WT/DS397/AB/RW/Add.1  
 
18 January 2016  
(16-0331)  Page: 1/33  
  Original: English  
 
  EUROPEAN COMMUNITIES – DEFINITIVE ANTI -DUMPING MEASURES ON CERTAIN IRON 
OR STEEL FASTENERS FROM CHINA 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA  
2015-7 
Report of the Appellate Body 
Addendum 
 
This Addendum contains Annexes A to C to the Report of the Appellate Body circulated as 
document WT/DS397/AB/RW. 
 
The Notices of Appeal and Other Appeal and th e executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and 
third participants. The content has not been revise d or edited by the Appellate Body, except that 
paragraph and footnote numbers that did not start at one in the original may have been re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. The 
executive summaries do not serve as substitutes for the submissions of the participants and 
third participants in the Appellate Body's examination of the appeal.   
_______________ 
  WT/DS397/AB/RW/Add.1 
 
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  LIST OF ANNEXES 
ANNEX A 
NOTICES OF APPEAL AND OTHER APPEAL 
Contents Page 
Annex A-1 European Union's Notice of Appeal A-2 
Annex A-2 China's Notice of Other Appeal  A-4 
ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Executive summary of the European Union's appellant's submission  B-2 
Annex B-2 Executive summary of China's other appellant's submission B-11 
Annex B-3  Executive summary of China's appellee's submission B-15 
Annex B-4  Executive summary of the European Union's appellee's submission B-21 
ANNEX C 
ARGUMENTS OF THE THIRD PARTICIPANTS 
Contents Page 
Annex C-1 Executive summary of Japan's third participant's submission C-2 
Annex C-2 Executive summary of the United States' third participant's submission C-3 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX A 
NOTICES OF APPEAL AND OTHER APPEAL 
Contents Page 
Annex A-1 European Union's Notice of Appeal A-2 
Annex A-2 China's Notice of Other Appeal  A-4 
 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX A-1 
EUROPEAN UNION'S NOTICE OF APPEAL* 
Pursuant to Article 16.4 of the DSU the European Union hereby notifies to the Dispute Settlement 
Body its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report 
and certain legal interpretations developed by the Panel in the dispute European Communities – 
Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, Recourse to Article 21.5 of the DSU by China  (WT/DS397). Pursuant to Rule 20(1) of the Working Procedures 
for Appellate Review, the European Union simultaneously files this Notice of Appeal with the 
Appellate Body Secretariat. 
For the reasons to be further elaborated in its submissions to the Appellate Body, the European 
Union appeals, and requests the Appellate Body to reverse the findings, conclusions and 
recommendations of the Panel, with respect to th e following errors contained in the Panel Report:
1 
(a) the Panel erred when finding that China's claims under Articles 6.5, 6.4, 6.2, 6.1.2, 2.4, 4.1 
and 3.1 of the AD Agreement fell within its te rms of reference. The Panel erred with respect 
to the correct legal interpretation and application of Article 21.5 of the DSU and failed to 
comply with its functions as required by  Article 11 of the DSU. As a result, the 
European Union requests the Appellate Body to reverse  the Panel's findings in paragraphs 
7.34, 7.80, 7,114, 7.115, 7.171, 7.291, as well as 8.1( i)-(iii) and (v) of its Report; 
(b) the Panel incorrectly interpreted and applied Arti cle 6.5 of the AD Agreement to the facts of 
the case, and also failed to comply with its functions as required by Article 11 of the DSU when finding that the European Union violated Article 6.5 of the AD Agreement by treating 
as confidential the information submitte d by Pooja Forge regarding the list and 
characteristics of its products. As a result, the European Union requests the Appellate Body to reverse  the Panel's findings in paragraphs 7.50, 7.51 and 8.1(i) of its report; 
(c) the Panel erred in the interpretation and applic ation of Article 6.4 of the AD Agreement when 
finding that the Commission violated this provision by failing to provide the Chinese producers with timely opportunities to see the information on the list and 
characteristics of Pooja Forge's products, which information was not confidential within the 
meaning of Article 6.5, and which was relevant to the presentation of the Chinese producers' 
cases and used by the Commission. The European Union further submits that the Panel erred in the interpretation and application of Article 6.2 of the AD Agreement when finding 
that the Commission violated this provision by  not allowing the Chinese producers to see the 
information on the file regarding the list and characteristics of Pooja Forge's products. In 
view of those errors, the European Union requests the Appellate Body to reverse  the Panel's 
findings in paragraphs 7.92, 7.96 and 8.1(ii) of its Report; 
(d) the Panel erred in the interpretation and applic ation of Article 2.4 of the AD Agreement when 
finding that the Commission violated this pr ovision by failing to provide the Chinese 
producers with specific product data regarding the characteristics of Pooja Forge's products 
that were used in determining normal values in the investigation at issue. As a result, the European Union requests the Appellate Body to reverse  the Panel's findings of violation in 
paragraphs 7.148, 7.149 and 8.1(iii) of the Panel Report; 
(e) the Panel erred in the interpretation and app lication of Article 2.4.2 of the AD Agreement 
when finding that the Commission violated this provision by not taking into consideration, in its dumping determinations, Chinese producers' exports of models that did not match any of 
the models sold by the Indian analogue count ry producer Pooja Forge. As a result, the 
European Union requests the Appellate Body to reverse  the Panel's findings in 
paragraphs 7.276 and 8.1(iv) of its Report; and 
                                               
* This Notice, dated 9 September 2015, was circulated to Members as document WT/DS397/21. 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Proc edures for Appellate Review this Notice of Appeal 
includes an indicative list of the paragraphs of the Pa nel Report containing the alle ged errors, without prejudice 
to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of its 
appeal. WT/DS397/AB/RW/Add.1 
 
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  (f) the Panel erred in the interpretation and application of Articles 4.1 and 3.1 of the 
AD Agreement when finding that, by defining the domestic industry on the basis of domestic producers that came forward in response to a notice of initiation which stated that only those producers willing to be included in the injury sample would be considered as 
cooperating, the Commission acted inconsistently with Article 4.1 of the AD agreement and 
consequently with Article 3.1 of the AD Agreement. As a result, the European Union requests the Appellate Body to reverse  the Panel's findings in paragraphs 7.299 and 8.1(v) of its 
Report. 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX A-2 
CHINA'S NOTICE OF OTHER APPEAL* 
1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  ("DSU") and Rule 23 of the Working Procedures for 
Appellate Review, the People's Republic of China ("China") hereby notifies its decision to appeal to 
the Appellate Body certain issues of law covered in the Report of the Panel in European 
Communities – Definitive Anti-Dumping Measures on Certain Iron or  Steel Fasteners from China 
(Recourse to Article 21.5 of the DSU by China) (WT/DS397/RW) ("Panel Report"), and certain legal 
interpretations developed by the Panel in that Report.  
2. Pursuant to Rules 23(1) and 23(3) of the Working Procedures for Appellate Review, China 
simultaneously files this Notice of Other Appeal and its Other Appellant Submission with the 
Appellate Body Secretariat. 
3. Pursuant to Rule 23(2)(c)(ii) of the Working Pr ocedures for Appellate Review, this Notice of 
Other Appeal includes an indicative list of the paragraphs of the Panel Report containing the 
alleged errors, without prejudice of China's ability to refer to other paragraphs of the Panel Report 
in the context of this appeal. 
4. China requests the Appellate Body to reverse various findings and conclusions of the Panel 
as a result of the errors of law and of legal interpretation contained in the Panel Report as 
identified below. 
1   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CH INA'S CLAIMS UNDER 
ARTICLE 2.4 OF THE AD AGREEMENT CONCERNING THE EUROPEAN UNION'S 
FAILURE TO MAKE ADJUSTMENTS FOR DIFFERENCES IN TAXATION 
5. China seeks review by the Appellate Body of the Panel's findings and conclusions concerning 
China's claim that the European Union violated Arti cle 2.4 of the AD Agreement by failing to make 
a fair comparison between normal value and export price, and in particular by failing to makes due 
allowances for differences in taxation.1 The Panel erred in its interpretation and application of 
Article 2.4 of the AD Agreement when it found th at the European Union did not violate Article 2.4 
of the AD Agreement by rejecting the Chinese producers' request for an adjustment for differences 
in taxation. In that respect, China has identified, inter alia , the following errors in the issues of law 
and legal interpretations developed by the Panel: 
- The Panel erred in finding that the Commission was not required to make an adjustment 
for differences in taxation because the analogue country methodology was used; 
- The Panel erred in its application of Article 2.4 in finding that the Chinese producers did 
not show that the difference in taxa tion affected price comparability. 
6. China requests the Appellate Body to reverse these Panel's findings and conclusions and to 
find that the European Union acted inconsistently with Article 2.4 of the AD Agreement. 
2   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CH INA'S CLAIMS UNDER 
ARTICLE 2.4 OF THE AD AGREEMENT CONCERNING THE EUROPEAN UNION'S 
FAILURE TO MAKE ADJUSTMENTS FOR CERTAIN OTHER DIFFERENCES AFFECTING PRICE COMPARABILITY 
7. China seeks review by the Appellate Body of the Panel's findings and conclusions concerning 
China's claim that the European Union violated Arti cle 2.4 of the AD Agreement by failing to make 
a fair comparison between normal value and export price, and in particular by failing to makes due 
allowances for certain other differences affecting price comparability. The Panel erred in its 
                                               
* This document, dated 14 September 2015, was circulated to Members as document WT/DS397/22 
1 Panel Report, paras. 7.209 – 7.223 and 8.2(iii).  WT/DS397/AB/RW/Add.1 
 
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  interpretation and application of Article 2.4 of the AD Agreement and failed to comply with its 
functions as required by Article 11 of the DSU when finding that the European Union did not violate Article 2.4 by rejecting the Chinese producer s' requests for adjustments for differences with 
regard to "easier access to raw materials", "use of  self-generated electricity", and "efficiency and 
productivity" which affected price comparability.
2 In that respect, China has identified, inter alia , 
the following errors in the issues of law and legal interpretations developed by the Panel: 
- The Panel erred in finding that the Commission was not obliged to make adjustments to 
reflect differences in costs because the analogue country methodology was used; 
- The Panel erred in its application of Article 2.4 in finding that the Chinese producers did 
not show that the alleged differences in costs affected price comparability; 
- The Panel failed to make an objective assessment of the facts, as required under 
Article 11 of the DSU, by failing to address all aspects of China's claim and by failing to 
consider the evidence presented by China in its totality. 
8. China requests the Appellate Body to reverse these Panel's findings and conclusions and to 
find that the European Union acted inconsistently with Article 2.4 of the AD Agreement. 
3   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CH INA'S CLAIMS UNDER 
ARTICLE 2.4 OF THE AD AGREEMENT CONCERNING THE EUROPEAN UNION'S 
FAILURE TO MAKE ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL 
CHARACTERISTICS 
9. In case the Appellate Body were to reverse the Panel's findings that the European Union 
violated Article 2.4 of the AD Agreement by failing to provide the Chinese producers with 
information regarding the characteristics of Pooja Forge's products that were used in determining 
normal values, China requests the Appellate Body to review the Panel's findings under Article 2.4 
with respect to the European Union's failure to make adjustments for differences in physical 
characteristics.3  
10. In that regard, China requests the Appellate Body to reverse the Panel's findings and to find 
that the European Union violated Article 2.4 as it failed to make adjustments for differences in 
physical characteristics both included and not included in the original PCNs. 
4   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CHINA'S CLAIM UNDER 
ARTICLE 6.1.2 OF THE AD AGREEMENT CONCERNING THE EUROPEAN UNION'S FAILURE TO ENSURE THAT THE INFORMATION PROVIDED BY POOJA FORGE WAS 
MADE AVAILABLE PROMPTLY TO THE CHINESE PRODUCERS 
11. China seeks review by the Appellate Body of the Panel's findings and conclusions concerning 
China's claim that the European Union violated Ar ticle 6.1.2 of the AD Agreement by failing to 
ensure that the information provided by Pooja Fo rge concerning the list and characteristics of its 
products was made available promptly to the Chinese producers.
4  
12. The Panel erred in its interpretation of the term "interested parties" as included in 
Article 6.11 in considering that the status of "inter ested parties" is dependent on a decision of the 
investigating authorities which must appear in the investigation record and in stating that such decision is made at the request of the party concerned. The Panel also erred in its interpretation and application of Article 6.1.2 in concluding that  the obligation in Article 6.1.2 only applies to 
those parties which are "interested parties" under Article 6.11.
5 The Panel also erred in its 
interpretation of the Appellate Body's findings in the original dispute.6 
                                               
2 Panel Report, paras. 7.240 – 7.250 and 8.2(iii). 
3 Panel Report, paras. 7.225 – 7.230 and paras. 7.234 – 7.236 and 8.2(iii). 
4 Panel Report, paras. 7.116 – 7.123 and para. 8.2(i). 
5 Panel Report, paras. 7.118 – 7.119. 
6 Panel Report, paras. 7.120 – 7.122. WT/DS397/AB/RW/Add.1 
 
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  13. China requests the Appellate Body to reverse the Panel's findings and conclusions and to 
find that the European Union violated Article 6.1. 2 of the AD Agreement by failing to ensure that 
the information provided by Pooja Forge was made available promptly to the Chinese producers.  
5   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CHINA'S CLAIM UNDER 
ARTICLE 6.5.1 OF THE AD AGREEMENT 
14. If the Appellate Body reverses the Panel's findings and conclusions that the European Union 
violated Article 6.5 of the AD Agreement by treati ng as confidential the information submitted by 
Pooja Forge regarding the list and characteristics of its products and instead finds that the 
European Union did not violate Article 6.5 of the AD Agreement, then China requests the Appellate 
Body to complete the analysis of China's claim under Article 6.5.1 of the AD Agreement for which 
the Panel did not make findings.7 
15. More specifically, China requests that the Appellate Body finds and concludes that the 
European Union violated Article 6.5.1 of the AD  Agreement because it failed to ensure that 
Pooja Forge provides a meaningful non-confidential summary of the list of its products and of the 
information concerning the characteristics of its products and/or because it failed to ensure that 
Pooja Forge identifies the existence of exceptio nal circumstances and provides a statement of 
reasons why summarization of such information was not possible. 
 
 
_______________ 
  
 
  
                                               
7 Panel Report, paras. 7.50 and 8.3. WT/DS397/AB/RW/Add.1 
 
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  ANNEX B 
ARGUMENTS OF THE PARTICIPANTS 
Contents Page 
Annex B-1 Executive summary of the European Union's appellant's submission  B-2 
Annex B-2 Executive summary of China's other appellant's submission B-11 
Annex B-3 Executive summary of China's appellee's submission B-15 
Annex B-4 Executive summary of the European Union's appellee's submission B-21 
 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX B-1 
EXECUTIVE SUMMARY OF THE EUROPEAN  UNION'S APPELLANT'S SUBMISSION 
1.1   The Panel erred by finding that China's clai ms under Articles 6.5,  6.4, 6.2, 6.1.2, 
2.4, 4.1 and 3.1 of the AD Agreement fell within its terms of reference 
1. The European Union submits that the Panel erred in the interpretation and application of 
Article 21.5 of the DSU and also failed to comply  with its functions as required by Article 11 
of the DSU when finding that China's claims under Article 6.5, 6.4, 6.2, 6.1.2, 2.4, 4.1 and 
3.1 of the AD Agreement fell within its terms of reference. As a result, the European Union 
requests the Appellate Body to reverse  the Panel's findings in paragraphs 7.34, 7.80, 7.114, 
7.115, 7.171, 7.291, as well as 8.1(i)-(iii) and (v) of its Report. 
2. The European Union considers that Article 21.5 of the DSU instructs a panel in the context of 
compliance proceedings to evaluate the existence or consistency with a covered agreement 
of measures taken to comply with the recommendations and rulings. In this respect, the DSB's recommendations and rulings are crucial to determine whether a measure taken to 
comply exists, what aspects of such measure (including omissions) fall within the scope of 
the compliance review (e.g. because they are new aspects), and also in evaluating whether such a measure is consistent with the covered agreements. Thus, the recommendations and 
rulings of the DSB will always provide the starting point for a panel's analysis under 
Article 21.5. The steps taken by the responding Member to comply with those DSB's recommendations and rulings are also relevant to determine whether certain aspects in the measure taken to comply are "new" (i.e. where modified pursuant to the measure 
taken to comply), or remain unchanged and incorporated into the measure taken to comply. 
Panels in Article 21.5 proceeding are precluded from considering several types of issues relating to those unchanged aspects. In particular, the DSU does not allow complaining 
Members to use compliance proceedings to re-raise claims and arguments that were 
rejected during the original proceedings. In addition, Members generally may not make claims in compliance proceedings that they could have pursued during the original 
proceedings, but did not. In order to determine whether a particular claim against an 
unchanged aspect of the original measure incorporated into the measure taken to comply falls within the scope of those compliance proceedings, the compliance panel will have to assess whether such aspect forms an integral part of the measure taken to comply (e.g. like 
in US-OCTG Sunset Reviews (Article 21.5) ) or is separate from the measure taken to comply 
(e.g. like in EC – Bed Linen (Article 21.5 – India) ) in particular by examining the original 
DSB's recommendations and rulings, the steps taken by the responding Member to comply 
with them though the declared measure taken to comply, and the close relationship between 
those unchanged aspects and the ones that the responding Member was called to modify. 
1.1.1.1   The Panel made an error when find ing that China's claim under Article 6.5 of 
the AD Agreement was within its terms of reference 
3. The Panel wrongly concluded that the claims made in the original and compliance 
proceedings took issue "with different types of information". With a different label applied to the same information, in the compliance proceedings China sought to challenge the fact that 
the European Commission had treated as confidential the same information (i.e. Pooja 
Forge's product categories reflecting its characteristics) also in the context of the review investigation. Nothing changed when compared with the facts as challenged by China in the 
original proceedings. China complained that the European Commission had treated as 
confidential the information provided by Pooja Forge regarding its product categories reflecting product characteristics in the original proceedings, and failed. Now, in compliance 
proceedings, China also raised the same claim against the same underlying facts in the 
context of the review investigation. 
4. Had the Panel examined what the European Unio n was required to do following the adopted 
DSB reports, the Panel would have conclude d that, since China failed to make its prima facie  
case with respect to all the information submitted by Pooja Forge in its Questionnaire WT/DS397/AB/RW/Add.1 
 
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  Response, including the categories of products sold (i.e. Pooja Forge's product 
characteristics), China was prevented from raising the same claim against the same facts which remained unchanged in the review investigation (i.e. the treatment as confidential of certain information submitted by Pooja Forge regarding the products sold in India). This 
issue did not bear any close relationship with the original DSB's recommendations and 
rulings. Simply, there were no recommendations or rulings on this matter, since China failed to prove its case. Allowing China to raise the same matter again in the context of these 
compliance proceedings precisely would confer a "second chance" to re-open the same issue 
which was discussed in the original proceedings, i.e. the treatment as confidential of the 
information provided by Pooja Forge, including its product types. 
1.1.1.2   The Panel made an error when fi nding that China's claim under Article 6.2 
and 6.4 of the AD Agreement was within its terms of reference 
5. The information provided by Pooja Forge with respect to its products sold in India was not 
"new". In the review investigation, the European Commission based itself on the data which 
Pooja Forge had provided in the context of the original investigation. Further, in the original 
investigation, the Chinese exporting producers repeatedly requested to see the categorisations or product types on the basis of which Pooja Forge had provided information. 
This aspect, therefore, was not "new". Th e Panel failed when considering that this 
information was "new" and hence a new aspect in the measure taken to comply. In addition, the European Union considers that, had the Panel followed the guidance set out by the Appellate Body in US – Zeroing (Article 21.5 – EC) , the Panel should have concluded that 
this aspect of the review investigation did not change when compared to the original 
investigation (since it was based on the same information) and that such aspect was separable from the measure taken to comply, in light of the relevant 
DSB's recommendations and rulings. 
1.1.1.3   The Panel made an error when fi nding that China's claim under Article 6.1.2 
of the AD Agreement was with in its terms of reference 
6. The Panel erred in the interpretation and application of Article 21.5 of the DSU when 
examining the European Union's objection against China's claim under Article 6.1.2 of the AD Agreement. The reasons mentioned by the European Union in Section 3.2.4 also apply here mutatis mutandi . The European Union further takes issue specifically with the following 
factual finding made by the Panel in paragraph 7.114: "[w]e also recall that Pooja Forge 
provided information on coating during the review investigation [referring to Exhibit EU-6]". The European Union considers that the Panel erred under Article 11 of the DSU when 
drawing this conclusion from the record and which vitally supported its ultimate findings. 
1.1.1.4   The Panel made an error when finding th at certain aspects of China's claims 
under Article 2.4 of the AD Agreement were within its terms of reference 
7. The Panel erred when finding that China's claims  under Article 2.4 of the AD Agreement with 
respect to the use of the special/standard distinction in the dumping determination as well as the failure to make adjustments relating to features that were not included in the revised 
product categories (like traceability, standards, unit of defective rate, hardness, bending 
strength, impact toughness and friction coeffi cient) were within its terms of reference. 
8. With respect to the special versus  standard distinction, like in the original proceedings, 
China sought to argue in the compliance proceedings that there was a "third" category of 
fasteners (yet another "standard-plus fasteners") which, in reality, did not exist either in the 
original or compliance proceedings. The methodology applied with respect to the special/standard distinction used by the European Commission in the original and review 
investigations did not change. In this respect, the European Union considers that, regardless 
of whether China raised the special/standard distinction in different contexts in the original and compliance proceedings, the essence of the claim was identical in both proceedings and, in fact, was rejected in several occasions in the original proceedings.  
9. Moreover, China could have contested in th e original proceedings how the European 
Commission applied its special/standard distinction also in the dumping context but did not WT/DS397/AB/RW/Add.1 
 
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  do so. Had the Panel examined the DSB's recommendations and rulings, it would have 
concluded that the use of the special/standard  distinction in the dumping context was an 
unchanged aspect which was separable from the measure taken to comply by the European Union in this case. Indeed, since in essence the panel and the Appellate Body in the original 
proceedings confirmed the European Commissio n's approach and therefore rejected the 
existence of a third category of fasteners (irre spective of whether it was called "standard-
plus fastener" or "high-end fastener"), the Euro pean Union was entitled to continue with its 
original special/standard distinction also in the review investigation.  
10. With respect to the adjustments regarding differences in physical characteristics that were 
not included in the original PCNs, the Panel wrongly focussed its analysis on whether the 
alleged differences (such as traceability, standards, unit of defective rate, hardness, bending 
strength, impact toughness and friction coefficient) were "discussed" in the original 
investigation. The relevant issue was, instead, whether China could have raised a claim in the original proceedings that the European Union also failed to comply with its obligations 
under Article 2.4 of the AD Agreement because it failed to take into account those 
differences in the product characteristics which were not reflected in the original PCNs. And indeed China could have brought such a claim.  
1.1.1.5   The Panel made an error when finding that China's claim under Articles 4.1 
and 3.1 of the AD Agreement was within its terms of reference 
11. An examination of the original DSB's recommendations and rulings would have led the Panel 
to conclude that what the European Union was required to do was to amend its domestic 
industry definition so that it did not exclude those domestic producers that came forward but 
decided not to cooperate in the investigation.  
12. In any event, whilst the Panel itself acknowledged that this aspect remained unchanged in 
the measure taken to comply, the Panel also erred when considering this unchanged aspect 
as an integral part of the measure taken to comply. The European Union was not required to re-open this issue in view of the original DSB's recommendations and rulings, which found 
the violation in the exclusion from the domestic industry definition of the producers coming 
forward within the deadline. The European Union was not called upon to modify the underlying data (i.e. the information collected as a result of the original Notice of Initiation, in particular the number of domestic produc ers who came forward within the deadline); 
rather, the European Union was required to ch ange its methodology of selecting from the 
underlying data the universe of producers which would amount to the domestic industry in that investigation (and indeed it did so by taking into account all domestic producers as 
opposed to only those who expressed their intention to cooperate). 
1.2   The Panel made an error when finding that the European Union violated Article 6.5 
of the AD Agreement by treating as confid ential the information submitted by Pooja 
Forge regarding the list and characteristics of its products 
13. The European Union submits that the Panel incorrectly interpreted and applied Article 6.5 of 
the AD Agreement to the facts of the case and also failed to comply with its functions as 
required by Article 11 of the DSU when finding that the European Union violated Article 6.5 
by treating as confidential the information submitted by Pooja Forge regarding the list and 
characteristics of its products. 
14. First, the Panel erred when failing to exam ine the reasons provided by Pooja Forge to 
request confidential treatment in their prop er context. The Panel wrongly narrowed its 
analysis down to the fact that an e-mail where Pooja Forge provided reasons to justify the confidential treatment of its products was plac ed in the confidential file of the review 
investigation. The Panel was wrong to exclude this information from its consideration. 
Further, the Panel's ultimate concerns for disregarding this e-mail were also misguided. The Panel considered that the Chinese producers could not know the reason adduced by Pooja 
Forge, which, however, was known to the Chinese producers. In paragraph 7.44 of its 
Report, the Panel omits any discussion or reference to the Hearing Officer's Report dated 
18 July 2012. The Panel further erred when finding that Pooja Forge's request was merely a "bald assertion". The Panel ignored the considerations submitted by the EU. WT/DS397/AB/RW/Add.1 
 
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  15. The European Union further submits that the Panel erred when finding that the European 
Commission "never" performed an objective assessment. This is in contradiction with the record. For example, the European Union explained that Pooja Forge's request for confidential treatment regarding the list and its product characteristics was made in the 
context of the verification visit that took pl ace in April 2008 (Exhibit EU-5). The e-mail of 
2 July 2012 confirmed that Pooja Forge stated the same concerns back in 2008. They were 
also mentioned in the Hearing Officer's Report dated 18 July 2012. 
16. Moreover, the Panel did not attribute proper weight to the fact that the confidentiality of 
Pooja Forge's product range was a non-issue in the original investigation.  
17. Neither did the Panel attribute proper weight to the circumstance that the facts and events 
to which the European Union needed to refer in this case date back to 2008.  
18. The European Union also showed that the relevant assessment conducted in the review 
investigation was a "good proxy" of how the European Commission assessed the same matter back in 2008.  
19. The European Union maintains that the Panel wrongly relied on an alleged logical 
inconsistency in the European Union's arguments that, on the one hand, the European Commission treated as confidential the info rmation provided by Pooja Forge about its 
products for the purpose of the claim under Ar ticle 6.5, but that, on the other hand, the 
European Commission provided the Chinese expo rting producers with certain information on 
the characteristics of Pooja Forge's products in  the context of the claims under Articles 6.2 
and 6.4, to conclude that this undermined the European Union's contention that the 
information at issue was confidential and that good cause was shown to keep it confidential. 
20. This balancing which the European Union applied is laid down in the AD Agreement itself. 
The European Commission stroke a balance between protecting the information deemed 
confidential and the information that was n eeded by the Chinese exporting producers to 
defend their interests.  
21. It is not logically inconsistent to argue that the entirety of certain information as a whole is 
confidential whereas specific bits of information are not equally confidential.  
22. Further, the Panel erred when finding, without a proper analysis, that the information 
relating to Pooja Forge's products was not confidential. In paragraph 7.51 of its Report, the Panel specified that its finding only indicated that the European Commission failed to 
observe the obligations set forth in Article 6.5. The Panel explicitly did not make a finding on 
the nature of such information as confidential or not. There is no reasoning apparent in the Panel Report which would reconcile these two sentences: " … we do not necessarily say that 
such information was not of a confidential nature" (para. 7.51) versus "… we treat that 
information as not confidential …" (para. 7.88). The second sentence does not logically flow from the first one, contrary to what the Panel seems to assume. 
23. In light of the foregoing, the European Union requests the Appellate Body to reverse the 
Panel's findings in paragraphs 7.50, 7.51 and 8.1(i) of its Report. 
1.3   The Panel erred when finding that the Commission violated Articles 6.2 and 6.4 of 
the AD Agreement by not allowing the Chinese producers to see the information on the 
file regarding the list and characteristics of  Pooja Forge's products, and by failing to 
provide the Chinese producers with timely opportunities to see the information on the list and characteristics of Pooja Forge's products, which information was not 
confidential within the meaning of Arti cle 6.5, and which was relevant to the 
presentation of the Chinese producers' cases and used by the Commission 
24. The European Union submits that the Panel erred in the interpretation and application of 
Article 6.4 of the AD Agreement when finding that the Commission violated this provision by 
failing to provide the Chinese producers with timely opportunities to see the information on the list and characteristics of Pooja Forge's products, which information was not confidential within the meaning of Article 6.5, and which was relevant to the presentation of the Chinese WT/DS397/AB/RW/Add.1 
 
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  producers' cases and used by the Commission. The European Union further submits that the 
Panel erred in the interpretation and applicat ion of Article 6.2 of the AD Agreement when 
finding that the Commission violated this provision by not allowing the Chinese producers to see the information on the file regarding the list and characteristics of Pooja Forge's 
products.  
25. Article 6.4 of the AD Agreement applies to in formation that meets three conditions: (i) the 
information has to be relevant to the presentation of the interested parties' cases; (ii) it 
should not be confidential as defined in Article 6.5; and (iii) it must have been used by the 
investigating authority. 
26. With respect to condition (i): first, the fact that an interested party requests certain 
information cannot be equated with the determination that such information is "relevant". 
Second, the information about the list and characteristics of Pooja Forge's products the 
Chinese producers were asking for did not concern directly the dumping calculations. That part of the information which indeed did concern the dumping calculations was provided to 
the Chinese producers. In addition, the Chinese exporting producers could have made 
requests on the basis of the company specific disclosures. 
27. With respect to condition (ii): the Panel erred when automatically concluding that an alleged 
error made by the European Union in assessing such information meant that the information 
itself was not confidential in the meaning of the second condition under Article 6.4. 
28. With respect to condition (iii): the mere fact that information "relates" to a particular issue 
that is before the investigating authority does not establish that the information was "used" 
by the authority in making its determination. That information as a whole (as opposed to 
more specific parts of it) was not used by the Commission.  
29. The Panel wrongly considered that providing this information at the time of the company 
specific disclosures was too late. The Chinese exporters, however, were given three weeks 
to make comments on the disclosure, including the possibility of asking for adjustments - preceded by three months of an active dialogue. 
30. The Panel also found that the Commission violated Article 6.2 by not allowing the Chinese 
producers to see the information on the file regarding the list and characteristics of Pooja Forge's products. The European Union submits that this finding is in error for similar reasons as those mentioned before in the context of Article 6.4. 
31. In light of the foregoing, the European Union requests the Appellate Body to reverse the 
Panel's findings in paragraphs 7.92, 7.96 and 8.1(ii) of its Report. 
1.4   The Panel erred when finding that the Commission violated Article 2.4 of the AD 
Agreement by failing to provide the Chinese producers with information regarding the 
characteristics of Pooja Forge's products that were used in determining normal values in the investigation at issue 
32. The European Union submits that the Panel erred when finding that the Commission violated 
Article 2.4 of the AD Agreement by failing to  provide the Chinese producers with specific 
product data regarding the characteristics of Pooja Forge's products that were used in determining normal values in the investigation at issue.   
33. In particular, the Panel committed a legal error by turning the "fair comparison" requirement 
of Article 2.4 of the AD Agreement into a procedural provision that would require the 
investigating authority to disclose raw data and evidence to interested parties. Article 2.4 
requires the authority to indicate to the parties what information is necessary to ensure a 
fair comparison, and provides that the authority shall not impose an unreasonable burden of proof on those parties in this respect. Rather than examining whether the Commission failed 
to indicate the information that was required and to examine if the Commission imposed an 
unreasonable burden of proof on the Chinese pr oducers, the Panel simply re-interpreted one 
sentence in the original Appellate Body Report and, on that basis, read Article 2.4 to require that in an investigation involving NME countries, all of the raw product data from the WT/DS397/AB/RW/Add.1 
 
- B-7 - 
 
  analogue country producer needs to be disclosed to the interested parties. There is no basis 
for this requirement in the text of Article 2.4 of the AD Agreement or in the original 
Appellate Body Report. 
34. Article 2.4 of the AD Agreement requires that  the interested parties be informed of the 
approach adopted by the investigating authority for ensuring a fair comparison and of the 
characteristics of the product groupings that will be used for purposes of the dumping determination. A dialogue needs to exist between the investigating authorities and the 
interested parties on the product groupings and on the request for adjustments. That is 
what the Appellate Body found in the original dispute. The investigating authority is to communicate clearly with the interested parties on the method it will use and the product types it has developed to make the fair comparison. It is then for the interested parties to 
request that additional characteristics be ad ded to the product types or that particular 
adjustments are required given the type of products they are exporting.   
35. Article 2.4 does not require a disclosure of the raw data provided by an interested party or 
of the verified evidence with respect to each product sold by an interested party, and 
certainly not when it concerns confidential information. The relevant obligation relating to the disclosure of information used in the determination is to be found in Articles 6.2 and 6.4 
of the AD Agreement. As noted above, these provisions concern only information that is 
used by the investigating authority in the anti-dumping investigation and do not allow for the disclosure of confidential information. 
36. In particular, the European Union argues that the Panel Report contains five errors of law.  
37. First, the Panel expressly acknowledges that "the Chinese producers knew the basis on 
which the Commission grouped the products on the normal value and the export price side 
in comparing prices". In other words, the Panel confirms that the European Union complied 
with the requirement identified by the Appellate Body. The finding of the Panel that the 
Commission deprived the Chinese producers of the opportunity to make informed decisions 
on whether to request adjustments under Article 2.4 is thus clearly in error. Based on the 
Panel's own findings, the European Union did not fail to implement the Appellate Body's 
ruling and complied with the "procedural requirem ent" of Article 2.4 of the AD Agreement.  
38. Second , the European Union considers that the Panel's conclusion in paragraph 7.144 that 
without seeing such "product types", and understanding their characteristics, "the Chinese 
producers could not, in our view, have had a meaningful opportunity to request 
adjustments" is wrong. These findings reveal a number of fundamental errors of law. Importantly, the facts of the case reveal that the Commission disclosed the "product types" 
on the basis of six relevant product characteristics. The Panel ignores the fact that the 
Chinese producers could thus have claimed an adjustment on the basis of other relevant characteristics e.g. if their mixed bag of transactions reflected such different characteristics 
likely to affect price comparability. However, China failed to provide any relevant evidence in 
respect of the alleged differences relating to th e characteristics that were part of the PCNs. 
The Panel did not find otherwise. The Panel erred by accepting China's approach that a fair comparison can only be made if the producers can verify and confirm themselves if an 
adjustment is required based on all of the information available to the investigating 
authority. That is not what Article 2.4 provides. 
39. Third, insofar as the Panel considers that the final disclosure documents were not a timely 
way of informing interested parties, the Panel erred as well. The Panel's finding to this effect 
in paragraph 7.144 is based on a reading which takes the Appellate Body's findings relating to the required dialogue out of context. The situation in the context of the review 
investigation in which the dialogue started well before the General Disclosure and which led 
to the Commission fully informing the interested parties of the product types it was using at the time it provided the company-specific disclosures, thus leaving sufficient time for comments (three weeks) is entirely different. The Panel erred in failing to appreciate that 
difference and in finding that providing full disc losure of the product types that were used in 
the final disclosure documents only violated Article 2.4.   WT/DS397/AB/RW/Add.1 
 
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  40. Fourth , the European Union also considers that the Panel erred in law in suggesting that the 
obligation in Article 2.4 differs based on whether one or another permissible normal value methodology is used. There is no basis in the text of the AD Agreement or China's accession protocol for the Panel's finding that in investigations involving NME countries, Article 2.4 
imposes a different and more far reaching disclosure obligation. What the Appellate Body 
required under the procedural requirement of Article 2.4 was that the Commission would enter into an active dialogue with Chinese producers. That is what the Commission did. The 
Appellate Body made this finding in the context of this NME investigation. The Appellate 
Body did not find that in an NME investigation Article 2.4 imposes additional obligations on investigating authorities. 
41. Fifth, the Panel also erred when it found that the confidential nature of the information 
should not have prevented the Commission from disclosing a summary of the product 
information. The European Commission disclosed all of the necessary information on the product groupings (including the detailed prod uct characteristics) that were used in the 
normal value determination to each of the Chinese exporters and engaged in an active 
dialogue with the Chinese interested parties, as required by Article 2.4 of the AD Agreement. In so doing, the European Commission fully implemented the recommendations and rulings 
of the DSB and complied with its obligations under Article 2.4 of the AD Agreement 
42. The European Union therefore requests the Appella te Body to reverse the Panel's findings of 
violation in paragraphs 7.148, 7.149 and 8.1(iii) of its Report.   
1.5   The Panel erred when finding that the Commission violated Arti cle 2.4.2 of the AD 
Agreement by not taking into consideratio n, in its dumping determinations, Chinese 
producers' exports of models that did not ma tch any of the models sold by Pooja Forge  
43. The European Union submits that the Panel erred when finding that the Commission violated 
Article 2.4.2 of the AD Agreement by not taking into consideration, in its dumping 
determinations, Chinese producers' exports of models that did not match any of the models sold by the Indian analogue country producer Pooja Forge. The Panel ignored the term 
"comparable" in Article 2.4.2 and failed to in terpret the requirement of Article 2.4.2 in the 
context of the overarching "fair comparison" obli gation of Article 2.4 which distinguishes this 
situation from the one addressed in the zero ing disputes. The Commission applied a neutral 
methodology that included all comparable export transactions for which there was a 
comparable domestic sale. The European Union therefore requests that the Panel's findings 
in paragraphs 7.276 and 8.1(iv) be reversed. 
44. The obligation in Article 2.4.2 is to compare only comparable transactions but to make sure 
to compare and use all of such comparable transactions. That is exactly what the European 
Commission did. The European Commission included only the comparable export transactions in its dumping calculation in order to ensure the accuracy of the calculations. In 
so doing, the European Commission included all comparable export transactions in the 
dumping margin determination and did not exclude any comparable transactions or otherwise sought to skew the averaging that followed the model-to-model comparison as 
had been the issue in the zeroing disputes. Th ere is therefore nothing "inherently unfair" 
about this approach. The Panel did not find otherwise. The evidence presented by the 
European Union showed that both qualitatively and quantitatively the amount of matching sales was such as to ensure a fair comparison between comparable sales. The European 
Commission excluded some export transactions from its dumping calculation, because 
including them would have resulted in inaccurate findings based on non-comparable transactions. This situation cannot be compared with the zeroing situation that the Panel 
based its analysis on. 
45. In sum, by including "all comparable export transactions" – and including both quantitatively 
and qualitatively a significant amount of matching sales – the European Commission ensured a "fair comparison" between the export price and normal value in accordance with 
Articles 2.4 and 2.4.2 of the AD Agreement. The European Union respectfully request the 
Appellate Body to reverse the Panel's conclusion to the contrary. The Panel's finding that the Commission violated Article 2.4.2 of the AD Agreement by not taking into consideration, in 
its dumping determinations, Chinese producers' exports of models that did not match any of 
the models sold by Pooja Forge was based on a legal error in the interpretation and WT/DS397/AB/RW/Add.1 
 
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  application of Article 2.4.2 of the AD Agreement and the Panel's findings in 
paragraphs 7.276 and 8.1(iv) should thus be reversed. 
1.6   The Panel erred when finding that by defining the domestic industry on the basis 
of domestic producers that came forward in response to a notice of initiation which 
stated that only those producers willing to be  included in the injury sample would be 
considered as cooperating, the Commission ac ted inconsistently with Article 4.1 of the 
AD Agreement and consequently with Article 3.1 of the AD Agreement 
46. The European Union submits that the Panel erred when finding that by defining the domestic 
industry on the basis of domestic producers that came forward in response to a notice of initiation which stated that only those producers willing to be included in the injury sample would be considered as cooperating, the Commission acted inconsistently with Article 4.1 of 
the AD agreement and consequently with Article 3.1 of the AD Agreement. In fact, the Panel 
recognised that the Commission implemented the finding of the Appellate Body by including 
all producers that came forward within the deadline. However, its ultimate contrary 
conclusion in paragraphs 7.299 and 8.1(v) is based on an erroneous reading of the Appellate 
Body Report and is not supported by the text  of Article 4.1, and should therefore be 
reversed.  
47. With respect to the original determination, the Appellate Body found that the exclusion from 
the definition of the domestic industry of dome stic producers that indicated that they would 
not be willing to be part of the sample and to be verified constituted a violation of the 
European Union's obligations under Article 4.1 and 3.1 of the AD Agreement.  
48. In the Implementing Regulation, the European  Commission therefore re-examined the file 
and included all previously excluded domestic producers into the definition of the domestic 
industry. Following a review of the Appellate Body's findings the Panel expressly found, as 
argued by the European Union, that the findin g of the Appellate Body related only to the 
exclusion of the domestic producers that came forward within the deadline. The Panel also found that as a matter of fact in the review investigation "[n]one of those [previously 
excluded] producers was excluded from the new definition of domestic industry". However, 
rather than drawing the logical conclusion that the inclusion of such previously excluded producers thus brought the European Union into conformity with the Appellate Body's ruling, as it should have, the Panel considered that the legal reasoning of the Appellate Body 
required something additional of the European Union. This is in error as the problematic 
approach identified by the Appellate Body wa s the exclusion of producers that provided 
relevant information, and not the mere fact of having requested producers to indicate 
whether they would be willing to participate in the sample and cooperate in the 
investigation.  
49. In fact, as a practical matter, every domestic industry determination is based on self-
selection as producers are informed of the initiation of an investigation and are invited to 
make themselves known. There is no obligation to come forward. And any producer that comes forward knows that if it does not accept verification of the information and is thus uncooperative, its information may be disregarded anyway. Thus, it is not realistic to 
suggest that the mere question of willingness to participate in the sample would cause a 
material risk of distortion when it simply raises an issue that any producer is all too well aware of. Finally, no evidence of such a distor tion was provided by China and the conclusion 
of the panel is thus based purely on speculation. That as well constitutes legal error.  
50. Given that the European Union demonstrated that the Implementing Regulation's definition 
of the domestic industry was consistent with its obligations under Article 4.1 of the 
AD Agreement, the Panel's entirely consequentia l finding of violation of Article 3.1 of the 
AD Agreement is also flawed 
51. In sum, the Panel committed legal error when finding that the European Union's domestic 
industry definition was inconsistent with Articles 4.1 and 3.1 of the AD Agreement because 
of a line in the Notice of Initiation that requested producers to inform the authorities of their 
willingness to be included in the sample. The Eu ropean Union requests the Appellate Body to 
reverse the Panel's findings in paragraphs 7.299 and 8.1(v) that the European Union's WT/DS397/AB/RW/Add.1 
 
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  definition of domestic industry was inconsiste nt with Article 4.1 of the AD Agreement and 
that the resulting injury determination was inconsistent with Article 3.1 of the AD Agreement. 
 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX B-2 
EXECUTIVE SUMMARY OF CHINA'S OTHER APPELLANT'S SUBMISSION 
1   INTRODUCTION 
1. The Report issued by the compliance Panel in the case European Communities – Definitive 
Anti-Dumping Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 
by China  contains a number of legal errors and errors of legal interpretation of the provisions of 
the AD Agreement and of the DSU. These errors have led to Panel to erroneous findings and 
conclusions with respect to China's claims under Articles 2.4, 6.1.2 and 6.5.1 of the 
AD Agreement. China requests the Appellate Body to reverse the Panel's findings and conclusions 
and to complete the analysis, with respect to these legal errors and errors of legal interpretation committed by the Panel. 
2   THE PANEL ERRED IN FINDING THAT  THE EUROPEAN UNION DID NOT VIOLATE 
ARTICLE 2.4 OF THE AD AGREEMENT BY REJECTING THE CHINESE PRODUCERS' REQUESTS FOR AN ADJUSTMENT FOR DIFFERENCES IN TAXATION 
2. China submits that the Panel erred in its interpretation and application of Article 2.4 of the 
AD Agreement when it found that the European Union did not violate Article 2.4 by rejecting the Chinese producers' requests for an adju stment for differences in taxation.  
3. First, the Panel erred in finding that the Commission was not required to make an 
adjustment for differences in the taxation of wire rod in India because of the use of the analogue country methodology.  This finding is contrary to Article 2.4 and is not supported by the special 
rules included in China's Accession Protocol. Indeed, Article 2.4 imposes on the investigating 
authorities the obligation to ensure a fair comparison between the normal value and the export 
price, which applies equally in all anti-dumping investigations, including those involving imports from China in which the analog ue country methodology is used .  
4. By finding that the Commission was under no obligation to make an adjustment for 
differences in taxation when the analogue count ry methodology was used, the Panel has confused 
the issue of the determination of the normal valu e and the issue of the comparison of the normal 
value and the export price.  
5. The Panel misunderstood the nature of the adjustment claimed by the Chinese producers by 
considering that it related to a difference in input costs resulting from the difference in the taxation of inputs between India and China while actually China's claim relates to the difference in 
tax treatment between domestic and export sales incorporating the same inputs, namely wire rod. 
Thus, the claim was unrelated to the choice of the analogue country but dealt with the comparability of the domestic and export prices. 
6. Furthermore, the Panel erred in concluding that making adjustments for differences in 
taxation on inputs would undermine the Commission's right to have recourse to the analogue country methodology. The difference in taxation of wire rod results from the non-recognition by 
the European Union of the drawback systems app licable in both China and India and has nothing 
to do with the cost of wire rod itself which is allegedly affected by non-market economy conditions in China. Furthermore, making an adjustment for di fferences in the taxation of inputs, such as wire 
rod, does not prevent the use of data from the analogue country producer, and thus, in no way 
undermines the use of the analogue country methodology. 
7. Second, the Panel erred in its application of Ar ticle 2.4 of the AD Agreement in finding that 
the Chinese producers did not show that the difference in taxation affected price comparability. 
By showing that no import duties on raw ma terials are included in the export price of 
Chinese fasteners, while the domestic price of P ooja Forge's fasteners used for the establishment 
of the normal value included such import du ties, the Chinese producers demonstrated the 
existence of a difference in taxation  that affects price comparability. WT/DS397/AB/RW/Add.1 
 
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  8. In light of the above, China requests the Appe llate Body to reverse the Panel's findings and 
conclusions with respect to China's claim under Article 2.4 of the AD Agreement concerning the adjustments for differences in taxation; and to find that by rejecting the Chinese producers' request the European Union failed to make a fair comparison and thus violated Article 2.4 of the 
AD Agreement. 
3   THE PANEL ERRED IN FINDING THAT  THE EUROPEAN UNION DID NOT VIOLATE 
ARTICLE 2.4 OF THE AD AGREEMEBT BY REJECTING THE CHINESE PRODUCERS' 
REQUESTS FOR ADJUSTMENTS FOR DIFFERENCES WITH REGARD TO "EASIER 
ACCESS TO RAW MATERIALS", "USE OF SELF-GENERATED ELECTRICITY", AND "EFFICIENCY AND PRODUCTIVITY" WH ICH AFFECT PRICE COMPARABILITY 
9. China submits that the Panel erred in its interpretation and application of Article 2.4 of the 
AD Agreement when it found that the European Union did not violate Article 2.4 by rejecting the 
Chinese producers' requests for adjustments for di fferences with regard to "easier access to raw 
materials", "use of self-generated electricity", an d "efficiency and productivi ty" which affected price 
comparability.  
10. First, the Panel erred in finding that the investigating authority is not obliged to make 
adjustments to reflect differences in costs in an investigation where the analogue country 
methodology is used. Such a finding is contrary to Article 2.4 which imposes the obligation to 
ensure a fair comparison also in investigations in which the analogue country methodology is used. By reaching this conclusion the Panel confused two distinct steps (i.e. the use of the analogue country methodology for determining normal value and the making of due allowances for 
differences affecting price comparability between such normal value and export price) and 
effectively established two different standards under Article 2.4. In any event, the differences raised by China were completely unrelated to its non-market economy status and the requested 
adjustments would only have used analogue country cost data and not the data from China.  
11. Second, the Panel erred in its application of Article 2.4 when it found that the Chinese 
producers did not show that the alleged differences in costs affected price comparability. In fact, in 
light of the particular circumstances of the investigation at issue, which involved the use of 
information from an analogue country producer, the Panel should have found that the Chinese requests were properly substantiated and thus, required adjustments under Article 2.4. Furthermore, the Panel misunderstood the requirement of differences "affecting price 
comparability" under Article 2.4. Having acknowledged that the differences in costs factors likely 
will have an impact on prices, the Panel thereafter erroneously concluded that these differences could not justify any adjustment merely because th e normal values of the Chinese companies have 
been based on the data of an analogue country producer.  
12. Third, the Panel failed to make an objectiv e assessment of the facts, as required by 
Article 11 of the DSU, by failing to address all as pects of China's claim and by failing to consider 
the evidence presented by China in its totality . Indeed, the Panel focused exclusively on the 
differences in terms of electricity consumption and examined different pieces of evidence presented by China in isolation from one another. 
13. In light of the above, China requests the Appe llate Body to reverse the Panel's findings and 
conclusions and to find that by rejecting the Chinese producers' requests for adjustments for the 
differences with regard to easier access to raw materials, use of self-generated electricity, and efficiency and productivity the European Union failed to make a fair comparison and thus violated 
Article 2.4 of the AD Agreement. 
4   REVIEW OF THE PANEL'S FINDINGS THAT THE EUROPEAN UNION DID NOT 
VIOLATE ARTICLE 2.4 OF THE AD AGREEMENT BY REJECTING THE CHINESE 
PRODUCERS' REQUESTS FOR ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL 
CHARACTERISTICS 
14. China submits that if the Appellate Body were to reverse the Panel's findings under 
Article 2.4 of the AD Agreement that the European Union failed to provide the Chinese producers 
with information regarding the characteristics of Pooja Forge's products that were used in 
determining normal values, the Appellate Body should reverse the Panel's findings that the WT/DS397/AB/RW/Add.1 
 
- B-13 - 
 
  European Union did not violate Article 2.4 by rejecting the Chinese producers' requests for 
adjustment for differences in physical characteristics both included and not included in the original PCNs and find that, in doing so, the European Union failed to make a fair comparison and violated Article 2.4. 
15. First, the Panel erred in assessing China's claim with respect to differences in physical 
characteristics included in the original PCNs (c oating and chrome, diameter and length and types 
of fasteners) and, more specifically, failed to examine whether the Commission acted in an 
unbiased and even-handed manner because it based its decision to reject China's requests on an 
improper factual basis. 
16. Second, the Panel erred in assessing China's claim with respect to differences in physical 
characteristics not included in the original PCNs. By using all the information available to them, the 
Chinese producers made constructive requests for adjustments which were rejected by the 
European Union without any further analysis. The European Union thereby failed to comply with its requirements under Article 2.4.  
5   THE PANEL ERRED IN FINDING THAT  THE EUROPEAN UNION DID NOT VIOLATE 
ARTICLE 6.1.2 OF THE AD AGREEMENT BY NOT MAKING THE INFORMATION ON THE LIST AND CHARACTERISTICS OF POOJA FORGE'S PRODUCTS AVAILABLE 
PROMPTLY TO THE CHINESE PRODUCERS 
17. China submits that the Panel erred in its interpre tation and application of Article 6.1.2 of the 
AD Agreement when it found that the European Union did not violate Article 6.1.2 by not making the information on the list and characteristics of Pooja Forge's products available promptly to the 
Chinese producers. 
18. First, the Panel erred in its interpretation of the term "interested parties" in Article 6.11 in 
considering that the status of "interested parties" is dependent on a decision of the investigating 
authorities which must appear in the investigation record and in stating that such decision is made 
at the request of the party concerned. In the pr esent case, the fact that the Commission chose 
Pooja Forge as the analogue country producer and used its information to establish the normal 
values of the Chinese producers shows that the Commission decided to treat Pooja Forge as an 
interested party. 
19. Second, the Panel erred in its interpretation and application of Article 6.1.2 and, in 
particular, of its scope, in concluding that the obligation in Article 6.1.2 only applies to those 
parties which are "interested parties" under Articl e 6.11. The Panel should have examined whether 
Pooja Forge should not be assimilated to "intereste d parties" presenting evidence for the purposes 
of Article 6.1.2. Given the key role of Pooja Forge in the investigation at issue and the purpose of 
Article 6.1.2, Pooja Forge should be assimilated to  an "interested party" presenting evidence under 
Article 6.1.2 and thus, the information provided by this company should come within the scope of Article 6.1.2. 
20. Third, the Panel erred in its interpretation of the Appellate Body's findings in the original 
dispute. Indeed, the Panel's interpretation fails to reconcile the finding that Article 6.5.1 applies to 
Pooja Forge with the fact that this provision expressly refers to the confidential information provided by an "interested party". China subm its that the Appellate Body's finding that 
Article 6.5.1 applies to Pooja Forge despite the fa ct that Article 6.5.1 uses the term "interested 
parties" supports the conclusion that Pooja Fo rge should also be covered by Article 6.1.2. 
21. In light of the above, China requests the Appe llate Body to reverse the Panel's findings and 
to find that the European Union violated Article 6.1.2 of the AD Agreement by failing to make the 
information on the list and characteristics of P ooja Forge's products available promptly to the 
Chinese producers. 
6   REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO CHINA'S CLAIM UNDER 
ARTICLE 6.5.1 OF THE AD AGREEMENT 
22. China submits that if the Appellate Body were to reverse the Panel's findings that the 
European Union acted inconsistently with Article 6.5 of the AD Agreement by treating as WT/DS397/AB/RW/Add.1 
 
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  confidential information submitted by Pooja Forge regarding the list and characteristics of its 
products, China requests the Appellate Body to complete the analysis of China's claim under 
Article 6.5.1 for which the Panel did not make findings. 
23. China requests the Appellate Body to find that  the European Union violated Article 6.5.1 of 
the AD Agreement because it failed to ensure that Pooja Forge provides a non-confidential 
summary of the information regarding its products and/or failed to ensure that Pooja Forge establishes the existence of exceptional circumst ances and provides a statement of reasons why, 
in such exceptional circumstances, summarization was not possible. 
 WT/DS397/AB/RW/Add.1 
 
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  ANNEX B-3 
EXECUTIVE SUMMARY OF CHINA'S APPELLEE'S SUBMISSION 
1   INTRODUCTION 
1. In its Appellant Submission, the European Union appeals and requests the Appellate Body to 
reverse a number of findings and conclusions of the Panel. In the first place, the European Union 
takes issue with the scope of the Panel's jurisdiction and appeals the Panel's findings that China's claims under Articles 6.5, 6.4, 6.2, 6.1.2, 2.4, 4.1 and 3.1 of the AD Agreement fell within its 
terms of reference in accordance with Article 21.5 of the DSU. Furthermore, the European Union 
appeals the Panel's findings on the merits under Articles 6.5, 6.2, 6.4, 2.4, 2.4.2, 4.1 and 3.1 of the AD Agreement. China submits that all claims  of the European Union are without merit and 
therefore requests the Appellate Body to reject  the European Union's appeal in its entirety. 
2   THE PANEL CORRECTLY FOUND THAT CHINA'S CLAIMS UNDER ARTICLES 6.5, 6.4, 
6.2, 6.1.2, 2.4, 4.1 AND 3.1 OF THE AD AGREEMENT FELL WITHIN ITS TERMS OF 
REFERENCE 
2. China submits that, contrary to the European Union's arguments, the Panel correctly found 
that China's claims under Articles 6.5, 6.4, 6.2, 6.1.2, 2.4, 4.1 and 3.1 of the AD Agreement were within its terms of reference. These findings ar e consistent with a correct interpretation and 
application of Article 21.5 of the DSU in light of  the existing case-law of the Appellate Body. 
Furthermore, in reaching its conclusions the Panel acted in accordance with the requirements set out in Article 11 of the DSU. 
2.1   China's claim under Article 6.5 of the AD Agreement 
3. The Panel correctly found that China's claim under Article 6.5 fell within its terms of 
reference. All claims of error raised in this re gard by the European Union must be rejected.  
4. First, while the European Union essentially claims that the Panel erroneously assessed the 
facts in the original and compliance proceedings regarding the type of information that was the 
object of the claims, it has not raised Article 11 of the DSU and thus the Appellate Body should 
simply reject its claim.  
5. Second, and in any event, the Panel correctly concluded that the claims raised by China in 
the original and compliance proceedings took issue "with different types of information" and consequently that the object of the claim under Ar ticles 6.5 and 6.5.1 presented in the original and 
compliance proceedings was not the same. In that regard, China notes that the European Union 
distorts the scope of China's claims under Article 6.5 in the original and compliance proceedings 
and disregards the important fact that the object of China's claim in the original proceedings was limited to Pooja Forge's questionnaire response while the information at issue in the compliance 
proceedings was not part of that questionnaire response.  
6. Third, the Panel did not err when relying on the fact that the issue of the confidentiality and 
non-disclosure of information regarding the list and characteristics of Pooja Forge's products had 
been subject to extensive debate. 
7. Fourth, the Panel correctly followed the guidan ce of the Appellate Body's findings in EC – 
Bed Linen (Article 21.5 – India) . Indeed, the Panel correctly started its examination by considering 
whether the claim raised in the compliance procee dings was the same as the claim raised in the 
context of the original proceedings. Having found that the claims were not the same, the Panel 
correctly found that China's claim under Article 6.5 and 6.5.1 fell within its terms of reference. WT/DS397/AB/RW/Add.1 
 
- B-16 - 
 
  2.2   China's claim under Articles 6.4 and 6.2 of the AD Agreement 
8. The Panel correctly found that China's claim under Articles 6.4 and 6.2 fell within its terms of 
reference.  
9. First, contrary to the European Union's ar guments, the Panel properly examined and 
concluded that China's claim under Articles 6.4 and 6.2 could not have been brought in the original 
proceedings. The European Union's argument that the Panel erred in considering that the information at issue was new is irrelevant since whether the list of products and the information on 
Pooja Forge's products has been submitted duri ng the original investigation or the review 
investigation was irrelevant to the Panel's examination as to whether China's claim under Articles 6.4 and 6.2 was a claim that could have  been brought by China during the original 
proceedings. In any case, at least part of the information concerned has been provided by 
Pooja Forge during the review investigation. Furt hermore, the European Union erroneously argues 
that requests made by the Chinese producers during the original and review investigations related to the same information. Finally, the European Union fails to take into account that this claim 
relates to the violation of a procedural obligation.  
10. Second, the European Union is incorrect in arguing that the Panel failed to follow the 
guidance set out by the Appellate Body in US – Zeroing (Article 21.5 – EC) . In line with the latter 
dispute, the Panel correctly concluded that China's claim under Articles 6.4 and 6.2 was a claim 
that it could not have brought in the original proceedings. As a result, the Panel was not required to examine whether the claim challenged an unchanged aspect of the original measure which has become an integral part of the measure taken to comply. However, if the Appellate Body were to 
consider these issues, China submits that it should conclude that the aspect being challenged by 
this claim is an aspect which has changed when compared to the original investigation and furthermore that it is an aspect which is no t separable from the measure taken to comply. 
2.3   China's claim under Article 6.1.2 of the AD Agreement 
11. The Panel correctly found that China's claim under Article 6.1.2 fell within its terms of 
reference. Contrary to the European Union' s argument, the Panel properly examined and 
concluded that China's claim under Article 6.1.2 could not have been brought during the original 
proceedings. The fact that the Chinese producer s only became aware of the existence of the 
information concerning Pooja Forge's products during the review investigation is essential as it proves that China could not have brought a claim under Article 6.1.2 in the original proceedings. 
Furthermore, this aspect is not only a changed aspect but also an aspect which is not separable 
from the measure taken to comply. Finally, the European Union's allegation of violation of Article 11 of the DSU is without merit. Ind eed, Exhibit EU-6, referred to by the Panel, 
demonstrates that Pooja Forge provided information on coating during the review investigation. 
2.4   China's claims under Article 2.4 of the AD Agreement 12. The Panel correctly found that China's claims under Article 2.4 fell within its terms of 
reference. The European Union takes issue with tw o aspects of China's claims under Article 2.4. 
First, since China does not appeal the Panel's findings with regard to its claim under Article 2.4 with respect to the special/standard distinction,  China understands that the European Union will 
withdraw its claim, and thus China does not addr ess this claim in the present submission. Second, 
with respect to the claim concerning adjustments for differences in physical characteristics not 
included in the original PCNs, China submits that since any such differences were not discussed in the original investigation China could not have made a claim under Article 2.4 during the original 
proceedings arguing that the Commission should have made due allowances for such differences. 
Furthermore, the Chinese producers were precluded from making such requests in the original investigation since the European Union did not clearly indicate the basis on which the price 
comparison was going to be made until very late in the original investigation. 
2.5   China's claim under Articles 4.1 and 3.1 of the AD Agreement 13. The Panel correctly found that China's claim under Articles 4.1 and 3.1 fell within its terms of 
reference. In this regard, China submits that the Panel examined the relationship between China's 
claim in the compliance proceedings and the original DSB recommendations and rulings and WT/DS397/AB/RW/Add.1 
 
- B-17 - 
 
  correctly concluded that China's claim goes to the very heart of a compliance panel's task under 
Article 21.5 of the DSU. Furthermore, contrary to the European Union's arguments, the Panel 
correctly concluded that the aspect at issue became an integral part of the measure taken to comply. 
14. In light of the foregoing, China requests the Appellate Body to reject the European Union's 
appeal and to uphold the Panel's finding that China's claims under Articles 6.5, 6.4, 6.2, 6.1.2, 2.4, 4.1 and 3.1 of the AD Agreement fell within the Panel's terms of reference. 
3   THE PANEL CORRECTLY FOUND THAT THE EUROPEAN UNION VIOLATED 
ARTICLE 6.5 OF THE AD AGREEMENT BY  TREATING AS CO NFIDENTIAL THE 
INFORMATION SUBMITTED BY POOJA FORGE REGARDING THE LIST AND CHARACTERISTICS OF ITS PRODUCTS 
15. China submits that the Panel correctly interpreted and applied Article 6.5 of the 
AD Agreement to the fact of this case.  
16. First, contrary to the European Union's allegation, the Panel did not fail to examine the 
reasons provided by Pooja Forge to request confid ential treatment in their proper context. More 
specifically, the Panel did not narrow its analysis down to the fact that the email of 3 July 2012 was placed in the confidential file of the review  investigation. Instead, the Panel examined this 
email in detail and found that it did not support the argument that Pooja Forge provided good 
cause to justify confidential treatment of its information. At the same time, the Panel correctly found that placing the email on the confidential file rather than the public one deprived the Chinese producers of the opportunity to know of this argument made by Pooja Forge. The Panel 
also correctly found that Pooja Forge's request was merely a "bald assertion" which was 
insufficient to justify confidential treatment of Pooja Forge's information. 
17. Second, the Panel correctly found that the European Commission never performed an 
objective assessment on whether the information provided by Pooja Forge was confidential by 
nature or whether good cause had been shown to ju stify its confidential treatment. Contrary to the 
European Union's argument, the Panel made an objective assessment of the facts as required by 
Article 11 of the DSU. There is simply no evid ence on the record showing that the Commission 
objectively assessed the request for confidential  treatment of Pooja Forge. Furthermore, the 
circumstances invoked by the European Union are simply irrelevant. The Panel properly discussed and disregarded all such circumstances.  
18. Third, the Panel correctly found that the European Union's contention that the information at 
issue as a whole was confidential was logically inconsistent with the European Union disclosing part of that information. To the extent that specific bits of information can be disclosed under 
Article 6.4, the treatment of such information as co nfidential is inconsistent with Article 6.5. Thus, 
it is correct that the European Union's argument that the European Commission disclosed certain information about the characteristics of Pooja Forge's products undermined the European Union's 
contention that the information at issue was confidential and that good cause was shown to keep it 
confidential. 
19. Fourth, the Panel did not err in treating the information relating to Pooja Forge's products as 
not confidential. The Panel focused its analysis under Article 6.5 on whether "good cause" had 
been shown by Pooja Forge and whether the Comm ission objectively assessed any confidentiality 
request by Pooja Forge. The Panel rightly found that no "good cause" had been shown and that, in any case, the Commission did not make any objective assessment. On that basis, the Panel rightly 
considered that information as not requiring confidential treatment within the meaning of 
Article 6.5 of the AD Agreement. Indeed, without good cause being shown information cannot be treated as confidential under Article 6.5, regard less of whether such information is by nature 
confidential or not. In any event, China has ex plained that contrary to the European Union's 
arguments the information regarding the list and characteristics of Pooja Forge's products was not confidential by nature. 
20. In light of the above, China requests the A ppellate Body to reject the European Union's 
appeal and to uphold the Panel's finding that the European Union violated Article 6.5 of the WT/DS397/AB/RW/Add.1 
 
- B-18 - 
 
  AD Agreement by treating as confidential the in formation submitted by Pooja Forge regarding the 
list and characteristics of its products. 
4   THE PANEL CORRECTLY FOUND THAT THE EUROPEAN UNION VIOLATED 
ARTICLES 6.4 AND 6.2 OF THE AD AGREEMENT BY FAILING TO PROVIDE THE 
CHINESE PRODUCERS WITH TIMELY OPPORTUNITIES TO SEE THE INFORMATION 
ON THE LIST AND CHARACTERISTICS OF POOJA FORGE'S PRODUCTS 
21. China submits that the appeal brought by the European Union should be rejected by the 
Appellate Body because the Panel appropriately inte rpreted and applied Articles 6.4 and 6.2 of the 
AD Agreement to the facts of the case.  
22. With respect to Article 6.4, and contrary to  the European Union's contention, the Panel 
correctly found that all three conditions set out in this provision were met in the present case. 
First, the Panel correctly found that the information requested by the Chinese producers was 
relevant to the presentation of their cases. Indeed, the repeated requests made by the Chinese producers indicated why access to such information was relevant. Furthermore, the Panel correctly 
examined the type and nature of the informat ion at issue and rightly concluded that such 
information concerned the determination of the normal values and ultimately the dumping margins for the Chinese producers. Second, the Panel correctly found that the information requested by the 
Chinese producers was not confidential as defined in Article 6.5. Third, the Panel correctly found 
that the information at issue was used by the Commission in the review investigation. In addition, contrary to what the European Union argues, providing information through disclosure documents before making final determination does not meet the requirement of "timely opportunities" under 
Article 6.4. In any case, China notes that the disclosure documents invoked by the European Union 
did not contain the information at issue. 
23. With respect to Article 6.2, China submits that the Panel did not commit any errors and 
correctly found that the European Union violated this provision. Indeed, by depriving the Chinese 
producers from having access to see the relevant information, in violation of Article 6.4, the Commission prevented the Chinese producers from having a full opportunity to defend their 
interests and thus also violated Article 6.2. Furthermore, even if the Appellate Body were to 
reverse the Panel's findings under Article 6.4, it should nonetheless uphold the Panel's findings under Article 6.2. Indeed, the fact that without the information at issue the Chinese producers were not in a position to make relevant requests for adjustment in order to ensure a fair 
comparison under Article 2.4 demonstrates that this information was essential for the defense of 
the Chinese producers' interests. 
24. In light of the above, China requests the A ppellate Body to reject the European Union's 
appeal and to uphold the Panel's finding that  the European Union violated Article 6.4 and 
Article 6.2 of the AD Agreement by failing to  provide the Chinese producers with timely 
opportunities to see the information on the list and characteristics of Pooja Forge's products. 
5   THE PANEL CORRECTLY FOUND THAT THE COMMISSION VIOLATED ARTICLE 2.4 OF 
THE AD AGREEMENT BY FAILING TO PROVIDE THE CHINESE PRODUCERS WITH INFORMATION REGARDING THE CHARACTERISTICS OF POOJA FORGE'S PRODUCTS THAT WERE USED IN DETERMINING NORM AL VALUES IN THE INVESTIGATION AT 
ISSUE 
25. China submits that, contrary to the European Union's allegation, the Panel correctly found 
that the European Union violated Article 2.4 of the AD Agreement. 
26. First, the Panel correctly concluded that the European Union failed to implement the 
Appellate Body's ruling and did not comply wi th the procedural requirement under the last 
sentence of Article 2.4 of the AD Agreement. Apart from providing the information about the 
product groups used for the purpose of price comparison – which is the minimum required from 
the investigating authorities – the European Union was also required to inform the interested parties about the specific products with regard to which the normal value was determined. Since it failed to do so, the Panel was correct to conclude that it did not comply with the last sentence of 
Article 2.4 of the AD Agreement. WT/DS397/AB/RW/Add.1 
 
- B-19 - 
 
  27. Second, contrary to the European Union's arguments, the Panel did not err when 
interpreting the scope of the procedural requirement under the last sentence of Article 2.4 as requiring the investigating authorities to provide information regarding the characteristics of the products used in determining normal values, sinc e the purpose is to ensure that the interested 
parties are in a position to make informed decisions on whether to request adjustments under 
Article 2.4. Furthermore, the Panel did not err in assessing the value of the company specific disclosures, which did not provide any information on the characteristics of the specific products of 
Pooja Forge, on the basis of wh ich normal value was determined. 
28. Third, since the disclosure documents provid ed by the European Union did not include 
information on the characteristics of Pooja Forge's products, necessary for the Chinese producers to be in a position to request adjustments, the Panel was correct to consider that they did not 
satisfy the requirements under Article 2.4 of the AD Agreement. 
29. Fourth, the Panel correctly interpreted the obligation under Article 2.4 in the context of an 
investigation involving the use of an analogue country methodology. Indeed, when the normal 
value is established on the basis of data of an analogue country producer, not known to the foreign 
exporter under investigation, the investigating authority is required to provide information concerning the products used in the normal value determination in order to ensure that the 
exporters are in a position to meaningfully request relevant adjustments. 
30. Fifth, China submits that the Panel correctly assessed the relationship between the 
confidential treatment of certain information and the obligations arising under Article 2.4 of the 
AD Agreement. In any event, the Appellate Body  should uphold the Panel's findings that the 
European Union violated Article 2.4 because it failed to provide the Chinese producers with the 
information on the characteristics of Pooja Forge's products that were used in determining the normal value. 
31. China also submits that the European Union errs when considering that it entered into an 
active dialogue as required by Article 2.4 of th e AD Agreement. In fact, there can be simply no 
"dialogue" on the need of adjustments if the foreign producers are not sufficiently informed about 
the products used for determining their normal values.  
32. In light of the above, China requests the A ppellate Body to reject the European Union's 
appeal and uphold the Panel's findings that th e European Union violated Article 2.4 of the 
AD Agreement by failing to provide the Chin ese producers with information regarding the 
characteristics of Pooja Forge's products that were used in determining normal values in the 
investigation at issue. 
6   THE PANEL CORRECTLY FOUND THAT THE COMMISSION VIOLATED ARTICLE 2.4.2 
OF THE AD AGREEMENT BY NOT TAKING INTO CONSIDERATION, IN ITS DUMPING 
DETERMINATIONS, CHINESE PRODUCERS' EXPORTS OF MODELS THAT DID NOT MATCH ANY OF THE MODELS SOLD BY POOJA FORGE 
33. China submits that the European Union's appeal of the Panel's findings under Article 2.4.2 
should be rejected.  
34. First, contrary to the European Union's allegation, the Panel's interpretation of the term "all 
comparable export transactions" in Article 2.4.2 is  correct and consistent with the previous case-
law, the definition of dumping in Article 2.1 of the AD Agreement and the context provided by the 
"fair comparison" obligation in Article 2.4. Accordin gly, all export transactio ns of different types of 
fasteners falling within the scope of like product are comparable and should be taken into account 
in the establishment of the dumping margin. 
35. Second, the Panel correctly rejected the European Union's arguments. The Panel did not 
confuse the situation addressed in previous zeroing cases with the allegedly "neutral" methodology 
adopted by the European Union. While zeroing deals with different stage of the 
WA-WA methodology, the findings in zeroing cases are relevant for the present dispute since they provide a comprehensive interpretation of the term "all comparable export transactions" in Article 2.4.2 of the AD Agreement. Furthermore, the use of multiple averaging does not allow for 
the exclusion of certain exported models that do not have a perfect matching on the normal value WT/DS397/AB/RW/Add.1 
 
- B-20 - 
 
  side. Such conclusion is also not supported by th e possibility of sampling foreseen by Article 6.10 
or the Panel's findings concerning the issue of timing of transactions in US – Stainless Steel 
(Korea) . Finally, the alleged representativeness of the export sales included in the comparison is 
irrelevant to the legal obligation under Article 2.4.2, i.e. to take into account all comparable export 
transactions for calculating dumping margin. In any event, the European Union's argument, illustrated by a chart, is factually incorrect. 
36. Third, the European Union's characterization of its methodology as "neutral" is misleading. 
The European Union took into account only those Chinese producers' exports of fasteners for which 
there was a matching model sold by Pooja Forge. The other export transactions were simply ignored. As a result, the comparison made by the European Union resulted in a presumption of dumping for those export transactions that we re not used in the dumping determination. 
Therefore, it is clear that such methodology cannot be described as "neutral".  
37. In light of the above, China requests the A ppellate Body to reject the European Union's 
appeal and to uphold the Panel's finding that th e European Union violated Article 2.4.2 of the 
AD Agreement by not taking into consideration, in its dumping determinations, Chinese producers' 
exports of models that did not match any of the models sold by Pooja Forge. 
7   THE PANEL CORRECTLY FOUND THAT BY DEFINING THE DOMESTIC INDUSTRY ON 
THE BASIS OF DOMESTIC PRODUCERS THAT CAME FORWARD IN RESPONSE TO A 
NOTICE OF INITIATION WHICH STATED THAT ONLY THOSE PRODUCERS WILLING 
TO BE INCLUDED IN THE INJURY SAMPLE WOULD BE CONSIDERED AS COOPERATING, THE COMMISSION ACTED IN CONSISTENTLY WITH ARTICLE 4.1 OF 
THE AD AGREEMENT AND CONSEQUENTLY WITH ARTICLE 3.1 OF THE AD 
AGREEMENT 
38. China submits that contrary to the European Union's allegation the Panel correctly 
interpreted and applied Article 4.1 of the AD Agreement.  
39. First, the Panel correctly found that the European Union acted inconsistently with Article 4.1 
since it failed to eliminate the material risk of distortion from the way it defined its domestic 
industry. Second, the Panel correctly read the Appellate Body's findings in the original dispute as 
taking issue with the link between the producer's willingness to be included in the sample and the definition of the domestic industry and not si mply the actual exclusion of certain domestic 
producers. Third, the Panel's approach was reasonable, supported by the Appellate Body's findings 
and consistent with the text of Article 4.1 of th e AD Agreement, which requires the investigating 
authority to ensure that the process of defining the domestic industry does not give rise to a material risk of distortion. 
40. Furthermore, contrary to what the European Union claims, the Panel correctly concluded 
that due to a wrongly-defined domestic industry , the European Union's injury determination was 
inconsistent with Article 3.1 of the AD Agreement. 
41. In light of the above, China requests the A ppellate Body to reject the European Union's 
appeal and to uphold the Panel's findings that the European Union's definition of domestic industry was inconsistent with Article 4.1 of the AD Agreement and that the resulting injury determination was inconsistent with Article 3.1 of the AD Agreement. 
 
 WT/DS397/AB/RW/Add.1 
 
- B-21 - 
 
  ANNEX B-4 
EXECUTIVE SUMMARY OF THE EUROPEAN  UNION'S APPELLEE'S SUBMISSION 
1. In its Other Appellant Submission, China mischaracterises the Panel's findings and 
effectively tries to re-litigate the factual and evidentiary issues that were adequately 
addressed by the Panel in its findings.  
2. In addition, and despite its repeated statements to the contrary, it is clear that China 
is in fact challenging the appropriate use of the analogue country methodology by the 
European Union. However, the Commission resorted to the prices of the Indian 
producer Pooja Forge to establish the normal value in line with China's Accession Protocol. China's claims as developed before the Panel and as repeated in its Other Appellant Submission, effectively take issue with the European Union's Non Market 
Economy (NME) methodology and seeks to change the normal value determination so 
as to have it reflect the Chinese producers' distorted market conditions. According to China, the prices of the Indian producer may be used as long as they are then 
changed to reflect conditions in the Chinese market and are adapted to the specifics of 
the Chinese producers on input costs, taxes, access to raw materials, etc. No matter how many times China states that it is not challenging the analogue country 
methodology and asserts that the Panel erred when viewing its claims for adjustments 
as related to the analogue country approach, this is in essence what its entire case under Article 2.4 of the AD Agreement turns on.  
3. This is not to say that Article 2.4 does not apply when a NME methodology is used. 
That is not the issue. The European Union itself regularly makes adjustments for 
differences affecting price comparability between product sold by the analogue country producer on the home market and products exported by the Chinese 
producer. In fact, the Commission did so even in the context of the fasteners 
investigation for differences relating to quality control. It made this adjustment because the fact that the Indian producer undertakes additional quality control 
involved an additional step in the production process of the Indian analogue country 
producer which is not part of the Chinese producers' process for export sales. Clearly, the fact that an NME methodology is used does not mean that Article 2.4 no longer applies. China's attempt at casting this debate as an all-or-nothing, black-and-white 
debate about the relevance of making adjustments and due allowances for differences 
affecting price comparability in the context of NME situations is a hoax. The European Union did not argue, and the Panel did not find that as soon as an NME methodology 
is used, Article 2.4 of the AD Agreement no longer applies and no adjustments must 
ever be made to reflect differences  affecting price comparability.  
4. China's three claims based on the Panel's rejection of China's adjustment claims under 
Article 2.4 of the AD Agreement are in e rror and must be rejected. China's claims 
under Article 11 of the DSU should equally be dismissed. 
5. China's claims of error made by the Panel with respect to the interpretation and 
application of Article 6.1.2 of the AD Agreement are also without merit. China is 
seeking to read obligations in a provision by forcing its text and the rationale of the 
other provisions of the AD Agreement. 
6. Finally, China's attempt to reopen the debate regarding its claim under Article 6.5.1 of 
the AD Agreement should be rejected, since there are no factual findings or 
undisputed facts on the record for the A ppellate Body to complete the analysis. 
 
_______________ 
 WT/DS397/AB/RW/Add.1 
 
- C-1 - 
 
  ANNEX C 
ARGUMENTS OF THE THIRD PARTICIPANTS 
Contents Page 
Annex C-1 Executive summary of Japan's third participant's submission C-2 
Annex C-2 Executive summary of the United States' third participant's submission C-3 
 
 WT/DS397/AB/RW/Add.1 
 
- C-2 - 
 
  ANNEX C-1 
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTICIPANT'S SUBMISSION 
A. The proper Treatment of Confidential Information  
1. Under Article 6.5, information is treated as "confidential" only when (1) the information is 
either "by nature confidential" or it was "provided on a confidential basis"; and (2) "good cause" is 
shown. 
2. Specific facts must support such "good cause", demonstrating that avoidance of the risk of a 
potential consequence is "important enough" to warrant non-disclosure of the information. The 
investigating authority thus must make an objective assessment of whether "good cause" for confidential treatment of information has been demonstrated. 
3. Factual information showing "good cause" must be contained in the investigation record to 
permit investigating authorities to perform an objective assessment of "good cause". Although 
there may be situations where the basis for "good cause" is itself confidential, the submitting party must nonetheless satisfy summarization obligations under Article 6.5.1. 
B. Scope of the "Domestic Industry"  
4. The Appellate Body confirmed a positive relati onship between the proportion of the total 
domestic production and possibility of a material risk of distortion.  
5. There remains a legitimate concern that the process by which the EU gathered its 
questionnaires created an incentive for self-selecti on, leaving a material risk of distortion. Japan 
believes that the Appellate Body observed two ty pes of excluded parties: parties who excluded 
themselves at the outset due to self-selection bi as, and parties that submitted responses that the 
EU subsequently excluded. Since the EU made no changes to the process by which questionnaires 
were gathered, the incentive for self-selection among the parties initially submitting questionnaires remains. 
6. Japan considers that no procedure is necessarily permissible. The investigating authority, 
administering a neutral process, must ensure the pr oportion of the domestic industry is adequately 
represented and material risk of distortion is eliminated.  
7. The EU's definition of "domestic industry" and the resulting injury determination did not 
constitute an "objective examination" of this i ssue pursuant to Article 3.1 in conjunction with 
Article 4.1. 
 
 WT/DS397/AB/RW/Add.1 
 
- C-3 - 
 
  ANNEX C-2 
EXECUTIVE SUMMARY OF THE UNITED STATES' THIRD PARTICIPANT'S SUBMISSION 
1. A basic tenet of the AD Agreement, as reflected in various Article 6 provisions, is that parties 
to an investigation must be given a full and fair opportunity to see relevant information and defend 
their interests. At the same time, protection of confidential information is essential to the 
appropriate functioning of an antidumping procee ding. Various aspects of those transparency and 
confidentiality requirements are being challenged before the Appellate Body. 
2. The EU appealed the Panel's interpretation of Article 6.5. The Panel erred in its interpretation 
of Article 6.5 because that provision does not provide that an objective assessment for good cause requires that the investigating authority specifically explain its conclusions as to why good cause has been demonstrated.  
3. The Panel also reached a conclusion as to Article 6.5.1. Here, the Panel correctly found that 
obligations of Article 6.5.1 apply only with respect to information submitted by entities explicitly defined as "interested parties" at 6.11 of the AD Agreement. 
4. The EU has also appealed the Panel's inte rpretation of Articles 6.2 and 6.4. The 
United States considers that the Panel was correct to generally discount the EU's assessment that certain information sought by China was "irrelevant" to the presentation of the Chinese producers' 
cases because the issue of relevancy, for purposes of Article 6.4, is to be determined from the 
perspective of the interested parties, not the investigating authority. The Panel also correctly rejected the EU's argument that information is "use d" within the meaning of Article 6.4, only if the 
information is used in the final methodology selected by the authority for calculating the margin of 
dumping.  
5. Also at issue is the Panel's interpretation of  Article 6.1.2, which provides that evidence 
submitted by one "interested party" must be made available to other interested parties. The Panel 
correctly found this obligation applies only with respect those entities explicitly defined as 
"interested parties" by Article 6.11 of the AD Agreement.  
6. The Panel also made findings with respect to Article 2.4. While Article 2.4 generally requires 
that an investigating authority make adjustments for differences that affect price comparability, 
the United States agrees with the Panel's finding that an investigating authority is not required to make adjustments that reflect distorted production costs and pricing in non-market economies.  
7. The EU appealed the Panel's interpretation of Article 2.4.2. The United States agrees with 
the Panel's finding that the Commission could not rely on 2.4.2 to justify its decision to simply 
ignore certain Chinese export transactions on grounds that they do not match any of the models 
sold by in the analogue market selected by the Commission. The United States notes the 
AD Agreement explicitly provides for situations where there are mismatches in product types on 
the export and normal value sides. Article 2.4 provides for an investigating authority to take non-matching models into account by making "necessary adjustments to eliminate" the elements "that 
affect price comparability." Article 2.2 provides that an investigating authority may construct the 
export price on the basis of costs of production in  the country of origin plus a reasonable amount 
for administrative, selling and general costs and for profits. 
 
__________