers 
that "nothing in Article 5.2 imposes any legal obligation to do or not do something on" the 
investigating authority .499 To the extent that Tunisia makes claims based on Article 5.2 in this 
dispute, Morocco considers it "essential that the Panel find that Article 5.2 does not contain an 
independent obligation for the authority ".500 
7.355.   In this regard, we find that Article 5.2 determines the content of the complaint submitted by 
the domestic industry a nd does not therefore create directly an obligation for the investigating 
authority . It is Article 5.3 that, as we will see in the next section, 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 with Morocco that 
Article  5.2 describes the evidence and information that a n applicant  must include in its complaint, 
but that the relevant obligations that apply to the investigating authority are set out in Article 5.3.  
7.5.2.2   Applicable requirements of Article 5.3 of the Anti -Dumping Agreement  
7.356.   The text of Article  5.3 is composed of just one sen tence, which requires the investigating 
authority to 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" . This 
provision covers expl icitly the investigating authority and requires it to examine the complaint filed 
by the domestic industry, with a view to determining whether there is  "sufficient" evidence to initiate 
an investigation.  
7.357.   The authority's examination must focus on the "accur acy" and "adequacy" of the evidence 
provided in the complaint . The word "exact itude" ("accura cy") means something "[q]ui est 
rigoureusement conforme à la réalité"501 ("which is strictly in line with reality ") and "adéquat ion" 
(adequa cy) refers to  the "[c]on formité à l'objet, au but qu'on se propose"502 ("conformity with the 
purpose, with the objective that one has in mind "). Thus, the authority must examine whether the 
evidence provided in the complaint is ( a) in line with reality , and ( b) in line with the ob jective of the 
complaint, which, in this case, is to "prove" the existence of dumping, injury and a causal link .503 As 
other panels before us, we note however that "Article 5.3 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" .504 To know what evidence an authority must examine for accuracy 
 
497 Panel Report, Argentina - Poultry Anti -Dumping Duties , para. 7.62. On this subject, another panel 
report states that:  
the difference between the evidence that must sustain a determination and the evidence needed for 
initiation is not one of subject matter but of degree, or, as other pa nels have described it, of "quantity 
and [of] quality". The " quantity and  [the] quality " of the evidence needed to initiate an investigation 
are lesser than required to impose anti -dumping measures. However, it is still evidence of those same 
elements  that is necessary to justify initiation of an investigation.  
(Panel Report, Pakistan - BOPP Film (UAE) , para. 7.23 ( fn omitted; emphasis original))  
498 Tunisia's response to Panel question No. 6.3, para. 154 (emphasis added). See also the 
European  Union's  third-party response to Panel question Nos.  4.1 and 4.2, para.  33. 
499 Morocco's response to Panel question No.  6.3, para. 84.  
500 Morocco's comments on Tunisia's response to Panel question No. 6.22, para.  250. (emphasis 
original)  
501 Dictionnaire Larouss e, definition of "exact itude" 
https://www.larousse.fr/dictionnaires/francais/exactitude/31922  ( (accessed 22 June  2021).  
502 Dictionnaire Larousse, definition of "adéquation" 
https://www.larousse.fr/dictionnaires/francais/ad%C3%A9quation/1060  (accessed 14 April 2021).  
503 Panel Report, Pakistan — BOPP Film (UAE) , paras. 7.21 and 7.22.  
504 Panel Report,  EC - Bed Linen , para. 6.198.  WT/DS578/R  
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  and adequacy, reference must be made to the context of this provision and, in particular, to 
paragraph 2 of A rticle 5, which determines what the material content of a complaint must be.505 
7.358.   At the end of its examination, the authority must "determine" whether the evidence before 
it is sufficient to initiate an inquiry .506 The Larousse dictionary defines the word "suffisant" 
("sufficient ") as "[q]ui correspond juste à ce qui est nécessaire"507 ("corresponding exactly to what 
is necessary "). The investigating authority must therefore determine whether it has before it the 
evidence necessary to initiate an investigati on, i.e. whether an investigation appears to be justified, 
but also whether it has the information it needs to initiate its investigation . In that regard, the 
standard of review applied by other panels to a claim under Article 5.3 has been to verify "wheth er 
or not an objective and unbiased investigating authority, looking at the facts before it, could properly 
have determined that there was sufficient evidence of dumping, injury and causal link to justify the 
initiation of an anti -dumping investigation" .508 We agree with this standard of review and have 
adopted it for this dispute.  
7.5.2.3   Applicable requirements of Article 5.8 of the Anti -Dumping Agreement  
7.359.   Article 5.8 provides that an "application under paragraph  1 shall be rejected and an 
investigation shall be te rminated promptly as soon as the authorities concerned are satisfied that 
there is not sufficient evidence of either dumping or of injury to justify proceeding with the case" . 
Other panels have taken the view  that Article 5.8 does not require an additional  examination in 
relation to Article 5.3 .509 We share this view . Article 5.8 regulates  the situation in which an authority, 
following the examination required under Article 5.3, determines that there is not sufficient evidence 
to initiate an investigation . If that is the case, the complaint must be rejected by the authority.  
7.360.   Nevertheless, we note that Article 5.8 obliges  the authority to terminate an investigation 
when it is "satisfied" that the evidence is not sufficient . Thus, reading Article 5.8 in its ent irety shows 
that the obligation to reject the complaint (or to terminate an investigation already initiated) follows 
a determination by the authority that there is no basis (or no longer a basis) for an investigation . 
Article 5.8 says nothing, however, abo ut an authority that has determined that the evidence is 
sufficient , as is the case in this dispute . For this reason, we do not believe that a panel that finds a 
violation of Article 5.3 - because some evidence was not sufficient to initiate an investigati on - should 
automatically find a consequential violation of Article 5.8.  
7.5.2.4   Conclusion on the standard of review applicable in this dispute  
7.361.   Despite their differences as to the precise nature of the obligations contained in Articles 5.2 
and 5.3, the parties ag ree on the fact  that, in order to understand the standard of proof required of 
the applicant, the Panel must examine Tunisia's claim under Article 5.3 by making reference to 
Article 5.2.  
7.362.   Thus, according to Tunisia, the standard of review "is the same for A rticles 5.2 and 5.3 
(i.e., the sufficiency, or not, of evidence)" .510 It adds that "[p]rovided that the Panel finds that there 
was insufficient evidence to initiate the investigation, according to the common standard of review 
of the provisions in question, the Panel will have grounds to find a violation of either Article 5.2, or 
Article 5.3, or of both provisions together".511 
 
505 Other panels considered that Article 5.2 provides context for understanding the requirements of 
Article 5.3. See, for example, Panel Reports, Guatemala - Cement II , paras. 8.35 and 8.72; and Pakistan - 
BOPP Film (UAE) , para.  7.22.  
506 As Canada notes in its third -party submission, the standard of "sufficiency" in Article 5.3 is not 
related to the examination to be carried out, but to the sufficiency of the evidence provided in the application. 
(Canada's  third-party submission, para. 16) 
507 Dictionnaire Larousse, definition of "suffisant" 
https://www.larousse.fr/dictionnaires/francais/suffisant/75259  (accessed 14 April 2021).  
508 Panel Report, Argentina - Poultry Anti -Dumping Duties , para. 7.60; see also Panel Report, Mexico - 
Steel Pipes and Tubes , paras. 7.26 and 7.32 (which is cited in Tun isia's first written submission, fn 361).  
509 Panel Report, Mexico - Steel Pipes and Tubes , para. 7.25. ( fn omitted)  
510 Tunisia's response to Panel question No. 6.22, para.  170. 
511 Tunisia's response to Panel question No. 6.22, para.  172. WT/DS578/R  
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  7.363.   Meanwhile, Morocco "propose[s] a comprehensive approach to the interpretation and 
application of Article 5" .512 Thus: 
The content of the necessary application is set forth in Article 5.2, even if the provision 
does not impose, in and of itself, a particular obligation on an authority ; the authority's 
responsibility for verifying the accuracy of and grounds for that content is to  be found 
in Article 5.3, but that obligation is linked to the purpose of the exercise (as set out in 
Article 5.1) and the provisions of Article 5.2 (concerning reasonable availability, for 
example)[.]513 
7.364.   The parties also agree on the standard of review tha t we must apply to Tunisia's claims . 
Thus, for Tunisia, the Panel should determine "whether an unbiased and objective authority, looking 
at these facts, could properly have determined that there was sufficient evidence of dumping to 
justify the initiation of an anti -dumping investigation" .514 Morocco, on the other hand, considers that 
"[w]hat is at issue is the reasonableness of the authority's examination  of the accuracy  and adequacy  
of the evidence before it to initiate  an investigation . That examination b y the authority involves both 
quantitative and qualitative elements, as does a panel's review of the reasonableness of the 
authority's examination".515 
7.365.   With regard to the arguments developed before us by the parties, we will therefore consider 
in the next s ection whether it is apparent from the record that MIICEN properly examined the 
accuracy and adequacy of the evidence of dumping contained in the domestic industry's complaint 
and determined in an unbiased and objective manner that there was sufficient evi dence of dumping 
to justify the initiation of the investigation  
7.5.2.5   Application of the standard of review to the facts raised by the parties  
7.366.   We recall that Tunisia criticizes  of the following aspects of MIICEN's examination:  
a. whether the prices in the export documents and the domestic sales in Tunisia, limited to 
certain models in relation to the range of models of the product under investigation, were 
representative of the export prices and normal values of the product under consideration 
as a whole;  
b. whether the export prices set on one day were representative of export prices for the 
whole investigation period;  
c. whether the information contained in the catalogues submitted as evidence of the normal 
value was accurate in relation to the producers in ques tion or those who made the product 
at issue ; and 
d. whether the adjustments to be applied to the export price and to the normal value were 
based on correct assumptions.516 
7.367.   We will begin by analysing Tunisia's argument regarding the "representativeness" of the 
evidence put forward by the applicants  to substantiate the export price (points (a) and (b)), before 
turning to the manner in which the authority treated the normal value evidence and the adjustments 
proposed by the applicants  (points (c) and (d)).  
 
512 Morocco's response to Panel question No.  6.3, para. 85.  
513 Morocco's response to Panel question No.  6.3, para. 87. (emphasis original) See also Morocco's 
response to Panel question No. 6.9, para. 100.  
514 Tunisia's first written submission, paras.  8.11 and 8.12 (quoting Panel R eport, Mexico - Steel Pipes 
and Tubes , para. 7.32). See also Tunisia's response to Panel question No. 6.23, para. 177 ( fn omitted). See, in 
the same sense , the European Union's third -party submission, para. 122.  
515 Morocco's response to Panel question No. 6.19, paras.  73 and 75. (emphasis original)  
516 Tunisia's first written submission, para. 8.43.  WT/DS578/R  
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  7.5.2.5.1   Did MIICEN's examination of the export price evidence comply  with the 
provisions of Article 5.3?  
7.368.   With regard to the evidence substantiating the export price, the record shows that the 
applicants  relied on one invoice issued by one of the Tunisian producers/exporters for exports of 
exercise books to Morocco.517 
7.369.   Tunisia criticizes the fact that proof of t he export price was based on only one invoice and 
on certain types of exercise books .518 Thus: 
The invoice only covered exercise books of one particular grammage (60 g/m2) (despite 
the wide range of exercise books  of grammage between 55 g/m2 and 120 g/m2); was 
limited to three formats 21x29.7 cm, 9x14 cm and 11x17 cm ; and to three forms of 
presentation : stapled, register and cloth bound.519 
7.370.   Tunisia considers that the prices found on a single invoice (thus relating to a single 
transaction) cannot be "represent ative" of export prices for the entire period covered by the 
complaint .520 In support of this argument, Tunisia cites the conclusions of another panel that found 
that: 
[I]t is indeed quite possible that an individual, isolated transaction may be an aberrati on 
from the typical prevailing prices and/or conditions, and therefore if the applicant has 
provided only such temporally isolated evidence, the authority should not assume 
without some corroboration that this evidence is representative of the period as a 
whole.521 
7.371.   With regard to the models of exercise books, Tunisia considers the sample presented by the 
applicants was not representative of the product as a whole . Tunisia cites in this regard the same 
panel report, according to which:  
Where the evidence pert ains to only a thin sliver of a broad overall product range, the 
authority should not assume without some corroboration that this evidence represents 
pricing for the full product range.522 
7.372.   Nevertheless, according to Tunisia, there is nothing on the record t hat allows the 
"representativeness" or not of the invoice to be adjudicated.523 
7.373.   Morocco recalls that at the moment of initiating an investigation, the investigating authority 
is not required to have before it the quantity and quality of evidence that would be necessary to 
substantiate a preliminary or final determination . It finds support in this regard in the Panel Report 
in Mexico - Steel Pipes and Tubes , which considered that:  
[I]t is not necessary for an investigating authority to have irrefutable proof of dumping 
or injury prior to initiating an anti -dumping investigation.524 
 
517 Tunisia's first written submission, para. 8.5; Morocco's response to Panel question No. 6.17, 
para. 61. See also the submission by SITPEC and SOTEF I (Exhibit MAR -11), p. 5; and the initiation report 
(Exhibits TUN -2, MAR -10), para. 24.  
518 Tunisia's first written submission, para. 8.23. See also Tunisia's  response to Panel question No.  6.23, 
para. 178 i).  
519 Tunisia's first written submission, para. 8.5 (referring to the initiation report (Exhibits TUN -2, 
MAR-10), para. 26).  
520 Tunisia's first written submission, paras. 8.21 and 8.22. See also Tunisia's  response to Panel 
question No.  6.23, para.  178 ii).  
521 Tunisia's first written submission, para.  8.19 (quoting  Panel Report, Mexico - Steel Pipes and Tubes , 
para. 7.37 ). 
522 Tunisia's first written submission, para.  8.19 (quoting  Panel Report, Mexico - Steel Pipes and Tubes , 
paras. 7.38 and 7.39).  
523 Tunisia's first written submission, para. 8.8; comments on Morocco's response to Panel question 
No. 6.17, paras. 112 and 113.  
524 Morocco's first written submission, para.  237 (quoting  Panel Report, Mexico - Steel Pipes and Tubes , 
para. 7.22).  WT/DS578/R  
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  7.374.   Morocco also notes that Article 5.2 concerns only information that may be "reasonably 
available to the applicant" .525 In that regard, Morocco asserts that an invoice is a very compelling 
piece of information, which is difficult526 for an applicant composed of small and medium -sized 
enterprises to obtain .527 It also points out that this invoice was particularly relevant to the extent 
that: 
a. it is an invoice issued by one of the two exporters528; 
b. it is a wholesale invoice529; 
c. it covers the nine best -selling models of exercise books for export530; and 
d. it corresponds to transactions that occurred in the middle of the data -collection period.531 
7.375.   Lastly, Morocco asserts that the investigation record contained "other elements that 
substantiate how that one invoice was representative of the export price over the period selected by 
the applicants, notably official statistical data from the Foreign Exchange Board" showing the tren d 
over the period 2013 -2016 of the average import price of exercise books from Tunisia.532 
7.376.   However, we do not find, in the record, confirmation that those statistics formed the basis - in 
addition to the contested invoice - for the examination, by MIICEN, o f the domestic industry's 
complaint . Like Tunisia, we note that the initiation report does not refer to those statistics as 
evidence substantiating the export price .533 The section on the export price in the initiation report 
refers only to data taken from a single invoice.534 
7.377.   We further note that the investigation record contains only a few undisputed pieces of 
information concerning this invoice and  that the parties did not submit the invoice to the Panel . We 
only know that it is an invoice issued by one of the Tunisian exporters that cooperated with the 
investigation, that the invoice covers several models of exercise books and that it was issued during 
the period selected for the complaint.535 
 
525 Morocco's  first written subm ission, para.  252. 
526  Morocco's  first written submission, para.  257; response to Panel question No. 6.17, para. 62 b) 1); 
and comments on Tunisia's response to Panel question No. 6.23, para. 259.  
527 Morocco's  first written submission, para.  254. 
528 Morocco's  comments on Tunisia's response to Panel question No. 6.23, para.  259. However, neither 
the issuer of the invoice nor the Moroccan client feature in the elements  on file.  
529 Morocco' comments on Tunisia's response to Panel question No. 6.23, paras. 257 and 258. The level 
of trade of the invoice in question is contested  by Tunisia. (Tunisia's comments on Morocco's response to Panel 
question No. 6.17, para. 112)  
530 Morocco's  first written submission, para.  257. See also Morocco's  response to Panel question 
No. 6.17, para.  62 b) 6). This point is contested  by Tunisia, which notes that the popularity of these models is 
not substantiated by any objective evidence. (Tunisia's second written submission, para. 6.63 h); response to 
Panel question No. 6.23, para.  178 i) ) 
531 Morocco's  first written submission, para.  257. However, Tunisia contests the date provided by 
Morocco. (Tunisia's  second written submission, para.  6.63 e))  
532 Morocco's response to Panel question No. 6.17, para. 61 (quoting the initiation report, para. 82 
(Exhibit TUN -2)). These import price statistics are included in the section of the initiation report on "the 
analysis of factors other than imports ", and not in the section on the margin  of dumping.  
533 Tunisia's comments on Morocco's response to Panel question No. 6.17, para. 105.  
534 "The export price is calculated by the applicant on the basis of the FOB/Tunisia price contained in an 
invoice  for Tunisian exports of exercise books to Morocco in 2016." (Initiation report, (Exhibits TUN -2, 
MAR-10), p ara. 24 (emphasis added))  
535 Exhibit TUN -48 (Annex 17, export invoice) contains only a non -confidential description of the invoice 
in question. In its oral statement at the first substantive meeting of the Panel, Tunisia asserted: "we know very 
little about  the content of this invoice, because it was submitted as confidential without a non -confidential 
summary being provided. We only know that it would have been issued by a Tunisian exporter on a date in 
2016. We do not know the type, quantity or price of th e exercise books concerned". (Tunisia's opening 
statement at the first meeting of the panel, para. 10.1) We also note that Morocco submitted the invoice as 
evidence before this Panel after the period allowed for the submission of its comments on Tunisia's responses 
to the Panel. Tunisia objected to that late submission of evidence request and asked  the Panel to disregard it in 
its analysis. Having recalled that paragraph 5 (1) of our working procedures requires a showing of "good 
cause" to allow a party to place new evidence on the record outside the dates or steps established for that 
 WT/DS578/R  
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  7.378.   We recall that Tunisia was critical of the insufficient "repre sentativeness" of the prices put 
forward by the applicants to substantiate the export price and the normal value .536 We understand 
that by "representativeness" Tunisia means the capacity of the evidence provided to substantiate 
the price of the product "in its entirety" and for the whole period covered by the complaint .537 
However, we do not consider that the examination of the accuracy and adequacy of the evidence 
requires the investigating authority to ensure that the information provided is "representative " of 
the whole  period and of all types of the product under investigation . We note in this regard the view 
of Canada in its third -party submission, which we share:  
Article 5.3 does not require the authority to explain or expound  in the initiation report 
"the resolution of all issues of fact underpinning the determination that there is sufficient 
evidence to justify the initiation of an investigation" . Accordingly, Tunisia's claim that 
the Moroccan authority failed to fulfil its obligation under Article 5.3,  as it did not provide 
"any explanation in the initiation report as to how evidence concerning the export price 
and normal value - which was limited to certain product models - was representative of 
the entire range of products under investigation", is bas ed on a questionable legal 
foundation .538 
7.379.   Similarly, we note the European Union's view that:  
[I]t would certainly be an exaggeration to require evidence for all the products covered 
and producers concerned, or even concrete (irrefutable) arguments on 
representativeness . On the other hand, at the other end of the spectrum, a single piece 
of evidence concerning an insignificant subset of the product concerned or prices would 
be insufficient without the investigating authority making any effort to establi sh its 
representativeness.539 
7.380.   Our review seeks to determine whether MIICEN properly examined the accuracy and 
adequacy of the export price evidence and, notably, whether the complaint contained the elements 
needed to initiate an investigation . In that regar d, we consider that invoices for sales of the product 
concerned during the relevant period normally have a high probative value540, and that it cannot be 
reasonably expected that an applicant has at its disposal multiple invoices for a large sample of 
transactions and models of the product concerned over the period covered by the complaint . As 
another panel before us541, we consider, however, that a single invoice cannot, without some 
corroboration, be sufficient to substantiate the export price of the produc t concerned . In particular, 
we believe that an authority cannot ensure the accuracy and adequacy of such information without 
cross-checking it against other "information on export prices" . However, although the initiation 
report indicates that MIICEN did " examine and verify" the "petition data and supporting 
documents"542, we find no reference to other information substantiating the export price . Neither 
the investigation record, nor the arguments presented by Morocco before us, allow us to conclude 
in this case that the invoice submitted by the applicants  was both relevant and sufficiently probative, 
or that the investigating authority sought to verify the relevance of that evidence by cross -checking 
it against other export price information for Tunisian exercise books.  
7.381.   From that point of view, and in the light of the information available to us, we consider that 
Tunisia has established that the investigating authority failed to examine the accuracy and adequacy 
of the export price evidence when d etermining whether that evidence was sufficient to justify the 
initiation of an investigation.  
 
purpose in the timetable, we decided to decline  Morocco's request. We considered that Morocco's request to 
place Exhibit MAR -22 on record did not cite a "good cause", to the e xtent that the parties had already been 
long aware of the existence of the exhibit in question and that its nature and content had already been 
discussed at each stage of the proceedings.  
536 Tunisia's response to Panel question No. 6.23, para.  178 i) and ii ). See also Tunisia's first written 
submission, para. 8.8; and comments on Morocco's response to Panel question No. 6.17, paras. 112 and 113.  
537 Tunisia's response to Panel question No. 6.23, para.  176. 
538 Canada's  third-party submission, para.  17. (fn omitt ed) 
539 European  Union's  third-party submission, para.  124. ( fns omitted)  
540 Morocco's response to Panel question No. 6.13, para. 118; comments on Tunisia's response to Panel 
question No. 6.23, para. 259 . 
541 Panel Report, Mexico - Steel Pipes and Tubes , para. 7.37.  
542 Initiation report (Exhibits TUN -2, MAR -10), para. 38.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.5.2.5.2   Did MIICEN's examination of the normal value evidence comply  with the 
provisions of Article 5.3?  
7.382.   With regard to the normal value, the initiation report indicates  that the retail sales prices of 
certain models were "taken from sales catalogues published by [a supermarket chain] and [ speciali st 
bookshops]" .543 Tunisia criticizes  of the fact that those catalogues only showed the price of certain 
exercise book models, without the complaint explaining how those prices were representative .544 
Tunisia argues, inter alia, that "MIICEN has done nothing more than accept the prices proposed by 
the applicant and the explanation that around 85 % of exercise books imported into Mor occo from 
Tunisia were the models for which the prices were provided" .545 It also considers  that there is no 
evidence that the prices in the catalogues were those of the Tunisian product.546 
7.383.   At the same time, the normal value was the subject of certain adjus tments in the petition to 
make allowances for  VAT, the distributor's profit margin, domestic transportation and royalties (for 
exercise books with a protected trademark) .547 Tunisia contests those adjustments for the following 
reasons:  
a. The distribution marg ins used for the normal value were adjusted on the basis of 
information concerning the business practices of a Moroccan wholesaler, without the 
applicant  justifying why those margins were representative of the practice in Tunisia .548 
Meanwhile, the margins were adjusted on the basis of wholesalers even though the 
references used for the normal value in Tunisia corresponded to retail prices.549 
b. The adjustment for royalty payments for certain exercise books was not based on evidence 
of such payments in the Tuni sian market, but on "a contract between a Moroccan exercise 
book producer and a French company for a licence to use a trademark".550 
c. The adjustment for domestic transportation was fixed and based on transportation costs 
per tonne in Tunisia551, whereas "the weight of each exercise book varies considerably 
depending on the format and the grammage of the paper used".552 
d. The average distance selected by MIICEN did not reflect the situation of different factories 
and corresponds to a return journey between one of the factories and the port of Tunis.553 
7.384.   We will begin by examining Tunisia's criticisms regarding the origin of the exercise books in 
the catalogues, used to substantiate the normal value proposed by the applicants . We note first of 
all that , in response  to the Panel's questions following the second substantive meeting with the 
parties, a disagreement arose between the parties over the exact nature of the evidence that the 
authority used as the basis for establishing the normal value . Morocco stated that those catalogues 
were "objective information sources published on the exporters' website, covering different types of 
exercise books sold on the Tunisian market similar to the exercise books sold for export [, and that 
 
543 Initiation report (Exhibits TUN -2, MAR -10), para. 28; Tunisia's first written submission, para.  8.31. In 
its opening statement at the first meeting of the Panel, Tunisia specified  that "the ev idence presented to 
demonstrate normal value consisted of a series of screen shots of certain models sold at retail". Tunisia 
submitted Exhibit TUN -49, entitled "Annexe 11b à la requête pour l'ouverture de l'enquête - Preuves valeur 
normale" (Annex 11b to the petition for the initiation of the investigation - Normal value evidence), which 
contains those screen shots.  
544 Tunisia's first written submission contains a table showing that the catalogues provided in support of 
the normal value cover only three models of the exercise books under investigation. (Tunisia's first written 
submission, paras. 8.33 and 8.34. See also T unisia's  response to Panel question No.  6.23, para.  178 i) ) 
545 Tunisia's response to Panel question No. 6.23, para.  178 i).  
546 Tunisia's first written submission, para. 8.31. See also Tunisia's response to Panel question No. 6.23, 
para. 178 iii).  
547 Initiatio n report (Exhibits TUN -2, MAR -10), paras. 29 and 30.  
548 Tunisia's first written submission, para. 8.35. See also the initiation report (Exhibits TUN -2, MAR -10), 
paras. 25 and 29.  
549 Tunisia's first written submission, para. 8.36.  
550 Tunisia's first written su bmission, para. 8.38; initiation report (Exhibits TUN -2, MAR -10), para. 29.  
551 Tunisia's first written submission, para. 8.37. See also the initiation report (Exhibits TUN -2, MAR -10), 
para. 29.  
552 Tunisia's first written submission, para. 8.25.  
553 Tunisia's f irst written submission, paras. 8.26 and 8.27.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  they] were therefore an appropriate s ource for comparison" .554 Tunisia, on the other hand, contests  
Morocco's assertion that the catalogues in question came from the Tunisian exporters' website : 
instead, it indicates that the catalogues were published on the website of distributors in Tunisia .555 
The initiation report seems to confirm Tunisia's assertions, since it states that the retail sales prices 
of certain models were "extracted from sales cata logues published by [a supermarket chain] and 
[speciali st bookshops]" .556 In any case, it appears that the catalogues in question were properly 
appended to the complaint.557 
7.385.   Consultation of that annex confirms that the pages of the websites provided by the a pplicants 
do include the retail price of exercise books produced by SOTEFI558, and it is not contested that this  
is one of the producers/exporters that cooperated with MIICEN's investigation . We therefore reject 
Tunisia's argument that the applicant "failed  to submit documentation to show that the prices 
indicated in the catalogues reflected the prices of products manufactured by the identified producers 
(SITPEC, SOTEFI -Selecta, Yamama, Imprimerie Le Livre), or to demonstrate that the product sold 
by [a chai n of supermarkets] and certain bookshops was in fact of Tunisian origin".559 
7.386.   We will now examine Tunisia's argument concerning the lack of alleged "representativeness" 
of the catalogues provided by the applicants . We recalled above that we did not consider that the 
examination of the accuracy and adequacy of the evidence requires the investigating authority to 
ensure that the information provided is "representative" of the whole  period and of all types of the 
product under investigation . In this case, the re cord shows that:  
a. the online catalogues provided in support of the petition  do contain the retail prices in 
August and November  2016, on the Tunisian market, of nine exercise books of 60 and 64 
g/m2, including those manufactured by one of the Tunisian producers/exporters that 
cooperated with the investigation, as we noted above ; and 
b. the prices reflected in those catalogues correspond to a grammage of 60 and 64 g/m2, 
which in turn corresponds to the exercise book prices used as evidence of the e xport 
price.560 
7.387.   Nevertheless , as another panel before us561, we consider that such a limited sample of retail 
prices cannot, without some corroboration, be sufficient to substantiate the normal value of the 
product concerned . In particular, we believe that a n authority cannot ensure the accuracy and 
adequacy of such information without cross -checking it against other "information on the normal 
value" . However, in this case, we find that the initiation report does not refer to other information 
substantiating the normal value : the section on the normal value in the initiation report only 
mentions data taken from those website pages .562 Neither the investigation record, nor the 
arguments presented by Morocco before us, allow us to conclude in this case that the w ebsite 
excerpts submitted by the applicants  were both relevant and sufficiently probative, or that the 
investigating authority sought to verify the relevance of that evidence by cross -checking it against 
other information on the normal value of Tunisian ex ercise books.  
7.388.   From that point of view, we therefore consider that Tunisia has established that the 
investigating authority failed to examine the accuracy and adequacy of the normal value evidence 
in accordance with the provisions of Article 5.3 of the Anti -Dumping Agreement when determining 
whether that evidence was sufficient to justify initiating an investigation.  
 
554 Morocco's response to Panel question No. 6.20, para.  77 a). See also Morocco's response to Panel 
question No. 6.14, para. 120; SOTEFI, Catalogue 2017 -2018 (Exhibit MAR -21); and SITPEC, Catalogue 2016 
(Exhibi t MAR -22). 
555 Tunisia's comments on Morocco's response to Panel question No. 6.20, para. 117.  
556 Initiation report (Exhibits TUN -2, MAR -10), para. 28. 
557 Petition (Exhibits TUN -3, MAR -9), para. 46. 
558 Seven of the nine web pages contained in Exhibit TUN -49 bea r the logo "SELECTA", which refers to 
SOTEFI, as the initiation report demonstrates. (Initiation report ( Exhibits  TUN-2, MAR -10), para. 18; 
Annexe  11b à la requête pour l'ouverture de l'enquête - Preuves valeur normale (Exhibit TUN -49)) 
559 Tunisia's first written submission, para. 8.31. ( fn omitted)  
560 Initiation report (Exhibits TUN -2, MAR -10), para. 23.  
561 Panel Report, Mexico - Steel Pipes and Tubes , paras. 7.38 and 7.39.  
562 Initiation report (Exhibits TUN -2, MAR -10), para. 28.  WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  7.389.   We now turn to the examination of Tunisia's arguments concerning  the adjustments to the 
normal value . In that regard, we recall that an applica nt must provide, in support of its petition, 
"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 ... and information on export 
prices" .563 We consider that any adjustments made to the normal value and to the export price to 
allow a fair comparison are part of that "information", and must be both probative and relevant, 
within the meaning of Article 5.2 of the Anti -Dumping Agreement . We also recal l the stipulation  that 
such information must be "reasonably available to the applicant".  
a. With regard to the level of trade adjustment, the record indicates that the applicant 
proposed an adjustment that sought to reduce the retail price of the exercise boo ks (as 
reflected in the catalogues appended to the complaint) to the ex -factory level . To that 
end, the applicant subtracted a distributor mark -up, corresponding to the amount charged 
for the same transactions in Morocco, from the retail price found in the  catalogues.  
b. With regard to the royalties adjustment, the record indicates that the applicant proposed 
an adjustment for the royalties paid by the Tunisian exercise books producer to use 
trademarks on the cover of its exercise books .564 According to the initiation report, the 
proposed adjustment is based on "a contract between a Moroccan exercise book producer 
and a French company for a licence to use a trademark".565 
7.390.   In that regard, Tunisia considers that the information substantiating the proposed normal  
value adjustments "does not pertain to the source or the export market, i.e. Tunisia" and that "no 
explanation is offered as to why these margins 'are similar' to those that could be obtained in Tunisia"  
and, in particulier, "why the market conditions in Morocco with respect to that profit margin could 
have been representative or a reasonable indicator of distribution margins in Tunisia" .566 Morocco, 
on the other hand, insists that the margins made and royalties paid by the Tunisian producers are 
confidenti al data, which cannot be reasonably available to the applicants.567 
7.391.   In the light of these  record  elements , we do not share Tunisia's opinion that the initiation 
report or the complaint should have contained additional explanations "as to why these margins ' are 
similar' to those which could be obtained in Tunisia" .568 In fact, it seems to us that MIICEN could not 
reasonably require the applicants to provide evidence of the exact amount of royalties or margins 
paid in Tunisia : with respect to an applicant's dif ficulty in obtaining such evidence, relying on 
comparable data for the same business operations in the same region is relevant evidence in this 
case. We therefore reject Tunisia's argument on this point.  
7.392.   Tunisia also contests the adjustment made for domestic freight, in particular, the fact that 
the amount deducted is a fixed amount that fails to take into account the different weights of the 
different models of exercise books . Likewise, Tunisia criticizes  the fact that the adjustment applied 
correspo nds to a return journey between the factory and the port, instead of a one -way trip .569 
Morocco responds that the fixed price is based on an independent study570 and was calculated using 
an average weight per exercise book .571 It also states that "the FOB price of the invoice [used as 
evidence of the export price] included transportation costs, by using a return rate to calculate an 
ex-factory export price" .572 Morocco adds that the same fixed amount was deducted from the export 
 
563 Article  5.2(iii) of the Anti -Dumping Agreement.  
564 The initiation report states that the applicant made "[a]n adjustment for the distributor's mark -up, 
estimated at [35 -50] % on the basis of the difference between the price at which a Moroccan manufacturer 
sells an ex ercise book to a larger retailer in Morocco and the resale price of that product to the end consumer". 
(Initiation report (Exhibits TUN -2, MAR -10), para. 29)  
565 Initiation report (Exhibits TUN -2, MAR -10), para. 29.  
566 Tunisia's first written submission, para . 8.35.  
567 Morocco's response to Panel question No. 6.20, para.  77. 
568 Tunisia's first written submission, para. 8.35.  
569 Tunisia's first written submission, paras. 8.25 -8.28. 
570 Morocco's response to Panel question No. 6.19, para.  66. See also Annex 14b, input costs in Tunisia 
(Exhibit TUN -51 (BCI)).  
571 Morocco's response to Panel question No. 6.19, para.  69. See also Annex 14a, domestic 
transportation in Tunisia (Exhibit TUN -50 (BCI)).  
572 Morocco's response to Panel question No. 6.19, para.  70. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  price (which is reflected in the  initiation report)573 and that the impact on the margin of dumping 
calculated by the applicant was, in any case, inconsequential.574 
7.393.   Further reading of the evidence of the transportation cost provided in support of the 
complaint, we find that the applicant provided the data needed to make a proper assessment of the 
transportation price in Tunisia .575 Notwithstanding this, MIICEN accepted the adjustment proposed 
by the applicants, based on a return journey between one factory and one port. In its response to 
the Panel's questions, Morocco actually admits that "nothing on the record justifies the use of a 
return rate to determine either the ex -factory export price or the normal value . A correct application 
would have used a one -way rate for both..." .576 We find no indication in the record that the 
investigating authority sought to explain or correct that error in the freight adjustment.  
7.394.   From that point of view, we therefore consider that Tunisia has established that the 
investigating authority failed to examine the accuracy and adequacy of the evidence concerning the 
domestic transportation adjustment577 in accordance with the provisions of Article 5.3 of the 
Anti-Dumping Agreement.  
7.5.3   Conclusion  
7.395.   In the light of the foregoing, we therefore conclude that Tu nisia has demonstrated that 
MIICEN failed to examine the accuracy and adequacy of the evidence of the export price, the normal 
value and the adjustment for transportation costs, in accordance with the provisions of Article 5.3 
of the Anti -Dumping Agreement . 
7.396.   We recall that Tunisia is requesting "a finding of inconsistency with each of these provisions 
(5.2, 5.3 and 5.8)"578, but that "if the Panel considers that, based on the standard of review 
applicable to Articles 5.2 and 5.3, it could resolve Tunisia's al legation by finding a violation of one of 
these two provisions (and Article 5.8), Tunisia will not object to the Panel exercising judicial economy 
in respect of the other provision in question".579 
7.397.   In this case, we recall our findings that:  
a. Article 5.2 dete rmines the content of the complaint  submitted by the domestic industry 
and does not therefore create directly an obligation for the investigating authority ; and 
b. a panel that finds a violation of Article 5.3 - because some evidence was not sufficient to 
initiate an investigation - should not automatically find a consequential violation of 
Article  5.8. 
7.398.   We therefore conclude that Tunisia has failed to demonstrate that Morocco violated 
Articles  5.2 and 5.8 of the Anti -Dumping Agreement by initiating its investi gation.  
8  CONCLUSIONS AND RECOMMENDATIONS  
8.1.  For the reasons set out in this Report, we conclude that:  
a. Morocco has failed to demonstrate that paragraphs B.5 and B.6 of the panel request did 
not respect the provisions of Article 6.2 of the DSU.  
b. Tunisia has established that the definitive anti -dumping measure applied by Morocco to 
exercise books originating in Tunisia was inconsistent with:  
 
573 Initiation report (Exhibits TUN -2, MAR -10), paras. 26 and 31.  
574 Morocco's response to Panel question No. 6.19, para.  71. 
575 See in particular Annex 14a, domestic transportation in Tunisia (Exhibit TUN -50 (BCI)) and 
Annex  14b, input costs in Tunisia (Exhibit -51 (BCI)).  
576 Morocco's response to Panel question No. 6.19, para.  74. 
577 As the same adjustment was made to the export price, our conclusion extends to the transportation 
adjustment applied to the export price.  
578 Tunisia's response to Panel question No. 6. 22, para.  175. 
579 Tunisia's response to Panel question No. 6.22, para.  174. WT/DS578/R  
BCI redacted, as indicated [[***]]  
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  i. Articles 2.2 and 2.2.2 of the Anti -Dumping Agreement, because the amount for profits 
used by the investigating authority  to construct the normal value of certain exercise 
books sold by SOTEFI and SITPEC was not based "on actual data pertaining to the 
production and sales, in the ordinary course of trade, of the like product by the 
exporter or producer under investigation" a nd was therefore not a "reasonable 
amount" for profits within the meaning of Article 2.2;  
ii. Article 2.2 of the Anti -Dumping Agreement, because the investigating authority, by 
including a distribution cost in the constructed normal value of certain models of 
SOTEFI exercise books, did not construct the normal value on the basis of the cost of 
production in the country of origin, plus a reasonable amount for administrative, selling 
and general costs and for profits, within the meaning of this provision;  
iii. Article  2.4 of the Anti -Dumping Agreement, because, by using an erroneous 
mathematical formula to establish  the margin of dumping of two Tunisian exporters, 
the investigating authority failed to make a "fair comparison" between the export price 
and the normal value, within the meaning of this provision;  
iv. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, because the investigating 
authority failed to conduct an "objective examination" of price undercutting, price 
depression and price suppression;  
v. Article 3.2 of the Anti -Dumping Agreement, because the investigating authority failed 
to conduct a proper examination of price undercutting;  
vi. Articles 3.1 and 3.4 of the Anti -Dumping Agreement, because the investigating 
authority failed to conduct an "objective exa mination" of the trend in sales, market 
shares, and the domestic industry 's production and profitability;  
vii. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, because the investigating 
authority based its causa tion determination on an injury  analysis that w as inconsistent 
with Articles 3.1, 3.2 and 3.4 of the Anti -Dumping Agreement;  
viii. Article 12.2.2 of the Anti -Dumping Agreement, because the report on the definitive 
determination does not give "the reasons for the ... rejection of relevant arguments or 
claims made by the exporters" concerning the impact of licences on price 
comparability ; and 
ix. Article 5.3 of the Anti -Dumping Agreement, because MIICEN failed to review the 
accuracy and adequacy of the evidence submitted by the Moroccan applicants  to 
determine whet her the evidence was sufficient to justify the initiation of an 
investigation.  
c. Tunisia has failed to establish that the measure was inconsistent with:  
i. Article 2.4 of the Anti -Dumping Agreement, because MIICEN did not accept to make 
allowance for licences a s a difference affecting price comparability ; 
ii. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, because MIICEN failed to 
examine competition from Imprimerie Moderne  as a "known factor" injuring the 
domestic industry ; and 
iii. Articles 2.1, 5.2 and 5.8 of the Anti-Dumping Agreement.  
8.2.  We have applied the principle of judicial economy to Tunisia 's claim under Articles 3.1 and 3.2 
of the Anti -Dumping Agreement concerning the investigating authority 's consideration  of the volume 
of Tunisian imports in relation to do mestic production and consumption.  
8.3.  Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment . We conclude that, to the extent that the measure at issue is inconsistent WT/DS578/R  
BCI redacted, as indicated [[***]]  
- 89 - 
  with the Anti -Dumping Agreement, it has nullified or impaired benefits accruing to Tunisia under 
that Agreement.  
8.4.  Pursuant to Art icle 19.1 of the DSU, we recommend that Morocco bring its measure into 
conformity with its obligations under the Anti -Dumping Agreement.  
8.5.  We recall that Tunisia further  requests, as is permitted under Article 19.1, that, in addition to 
our recommendation, w e suggest to Morocco how to implement this recommendation . Tunisia 
specifically requests that we suggest that Morocco fulfil its obligations by revoking  the anti -dumping 
measure at issue .580 Article 19.1 of the DSU allows, but does not require, us to sugges t ways in 
which the Member concerned could implement the Panel's recommendations . Furthermore, under 
Article  21.3 of the DSU, the implementation of DSB recommendations and rulings is left, in the 
first instance, to the discretion of the implementing Member .581 We therefore decline Tunisia's 
request.  
__________  
 
580 Tunisia 's first written submission, para.  9.3; second written submission, para.  7.3. 
581 Panel Reports, US - Shrimp II  (Viet Nam) , para. 8.6; EU - Footwear  (China) , para. 8.12; 
EC - Fasteners  (China) , para. 8.8; and US - Hot-Rolled Steel , para. 8.11.