WT/DS479/ R 
 
27 January  2017 
(17-0531) Page: 1/109 
  Original: English  
 
  RUSSIA - ANTI -DUMPING DUTIES ON LI GHT COMMERCIAL VEHIC LES 
FROM GERMANY AND ITA LY  
REPORT OF THE PANEL  
BCI deleted , as indicated  [***]  
 WT/DS479/ R 
 
- 2 - 
 
  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  11 
1.1   Complaint by the European Union  ................................ ................................ ...............  11 
1.2   Panel establishment and composition  ................................ ................................ ..........  11 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 11 
1.3.1   General  ................................ ................................ ................................ ................  11 
1.3.2   Preliminary ruling  ................................ ................................ ................................ .. 12 
2   FACTUAL ASPECTS  ................................ ................................ ................................ ..... 12 
2.1   The measures at issue  ................................ ................................ ...............................  12 
3   PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  ................................  12 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  13 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  13 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 14 
6.1   Introduction  ................................ ................................ ................................ .............  14 
6.2   European Union 's requests for changes to the Interim Report  ................................ ..........  14 
6.2.1   Paragraph 1.6  ................................ ................................ ................................ ....... 14 
6.2.2   Paragraph 7.4, subparagraph s (ii) and  (iii) ................................ ................................  14 
6.2.3   Footnote 45 to paragraph 7.8  ................................ ................................ ..................  14 
6.2.4   Footnote 63 to paragraph 7.12  ................................ ................................ ................  14 
6.2.5   Paragraph 7.14, subparagraphs (a ), (b), and (c)  ................................ ........................  14 
6.2.6   Footnote 72 to paragraph 7.14  ................................ ................................ ................  15 
6.2.7   Paragraphs 7.16 and 7.18  ................................ ................................ .......................  15 
6.2.8   Paragraph 7.26 (as well as the text in paragraphs 7.14 and 7.20, and footnote 79)  .........  16 
6.2.9   Footnote 105 to paragraph 7.31(d)  ................................ ................................ ..........  16 
6.2.10    Footnote 157 to paragraph 7.63  ................................ ................................ .............  16 
6.2.11    Last sentence of paragraph 7.81  ................................ ................................ ............  16 
6.2.12   Footnote 225 to paragraph 7.116  ................................ ................................ ...........  16 
6.2.13    Paragraph 7.164  ................................ ................................ ................................ .. 16 
6.2.14    Paragraph 7.139  ................................ ................................ ................................ .. 17 
6.2.15    Paragraph 7.207  ................................ ................................ ................................ .. 17 
6.3   Russian Federation's  requests for changes to the Interim Report  ................................ ..... 17 
6.3.1   Paragraph  7.5 ................................ ................................ ................................ ....... 17 
6.3.2   Footnote 73  ................................ ................................ ................................ ..........  17 
6.3.3   Paragraph 7.19 and Footnote 78  ................................ ................................ ..............  17 
6.3.4   Paragraphs 7.19 and 7.66, and section 7.4.2.2  ................................ ..........................  18 
6.3.5   Paragraph 7.119  ................................ ................................ ................................ .... 18 
6.3.6   Parag raph 7. 160 ................................ ................................ ................................ .... 18 
6.3.7   Paragraph 7. 163 ................................ ................................ ................................ .... 18 
6.3.8   Paragraph 7.237  ................................ ................................ ................................ .... 19 WT/DS479/ R 
 
- 3 - 
 
  6.3.9   Paragraphs 7.244 and 7.245  ................................ ................................ ...................  19 
6.3.10    Paragraph 7.267  ................................ ................................ ................................ .. 19 
6.3.11    Paragraph 7.268  ................................ ................................ ................................ .. 19 
6.3.12    Paragraphs 7.249 and 7.269 -7.271 ................................ ................................ .........  19 
6.3.13    Paragraph 7.272  ................................ ................................ ................................ .. 20 
6.3.14    Paragraph 24 8 and Table 12  ................................ ................................ ..................  20 
7   FINDINGS  ................................ ................................ ................................ .................  20 
7.1   General principles regarding treaty interpretation, standard of review, and burden of 
proof ................................ ................................ ................................ ..............................  20 
7.1.1   Treaty interpretation  ................................ ................................ ..............................  20 
7.1.2   Standard of review  ................................ ................................ ................................ . 20 
7.1.3   Burden of proof  ................................ ................................ ................................ ..... 21 
7.2   The definition  of domestic industry  ................................ ................................ ..............  21 
7.2.1   Introduction  ................................ ................................ ................................ ..........  21 
7.2.2   A Member's obligation under Article  4.1 of the Anti -Dumping Agreement  .......................  23 
7.2.3   Evaluation by the Panel  ................................ ................................ ..........................  26 
7.3   Selection of "non -consecutive periods of non -equal duration" for the injury and 
causation analyses  ................................ ................................ ................................ ...........  32 
7.3.1   Introduction  ................................ ................................ ................................ ..........  32 
7.3.2   Evaluation  by the Panel  ................................ ................................ ..........................  33 
7.3.2.1    Relevant provisions  ................................ ................................ .............................  33 
7.3.2.2    The periods  of inves tigation and data collection of the DIMD's injury and 
causation analyses  ................................ ................................ ................................ ...........  34 
7.3.2.3    The use of allegedly "non -equal and non -consecutive" periods  ................................ ... 35 
7.3.2.3.1    Inappropriate  comparison  ................................ ................................ ..................  35 
7.3.2.3.2    Splitting  the period of investigation  ................................ ................................ ..... 35 
7.3.2.3.3    Accepting a data collection period proposed by the Applicant  ................................ .. 37 
7.3.2.4    Explanation for the selection of the period of data collection  ................................ ...... 38 
7.3.3   Conclusion  ................................ ................................ ................................ ............  39 
7.4   Price suppression  ................................ ................................ ................................ ..... 40 
7.4.1   Introduction  ................................ ................................ ................................ ..........  40 
7.4.2   Evaluation by the Panel  ................................ ................................ ..........................  41 
7.4.2.1    Relevant provisions  ................................ ................................ .............................  41 
7.4.2.2    The use of 2009 rate of return  as a benchmark  ................................ .......................  42 
7.4.2.3    The alleged mixing of currencies  ................................ ................................ ...........  45 
7.4.2.4    Whether price suppression is the effect of dumped imp orts ................................ ....... 47 
7.4.2.4.1    The trends in dumped import prices and domestic prices  ................................ ........  47 
7.4.2.4.2    Whether the market would accept additi onal domestic price increases  ......................  51 
7.4.2.4.3    Domestic  competition  ................................ ................................ .......................  53 
7.4.2.4.4    The change  in the level of the applicable custo ms tariff  ................................ ..........  54 
7.4.2.5    "To a significant degree"  ................................ ................................ ......................  55 WT/DS479/ R 
 
- 4 - 
 
  7.4.3   Conclusion  ................................ ................................ ................................ ............  57 
7.5   State of the domestic industry  ................................ ................................ ....................  57 
7.5.1   Introduction  ................................ ................................ ................................ ..........  57 
7.5.2   Evaluation by the Panel  ................................ ................................ ..........................  58 
7.5.2.1    Relevant provisions  ................................ ................................ .............................  58 
7.5.2.2    Data discrepancies  ................................ ................................ ..............................  58 
7.5.2.2.1    Profit /profitability  ................................ ................................ .............................  59 
7.5.2.2.2    Inventories  ................................ ................................ ................................ ...... 60 
7.5.2.3    Failure to properly examine all relevant injury factors in a proper conte xt ....................  61 
7.5.2.3.1    "End-point to end -point" comparison  ................................ ................................ ... 62 
7.5.2.3.2    Profit/profitability for the first half of 2011 and the ful l year 2011  ............................  64 
7.5.2.3.3    Comparison between the period 2008 -2009 and the period 2010 -2011 ....................  66 
7.5.2.3.4    Failure to consider w hether the market will accept further price increases  .................  66 
7.5.2.3.5    Failure to consider certain facts and arguments on the record  ................................ . 66 
7.5.2.3.5.1    Domestic industry 's market share  ................................ ................................ .... 67 
7.5.2.3.5.2    Inventories of independent dealers  ................................ ................................ ... 70 
7.5.2.3.5.3    The re ason for the increase in domestic industry 's inventories  ..............................  70 
7.5.2.4    Failure to examine  all factors  ................................ ................................ ................  70 
7.5.2.4.1    The magnitud e of the margin of dumping  ................................ .............................  70 
7.5.2.4.2    Return on investments, actual and potential effects on cash flow, and the 
ability to raise capital or investments  ................................ ................................ ..................  71 
7.5.3   Conclusion  ................................ ................................ ................................ ............  73 
7.6   Causation  ................................ ................................ ................................ ................  73 
7.6.1   Introduction  ................................ ................................ ................................ ..........  73 
7.6.2   Evaluation  by the Panel  ................................ ................................ ..........................  74 
7.6.2.1    Relevant  provisions  ................................ ................................ .............................  74 
7.6.2.2    The DIMD's conside ration  of the price effects of the dumped imports in the 
context of its causation analysis  ................................ ................................ .........................  75 
7.6.2.3    The DIMD's consideration  of the volume of the dumped imports in the context of 
its causa tion analysis  ................................ ................................ ................................ ........  75 
7.6.2.3.1    Trends in dumped import s' market share  ................................ .............................  76 
7.6.2.3.2    The market share of all domestic producers in  2011 ................................ ..............  78 
7.6.2.3.3    Dumped imports displaced  third country imports rather than the domestic like 
product  ................................ ................................ ................................ ..........................  78 
7.6.2.3.4    Conclus ion ................................ ................................ ................................ ...... 79 
7.6.2.4    Non-attribution  ................................ ................................ ................................ ... 79 
7.6.2.4.1    The termination of the licence agreement  ................................ ............................  79 
7.6.2.4.2    Competition from GAZ  ................................ ................................ ......................  81 
7.6.2.4.2.1    The impact of imminent market entry of Gazelle diesel -engine LCVs on the 
domestic industry's prices  ................................ ................................ ................................ . 82 
7.6.2.4.2.2    Competition between diesel - and petrol -engine LCVs  ................................ ..........  82 
7.6.2.4.2.3    Domestic producers' market share in 2011  ................................ ........................  83 WT/DS479/ R 
 
- 5 - 
 
  7.6.2.4.3    Other factors  ................................ ................................ ................................ ... 83 
7.6.2.4.3.1    Self-inflicted injury  ................................ ................................ ........................  84 
7.6.2.4.3 .2   Financing  difficulties  ................................ ................................ .......................  86 
7.6.2.4.3.3    Discontinuation of government  support programmes  ................................ ..........  88 
7.6.3   Conclusion  ................................ ................................ ................................ ............  89 
7.7   Confidential  Treatment  ................................ ................................ ..............................  89 
7.7.1   Introduction  ................................ ................................ ................................ ..........  89 
7.7.2   Evaluatio n by the Panel  ................................ ................................ ..........................  91 
7.7.2.1    Relevant provisions  ................................ ................................ .............................  91 
7.7.2.2    Article  6.5 ................................ ................................ ................................ ..........  91 
7.7.2.3    Article  6.5.1 ................................ ................................ ................................ ....... 96 
7.8   Essential Facts  ................................ ................................ ................................ .........  97 
7.8.1   Introduction  ................................ ................................ ................................ ..........  97 
7.8.2   Evaluation by the Panel  ................................ ................................ ..........................  99 
7.8.2.1    Relevant provisions  ................................ ................................ .............................  99 
7.8.2.2    "Essential facts " ................................ ................................ ................................  100 
7.8.2.2.1    The facts at issue  ................................ ................................ ...........................  100 
7.8.2.2.2    Confidential information  ................................ ................................ ..................  103 
7.8.2.3    "All" interested parties  ................................ ................................ .......................  104 
7.8.2.4    "Inform"  ................................ ................................ ................................ ..........  105 
7.8.2.5    Conclusion  ................................ ................................ ................................ ....... 105 
7.9   Consequential claims  ................................ ................................ ..............................  107 
8   CONCLUSIONS AND RECO MMENDATION  ................................ ................................ . 107  
 
 WT/DS479/ R 
 
- 6 - 
 
  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex A -1 Working Procedures of the Panel  A-2 
Annex A -2 Additional Working Procedures of the Panel concerning business confidential 
information  A-7 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex B -1 First integrated executive summar y of the arguments of the European Union  B-2 
Annex B -2 First integrated executive summary of the arguments of the Russian Federation  B-11 
Annex B -3 Second integrated executive summary of the arguments of the European Union  B-21 
Annex B -4 Second integrat ed executive summary of the arguments of the 
Russian  Federation  B-31 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex C -1 Integrated executive summary of the arguments of Brazil  C-2 
Annex C -2 Integrated executive summary of the arguments of Ja pan C-6 
Annex C -3 Integrated executive summary of the arguments of Turkey  C-11 
Annex C -4 Integrated executive summary of the arguments of Ukraine  C-13 
Annex C -5 Integrated executive summary of the arguments of the United States  C-15 
ANNEX D  
PRELIMINARY  RULING  
Contents  Page  
Annex D -1 Preliminary ruling on the panel's jurisdiction under Article  6.2 of the DSU dated 
20 April 2016  D-2 
 
 WT/DS479/ R 
 
- 7 - 
 
  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Poultry 
Anti-Dumping Duties  Panel Repo rt, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727  
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United States , WT/D S440/R  and Add.1, adopted 
18 June 2014, DSR 2014:VII, p. 2655  
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States , WT/DS427/R  and Add.1, adopted 
25 September 2013, DSR 201 3:IV, p. 1041  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on 
Grain Oriented Flat -Rolled Electrical Steel from the United States , 
WT/DS414/AB/R , adopted 16 November 2012, DSR 2012:XII, p. 6251  
China – GOES  Panel Repo rt, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/R  
and Add.1, adopted 16 November 2012, upheld by Appellate Body Report 
WT/DS414/AB/R, DSR 2012:XII, p. 6369  
China – GOES (Ar ticle 21.5 – 
US) Panel Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States – Recourse to 
Article  21.5 of the DSU by the United States , WT/DS414/RW  and Add.1, 
adopted 31 August 2015  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performanc e 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, adopted 
28 October 2015  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Panel Reports, China – Measures Imposing Anti -Dumping Duties on  High-
Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/R  and Add.1 / WT/DS460/R , Add.1 and Cor r.1, adopted 
28 October 2015, as modified by Appellate Body Reports WT/DS454/AB/R / 
WT/DS460/AB/R  
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and A dd.1, 
adopted 24 April 2013, DSR 2013:III, p. 659  
EC – Bed Linen  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India , WT/DS141/R , adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R , DSR 2001:VI, p.  2077 
EC – Bed Linen  
(Article  21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the DSU  by 
India, WT/DS141/RW , adopted 24 April 2003, as mo dified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, p.  1269 
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB /R, DSR 2011:VIII, p. 4289  
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/ AB/RW  and Add.1 , adopted 
12 February 2016  
EC – Hormones  Appellate Body Report, EC – Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  WT/DS479/ R 
 
- 8 - 
 
  Short title  Full case title and citation  
EC – Salmon (Norway)  Panel Report, Europea n Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I, p. 3  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube o r Pipe Fittings from Brazil , WT/DS219/AB/R , 
adopted 18 August 2003, DSR 2003:VI, p. 2613  
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 
18 August  2003, as modified by Appellate Body Report WT/DS219/AB/R, 
DSR 2003:VII, p. 2701  
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti -Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R , adopted 1 October 2002, DSR 2002:VII, p. 2667  
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22 February 2012, DSR 2012:IX, p. 4585  
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey 
Portlan d Cement from Mexico , WT/DS156/R , adopted 17 November 2000, 
DSR 2000:XI, p. 5295  
Korea – Certain Paper  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R , adopted 28 November 2005, DSR 2005:XXII, 
p. 10637  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December 2005, DSR 2005:XXII, p. 10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice , 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, 
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
p. 11007  
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R , adopted 
24 February  2000, and Corr.1, DSR 2000:III, p. 1345  
Mexico – Steel Pipes and Tubes  Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes  and Tubes from 
Guatemala , WT/DS331/R , adopted 24 July 2007, DSR 2007:IV, p. 1207  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles , Shapes 
and Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701  
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles , Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , 
adopted 5 April 2001, as modified by Appellate Body Re port 
WT/DS122/AB/R, DSR 2001:VII, p. 2741  
Ukraine – Passenger Cars  Panel Report, Ukraine – Definitive Safeguard Measures on Certain Passenger 
Cars, WT/DS468/R  and Add.1, adopted 20 July 2015  
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body  Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131  
US – Gasoline  Appellate Body Report, United States – Standards for Ref ormulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, 
p. 3 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Hot-Rolled Steel  Panel Report, United States – Anti-Dumping Measures on Certain Hot -Rolled 
Steel Products from Japan , WT/DS184/R , adopted 23 August 2001 modified 
by Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p. 4769  WT/DS479/ R 
 
- 9 - 
 
  Short title  Full case title and citation  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh , Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R , adopted 31 August 2004, as modified 
by Appellate Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937  
US – Softwood Lumber VI 
(Article  21.5 – Canada)  Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to 
Article  21.5 of the DSU by Canada , WT/DS277/AB/RW , adopted 9 May 2006, 
and Corr.1, DSR 2006:XI, p. 4865  
US – Steel Safeguards  Appellate Body R eport, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10 December 2003, 
DSR 2003:VII, p. 31 17 
US – Tyres (China)  Appellate Body Report, United States – Measures Affecting Imports of 
Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R , adopted 5 October 2011 , DSR 2011:IX, p. 4811  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R , 
adopted 19 January 2001, DSR 2001:II, p. 717  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports  of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
 
 WT/DS479/ R 
 
- 10 - 
 
  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Application  Sollers -Elabuga LLC , "Application for application of anti -dumping me asures 
regarding import of light commercial vehicles originating in Germany, Italy, 
Poland, and Turkey", Letter No. 117, 30 September 2011  
BCI Business Confidential Information  
DIMD  Department for Internal Market Defence of the Eurasian Economic Commiss ion 
Draft Report  Eurasian Economic Commission, Results of the anti -dumping investigation with 
regard to light commercial vehicles originating in Germany, Italy, Poland, and 
Turkey imported into the common customs area of the Customs Union  (Moscow, 
28 Marc h 2013)  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EAEU or CU  Eurasian Economic Union or Customs Union between Republic of Belarus, 
Republic of Kazakhstan and the Russian Federation  
EEC Eurasian Economic Commission  
GATT 1994  General Agreement on Tariffs and Trade 1994  
GAZ Gorkovsky Avtomobilny Zavod  
Investigation Report  Eurasian Economic Commission, Findings from the anti -dumping investigation 
relating to light commercial vehicles origi nating in Germany, Italy, Poland and 
Turkey and imported into the common customs territory of the Customs Union 
of the Domestic Market Protection Department of the Eurasian Economic 
Commission  (Moscow 2013) (Public and BCI versions)   
LCVs Light commercial  vehicles  
PCA Peugeot Citroen Automobiles  
POI Period of investigation  
RUB Russian roubles  
Sollers  Sollers -Elabuga LLC  
USD United States dollars  
VEB Vnesheconombank  
 WT/DS479/ R 
 
- 11 - 
 
  1  INTRODUCTION  
1.1  Complaint by the European Union  
1.1.  On 21 May 2014 , the European Union  requested consultations with the Russian Federation  
pursuant to Articles  1 and 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Article  XXIII:1 of the General  Agreement on Tariffs and 
Trade  1994 (GATT 1994 ), and Articles 17.2 and 17.3 of the Agreement on Implementation of 
Article  VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping  Agreement ) with 
respect to the measures and claims set out below.1 
1.2.  Consultations were held on 18 June 2014 . The consultat ions failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 15 September 2014 , the European Union  requested the establishment of a panel pursuant 
to Article  6 of the DSU with standard terms of reference.2 At its meeting on 20 October 2014 , the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of the European Union  
in document WT/DS479/2 , pursuant to  Article  6 of the DSU.3 
1.4.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisi ons of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the European Union  in 
document WT/DS479/2  and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 8 December  2014, the European Union  requested the Director -General to de termine the 
composition of the P anel, pursuant to Article  8.7 of the DSU . On 18 December 2014 , the 
Director -General composed the Panel as follows:  
Chairper son: Mr Simon Farbenbloom  
 
Members:   Mr Matthew Kronby  
   Mr Luis Catibayan  
 
1.6.  Following the resignation on 1 December 2015 of the Chairperson  and a member of the 
Panel, the  Director -General on 11 December 2015 appointed a new Chairperson and a new 
member of  the Panel. Accordingly, the composition of the Panel is as follows:  
Chairperson:  Mr Faizullah Khilji  
 
Members:   Mr Thinus Jacobsz  
Mr Luis Catibayan  
 
1.7.  Brazil, China, India, Japan, Korea, Turkey, Ukraine,  and the United States  notified their 
interest in pa rticipating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.8.  After consult ing the parties, the Panel : 
                                               
1 European Union's request for consultations, WT/DS 479/1, 21 May 2014.  
2 Request for the establishment of a Panel by the European Union, WT/ DS479/2  (European Union's 
panel request) . 
3 See WTO, Dispute Settlement Body, Minutes of meeting held on 20 October 2014, WT/DSB/M/ 351, 
11 December 2014 . 
4 Russia – Anti-Dumping Duties on Light Commercial Vehicles , Constitution of the Panel established at 
the reque st of the European Union, WT/ DS479/3 , 19 December 2014 . WT/DS479/ R 
 
- 12 - 
 
  a. adopted its Working Procedures5 and timetable on 1 December  2015; 
b. revised the timetable on 15 January 2016 , and again on 1  April 2016; and 
c. adopted,  on 14 January 2016,  additional procedures  for the protection of Business 
Confidential Information (BCI).6 
1.9.  The Panel held its  first substantive meeting with the parties on 9 and 10 of March 2016 . A 
session with the third parties took place on 10 March 2016 . The Panel held its  second substantive 
meeting with the parties on 7 June 2016 . On 22 July 2016 , the Panel issued the descriptive part of 
its Report to the parties. The Panel issued its Interim Report to the parties on 26 August  2016. The 
Panel issued its Final Report to the parties on 30 September  2016. 
1.3.2    Preliminary ruling  
1.10.  In its first written submission dated 22 January 2016, the Russian Federation requested a 
preliminary ruling that certain claims addressed by the European Union in its firs t written 
submission are not within the scope of the request for the establishment of a panel in this dispute 
and are therefore not within the jurisdiction of this Panel.7 The European Union responded to the 
Russian Federation's request in its response to a question posed by the Panel during the Panel's 
first substantive meeting with the parties8 and in its second written submission.9 
1.11.  By communication dated 20 April 2016, the Panel did not grant the Russian Federation's 
request. The Panel's preliminary ruli ng is set out in Annex D-1. 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns the levy ing of anti -dumping duties on certain light commercial vehicles 
(LCVs) from Germany and Italy by the Russian Federation  pursuant to Decision No. 113 of 
14 May 2013 of the Board  of the Eurasian Economic Commission (E EC), as set forth therein, 
including any and all annexes, notices and reports of the Department for Internal Market Defence 
of the EEC  (DIMD) , and any amendments thereof.  
3  PARTIES' REQUESTS FO R FINDINGS  AND RECOMMENDATIONS  
3.1.   The European  Union  requests that the Panel find that  the measures at issue are inconsistent 
with the following provisions10: 
a. Articles  3.1 and 4.1 of the A nti-Dumping  Agreement, because, by excluding GAZ11 from 
the definition of "domesti c industry", the DIMD  acted in a biased manner, potentially 
leading to a risk of materially distorting the injury analysis, contrary to the obligations 
under Articles  3.1 and 4.1 of the A nti-Dumping  Agreement. As a consequence of such a 
wrongly -defined dom estic industry, the DIMD 's injury determination was based on an 
incorrect data set, in violation of Article  3.1 of the A nti-Dumping  Agreement;  
b. Articles  3.1, 3.2, 3.4 , and 3.5 of the A nti-Dumping  Agreement, because, by selecting 
non-consecutive periods of n on-equal duration for the examination of the trends for the 
whole domestic industry, the DIMD 's injury determination was not based on an objective 
examination of positive evidence, thereby contrary to Article  3.1 of the A nti-Dumping  
Agreement. Since the  DIMD relied on such an examination for the purpose of gauging 
the effects of the dumped imports on the domestic industry and assessing whether the 
                                               
5 See the Panel's Working Procedures in Annex A -1. 
6 See Additional Working Procedures on BCI, Annex A -2. 
7 Russian Federation's first written submission, para. 668. See also second written submission , 
paras.  306-309. 
8 European Union's response to Panel question No. 2, para. 2.  
9 European Union's second written submission, paras. 7 -14. 
10 European Union 's first written submission, para. 453.  
11 Gorkovsky Avtomobilny Zavod . WT/DS479/ R 
 
- 13 - 
 
  injury found to exist is caused by the dumped imports, the DIMD's  injury determination 
was further inconsistent  with Articles  3.2, 3.4, and 3.5 of the A nti-Dumping  Agreement ; 
c. Articles  3.1 and 3.2 of the A nti-Dumping  Agreement, because the DIMD  failed to make 
an objective analysis based on positive evidence when considering whether the effects of 
the dumped imports was to prevent domestic price increases, which otherwise would 
have occurred, to a significant degree (i.e. price suppression);  
d. Articles  3.1 and 3.4 of the A nti-Dumping  Agreement, because the DIMD  failed to make a 
proper evaluation of all injury factors i n context and thus failed to reach a reasoned and 
adequate conclusion with respect to the impact of dumped imports on the domestic 
industry. As a result, the DIMD  failed to make a determination of injury on the basis of 
an "objective examination" of the di sclosed factual basis;  
e. Articles  3.1 and 3.5 of the A nti-Dumping  Agreement, because the DIMD  failed to conduct 
an objective examination, based on positive evidence, of the causal relationship between 
the imports under investigation and the alleged injury to  the domestic industry. The 
DIMD  also failed to conduct an objective examination, based on positive evidence, of 
factors other than the imports under investigation that have been injuring the domestic 
industry, and therefore improperly attributed the injur ies caused by these other factors 
to the imports under investigation;  
f. Article  6.5 of the A nti-Dumping  Agreement, because the DIMD  accorded confidential 
treatment to information that is not confidential by nature, and because the DIMD  did 
not require inter ested parties to show good cause for the confidential treatment of 
information, nor did it properly assess whether such good cause was shown;  
g. Article  6.5.1 of the A nti-Dumping  Agreement, because the DIMD  failed to require 
interested parties to furnish non -confidential summaries of the confidential information 
provided, and also failed to require them to explain why it was not possible to provide 
such summaries, and in any event those non -confidential summaries, when submitted, 
failed to provide sufficient detail to permit a reasonable understanding of the substance 
of the information submitted in confidence, including indexes that show meaningful 
trends;  
h. Article  6.9 of the A nti-Dumping  Agreement, because the DIMD  failed to inform the 
interested parties of t he essential facts under consideration which form the basis of the 
decision to impose anti -dumping measures, including failing to inform Volkswagen AG 
and Daimler AG of the essential facts underlying the calculation of the normal value and 
the export price  and failing to inform the interested parties of the essential facts 
underlying the determination of injury and a causal link between dumping and injury; 
and 
i. Articles  1 and 18.4 of the A nti-Dumping  Agreement and Article  VI of the GATT 1994, 
also as a conse quence of the breaches of the A nti-Dumping  Agreement described above.  
3.2.  The Russian Federation  requests that the Panel reject the European Union 's claims in this 
dispute in their entirety.12 
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected  in their integrated  executive summaries, provided 
to the Panel in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see 
Annexes B -1 to B-4). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Brazil, Japan, Turkey, Ukraine,  and the  United States are reflected in their 
executive summaries, provided in accordance with paragraph 20 of the Working Procedures 
                                               
12 Russian  Federation's first w ritten submission, para. 1055.  WT/DS479/ R 
 
- 14 - 
 
  adopted by the Panel (see Annexes C -1 to C-5). China and Korea participated in the third-party 
session; China, India and Korea did  not make formal submissions to the Panel.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  On 26 August  2016, the Panel submitted its Interim Report to the parties. On 
12 September  2016, the European Union  and the Russian Federation  each submitted written 
requests for the rev iew of precise aspects of the Interim Report. On 16 September  2016, both 
parties submitted comments on each other's requests for review. Neither party requested an 
interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Pane l Report sets out the 
Panel's response to the parties' requests made at the interim review stage. The Panel modified 
aspects of its Report in the light of the parties' comments where it considered it appropriate, as 
explained below. Due to changes as a  result of our review, the numbering of the paragraphs and 
footnotes in the Final Report has  changed from the Interim Report. The text below refers to the 
numbers in the Interim Report, with  the numbers in the Final Report in parentheses for ease of 
reference.  
6.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and other non -substantive errors throughout the Report, including those identified 
by the parties.  
6.2  European Union 's requests for changes to the Interim Re port 
6.2.1   Paragraph 1.6  
6.4.  The European Union requested modifications to paragraph 1.6. The Russian Federation 
objected to this request.  We do not consider it appropriate  to make any changes to this paragraph.  
6.2.2   Paragraph 7.4, subparagraph s (ii) and  (iii) 
6.5.  The Europe an Union requested that:  
a. The words "and was gaining market share" be added to subparagraph  (iii).   
b. Subparagraph  (ii) be modified to state that "GAZ also produced petrol -engine LCVs …".  
6.6.  We have made these modifications.13 
6.2.3   Footnote 45 to paragraph 7.8  
6.7.  The E uropean Union requested the addition of a paragraph more fully setting out its 
arguments in respect of the obligation in Article 4.1.  We have modified this footnote in response to 
this request.  
6.2.4   Footnote 63 to paragraph 7.12  
6.8.  The European Union requested a r eference in this footnote to its submissions; we have 
provided the reference and made a small typographical modification.  
6.2.5   Paragraph 7.14, subparagraph s (a), (b), and (c) 
6.9.  The European Union requested the addition of certain references  in these subparagraphs  to 
its oral statement at the second  substantive meeting of the Panel . As these subparagraphs are the 
Panel 's observations , we do not consider  it necessary to make the proposed changes.  
                                               
13 Except as indicated, the Russian Federation did not object to European Union requests.  WT/DS479/ R 
 
- 15 - 
 
  6.2.6   Footnote 72 to paragraph 7.14  
6.10.  The European Union requested the additio n of a sentence to this footnote to reflect its own 
arguments. As this footnote reflects the Panel 's observations , we do not consider it necessary to 
make the proposed changes.  
6.2.7   Paragraph s 7.16 and 7.18  
6.11.  The European Union disagreed with our statement that t he European Union "agrees " with 
the Russian Federation regarding  the sequence of events set out in this paragraph . It argued that 
that "it did not agree with Russia's assertions as to how or when the DIMD defined domestic 
industry in this case; rather, the  European Union responded to the arguments raised by Russia  to 
make its case and showed that, even following Russia's recounting of the facts, the domestic 
industry definition was inconsistent with Articles 4.1 and 3.1 of the AD Agreement. "14 We have 
some d ifficulty with this position.  
6.12.  To begin with, as the complainant, the European Union has the burden of establishing its 
case – in this specific instance by identifying exactly what was WTO -inconsistent with the way the 
DIMD defined the domestic industry.  Accordingly, the initial exposition of the European Union's  
position could not have been a response  to the Russian Federation's  arguments.  
6.13.  Turning  to that initial positio n as set out in the first submissions, we observe that i t is not a 
model of clarity. The  European Union repeatedly asserted that the DIMD had "excluded " GAZ from 
the scope of the definition of domestic industry.15 It also argued , however,  that the DIMD had 
violated Articles 3.1 and 4.1 in this definition.16 Thus, from  its first written submissi on, it was not 
clear to us whether the European Union considered the DIMD to have  acted inconsistently with 
Articles 3.1 and 4.1  by defining the domestic industry and then exclud ing GAZ, or by not includ ing 
GAZ in the definition in the first instance . For this reason, the Panel put a specific question to both 
parties  as to whether , in their view, there was a difference between "excluding " a producer from 
the definition of domestic industry or "not including " that producer in that definition  from the 
outset . In paragraphs 33 -35 of its response to our question number 9, the European Union stated :  
[T]here is indeed a difference between the failure to include additional producers of 
the like product in the domestic industry and excluding a domestic producer of the like 
product from the industry definition.  
… Article 4.1 of the AD Agreement provides only two situations in which an 
investigating authority is permitted to exclude  domestic producers of the like product 
from the scope of the definition of the domesti c industry. …  
However, a failure to include  additional producers of the like product in the domestic 
industry may lead to a violation of both Articles 4.1 and 3.1 .17 
6.14.  The response of the European Union demonstrates that it understood "excluding " to mean 
defining the domestic industry and removing producers from that definition afterwards,  and 
"failure to include " to mean not including a producer in the definition in the first place.  In its first 
written submission, the European Union repeatedly referred to th e "exclusion " of GAZ. We 
concluded, on this basis, that while not expressly stated, the understanding of the sequence relied 
upon by the European Union in its first written submission (definition -exclusion) was consistent 
with the sequence put forward by t he Russian Federation in its later submissions , which was 
different from that in its first submission . Nothing in the European Union 's later submissions 
indicated a shift in its own position because of the apparent change in the position of  the 
Russian  Federation.  Accordingly , we see no reason to change our understanding of an apparent 
agreement between the parties  in this regard . Nevertheless, we have made a minor modification 
to reflect the lack of clarity in these arguments. We underline that our finding s do not rest on the 
agreement or lack thereof of the European Union with the Russian Federation on this point. 
                                               
14 European Union's comments on the Interim Report, para. 13.  
15 See for example European Union's first written submission, paras. 18, 33,  44, 46,  and 60.  
16 European Union's first written submission, para. 46.  
17 European Union's response to Panel question 9.  (fn omitted, emphasis added )  WT/DS479/ R 
 
- 16 - 
 
  Indeed, the absence of evidence on the record to support the sequence of events we understand 
the parties to have agreed upon is why we made our  principal findings on the basis of the Russian 
Federation's first  description of the  sequence , which is supported by evidence on the record . 
6.15.  For these reasons, we see no need to make the changes suggested by the European Union.  
We have made minor modifica tions and added additional references to the European Union 's 
submission in this respect.  
6.2.8   Paragraph 7.26  (as well as the text in paragraphs 7.14  and 7.20, and footnote  79) 
6.16.  The European Union requested that the Panel make certain modifications in this parag raph. 
The Russian Federation objected to the requested modifications and disagreed with the 
European  Union's interpretation of the relevant panel and Appellate Body reports.  We recall that 
the Interim Review stage is not an opportunity for parties to rearg ue the case.  We note however 
that the European Union is not challenging the findings of the Panel and that the requested 
modification does, indeed, fall within the meaning of a "precise aspect[]" as set out in Article 15 .2 
of the DSU. In our view, an injur y determination made on the basis of an incorrect definition of 
domestic industry is necessarily not consistent with a Member 's obligation under Article 3.1.  For 
this reason, we have made certain modifications to paragraph s 7.15 and 7.26 .  
6.2.9   Footnote 105 to paragraph 7.31(d)  
6.17.  The European Union requested the Panel to provide specific references in this footnote as to 
where in the Investigation Report the DIMD made comparisons between the situation in 2011 and 
the situation in 2008 or 2009, and both 2008 and 20 09. We have provided these references.  
6.2.10    Footnote 157 to paragraph 7.63  
6.18.  The European Union requested that the Panel make what it describes as clarifications in 
respect of the European Union's change of position on the question of benchmarks in the course of  
these proceedings. The Russian Federation objected to this request. We note that the proposed 
language is in substantial part a restatement of the European Union's  position after the first 
substantive meeting of the Panel with the parties , which  has alrea dy been reflected in 
paragraphs  7.53 and 7.59 of our findings. We see no reason to make the requested modifications.  
6.2.11   Last sentence of paragraph 7.81  
6.19.  The European Union requested that a graph containing BCI be adjusted or explained to be 
accessible in the n on-confidential version of these findings.  We have made the necessary 
adjustments for this and all other graphs containing BCI.  
6.2.12   Footnote 225 to paragraph 7.116  
6.20.  The European Union requested that the Panel more fully reflect the European Union's 
arguments i n respect of the systemic implications of relying on confidential investigation reports in 
dispute settlement proceedings . The Russian Federation did not object to the European Union 
request, but suggested a modification indicating that the European Union' s concern was of a 
general nature.  We have included the European Union's suggested text in the footnote; we do not 
think it is necessary to incorporate the Russian Federation 's proposed modification , as we 
understand the European Union's suggested text to be general in nature . We note that these are 
not the findings of the Panel.  More important, in our view the  concern raised by the 
European  Union in turn risks undermining the presumption of good faith that is at the heart of 
both Members' observance and im plementation of their obligations under the WTO Agreement, as 
well as their participation in these proceedings.   
6.2.13   Paragraph 7.164  
6.21.  The European Union requested that the Panel more fully reflect the European Union's 
arguments in respect of the systemic implic ations of relying on confidential investigation reports in 
dispute settlement proceedings . As this matter has already been dealt with at paragraph  6.20 WT/DS479/ R 
 
- 17 - 
 
  above  concerning footnote 225, we do not see the need to make additional mo difications in this 
paragraph.  
6.2.14   Paragraph 7.139  
6.22.  The European Union  requested the Panel to add a reference to its written submission.  We 
inserted a footnote to the first sentence of paragraph  7.139 to accommodate  the European Union 's 
request.  
6.2.15   Paragraph 7.207   
6.23.  The European Union  request ed the Panel to correct a factual inaccuracy  with regard to the 
production of like product by GAZ pri or to its p roduction of the Gazelle diesel -engine LCV in the 
middle of 2010 . The Russian Federation did not object to the Europ ean Union request for the 
factual correction and proposed a more accurate reference.  We have made the requested 
modifications.  
6.3  Russian Federation 's requests for changes to the Interim Report  
6.3.1   Paragraph  7.5  
6.24.  The Russian Federation requested certain modificat ions to ensure that this paragraph better 
reflects its arguments .18 We have made the necessary adjustments.  
6.3.2   Footnote 73  
6.25.  The Russian Federation requested an addition to ensure that this paragraph better reflects 
its arguments . We have made the necessary adju stments.  
6.3.3   Paragraph 7.19 and Footnote 78   
6.26.  The Russian Federation requested that this paragraph be modified to better reflect its 
arguments.  Specifically, it argued that " the Russian Federation has not argued that Article 3.1 of 
the Anti -Dumping Agreement pr ovides 'another exception  to the domestic industry definition set 
out in Article 4. 1'".19 The Russian Federation also requested that the reference in the footnote to 
its second written submission be deleted. The European Union objected to this requested 
modification on the basis that: (a) this paragraph reflects the understanding of the Panel; and 
(b) the Russian Federation had not provided a "valid reference" in support of its request.   
6.27.  We recall that in paragraph 7.19, we observe that the Russian Federatio n "appears" to 
make the argument in question. We arrived at this understanding because of the specific wording 
of the Russian Federation's  arguments in its second written submission. In paragraph 52, 
referenced in footnote 78, the Russian Federation argue s20: 
If the European Union considers that the "unbiased" and "objective" approach could 
include GAZ into the domestic industry for the purposes of injury analysis, we believe 
that the factual circumstances of the case objectively prevented  to include the dat a 
pertaining to GAZ into the injury analysis . 
                                               
18 In its comments on the Russian Federation's comments on the Interim Report, the European Union 
states:  
Absent specific reaction or comment from the European Union does not mean that the European 
Union agrees with Russia's requests. To the extent that Russia requests clarification of its 
arguments in the parts of the report where the Panel summarises Russia 's argument, the 
European Union agrees with Russia's suggestions provided that Russia makes adequate 
references to its submissions.  
European Union's comments on the Russian Federation' s comments on the Interim Report, para. 2 
In this light, unless there ar e specific comments by the European Union, we do not reflect agreement or 
objection in respect of Russian Federation requests.  
19 Russian Federation's comments on the Interim Report, para. 12. (emphasis original)  
20 Emphasis added.  WT/DS479/ R 
 
- 18 - 
 
  6.28.  The gist of this argument , as we understand it,  is that to conduct an objective and unbiased 
examination of the matter in accordance with Article 3.1 , the DIMD was required  to not include 
GAZ in the definition of the domestic industry under Article 4.1 , on the basis of the alleged 
deficiency of its data.  To us, although not expressly stated, this argument appears to set the 
requirements of Article 3.1 as a possible exception to Article 4.1.  Accordingly, we see n o need to 
make the requested modifications.  
6.3.4   Paragraph s 7.19 and  7.66, and section 7.4.2.2  
6.29.  The Russian Federation requested significant modifications to provide a fuller summary of its 
arguments. The European Union requested that the Panel reject the propos ed modification s. We 
recall that the executive summaries of the arguments of the parties are set out in Annexes B1 -B4. 
These executive summaries were prepared by the parties themselves, and reflect, or should reflect, 
the judgement of each party as to its main arguments and how they should be summarised in the 
Report.  The brief references to the arguments of the parties in our report are not meant to and do 
not duplicate those executive summaries . Rather, they highlight the principal points of the 
arguments  of the parties that we considered key and address ed in our findings. For this reason, we 
see no need to make the requested modifications.  
6.3.5   Paragraph 7.119  
6.30.  The Russian Federation requested the addition of the bracketed phrase in order that this 
paragraph re ad: " the DIMD provided an evaluation of inventory data [of the producer ] in its 
Investigation Report, and thus complied with this aspect of Article 3.4 ."21 We do not consider the 
proposed addition appropriate , given that Article 3.4 is concerned with the evaluation of 
information concerning the "domestic industry" and not "the producer ". Moreover, in this case, 
there were at least two domestic producers of the like product.  In this light, we have inserted a 
reference to the inventory data  [of Sollers] in thi s sentence , to clearly reflect the facts as argued . 
6.3.6   Paragraph 7. 160  
6.31.  The Russian Federation requested certain modifications to ensure that this paragraph better 
reflects its arguments . We have made the necessary adjustments.  
6.3.7   Paragraph 7. 163  
6.32.  The Russian Fe deration requested certain modifications to this paragraph , arguing : 
The Russian Federation did not assert that the DIMD met the requirements of 
Article  3.4 by requesting and receiving the financial accounts of Sollers in confidential 
form, as it is stated  at paragraph 7.163 of the Interim Repo rt.22 
6.33.  We recall the Russian Federation's arguments in its first written submission.  In 
paragraph  280, the Russian Federation asserted23: 
Therefore, the EU 's statement that "[t]here is nothing in the Report or on th e record 
showing that the DIMD evaluated <these factors> " is wrong. Evidence on the record 
apparently shows that the DIMD required positive evidence that it needed to consider.  
Nothing on the record shows that the Russian Federation actually evaluated  the infor mation it 
gathered.  And this is why we put a specific question to the parties on this point.  The Russian 
Federation replied as follows:  
 
In view of the foregoing, the fact that data was requested and received from the 
domestic industry can be indicative t hat the relevant information has been evaluated, 
although the results of such evaluation were not set forth in the published document.  
… the fact that the requested data was submitted in confidential form gives an 
                                               
21 Russian Federation's co mments on the Interim Report, para. 2 1. 
22 Russian Federation's comments on the Interim Report, para. 23.  
23 Emphasis added.  WT/DS479/ R 
 
- 19 - 
 
  indication that the injury factor must hav e been evaluated  but the results of such 
evaluation were not set forth in the non -confidential version of the report for 
confidentiality reasons .24  
6.34.  In the light of this statement , we see no reason to make the requested modifications.  
6.3.8   Paragraph 7. 237  
6.35.  The R ussian Federation requested certain modifications to ensure that this paragraph better 
reflects its arguments concerning the GAZ Questionnaire response . We have made the necessary 
adjustments, including a consequential adjustment to paragraph  7.244.  
6.3.9   Parag raph s 7.244  and 7.245 
6.36.  The Russian Federation requested certain modifications to ensure that this paragraph fully 
reflects its arguments concerning Sollers ' letter of 25 December 2012 and the letter of the 
"Association of Russian Automakers" of 11 February 2013. The European Union objected to this 
request, noting that it "never agreed" that these letters were available as part of the 
non-confidential file. We have made the necessary adjustments to p aragraphs 7.237, 7.244 , 
and 7.245.  
6.37.   The Russian Federation further requested certain modifications in respect of information 
treated as confidential where, in its view, such treatment constituted a "technical error" 
(Sollers ' Application , sections 9.4  and 9.5). Our findings in paragraph 7.244(b) address this issue . 
6.3.10   Paragraph 7.267  
6.38.  The Russian Federation requested that the Panel give specific reasons as to why the DIMD's 
treatment of information originating from electronic databases of national customs authorities of 
the Customs Union between Republic of Belarus, R epublic of Kazakhstan , and the Russian 
Federation  (CU) as confidential did not meet the requirements of Article 6.5. We have added a 
paragraph explaining our views in that respect . 
6.3.11   Paragraph 7.268  
6.39.  The Russian Federation argued that " we have not argued that  the DIMD has limited 
disclosure obligations in respect of Daimler AG and Volkswagen AG, which were conside red as 
non-cooperating parties."25 The European Union disagr eed. Our summary of the 
Russian  Federation's arguments accurately captures the essence o f the Russian Federation's 
arguments.  We recall that the executive summaries of the arguments of the parties are set out in 
Annexes B1 -B4. These executive summaries were prepared by the parties themselves, and reflect, 
or should reflect, the judgement of eac h party as to its main arguments and how they should be 
summarised in the Report. The brief references to the arguments of the parties in our report are 
not meant to and do not duplicate those executive summaries. Rather, they highlight the principal 
points of the arguments of the parties that we considered key and addressed in our findings. For 
this reason, we see no need to make the requested modifications.   
6.3.12   Paragraphs 7.249  and 7.269 -7.271  
6.40.  The Russian Federation argues that  "taking into account  correct a rguments of the 
Russian  Federation, as explained in the previous paragraph, the Panel 's discussion of the rights of 
interested parties should be associated with the scope of disclosure for particular interested 
parties."26 We note that this argument somewha t undercuts the Russian Federation's argument , 
set out in the previous paragraph , that it did not argue that it had limited disclosure obligations in 
respect of non -cooperating parties.  Be that as it may, the Russian Federation appears to be 
rearguing its case at this stage of the proceedings.  We note that this is not an appropriate use of 
the Interim Review stage.  We see no reason to make the requested modifications.  
                                               
24 Russian Federation's response to Panel question No. 16, para. 86. (emphasis added)  
25 Russian Federation's comments on the Interim R eport, para. 41.  
26 Russian Federation's comments on the Interim Report, para. 42.  WT/DS479/ R 
 
- 20 - 
 
  6.3.13   Paragraph 7.272  
6.41.  The Russian Federation considers that this paragraph does not reflect its arguments 
concerning the disclosure of essential facts to the two non -cooperating German exporting 
producers . We have modified this paragraph to address these concerns.  
6.3.14   Paragraph 248 and Table 12  
6.42.  The Russian Federation requested a factual correction in re spect of the essential facts at 
issue. Specifically, it considered that a specific fact had not been at issue. The European Union 
requested that the Panel reject the requested correction, on the basis that it had claimed that the 
failure to disclose the "s ource" of that information was inconsistent with Article 6.9. We do not 
consider that failing to disclose the source of information is the same thing as failing to disclose 
the information itself.  In this light we have made the requested modifications in p aragraph 248 
and Table 12, and their corresponding footnotes.  
7  FINDINGS  
7.1  General  principles regarding treaty interpretation, standard of review, and burden 
of proof  
7.1.1   Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accordance with customary rules of 
interpretation of public international law". Article  17.6(ii) of the Anti -Dumping Agreement similarly 
requires panels to interpret that Agreement's p rovisions in accordance with the customary rules of 
interpretation of public international law.27 Articles  31 and 32 of the Vienna Convention on the Law 
of Treaties  codify in part these customary rules.28  
7.1.2   Standard of review  
7.2.  Article  11 of the DSU provides  that:  
[A] panel should make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements.  
In addition, Article  17.6 of the Anti -Dumpi ng Agreement sets out the special standard of review 
applicable to disputes under the Anti -Dumping Agreement:  
 
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and wh ether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overt urned;  
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel 
finds that a relevant provision of the Agreement admits of more than one permis sible 
interpretation, the panel shall find the authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations.  
Thus, Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement together estab lish the 
standard of review that a panel is required to  apply with respect to both the factual and the legal 
aspects of the present dispute.  This means that in reviewing the  investigating authority's 
determination  in this dispute, we must:  
                                               
27 Article  17.6(ii) of the Anti -Dumping Agreement also provides that if a panel finds that a provision of 
the Anti -Dumping Agreement admits of more than one permissible inter pretation, it shall uphold a measure 
that rests upon one of those interpretations.  
28 Appellate Body Report, US – Gasoline , p. 17.  WT/DS479/ R 
 
- 21 - 
 
  a. examine whether the authorit y has  provided  a reasoned29 and adequate30 explanation as 
to: 
i. how the evidence on the record supported its factual findings31, and  
ii. how those factual findings support the overall determination32;  
b. not conduct a de novo review of the evidence  or sub stitute our judgment for that of the 
investigating authority ; 
c. limit our examination to the evidence that was before the investigating authority during 
the course of the investigation33;  
d. take into account all such evidence submitted by the parties to the di spute34; and 
e. not simply defer to the conclusions of the investigating authority : our examination of 
those conclusions must be "in -depth" and "critical and searching".35 
7.1.3   Burden of proof  
7.3.  In WTO dispute settlement , "the burden of proof rests upon the party, whe ther complaining 
or defending, who asserts the affirmative of a particular claim or defence ".36 Where a  party 
"adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then 
shifts to the other party, who will fail unless i t adduces sufficient evidence to rebut the 
presumption ".37 A complaining party establishes a prima facie  case where , in the absence of 
effective refutation by the defending party, a panel  is required as a matter of law to rule in favour 
of the complaining p arty.38  
7.2  The definition  of domestic industry  
7.2.1   Introduction  
7.4.  The European Union claims that the DIMD's  definition of the "domestic industry" is 
inconsistent with Articles  3.1 and 4.1  of the Anti -Dumping Agreement . It argues that that t he 
DIMD did not conduct a n objective examination based on positive evidence  because it:  
a. defined  the domestic industry as consisting of one producer, Sollers , which accounted for 
87.8%39 of total domestic production of the like product during the POI; and  
                                               
29 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: "[t] he panel's 
scrutiny should test whethe r the reasoning of the authority is coherent and internally consistent. " 
30 Ibid.: "[w] hat is 'adequate' will inevitably depend on the facts and circumstances of the case and the 
particular claims made, but several general lines of inquiry are likely to be relevant. " 
31 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: "[t] he panel 
must undertake an in -depth examination of whether the explanations given disclose how the investigating 
authority treated the facts and evidence in the record and whether there was positive evidence before it to 
support the inferences made and conclusions reached by it. " 
32 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS , para. 186; and US – 
Lamb , para. 103. See also Appellate B ody Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: 
"[t]he panel must examine whether the explanations provided demonstrate that the investigating authority 
took proper account of the complexities of the data before it, and that it expla ined why it rejected or 
discounted alternative explanations and interpretations of the record evidence. " 
33 Anti-Dumping Agreement , Article 17.5(ii) ; and  Appellate Body Report , US – Countervailing Duty 
Investigation on DRAMS , para. 187.  
34 Appellate Body Rep ort, US – Countervailing Duty Investigation on DRAMS , para. 187.  
35 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93. 
36 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  
37 Ibid. 
38 Appellate Body Report, EC – Hormon es, paras. 98  and 104. 
39 Sollers account ed for 87.9% of the total domestic production of the like product over the period of 
trend analysis  (2008 -2011), and 8 7.8% of total domestic production during the POI (2nd half of 2010 and 1st 
half of 2011). ( Eurasia n Economic Commission, Findings from the anti -dumping investigation relating to light 
commercial vehicles originating in Germany, Italy, Poland,  and Turkey and imported into the common customs WT/DS479/ R 
 
- 22 - 
 
  b. excluded  GAZ from the defin ition of the domestic industry.40  
7.5.  Excluding GAZ from the domestic industry led to a risk of materially distorting the injury 
analysis  and resulted in the violation of Articles  3.141 and 4.1.42 This is because:  
a. Sollers -Elabuga LLC  (Sollers ) was an "assembler " and not a "producer" of the domestic 
like product, diesel -engine LCVs43;  
b. GAZ also produced petrol -engine LCVs that were in competition with the im ported 
diesel -engine LCVs subject to the investigation and the domestic like product44; and  
c. GAZ accounted fo r nearly 15% of production of the domestic like product, diesel LCVs , 
and was gaining market share .45  
As well, such exclusion is not permitted by Article  4.1 because it does not fall within the specific 
exceptions set out in that Article.  
 
7.6.  The arguments o f the Russian Federation  evolved over the course of the dispute. In the first 
instance, the Russian Federation argued that:  
a. the DIMD did not intentionally  exclude GAZ from the outset. GAZ did not actively 
participate in the investigation  due to its deficie nt Questionnaire response. The DIMD 
decided to conduct the injury analysis with respect  to Sollers only, which represented 
87.9% of the total production of the CU46;  
b. the European Union used  data that include d products  – petrol -engine LCVs – outside  the 
scope of the like product  in order to show alleged undisputed leadership of GAZ in the 
overall LCV market 47;  
c. the European Union did not demonstrate how the injury analysis would have changed if 
the DIMD had included  GAZ in  the definition of the domestic indu stry48;  
d. once the domestic industry as defined satisfies the "major proportion" requirement, no 
further explanation or justification is necessary  for conducting the injury analysis in 
respect of the domestic producer that accounts for a high and substantial  share of total 
domestic production 49; and  
                                                                                                                                               
territory of the Customs Union of the Domestic Market Protectio n Department of the Eurasian Economic 
Commission  (Moscow 2013)  (Public version of the Investigation Report ), (Exhibits RUS -12 and EU -21) 
(exhibited twice ), Eurasian Economic Commission, Findings from the anti -dumping investigation relating to 
light commerc ial vehicles originating in Germany, Italy, Poland and Turkey and imported into the common 
customs territory of the Customs Union of the Domestic Market Protection Department of the Eurasian 
Economic Commission  (Moscow 2013)  (Confidential version of the In vestigation Report), (Exhibit RUS -14) 
(BCI) , section 1.6; and Sollers, "Application for application of anti -dumping measures regarding import of light 
commercial vehicles originating in Germany, Italy, Poland, and Turkey", Letter No. 117, 30  September 2011  
(Application), (Exhibits EU -1 and RUS -1) (exhibited twice),  p. 7).  
40 European Union's first written submission, para. 44.  
41 Article 3 is entitled "Determination of Injury". 3.1 provides that:  
A determination of injury for purposes of Article VI of GATT 1 994 shall be based on positive 
evidence and involve an objective examination of both (a) the volume of the dumped imports 
and the effect of the dumped imports on prices in the domestic market for like product, and (b) 
the consequent impact of these imports  on domestic producers of such products.  
42 European Union's first written submission, para. 63.  
43 European Union's first written submission, para. 50.  
44 European Union's first written submission, para. 49.  
45 European Union's first written submission, paras . 47-49.  
46 Russian Federation's first written submission, paras. 38 and 41-43. 
47 Russian Federation's first written submission, para. 52.  
48 Russian Federation's first written submission, para. 54.  
49 Russian Federation's first written submission, para. 60.  WT/DS479/ R 
 
- 23 - 
 
  e. Sollers' share of total domestic production averaged 87.9% for the period of trend 
analysis (2008 -2011)50; given this very high proportion, the DIMD's determination does 
not give rise to a risk of material distort ion.51 
In response to questions from the Panel as to the timing of the definition of the domestic industry, 
the Russian Federation confirmed that:  
 
a. "[t]he final decision  not to include GAZ into the injury analysis is a part of the final 
Report  and the Decis ion of the Board of the Eurasian Economic Commission"52; and  
b. "[t]he explanation of impossibility to include  GAZ into the definition of the domestic 
industry, for the purposes of injury analysis, was the absence of correct and verifiable 
data".53 
7.7.  In its secon d written submission the Russian Federation provided additional clarity:  
The investigating authority expressed its willingness to include GAZ into the domestic 
industry for the purposes of the injury analysis (sent a questionnaire for the producer 
of the l ike product in the CU, sought clarifications regarding the Questionnaire 
Reply).54  
… 
At the outset, the domestic industry was defined as all known domestic producers of 
the like product. The scope of the domestic industry was defined following the 
definiti on of the like product. This is an important step because the domestic industry 
is limited to only those domestic producers that produce a like product .55 
… 
Hence, the domestic industry, from the outset, included both known domestic 
producers of the like pr oduct, namely Sollers and GAZ .56  
7.8.  In the course of the second substantive meeting of the Pane l with the parties, the 
Russian  Federation furth er clarified that although the domestic industry  had included both known 
domestic producers at the outset, in the co urse of the invest igation the DIMD redefined the 
domestic industry  to include only Sollers.57 
7.2.2   A Member's obligation under Article  4.1 of the Anti -Dumping Agreement  
7.9.  Article  4 of the Anti -Dumping Agreement is entitled "Definition of Domestic Industry". 
Article 4.1 provides that:  
For the purposes of this Agreement, the term "domestic industry" shall be interpreted 
as referring to the domestic producers as a whole of the like products or to those of 
                                               
50 Russian Federation's first written submission, para. 60.  
51 Russian Federation's first written submission, paras. 64 -74. 
52 Russian Federation's response to Panel question No. 13(b), paras. 42 and 43. (emphasis added)  
53 Russian Federation's res ponse to Pa nel question No. 13(c ), para. 44 (emphasis added). In response 
to Panel question No. 9 (paras. 29 and 30), the Russian Federation argue s: 
In our view, there is an important difference between the "exclusion" of the producer from the 
definition of the domes tic industry and inability to include the data on certain producers into the 
injury analysis.  
"Exclusion" of the producer from the domestic industry may occur only in two cases, which are specified 
in Article 4.1 (i) and (ii) of the Anti -Dumping Agreement . 
54 Russian Federation's second written submission, para. 24. (fns omitted)  
55 Russian Federation's second written submission, para. 46. (emphasis original)  
56 Russian Federation's second written submission , para. 47. (emphasis added)  
57 Russian Federation's response to Panel question No. 64, paras. 20 -22. WT/DS479/ R 
 
- 24 - 
 
  them whose collective output of the products constitutes a majo r proportion of the 
total domestic production of those products, except that:  
(i) when producers are related to the exporters or importers or are 
themselves importers of the allegedly dumped product, the term 
"domestic industry" may be interpreted as refer ring to the rest of the 
producers;  
(ii) in exceptional circumstances the territory of a Member may, for the 
production in question, be divided into two or more competitive markets 
and the producers within each market may be regarded as a separate 
industry if (a) the producers within such market sell all or almost all of 
their production of the product in question in that market, and (b) the 
demand in that market is not to any substantial degree supplied by 
producers of the product in question located elsewh ere in the territory. In 
such circumstances, injury may be found to exist even where a major 
portion of the total domestic industry is not injured, provided there is a 
concentration of dumped imports into such an isolated market and 
provided further that t he dumped imports are causing injury to the 
producers of all or almost all of the production within such market.58 
Thus, "domestic industry" may be interpreted as either  the domestic producers as a whole of the 
like products or domestic producers whose coll ective out put constitutes a major proportion of the 
total domestic production of those products. On its face, Article  4.1 does not establish a hierarchy 
between the two different ways of defining the domestic industry.59 There are two express 
exceptions to the chapeau rule set out in Articles  4.1(i) and 4.1(ii). Article  4.1 does not provide for 
other exceptions.  
 
7.10.  The use of the passive voice  ("shall be  interpreted ") in the chapeau may give rise to some 
ambiguity as to who bears the obligation to interpret "d omestic industry". The context of that 
provision strongly suggests that Article  4.1 imposes an obligation on the investigating authority  of 
a Member as it defines the domestic industry in the context of an investigation. In this respect, we 
make the follow ing two observations about the context of the chapeau:  
a. Article  4.1(ii) is an exception to the chapeau. It is also drafted in the passive voice.60 It 
nevertheless is unambiguous: it specifies what an investigating authority can do 
differently under that exce ption in respect of the obligation set out in the chapeau. 
Because the exception and the obligation must necessarily apply to the same entity, it is 
clearly the investigating authority that must bear the obligation in the chapeau of 
Article  4.1. 
b. Article  4.2 is also written in the passive voice, and describes consequences if the 
exception in Article  4.1(ii) is applied.61 This obligation ("anti -dumping duties shall be 
                                               
58 Fn omitted.  
59 Panels and the Appellate Body have not made specific findings in this respect. In EC – Fasteners 
(China) , the Appellate Body observed that "Article 4.1 thus juxtaposes  two methods for definin g the term 
'domestic industry'", but did not elaborate further. (Appellate Body Report, EC – Fasteners (China) , para. 411). 
In our view, the use of the word "or" indicates the lack of a hierarchy between the two options. The disputing 
parties appear to acc ept the view that there is no hierarchy between the two methods. (European Union's first 
written submission, para. 35; and Russian Federation's first written submission, para. 67). However, the 
European Union argues  that there could be a "practical" prefer ence by investigating authorities to define 
domestic industry on the basis of total domestic production, precisely to avoid any risks of violating Articles 4.1 
and 3.1.  (European Union 's response to Panel question No. 11, paras.  40-43). 
60 Article 4.1(ii) p rovides in part:  
[I]n exceptional circumstances the territory of a Member may, for the production in question, be 
divided into two or more competitive markets and the producers within each market may be 
regarded as a separate industry … In such circumstanc es, injury may be found to exist …  . 
We note that the exception set out in Article 4(i) is also in the passive voice.  
61 Article 4.2 provides:  
When the domestic industry has been interpreted as referring to the producers in a certain area, 
i.e. a market as defined in paragraph 1(ii), anti -dumping duties shall be levied only on the 
products in question consigned for final consumption to that area.  (fn omitted)  WT/DS479/ R 
 
- 25 - 
 
  levied" in a more limited fashion) is imposed on the Member  whose investigating 
authority conducted the investigation and defined the domestic industry.  
Accordingly, where a Member's definition of "domestic industry" does not meet the requirements 
of Article  4.1, that Member acts inconsistently with its obligations under that provision.62 
 
7.11.  Article  4.1 imposes a substantive obligation on a Member to "define" the "domestic 
industry" subject to the injury analysis under Article  3 as either  "the domestic producers as a 
whole of the like products" or "those of them whose collective output of the products  constitutes a 
major proportion of the total domestic production of those products". "A major proportion" is one 
that is "important, serious or significant"63, but that may be less than 50% of the total domestic 
production.64 Finally, producers of domestic l ike products may not be left out of the definition of 
domestic industry on the basis of considerations or selection methods that, by their nature, are 
likely to distort  the subsequent injury determination . For example, it is clear that an investigating 
authority may not leave out an entire group of domestic producer of the like product, as happened 
in EC – Salmon (Norway)65 or limit the domestic industry to only those producers willing to 
participate in the investigation by providing data for a sample, as ha ppened in EC – Fasteners 
(China) .66  
                                               
62 Indeed, we note that in Argentina – Poultry Anti -Dumping Duties  the panel arrived at the same 
conclusion:  
Article 4.1 provides that the term "domestic industry" "shall" be interpreted in a specific manner. 
In our view, this imposes an express obligation on Members to interpret the term "domestic 
industry" in that specified manner. Thus, if a Member wer e to interpret the term differently in the 
context of an anti -dumping investigation, that Member would violate the obligation set forth in 
Article 4.1.  
See Panel Report, Argentina – Poultry Anti -Dumping Duties , para. 7.338.  
63 Panel Report, EC – Fasteners (China) , para. 7.226.   
64 The use of the indefinite rather than the definite article modifying "major" suggests that the drafters 
did not intend that the term "major proportion" in Article 4.1 mean "more than 50%". See Panel Reports, 
Argentina – Poultry Ant i-Dumping Duties , para. 7.341; and EC – Fasteners (China) , para 7.226.  
65 The European Communities had defined the product under consideration as "farmed (other than wild) 
salmon, whether or not filleted, fresh, chilled or frozen". (Panel Report, EC – Salmo n (Norway) , para. 7.108). It 
then did not include in the domestic industry:  
[C]ertain categories of enterprises in the domestic industry based on the nature of their specific 
activities (filleting -only undertakings, organic producers, and producers of "cer tain kinds" of 
salmon).  
Panel Report, EC – Salmon (Norway) , para. 7.107. (fn omitted)  
The panel concluded that it saw:  
[N]o basis in the text of Article 4.1 which would allow for the exclusion from the domestic 
industry, as a category or group, of producer s of any form of the like product – in this case, 
producers of any of the "presentations" identified by the EC as the like product – "farmed (other 
than wild) salmon, whether or not filleted, fresh, chilled or frozen".  
Panel Report, EC – Salmon (Norway) , para. 7.112 . 
66 As the Appellate Body found:  
It is not disputed, however, that the Commission limited the definition of the domestic industry 
to those producers who "fully cooperated in the investigation". … 
In our view, by defining the domestic industry on  the basis of willingness to be included in the 
sample, the Commission's approach imposed a self -selection process among the domestic 
producers that introduced a material risk of distortion. First, we fail to see the reason why a 
producer's willingness to be included in the sample should affect its eligibility to be included in 
the domestic industry, which is a universe of producers that is by definition wider than the 
sample.  
…  
 
[B]y limiting the domestic industry definition to those producers willing to be part of the sample, 
the Commission excluded producers that provided relevant information. In so doing, the 
Commission reduced the data coverage that could have served as a basis for its injury analysis 
and introduced a material risk of distorting the in jury determination.  
 
Appellate Body Report, EC – Fasteners (China) , paras. 426, 427, and 430.  WT/DS479/ R 
 
- 26 - 
 
  7.2.3   Evaluation by the Panel  
7.12.  The Russian Federation's initial argument in respect of the definition of domestic industry 
indicated that the domestic industry was defined as Sollers after both Sollers and GAZ had 
submitted the ir data. According to the Russian Federation, the DIMD was unable to include the 
deficient data of GAZ in its analysis and for this reason GAZ was not included in the definition of 
domestic industry. As the Russian Federation observed67, the Investigation R eport proceeds 
chronologically, from the A pplication to the conclusion of the investigation by the DIMD. We recall 
the facts as set out in the Investigation Report and explained in the Russian Federation's early 
submissions:  
a. Sollers filed the  Application o n 3 October 201168; 
b. the DIMD initiated the investigation on 16 November 201169; 
c. the DIMD identified the domestic like product in the notice of initiation70; 
d. the DIMD identified the universe of domestic producers of the like product as comprising 
Sollers and G AZ71;  
e. the DIMD then sent "domestic producer" questionnaires to both Sollers and GAZ, and 
received responses from both72; 
f. the DIMD reviewed the responses received and determined that the data from GAZ were 
"deficient"73;  
g. the DIMD defined the "domestic indust ry" as comprising  Sollers74; and  
h. the DIMD conducted its injury determination solely on the basis of data regarding 
Sollers.75 
                                               
67 Russian Federation's response to Panel question No. 13 , para. 40:  
Thus, the domestic industry, as defined for the purpose of the injury analysis, was defined i n 
Section 4.2 of the Report.  
Russian Federation's response to Panel question No. 13(a), para. 41:  
 
GAZ is not part of the domestic industry, as defined for the purposes of the injury analysis and 
explained in Section 4.2 of the Report.   
Russian Federation' s response to Panel question No. 13(b), para. 43:  
The final decision not to include GAZ into the injury analysis is a part of the final Report and the 
Decision of the Board of the Eurasian Economic Commission.  
 
68 European Union's first written submission,  para. 10.  The Russian Federation  does not disagree.   
69 Investigation Report, Section 1.1;  and Order of the Ministry of In dustry and Trade of the 
Russian  Federation No. 1587, Notice of Initiation (15 November 2011) , (Exhibit RUS -2), p. 1.  
70 Order of the M inistry of Industry and Trade of the Russian Federation No. 1587, Notice of Initiation 
(15 November 2011) , (Exhibit RUS -2), p. 1.  
71 Investigation Report, section  1.1; Russian Federation 's response to Question 1 posed by the 
European  Union , para s. 1 and 2; Russian Federation's response to Panel question No. 14, para. 45.  
72 Investigation Report, section  1.2. 
73 Investigation Report, sections  4.2 and 5.3.2; Russian Federation's first written submission, para. 42 
(referring to JSC "Gorkovsky Avtomobilny Zavod" G AZ Questionnaire response , Letter No. 15/OD/3/2012, 
16 March 2012 , (Exhibit RUS -15) (BCI ); Russian Federation 's response to Panel  question No. 13, paras. 42 
and 44; Russian Federation's response to Panel question No. 14, para. 45 ; Russian Federation's resp onse to 
Question 1 posed by the European Union, para. 1.  
74 Investigation Report, section  4.2; Russian Federation 's response to Panel question No. 13, paras. 40, 
41 and 43 ;Russian Federation 's response to Panel question No. 14, para. 45.  Russian Federation' s response to 
Question 1 posed by the European Union, para. 1.  
75 Russian Federation's first written submission, para. 43; and Investigation Report, section 4 ; 
Russian  Federation 's response to European Union 's question No. 3, para. 6.  WT/DS479/ R 
 
- 27 - 
 
  According to this version of events76, the investigation proceeded on the basis of an initial 
identification of domestic producers of  the like product, a review of data provided by those 
producers and the definition by the DIMD of the "domestic industry" as comprising  Sollers on the 
basis of its 87 .9% share of total domestic production of the like product.  
 
7.13.  If the definition of domesti c industry as "a major proportion" of the domestic producers of 
the like product rested solely on quantitative considerations, in our view the DIMD's definition of 
the domestic industry as comprising only Sollers would be unexceptionable. It is not necessa ry for 
us to determine precisely what percentage constitutes "a major proportion"; indeed, this is a 
matter that must be determined based on the facts of each case. In the facts of this case, we find 
that an 87 .9% share of total domestic production falls w ell within the quantitative  bounds of the 
term "a major proportion".77 As well, we note that there is no hierarchy between the two possible 
ways of defining "domestic industry". Accordingly, where an investigating authority properly  
defines the domestic ind ustry on the basis of "a major proportion", it is no more required to 
explain or justify78 either  its choice of how it defined domestic industry, or its definition, than if it 
had defined the domestic industry on the basis of "domestic producers as a whole. " 
7.14.  It is useful, in this context, to address the first and second b ases on which the 
European  Union challenges the domestic industry definition: that Sollers was merely an 
"assembler" of the like product, and that GAZ was also a producer of petrol -engine LCVs. Neither 
consideration is relevant to the definition  of domestic industry in this case. First, Article  4.1 does 
not make a distinction between "assemblers" and "producers" (in the sense these terms are used 
by the European Union) . There may well be a ca se where the actual activity of an " assembl er" 
might justify the conclusion that that particular assembler is not , in fact,  a "producer" of the like 
product . There is no evidence before us that that was the case here79; indeed, the European Union 
does not a rgue that Sollers is not a "domestic producer", only that GAZ is a more integrated 
producer and therefore should also have been included in the definition of domestic industry. 
Second, the domestic like product was defined as certain diesel -engine LCVs80; nothing in 
Article  4.1 requires the inclusion in the "domestic industry" of a producer of a potentially 
competitive product that is not the like product.81 Neither singly nor cumulatively do these 
arguments  vitiate the findings of the DIMD under Article  4.1. 
7.15.  Meeting the quantitative threshold of Article  4.1 is a necessary but not a sufficient condition 
of fulfilling its requirements as a whole. As indeed the parties to this dispute agree, the definition 
of domestic industry under Article  4.1 has both a quanti tative and a qualitative aspect.82 They also 
agree that at a minimum, a qualitative assessment of "a major proportion" definition of domestic 
industry implies ensuring that the approach  of the investigating authority to the definition of or its 
methodology  for selecting the domestic industry does not create a risk of material distortion.83 
Viewed in this light, the approach  of the DIMD to the domestic industry definition in this case gives 
                                               
76 We underline that th is chronology is based on the text of the Investigation Report and the first written 
submission of the Russian Federation. It was not further argued by the Russian Federation.  
77 We do not consider persuasive the fourth  basis of the European Union for its c hallenge of the 
domestic industry definition by the DIMD.  (See European Union's first written submission, para. 58 ). In 
quantitative terms, an average of 87 .9% of total domestic production of the like product over the period 
considered constitutes "a major  proportion" of that production.  
78 European Union's first written submission, paras. 35 -43; second written submission, paras. 26 -34; 
opening statement at the first meeting of the Panel, paras. 19 -22; and response to Panel question No. 1, 
paras. 1 -4. 
79 We have not been made aware of any evidence to this effect before the investigating authority.  
80 FEACN CU  Code 8704 21 310 0 , Motor vehicles for the transport of products, other, with internal 
combustion piston engine with compression ignition (diesel or semi) , with a gross vehicle weight not exceeding 
5 tons, other, with a n engine cylinder capacity exceeding 2500 cc., new ; FEACN CU  Code 8704 21 910 0 , Motor 
vehicles for the transport of products, other, with internal combustion piston engine with compression i gnition 
(diesel or semi), with a gross vehicle weight not exceeding 5 t., other, with an engine cylinder capacity not 
exceeding 2500 cc., new .  
81 Indeed, to do so would likely be inconsistent with that provision .  
82 Appellate Body Report,  EC – Fasteners (C hina) (Article 21.5 – China) , paras. 5.298 -5.303.   
83 The European Union, in its statement at the second substantive meeting with the Panel, suggested 
that there may be instances where a qualitative assessment of the producers  themselves might be required 
before "a major proportion" is defined. (European Union's opening statement at the second meeting of the 
Panel, paras. 11 -15; closing statement at the second meeting of the Panel, para. 8). For the reasons set out in 
this part of the analysis, we  are scepti cal about the appropriateness of a  qualitative  assessment of the 
producers before the domestic industry is defined.  WT/DS479/ R 
 
- 28 - 
 
  rise to three concerns that, considered together, lead us to find erro r in its definition of domestic 
industry:  
a. The investigating authority decided to not include in its definition a known producer of 
the like product that had provided data and sought to cooperate in the investigation 
after having reviewed that producer's da ta. This sequence of events gives rise to an 
appearance of selecting among domestic producers based on their data to ensure a 
particular outcome, resulting in an obvious risk of material distortion in the subsequent 
injury analysis.  
b. The reasons given by th e Russian Federation for the DIMD's decision to not include GAZ 
in the definition of domestic industry were not set out in the Investigation Report and 
thus constitute impermissible post hoc rationalization.  
c. Even if the reasons given were actually those of  the DIMD (albeit unexpressed), they are 
not such reasons as a reasonable and unbiased investigating authority could have relied 
upon to not include GAZ  in the definition of domestic industry . Specifically, the 
Russian  Federation argues that "it was imposs ible to distinguish confidential and 
non-confidential data" in GAZ's Questionnaire  response .84 Nothing in Article  4.1 provides 
for defining the domestic industry on the basis of the alleged failure of a producer in 
separating out confidential and non -confid ential data; the only required quality for 
domestic industry is to be a producer of the like product. The Russian Federation further 
argues that data from GAZ suffered from gaps and inaccuracies. Nothing in Article  4.1 
suggests that a Member may ignore a d omestic producer for the purposes of defining the 
domestic industry  on the basis of alleged "gaps" in the information the producer has 
provided to the investigating authority. Data problems can always arise in the course of 
an investigation, but the issue here is the definition  of the domestic industry and not the 
quality of the data that might be provided by the producers included in the domestic 
industry.85 
7.16.  As a matter of fact, based on the events  set out in the Investigation Report , we conclude 
that the D IMD defined the domestic industry as Sollers only after it received Questionnaire 
responses from both Sollers and GAZ.86 As a matter of law, w e find that , for the reasons set out 
above,  the DIMD acted inconsistently with Article  4.1 in its definition of "do mestic industry".  Where 
an investigating authority makes injury and causation determination on the basis of information 
related to an improperly defined domestic industry, it acts  inconsistently with various provisions of 
Article 3 .87 In the light of the cl aims of the European Union in this case, based on our findings 
above in respect of Article  4.1, we find that the DIMD consequently acted inconsistently with 
Article 3.1.  
7.17.  Having found inconsistency on the basis of the evidence on the record, we ordinarily w ould 
end our examination of the claim regarding domestic industry here and proceed to the other 
                                               
84 Russian Federation's first written submission, para. 47.  
85 We appreciate the challenges faced by an investigating authority in terms of da ta collection. In 
particular, we are deeply sensitive to the expressed desire of the Russian Federation to ensure that the findings 
of the DIMD are based on positive evidence in accordance with Article 3.1. We reiterate, however, that the 
definition of dom estic industry and the collection and use of data from that domestic industry are separate 
issues. Where producers included in the domestic industry fail to cooperate with the investigation, the 
investigating authority faces obvious challenges. It may be f orced to repeatedly seek additional information, 
and may face difficulties in verifying information received. It may ultimately have to proceed on the basis of 
less than complete information regarding the domestic industry, or facts available  from secondar y sources . 
However, the possibility of such consequent difficulties cannot affect the legal obligations of the investigating 
authority under Article 4.1 . Where – as in this case – an investigating authority is choosing among domestic 
producers for purposes  of defining the domestic industry, data collection concerns cannot be a consideration 
for determining which specific producers are included in the domestic industry and which are not. This is 
especially the case where, as in this instance, the investigati ng authority has already reviewed producer data. 
Without impugning the integrity of the DIMD, the risk of result -driven choices and a distorted determination is 
simply too great for such a procedure to be acceptable.  
86 The notice of initiation described th e domestic industry  as Sollers only. The Russian Federation 
explained, however,  that the notice of initiation did not in fact reflect the definition of the domestic industry, 
but the standing of Sollers . (Russian Federation's response to Panel question  No. 14(a), para. 46).  
87 Panel Report, EC – Salmon (Norway) , para. 7.124.  WT/DS479/ R 
 
- 29 - 
 
  claims in this dispute. Three considerations persuade us to address the full range of arguments 
presented by the Russian Federation:  
a. the Russian Federation's la ter assertions in respect of the timing  of its definition of 
domestic industry  appear to be  consistent with the sequence of events presented by the 
European Union in its submissions88; 
b. aside from the apparently chronological order of events set out in the I nvestigation 
Report, there is no direct evidence of  what happened from the time of the Application up 
to the Draft Report in respect of  the definition of the domestic industry , and the Russian 
Federation is quite emphatic, in its later representations, tha t the correct sequence of 
events is set out in these later representations; and  
c. a more comprehensive set of findings may facilitate implementation in the event our 
findings are adopted by the DSB.  
7.18.  In this light, we address, in the alternative89 the argument s of the Russian Federation that 
the DIMD:  
a. initially  defined the domestic industry as comprising both Sollers and GAZ, and 
determined to consider only data from Sollers because of deficiencies in GAZ's data; and  
b. redefined  the domestic industry as compris ing only Sollers after an initial definition 
comprising both.  
7.19.  In respect of what we consider to be the first alternative argument, in its second written 
submission, the Russian Federation sets out the following chronology90: 
a. the DIMD initially  defined the " domestic industry" as including both GAZ and Sollers;  
b. having received and reviewed GAZ's data, the DIMD did not find the data to be usable; 
and 
                                               
88 European Union's first written submission, paras. 23 -33; second written submission, para 22.  
89 We stress that the Russian Federation does not make these arguments in the alternative. R ather, the 
various arguments may be seen as evolutions of the initial argument over the course of the proceedings.  
90 Russian Federation's second written submission, para. 24:  
The investigating authority expressed its willingness to include GAZ into the do mestic industry 
for the purposes of the injury analysis (sent a questionnaire for the producer of the like product 
in the CU, sought clarifications regarding the Questionnaire Reply ). (fns omitted)  
Russian Federation's second written submission, para. 46:  
At the outset, the domestic industry was defined as all known domestic producers of the like 
product. The scope of the domestic industry was defined following the definition of the like 
product. This is an important step because the domestic industry is li mited to only those 
domestic producers that produce a like product . (emphasis original)  
Russian Federation's second written submission, para. 47:  
Hence, the domestic industry, from the outset, included both known domestic producers of the 
like product, nam ely Sollers and GAZ.  
Russian Federation's second written submission, para. 48:  
After the initiation of the investigation the investigating authority sent questionnaires to both 
known domestic producers. Both of them replied to the questionnaires.  
Russian Federation's second written submission, para. 52:  
[A]s the data of GAZ could not be included into the injury analysis, GAZ could not be considered 
as part of the domestic industry for the purposes of injury determination. This statement, 
however, is withou t prejudice to a priori definition of the domestic industry that included both 
known domestic producers, namely GAZ and Sollers.  WT/DS479/ R 
 
- 30 - 
 
  c. in the light of the data deficiency, the DIMD ultimately defined the domestic industry to 
include only Sollers.  
We note that this sequence of events, though unsupported by evidence91, is not disputed by the 
European Union.92  
 
7.20.  In this regard, the Russian Federation appears to argue that the "positive evidence" 
requirement of Article  3.1 constitutes another exception to the domestic industry definition set out 
in Article  4.1.93 
7.21.  We do not find this line of argument persuasive, for four reasons:  
a. Article  4.1 expressly provides for only two exceptions from an already -defined domestic 
industry, and data deficiency is not one  of these.  
b. Nothing in either Article  4.1 or Article  3.1 suggests that the "positive evidence" 
requirement of Article  3.1 creates an additional  exception  to Article  4.1.94 Indeed, the 
definition of domestic industry necessarily precedes the examination and c onsideration 
of the data collected from domestic producers, including the quality of the data, in the 
context of making a determination of material injury to the domestic industry as defined.  
c. Nothing in Article  4.1 conditions the definition  of the domesti c industry on an a priori  
assessment of the quality of the data provided by individual producers in the domestic 
industry as defined. In this regard, we recall that Sollers itself was required to provide 
additional supplemental data. If the Russian Federat ion's position were correct, the 
DIMD could not have "defined" the domestic industry as comprising Sollers until 
Sollers ' data had been submitted and found not to be deficient. Nothing on the record 
suggests that that was the case.  
d. As explained above, ass essing the data collected from domestic producers before  
defining the domestic industry in itself gives rise to a risk of material distortion in the 
ensuing injury analysis.  
7.22.  We emphasize that the arguments of the Russian Federation in this respect are not 
supported by the chronology  of events  set out in the Investigation Report itself. Nevertheless, 
even if we were to accept as a matter of fact  the Russian Federation's contention that the DIMD 
made an " a priori  definition of the domestic industry that inclu ded both known domestic producers, 
namely GAZ and Sollers ", we would consider that the DIMD acted inconsistently with Article  4.1 by 
excluding  GAZ from a previously defined industry on a basis other than one of those permitted by 
the exceptions in Article 4.1. Where an investigating authority makes injury and causation 
determination on the basis of information related to an improperly defined domestic industry, it 
acts inconsistently with various provisions of Article 3 .95 In the ligh t of the claims of the 
European  Union in this case, based on our findings above in respect of Article  4.1, we find that the 
DIMD consequently acted inconsistently with Article 3.1.  
                                               
91 Neither the Russian Federation nor the European Union directs us to any evidence on the record to 
support this particular chr onology or  the conclusion that GAZ was excluded from the definition of domestic 
industry because of deficiency  in the data it submitted .  
92 In its second written submission , the European Union asserts that the domestic industry was 
originally defined as in cluding both GAZ and Sollers, and GAZ was subsequently excluded from further 
consideration . 
93 Russian Federation's second written submission, para. 52; first written submission, paras. 41 -43; 
opening statement at the first meeting of the Panel, paras. 7 -11; and response to Panel question No. 7, 
para. 27.  
94 This is separate from the question of whether Articles 3.1 and 4.1 should be "read together" such that 
the definition of "domestic industry" under Article 4.1 is subject to the "objective assessment" and  "positive 
evidence" requirements of Article 3.1, a question that we need not resolve in this case. (European Union's first 
written submission, paras. 18, 40 -43, and 66; Brazil's third -party submission, paras. 8 -19; Japan's third -party 
submission, paras. 1 1-17; Turkey's third -party submission, paras. 5 -16; and United States' third -party 
submission, paras. 5 -12). 
95 Panel Report, EC – Salmon (Norway) , para. 7.124.  WT/DS479/ R 
 
- 31 - 
 
  7.23.  In respect of what we consider the second  alternative argument (or an ancillary to the first 
altern ative argument ), the Russian Federation argues that the DIMD initially defined the domestic 
industry as comprising both Sollers and GAZ, but that in the course of the investigation and in the 
light of data problems, it redefined  the domestic industry to comprise only Sollers. That is, the 
Russian Federation asserts that, first, as a matter of law, an investigating authority has the right 
to redefine the domestic industry where the evidence requires it to do so; and second, this is what 
happened  in this case : there was an initial definition  of the domestic industry as comprising both 
Sollers and GAZ, with a subsequent redefinition  leaving GAZ out.  
7.24.  In support of its legal position, the Russian Federation makes the following arguments:  
a. "neither the Anti -Dumpin g Agreement, nor the WTO jurisprudence specifies the precise 
moment at which the domestic industry shall be defined and the circumstances when the 
domestic industry may be redefined"96; 
b. "at the outset [of an anti -dumping investigation] all known domestic pr oducers of the 
like product constitute the domestic industry"97; and  
c. "[t]he final definition of the domestic industry is linked to the scope of information on 
domestic producers that is available at the time when the final determination is made. … 
the dome stic industry at the final stage may be different from the domestic industry 
defined at the outset of the investigation."98 
The Russian Federation then sets out the circumstances in which the definition of domestic 
industry may evolve over the course of the  investigation. These are: evidence of the existence of 
domestic producers not known to the investigating authority, failure of a domestic producer to 
respond to the questionnaire or provide a complete response, or redefinition of the like product.  
 
7.25.  The Eu ropean Union does not disagree that under Article  4.1 an investigating authority may 
"redefine" the domestic industry. It argues that:  
[I]t could happen that a so -considered "known domestic producer" in reality does not 
make the product concerned, or that it is related to an exporting producer. In those 
cases, the investigating authority can adjust its definition of "domestic industry" within 
the parameters of Article  4.1 of the AD Agreement.99  
It disagrees, however, that an investigating authority may adju st the definition of the domestic 
industry  on the basis of deficiency of questionnaire responses or "any other reason not foreseen in 
Article  4.1".100 
 
7.26.  We do not consider it appropriate – or necessary – to make a definitive finding in respect of 
the possibil ity or modalities of "redefinition" of domestic industry under Article  4.1 on the basis of 
these arguments. Nor are we convinced that the scenarios set out by either the European Union or 
the Russian Federation are helpful in defining the scope of a right to redefine domestic industry for 
the purpose s of this case. We make the following observations:  
a. Nothing in Article  4.1 justifies the use of data problems of the kind identified by the 
Russian Federation as a basis for redefinition. The disputing parties h ave identified 
instances where the definition of domestic industry may be adjusted to take account of 
new or changed facts relevant to the specific parameters of Article  4.1. However, this 
does not mean that a redefinition that has the potential of materia lly distorting an injury 
analysis would be consistent with Article  4.1. 
b. On the facts of this case, neither the asserted initial definition nor the alleged 
redefinition  finds support in the record. The first mention of the definition of "domestic 
industry" is found in section 4.2 of the Investigation Report, and it refers only to Sollers. 
                                               
96 Russian Federation's response to Panel question No. 62, para. 1.  
97 Russian Federation's respon se to Panel question No. 62, para. 2. 
98 Russian Federation's response to Panel question No. 62, para. 3. 
99 European Union's response to Panel question No. 62, para. 3. 
100 European Union's response to Panel question No. 62, paras. 3 and 4.  WT/DS479/ R 
 
- 32 - 
 
  There is no evidence of a "redefinition" of the domestic industry in the Investigation 
Report, or any other document in the record brought to our attention by the parties.  
7.27.  We underline that the arguments of the Russian Federation in this respect are not supported 
by the chronology of relevant actions and events set out in the Investigation Report itself and thus 
in our view constitute attempts  at post hoc rationalization . Nevertheless, even if we were to accept 
as a matter of fact  the Russian Federation's argument that the DIMD made an " a priori  definition 
of the domestic industry that included both known domestic producers, namely GAZ and Sollers ", 
we would consider that th e DIMD acted inconsistently with Article  4.1 by including GAZ in the 
initial definition of the domestic industry and then purporting to redefine  the domestic industry to 
not include GAZ on the basis of considerations not consistent with the parameters of A rticle 4.1. 
Where an investigating authority makes injury and causation determination on the basis of 
information related to an improperly defined domestic industry, it acts  inconsistently with various 
provisions of Article 3 .101 In the light of the claims o f the European Union in this case, based on 
our findings above in respect of Article  4.1, we find that the DIMD consequently acted 
inconsistently with Article 3.1.  
7.3  Selection of "non-consecutive periods of non -equal duration " for the injury and 
causation an alyses  
7.3.1   Introduction  
7.28.  The European Union  claims  that by selecting "non-consecutive periods of non -equal  
duration " for the examination of the tr ends for the domestic industry,  the DIMD's injury 
determination was not based on an objective examination of  positi ve evidence, c ontrary to  
Article  3.1 of the A nti-Dumping  Agreement . In the light of the alleged breach of Article  3.1, the 
European Union  also makes  consequential  claims  under Articles  3.2, 3.4, and 3.5 .102 Specifically , 
the European Union argues  that: 
a. the DIMD examined the data on a non-equal  basis because it considered data relating to  
the two  half-year periods  of the period of investigation (POI, i.e. the 2nd half of 2010 and 
the 1st half of 2011 )103, whereas for the rest of the period  of trend analysis it e xamined 
full year data ( i.e. 2008, 2009,  2010, and 2011 ). The comparison of half -year data with 
data examined on an annual basis cannot lead t o any meaningful conclusions on the 
trends in the development of an industry and,  therefore, does not constitute a n objective 
examination of the data104;  
b. the DIMD  examined the data on a non -consecutive basis by compar ing the two half -year 
period s of the POI  (i.e. the 2nd half of 2010 and the 1st half of 2011) with the 
corresponding  period s of the respective previous  years (i.e. it compared the 2nd half 
of 2010 with the 2nd half of 2009, and the 1st half of 2011 with the 1st half of 2010) .105 
The DIMD's  use of non-consecutive periods  makes it  impossible to follo w the temporal 
development of the state of the domestic indust ry and "to obtain an accurat e and 
representative picture of the state of the industry"106;  
c. the DIMD failed to  provide an explanation as to why the use of "non-consecutive periods 
of non -equal  duration " was necessary in this case107; and  
                                               
101 Panel Report, EC – Salmon (Norway) , para. 7.124.  
102 European Union's first written submission , para. 70.  
103 The DIMD  split the POI into two periods (2nd half of 2010 and 1st half of 2011) and compared data for 
each of the se periods  with data for the corresponding  period of the preceding year (i.e. it compared the 2nd half 
of 2010 with the 2nd half of 2009, and the 1st half of 2011 with the 1st half of 2010). (See European Union's first 
written submission , para. 89 ). 
104 European Union's first written submission , para. 93. 
105 European Union's first written submission , paras. 99 and 100. 
106 European Union's first written submission , para. 101.  
107 European Union's first written submission , para. 68. WT/DS479/ R 
 
- 33 - 
 
  d. the DIMD failed to systematically  compare data  for the entire period  on an end -point to 
end-point basis ( i.e. 2008 compared to 2011)  for all factors it examined , and selectively 
sought to depict the most negative picture of developments in the domestic industry.108 
7.29.  The Russian Fe deration argues that the European Union has failed to demonstrate that the 
DIMD acted inconsistently  with Articles  3.1, 3.2, 3.4, and 3.5 of the A nti-Dumping  Agreement.109 
Specifically , the Russia n Federation argues that :  
a. the DIMD  analysed  the data pertaini ng to the state of the domestic industry for each of  
the calendar years  2008, 2009, 2010 , and 2011 , including the changes on a 
year-on-year basis . The evaluation of the trends for the two half -year periods of the POI  
compared to the corresponding  periods o f the respective previous year s was 
supplementary  to the trend analysis conducted on a year-on-year basis110; 
b. the European Union  did not demonstrate or even  mention how the selection of the 
periods could, in itself , lead to a result that would be more favour able to any interested 
party or group of interested parties or how, in this case, the DIMD favoured the interests 
of any interested  party, or group of interested parties.111 The European Union is factually 
incorrect in asserting that the DIMD followed an app roach suggested by Sollers in the 
Application112; 
c. the half -year periods compared by the DIMD can be considered comparable by 
definition , as they correspond  to the same intervals in the respecti ve previous years. 
Moreover, these periods are in consecutive cal endar years , and thus may be considered 
consecutive113;  
d. the DIMD's methodology of comparing the two half -year periods of the POI with 
corresponding periods of the previous years is reasonable and appropriate, and does not 
require any additional explanation .114 Nevertheless, the DIMD  provided an explanation 
concerning its consideration  of half-year periods of the POI in its Investigation Report115; 
and  
e. an end-point to end -point comparison of data for  2008 and 2011116 is not separately 
reflected in the tables in th e Investigation Report , but can be understood  by taking the 
data in the tables and making a simpl e mathematical comparison .117 Further, in the 
narrative section  of the Investigation Report, the DIMD did compare the data on certain 
economic indicators for 2011 with that for 2008 (and/or in some cases 2009, in light of  
the influence of the economic recovery ).118 
7.3.2   Evaluation  by the Panel  
7.3.2.1   Relevant provisions  
7.30.  The period s of investigation119 and data collection established by an investigating authority 
determine the sco pe of its data collection  and the time periods for its dumping and injury analysis 
                                               
108 European Union's second written submission, paras. 72 and 78.  
109 Russian Federation 's first written submission, para. 80.  
110 Russian Federation 's first written submission, paras. 121-123; second written submission, 
paras.  56-58. 
111 Russian Federation 's first written submission , para. 133; second written submission, paras. 78 -82. 
112 Russian Federation 's first written submission , para. 136. 
113 Russian Federation 's first written submission , para. 142. 
114 Russian Federation 's first written submission , para. 142. 
115 Russian Federation 's first written submission , para. 143 (referring  to Public versio n of the 
Investigation Report , (Exhibit RUS -12), part  6). 
116 By the term end -point to end -point comparison, we refer to the comparison of data for the first and 
last years of the period of consideration. In the present case, this term refers to a comparison  of data on injury 
factors for 2008 and 2011.  
117 Russian Federation 's second written submission, para. 70.  
118 Russian Federation 's second written submission, para. 71.  
119 The term of period of investigation is used in the Anti -Dumping Agreement only with resp ect to the 
investigation and determination of dumping. However, the term is generally used by investigating authorities WT/DS479/ R 
 
- 34 - 
 
  and determinations. The A nti-Dumping  Agreement does not establish any specific  period of 
investigation or period of  data collection  in an anti -dumping investigation , or any guidance for the 
selection of such periods .120 However, the selection of a period of investigation  and period of data 
collection  for the purposes of the dumping and injury investigations must be one that enables the 
investigating authority to make an injury determination based on  an objective examination of 
positive evidence, as required by Article  3.1.121 Article  3.1 provides :  
A determination of injury for purposes of Article  VI of GATT 1994 shall be based on 
positive evidence and involve an objective examina tion of both (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products , and (b) the consequent impact of these imports on domestic 
producers of such products.  
7.31.  In an injury investigation, the evidence relevant to the examination of the volume of 
dumped imports, their effect on prices of like products  and their consequent impact on the 
domestic industry will be collected for the periods established by the investigating authority, which 
must th en make its determination of injury consistently with Article  3.1.  
7.3.2.2   The periods  of investigation and data collection of the DIMD's injury and 
causation analyses  
7.32.  As we understand it, the relevant and undisputed facts are as follows . The DIMD defined the  
POI (and data collection) for the dumping investigation as the 12-month period comprising the 
second half of 2010 and the first half of 2011 . The DIMD  defined  the period of data collection  for 
the injury analysis  as the calendar  years from 1 January 2008 to 3 1 December 2011 . In the 
Investigation Report, the DIMD employed the following approach in evaluating the evidence with 
respect to injury and causation:  
a. The injury and causation sections of the Investigation Report contain tables reporting  
data, narrative e valuations of that data and conclusions.  
b. The tables report the data for each of the economic indicators for each calendar year for 
the period 2008 -2011, and for the two half -year periods comprising  the POI. They also 
report  the changes in the data for eac h period as compared with the corresponding  
previous calendar year or half -year period of the previous year. The table below 
illustrates the format of the tables: 
Table 1: format of the tables in the Investigation Report  
Injury 
factor  2008  2009  2010  POI 
1st half (2 nd 
half of 2010)  POI 2 nd half 
(1st half of 
2011)  2011  
 Data Data Data Data Data Data 
  Change 
compared 
with 2008  Change 
compared 
with 2009  Change 
compared with 
2nd half of 2009  Change 
compared with 
1st half of 2010  Change 
compared 
with 2010  
 
c. In its injury analysis the DIMD evaluated  the data on the economic indicators by 
comparing data for one period with the data for the previous year or the corresponding 
half-year period of the previous year.  
                                                                                                                                               
to refer to the period for which data is collected and analysed with respect to either the dumping or injury 
determinations, or both.  
120 See Panel Report, Egypt – Steel Rebar , paras. 7.130  and 7.131.  
121 The parties do not disagree that the choice and duration of the POI and the period of data collection 
is subject to the legal requirement of Article 3.1. ( See European Union's second written  submission , para. 66; 
and Russian Federation's second written submission , para s. 72-76). WT/DS479/ R 
 
- 35 - 
 
  d. In addition, the DIMD also described , in the narra tive portions of the investigation report, 
comparisons  between the situation in 2011 and the situation in 2008122, or 2009123 or 
both 2008 and 2009.124 
7.3.2.3   The use of alleged ly "non-equal  and non-consecutive" periods  
7.33.   The European Union  presents three main arguments  to challenge the DIMD's selection of 
the periods . We examine each in turn.   
7.3.2.3.1   Inappropriate  comparison  
7.34.  The European Union argue s that the DIMD compared  half-year data with full calendar year 
data.125 The European Union does not, however , identify any instance  in which the DIMD made 
such a comparison. T he European Union  also asserts  that the data for the POI was  contrasted  with 
the data for the previous calendar years.126 The record does not support this characterization of 
the DIMD's analysis . For each of the economic  indicators, the DIMD analysed changes from 2008 
to 2011  on a year -on-year basis:  from 2008 to 2009, from 2009 to 2010 , and from 2010 to 2011. 
In addition , it analysed  the change between the second half of 2010 ( i.e. the first half of the POI) 
and the second half of the previous year, 2009, and the change between the first half of 2011 ( i.e. 
the second half of the POI) and the first half of the previous year, 2010. Therefore, the DIMD 
compared half-year data only with other half-year data , and compare d full calendar year data only 
with other full calendar year data; in each instance , the DIMD  compared the data with the data for 
the corresponding period of the previous year . Nowhere in the Investigation Report can we find an 
indication that the DIMD com pared or contrast ed half-year data with full calendar year data.  
7.35.  Accordingly, the European Union 's argument is not supported by the record as a matter of 
fact.  
7.3.2.3.2   Splitting  the period of investigation  
7.36.  The European Union argues  that the POI was split into tw o half -year periods in order to 
"artificially show negative trends ".127 We understand that the European Union does not argue that  
splitting the POI into two half -year periods for comparison with the corresponding  periods  of the 
respective previous year s is in itself inconsistent with  Article  3.1.128 Rather, it argues that in this 
case, the DIMD split  the POI into two half -year periods  in order to artificially show negative trends 
and in having done so, it failed to objectively examine the evidence and acted inc onsistently with 
Article  3.1.  
7.37.  In support of its position, the European Union  relies on  the panel reports in  Mexico – 
Anti-Dumping Measures on Beef  and Rice and Mexico – Steel Pipes and Tubes .129 The 
                                               
122 The DIMD compared the situation in 2011 with the situation in 2008 concerning consumption volume  
and labour productivity.  (See Investigation Report, section s 4.2.6 and 4.3). 
123 The DIMD compared the situation in 2011 with the situation in 2009 concerning domestic industry's 
market share, profitability, capacity utilisation, prices , and co st of production. (See Investigation Report, 
section 4 .3).  
124 The DIMD compared t he situation in 2011 with the situation in both 2009 and 2008 concerning 
volume of production and sale . (See Investigation Report, section  4.3).  
125 European Union's first written submission , para. 93. 
126 European Union 's response to the Panel question  No. 26, para. 87. 
127 European Union's second written submission , para. 70.  
128 European Union's response to Panel question No. 24, para. 84; second written submission, para. 69.  
We note that nothing in Article 3.1, Article 3 as a whole, or indeed the Anti -Dumping Agreement as a whole, 
sets out any rules or guidance for the selection of periods of investigation or data collection. In the absence of 
such rules, whether the selection of a particular period results in an analysis and determination inconsistent 
with Art icle 3.1 can only be determined on a case -by-case basis. Where the POI is a 12 -month period spread 
across two calendar years, as in the present case, splitting  the POI into two half -year periods may allow  the 
investigating authority to make  a closer and mo re accurate evaluation  of development s in the data relating to 
the injury factors during the POI. 
129 European Union 's first written submission, paras. 85 -88; second written submission, para. 64.  WT/DS479/ R 
 
- 36 - 
 
  European  Union  also identifie s three instances in which , by splitting the POI, the DIMD allegedly 
"artificially" revealed  negative trends130:  
a. in the second half of the POI, when t he cost of production  dropped by 0.4% , suggest ing 
that Sollers was capable of cutting costs during the POI. However, the trend  from 2008  
to 2011 shows a continuous upward movement in production costs ;  
b. in the first half of the POI, when the domestic prices decreased by 1% , suggest ing that 
Sollers was required to reduce prices in 2010. However, domestic prices increased from 
2008 to 2011 on  a year -on-year basis ; and  
c. in the second half of the POI, when Sollers incurred losses. However, if the profits of the 
first half of the POI and the loss of the second half of the POI are combine d, Sollers 
would still have made profits  over the POI as a wh ole.131  
7.38.  We recall that in Mexico – Anti-Dumping Measures on Beef  and Rice , the period of 
investigation covered March to August 1999 for the purposes of the dumping determination, and 
March to August of 1997, 1998, and 1999 for purposes of the injury analysi s. The panel in that 
case noted that the Mexican investigating authority had limited its injury analysis to only six 
months (March to August ) of each of the years 1997, 1998, and 1999, and entirely disregarded 
data from the period September to February of each of these years. The panel found that an 
examination on the basis of an incomplete set of data, characterized by the selective use of data 
for limited periods of successive years for the injury analysis, could not be "objective" within the 
meaning of A rticle 3.1, unless a proper justification were provided.132 The panel also noted that  the 
domestic producers  had themselves, in their petition, suggested that the six -month period of 
March to August should be used because it reflected the period of highest i mport penetration.133 
The panel's finding was upheld by the Appellate Body on appeal.134 The facts were similar in 
Mexico – Steel Pipes and Tubes : as propos ed by  the petitioner,  the Mexican investigating authority 
relied principall y upon data from three six -month periods (July -December 1998, 1999, 2000)  in its 
injury analysis . The panel concluded that such a truncated temporal approach, considering only 
certain data for the injury analysis, did not constitute a proper establishment of the facts on which 
to base  the determination.135  
7.39.  These cases are clearly distinguishable on the facts from the dispute before us. Unlike in 
those two cases, in the underlying investigation at issue here, the DIMD:  
a. did not make an injury determination  by looking only at half -year sna pshots of data ; and 
b. did not conduct the injury analysis  on the basis of an incomplete  set of data.   
Therefore, while the findings in the  two cases relied upon by the European Union clarify the scope 
and relevance of Article  3.1 insofar as the selection of periods for data collection and analysis is 
concerned, the facts are so different that it is not a given that the outcome of our examination 
must be the same.   
 
7.40.  We now turn to the allegation that the DIMD split  the POI into two half -year periods  to 
"artifi cially show negative trends". We make the following observations:  
a. The date of initiation of the investigation was 16 November 2011.136 At the time the 
investigation was initiated  – the point at which the POI was established – a complete set 
of data was not a vailable for the second half of 2011. The DIMD could therefore not have  
intentionally selected the POI to "artificially show negative trends ". 
                                               
130 European Union 's response to the Panel question No. 26, para s. 88-91. See also second written 
submission , paras. 70  and 82-83. 
131 European  Union 's response to the Panel question No. 26, para s. 88-91. See also second written 
submission , paras. 70  and 82-83.  
132 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.81.  
133 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.83.  
134 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 188.  
135 Panel Report, Mexico – Steel Pipes and Tube s, paras. 7.252 and 7.261.  
136 Investigation Report, p. 4. WT/DS479/ R 
 
- 37 - 
 
  b. The narrative portion of the Investigation Report discussing costs and prices sets out the 
data without drawing, or suggesting, any conclusions, contrary to the European Union's 
allegations.  
c. The tables on which the narratives are based set out data, in the form of indexes, for all 
of 2011 .  
We do not read these tables and narratives to suggest anything other than wh at they actually say. 
We find nothing in the record that supports the proposition that either the POI or the period of 
data collection was selected to artificially generate a finding of injury. We find nothing in the 
record that supports the proposition th at the selection did, in fact, lead to such an artificial result.   
 
7.41.  Finally, nothing in  Article  3.1 prohibits an investigating authority from  focussing  on a part of 
the period of investigation  for a more detailed analysis of development s during that part o f the 
period of investigation . In this instance, for each of the indicators analysed in the Investigation 
Report, the DIMD analysed a complete set of data for the period from 2008 to 2011 on an annual 
basis137, and the data for the POI as compared with the corresponding period s of the respective 
previous years. The DIMD did not focus its analysis on the POI only , or on any  part of the POI only. 
Furthermore, in focussing  on the intervening trends over the POI, the DIMD applied the same 
approach  consistently to  each of the economic indicators it examined. The DIMD's more detailed 
analysis of the intervening trends during the POI revealed for some indicators , such as profits , 
negative trends either in the first half or the second half of the POI. However, that al one cannot 
lead to the conclusion  that the DIMD did not conduct an objective examination . We further recall 
that an investigating authority  is not precluded  from considering the intervening  trends during the 
period  of consideration ; in fact, it is generall y necessary that it  do so .138  
7.42.  Accordingly, the European Union has not established that the DIMD's approach had the 
intent or the effect of "artificially creating" negative  trends.  
7.3.2.3.3   Accepting a data collection period proposed by the Applicant  
7.43.  The European Uni on argues that the fact that the DIMD accepted the period s proposed in 
the Application contribute d to the lack of objectivity in the present case.   
7.44.  We note that, i n the Application , Sollers did not propose the POI actually determined by the 
DIMD, i.e. the second half of 2010 and the first half of 2011. Nor did it suggest comparing data for 
those  two half-year periods  with data for the corresponding  periods of the respective previous 
years. The following table illustrates the approach used in the Application139: 
Table 2: format of the tables used in the Application  
Injury factor  2008 2009 2010 1st half 2010  1st half 2011  
 Data Data Data Data Data 
Source: Application, (Exhibits EU -1 and RUS -1) (exhibited twice) . 
 
7.45.  We note that the data in the Application were c ollected on an annual basis for three years 
(2008 to 2010) and the first half of 2011. For the f irst half of 2011, the Application  compared data 
with the data for the previous corresponding half year period, i.e. the first half of 2010. 
Accordingly, the third argument  of the European Union  is once again not supported by the record.  
                                               
137 Except the  cost of production, for which the DIMD analysed data from 2008 to the end of the POI . 
138 In this regard, the Appellate Body in US – Steel Safeguards  warned against the risk of a simple 
end-point to end -point comparison  because " a simple end -point-to-end-point analysis could easily be 
manipulated to lead to different results, depending  on the choice of end points". (See A ppellate Body Report, 
US – Steel Safeguards , paras. 354 and 355).  The Appellate  Body has also stated that " more recent data is 
likely to provide better indications  about current injury ". (See Appellate Body Report, Mexico  – Anti-Dumping 
Measures on Rice , para. 166 ). The Panel in Ukraine  – Passenger Cars  stated that " without any analysis of the 
intervening trends … it is not clear w hether the position of the domestic industry was improving or 
deteriorating towards the end of the period of investigation. " (See Panel Report, Ukraine  – Passenger Cars , 
para. 7.269 ). 
139 Application, (Exhibits EU -1 and RUS -1) (exhibited twice) . WT/DS479/ R 
 
- 38 - 
 
  7.46.  For the reason s stated  above , we conclude that the European Union has failed to establish 
that the DIMD acted  inconsistently  with Article  3.1 by the alleged use of "non -equal and  
non-consecutive" period in its injury and causation analyses .  
7.3.2.4   Explanation for the selection of the period of data collection  
7.47.  The European Union also argues  that the DIMD failed to provide an explanation as to why 
the use of the "non -equal  and non-consecu tive" periods was necessary. The European Union  relies 
on the Recommendation concerning  the Periods of Data Collection for Anti -Dumping Investigations  
(hereinafter "the Recommendation") adopted by the Committee on Anti -Dumping Practices on 
5 May 2000  to support its argument that the DIMD should have explain ed its selection of the  POI 
and period of data collection  in this case .140  
7.48.  In its submissions, the European Union does not address the legal status of the 
Recommendation or its relevance for purposes of cl arifying and interpreting the obligations of the 
Members in accordance  with Article  3.2 of the DSU. While previous panels and the Appellate Body 
have had occasion to consider the Recommendation, they have generally refrained from 
definitively  ruling on its status and, indeed, from relying on it for interpretive purposes .141  
7.49.  Three considerations militate heavily against giving undue prominence to the 
Recommendation in our consideration of the European Union's claim regarding the alleged need to 
explain the us e of "non -equal  and non-consecutive " periods : 
a. The text of the Recommendation does not evince an y intention on the part of Members 
that it should be treated as anything other than a " useful guide to the common 
understanding of Members" .142 On its face , the Re commendation is a non -binding 
document that sets out  a common  understanding of WTO Members , not of their legal 
obligations, but  of best practices under  the Anti -Dumping Agreement.  
b. Nothing in the Recommendation suggests that it was meant to guide or influen ce the 
interpretation, by panels or the Appellate Body, of the legal obligations of Members 
under the Anti -Dumping Agreement.  
c. Members should feel confident that not every document produced by a WTO body will be 
interpreted as having legislative content or will have legal consequences for dispute 
settlement purposes.  Giving undue weight to recommendations and exhortations by, or 
exchanges of ideas in, WTO bodies risks inhibiting the work of the political and policy 
organs of the WTO.  
                                               
140 European U nion's first written submission , para. 93; second written submission , para. 65.  
141 The panel in US – Hot-Rolled Steel  stated that " the recommendation is a non -binding guide to the 
common understanding of Members on appropriate  implementation of the AD Agre ement. It does not, however, 
add new obligations, nor does it detract from the  existing obligations of Members under the Agreement. See 
G/ADP/M/7 at para. 40, G/ADP/AHG/R/7 at para. 2.  Thus, any obligations as to the length of the period of 
investigation m ust, if they exist, be found in the  Agreement itself. " (Panel Report, US – Hot-Rolled Steel , 
fn 152). The Panel in Guatemala – Cement II , stated that " this recommendation is a relevant, but non -binding, 
indication of the understanding of Members as to appr opriate implementation practice regarding the period of 
data collection for an anti -dumping investigation. " (Panel Report,  Guatemala – Cement I I, para. 8.266 and 
fn 868). In Mexico – Anti-Dumping Measures on Rice , Mexico contested upon appeal the Panel 's reference to 
the Recommendation. The Appellate Body noted that the Pane l's reference to the Recommendation was made 
"not as a legal basis for its findings, but simply to show that the Recommendation's  content was not 
inconsistent with its own reasoning ". Furthermore, the Appellate Body said the Recommendation was not a 
"decisive factor " in the Panel 's decision.  (Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , 
para. 169).   
142 WTO, Committee on Anti -Dumping Practices , Minutes of th e Meeting held on 29 April 1996, 
G/ADP/M/7  (2 October 1996 ), para. 40. The Recommendation states explicitly  that " [t]he Committee also 
recognizes, however, that such guidelines do not preclude investigating authorities from taking account of the 
particular circumstances of a given investigation in setting the periods of data collection for both dumping and 
injury, to ensure that they are appropriate in each case."  (WTO, Committee on Anti -Dumping Practices , 
Recommendation concerning the periods of data collection for Anti -Dumping investigations, G/ADP/6 (adopted 
5 May, circulated 16 May 2000), (Exhibit EU -24)). WT/DS479/ R 
 
- 39 - 
 
  7.50.  Given our understanding  of the Recommendation, we see no basis for the view put forward 
by the European Union, that the DIMD was required  to explain its selection of the POI or the  period 
of data collection .143  
7.51.  In any event, as a matter of fact  the European Union 's assertion  that the DIMD failed to 
provide an explanation as to its selection  of "non-equal  and non-consecutive" periods is incorrect . 
Even assuming arguendo it was required to provide such a justification, the DIMD  did so  in this 
instance  in the Investigation Report. Specifically, the DIMD explained  that its approach : 
(a) enable d a more detailed assessment of the trends in the injury data over the POI ; and 
(b) helped establish the time lag between  dumped imports and the injury suffered  by the domestic 
industry . This is c learly reflected  in the Investigation Report:  
[W]e believe that the division of the period of investigation into equal parts (6 months 
long) helps to carry out an objective analysis of the condition of the domestic industry 
of the CU, thanks to a more det ailed assessment  of the changes of economic 
indicators pertaining to the domestic industry of the CU during the period of 
investigation, both in relation to the same period last year, and also for the 
assessment of overall trends on the CU market , and it a lso helps to establish the time 
lag of the injury suffered  by the domestic industry of the CU as a result of dumped 
imports of the product and to possible elimination of such an economic factor in the 
case such injury is detected.144 
Thus, as a matter of fac t the DIMD provided in its Investigation Report an explanation for its 
selection of the periods of investigation and data collection that in our view is relevant, specific , 
and adequate.  
 
7.52.  For the above reasons, the European Union  has not established that the DIMD failed to 
explain its selection of the period s. 
7.3.3   Conclusion  
7.53.  For the reasons  set out above , we conclude that the European Union  has failed to establish 
that the DIMD acted inconsistently with Article  3.1 by purportedly using "non-equal  and 
non-conse cutive " periods  in the examination of developments  in injury indicators for the domestic 
industry . Having reached this conclusion , we also reject the European Union 's consequential claims 
of inconsistency under Articles  3.2, 3.4, and 3.5 .  
                                               
143 Moreover, f or the sake of completeness , we note that the Recommendation does not even stand for 
the proposition asserted by the European Union, that if the data is  not collected on an annual basis, the 
investigating authority has to explain the reasons for its methodology. Paragraph 3 of the Recommendation 
states in relevant part that:  
In order to increase transparency of proceedings, investigating authorities shoul d include in 
public notices or in the separate reports provided pursuant to Article 12.2 of the Agreement, an 
explanation of the reason for the selection of a particular period for data collection if it differs 
from that provided for in: paragraph 1 of thi s recommendation, national legislation, regulation, 
or established national guidelines.  (emphasis added)   
Paragraph 1 of the Recommendation contains only one rule concerning the period of data collection for the 
examination of injury:  
As a general rule: … (c) the period of data collection for injury investigations normally should be 
at least three years, unless a party from whom data is being gathered has existed for a lesser 
period, and should include the entirety of the period of data collection for the d umping 
investigation.  
There is no rule in the Recommendation that would require an investigating authority to collect the data on an 
annual basis. In any event, as the period examined by the DIMD was at least three years, and there is no 
allegation that th e period differed from that provided for in national legislation, regulation or established 
national guidelines, nothing in the Recommendation itself would have suggested that any explanation should 
have been provided.  
144 Confidential  version of the Invest igation Report , (Exhibit RUS -14) (BCI) , p. 54.  WT/DS479/ R 
 
- 40 - 
 
  7.4  Price suppressio n 
7.4.1   Introduction  
7.54.  The European  Union  claims that the DIMD acted inconsistently with Articles  3.1 and 3.2 of 
the Anti -Dumping Agreement by failing to  make an objective examination of the price suppressive  
effect of dumped imports based on positive evidence . The European Union challenge s four aspects 
of the  DIMD's findings145:  
a. The DIMD  constructed146 the estimated prices that would otherwise have occurred in the 
absence of dumping using an abnormally high profit  rate reported for  2009 as the 
benchmark without furth er adjustments.147 
b. The DIMD failed to properly consider  the trends of import and domestic prices in an 
objective manner by mixing up data expressed in Russian roubles (RUB)  and US dollars 
(USD)  in different  sections of the Investigation Report.148 
c. The DIMD did  not conduct its analysis  on the basis of positive evidence because the 
DIMD did not examine:  
i. import and domestic price trends  that were moving in "contrary directions" , and how 
consistently higher import prices could explain the price suppression;  
ii. the reasons for Sollers' cost increases, and consequently, whether the market would 
have accepted additional price increases by the domestic industry  after increases of 
over 30% between 2008 and 2011149; and   
iii. the impact of competition from the other domestic prod ucer, GAZ.150 
d. The DIMD did not explain or demonstrate why the alleged price suppression  was "to a 
significant degree".  In particular, t he DIMD  did not compare  the constructed target  
domestic prices and the actual prices of the domestic like product, nor did it consider the 
gap between those prices.  There would not be significant  price suppression if domestic 
prices remained consistently below  the import prices, as they had during 2008 -2011, 
because Sollers could still increase the domestic prices to at least the level of import 
prices.151  
7.55.  The Russian Federation  argues that:  
a. The DIMD constructed the estimated prices that would have been reached in the absence 
of dumped imports  on the basis of cost of producti on plus a rate of return . The DIMD 
selected  the domes tic industry's 2009 rate of return as the benchmark because in 2009 
dumped imports had  their lowest market  share  and had minimal impact on domestic 
prices.152 This rate of return was verified by  internal analysis, on the basis of publicly 
available informati on, and on the basis of high inflation and refinancing rates and the 
average rates of return of the Sollers Group  and GAZ .153 
                                               
145 European Union 's first written submission, para. 136.   
146 European Union 's first written submission , para. 140 ; opening statement at the first meeting of the 
Panel, paras. 40 -42. 
147 European Union 's response t o Panel question No. 35, para. 113.  
148 European Union's first written submission , para. 143.  
149 European Union's first written submission , paras. 153 and 154; opening  statement at the first 
meeting of the Panel , paras. 43  and 44. 
150 European Union's first wri tten submission , para. 155. 
151 European Union's first written submission , para. 158; opening  statement at the first meeting of the 
Panel , paras. 4 5-47. 
152 Russia n Federation 's first written submission, paras. 161 and 166 ; second written submission, 
para. 101. 
153 Russia n Federation 's second written submission, paras. 102 and 103. The Russian Federation 
provided the following consolidated table regarding  these rates:  WT/DS479/ R 
 
- 41 - 
 
  b. Data concerning the evolution of domestic costs of production and prices were presented 
in domestic currency (RUB) in table 4.2.5 of  the Investigation Report  concerning  the 
state of the domestic industry . For purposes of the price effects analysis , the DIMD  
converted domestic prices from RUB into USD to compare with  the prices  of the dumped 
imports , which were reported  in USD in table 5.2 of the Investigation Report.154 The 
DIMD  assessed the price trend s objectively , and took into account  currency fluctuation s 
in its Investigation Report .155  
c. The DIMD conducted its price suppression analysis in line with the views of the Appellate  
Body in China – GOES  by comparing actual  prices and estimated prices that would have 
occurred  in the absence of dumped imports :156  
i. the fact that there was no undercutting or price depression cannot preclude a 
determination of the existence of price suppression.157 There was a margin for 
increase of domestic prices, given  that the import prices were higher than domestic 
prices158;  
ii. the DIMD considered the competition  from GAZ as part of its non -attribution 
analysis159; and 
iii. because  the DIMD construct ed target domestic prices  that would have been achieved  
in the absence of dumped imports, it was not required  to analyse whether the 
market  would absorb price increases .160 The investigating  authority is only obliged to 
examine this issue if it is faced with evidence that calls into question the 
"explanatory force " of the subject imports for significant price suppression . There 
was no such evidence on the record.161 
d. Article  3.2 does not require a comparison between the estimated prices that would exist 
for the domestic like product in the absence of dumped imports and the prices that 
actually occurred  or the gap between these prices.  The DIMD compared the weighted 
average prices of the dumped imports and of the domestic like product , and compared 
the profitability and prices that actual ly occurred with the situation which would have 
occurred in the absence of dumped imports.162  
7.4.2   Evaluation by the Panel  
7.4.2.1   Relevant provisions  
7.56.  Article  3.1 of the Anti-Dumping Agreement is set out in paragraph 7.30 above. Article  3.2 
provides : 
                                                                                                                                               
Table 3: Inflation rates of the Russian Federation and the rate of return of Sollers Group  
 2008 -2011, 
average  2010  2011  2010 -2011, 
average  
Inflation rate,%  9.2 8.8 6.1 7.4 
Refinancing 
rate,%  10.0 8.25 (on 
average)  8.0 (on 
average)  8.1 
Rate of return, 
Sollers Group,%  [***] [***] [***] [***] 
 
154 Russia n Federation 's first written submission , para. 168. 
155 Russia n Federation 's first written submission , paras. 169 and 170; second written submission, 
para. 93. 
156 Russia n Federation 's first written submission , para. 178.  
157 Russia n Federation 's first written submission , para. 185 (citing Panel Report, Korea – Certain Paper , 
para. 7.243).  
158 Russia n Federation 's first written submission , para. 189.  
159 Russia n Federation 's first written submission , para. 190. 
160 Russia n Federation 's second written submission , para. 125. 
161 Russia n Federation 's second written subm ission , paras. 120 and 121. 
162 Russia n Federation 's first written submission , para s. 195 and 196  (referring  erroneously  to Exhibit 
RUS-37, table 5.2.2 ; it is Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI)) . WT/DS479/ R 
 
- 42 - 
 
  With regard to the effect of the dumped imports on prices, the investigating 
authorities shall consider whether there has been a significant price undercutting by 
the dumped imports as compared with the price of a like product of the importing 
Member, or whether the effect of such imports is otherwise to depress prices to a 
significant degree or prevent price increases, which otherwise would have occurred, to 
a significant degree. No one or several of these factors can necessarily give decisive 
guidance.  
7.57.  Article  3.2 thus requires an investigating authority to consider, inter alia , whether the effect 
of the dumped imports is to "prevent domestic price increases, which otherwise would have 
occurred, to a significant degree ". Article  3.2 does not require an investigating authority to make a 
definitive determination on whether the effect of dumped imports is significant price 
suppression.163 Article  3.2 provides no methodological guidance as to how an  investigating 
authority is to "conside r" whether there has been significant price suppression. However, an 
investigating authority's consideration of price effects under Article  3.2 is subject to the principles 
of Article  3.1 regarding an objective examination of positive evidence in the deter mination of 
injury.164  
7.4.2.2   The use of 2009 rate of return  as a benchmark  
7.58.  Before examining the European Union 's claim, we briefly describe the DIMD's price 
suppression analysis, as set out in section 5.2 of the Investigation Report.  The DIMD constructed 
estimate d domestic prices that would have occurred in the absence of dumped imports on the 
basis of the actual costs of production and a reasonable rate of return.  As to what constitutes  a 
"reasonable rate of return", the DIMD used the actual rate of return of Sol lers for 2009. The 
Investigation Report shows that the DIMD chose the 2009 rate of return as the benchmark 
because that was the year in which the market share of dumped imports was the lowest  and, for 
that reason,  the year in which the impact of the dumped  imports was minimal. The DIMD 
compared the data pertaining to a number of economic indicators  (e.g. domestic industry's prices 
and profits)  during the period of consideration with the data pertaining to the constructed 
counterfactual , and concluded that d umped import s significantly  supressed domestic prices.165 
7.59.  The European Union  argues that the DIMD's price suppression analysis was not objective 
because the high rate of return reported by the domestic industry for  2009 ([***]) that the DIMD 
used as the benc hmark for constructing domestic prices that would have been realized in the 
absence of dumped imports was not an appropriate benchmark .166 The European Union  asserts  
that in 2009 the domestic industry was not healthy , as evidenced by certain negative injury 
indicators in that year.167 The European Union contends that 2009 was marked by  temporary shifts 
in consumer preferences due to  the financial crisis.168 According to the European Union, the rate of 
return for 2009 was "abnormally high" relative to both 2008 an d 2010.169  
7.60.  The Russian Federation  makes three arguments  in support  of the DIMD's choice of 2009 as 
the benchmark year and [***] as the benchmark rate of return :  
a. the DIMD used the 2009 rate of return because  that was the year when  the dumped 
imports ' market  share was the lowest;  
b. the 2008 rate of return could not have been used because it was the start -up year for 
the domestic industry170; and  
                                               
163 Appellate Body  Report,  China – GOES , para. 130.  
164 Appellate Body Report, China – GOES , para. 130. 
165 Investigation Report , section 5.2.  
166 European Union 's first written submission, paras. 138 -142; second written submission, para. 95.  
167 European Union 's second written submission,  para. 96.  
168 European Union 's response to Panel question No s. 29, para. 98 , and 35, paras. 113 and 116 ; 
opening statement at the first meeting of the Panel, para.  41. 
169 European Union's first written submission, paras. 139, 140, 208, and 281; opening state ment at the 
first meeting of the Panel, para. 41. See also second written submission, para. 95, where the European Union 
consider the 2009 rate of return to be "extremely high" compared with those in 2008 and 2010.  
170 Russia n Federation 's first written subm ission, para. 165.  WT/DS479/ R 
 
- 43 - 
 
  c. the 2009 rate of return  was considered reasonable in the light of an internal analysis of 
the publicly available high i nflation and refinancing  rates in the Russian Federation  and 
high profit levels achieved by the Sollers Group during the period considered.171  
7.61.  The reference price for assessing price suppression under Article  3.2 is the domestic price  
"which otherwise would  have occurred". Accordingly , the consideration of price suppression is 
counterfactual in nature.172 This means that in considering whether prices have been suppressed  
to a significant  degree , an investigating authority must consider hypothetical domestic pr ices that 
would have occurred  if dumped imports had not taken place. Article  3.2 does not provide any 
guidance on how such a counterfactual consideration  should be conducted. Accordingly, an 
investigating authority has a degree of discretion in this regard . That discretion is guided, in turn , 
by the principle set out in  Article  3.1 that the determination of injury, including the consideration  
of price effects, must be based on an objective examination of positive evidence. Where, as in th is 
case, the invest igating authority constructs a hypothetical domestic price that would have occurred 
in the absence of dumped imports (target domestic price) on the basis of a rate of return and the 
actual costs of production, an investigating authority  must use a rate of return that is objective 
and that is based on positive evidence.  Such a rate of return would  take into account the particular 
circumstances of the industry and market at issue in the investigation. Given the nature of the 
required counterfactual, a rate of  return  that may reasonably be  used as a benchmark  for the 
calculation of a target domestic price  that would have been realized in the absence of dumped 
imports would be one that the domestic industry could have expected to achieve under normal 
conditions of competition in the absence of dumped imports.173 That is to say, a n objective  rate of 
return based on positive evidence for the purposes of considering price suppression under 
Article  3.2 is not a rate of return that the domestic industry might wish to achieve, but one that it 
might actually be able to achieve.  
7.62.  The DIMD chose the 2009 rate of return as the benchmark because, the Russian Federation  
asserts, 2009 was the year in which the market share of dumped import was the lowest.174 The 
Investigation Repo rt states:  
When considering a reasonable rate of return, the Department chose the rate of 
return earned by the domestic industry of the CU when selling like Product on the 
territory of the Customs Union in 2009. The aforementioned period was chosen to 
determine reasonable rate of return due to the fact that the year 2009 saw the lowest 
share of dumped imports of Product subject to the investigation in consumption on the 
territory of the Customs Union and, therefore, the impact of the dumped imports on 
the domestic industry of the CU during the aforementioned period was minimal.175 
7.63.  In the light of the counterfactual nature of the consideration of price suppression, we do not 
find it unreasonable for the DIMD to  have used the 2009 rate of return as a starting po int for its 
construction of the target domestic price . It was the rate of return actually achieved  by the 
domestic  industry during a period in which the subject imports had a low market share and did not 
have any major negative effects on the domestic indu stry. We note that the European Union  does 
not argue that the DIMD should have used the rate of return for 2008 or 2010.176 Indeed , use of 
the rates of return for either of those years would have given rise to particular problems, because:   
                                               
171 Russia n Federation 's second written submission, para. 102. The  inflation rate in the Russia n 
Federation  from 2008 to 2011 was around 9.2% on average. The refinancing rate in the Russia n Federation  
from 2008 to 2011 was 10% on average. The rate of return of the Sollers Group from 2008 to 2011 was 
16.3% on average.  
172 We note that the Appellate Body stated in China – GOES , that price suppression  "cannot be properly 
examined without a consideration of whether, in the abse nce of subject impo rts, prices 'otherwise would have ' 
increased" . (See Appellate Body Report, China – GOES , para. 141 ). 
173 We note that this is the shared view of the parties. (See European Union 's response to Panel 
question No. 29, para. 97; and  Russia n Federation 's second w ritten submission, para. 111 ). 
174 Russia n Federation 's second written submission, para. 101.  
175 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), p. 47. 
176 See European Union's second written submission, para. 97. We note that the Euro pean Union initially 
argued that the DIMD should have used the 2008 rate of return as a benchmark for its price suppression 
analysis. (See European Union's opening statement at the first meeting of the Panel, paras. 39 and 40).  WT/DS479/ R 
 
- 44 - 
 
  a. 2008 was a start -up year for Sollers' production of the like product177, and as a general 
matter, industry performance in a start -up period is likely to be out -of-line with normal 
operations178; and 
b. 2010 saw a sharp increase in dumped imports , and the beginning of the injury i dentified 
by the DIMD, as indicated  by factors regarding the state of the domestic industry .  
Accordingly, neither would necessarily have been a more appropriate  benchmark  than the rate of 
return for 2009. Finally, w e do not see the  fact that the 2009 rate  of return was the highest 
reported during the period considered as a problem in itself. In the absence of dumped import s, or 
if the level of dumped imports had remained low, the profitability of the domestic industry might 
have remained at that level, or been even higher during the remainder of the period considered .  
 
7.64.  If the rate of return used in constructing a counterfactual target domestic price is not one 
that the domestic industry could reasonably have expected to achieve in the subsequent years in 
normal conditions and in the absence of dumped imports, then using that rate of return would 
result in a consideration of the price suppressive effect of dumped imports inconsistent with 
Articles  3.1 and 3.2. For this reason, a reasonable and objective inve stigating authority may need 
to go beyond identifying the rate of return achieved in a given year if it undertakes such an 
analysis.  If there is evidence before the investigating authority of market conditions during the 
selected year that bring into quest ion whether that rate of return could be achieved in subsequent 
years under  normal conditions of competiti on and in the absence of dumped imports , an 
investigating authority may not ignore such evidence . 
7.65.  In the present case, the rate of return  of the domes tic industry increased significantly  
from 2008 to 2009, and returned to a lower level in 2010 overall. In the first half of 2011, the 
domestic industry began to suffer losses , showing a negative rate of return . 
Table 4: Rates of return of the domestic indu stry 
Year  2008  2009  2010  2nd half 
2010  1st half 
2011  2011  
Rate of 
Return  [*** ] [*** ] [*** ] [*** ] [*** ] [*** ] 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , table 5.2.2 . 
7.66.  As the DIMD  acknowledge d in the Investigation Repo rt, Sollers'  performance in 2009 was 
positively  affected by the financial crisis, during which "consumers preferred the cheap er light 
commercial vehicles,  manufactured on the territory of the Customs Union ".179 In our view, t he 
financial crisis was an extrao rdinary event  affecting the domestic industry's operations in 2009 . We 
do not consider  it reasonable for an investigating authority  to base its analysis on facts relating to 
a period in which  extraordinary conditions prevailed without, at a minimum, explai ning why the 
extraordinary conditions are not relevant to its counterfactual analysis . In our view , an 
investigating authority  may take such extraordinary conditions into account in its consideration of 
price effect s in different ways. However,  it may not ignore the possibility that such conditions will 
not continue, and should account for that fact in its analysis, including in the construction of a 
target domestic price . This could involve making an adjustment to the chosen rate of return , or 
otherwise taking extraordinary circumstances into account in considering the "explanatory force"180 
of dumped imports for price suppression. We do not mean to suggest that an investigating 
authority may not rely on a benchmark rate of return in constructing a target dom estic price that 
is less than ideal, so long as it recognizes and takes into account relevant factors in its 
consideration . An objective and unbiased  investigating authority in the underlying investigation 
would, in our view,  have questioned whether the effects of the financial crisis , including the 
                                               
177 See Soller's Updated Quest ionnaire response, 31 January 2013, ( Exhibits  RUS-3 and EU -4) 
(exhibited twice) , para. 2.5.  See also Russia n Federation 's second written submission, para. 106.  
178 This is recognized in Article 2.2.1.1 and footnote 6 of the Anti -Dumping Agreement, which rec ognize 
that costs of production are likely to be affected during start -up operations  and provide for adjustments for 
such effects.  
179 Investigation Report, section 4. 3.  
180 Appellate Body Report, China – GOES , para. 151. According to the Appellate Body, Art icle 3.2 
requires an investigating authority to consider the relationship between subject imports and domestic prices, 
so as to understand whether the former may have "explanatory force" for the occurrence of significant 
depression or suppression of the la tter. WT/DS479/ R 
 
- 45 - 
 
  preference for the domestic product , would continue and thus whether  the high rate of return  
reported in 2009 could reasonably be expected in the subsequent years in the absence of dump ed 
imports . Nothing  in the  DIMD's Investigation Report suggests that it undertook such an 
assessment in its consideration of price suppression .181 
7.67.  For the reason s above , we conclude  that the DIMD acted inconsistently with Articles  3.1 
and 3.2 by failing to take into account the impac t of the financial crisis in determining the 
appropriate rate of return in its consideration of price suppression . 
7.4.2.3   The alleged mixing of currencies  
7.68.  The European Union  argues  that:  
a. the DIMD mixed data expressed in USD and RUB without any explanation in its  price 
suppression analysis182; and  
b. because of exchange rate fluctuations, the trend of domestic prices expressed in RUB is 
different from the trend  expressed in USD.   
7.69.  The parties agree that an objective comparison  of the domestic prices and subject import 
prices requires that the prices be expressed in the same currency.183 The Investigation Report 
shows that in discussing the state of the domestic industry, the DIMD analysed the evolution of 
domestic prices in RUB , the currency in which those prices were rep orted .184 In considering the 
effect  of dumped  imports on the prices of the domestic like product , the DIMD converted the 
domestic prices from RUB into USD , and compared these with the subject import prices , which 
were reported  in USD .185 Given that the domesti c and subject import prices were not reported  in 
the same currency , in order to be able to make an objective consideration of price suppression , 
the DIMD was obliged to either convert domestic prices from RUB to USD or convert subject 
import prices from US D to RUB.  The European Union  has not pointed to any convincing reason why 
converting import prices from USD into RUB was required or more appropriate for the 
consideration  of the effect  of the subject imports  on domestic prices in this case , as opposed to 
converting  domestic prices from RUB into USD.186 It is clear to us that either conversion would 
have reflected the effects  of exchange rate fluctuations, and in particular the RUB devaluation in 
2009. Accordingly, we do not consider that, in the present case , the DIMD was obliged to convert 
the import  prices from USD into RUB  in considering price suppression .  
                                               
181 In response to questions from the Panel and in its second written submission, the Russia n Federation  
argued  that the 2009 rate of return ( [*** ]) was not abnormally high when compared with  the average rate of 
return achieved by the Sollers Group fro m 2008 to 2011, and the prevailing inflation and refinancing rates in 
the Russia n Federation . The Russia n Federation  argues that some of these figures were "public" and that 
others were part of its "internal analysis". There is no evidence in the Investiga tion Report of any such 
"internal analysis" related to inflation figures and rates of return for Sollers  and/or GAZ . In the absence of 
evidence on the record, we consider  the Russia n Federation 's assertion regarding this "internal analysis" as a 
post hoc  rationali zation, and the tables it submitted in this regard (see fn 153) as evidence not on the record of 
the investigation and therefore not to be considered . 
182 In response to the Russia n Federation 's question No. 5, the European Union  argues that in 
comparing the domestic prices and the import prices, the DIMD should have taken into account the impact of 
the exchange rate fluctuation and the change of customs duties.  
183 Russia n Federation 's first written submiss ion, para. 168;  and European Union 's response to the 
Russia n Federation 's question No. 6, para. 12.  
184 Investigation Report, section 4.2.5.  See Russian Federation's response to Panel question No.  69, 
para. 44.  
185 Investigation Report, s ection 5.2 . See Russi an Federation's response to Panel question No. 69, 
para. 43. According to the Russian Federation, the statistical value of imported  goods in the customs 
declaration must be indicated in USD in accordance with paragraph 44 of Article 15 of the Instruction o n the 
procedure for filling in the goods declaration adopted by the Decision of th e Board of EEC No . 39 on 
26 April 2012.  
186 The European Union  argues that the DIMD should have converted the import prices into RUB to 
compare with domestic prices in RUB beca use it is the local currency. (See the European Union 's response to 
the Russia n Federation 's question No. 6, para. 12). However, the European Union has not demonstrated that 
consideration of prices in the local currency is more appropriate, much less requi red, in considering price 
suppression.  WT/DS479/ R 
 
- 46 - 
 
  7.70.  As well, given the volatility of the RUB in this time -frame187 and, in particular, the RUB 
devaluation in 2009, whichever way the conversion was done, th e price trends observed in one 
currency are not likely to match  the trends observed when prices are converted to another 
currency. In this regard, we note that in the Investigation Report  the DIMD addressed the 
European Union 's concern that the trend in domestic prices expressed in RUB differed from the 
trend when prices were converted to USD. In  section 4.2.5 of the Investigation Report, the DIMD 
observed an upward trend in the evolution of domestic prices in RUB from 2008 to 2011. 2009 was 
singled out as the year in which the main increase  in domestic prices was observed:  
As the table  [4.2.5] shows, the period from 2008 to 2010 saw an increase in the 
weighted average price of the Product produced by the domestic industry of the CU 
and sold in the CT CU. In  general, during the period from 2008 to 2010 the price of 
Product increased by 25.8% ( [*** ]). The main increase in the price of the Product 
was observed in 2009 in relation to 2008 when the increase amounted to 25.5%  
([*** ]). In 2010, as compared to 2009,  there was a slight increase in price of 0.2% 
([*** ]). During the period of investigation, in the 2nd half of 2010, the weighted 
average price of the Product dropped by 1% ( [*** ]) whereas in the 1st half of 2011 
the price rose by 10.4% ( [*** ]). In 2011, th e increase in the price of the Product 
was 6.2% ( [*** ]).188 
The DIMD accounted  for the difference in the trends expressed in RUB and USD by factoring in the 
exchange rate fluctuation s in its consideration of price suppression  in section 5.2 . of its 
Investiga tion Report:   
 
Between 2008 and 2010, the weighted average price of the Product produced by the 
domestic industry of the CU grew by 2.8% ( [*** ]). In 2009, as a result of the 27.7% 
increase in the exchange rate of the USD versus RUB, the price fell by 1.7%  ([*** ]) 
whereas in 2010 the price rose by 4.6% versus 2009 ( [*** ]). During the period of 
investigation, in the 2nd half of 2010, the price of the Product produced by the 
domestic industry of the CU decreased by 1.9% ( [*** ]). Whereas in the 1st half 
of 2011 the price increased by 15.9% ( [*** ]). In 2011, the weighted average price 
of the Product produced by the domestic industry of the CU increased by 9.8% 
([*** ]) versus 2010.189 
7.71.  As the passage above shows, in its price suppression  analysis, the DIMD highlight ed the 
underlying reason for the decrease in domestic prices in USD in 2009 , attributing it to "the 27.7% 
increase in the exchange rate of the USD versus RUB" . Sections 4.2.5 and 5.2 of the Investigation 
Report, when read together, do not give rise to any c onfusion or distortion about the overall 
upward  trend of domestic prices expressed in RUB.  
7.72.  The European Union  does not point to any evidence suggesting that the DIMD relied on  the 
1.7% decrease of domestic prices in USD in 2009 to support any incorrect co nclusions concerning 
price effects . The DIMD 's conclusion that there was neither price undercutting nor price 
depression190 is supported by the trends of prices expressed both in RUB and in USD. Indeed, 
the 2009 decrease in domestic prices due to exchange  rate fluctuation s (i.e. lower domestic prices 
in USD terms) ma de a finding of any price undercutting  more unlikely . In its consideration of price 
suppression,  the DIMD focused on a counterfactual analysis  rather than the prices and trends set 
out in table 5. 2. The DIMD's  ultimate conclusions on price suppression are therefore based on the 
consideration of the actual situation (in terms of prices and the profit/losses) compared with the 
situation which would have occurred in the absence of dumped imports , rath er than on whether  
the domestic prices increased (in RUB) or decreased (in USD) in 2009.  
                                               
187 There was a 27.7% increase in the exchange rate of USD to RUB in 2009. (See section 5.2 . of the 
Investigation Report) . The parties do not disagree that the exchange rates fluctuation was volatile during this 
period .  
188 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), p. 40. (emphasis added)  
189 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 5.2.  (emphasis 
added)   
190 The DIMD concluded that "b ased on the inform ation received by the Department in the course of the 
investigation and analysed above, the prices of Product affected by dumped imports were not lower than the 
prices of like Product sold in the market of the Customs Union. Furthermore, the dumped imports  did not lead 
to significant depression of the prices of like Product sold on the market of the Customs Union. " (See 
Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), p. 47). WT/DS479/ R 
 
- 47 - 
 
  7.73.  For the reasons above, we find that the European Union has not established that the DIMD 
acted inconsistently with Articles  3.1 and 3.2 because the DIMD "mixed up " data expressed in USD 
and RUB without any explanation in its consideration of price suppression .  
7.4.2.4   Whether price suppression is the effect of dumped imports  
7.74.  The European Union claims that the DIMD did not properly consider evidence relevant to the 
question  whether the subject  imports have "explanatory force "191 for the occurrence of significant 
suppression of domestic prices  in four aspects .  
7.4.2.4.1   The trends in dumped import prices and domestic prices  
7.75.  The European Union presents three arguments in support of its co ntention  that the DIMD 
failed to properly consider the trends in dumped  import prices and domestic prices:  
a. the fact that dumped import prices were higher than domestic prices may suggest that 
other factors unrelated to the dumped imports were responsible for the alleged price 
suppression192;  
b. the long term price trends of dumped imports and the domestic like product  do not 
support the conclusion of price suppression193; and 
c. there was no price suppression during the POI .194 
7.76.  We begin with the European Union 's argu ment that higher import prices may suggest that 
other factors  unrelated to dumped imports were responsible  for the alleged price suppression. As 
we understand it, the E uropean Union does not argue that the fact that the import prices were 
higher than domes tic prices is in itself evidence that dumped imports did not have the effect of 
significant price suppression of domestic prices. Rather, as we understand  the European Union , as 
long as the import price is higher than the domestic price, there is room for increase in the 
domestic prices, unless the market would not allow for such an increase. The European Union  
argues that this price gap calls into question the "explanatory force" of the dumped imports for the 
alleged price suppression.  The European Union  argues that the DIMD should have  explained why 
the dumped imports have "explanatory force " for the alleged price suppression in the presence of 
such a price gap.195  
7.77.  As the European Union  acknowledges,  the fact that dumped import prices were higher than 
domes tic prices  is not in itself evidence that dumped imports do not have "explanatory force " for 
the effect of significant suppression of domestic prices . In certain situations, higher dumped import 
prices can have a su ppressing effect on domestic prices . This is most commonly observed  in 
situation s where imports  command  a price premium over the domestically produced product. In 
these situations, when dumped import prices decline, prices for the domestic product may well 
follow suit, or increase at a slower pac e, or to a lesser extent, to maintain the price differential 
necessary for the domestic industry to make sales.196 Accordingly, the absence of price 
undercutting, or the presence of a "price  gap" in the European Union 's term, does not necessarily 
preclude or  call into question the "explanatory force" of the dumped imports for the alleged price 
suppression .  
                                               
191 Appellate Body Report, China – GOES, para. 151. Accordi ng to the Appellate Body, Article 3.2 
requires an investigating authority to consider the relationship between subject imports and domestic prices, 
so as to understand whether the former may have "explanatory force" for the occurrence of significant 
depres sion or suppression of the latter.  
192 European Union's first written submission, paras. 150  and 151; second written submission, para. 110; 
and response to Panel question No. 67, paras. 17 -20. 
193 European Union's second written submission , para. 112.  
194 Europe an Union 's response to Panel question No. 67, para. 20 ; and Detailed undercutting and injury 
calculations , (Exhibit EU -32) (BCI) . 
195 European Union 's response to Panel question No. 67, paras. 17 -20. 
196 Indeed, the record shows that the present case may well have been such a situation.  During the 
investigation, the exporting producers such as Mercedes consisten tly argued that their LCVs were of much 
higher quality. Furthermore, as discussed below in paragraph  7.81, the trends in domestic and dumped import 
prices show that, since 2009, the dumped import prices decreased and remained at a lower level, thereby 
creating downward pressure on domestic prices.  WT/DS479/ R 
 
- 48 - 
 
  7.78.  In addition, where  an investigating authority constructs  a target domestic price  that 
otherwise would have occurred in the absence of the dumped imports , the methodology itself 
ensures  that the failure of actual domestic prices to rise to the level of the target domestic price is 
an effect of the dumped imports .197 Thus, i n the present case, the DIMD's use of that methodology 
itself explained the effect of th e dumped imports to suppress domestic prices in the absence of 
price undercutting and despite the price gap. In the Investigation Report, the DIMD noted first that 
there was no price undercutting. The DIMD then identified a benchmark rate of return in the year 
with the lowest dumped import penetration.  On the basis of the rate of return in that year, it 
construct ed the target domestic prices that would otherwise have occurred  in the absence of the 
dumped imports , and compared the se with the actual price situation  during the period considered . 
Because the actual prices were lower than the target domestic prices (which factored out the effect 
of dumped imports), the DIMD ultimately concluded that the effect of the dumped imports was to 
suppress domestic prices  significantly.198 We underline that the target domestic  price is the 
benchmark against which the existence and extent of "price suppression " is considered ; this target 
domestic price is calculated independently of the dumped import price . Where the gap betw een the 
actual domestic price and the target domestic price is considered,  an investigating authority is not 
required to further explain any gap between actual domestic and dumped import prices.  Given that 
the DIMD's methodology explained that the effect  of the dumped imports was to suppress 
domestic prices, the DIMD is not required to explain separately why, despite being higher priced, 
the effect of dumped imports was to prevent domestic price increases .  
7.79.  We turn to the second argument of the European Uni on, that the long term price trends of 
dumped imports and the domestic like product  do not support a conclusion  of price suppression. 
The European Union  notes that from 2008 to 2011 , domestic prices in RUB increased by [***] 
while import prices increased b y only [***]. The European Union  contends that in a price 
suppression  situation , the domestic  prices  should fail to increase or increase less than would 
otherwise be the case, while import prices decrease.199  
7.80.  We observe first that the European Union 's argum ent is premised on a simple end -point to 
end-point (2008 to 2011) comparison of domestic and import prices . Such a simple comparison 
cannot in our view be determinative of the question whether  the effect of the dumped imports was 
to suppress domestic price s to a significant  degree , as it ignores intervening developments over 
the period considered . Looking at the trends in the dumped import prices during the period of 
consideration , as shown in the tables below , we see that d umped import prices increased  
from 2008 to 2009 but then decreased in 2010 , and eventually converged with steadily increasing 
domestic prices in 2011.200 Significantly, a fter 2009, dumped impor t prices  continued  on a deep 
downward trend, despite an  additional 15% customs dut y201 imposed after  2009. This downward 
trend in dumped import prices is seen throughout the entire period  of investigation . 
                                               
197 To give an example, the d omestic price would have been higher (constructed target domestic 
price A) in the absence of dumped imports ; it increased  only to a lower level (actual domestic price B) during 
the period when dumping occurred ; it follows that the inability of domestic prices to increase  from B to A was 
the effect of dumped imports . 
198 Investigation  Report, section 5.2.  
199 European Union's second written submission , para. 112.  
200 Dumped import prices in USD increased  by 9.3% from 2008 to 2009 but decreased in 2010 by 
17.6% compared with 2009, rebound ing slightly in 2011 by 0.4% compared with 2010, and eventually 
converged with the steadily increasing domestic prices in 2011.  
201 The customs tariff for the product concerned increased from 10% to 25% as of 1 January 2009 for 
reasons unrelated to the investigation at i ssue here.  WT/DS479/ R 
 
- 49 - 
 
  Figure 1: Trends of domestic prices and dumped import prices (in USD and RUB)  
 
 
 
 
Source: European Union 's second written submission (BCI). 
 
7.81.  In its Investigation  Report, the DIMD relied on the downward pressure of dumped imports 
on prices in considering price suppression. The DIMD focused on the POI and 2011 : 
During the period of investigation, the domestic industry of the CU incurred losses  as 
a result of downward pressure on prices which [*** ]. The situation deteriorated 
significantly in 2011.202 
We consider that  in the light of the downward pressure exercised  by dumped imports on prices at 
least since 2009, the long term price trends do not, as th e European Union  argues, call into 
question the "explanatory force" of dumped imports for price suppression . To the contrary, the 
long term price trends corroborate  the DIMD's  counterfactual analysis , as the following graph 
shows.  
 
                                               
202 Emphasis added.  WT/DS479/ R 
 
- 50 - 
 
  Figure 2: Price effects  of the dumped imports  
 
 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 5.2. 
 
7.82.  We now turn to the European Union 's argument that there actually was no price suppression 
during the POI. In support of this argumen t, the European Union  relies on  a calculation it made  on 
the basis of data it first obtained during the present proceedings.203 According to the 
European  Union , this calculation shows that, using the same rate of return  of [***] that the DIMD 
relied upon to construct a target domestic price in RUB and comparing that price with the import 
prices converted to RUB , there was no price suppression during the POI.204 The Russi an Federation  
argues, inter alia , that the European Union 's argument is flawed because its calculation is based on 
an incorrect  conversion of the import prices from USD to RUB.205 According to the 
Russian  Federation,  when  converting import prices expressed in  USD to RUB , the European  Union 
divided import prices expressed in USD by the exchange rate  of USD to RUB  (e.g. 1 USD equals 
29.366 RUB for 2011)  instead of multiplying  by that exchange rate . The Russian Federation  
submits its own  calculation that shows that there was price suppression  based on the same data 
but making the proper conversion , con trary to the European Union 's argument.206 Having 
examined the calculations in the parties' exhibits EU -32 and RUS -31, we  conclude, as  the Russian 
Federation  asserted, that the European Union 's calculation was based on an incorrect  conversion of 
import price s from USD to RUB , which materially affected the result . Accordingly, we find that the 
European Union  has not established that there was no price suppression during  the POI.207 
                                               
203 See European Union 's response to Panel question No. 67, para. 20 ; and Detailed undercutting and 
injury calculations , (Exhibit EU -32) (BCI) . 
204 We note that we have doubts about the European Union's argument in this regard. The  
European  Union has not explained why its calculation methodology is preferable to that relied upon by the 
DIMD, much less demonstrated that it is required. However, as we find that the European Union's argument is 
based on an erroneous calculation, we fin d it unnecessary to consider this point further.  
205 The Russian Federation  also argues that the European Union  used incorrect data in Exhibit RUS -30, 
and the European Union  relied on  the margin of price underselling while ignoring the difference between act ual 
and estimated domestic price s. (See Russian Federation 's comments on the response of the European Union  to 
the Panel question No. 67, para s. 19-22). We rejected the European Union 's argument because it is premised 
on an incorrect calculation  which affe cted the result. Therefore, we do not need to address these arguments.  
206 See Russia 's comments on the response of the European Union  to the Panel question No. 67, 
para. 23; and Calculations with respect to price suppression , (Exhibit RUS -31) (BCI) . 
207 In the light of this conclusion, we do not consider it necessary to consider the other arguments of the 
Russian Federation  in paragraphs 19 -22 of its comments on the European Union 's response to Panel question 
No. 67.  WT/DS479/ R 
 
- 51 - 
 
  7.4.2.4.2   Whether  the market would accept additional domestic price increases  
7.83.  The European Union  argues that the DIMD  failed to examine the reasons for the increase in 
the domestic industry's costs208 and the likelihood that the market would accept additional 
domestic price increases .209 The European Union argues that the DIMD should have considered  this 
issue for three reasons:  
a. domestic prices increased between 2008 and 2009 and again between 2010 and 2011 ; 
b. there were "quality issues" with Sollers' LCVs that would have limited any price increases ; 
and 
c. there was a significant increase in the domestic  industry's cost of production due to the 
increasing cost of raw materials.210  
7.84.  The Russian Federation  argue s that there was a margin for domestic price increases given 
that the dumped import prices were higher than domestic prices.211 The Russian Federation  also 
argues that because  the DIMD construct ed a target domestic price in the absence of dumped 
imports, it d id not have an additional obligation to analyse whether the market would or c ould 
absorb price increases.212 According to the Russian Federation , an investigati ng authority is only 
required  to examine this issue if it is presented  with evidence that calls into question the 
"explanatory force " of the subject imports for the significant price suppression. The 
Russian  Federation asserts that this was not th e case here .213  
7.85.  We recall  that the DIMD's price suppression  analysis was based on the counterfactual that 
the domestic industry would achieve and maintain a certain level of prices and consequently rate 
of return  under normal market conditions  in the absenc e of dumped imports . The  Investigation 
Report does not contain any indication that the DIMD considered whether the market would accept 
additional price increases by the domestic industry . The notion that there was a margin for 
domestic prices to increase is not a part of the analysis set out by the DIMD in the Investigation 
Report . For this reason, we  view the Russian Federation 's argument that there was a margin for 
domestic price increase s as post hoc  rationaliz ation and do not rely on this assertion.  
7.86.  Turning to the question  of whether the DIMD was obliged to examine whether the market 
would have accept ed additional price increases in the present case , we note that t he parties do not 
disagree that where there is evidence before the investigating authority  that call s into question the 
ability of the market to absorb price increases , the investigating authority should  consider this 
question .214 Article  3.2 does not explicitly require an investigating authority to address  whether the 
market will continue to acc ept additional  price increases as part of its consideration of  price 
suppression. Nevertheless, the term " which otherwise would have occurred " in Article  3.2 suggests 
that an investigating  authority should at least consider  whether the market would accept price 
increases in the absence of dumped imports , when faced with relevant evidence  suggesting it 
would not . If the market would not accept price increases  in the absence of dumped imports , it 
seem s unlikely that price increase s "otherwise would have occur red". It follows in that situation 
                                               
208 The European Union  argues that " [w]hilst the [DIMD]  did not explain why Sollers' costs increased, 
evidence on the record shows that the Fiat Ducato presented several problems and several deficient parts had 
to be replaced ". (European Union's first written submission, para. 154). The European Uni on also argues that 
the significant  rise in the cost of production was " due to the raising costs of raw material s [sic]". 
(European  Union 's second written submission, para. 113 ). To the extent that the European Union  argues that 
the rise in domestic costs of production was due to the alleged "quality problems", we refer to our analysis in 
paragraph 7.89 below , where we conclude  that the evidence before the DIMD did not demonstrate the 
existence of "quality proble ms" that would affect the cost of production or the willingness of the market to 
accept further price increases .  
209 European Union's first written submission, paras. 153 and 154; response to Panel question No. 30, 
para. 99.  
210 European Union 's first written  submission, paras. 153  and 154; second written submission, 
paras.  113-116. 
211 Russian Federation 's first written submission, para. 189.  
212 Russian Federation's second written submission, para. 125.  
213 Russian Federation's second written submission , paras. 12 0 and 121. 
214 Russian Federation 's response to Panel question No. 24,  para. 65 ; and  European Union 's response to 
Panel question No. 30, paras. 101  and 102. WT/DS479/ R 
 
- 52 - 
 
  that the dumped imports could not be found to have the effect of suppressing prices – that is, 
preventing price increases  "which otherwise would have occurred " – as such price increases would 
not have occurred regardless of the effect of dumped imports .  
7.87.  As a preliminary matter , we observe  that the record does not indicate  that interested parties 
questioned  the ability of the market to absorb additional price increases , made arguments, or 
presented evidence in this regard,  before the DIMD . The European Union 's argument is based on 
the fact that prices had already increased in the domestic market, and refers to aspects of the 
record  evidence  it categorizes in the  present proceedings as evidence calling into question the 
ability of the market to absorb  additional  price increases. For example , Daimler and Peugeot 
Citroen Automobiles  (PCA) relied on alleged quality problems in support of their argument that the 
injury to the domestic industry was self -inflicted.215 Interested part ies, including Sollers, PCA, and 
Association of Turkis h Exporters from the Automotive Industry  referred to trends in the cost of 
production in their submissions, but did not make any argument concerning the ability of the 
market to absorb further price inc reases.216 Against this background, we will consider  whether , in 
the absence of any clearly raised argument s concerning the ability of the market to accept 
additional price increase, the evidence before the DIMD was such that an  objective and unbiased 
invest igating authority should nonetheless have consider ed this issue.  
7.88.  Concerning the first basis of the European Union's argument , we consider that  the fact that 
domestic prices increased during  the period of consideration cannot in itself  call into question t he 
market's ability to absorb additional price increases  in the future . There must be evidence that the 
price increases have resulted in prices having reached a level where the market will not accept any 
further increases. In the present case, there is no such evidence on the record. Indeed, the 
European Union does not even argue that the market would not accept price increases beyond the 
level they were at during the period considered .  
7.89.  Concerning the alleged quality problems, the European Union refers to Daimler's allegation 
during the investigation that there had been quality problems with Sollers' Fiat Ducato.  According 
to the European  Union , this "raised doubts that consumers would be willing to continue paying 
ever higher prices for Sollers' LCVs".217 However, t he only evidence of the alleged quality problems 
on the record is a  single article from Auto Review Magazine  reporting on the testing of one Fiat 
Ducato LCV on a cobblestone road.218 Given the limited  sample in Auto Review's testing of 
Sollers ' LCVs,  we consider that this magazine article  cannot suffice to demonstrate the existence of 
quality problems with Sollers' product of a degree that would support the conclusion DIMD acted 
unreasonably in failing to consider whether such problems affected the li kelihood that the market 
would accept further price increases . 
7.90.  Concerning the  increasing costs  of production , we note that producers will normally seek to 
pass increas ed costs of production on to consumers  in order to maintain their profit margins . There  
is no evidence and no arguments on the record to indicat e that the rising cost of production could 
not have been passed on , in the form of increased prices,  to consumers in the absence of dumped 
imports. Accordingly, we consider that the increasing costs of  production cannot call into question 
the market 's ability to accept additional price increases.  
7.91.  For the above reasons, we conclude  that the evidence on the record of the present  case was 
not sufficient to require  an objective and unbiased investigating a uthority to consider whether  the 
market would  absorb price increases  beyond th ose that actually took place in the context of its 
consideration of price suppression .  
                                               
215 Comments by Daimler and Mercedes -Benz RUS on the Report of 28 March 2013 , (Exhibit EU -19), 
p. 6 and  Comments by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 8 and 
attachment 7: Auto Review Magazine testing of Fiat Ducato and Gazelle; Minu tes of the Public Hearing of 
22 March 2012 , (Exhibit EU -9), p. 28 ; and  PCA's Injury Subm ission of 6 April 2012 following the Public Hearing 
of 22 March 2012 , (Exhibit EU -13), p. 15 . 
216 PCA's Submission of 11 April 2013 , (Exhibit EU -20), p. 4, point 1.3(e).  
217 European Union's second written submission, para. 116.  
218 Comments by Daimler and Merce des-Benz RUS on the Report of 28 March 2013 , (Exhibit EU -19), 
p. 6; Comments by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 8 and 
attachment  7: Auto Review Magazine testing of Fiat Ducato and Gazelle ; and Minutes of the Public  Hearing of 
22 March 2012 , (Exhibit EU -9), p. 28.  WT/DS479/ R 
 
- 53 - 
 
  7.4.2.4.3   Domestic  competition  
7.92.  The European Union argues that the DIMD  failed to examine whether any  price suppression 
was the effect of competitive pressure exerted by the other domestic producer, GAZ.219 The 
Russian Federation argues that the DIMD  considered competiti ve pressure from GAZ  as part of its 
non-attribution analysis in the context of Article  3.5.220 There are two issues before us:  
a. whether the Russian Federation was required to consider any alleged competitive 
pressures exerted by GAZ in the context of its consideration of price suppression; and if 
so,  
b. whether the DIMD's discussion of competitio n from GAZ in its non -attribution analysis  is 
sufficient to fulfil that obligation.   
7.93.  Article  3.2 requires that an investigating authority consider whether any price suppression 
was the effect of dumped imports.  This analysis does not duplicate the causatio n analysis required 
by Article  3.5, which has a broader  scope221 leading to a specific determination.222 At the same 
time, where there is evidence that any observed price suppression is the effect of factors other 
than dumped imports, an investigating authorit y is required to consider that evidence.223  
7.94.  In our view, given its broader scope, it  seems reasonable  that the Article  3.5 causation 
analysis may, in the circumstances of a particular case, encompass elements that are relevant to 
the consideration called fo r under Article  3.2 of whether the effect of the dumped imports is to 
prevent price increases which otherwise would have occurred . If an investigating authority 
considers such elements in its causation analysis, it seems to us an unnecessary formality to 
require that this consideration be duplicated in a separate consideration of the price suppressive 
effect of dumped imports under Article 3.2.  We recall in this regard that no determination  is 
required under Article 3.2.224  
7.95.  In the present  case, the DIMD cons idered competition from GAZ as an "other factor" 
causing injury. The Investigation Report states that:  
Based on the information obtained by the Department in the course of the 
investigation, the share of light commercial vehicles manufactured by OOO 
"Avtoz avod "GAZ" on the CU market in the period between 2008 and 2010 was 
[*** ]. In 2011, the increase in share of this producer 's Product up [*** ] was 
observed.  
However, this indicator is significantly less than the share of the dumped imports on 
the CU market.  Besides, as mentioned in the Report, the deterioration of the financial 
state of the domestic industry of the CU caused by price suppression was observed 
starting from 2010, when the share of OOO "Avtozavod  "GAZ" was insignificant. 
Therefore, OOO "Avtozav od "GAZ", starting from 2011, competed with the domestic 
                                               
219 European Union's first written submission , para. 155.  
220 Russia n Federation 's first written submission , para. 190. 
221 In China – GOES  the Appellate Body observed that:  
Interpreting [Article 3.2] as requiri ng a consideration of the explanatory force of subject imports 
for significant depression and suppression of domestic prices does not result in duplicating the 
causation analysis under [Article 3.5]. Rather, the analysis under Article 3.5 concerns the caus al 
relationship between subject imports and injury to the domestic industry , and covers a broader 
scope of elements than those relevant to an analysis under [Article 3.2].  
Appellate Body Report, China  – GOES , para. 161 (emphasis original)  
222 Under Article 3 .2, an investigating authority is required to consider  the explanatory force of dumped 
imports on price suppression; under Article 3.5  the investigating  authority is require d to demonstrat e that the 
dumped imports cause material injury through, inter alia , price effects . Having done so, Article 3.5 further 
requires the investigating authority to ensure that the injuries caused by other factors are not attributed to the 
dumped imports . 
223 Appellate Body Report, China  – GOES , para. 152. 
224 See Panel Report, Korea – Certain Paper , para. 7.253.  See also  Appellate Body Report, China  – GOES , 
para. 151. WT/DS479/ R 
 
- 54 - 
 
  industry of the CU; however, this factor was not determining in causing the material 
injury to the domestic industry of the CU.225  
7.96.  In the context of its causation/non -attribution analysis, the DIMD co nsidered the 
relationship between  price suppression, that is, the failure of prices to increase as would have 
been expected in the absence of dumped imports,  and competition from GAZ.  In particular, the 
DIMD observed that there was no temporal correlation  between injury resulting from price 
suppression and the competition from GAZ.  The DIMD stated in this regard  that "the deterioration 
of the financial state of the domestic industry of the CU caused by price suppression  was observed 
starting from 2010, when  the share of OOO 'Avtozavod 'GAZ' was insignificant".226 Given that 
Article  3.2 only requires the investigating authority to consider  the effect of the dumped imports  
on domestic prices and significant price suppression , we conclude that, to the extent cons ideration 
of whether competition from GAZ had "explanatory force " for price suppression was necessary for 
the consideration of price suppression under Article  3.2, the DIMD undertook the necessary 
consideration in the context of its causation/non -attributi on analysis .  
7.97.  For this reason, w e find that  the European Union has not demonstrated that the DIMD acted 
inconsistently with Article  3.2 by failing  to consider the effect on prices of competiti ve pressure 
from domestic producer GAZ.  
7.4.2.4.4   The change  in the level of the applicable  customs tariff  
7.98.  The European Union  argues that in assessing  the development of import prices, the DIMD 
failed to examine the relevance of the 2009 increase in customs duties on imported LCVs from 
10% to 25%.227 According to the European Unio n, the DIMD identified a "sudden drop" in import 
prices between 2009 and 2010; this drop was entirely due to the incre ase in customs duties 
in 2009. The European Union asserts that the failure of the DIMD to give due account to the 
impact of the customs du ty increase on import prices vitiated  the objectivity of the price 
suppression analysis.228 The Russian Federation argues that the DIMD provided , in table 3.4 of the 
Investigation Report , information on import prices both including and excluding customs duti es, 
and that this shows that import prices dropped in 2010 irrespective of whether customs duties 
were included in those  prices or not.229 
7.99.  In table 5.2.2 of the Investigation Report, the DIMD set out data on dumped import prices 
inclusive  of customs duties , and compared it with the actual domestic prices ( on an ex works  
basis230) and the target domestic prices. This section does not contain any discussion on the 
impact of the 2009 increase in the customs duty rate  on dumped import prices. However, t he 
DIMD note d in section  3.1 of  the Investigation Report, that :  
Import duties under FEACN codes of Russia, applied to deliveries of light commercial 
vehicles for the period from 1 January 2007 to 31 December 2008, amounted to 10% 
of the customs value. As regards supp lies of light commercial vehicles to the territory 
of the Russian Federation during the period fro m 1 January 2009 to 
31 December  2009 under codes 8704 21 310 0 and 8704 21 910 0 FEACN CU, an 
import duty of 25% of the customs value was ap plied. During the period from 
1 January 2010 to 22 August 2012 the rate of import duty on light commercial 
vehicles imported into the Customs Union under the aforementioned codes FEACN CU 
codes amounted to 25% of the customs value.231 
Moreover, in section 3.4 of the Investiga tion Report, the DIMD did set out the prices of the 
dumped import both inclusive and exclusive of customs duties.   
 
                                               
225 Investigation Report , section 5.3.2. (emphasis added)  
226 Emphasis added.  
227 European Union 's response to Panel question  No. 28, para. 95.  
228 European Union 's response to Panel question No. 28, para. 95. 
229 Russian Federation's second written submission, para. 87. 
230 An ex works  price is one where the seller makes goods available to the buyer at the seller's factory, 
and the buyer is responsible for paying for them to be t ransported to where they are needed.  (See 
International Chamber of Commerce, Incoterms® 2010 English Edition , ICC Product No. 715E (Paris: ICC 
Publications, 2010)). 
231 Investigation Report , section 3.1.  WT/DS479/ R 
 
- 55 - 
 
  7.100.   The increase in the customs duty took effect on 1 January 2009. We note that the customs 
duty rate remained at the increased level  (25%)  throughout the remainder of the period of 
consideration  and the POI – that is, f rom 1 January 2009 to 31 December  2011. Because the 
dumped import prices in 2009 and 2010 both included the same 25% rate of customs duties, the 
sudden drop in dumped import price s from 2009 to 2010 could not have been, as the 
European  Union asserts, due to the increase in the customs duty. To the contrary, as the graph 
below shows, the level of customs duty played no role in this sudden drop. We therefore conclude 
that the Europea n Union has failed to demonstrate that the increase in customs duties on imported 
LCVs had any effect on the comparability of prices or the consideration of the explanatory effect of 
dumped imports for price suppression.  
Figure 3: trends of the prices of d umped imports  
 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 3.4 . 
 
Accordingly , we find that the European Union 's argument  is incorrect as a matter of fact.  
 
7.4.2.5   "To a significant degree"  
7.101.   The European Union  argues  that the  DIMD  did not demonstrate that the alleged price 
suppression  was "to a significant degree ", because it failed to compare  the target domestic  prices 
and the actual prices of the domestic like product, and did not consider the gap between those 
prices. 
7.102.   Article  3.2 requires the investigating authority to consider "whether the effect of the 
dumped imports is to prevent price increases , which otherwise would have occurred, to a 
significant degree". A straightforward comparison of the constructed target domestic price that 
would have been achieved  in the absence of dumped imports with the actual domestic prices 
would provide a basis for an investigating authority to consider whether the difference between 
those prices suggested that there was significant price suppression . We recall, however, that 
Article  3.2 requires consideration of whether the effect of dumped imports is significant price 
suppression, but no conclusion to that effect is necessary for the analysis of whether dumped 
imports cau se material  injury to proceed. Moreover, Article  3.2 does not set out  any 
methodological  guidance on how to consider price suppression, much less on how to consider 
whether any pric e suppression was significant. In this light, there is no basis for us to conclude 
that Article  3.2 requires  a comparison between target domestic  prices in the absence of dumped 
imports and the actual prices of the domestic like product  in a market including dumped imports. 
Rather, we will review  what DIMD actually did and said with respect  to the significance of price 
suppression  in the Investigation Report , and evaluate whether its consideration was that of a 
reasonable and unbiased investigating authority, on the basis of the facts and arguments that 
were before the DIMD.  
7.103.   The DIMD set out  the following information in table 5.2.2 for each year  of the period 
considered, and for the two half -year periods comprising  the POI:  WT/DS479/ R 
 
- 56 - 
 
  a. Weighted average domestic costs of production . 
b. Actual  weighted average domestic prices . 
c. Actual rate of return of the dom estic industry .  
d. Actual profit/loss of the domestic industry . 
e. Benchmark rate of return (2009 rate of return) . 
f. Target domestic prices . 
g. Target profit/loss of the domestic industry.  
h. Difference between target profit/loss and actual profit/loss (g-d). 
i. Dumped im port prices . 
j. Difference between actual domestic prices and dumped import prices (b -i). 
k. Difference between target domestic prices and dumped import prices (f -i). 
l. Difference between target domestic prices and dumped import prices as a percentage of 
target do mestic p rice ([f-i]/f). 
The DIMD  stated:  
 
The results of calculations presented above show that the dumped imports 
significantly prevented the growth of prices for the like Product produced by the 
domestic industry in the CU. The enterprise of the domesti c industry of the CU was 
forced to keep prices down regardless of the increase in the production cost of like 
Product. Starting from the 1st half of 2011, the actual import prices were lower than 
the prices of like Product produced by enterprise belonging to the domestic industry of 
the CU, which may have occurred in the absence of dumped imports. During the 
period of investigation, the domestic industry of the CU incurred losses as a result of 
downward pressure on prices which [*** ]. The situation deterio rated significantly 
in 2011.  
Therefore, the prices of the dumped imports had a significant adverse effect on the 
prices and profits at the sales of like Product on the territory of the Customs Union, 
thus significantly suppressing the prices.232 
7.104.   The DIMD  did not explicitly compar e the actual  domestic prices  and the constructed target 
domestic prices.  However,  table 5.2.2 of the Investigation  Report sets out both the actual and 
target domestic prices . The difference between these prices is evident on the face of the table . 
Starting from the second half of the POI  and in 2011 , the difference  was larger than at any 
previous point : 
Table 5: Actual and target domestic prices  
Indicator  Unit 2008  2009  2010  POI 1st 
half POI 2nd half 2011  
Actual domestic 
prices  USD [***] [***] [***] [***] [***] [***] 
Target 
domestic prices  USD [***] [***] [***] [***] [***] [***] 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), table 5.2.2.  
                                               
232 Confidential  version of the Investigation Report , (Exhibit RUS -14) (BCI) , section 5.2.  WT/DS479/ R 
 
- 57 - 
 
  Nothing in Article  3.2 requires an investigating authority specifically to compare actual and target 
domestic prices  in considering whether the effect of dumped imports was price suppression  to a 
significant degree . It is for the European Union, as the complaining party  in this dispute , to 
demonstrate that the DIMD did not consider  evidence that was self -evidently before it, or that its 
consideration of that evidence was biased or otherwise lacked objectivity. The European Union has 
not done so in this case; it merely contends that a comparison of actual and target domestic prices 
was necessary. There is no basis for us to draw the conclusion that, having set out the relevant 
data in the Investigation Report , the DIMD did not in fact consider it, including the self-evident fact 
that the actual domestic prices were cons istently below the tar get domestic prices, apart 
from 2009, the benchmark year.  
 
7.105.   Moreover , the DIMD did compare the actual domestic prices and dumped import prices, 
and the target domestic prices  and the dumped import prices . The DIMD also considered the 
difference between the total profit/loss actually reported by the domestic industry,  and that which 
would have occurred in the absence of dumped imports  during the POI.  The DIMD then concluded 
that "dumped imports significantly prevented the growth of price s". In our view, it is beyond 
question that the DIMD did, in fact, consider whether the effect of dumped imports is significant 
price suppression , and in fact ultimately concluded that this was the case, taking account of the 
effect of the dumped imports o n the prices of the domestic like product and the profits of the 
domestic industry .  
7.106.   Finally we note that the European Union  also argues that, because dumped import prices 
were consistently  above  the actual domestic prices, any price suppression  cannot be significant .233 
As discussed above  in paragraph 7.77, the absence of price undercutting does not necessarily 
preclude a finding of price suppression . For the same reason, we consider that the absence of price 
undercutting does not demonstrate that price suppression is not "to a significant  degree".  
7.107.   For the reasons above, we conclude that the European Union  has failed to establish  that 
the DIMD did not demonstrate that the alleged price suppression  was "to a signif icant degree " 
because it did not compare  the target domestic  prices and the actual prices for the domestic like 
product . 
7.4.3   Conclusion  
7.108.   For all the reasons  set out  above , we conclude that:  
a. the DIMD acted inconsistently with Articles  3.1 and 3.2 by failing to t ake into account 
the impact of the financial crisis in determining the appropriate rate of return in its 
consideration of price suppression ; 
b. the European Union has not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.2 because the DIM D "mixed up " data expressed in USD and RUB 
without any explanation in its consideration of price suppression;   
c. the European Union has not established that the DIMD's consideration of whether the 
subject imports have "explanatory force " for the occurrence o f price suppression of 
domestic prices was inconsistent with Articles  3.1 and 3.2;  and 
d. the European Union  has not establish ed that the  DIMD did not demonstrate that the 
alleged price suppression  was "to a significant degree " because the DIMD did not 
compar e the estimated prices and the actual prices for the domestic like product . 
7.5  State of the domestic industry  
7.5.1   Introduction  
7.109.   The European Union  claims that  the DIMD's  examination  of the impact of the dumped 
imports on  the state of the domestic industry does not  constitute an objective examination based 
on positive  evidence . Specifically, t he European Union alleges that the DIMD  failed to:  
                                               
233 European Union's first written submission, para. 158.  WT/DS479/ R 
 
- 58 - 
 
  a. base its evaluation of the injury factors  on positive evidence , as evidenced by certain 
discrepancies between data in the In vestigation Report and in the Application  and/or 
Questionnaire response  of Sollers;  
b. make a proper evaluation of the injury factors in context;  
c. consider certain facts and arguments on the record;  and  
d. examine all re levant factors , including those explicit ly listed in Article  3.4.  
7.110.   The Russian Federation  argues that , in respect of certain of its claims,  the European Union  
fails to make a prima facie  case. The Russia n Federation further argues that the DIMD's  
examination of the state of the domestic industry  was internally consistent and properly took into 
account all facts and arguments on the record relating to the state of the domestic industr y, and 
thus constituted an objective examination of positive evidence.  
7.5.2   Evaluation by the Panel  
7.5.2.1   Relevant provisions  
7.111.   Article  3.1 is set out in paragraph 7.30 above. Article  3.4 provides : 
The examination of the impact of the dumped imports on the domestic industry 
concerned shall include an evaluation of all relevant economic f actors and indices 
having a bearing on the state of the industry, including actual and potential decline in 
sales, profits, output, market share, productivity, return on investments, or utilization 
of capacity; factors affecting domestic prices; the magnit ude of the margin of 
dumping; actual and potential negative effects on cash flow, inventories, employment, 
wages, growth, ability to raise capital or investments. This list is not exhaustive, nor 
can one or several of these factors necessarily give decisiv e guidance.  
Article  3.4 requires that the  injury examination shall include an evaluation of all relevant economic 
factors, including each of the fifteen listed in that provision.234 An "evaluation" of each of the 
factors in Article  3.4 requires a process of analysis and assessment  of the role, relevance and 
relative weight of each factor in the particular investigation. Where an investigating authority 
concludes that a particular factor listed in Article  3.4 is not relevant, this conclusion must be 
explained.235 
 
7.5.2.2   Data discrepancies   
7.112.   The European Union identifies the following discrepancies in data that was before the 
DIMD:  
a. data in the Investigation Report concerning  profit/profitability do not match those in 
Sollers'  Questionnaire response ; and  
b. data in the Inves tigation Report concerning  inventories do not match those in the 
Application.236 
The European Union further argues that the Russian Federation's explanations  in the present 
proceedings are  not sufficient  to clarify the discrepancies .237  
 
7.113.   The Russian Federatio n does not  dispute the existence of the data discrepancies  identified 
by the European Union . The Russian Federation argues that:  
                                               
234 Appellate Body Report, Thailand – H-Beams , para. 125 .  
235 Panel Report, EC – Bed Linen (Article 21.5 –India) , para. 6.162.  
236 European Union's first written submissi on, para. 192.  
237 European Union's second written submission, para. 127; opening statement at the first meeting of 
the Panel, para. 50.  WT/DS479/ R 
 
- 59 - 
 
  a. discrepancies in data do not, on their own, establish  a prima facie  case of violation of 
Articles  3.1 and 3.4238; and  
b. the observe d discrepancies can be explained in the light of the sources of the data in 
question.239  
7.5.2.2.1   Profit/profitability  
7.114.   The European  Union argues that:  
a. data in the Investigation Report concerning  profit/profitability do not match those in the 
Questionnaire respo nse240; and  
b. developments based on the data in the Investigation Report and Sollers' Questionnaire 
response show notable unexplained differences .241  
7.115.   In our view, as a general matter, discrepancies between two sets of data do not in 
themselves bring into question t he quality of the data or demonstrate the relevance of the 
existence of the discrepancy to the determinations that follow; mere discrepancy does not mean 
that the data sets are not "positive evidence"242 or that an evaluation based on such data is not 
object ive. In the same vein, discrepancies in data sets on the record or different trends observed 
in the different data sets on the record do not, in themselves, bring into question the 
reasonableness or the objectivity of the evaluation conducted by an investi gating authority under 
Article  3.4. Indeed, such discrepancies often arise in anti -dumping investigations. This is because 
during an anti -dumping investigation, d ata are submitted with the initial application, and further 
data are collected from questionna ire response s and other sources. Data  may be verified, revised, 
corrected or supplemented  before being considered in the decision -making process and relied upon 
in the final determination . Where data in questionnaire responses are verified and corrected be fore 
being evaluated  in the final determination , the investigating authority is certainly entitled to rely 
on the verified data in its evaluation . To demonstrate that a discrepancy in data vitiates the 
cogency of the evidence or the objectivity of the anal ysis, a complainant must demonstrate more 
than the mere existence of a discrepancy. It must demonstrate that the discrepancy had 
consequences in terms of the analysis and conclusions: for example, that different data from that 
considered and relied upon wa s not only better, but that the discrepancy was so meaningful as to 
bring into question the reasonableness or objectivity of the evaluation required under Article  3.4.  
7.116.   On the facts of this case, the European Union has identified discrepancies between the 
data supplied by  Sollers in its Questionnaire response, and the data relied on  by the DIMD in its 
Investigation Report. However, the European Union has not demonstrated in what way any 
identified discrepancy brings into question the probative value of the evidence actually relied upon 
by the DIMD, or the reasonableness and objectivity of the determination based on that evidence. 
We note that the Questionnaire response of Sollers was submitted to the DIMD on 30 March 2012 , 
and was updated and corrected on at  least two occasions during the investigation, upon request 
from the DIMD.243 Therefore, discrepancies between the data in these documents and that in the 
                                               
238 Russian Federation's first written submission , para. 204; see also , para s. 206, 213 , and 214.  
239 Russian Federation's fi rst written submission , para s. 206, 207, 211, and 212; second written 
submission, paras. 137 -140. 
240 European Union's first written submission, paras. 193 -204.  
241 European Union's opening statement at the second meeting of the Panel, para. 44.  
242 We recall that "positive evidence" is:  
[E]vidence that is relevant and pertinent with respect to the issue to be decided, and that has 
the characteristics of being inherently reliable and creditworthy. Under the positive evidence 
criterion of Article 3.1, the questi on whether the information at issue constitutes "positive 
evidence" – i.e., is relevant, pertinent, reliable, and creditworthy – is assessed with respect to 
the particular issue at stake and the particular circumstances of a given case.  
Panel Report, Mexic o – Steel Pipes and Tubes , para. 7.213 (citing Appellate Body Report, Mexico – 
Anti-Dumping Measures on Rice , paras. 164 and 165 ) 
243 The Questionnaire response was submitted by Sollers on 3 March 2012 and subsequently updated on 
31 January of 2013 and on 13  February of 2013. (See Russian Federation's second written submission, fn 221 ). 
See also Sollers' Questionnaire response, 3 March 2012, (Exhibit EU -3); and Soller's Updated Questionnaire 
response, 31 January 2013, ( Exhibits  RUS-3 and EU -4) (exhibited twic e). WT/DS479/ R 
 
- 60 - 
 
  Investig ation Report are not surprising  and are not in themselves sufficient to prove that the DIMD 
failed to base its evaluation of profit/profitability on positive evidence. We stress that, other th an 
referring  to the discrepancies, the European Union does not even attempt to call into question the 
relevance, pertinence or quality of the aggregated  profit /profitability data that the DIMD actually 
relied upon  or the reasonableness and objectivity of the evaluation of that data .244  
7.117.   Accordingly, we find that the European Union has failed to demonstrate that the DIMD's 
evaluation of profit/profitability was not  based on an objective examination of positive evidence 
before it and thus has not established that the DIMD acted inconsistently with Articles  3.1 and 3.4 
in this regard.   
7.5.2.2.2   Inventories  
7.118.   The European Union argues that:  
a. data in the Investigation Report conce rning inventories do not match those in the 
Application245; and  
b. by not taking into account the inventories of Turin Auto, an LCV dealer related to Sollers, 
the DIMD relied on a partial picture of the domestic  industry's inventories.246 
7.119.   The Russian Federation c onfirmed that the inventory data in the Investigation Report 
pertained to Sollers only.247 However, the Russian Federation argues, the European Union fail ed to 
establish a prima facie  case by merely pointing out the discrepancies.248 The Russian Federation 
further argues that Article  3.4 requires an investigating authority to evaluate inventories, but does 
not provide any guidance on how this is to be done. The Russian Federation contends that the 
DIMD provided an evaluation of inventory data  of Sollers  in its Investigation Report, and thus 
complied with this aspect of Article  3.4.249 
7.120.   In our view, with regard to the discrepancies between the data in the Application and the 
Investigation Report , as discussed above, the mere existence of discrepancies between the da ta in 
the Application and that ultimately relied upon by the investigating authority in its determination 
does not, without more, establish that the DIMD acted inconsistently with Articles  3.1 and 3.4.  We 
note in particular that the purpose of an applicati on is to provide evidence to allow an investigating 
authority to decide whether initiation of an investigation is warranted. It is generally  understood 
that the evidentiary standard for initiation is lower than for a final determination .250 After the 
initiat ion, an investigating authority  is required  to investigate and gather evidence relevant to all 
aspects of the analysis and determinations to be made, and then to consider, examine, and 
evaluate that entire body of evidence in  the light of the arguments mad e by interested parties in 
making its determination  of injury . Discrepancies between the evidence in an application, or in 
questionnaire responses, and the evidence on which a determination  of injury  is based are to be 
expected, and cannot, standing alone,  call into question the determination of injury of an 
investigating authority.  
                                               
244 While it may be true that there was little that the European Union could do to advance its claim in 
this case other than pointing to the discrepancies before  receipt of the Russian Federation's first written 
submission and accompanying exhibits , give n it did not have access to the confidential data and analysis in the 
Investigation R eport, that does not relieve it of its burden of proof , particularly once it did have relevant 
information available to it . The European Union nevertheless raise s the conc ern that production of the 
confidential version of the Report and the subsequent acceptance by a panel in a WTO dispute, risks opening 
the door for WTO Members to be able to adjust the confidential version of the Investigation Report in light of 
the argume nts made by the complaining party in the dispute. (European Union's second written submission, 
para. 4 ). 
245 European Union's first written submission, paras. 200 -204. 
246 European Union's second written submission, para. 130 ; response to Panel question No. 45 , 
para. 141. 
247 Russian Federation's response to the European Union's question No. 7, para. 12; and Investigation 
Report, fn 6 (indicating that the source for information on the changes in stocks was "questionnaire data from 
ООО Soll ers-Elabuga"). See also Russian  Federation's first written submission, para. 211.  
248 Russian Federation's first written submission, para. 213.  
249 Russian Federation's second written submission, paras. 139 -142. 
250 See, for example, Panel Report s, US – Softwood Lumber V , para. 7.54 ; and Mexico – Steel Pipes and 
Tubes , para. 7.22.  WT/DS479/ R 
 
- 61 - 
 
  7.121.   In this case, the European Union has identified discrepancies between the data in the 
Application and the Investigation Report . It has not , however,  demonstrated how these 
discrepancies bring into question the data actually relied upon by the DIMD in its evaluation of the 
state of the domestic industry , or the objectivity and reasonableness of its evaluation of that data . 
Accordingly, the European Union has not demonstrated that the DIMD's evaluation of inventories 
was not based on an objective examination of positive evidence.  
7.122.   We turn next to the European Union's argument that , by not considering the inventories of 
Sollers' related dealer Turin Auto251, the DIMD relied on a partia l picture of inventories, and 
consequently, that it failed to objectively examine positive evidence of the domestic industry's 
inventories. We recall that Article  3.4 requires the evaluation of "all relevant economic factors and 
indices having a bearing on  the state of the industry". One factor that is specifically set out in 
Article  3.4, and therefore must be evaluated, is "inventories" . We further recall that  Article  3 is 
concerned with the determination of injury; that is, "material injury to a domestic industry ".252 As 
a rule, the evidence to be considered and evaluated for this purpose must be evidence pertaining 
to the domestic industry as defined in the investigation. We find nothing in Article  3.4 that 
suggests to us that an investigating authority is generally required to consider the inventories of a 
dealer related to a domestic producer, but not itself a producer of the like product and therefore by 
definition not part of the domestic industry. We do not exclude the possibility that in certain 
circum stances, evidence pertaining to such a related trader may constitute evidence pertaining to 
"a relevant economic factor []" having a bearing on the state of the industry such that an 
investigating authority is required to evaluate it. However, the relevance  of such evidence would 
have to be demonstrated to the investigating authority, on the basis of the facts of the particular 
investigation , in order that the investigating authority can be satisfied that it relates to the 
domestic industry and is therefore to be considered.  
7.123.   In the present  case, the DIMD defined the domestic industry as Sollers. The evaluation of 
the state  of the domestic industry required by Article  3.4 therefore required the DIMD to consider 
the state of Sollers , including its inventories .253 The European Union has not pointed to any 
evidence before the DIMD that would support the conclusion that Turin Auto's inventories were a 
relevant economic factor having a bearing on the state of the domestic industry producing LCVs.254 
For this reason, we  conclude that the European Union has not established that the DIMD acted 
inconsistently with Articles  3.1 and 3.4 in not considering the inventories data of Sollers' related 
trader in the Investigation Report.  
7.5.2.3   Failure  to properly examine all relevant inju ry factors in a proper context  
7.124.   The European Union  argues that  the DIMD  failed  to examine all injury factors in a proper 
context  in four respects . We examine each of these arguments in turn.  
                                               
251 There is no dispute that Turin Auto is a trading house related to Sollers. (See Russian Federation's 
response to the European Union's question No. 5, para. 10).  
252 Article 3, fn 9 to the title. (emphasis adde d) 
253 The panel in Egypt – Steel Rebar  took a similar approach regarding profits. That panel concluded that 
an investigating authority is not required to examine "all factors affecting profits ," taking the view that  the 
text of Article 3.4 only requires an examination of the domestic industry's profits:  
[T]he text [of Article 3.4] … lists a variety of such factors and indices that are presumptively 
relevant to the investigation and must be examined, one of which is "profits". The text does not 
say … "all fac tors affecting profits". To us, this text means that in its evaluation of the state of 
the industry, an investigating authority must include an analysis of the domestic industry's 
profits.  
 
Panel Report, Egypt – Steel Rebar , para. 7.60  
254 We further note th at, in the present proceedings, the European Union has not presented any 
evidence or argument in support of its proposition that the inventories of Turin Auto should have been taken 
into account by the DIMD in its evaluation of the state of the domestic in dustry.  WT/DS479/ R 
 
- 62 - 
 
  7.5.2.3.1   "End -point to end -point" comparison  
7.125.   The European Union argues255 that the DIMD did not systematically undertake an 
"end-point to end -point"256 analysis of the data. For this reason, the DIMD did not conduct an 
objective evaluation of the evidence before it. The European Union  contends that the DIMD had to 
assess the trends b y making both an end -point to end -point compa rison (i.e. comparing 2011 
with 2008) and a year -on-year comparison (2008 -2009, 2009 -2010, 2010 -2011) in order to make 
an objective evaluation based on positive evidence.257 The Russian Federation  asserts  that the  
DIMD did in fact conduct an end-point to end -point comparison  in the  narrative  discussion  in the 
Investigation Report. The Russian Federation  contends that the DIMD's injury analysis should be  
viewed as a whole to include the tables, the narrativ es, and the conclusions.258 
7.126.   We recall that an investigating  authority is required, pursuant to Article  3.1, to base its 
determination of injury on positive evidence and an objective examination of , inter alia , the impact 
of dumped  imports on the domestic industry, an d that Article  3.4 sets out factors to be considered 
in this regard. However, neither provision sets out requirements as to how an investigating 
authority is to conduct its examination or make its determination. One common method of analysis 
is to examine trends in the data concerning the Article 3.4 factors over time, in order to evaluate 
changes in the state of the domestic industry. In general , when examining trends in the data 
pertaining to the Article  3.4 factors over the period being considered, there  are various options. An 
investigating authority may examine trends by comparing the data from the beginning of the 
period considered and the end of that period ( end-point to end -point comparison ), or by 
comparing data for specified intervals (for instance , on an annual, semi -annual, monthly, or other 
basis), or some combination of approaches. Which approach an investigating authority may cho ose 
in a particular case will depend on the nature of the particular industry it is examining and the 
information before it.  
7.127.   If an investigating authority only compares data from the last year of the period of 
consideration to data for the first year, without also examining changes, or trends, over the 
intervening period, concerns may arise about  the adequacy, and ultim ately, the objectivity, of the 
examination. This is because an end-point to end-point comparison is open to manipulation by 
selecting different end points. The outcome of such a comparison, in terms of the direction of any 
changes, will depend on the choic e of the two end points.259 An end -point to end-point comparison 
could also mask intervening trends and thus the developments in the data for the injury factors 
during the period considered. If there are such changes, these may well be relevant to 
considerat ion of both the state of the industry at the end of the period, as well as during the 
                                               
255 The European Union makes arguments  concerning the DIMD's failure to make end -point to end point 
comparisons in two separate sections of its submissions . We consider it appropriate to a nalyse the 
European  Union's arguments  in the context of its cl aims concerning the state of the domestic industry.  
In its first written submission, the European Union had addressed  this argument  in the section 
concerning the state of the domestic industry (section 5.4.3.3.1). In its second written submission, the 
European Union argue d, in the section concerning the selection of time periods (section 3.2.2.3), that the 
DIMD failed to systematically make an end -point to end -point comparison of data for all of the economic 
indicators. (See European Union 's second written submission, paras. 72 -78). In response to our question , the 
European Union  clarified  that its end -point to end -point argument is made  in the context of its claims under 
Articles 3.1 and 3.4 . The European Union  explained that it had also referred to this ar gument in the context of  
its claims concerning the selection of the time -periods to illustrate the significant contrast  between the DIMD's 
use of the alleged " non-equal  and non-consecutive " periods, and the objective picture that would follow from 
consider ation of consecutive time periods of equal duration in the context of a longer -term comparison of data 
from 2008 to 2011 . (See the European Union's response to Panel question  No. 65, paras. 12  and 13). The 
Russian Federation argue s that the European Union 's end -point to end -point argument does not in any way 
touch upon the issue of selection of periods at the initial stage of the process of injury analysis , and is thus 
irrelevant to the European Union 's claim concerning the selection of time -periods.  (See R ussian Federation's 
response to Panel question No. 65, para. 23 ). In the light of the parties' submissions, and the fact that we 
have rejected above the European Union 's claims concerning the selection of the time -periods, we do not find it 
necessary to address the European Union' s end -point to end -point argument in the  context of its claims 
concerning the selection of the time -periods.   
256 In the present case, the European Union uses this term to refer to a comparison of data for injury 
factors in 2008 and 2011.  
257 European Union's second written submission , paras. 72 -78. 
258 Russian Federation's second written submission , para. 61.  
259 Appellate Body Report, US – Steel Safeguards , para. 354.  The Appellate  Body's statement in that 
case was made in reference to th e increase of imports. However, the same would apply by analogy in relation 
to the  data for economic indicators in the context  of the injury analysis.  WT/DS479/ R 
 
- 63 - 
 
  period, and the impact of the dumped imports on the state of the industry over the period 
considered. Such concerns do not arise if the investigating authority undertakes  only a 
year-on-year comparison of data, because in such a case, the end-point to end -point comparison 
is not masked, but is readily apparent in the data describing the year -on-year changes. Indeed, in 
the present proceeding the European Union  presented it s own end -point to end -point comparison  
based on  the data in the public version of the Investigation  Report.260 It might be preferable for an  
investigating authority undertaking a year-on-year analysis of data also to explicitly set out the 
end-point to end -point changes observed, but this is not  required .  
7.128.   We note that, in respect of some of the data it exa mined, the DIMD did set out an 
end-point to end -point comparison.  In the narrative  sections  of the Investigation Report, the DIMD 
set out the data showing  changes from 2008 to 2011 for labour activity, domestic production by 
volume and domestic sales by volume261, and from 2009 to 2011 for domestic market share, 
capacity utilisation, production costs , and domestic prices.262 For certain economic indicators such  
as consumption, domestic production by volume and domestic sales by volume, the DIMD made 
end-point to end -point comparisons  between 2011 and both 2008 and 2009.  
7.129.   In this respect, where an investigating authority compares data for different factors on an 
end-point to end -point basis, but uses different starting points within the period of consideration 
without  justification or explanation263, concerns may arise about  the sufficiency and objectiv ity of 
the examination.264 It leaves open the possibility that the selection of the star ting points may have 
been result -driven .265 Nevertheless, in the absence of a specific  requirement in the Anti-Dumping 
Agreement , we do not consider that lack of consistency in  the selection of beginning or ending  
points in an end-point to end -point comparison  in itself  gives rise to an inconsistency with 
Articles  3.1 and 3.4. Such an inconsistency must be demonstrated by reference to the examination 
under Article  3.4 as a whole. Thus, the question before us is whether, on the facts of th is case, the 
European Union has demonstrated that the fact that the DIMD  used different starting points for 
the end-point to end -point comparison s it made in the course of its analysis resulted in a 
determination that a reasonable and objective investigati ng authority could not have made.  
7.130.   In support of its claim, t he European Union refers to two instances in which the DIMD 
allegedly  used different starting points "to depict the most negative picture of the developments in 
the domestic industry "266:  
a. The DIMD  found that the domestic  industry's market share decreased by 20.1 % between 
2009 and 2011. However, if 2008 had been used as the starting point, the domestic 
industry's market share would have shown an increase of [*** ]%.  
b. The DIMD found that the domestic industry's cost of production increased by 42.7% 
whereas domestic prices increased by only 6.4% between 2009 and 2011. However, if 
                                               
260 European Union's first written submission , fn 91; see also second written submission , para. 78. The 
European Union stated that "the European Union  reconstructed  based on the public version of the F inal Report 
the 2008 -2011 trends".  
261 Investigation Report , section  4.2.6; Russian Federation 's answers to the European Union question  
No. 11, para. 22; and Europe an Union's second written submission , para. 74.  
262 Investigation Report , section  4.3; European Union's second written submission , para. 75; and 
Russian Federation's second written submission , para. 71.  
263 The Russian Federation  argues that the DIMD compared the situation in 2011 with 2008 or 2009, in 
light of the impact of the financial crisis.  (See Russian Federation's second written submission , para. 71; and 
response to Panel question No. 65, paras. 33 -36.). However, there is no indication in the  Investigat ion Report 
that the choice of the beginning and ending points for comparison wa s linked to the impact of the financial 
crisis. Therefore, we consider  the Russian Federation 's arguments in this regard to be post hoc  rationali zation.  
264 We recall that the pan el in Argentina – Poultry  Anti-Dumping Duties  considered that "there is a prima 
facie case that an investigating authority fails to conduct an 'objective' examination if it examines different 
injury factors using different periods. Such a prima facie  case may be rebutted if the investigating authority 
demonstrates that the use of different periods is justifiable on the basis of objective grounds (because, for 
example, data for more recent periods was not available for certain injury factors)." (Panel Report , Argentina – 
Poultry  Anti-Dumping Duties , para. 7.283 ). 
265 Appellate Body Report, US – Steel Safeguards , para. 354.  The Appellate Body stated that " a simple 
end-point-to-end-point analysis could easily be manipulated to lead to different results, depending  on the 
choice of end points. A comparison could support either a finding of an increase or a decrease in import 
volumes simply by choosing differe nt starting and ending points".  
266 European Union's second written submission, paras. 76 -78. WT/DS479/ R 
 
- 64 - 
 
  2008 had been used as the starting point, the cost of production would have increased 
by [*** ]% while domestic  prices increas ed by [*** ]%.  
7.131.   In addressing these arguments, we recall the nature of the concern we have identified with 
end-point to end -point comparisons: where  an investigating authority compares data from the last 
year of a period to data for the first year without a lso examining intervening trends, the concern is 
that the analysis  could be manipulated to provide  different , possibly desired , results . We recall that  
in the present  case, the DIMD examined the data from multiple  perspectives , rather than relying 
exclusiv ely on an end -point to end -point comparison . Indeed, the DIMD primarily relied on a 
year-on-year comparison in considering the data. Moreover, the DIMD's determination of material 
injury during the POI is primarily based on development s in the latter  years  of the period 
considered , in the light of the impact of the financial crisis  (that is, post -2009) .  
7.132.   With respect to the domestic industry's market share, it  is true that , had  the DIMD 
used 2008 as a starting point, the domestic industry's market share wou ld have shown an increase 
rather than a decrease. However , the 2008 -2011 comparison is only one of the different possible  
ways to look at the same data and does not undermine the conclusion that the domestic industry's 
market share  decreased from 2009 to 2 011 on a year -on-year basis .  
7.133.   With respect to the cost of production, using 2008 as the starting point of comparison 
results in a numerically different comparison between the increase in costs and the increase in 
prices from beginning to end of the period,  but does not change the nature or direction of the 
comparison. What the European Union has presented is simply an alternative way of looking at the 
data. However, it has failed to demonstrate that this alternative was the only, or the necessary, 
way of lo oking at this data objectively in this case. Nor has the European Union demonstrated how 
failing to use 2008 as the starting point undermined the DIMD's conclusion  on the basis of the data 
it considered,  that the increase in domestic prices did not keep up with the rising cost of 
production.  Accordingly, in the present case, based on the facts before us, we consider that the 
failure of the DIMD to compare the data for 2011 with 2008  in these two contexts did not 
undermine its evaluation of these economic in dicators . We therefore find that the European Union 
has failed to demonstrate  that the DIMD acted inconsistently with Articles  3.1 and 3.4 by failing to 
systematically compare data for 2011 with data for 2008 for all economic indicators in the present 
case. 
7.5.2.3.2   Profit/profitability for the first half of 2011 and the full year 2011  
7.134.   The European Union argues that in table 4.2.5 of the Investigation Report the DIMD only 
indicated that there were "losses" in the first half of 2011 and the full year 2011, without gi ving 
actual figures for the losses. The European Union argues that this approach "breaks" the 
presentation of a trend in the evolution of the profit/loss.267 The European Union contends that the 
mere suggestion that some undisclosed amount of "losses" would have happened during a small 
part of the POI is not sufficient to support a conclusion of material injury.268 The European Union 
also argues that evidence in the record contradicts the DIMD's  suggestion  of a negative trend in 
the domestic industry's profits during the POI. 
7.135.   We note that the European Union 's argument  is made under the heading "failure to 
properly examine  all injury factors in a proper context" . However, the European Union  in fact 
asserts  that the DIMD failed to provide  the actual figures  for th e losses  it referred to . It is true that 
table 4.2.5 of the non-confidential version  of the Investigation Report only indicates "losses" or 
"negative value" for the 1st half of 2011 and the full year 2011, without setting out  the relevant 
figures. Indeed, this table does not set out any of the actual figures for profit or loss for any 
period, reporting only percentage changes and the challenged references to "losses".  
                                               
267 European Union 's first written submission, paras. 218 -220. 
268 European Union's second written submission, para. 135. WT/DS479/ R 
 
- 65 - 
 
  Table 6: profit/loss of the domestic industry (non -confidential version)  
Indicator  Unit 2008 2009  2010  POI  
2011  H2 of 
2010  H1 of 
2011  
Profit/loss of enterprises of the 
domestic industry in the CU from the 
sale of Products in the CT CU (in 
relation to the same period in the 
preceding year, percentage)  
 % - +233.8  -17.1 +26.1  losses  losses 
Change in the profitability of sales of 
Products in the CT CU (in relation to 
the same period in the preceding 
year, in percentage points)  
 pp - +9.4 -9.0 -6.1 negative 
value  negative 
value  
Source: Public version of the Investigation Report , (Exhibits  RUS-12 and EU -21) (exhibited twice) . 
 
However, the confidential version of table 4.2.5 does set out the  actual figures  for profit and loss, 
and profitability , which were treated as confidential : 
 
Table 7: profit/loss of the domestic industry (confidential  version)  
Indicator  Unit 2008  2009  2010  POI 
2011  H2 of 
2010  H1 of 
2011  
Profit/loss of enterprise of 
the domestic industry of 
the CU from the sales of 
Product in the CT CU (in 
relation to the same period 
in the preceding year, 
percentage)  
 RUB 
million [***] [***] [***] [***] [***] [***] 
Return on sales of Product 
in the CT CU (in relation to 
the same period in the 
preceding year, in 
percentage points)  
 % [***] [***] [***] [***] [***] [***] 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) . 
 
To the extent that the European Union challenges the failure to set out in the public decision  the 
figures for the actual profits/losses, this is not an issue under Article  3.4. It is quite clear to us that 
an investigating author ity may examine confidential information in its evaluation of the Article  3.4 
factors and indices. While there may be an issue in such a case as to whether the information in 
question was properly treated as confidential pursuant to Article  6.5, that issue  is in no way 
determinative of, or even relevant to, whether the investigating authority properly examined  the 
factors and indices  at issue. In any event, the European Union has made no claim under Article  6.5 
in respect of this issue in this dispute.269 The European Union makes no other arguments as to 
alleged error in the DIMD's evaluation of  the profit/profitability trends in its Investigation Report.  
 
7.136.   We now turn to the last argument of the European Union in this context , that evidence on 
the record contradicts the DIMD's  finding  of a negative trend in the domestic industry's profits 
during the POI, which we recall comprised the 2nd half of 2010 and the 1st half of 2011. The 
European Union argues that the fact that " profits decreased significantly in the first half of 2010, 
i.e. before the investigated period …  contradicts the DIMD's suggestion  of a negative trend in the 
domestic industry's profits during the investigated p eriod" .270 The European Union does not, 
however, explain how the fact of a decrease in  profits in the 1st half of 2010, before the POI, 
contradicts the finding of negative profit performance during the POI. In its second written 
submission, the European Union argues that  [*** ], i.e. after the end of the POI, and that if the 
POI is considere d on a 12-month  basis (by combining the profits/losses of the two half -year 
                                               
269 The European Union did make a claim under Article 6.9 concerning the DIMD's use of the terms 
"losses" and "negative value" in its final disclosure, whic h is addressed later in this Report.  
270 European Union's first written submission , para.  220. WT/DS479/ R 
 
- 66 - 
 
  periods) , Sollers made profits.  The European Union argues that this shows that by 2011, the 
domestic industry was still doing very well .271  
7.137.   The European Union re -organiz es and recas ts the data in making this argument.  However, 
merely showing that a different  way of looking at the data could support a different conclusion is 
not enough to demonstrate error in the investigating authority's evaluation, unless there is some 
reason to con clude that the proposed different approach was necessary, either as a matter of law, 
or because the evidence could not be objectively examined otherwise. The European Union has 
demonstrated neither of these. None of its arguments contradicts or otherwise c alls into question 
the objectivity of the findings of the DIMD concerning profit/profitability, which are set out in its 
Investigation Report:  
2010 saw the reduction of profit by 17% ( [*** ]) in comparison with 2009. During the 
period of investigation – in the 2nd half of 2010 profit increased by 26.1% ( [*** ]), in 
the 1st half of 2011 the domestic industry of the CU suffered losses which amounted 
to [*** ].The overall losses in 2011 amounted to [*** ].272 
7.138.   Accordingly, we conclude that the European Union has not established that the DIMD failed 
to base its evaluation on an objective examination of the evidence concerning the domestic 
industry's profit/profitability during the POI, that is, the 2nd half of 2010 and the 1st half of 2011.  
7.5.2.3.3   Comparison between the peri od 2008 -2009 and the period 2010 -2011  
7.139.   The European Union argues that the DIMD  split the analysis into two periods , and then 
compared the "abnormal" period  2008-2009, which was affected by the start -up of the domestic 
industry and the financial crisis,  with the period 2010-2011.273 The European Union asserts that 
the DIMD assumed that the exceptional positive developments in the domestic industry 
during  2009 c ould continue  during 2010 -2011 without more explanation , and "base[d] its 
conclusions on a comparison  between these two time periods".274  
7.140.   The European Union does not identify where in the Investigation Report the DIMD 
compared the period 2008 -2009 with the period 2010 -2011. Nor does the European Union provide 
any argument as to how this alleged approach und ermined the DIMD's injury analysis. As 
discussed earlier, the DIMD compared the data and looked at trends principally on a year -on-year 
basis. In addition, the DIMD also compared the data for 2011 with the data  for 2008 or 2009, or 
both. Nothing in the Inv estigation Report suggests that DIM D relied on a comparison of the 
period  2008-2009 with the period 2010 -2011.  
7.141.   Accordingly, we conclude that the European Union has not established as a matter of fact 
that the DIMD  assumed that the exceptional positive developments in the domestic industry 
during  2009 c ould continue during 2010 -2011 without more  explanation , and "base[d] its 
conclusions on a comparison  between these two time periods".  
7.5.2.3.4   Failure to consider whether the market will accept further price increase s 
7.142.   The European Union argues that the DIMD relie d on an assumption that the market would 
have accepted a continuous increase in price  in line with rising costs.275  
7.143.   The European Union's argument is identical to the one it makes in its price suppression 
analys is claims, which we address ed above in paragraph  7.91. Our finding  there applies mutadis 
muntandis  to the European Union 's argument in this context .  
7.5.2.3.5   Failure to consider certain facts and arguments on the record  
7.144.   The European Union argues that the DIMD  failed to consider the following  sets of  facts and 
arguments relevant to the state of the domestic industry  that were before it:  
                                               
271 European Union's second written submission, para. 136.  
272 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), p. 41.  
273 European Union's seco nd written submission, para. 115 . 
274 European Union's first written submission, para. 221. 
275 European Union's first written submission , para. 223.  WT/DS479/ R 
 
- 67 - 
 
  a. the DIMD did not  address interested parties' arguments that, despite a slight decrease  in 
the domestic industry's  market share during  the POI, that market share remained at a 
very high level during the period 2010 and 2011, when compared to 2008276;  
b. the DIMD ignored information on the record concerning  independent dealers'  inventories 
when e valuating the evolution of the inventories277; and 
c. the DIMD failed  to consider Volkswagen 's argument that the increase in the domestic 
industry's inventories was due to the termination of the licence agreement between 
Sollers and Fiat.278 
7.5.2.3.5.1   Domestic industry 's market share  
7.145.   The European Union notes that the domestic industry's market share in 2011 was above its 
level in 2008. The European Union argues that this  is very hard to reconcile with the DIMD's 
conclusion  that the domestic industry was suffering material i njury during the POI.279 The 
European Union contends  that interested part ies, including PCA, raised the increased market share 
in 2010 relative to 2008 during the course of the investigatio n, arguing that this increase 
contradicts the DIMD's finding of negat ive trends.280 The European Union contends that the DIMD 
failed to provide a reasoned and adequate explanation addressing this evidence and argument in 
reaching its conclusions.281 The Russia n Federation  does not comment on the relevance of the 
domestic indust ry's market share in 2011 as compared with that of 2008 to the DIMD's 
determination. The Russian Federation asserts that no interested  party  presented positive 
evidence that would put in question the credibility and the affirmative, objective and verifiabl e 
character of the information in questionnaires and import statistics used for the calculation of 
market shares.  
7.146.   Section 4.2 of the Investigation Report sets out the following data on the market share  of 
the domestic industry (Sollers):  
Table 8: D omestic  industry's market share  
Indicator  Unit 2008  2009  2010  POI 
2011  H2 of 
2010  H1 of 
2011  
Share of consumption 
accounted for by Product 
manufactured by the 
domestic industry of the CU 
and sold in the CT CU  % [***] [***] [***] [***] [***] [***] 
Source:  Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) . 
 
With regard to market share, the DIMD stated that:  
 
Between 2008 and 2010, the share of Product produced by the domestic industry in 
consumption within the CT CU increased by 37.9  percentage points ( [***]) whereas 
in the period of investigation, the 2nd half of 2010 saw a decline in the share of 
consumption in the CT CU accounted for Product produced by the domestic industry of 
the CU by 8.9 percentage points ( [*** ]), and by 11.5 p ercentage points in the 1st 
half of 2011 ( [*** ]). In 2011, the share of consumption in the CT CU accounted for 
Product produced by the domestic industry in the CU was 18.1 percentage po ints 
lower than the 2010 figure . 
                                               
276 European Union's first written submission , paras. 226-230. 
277 European Union's first written submission , para s. 232 and 233. 
278 European Union's first written submission , para . 233 (referring to Volkswagen's  submission of 
6 April 2012 regarding the Public Hearing of 22 March 2012 , (Exhibit EU -11), p. 13 ). 
279 See European Union's first written submission, paras. 228  and 229. We note that, in making this 
argument, the European Union relies on the market share of the domestic producers (Sollers and GAZ), rather 
than the market share of the domestic industry as determined by the DIMD. Therefore, the European Union's 
argument  does not demonstrate anything about the determination actually made by DIMD.  
280 European Union's first written submission, paras. 226 and 227.  
281 European Union's first written submission, para. 234.  WT/DS479/ R 
 
- 68 - 
 
  In its conclusions, the DIMD stated th at:  
 
[I]n the context of the financial and economic crisis, consumers preferred the cheaper 
light commercial vehicles, manufactured on the territory of the Customs Union, and, 
as a result, the volumes of production of like Product by the domestic industry  of the 
CU shrank by 37.7% in 2009 compared with 2008 whereas the sales volume in the 
same period decreased by 8.6%. The share of like Product produced by the domestic 
industry of the CU in the volume of consumption in the CT CU also increased 
significantl y: by 39.9 percentage points.  
The share of like Product produced by the domestic industry of the CU in the 
consumption volume in the CT CU decreased by 20.1 percentage points between 2009 
and 2011  … 
Thus, despite the recovery of production and volumes of sales of like product  by the 
domestic industry of the CU in the CT CU following the f inancial and economic crisis 
of 2009, the domestic industry of the CU failed to maintain its position in the CT CU. 
Starting form [sic] 2010, the domestic industry of the CU underwent a decline in 
profits and profitability of sales, a shrinking share of like product  on the CU market 
and an increase in stocks. In 2011, the aforementioned negative trends intensified 
significantly in the context of growing dumped imports, and,  as a result, the business 
of the domestic industry of the CU involving the production and sale of Product 
became unprofitable.282 
7.147.   The Investigation Report shows that the DIMD's analysis of the domestic industry's market 
share was principally based on an examination  of the trends on a year -on-year basis and for the 
period of investigation. In its ultimate conclusion regarding material injury caused by dumped 
imports, the DIMD attributed the increase in domestic industry market share from 2008 to 2009 to 
the impact of the financial crisis on consumer's preferences for lower priced domestic LCVs. The 
DIMD found that  from 2009 to 2011, the domestic industry's market share decreased by 20.1%. 
The DIMD focused primarily on the continued decline in domestic industry  market share in 2010 
and 2011 in its finding.  
7.148.   The issue before us  is whether the DIMD provided a reasoned and adequate explanation 
for the conclusions it reached in the light of the alternative explanations  argued by at least one 
interested party .283 
7.149.   Durin g the investigation, PCA made the following statement concerning the domestic 
industry's market share:  
Sollers market share increased by almost 35 percentage points from 2008 to 2010 , 
but there was a relative drop in the market share of Sollers, as its pro duction did not 
keep up with the important increase in consumption. …   
… (domestic) market share increased significantly overall.284 
7.150.   The graph below shows the domestic industry's actual market share (the blue line), the 
comparison relied on by the DIMD (the red arrow) on the one hand and the comparison  referred to 
by PCA ( the green arrow) on the other hand.  
                                               
282 Emphasis added.  
283 See, for example, Appellate Body  Reports , US – Tyres (China) , para. 280 ; and US – Softwood 
Lumber VI (Article 21.5 – Canada) , para. 93  
284 PCA's Injury Submission of 6 April 2012 following the Public Hearing of 22 March 2012 , (Exhibit 
EU-13), p. 10.  WT/DS479/ R 
 
- 69 - 
 
  Figure 4: Domestic industry's market share  
 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 5.1.  
 
7.151.   We conside r that PCA merely identified an alternative way of interpreting the data that was 
before the DIMD. PCA did not explain, however, why the DIMD should have relied on this 2008 
to 2010 end -point to end -point comparison rather than the year -on-year changes it identified, as 
well as the 2009 to 2011 comparison it made. Nor has the European Union demonstrated in this 
proceeding why PCA's interpretation of the data was neces sary, either as a matter of law  or 
because  the evidence could not be objectively examined o therwise.  The mere existence of this 
alternative  interpretation of the data does not  automatically render the DIMD's  explanation 
"implausible ". However, we will go on to consider, in the light of this alternative interpretation , 
whether the DIMD's explanat ion for its conclusion based on its approach to the data is adequate 
and reasoned.  
7.152.   The DIMD  explained in the Investigation Report that the significant  increase in the 
domestic industry's  market share from 2008 to 2009 was due to the impact of the financial  crisis 
on consumer preferences  for lower priced domestic LCVs . The DIMD contrasted this earlier 
increase with  the more recent downward trend from 2009 to 2011, and particularly the shrinking 
market share starting from 2010  through the POI and 2011 as a wh ole.285 In our view, m ore 
recent data during the period of consideration is likely to be particularly relevant to the 
determination of material injury during the POI , which in this c ase included the second half 
of 2010 and the first half of 2011.286 PCA's alte rnative interpretation is based on a 2008 -2010 end -
point to end -point comparison without reference to the intervening trends ; it does not 
demonstrate that the DIMD's explanation  was not reasoned and adequate . And, as we note above, 
the European Union has n ot made additional arguments that would support the conclusion that 
PCA's interpretation of the data was necessary.  Thus, it is clear that the DIMD rejected PCA's 
interpretation of the data in favour of its own interpretation, which we find to be reasonabl e and 
adequately explained.  
7.153.   Accordingly, we conclude that the European Union has failed to establish that the DIMD 
acted inconsistently with Articles  3.1 and 3.4 by failing to specifically address the interested 
parties'  argument on the comparison of the d omestic industry's market share in 2010 and 2008.  
                                               
285 Investigation Report,  section 4.3. 
286 The DIMD stated in its Investigation Report that it established the existence of material injury during 
the POI. (Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , p. 53 : "according to the 
requirements of Article 13(3) of the Agreeme nt the investigating authority established the existence of injury 
to the domestic industry of the CU during the period of investigation (the 2nd half of 2010 to the 1st half 
of 2011) "). WT/DS479/ R 
 
- 70 - 
 
  7.5.2.3.5.2   Inventories of independent dealers  
7.154.   The European  Union argues  that the DIMD ignored information on the record concerning 
independent dealers' inventories when evaluating the evolution of the domestic industr y's 
inventories .287 The Russian Federation  argues that the  DIMD is not required, for the purpose of an 
objective examination of inventories, to assess the inventories of downstream independent dealers , 
which are not part of the domestic industry .288 
7.155.   As discuss ed above, insofar as inventories are concerned, an investigating authority must 
evaluate the data concerning the inventories of the domestic  industry at issue in the investigation, 
and not the inventories of entities that do not form part of that domestic industry. For this reason, 
we conclude that there is no basis for finding that DIMD acted inconsistently with Articles  3.1 
or 3.4 by failing to evaluate the inventories of independent dealers in its consideration .  
7.5.2.3.5.3   The reason for the increase in domestic i ndustry 's inventories  
7.156.   The European Union argues that the DIMD failed  to consider Volkswagen 's argument that 
the increase in the domestic industry's inventories was due to the termination of the licence 
agreement between Sollers and Fiat.289 
7.157.   We note that the European Union's argument pertains to the issue of causation, rather 
than the DIMD's evaluation of inventories in the context of its examination of the state of the 
domestic industry. We refer to section 7.6.2.4. 1 of our Report concerning causation and 
non-attribution.  
7.5.2.4   Failure to examine  all factors  
7.158.   The European Union  argues that in arriving at its determination, the DIMD failed to 
examine the following required factors :  
a. magnitude of the margin of dumping ; 
b. return on investments ; 
c. actual and potential effects on cash flow; and  
d. the ability to raise capital or investments .290  
7.5.2.4.1   The magnitude of the margin of dumping  
7.159.   The magnitude of the margin of dumping is one of the fifteen injury factors expressly listed 
in Article  3.4, evaluation of which is required in every case.291 Accordingly , the DIMD was under an 
obligation to examine this factor.  Article  3.4 does not require that the  magnitude of the margin of 
dumping be evaluated in  any particular way or  be given any particula r weight .292 Nor is th ere any 
guidance in Article  3.4 or, indeed, elsewhere in the Anti -Dumping Agreement, as to  how the  
investigating authority's  evaluation  should be set out in its determination . 
7.160.   The DIMD set out its examination of the Article  3.4 factors relating to the state of the 
domestic industry in section  4.2 of the Investigation Report. This section does not mention or 
discuss the magnitude of the margin of dumping. Nor is there any explicit discussion of the 
magnitude of the margin of dumping, in r elation to the state of the domestic industry, elsewhere 
                                               
287 European Union's first written submission , paras. 232 and 233. 
288 Russian Federation 's first written submission , paras. 257 -261. 
289 European Union's first written submission , para . 233 (referring to Volkswagen's  submission of 
6 April 2012 regarding the Public Hearing of 22 March 2012 , (Exhibit EU -11), p. 13 ). 
290 European Uni on's first written submission, para. 236.  
291 See e.g. Panel Report s, Egypt – Steel Rebar , para. 7.36; EC – Bed Linen , para. 6.159; Mexico – Corn 
Syrup , para. 7.128 ; and China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  7.159 ; and Appellate Body 
Report, Thailand – H-Beams , para. 128. 
292 Except to the extent that Article 3.4 makes clear that no one or several of the factors listed can 
necessarily give decisive guidance . WT/DS479/ R 
 
- 71 - 
 
  in the Investigation R eport. The Russian Federation concedes  that this factor was "not explicitly 
explained" in the Investigation Report .293 The Russian Federation argues, however, that it suffices 
for compliance with Article  3.4 that the margin of dumping was discussed in section  4.1 of the 
Investigation Report, where the DIMD analysed whether the margin of dumping for each country 
investigated  was more than 2%, in the context of determining whether on e of the conditions for a 
cumulative assessment of the effects of dumped imports under Article  3.3 of the Anti -Dumping 
Agreement was met.294  
7.161.   Articles  3.1 and 3.4 do not require that an investigating authority set out its assessment of 
injury factors in any particular section of its report. At issue here, however, is not the placement of 
the evaluation, but whether it was done at all. Under Article  3.4, the issue is the impact of dumped 
imports on the domestic industry; thus, it requires an evaluation of the magnitude of the margin of 
dumping in that context. In the present case, in section 4.1 of the Investigation Report, the DIMD 
was addressing the issue whether the margin of dumping for each of the countries potentially 
subject to a cumulative assessment wa s greater than de minimis  (2%). There is no discussion of 
the impact of dumped imports on the domestic industry , or the magnitude of the margin of 
dumping in that context . There is no ba sis for us to conclude that the  analysis in section 4.1 for 
the purpos es of Article  3.3 was relevant to, or considered in, the context of the Article  3.4 
examination.295 Section 4.1 of the Investigation Report does not, therefore, contain an evaluation 
of the magnitude of the margin of dumping for purposes of Article  3.4.  
7.162.   For this reason, w e conclude that the DIMD failed to evaluate the magnitude of the margin 
of dumping , and thus acted  inconsistently with  Article  3.4.  
7.5.2.4.2   Return on investments, actual and potential effects on cash flow, and the 
ability to raise capital or invest ments  
7.163.   The European Union  argue s that the non -confidential version of the Investigation Report 
shows that the DIMD failed to examine the domestic industry's return on investments, actual and 
potential effects on cash flow, and the ability to raise capital o r investments . The 
Russian  Federation  argues that the DIMD  evaluated  these factors in the confidential  version of the 
Investigation Report. The Russian Federation also contends  that the European Union is incorrect to 
state that there is nothing in the Inve stigation Report or the record which shows that the DIMD 
evaluated these factors. The Russian Federation asserts that the DIMD met the requirements of 
Article  3.4 by requesting and receiving the financial accounts of Sollers in confidential form.296 
Accordin g to the Russian Federation, the fact that data were requested and received from the 
domestic industry indicates that the relevant information has been evaluated, although the results 
of the evaluation of such data were not set forth in the published docum ent.297 
7.164.   The European Union  argues that the Panel should not base its assessment under 
Articles  3.1 and 3.4 on the confidential version of the Investigation Report that was submitted by 
the Russian Federation as Exhibit RUS -14 in these proceedings, to the ext ent that the same 
information was not apparent from the non -confidential version of the Investigation Report on 
which the European Union based its claims.298 The European Union  also argues that the obligation 
to examine these factors under Article  3.4 cannot  be fulfilled by simply requesting or even 
obtaining information concerning a given factor. Rather, this information must be analysed and 
interpreted by the investigating authority.299  
                                               
293 Russian Federation's first written submission, para. 273.  
294 The Russian Federation also argues that the DIMD implicitly evaluated the magnitude of the margin 
of dumping in the context of the analysis of the effect of the prices of dumped imports on the domestic prices.  
(Russian Federation's second written s ubmission , paras. 180 –203). We fin d no support for this argument in the 
record.  
295 We recall in this regard the conclusion of the panel in China – HP-SSST (Japan)/China – HP-SSST 
(EU) that " MOFCOM's simple assertion that the margins of dumping are more than de minimis  provides no  
basis on w hich we can conclude that MOFCOM actually evaluated the magnitude of those margins  in the 
context of its Article 3.4 analysis. " (See Panel Report s, China – HP-SSST (Japan) / China – HP-SSST (EU) , 
paras. 7.159 -7.161). 
296 Russian Federation's first written su bmission, para. 280.  
297 Russian Federation's response to Panel question No. 34, para. 86.  
298 European Union's second written submission , para. 144.  
299 European Union's second written submission , para. 145.  WT/DS479/ R 
 
- 72 - 
 
  7.165.   We address first the issue whether we may base our assessment of the Eur opean  Union's 
claim on the confidential version of the Investigation Report. The evaluation of the Article  3.4 
factors at issue is absent, in its entirety, from the non -confidential version of the Investigative 
Report; the DIMD did not even indicate that c onfidential information had been redacted from the 
non-confidential version in this context. This fact may give rise to concerns, particularly with 
respect to whether the published report of the investigation is consistent with the requirements of 
Article  12 of the Anti -Dumping Agreement.300 We recall that the Article  3.1 requirement that an 
injury determination be based on positive evidence and involve an objective  examination of the 
required elements of the volume , price effects, and impact of the dumped im ports,  does not imply 
that the determination must be based only on reasoning or facts that were disclosed to, or 
discernible by, the parties to an anti -dumping investigation.301 Therefore , there is no basis for the 
proposition that we may not base our assess ment of the European Union's claim on th e 
confidential version of the Investigation Report.  
7.166.   We proceed on the basis of all the evidence on the record, including that found in the 
confidential version of the Investigation R eport and in the underlying record as appropriate, and 
the arguments presented, to examine  the European Union's assertion that the factors at issue 
were not examined by the DIMD as required under Article  3.4. Section  4.2.7 of the confidential  
version of the Investigation Report states, co ncerning the factors at issue : 
[***] 
[***] 
[***] 
[***] [sic].302 
7.167.   Concerning return on investments, the DIMD explicitly stated that [***].303 We consider 
that this  passage suffices to demonstrate that the DIMD  evaluated the return on investments of 
the domestic  industry .  
7.168.   Concerning cash flow, the DIMD stated that the [***].304 Article  3.4 requires the 
evaluation of " actual and potential negative effects on cash flow ", and not merely  the cash flow of 
the domestic industry itself . Logically, the [*** ] during the pe riod of consideration at least 
potentially affect  cash flow negatively. Th e passage  above suffices to demonstrate that the DIMD 
evaluated the actual and potential negative effects on cash flow  of the domestic industry.  
7.169.   Concerning the ability to raise capi tal or investments , the DIMD noted that [***]. The 
DIMD also noted that the financial accounts of Sollers confirmed that [***].305 We consider that 
information is relevant to, and this discussion suffices to demonstrate that DIMD did evaluate, the 
industry's  ability to raise capital or investments.   
7.170.   The European Union  asserts  that, even if we were to rely on the confidential version of the 
Investigation Report  in considering this aspect of its arguments , the analysis in the confidential 
version of the Investi gation Report  would  still be inconsistent with Articles  3.4 and 3.1.306 
However, the European Union  did not substantiate this assertion with  argument  or evidence. Thus, 
we have no basis on which to further consider  our view of  the adequacy of the DIMD's evaluation  
of these factors. Accordingly, we conclude that the European Union  has not established that the 
DIMD acted inconsistently with Article  3.4 by failing to evaluate the domestic industry's return on 
                                               
300 The European Union argues that total silence on a f actor may call into question whether the DIMD 
actually examined it.  (See European Union's second written submission, para. 146; and response to Panel 
question No. 50 , para. 156 ). However, the  European Union  has not presented any evidence suggesting that th e 
confidential version of the Investigation Report  is not genuine . Moreover, although the European Union stated a 
claim under Article 12 in its request for establishment (para. 9), it did not pursue that claim in this proceeding, 
making no arguments and pr esenting no evidence in that regard.  
301 Appellate Body Report, Thailand – H-Beams , para. 111.  
302 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , section 4.2.7, p.  42. 
303 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , section 4.2.7, p.  42. 
304 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , section 4.2.7, p.  42. 
305 Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI) , section 4.2.7, p.  42. 
306 European Union's second written submission , para. 144. WT/DS479/ R 
 
- 73 - 
 
  investments, actual and potential effects on cash flo w and the ability to raise capital or 
investments . 
7.171.   In the light of the above, on the basis of t he confidential version of the Investigation 
Report , we conclude that the DIMD evaluated the factors  in question. For this reason, we are of 
the view that there is no need for us also to consider the parties' arguments concerning whether 
the fact that data was requested and received from the domestic industry can indicate  that the 
relevant information has been evaluated where the results of such evaluation were no t set forth in 
the published document .  
7.172.   Accordingly, we conclude that the European Union  failed to establish that the DIMD acted 
inconsistently with Articles  3.1 and 3.4 by  failing to  examine the domestic industry's return on 
investments, actual and potent ial effects on cash flow and the ability to raise capital or 
investments . 
7.5.3   Conclusion  
7.173.   For the reasons  stated above, we conclude  that the European Union has not established 
that: 
a. the DIMD acted inconsistently with Articles  3.1 and 3.4 in its evaluation  of 
profit/profitability d ata in the Investigation Report;  
b. the DIMD acted inconsistently with Articles  3.1 and 3.4 in its evaluation  of inventor y 
data in the Investigation Report;  
c. the DIMD acted inconsistently with Articles  3.1 and 3.4 by failing to systematical ly 
compare data for 2011 with data for 2008 for all economic indicators in the present case ; 
d. the DIMD failed to objectively examine the domestic industry's prof it/profitability during 
the POI;   
e. the DIMD assumed that the exceptional positive developments in  the domestic industry 
during 2009 could continue during 2010 -2011 without more explanation, and "base[d] 
its conclusions on a comparison between these two time periods" ; 
f. the DIMD acted inconsistently with Articles 3.1 and 3.4 by failing to consider whethe r the 
market will accept further price increases;  
g. the DIMD acted inconsistently with Articles  3.1 and 3.4 by failing to specifically address 
the interested parties'  argument on the comparison of the domestic industry' s market 
share in 2010 and 2008;  
h. the DI MD acted inconsistently with Article s 3.1 and  3.4 in failing to  evaluate the 
inventories of independent dealers  and the reason for the increase in inventories ; and  
i. the DIMD acted inconsistently with Article s 3.1 and  3.4 by failing to evaluate the 
domestic industry's return on investments, actual and potential effects on cash flow and 
the ability to raise capital or investments . 
7.174.   We further conclude that the DIMD acted inconsistently with Article  3.4 by failing to 
evaluate the magnitude of the margin of dumpi ng. 
7.6  Causation  
7.6.1   Introduction  
7.175.   The European Union  claims that the  DIMD acted inconsistently with Articles  3.1 and 3.5 by 
failing to  properly establish a causal link between the dumped imports and the alleged injury, and 
by failing to  conduct a proper  non-attribution  analysis  of factors other than the dumped imports WT/DS479/ R 
 
- 74 - 
 
  that were known to the DIMD and that were injuring th e domestic industry  at the same time  as 
dumped imports .307 The European Union  further argues that , insofar as the DIMD  relied on its price 
suppressi on analysis in determining causation, that inadequate analysis also undermined  the 
causation analysis .308 
7.176.   The Russian Federation  argues that , in its causation analysis,  the DIMD provided  a 
coherent and consistent explanation  for its conclusion that dumped im ports captured a share of 
the growing market  which they otherwise would not have done in the absence of dumping and 
thereby caused injury.309 With regard  to the DIMD's non -attribution analysis, the 
Russian  Federation  argues that the DIMD  analysed the comment s of the interested parties and 
provided explanation s with respect to  the alleged impact of the two " other factors " that were 
clearly raised  before it.310 
7.6.2   Evaluation  by the Panel  
7.6.2.1   Relevant  provisions  
7.177.   Article  3.1 is set out in paragraph 7.30 above. Article  3.5 provides that:  
It must be demonstrated that the dumped imports are, through the effects of 
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this 
Agreement. The demonstration of a causal relationship between the dumped imports 
and the injury to the domestic industry shall be based on an examination of all 
relevant evidence before the authorities. The authorities shall also examine any known 
factors other than the dumped imports wh ich at the same time are injuring the 
domestic industry, and the injuries caused by these other factors must not be 
attributed to the dumped imports. Factors which may be relevant in this respect 
include, inter alia, the volume and prices of imports not so ld at dumping prices, 
contraction in demand or changes in the patterns of consumption, trade restrictive 
practices of and competition between the foreign and domestic producers, 
developments in technology and the export performance and productivity of the 
domestic industry.  
7.178.   Together, these provisions require that an investigating authority demonstrate, on the 
basis of an objective examination of positive evidence, that:  
a. dumped imports are causing injury to the domestic industry; and  
b. injury caused by other k nown factors is not attributed to the dumped imports.311  
In making such a determination, the investigating authority must demonstrate a relationship of 
cause and effect, such that dumped  imports are shown to have contributed to the injury to the 
domestic in dustry. Dumped  imports need not be "the" cause of the injury suffered by the domestic 
industry, provided they are "a" cause of such injury312; that other factors may also have caused 
injury to the domestic industry is no bar to establishing this causal relat ionship . 
 
7.179.   With respect to non -attribution, Article  3.5 requires an investigating authority  to examine 
other known factors that are causing injury to the domestic industry at the same time as dumped 
imports, and sets out an illustrative  list of such factors .313 It further requires that the investigating 
authority not attribute to dumped imports injuries caused by such other factors. The investigating 
authority must undertake an assessment that enables it to "separat[e] and distinguish[] the 
                                               
307 European Union's first written submission , para. 239. 
308 European Union's first written submission, para. 275 (referring  to Panel Reports, China – GOES  
(Article 21.5 – US), para. 7.124; China – X-Ray Equipment , para. 7.239; China – Autos (US) , paras.  7.327  
and  7.328; and China – HP-SSST (Japan)/China – HP-SSST (EU) , para. 7.191).  
309 Russian Federation 's first written submission , para. 296.  
310 Russian Federation's first written submission , paras. 315 -318. 
311 Panel Report s, Mexic o – Steel Pipes and Tubes , para. 7.352; and Thailand – H-Beams , para. 7.262.  
312 Appellate Body Report, US – Wheat Gluten , para. 67.  
313 Panel Report, Thailand – H-Beams , para. 7.275.  WT/DS479/ R 
 
- 75 - 
 
  injurious effects o f the other factors from the injurious effects of the dumped imports".314 For this 
assessment to be required, however, Article  3.5 requires that the "other factor" at issue  be:  
a. "known" to the investigating  authority;  
b. a factor "other than dumped imports "; and  
c. injuring the domestic  industry at the same time as the dumped imports.315 
7.180.   Article  3.5 contains no guidance on how an investigating authority is to analyse either the 
causation of injury by dumped imports, or non -attribution.316  
7.6.2.2   The DIMD's consideration  of the price effects  of the dumped imports in the 
context of its causation analysis  
7.181.   The DIMD's  finding of a causal link between  material injury to the domestic industry and 
the dumped imports was based on both the increased volume317 and the price  suppressive318 
effects of the dumped  imports.  The European Union  makes arguments  concerning both aspects of 
the DIMD's causation determination  in support of its claim . We will first address the DIMD's 
causation determination  with respect to the price suppressive effects  of the dumped imports . 
7.182.   We have found above that the DIMD acted inconsistently with Articles 3.1 and 3.2 by 
failing to taken into account the impact of the financial crisis in its consideration of price 
suppression . The error we have found in the DIMD's co nsideration of price suppression under 
Article  3.2 undermines the DIMD's determination of a causal link between the dumped imports and 
the injury suffered by the domestic industry.319 Consequently, we find  that the DIMD acted 
inconsistently with Articles  3.1 and 3.5 insofar as it relied on price suppression in its causation  
determination.   
7.6.2.3   The DIMD's consideration  of the volume of the dumped imports in the context of 
its causation analysis  
7.183.   We now turn to the DIMD's consideration  of the volume of the dumped im ports in the 
context of its causation analysis, after which we turn to the DIMD's non -attribution  analysis.  
                                               
314 Appellate Body Reports, US – Hot-Rolled Steel, para. 223; China – GOES , para. 151; and China – 
HP-SSST (Japan) / China – HP-SSST (EU) , para . 5.283 . 
315 Appellate Body Report, EC – Tube or  Pipe Fittings , para. 175. 
316 Appellate Body Report, US – Hot-Rolled Steel , para. 224 . 
317 Regarding the volume of the dumped imports, the DIMD con cluded that the dumped imports 
displaced the domestic like product  in the market  based on the fact that after declining from 2008 to 2009, the 
volume of dumped imports increased steadily throughout the rest of the period of consideration (2009 -2011) 
both i n absolute terms and relative to domestic consumption, domestic production and total imports. The DIMD 
also relied on the fact that the market share of the dumped imports increased rapidly from 2009 through the 
end of the POI (an increase of 13  percentage points ) at the same time as there was a proportiona te decrease 
in the market share of the domestic industry (a decrease of 12.3  percentage points ). (See Investigation Report , 
section  5.1). 
318 Regarding price effects, the DIMD concluded that there was no pri ce undercutting or price depression 
during the period of consideration. However, the DIMD concluded that there was significant price suppression 
on the basis of a comparison of the actual domestic prices observed and the target domestic prices which it 
calculated  would have occurred in the absence of dumped imports. The DIMD constructed the target domestic 
prices on the basis of what it found to be a reasonable rate of return and the actual costs of production of the 
domestic industry. The DIMD used the rat e of return achieved by the domestic industry in 2009 as the 
benchmark because 2009 saw the lowest share of dumped imports. The DIMD also considered whether the 
injury was caused by other known factors including the termination of a licence agreement betwe en Sollers and 
Fiat and domestic competition, and concluded that the termination of the licence agreement was not a factor 
causing injury to the domestic industry, and that the injury caused by the domestic competition was not 
determinative in the material  injury suffered by the domestic industry. (See Investigation Report , sections 5.2 
and 5.3 ). 
319 European Union's first written submission , para. 275 (referring  to Panel Reports, China – GOES  
(Article 21.5 – US), para. 7.124; China – X-Ray Equipment , para. 7 .239; China – Autos (US) , paras. 7.327  
and 7.328; and China – HP-SSST (Japan)/China – HP-SSST (EU) , para. 7.191).  WT/DS479/ R 
 
- 76 - 
 
  7.6.2.3.1   Trends in dumped import s' market share  
7.184.   The European Union argues that the increased market share of the dumped imports was 
not injurious, because du mped imports simply recovered from the effects of the financial crisis and 
merely reached their pre -crisis level in 2011.  The European Union contends that the DIMD could 
not assume that the exceptional situation existing during the financial crisis would p ersist 
indefinitely , and that the domestic industry would retain the market share it had gained in that 
situation .320 The Russia n Federation argues that dumped imports did not only reach pre -crisis 
level, but were substantially higher  than that level  at the end of the  period considered. The 
Russian  Federation asserts that  the volume of dumped  imports in 2011 was at least 1. 2 times 
larger than in 2008 .321 
7.185.   In section  5.1 of the Investigation Report, the DIMD examined the volume of dumped 
imports in absolute terms , relative to total imports, relative to domestic production and relative to 
total domestic consumption. During the investigation, interested parties had argued that in 2010 
and 2011 dumped imports recovered from the financial crisis and merely reached the ir pre -crisis 
level in 2011 , comparing the end points  of the period of consideration, as shown by the red arrow 
in the graph below .322 The DIMD found that from 2008 to 2009, during the financial crisis, the 
dumped imports' volume and market share decreased b ecause of the impact of the financial crisis 
on consumers' preferences for lower priced domestic LCVs. However, in the post -financial crisis 
period, 2010 and 2011 (including the POI), the dumped imports' market share increased steadily, 
displacing the dome stic like product in the market, as shown by the green arrows in the graph 
below.323 The DIMD thus concluded that the dumped imports displaced domestic like product  
in 2010 and 2011, including during the POI , thereby causing injury to the domestic industry.  
Figure 5: D umped imports' market share  
 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 5.1.  
                                               
320 European Union's first written submission , para.  273. 
321 Russian Federation's first written submission, para. 297.  
322 European Union 's first w ritten submission, para. 269.  
323 The DIMD stated in its Investigation Report that:  
Starting from 2009, the share of like Product manufactured by the domestic industry of the CU in 
consumption decreased in parallel with an increase in the share of dumped im ports. In the period 
from 2009 to the 1st half of 2011, the share of dumped imports in total consumption rose by  
13 percentage points whereas the share of like product s produced by the domestic industry of 
the CU dropped by 12.3 percentage points. The tren d persisted in 2011 . 
Section 5.1 of the Public version of the Investigation Report , (Exhibit RUS -12), and Confidential version of the 
Investigation Report, (Exhibit RUS -14) (BCI) . WT/DS479/ R 
 
- 77 - 
 
  7.186.   The European Union does not dispute the underlying facts and evidence relied upon by the 
DIMD in reaching its conclus ion of domestic sales displacement.324 Rather, it considers that the 
fact that dumped imports' market  share returned to the 2008 level in 2011 undermines the DIMD's 
causation analysis.  
7.187.   As a general matter, the fact that the dumped import market share was no t higher in 2011 
than in 2008 does not necessarily preclude  or undermine  a finding of causation. While "significant 
increases  in imports have to be 'consider[ed]' by investigating authorities under Article  3.2 … the 
text does not indicate that in the absen ce of such a significant increase, these imports could not be 
found to be causing injury" within the meaning of Article  3.5.325 As well, a reasonable and 
unbiased investigating authority may well take the view that consideration of the intervening 
trends of the dumped imports market share, rather than merely making an end -point to end -point 
comparison of the situation in 2008 and 2011, provides a better understanding of the trends in 
dumped imports' volume and their possible contribution to injury.  In the pre sent case, the DIMD 
noted that the dumped import volume and market share decreased during the financial crisis, but 
increased thereafter, thereby displacing domestic sales after the fin ancial crisis, i.e. in 2010 
and 2011, the period including the POI.  This displacement  largely corresponded to the increase of 
dumped imports' market share, as shown on the graph below.  
Figure 6: Trends of market shares of the domestic industry , dumped imports and third 
country imports  
 
Source: Confidential version of the Investigation Report , (Exhibit RUS -14) (BCI), section 5.1.  
 
7.188.   The DIMD also addressed the interested parties' argument that the dumped import market 
share was "stable" in 2011 when compared with 2008, while the domestic market share in creased 
in 2011 when compared with 2008. The DIMD  found that the domestic industry market share 
during the period of consideration increased mainly at the expense of non -dumped imports from 
third countries, which declined to a negligible level of 1% of mar ket share. The DIMD also 
observed that displacement of the domestic like product by the dumped imports continued 
throughout 2011. The DIMD thus rejected the interested parties' argument  and found that the 
domestic like product  was displaced in the market b y the dumpe d imports during the POI and 
in 2011 as a whole . The DIMD did not explicitly discuss the assertion that the dumped 
imports ' market share was "stable" in 2011 as compared with 2008. However, the  DIMD's analysis 
relied on the intervening changes i n market share . Neither the interested  parties during  the 
invest igation, nor  the European Union in this proceeding, has explained why the comparison relied 
                                               
324 European Union's first written submission , para s. 263-266. 
325 Appellate Bod y Report, EC – Tube or Pipe Fittings , fn 114.  WT/DS479/ R 
 
- 78 - 
 
  on by the interested parties was necessary or undermine d the cogency of the DIMD's analysis. For 
these reasons, w e consider that the DIMD did not have to respond further to this argument.  
7.6.2.3.2   The market share of all domestic producers  in 2011  
7.189.   The European Union notes that the combined market share of the two domestic producers 
of LCVs, Sollers and GAZ, was approximately 57%  in 2011 . The European Union  argues that "it 
seems unlikely that dumped imports replaced the domestic sales if the domestic market share 
remained at the high level of 57%" .326 The Russian Federation argues that a 57% market share 
does not ma ke it less plausible that the decrease in domestic producers' market share in 2011 
(from 2009 and 2010 levels by 8% and 6% respectively) was caused by the effects of dumping.327 
7.190.   The European Union's argument is based on the 2011 market share of the two domes tic 
producers  (Sollers and GAZ ) combined . However, the market share of the domestic industry  
(Sollers), upon which the DIMD relied in its analysis , was lower ( [*** ]).328 In our view , the 
market share of domestic producers  (Sollers and GAZ)  in 2011 does not e xplain anything about 
development s in the market share of the domestic industry , which is the proper focus for an 
investigating authority. More to the point, t he fact that the market share of the two domestic 
producers (Sollers and GAZ) in 2011 was "high" does not , in itself,  preclude a finding of causation  
of injury to the domestic industry . Nor would the fact that the market share of the domestic 
industry was "high" preclude a finding of causation.  A domestic industry with a high market share 
may still be  found to have suffered material injury caused by dumped imports , particularly in a 
situation  where  it is losing  market share to those imports.  
7.6.2.3.3   Dumped imports displaced  third country imports rather than the domestic like 
product  
7.191.   The European Union notes t hat the market  share of the  dumped imports increased by 
18 percentage points from 2009 to 2011, while the domestic m arket share decreased by only 
8 percentage points during the same period.329 The European Union argues that, rather than 
displacing domestic s ales, the dumped imports "largely " displaced imports from third countries.330  
7.192.   The fact that dumped imports displaced third country import s does not, on its own, 
preclude or undermine a finding that dumped  imports also displaced the domestic like product. Th e 
European Union's own wording, that dumped imports "largely" displaced third country imports, 
acknowledges that the dumped imports displaced the domestic like product in the market , at least 
to some extent . Indeed , the European Union does not argue that t he dumped imports did not 
displace the domestic like product at all.  Nor has the European Union demonstrated that the DIMD 
acted unreasonably in considering the displacement of the domestic like product by the dumped 
imports on the market relevant and significan t in the causation determination .  
                                               
326 European Union's first written submission , para s. 272 and 273 . We note that , in making this 
argument, the European  Union  calculated the market share of domestic producers (Sollers and GAZ combined)  
rather tha n the market share of  the domestic industry  as defined by the DIMD (Sollers) . The domestic 
industry's market share in 2011 was [*** ], rather than 57%. The Russian Federation does not dispute these 
figures.  
327 Russian Federation's first written submission , para. 298. 
328 The European Union does not explain how the domestic producers' market share in 2011 is relevant 
to the determination actually made by the DIMD, concerning the causal relationship between the dumped 
imports and the injury suffered by the domest ic industry (Sollers).  
329 The European Union calculates the market share on the basis of data in the record as follows:  
Table 9: Trends of market share as calculated by the European Union  
 2008  2009  2010  2011  
Domestic market share (Sollers + GAZ)  24 65 63 57 
Dumped imports market  share  42 24 37 42 
Source: European Union's first written submission, para. 271.  
 
The Russian Federation does not dispute the correctness of this market share information.  
330 European Union's first written submission , para. 272.  WT/DS479/ R 
 
- 79 - 
 
  7.6.2.3.4   Conclusion  
7.193.   For the reasons above, we  find that the European Union has failed to establish that the 
causation determination  of the DIMD was one that a  reasonable and objective investigating 
authority could not have r eached on the basis of the evidence and arguments before it .  
7.6.2.4   Non-attribution   
7.194.   The European Union identifies  five " factors other than the dumped imports which at the 
same time are injuring the domestic industry " that it alleges were known to the DIMD but w hich it 
did not examine properly , or failed to examine at all , in its non-attribution analysis:  
a. the termination of the licensing agreement between Fiat and Sollers331; 
b. competition by GAZ during the POI332;  
c. self-inflicted injury333;  
d. the financing difficulties334; and 
e. the disco ntinuance of government support programmes.335 
7.195.   The Russian Federation  argues that, for a factor to be "known " to the investigating 
authority, it must be clearly raised  before the investigating authority336 and be supported and 
justified by eviden ce.337 Only those factors that were found by the investigating authority to be 
substantiated  needed to be taken into account in the non -attribution analysis .338 The 
Russian  Federation  contends that the DIMD  analysed the interested parties' comments and 
explain ed in the  Investigation Report its conclusions regarding the alleged impact of two factors 
that were clearly raised  before it: the termination of the license agreement  and the competition 
from other domestic producers.339 The Russia n Federation contends that  the other three factors 
identified by the European Union were not substantiated before the DIMD, and therefore were not 
"known" to it and did not require further consideration.340 
7.196.   We turn first to the DIMD's assessment of the two factors that it concluded w ere clearly 
raised before it, before turning to its treatment  of the other three factors identified by the 
European Union.  
7.6.2.4.1   The termination of the licence agreement  
7.197.   During the investigation, several interested parties argued that the announcement in 
early 2011 that the licence agreement between Fiat and Sollers would be terminated as of 
31 December  2011 became a disruptive factor for Sollers' business.341 In examining this 
argument, the DIMD found that the domestic industry was entitled to produce the like pr oduct 
throughout the period of investigation, which ended on 30 June 2011, and beyond 
                                               
331 European Union's first written submission, para. 293; second written submission. paras. 160 -164. 
332 European Union's first written submission, paras. 294 and 298 -304; second written submission, 
para. 165; and opening statement at the first meeting of the P anel, paras. 72 and 73.  
333 European Union's first written submission, para. 305; second written submission, paras. 166 -168.  
334 European Union's first written submission, para. 306; second written submission, para. 169.  
335 European Union's first written submi ssion, para. 307; second written submission, para. 170.  
336 Russian Federation 's first written submission , para. 322 (citing Panel Report s, EC – Tube or Pipe 
Fittings , para. 7.359 ; and  Thailand – H-Beams , para. 7.273 ). 
337 Russian Federation's first written su bmission , para. 323 (citing Panel Report, EU – Footwear (China) , 
para. 7.484 ). 
338 Russian Federation's first written submission , para. 324 (citing Appellate Body Report, US – Steel 
Safeguards , para. 491 ). 
339 Russian Federation's first written submission , paras. 315 -318. 
340 Russian Federation's first written submission, para. 342.  
341 PCA's Injury Submission of 6 April 2012 following the Public Hearing of 22 March 2012, (Exhibit 
EU-13), p. 14; Comments by Daimler  and Mercedes -Benz RUS on the Report of 28 March 20 13, (Exhibit 
EU-19), p. 6 ; and Volkswagen's submission of 6 April 2012 regarding the Public Hearing of 22 March 2012 , 
(Exhibit EU -11), section IV.1.c.  WT/DS479/ R 
 
- 80 - 
 
  through  2012.342 The DIMD also noted that production decreased by only 7% in 2011, despite the 
serious deterioration of the state of the domestic industry. The DIMD conclud ed that the 
announced termination of the licence agreement was not a factor causing injury to the domestic 
industry at the same time as dumped imports.343  
7.198.   The European Union argues that the DIMD's analysis of the effects of the termination of 
the licence ag reement between Fiat and Sollers was contradicted by evidence.344 The 
European  Union contends that the fact that Sollers was entitled to produce the like product 
throughout 2011 and 2012 is not sufficient to conclude that the dwindling cooperation with Fiat did 
not cause difficulties to Sollers' activities, requiring it to sell its LCV models at lower prices than 
would otherwise have been the case.345 The European Union  argues that the Russia n Federation  
itself considers that the announcement of the termination  was "'likely to exert a significant impact 
on changing of market share, price and net profit margin ' of Sollers "346, and refers to section 2.3 
of Exhibit RUS -5 to this effect.  The Russian Federation argues that there was no evidence in the 
record which woul d have allowed the DIMD to conclude that the termination of the license 
agreement itself could be considered as a known factor other than the dumped imports which at 
the same time was injuring the domestic industry.347 
7.199.   The parties do not dispute the fact tha t the termination of the cooperation agreement did 
not happen during the period of consideration or  the fact that the domestic industry was entitled to 
produce the like product throughout the period of consideration. The European Union argues that 
the DIMD 's explanation for its conclusion that the termination did not cause injury at the same 
time as the dumped imports is not sufficient, because in its view the fact that production continued 
does not lead to the conclusion that injury was not caused by the t ermination of the licence 
agreement.   
7.200.   The European Union's argument that the DIMD acknowledged that the announcement of 
the termination was likely to have exerted a significant impact on the domestic industry is not 
supported by the record. Exhibit RUS -5 contains the  written arguments and evidence submitted by 
two interested parties at the public hearings in the underlying investigation . The section of this 
submission referred to by the  European Union does not contain any acknowledgement by the 
DIMD or the Russian Federation  of the impact of the announcement of the termination.348  
7.201.   We agree with the European Union to the extent that, in principle, the fact that Sollers was 
entitled to produce Fiat Ducato LCVs both during and after the period of consideration d oes not 
necessarily preclude that the forthcoming termination of the underlying licence agreement might 
have disruptive effects on the domestic industry during the period of consideration. In some 
situations, the announcement of a strategic business decisi on may , in itself,  affect market 
behaviour. However, there is no indication that there was any evidence before the DIMD during 
the investigation to suggest that this was the case here. No interested party submitted any 
                                               
342 The DIMD stated in section 5.3.3 of the Investigation Report that:  
The term of the license agreement f or the production of Fiat -brand light commercial vehicles 
expired on 31 December 2011. In line with the arrangements with Fiat Group Automobiles 
S.p.A., the applicant was entitled in 2012 to conduct the assembly of previously supplied 
automobile components  and sell the manufactured light commercial vehicles via a network of 
authorized dealers.  
343 Section 5.3.3 of the Investigation Report . 
344 European Union's second written submission, paras. 160 -164; opening statement at the first meeting 
of the Panel, para. 71.. 
345 European Union's first written submission, para. 293.  
346 European Union's second written submission, para. 161 (referring to Daimler's and 
Mercedes'  comments regarding the Public Hearing of 22 March 2012, Letter No. 21 -1204/EAPP, 5 April 2012 , 
(Exhib it RUS -5), section 2.3 ); response to Panel question No. 51, para. 163.  
347 Russian Federation's first written submission, paras. 333 -335. 
348 Section 2.3 of Exhibit RUS -5 contains, in relevant part, the following statement by Daimler AG and  
Mercedes -Benz RUS C JSC: 
We would like to direct attention of the Ministry to other factors  which appear reasonably likely to  
exert a significant impact on changing of market share, price  and net profit margin of the 
Applicant.  
Daimler's and Mercedes' comments regarding the P ublic Hearing of 22 March 2012, Letter 
No. 21-1204/EAPP, 5 April 2012 , (Exhibit RUS -5), p. 56  WT/DS479/ R 
 
- 81 - 
 
  evidence to substantiate the allegati on that the termination of the licence agreement, which 
happened after the period of consideration, caused injury to the domestic industry at the same 
time as the dumped imports.349 To the contrary, the record shows conflicting views expressed by 
interested parties as to the impact of the announced termination of the licence agreement on 
Sollers'  performance.350  
7.202.   The interested parties furnished no evidence to support the allegation that the termination 
of the licence agreement or its announcement caused injury  to the domestic industry. Accordingly,  
we find that the European Union has not established that the DIMD acted unreasonably  in 
concluding that the termination  of the license agreement was not a known factor other than the 
dumped imports which at the same time was injuring the domestic industry.   
7.6.2.4.2   Competition from GAZ 
7.203.   In relation to the allegation that competition from GAZ caused injury to the domestic 
industry, the DIMD found that the market  share of GAZ was negligible from 2008 to 2010, then 
increased in 2 011, but only to a level much lower than that of the dumped imports. The DIMD also 
found that the deterioration of the state of the domestic industry started from 2010, when the 
market share of GAZ was still insignificant. The DIMD concluded that the impac t of competition 
from GAZ was not determinative in causing material injury to the domestic industry.351  
7.204.   The European  Union argues that the DIMD's analysis suffered from several shortcomings:  
a. the DIMD did not analyse whether the imminent entry of GAZ on the  diesel -engine LCV  
market was likely to have exerted considerable competi tive pressure on Sollers 
during  2010, which may have had an impact on prices352;  
b. the DIMD did not consider the effect of the competition  between diesel - and 
petrol -engine  LCVs that exi sted before GAZ started production of its Gazelle 
diesel -engine  LCV in the middle of 2010. In support of this argument, the European 
Union refers to a marketing report  in which the author discussed the LCV market 
structure in the Russian Federation during the year 2010 without differentiating  between 
diesel - and petrol -engine  LCVs353; and   
c. the injury suffered by Sollers in 201 0 and 2011  must have been caused by competition 
from GAZ , due to the  fact that the domestic producers' (i.e. Sollers and GAZ) market 
share remained at a significantly high level (57%) in 2011.354 
7.205.   The Russian Federation argues that the DIMD's analysis  of the allegedly injurious effects of 
competition from GAZ  was adequate. T he DIMD examined the nature and extent of injury caused 
by competiti on from GAZ  and determined that such injury was not decisive, as opposed to the 
                                               
349 PCA referred to one newspaper article entitled "Sollers and Fiat did not go far", published by the 
Kommersant on 21 February 2011. (See a ppendix  10 to Annexes t o PCA's Injury Submission of 6 April 2012 , 
(Exhibit EU -14), p. 42) . However, this article does not contain any evidence supporting the allegation that the 
termination caused injury to Sollers.  
350 For instance, Daimler argued that the termination of the lice nce agreement was "disruptive and not 
conducive to supporting the Applicant 's core business" . (Comments  by Daimler of 16 March 2012 regarding the 
Public Hearing , (Exhibit EU -8), p. 8; and Comments by Daimler  and Mercedes -Benz RUS on the Report of 
28 March  2013,  (Exhibit EU-19), p. 6 ). PCA acknowledged that the termination of the licence agreement and 
the consequent switch of business partners did not have any major impact on the performance of Sollers 
during the period of consideration , stating that:  
The So llers Group switched business partner (Fiat to Ford) in the middle of investigation period, 
although the situation was not so critical  in terms of their commercial performance during that 
period.  
PCA's Injury Submission of 6 April 2012 following the Publi c Hearing of 22 March 2012, (Exhibit EU -13), 
p. 14 (emphasis added) 
351 Investigation Report , section 5.3.2.  
352 European Union's first written submission, para. 297.  
353 European Union's first written submission, para. 298 (referring to Autostat, Marketing Repo rt LCV 
Market in Russia:  Results, Trends, and Perspectives  (April 2011), (Exhibit  EU-15), p. 10 ). 
354 European Union's first written submission, para. 303.  WT/DS479/ R 
 
- 82 - 
 
  effects of the dumped imports.355 The Russia n Federation argues that the effect of competition 
from GAZ was separated and distinguished from the effect of the dumped imports, as required by 
Article  3.5.356 
7.206.    We address in turn each of the European Union's three arguments concerning the DIMD's 
analysis.  
7.6.2.4.2.1   The impact of imminent  market entry of Gazelle diesel -engine LCVs on the 
domestic industry's prices  
7.207.   The European Union challenges the  DIMD's conclusion that injury to the domestic industry 
was found during a period when GAZ's market share for the like product was still negligible. The 
European Union argues that the imminent entry of GAZ on the diesel -engine LCV  market was likely 
to have  exerted considerable competitive pressure on Sollers during 2010  and may have had an 
impact on prices.357 The Russian Federation maintains that the DIMD made conclusions on the 
basis of evidence before it concerning the nature and extent of injury caused by  competition from 
GAZ, and asserts that the DIMD was right to look at the timing of the injury caused by GAZ, 
because the other known factor must be causing injury to the domestic industry  at the same time  
as the dumped imports.358  
7.208.   The parties do not disput e that GAZ started production of the Gazelle  and Sobel  
diesel -engine  LCVs in the middle of 2010.359 In principle, the imminent entry of a new competitor 
may exert competitive pressure on existing players in the domestic market for the like product, 
with nega tive effects  for the domestic industry . However, in the present case  the European Union 
has pointed to no evidence on the record that shows that interested parties argued, or presented 
evidence, during the investigation to the effect that the imminent entr y of Gazelle diesel -engine 
LCVs had a negative impact on the domestic industry, including its prices, in 2010, when the DIMD 
found that injury caused by dumped imports was already occurring.  There is no express 
requirement in Article  3.5 that investigating  authorities seek out and examine  in each case on their 
own initiative the effects of all possible factors other than dumped imports that may be causing 
injury to the domestic industry under investigation . Accordingly,  we conclude that the DIMD did 
not act  inconsistently with Articles  3.1 and 3.5 by not analysing the imminent entry of GAZ on the 
diesel -engine LCV  market during 2010 . 
7.6.2.4.2.2   Competition between  diesel - and petrol -engine LCVs  
7.209.   The European Union argues that the DIMD failed to consider the impact of th e competition 
between diesel - and petrol -engine LCVs that allegedly existed before GAZ launched its Gazelle 
diesel -engine LCVs in the middle of 2010. In support of this arg ument, the European Union refers  
to submissions of the interested parties who argued  that petrol -engine LCVs should be included in 
the scope of the like product.360 
7.210.   The European Union's argument rests on the premise that :  
a. there was a competitive relationship between diesel - and petrol -engine LCVs, in 
particular GAZ's petrol -engine LCVs361; and 
                                               
355 European Union's first written submission, para. 296; and Russian Federation's first written 
submiss ion, para. 338 (quoting Public version of the Investigation Report , (Exhibit RUS -12), section 5.3.2 ). 
356 Russian Federation's first written submission, para. 339.  
357 European Union's first written submission, para. 297.  
358 Russian Federation's first written s ubmission, para. 340.  
359 Before that, GAZ only produced a very small quantity of diesel -engine LCVs. (See JSC "Gorkovsky 
Avtomobilny Zavod" Reply on Volumes of Production, Letter No. 18/ОД/2/2013, 21 February 2013, ( Exhibit 
RUS-16 (BCI)) . See also Minutes of the Public Hearings (exhibit EU -9), p. 12.  
360 European Union's first written submission, para. 299 (refe rring to Comments by Daiml er of 
16 March  2012 regarding the Public Hearing , (Exhibit EU -8), attachment 7: Auto Review Magazine testing of 
Fiat Ducato and Gazelle ; and  Minutes of the Public Hearing of 22  March 2012 , (Exhibit EU -9), p. 12 ); and 
Comments by D aimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), attachment 8 . 
361 European Union's first written submission, paras. 298 -300. WT/DS479/ R 
 
- 83 - 
 
  b. the LCVs of GAZ and Sollers are not within the same price segments as imported 
LCVs.362  
7.211.   These allegations were investigated and rejected by the DIMD during the investigation.363 
Because t he DIMD had already considered and rejected the interested parties' f actual premise in 
the context of the definition of the like product, we do not consider that the DIMD was required  to 
repeat that analysis in the context of its determination of causation.364 Accordingly, we conclude 
that the DIMD did not act inconsistently with Articles  3.1 and 3.5 by failing to consider the impact 
of competition between diesel - and petrol -engine LCVs.  
7.6.2.4.2.3   Domestic producers'  market share in 2011  
7.212.   The European Union asserts that the injury suffered by Sollers  in 2010 and 2011  must 
have been cause d by competition from GAZ , due to the  fact that the domestic producers' (Sollers 
and GAZ) market share remained at a significantly high level , 57%, in 2011.365 This argument 
overlaps to a great extent with the European Union's argument concerning the DIMD's 
demonstration of a causal link on the basis of the volume  effects of the dumped imports. We refer 
to our discussion of the similar argument of the European Union in section  7.6.2.3.2  above. The 
same consideratio ns apply, mutatis mutandis , to the European Union's argument concerning the 
DIMD's non -attribution analysis of the competition from GAZ in 2011.  
7.213.   Furthermore, the  European  Union argues that the market share lost by Sollers was actually 
taken by GAZ, rather than the dumped imports.366 However, the  European Union has not shown 
that this argument was clearly raised by the interested parties before the DIMD during the 
investigation.  
7.214.   For the reasons above , we conclude that the European Union has not established th at the 
DIMD's non -attribution analysis of competition from GAZ was inc onsistent with Articles 3.1 
and 3.5. 
7.6.2.4.3   Other factors  
7.215.   The European Union argues that in its non -attribution analysis, the DIMD did not consider 
at all certain "other known factors", referri ng specifically in this regard to:  
a. self-inflicted injury367;  
b. the difficulties encountered by Sollers in obtaining financing for its joint venture with 
Fiat368; and  
c. the discontinuation  of government support programmes by the end of 2010.369  
                                               
362 European Union's first written submission , para. 301. 
363 The DIMD addressed  the alleged competitive relationsh ip between diesel - and petrol -engine  LCVs in 
section 2.1 of the Investigation Report  in the context of its conclusions regarding the scope of the subject 
imports and the domestic like product. The DIMD found that the technical parameters of diesel engines 
(torque, fuel efficiency, the degree of compression, the method of mixture ignition, durability) are significantly 
different from those of a petrol engine. The DIMD also found that diesel engines are preferable in terms of 
operation of LCVs. The DIMD concl uded that the technical characteristics of diesel engines can affect buyers' 
preference when choosing between petrol and diesel versions of a LCV. (See Public version of the Investigation 
Report , (Exhibit EU -21), p. 18).  
Concerning the allegedly different price segments, the DIMD found that interested parties did not 
present sufficient evidence to substantiate their claims. The DIMD also found that the evidence before it did not 
confirm the existence of the allegedly different price segments. The DIMD concl uded that the price of the 
domestic like product was in the same range as the export price of the allegedly dumped imports. (See Public 
version of the Investigation Report , (Exhibit EU -21), p. 17).  
364 See by analogy, Appellate Body Report, EC – Tube or Pipe  Fittings , para. 178.  
365 European Union's first written submission, para. 303.  
366 European Union's opening statement at the first meeting of the Panel, figure 6.  
367 European Union's first written submission, para. 305.  
368 European Union's first written submiss ion, para. 306.  
369 European Union's first written submission, para. 307.  WT/DS479/ R 
 
- 84 - 
 
  7.216.   The Investigation Report does not contain any reference to the se three allegedly known 
other factors  causing injury at the same time as dumped imports . The Russian Federation argues 
that interested parties did not present evidence to substantiate their claims that these "ot her 
factors" were injuring the domestic industry as the same time as the dumped imports. 
Consequently, the Russian Federation argues, these factors were not clearly raised before the 
DIMD and were therefore not "known" to the DIMD.370 The Russian Federation contends  that an 
investigating authority is only required to undertake a non -attribution analysis with respect to 
factors  other than the dumped imports which are known to the investigating authority and which 
are injuring the domestic industry at the same time as dumped imports.  
7.217.   We recall that the obligation under Article  3.5 to conduct a non -attribution analysis  only 
arises whe re the alleged "other factor" is: 
a. "known" to the investigating authority;  
b. a factor "other than dumped imports"; and  
c. injuring the do mestic industr y at the same time as the dumped imports.371 
7.218.   An investigating authority is not required to address every argument and element of 
evidence raised by interested parties – indeed, such a requirement would make the investigating 
authority's task la rgely impossible.  In the circumstances of this case, where there is nothing on the 
face of the Investigation Report concerning these alleged other factors, we will examine the record 
of the investigation to determine whether  there was evidence before the D IMD based on which it 
should have addressed whether the alleged "other facto rs" referred to by the European  Union were 
injuring the domestic industry as the same time as the dumped imports . If we  conclude that there 
was indeed no such evidence before the DIMD with respect to any of these factors, we may 
conclude that there was no inconsistency with Articles  3.1 and 3.5 in not addressing that alleged 
other factor at all.372 If we find there was evidence suggesting that one or more of these "other 
factors"  was injuring the domestic industry a t the same time as the dumped imports, we may 
conclude that the DIMD err ed in not making findings with respect to such factor(s) .373  
7.6.2.4.3.1   Self-inflicted injury  
7.219.   The European Union argues that the DIMD did not examine the interested  
parties'  arguments that the injury suffered by Sollers was largely self -inflicted  as an "other factor" 
causing injury : 
a. PCA argued before the DIMD that Sollers' business plan for its joint -venture with Fiat 
was "very ambitious", with a plan to launch nine new models at once374 and a target to 
sell 75,000 Fiat Ducato vans per year375; 
b. both PCA and Daimler argued before the DIMD that there were quality problems with 
Sollers' Fiat Ducato.376 According to the European Union, the ambitious business plan 
and the qualit y problems explained why Sollers was making less profit than expected 
and could not raise prices; and  
                                               
370 Russian Federation's response to Panel question No. 36, paras. 91 -103. 
371 Appellate Body Report, EC – Tube or Pipe Fittings , para. 175. 
372 We note that this was also the approach taken  by the panel in China – X-Ray Equipment . (See Panel 
Report, China – X-Ray Equipment , para. 7.267).  
373 We note in this regard that it might have been preferable for the DIMD to, at a minimum , explain 
that while interested parties asserted certain other fact ors were causing injury, they failed to submit evidence 
suggesting that these factors were causing injury, rather than to remain silent . 
374 Annexes  to PCA's Injury Submission of 6 April 2012 , (Exhibit EU -14), p. 39.  
375 PCA's Injury Submission of 6 April 2012  following the Public Hearing of 22 March 2012 , (Exhibit 
EU-13), p. 14.  
376 PCA's Injury Submission of 6 April 2012 following the Public Hearing of 22 March 2012 , (Exhibit 
EU-13), p. 14 ; Comments by Daimler  and Mercedes -Benz RUS on the Report of 28 March 20 13, (Exhibit 
EU-19), p. 6 ; Comments  by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 8 and 
attachment 7: Auto Review Magazine testing of Fiat Ducato and Gazelle ; and  Minutes of the Public H earing of 
22 March 2012 , (Exhibit EU -9), p. 28.  WT/DS479/ R 
 
- 85 - 
 
  c. Daimler pointed out that  Sollers reduced the number of Fiat Ducato models produced in 
the second half of 2010.377 
7.220.   The Russian Federation argues that the int erested parties simply did not provide any 
evidence  concerning the allegedly ambitious business plan  beyond certain press articles  stating the 
view that the business model of Fiat/Sollers cooperation was not viable .378 The Russian Federation  
argues that the interested parties similarly provided no supporting evidence that Sollers  had 
overall quality problems . The Russian Federation contends that interested parties failed to show 
how such factors explained the decrease in Sollers' profits  and its ability to ra ise prices.379 
7.221.   Turning first to the alleged  quality issues, we note that the  only evidence of any  quality 
problems on the record was an article  from Auto Review Magazine  on the testing of one Fiat 
Ducato LCV on a cobblestone road.380 As discussed above in paragraph 7.89, given the narrow 
sample of Auto Review's testing of Sollers ' LCVs, we consider that this magazine article  cannot 
suffice to demonstrate the existence of quality problems with Sollers' product s to the degree that 
would suggest that DIMD acted unreasonably in failing to consider whether the alleged quality 
problems affected Sollers profits and ability to raise prices and thereby caused injury . Accordingly, 
we find that the DIMD did not act inconsistentl y with Articles  3.1 and 3.5 by not conducting a non -
attribution analysis of the alleged quality issues.  
7.222.   Concerning the alleged reduction in the number of  Fiat Ducato models  produced in the 
second half of 2010 , we note that Daimler , the interested party mak ing this argument,  did not 
explain how th is fact, if substantiated, could have caused or contributed to injury suffered by 
Sollers. We do not consider that a reduction in the number of  models produced would necessarily 
cause injury to the domestic industry  in the circumstance of this case at all . Indeed, in  certain 
situations,  a reduction in the number of models produced could contribute to improving the 
performance of a domestic industry.  In other situations, such a reduction could ind icate the 
existence o f injury. In the absence of any explanation, it is difficult to understand the view that 
such a reduction is itself a cause of injury.  Accordingly, we find that the DIMD did not act 
inconsistently with Articles  3.1 and 3.5 by not conducting a non -attributi on analysis of the 
reduction of the number of Fiat Ducato models  produced . 
7.223.   Concerning the alleged ly ambitious business plan, the record shows that PCA relied upon 
several newspaper articles  in arguing that the allegedly ambitious business plan of Sollers c aused 
self-inflicted injury. However, these articles  do not support PCA's argument. First, these 
articles  concerned the Sollers Group's planned joint venture with Fiat for passenger cars and 
off-road vehicles, rather than the licensing agreement pertaining  to production of the like 
product.381 Second, one of the newspaper articles  comments on Sollers' business model as being 
"well established and scalable", a statement which would seem positive rather than negative, 
assuming it referred to the business model for production of the like product.382 We find  nothing in 
these articles  to suggest that DIMD acted unreasonably in failing to consider whether 
Sollers'  business plan for the like product was so ambitious as to be unlikely to succeed, and thus 
a cause of sel f-inflicted injury.  
                                               
377 Comments by Daimler  and Mercedes -Benz RUS on the Report of 28 March 2013,  (Exhibit EU-19), 
p. 6; and Comments by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 9.  
378 Russian Federation's response to Panel question No. 3 6, para. 92.  
379 Russian Federation's response to Panel question No. 36, para. 94; opening statement at the second 
meeting of the Panel, para. 64.  
380 Comments by Daimler  and Mercedes -Benz RUS on the Report of 28 March 2013, (Exhibit EU -19), 
p. 6; Comments  by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 8 and 
attachment 7: Auto Review Magazine testing of Fiat Ducato and Gazelle ; and Minutes of the Public Hearing of 
22 March 2012 , (Exhibit EU -9), p. 28.  
381 Annexes to PCA's Injury Subm ission of 6 April 2012 , (Exhibit EU -14), appendix 7, p. 36, a ppendix  8, 
p. 37, and a ppendix  9, p. 39.  
382 Annexes to PCA's Injury Submission of 6 April 2012 , (Exhibit EU -14), appendix 9,  p. 39.  It was 
stated that "Sollers doesn't have that massive fictitious  force, as the AutoVA vehicles do, it is like a stone on 
your ankles, – commented Boris Rohin, the head of the Automobile Society Ward Howell. – The company 
possesses a well -established and scalable business model, while the AutoVAZ is not even on the 'bas ic 
correctness'".  WT/DS479/ R 
 
- 86 - 
 
  7.224.   The confidential data on capacity  and capacity utilization on the record does lend some 
support to PCA's argument  that Sollers' plan to launch nine new models at once  and a target to 
sell 75,000 Fiat Ducato vans per year  was overly ambitious. PCA argued that:  
Following the Licensing agreement between the Complainant and Fiat to produce Fiat 
Ducato in the Russian Federation, the production started late in 2008 on the eve of 
the economic crisis. The announced capacity dedicated to Ducato m odel was 75,000 
vehicles per year - which appeared overly ambitious . In fact, the realization of such 
production capacity of Ducato in historical, current and near future market conditions, 
would mean that Sollers would replace all imports, but also a major  part of its main 
local competitor 's (GAZ  Gazelle) market share.383 
PCA's argument relates to the impact of a  high level of installed capacity on the state of the 
domestic industry, in particular with respect to capacity utilisation. PCA argued essentially t hat 
Sollers installed too much capacity from the beginning of its production of the like product and that 
production at or near full capacity would be difficult to realize under normal market conditions. The 
confidential data concerning the domestic indust ry in section 4.2.3 of the Investigation Report, 
[*** ], lends  support to this argument:  
 
Table 10: Capacity and capacity utilisation of the domestic industry  
Indicator  Unit  2008  2009  2010  POI 2011  H2 of 2010  H1 of 2011  
Capacity of the 
domestic ind ustry 
of the CU  units [***] [***] [***] [***] [***] [***] 
Volume of 
production of the 
domestic industry 
of the CU  units [***] [***] [***] [***] [***] [***] 
Capacity utilization  % [***] [***] [***] [***] [***] [***] 
 
Source: Confidential version of the I nvestigation Report, (Exhibit RUS -14) (BCI) , table 4.2.3.  
 
7.225.   We recognize  that, in some  situations, the installation or existence of a large amount of 
production capacity could by itself  result in low capacity utilisation, and cause injury to the 
domestic in dustry . It is not necessarily unreasonable  for a start -up operation to install capacity 
sufficient to, if the enterprise is successful, serve its domestic market . However , we would have 
expect ed a reasonable and objective investigating authority to have co nsidered , in the light of the 
facts and arguments in this case, whether the level of installed capacity in the domestic industry 
was an "other factor" causing injury  and addressed it in its non -attribution analysis.  There is  
nothing in the Investigation Re port to suggest that the DIMD considered the possible cause of low 
capacity utilisation, an allegedly overly ambitious business plan  and excessive capacity , in its 
assessment of non -attribution . To the contrary, despite the evidence of an overly ambitious 
capacity installation at the outset of Sollers ' operations,  the DIMD relied on low capacity utilisation 
in its finding of material injury.384  
7.226.   For the reasons above , we find that by failing to address PCA's argument regarding the 
possible cause of Sollers' l ow capacity utilisation during the period of consideration  in its 
non-attribution analysis , the DIMD acted inconsistently with Articles  3.1 and 3.5.  
7.6.2.4.3.2   Financing  difficulties  
7.227.   The European Union argues that interested parties pointed out during the investigat ion 
that the Russian Federation's  public bank Vnesheconombank (VEB) backed out of its plan to 
extend a line of credit, at subsidised  rates of interest, meant to cover the vast majority of the 
                                               
383 PCA's Injury Submission of 6 April 2012 following the Public Hearing of 22 March 2012 , (Exhibit 
EU-13), p. 14.  (emphasis added)  
384 We note that the DIMD found that " the production capacity of the domestic industry of the CU during 
the an alysed period remained unchanged", and that "[n] otwithstanding the increase of the capacity utilization 
during the analysed period this indicator remained at a low level ". (See Confidential version of the 
Investigation Report , (Exhibit RUS -14) (BCI), secti on 4.2.3 (emphasis added)).  WT/DS479/ R 
 
- 87 - 
 
  costs of a planned Fiat -Sollers joint venture project concerning  the assembly of passenger cars 
and off -road vehicles , and asserts that the DIMD failed to consider this as an "other factor" causing 
injury.385 The European Union contends that facts on the record suggest that VEB pulled out of the 
project before the joint venture with Fiat was ended, and that one of the reasons for its decision to 
do so was the absence of a credible business plan. The European Union refers to two documents in 
the record:  
a. Letter of Volkswagen dated 15 October 2013, (Exhibit EU -44), section 4; and 
b. PCA's Injury Submissi on of 6 April 2012  following the Public Hearing of 22 March 2012 , 
(Exhibit EU -13), p. 14 , and Annexes  1 and 8  to PCA's Injury Submission of 6 April 2012 , 
(Exhibit EU -14) (newspaper articles  relating to financing of the planned F iat-Sollers joint 
venture) . 
7.228.   The Russian Federation argues that the letter of Volkswagen dated  15 October 2013 
(Exhibit EU -44) was not on the investigation record  because it post -dated the entry into effect of 
the measure. Nor did the European Union provide  this letter during the present proceedings .386 
The Russian Federation contends that the newspaper articles  referred to by PCA did  not indicate to 
the DIMD  that the injury caused to the domestic industry was due to this allegedly financing 
difficulty .387  
7.229.   The question for us is whether there was evidence on the record that would have led a 
reasonable and objective investigating authority to know that the financing difficulties were an 
"other factor" possibly causing injury to the domestic  industry at the same t ime as dumped 
imports.  PCA relied upon the following documents in its arguments to the DIMD in this regard:  
a. Annex 1 to PCA's injury submission is an article  dated 18 February 2011 from the 
Russian newspaper Vedomosti stating that the Fiat -Sollers joint -venture project could 
not be structured based on the business plan presented by the two companies. It also 
mentioned that Sollers had failed to provide the necessary documents by 
December  2010. Sollers General Director Vadim Shevtsov said that the joint ventu re 
could get a loan from commercial banks.  
b. Annex 8 to PCA's injury submission is an article  dated 6 December 2010 from the 
Russian newspaper RIA N ovosti stating that Sollers had not presented all necessary 
documents for VEB to consider the  financing the jo int project between Sollers and Fiat.  
These articles  do not address any matters having to do with the Fiat -Sollers licensing agreement 
underlying the production of Fiat Ducato LCVs, the like product, and thus do not appear to relate 
to the domestic industr y at issue in the underlying investigation . The articles  suggest that VEB 
decided not to finance the planned  Fiat-Sollers joint venture project for the assembl y of passenger 
cars and off -road vehicles388 because  Sollers had not presented all necessary docume nts.  
 
7.230.   The European Union  argues that VEB "most likely" had access to information relating to 
Sollers' capacity and production of LCVs. The European Union contends that " the doubts that 
banks had with regard to Sollers' business plans for the elaborated jo int venture with Fiat 
(producing other cars) were affected by the general doubts that banks had with regard to the state 
of Sollers. This in turn affected Sollers' positi on further. "389 In our view the possibility that VEB's 
decision was affected by informat ion concerning the existing Sollers -Fiat project or the state of the 
domestic industry does not support  the conclusion that VEB's decision not to go forward with 
financing plans for the planned joint venture project injured the domestic industry.  Moreover , 
nothing in  the newspaper  articles  themselves, or in PCA's submissions, explains how VEB's 
                                               
385 European Union 's first written submission, para. 306 ; second written submission, para. 169.  
386 In response to our question at the second meeting of the Panel, the European Union clarified that 
this was an incorrect reference.  The European Union  did not submit this letter to the Panel.  
387 Russian Federation's response to Panel question No. 36, paras. 95 -98. 
388 It is not entirely clear from these articles whether the planned Fiat-Sollers joint venture project 
concerned Sollers -Elabu ga LLC (i.e. the domestic industry) or Sollers JSC. However, taking into account the 
arguments concerning Sollers planned joint venture with Fiat discussed at paragraph 7.223  above, it seems 
most likely to us to  be the latter.  
389 European Union 's response to Panel question No. 72, paras. 28 -30.  WT/DS479/ R 
 
- 88 - 
 
  decision not to finance the planned joint venture affected the state of the domestic industry 
producing diesel -engine LCVs. We find therefore that the European Union  has not established that 
the alleged financing difficulties of the planned  Fiat-Sollers joint -venture project  for the assembly 
of passenger cars and off -road vehicles  was a "known factor"  causing injury to the domestic 
industry producing diesel -engine  LCVs.  
7.6.2.4.3.3   Discontinuation of government  support programmes  
7.231.   The European Union argues that the DIMD did not examine the discontinuation of certain 
Russian government programmes supporting  local car manufacture rs at the end of 2010 as an 
"other factor" causing inj ury to the domestic industry . The European Union refers to Daimler 's 
comments  that: 
Important governmental support programs were discontinued at the end of 2010. 
Prior to this time the Applicant used the opportunities of the local support provided by 
the R ussian Government to increase sales and gain SoM (e.g. subsidizing of credits for 
the customers on the local market, subsidizing of a number of lease companies, state 
credits, massive public procurements of the vehicles, etc. (cf. Attachment 6).  
The govern mental "Sole Supplier" decree supporting local producers was also stopped 
at the end of 2010. In accordance with this governmental resolution there was a list of 
producers whose products could be purchased by state bodies through the placement 
of the order  with a single supplier. Moreover, there was an increase in the amount of 
state advancing by 50% when concluding a state contract for the purchase of vehicles 
through the placement of the order with a single supplier.390 
The European Union contends  that the discontinuation of this  programme meant that an important 
incentive for consumers to purchase local cars was removed, affecting Sollers.391  
 
7.232.   The Russian Federation contends that the alleged discontinuation of the support 
programmes was not only unsubstantia ted but also factually incorrect.  The Russian Federation 
argues that Daimler provided evidence of only one support programme, concerning the sales of 
vehicles at a discount in return for recycled vehicles under the Order of the Ministry of Industry 
and Tra de dated 14 January 2010 . The Russian Federation  asserts that  this programme  was not 
discontinued by the end of 2010, but remained in force throughout the period of consideration .392 
Moreover, the Russian Federation argues that, contrary to the European Unio n's allegation, only 
the dealers, and not domestic car producers, could claim the discounts under this programme.393 
In any event, the alleged discontinuation of this support programme was not a "known other 
factor" within the meaning of Article  3.5 because it could not have caused injury to the domestic 
industry at the same time as the dumped imports.394 
7.233.   Daimler advanced two arguments before the DIMD , one concerning the "subsidized 
discounts" programme and the other the "Sole Supplier" programme.  Daimler asser ted that 
Sollers'  diesel -engine LCVs benefited from the "subsidized discounts"  programme. Daimler does 
not, however, appear to have provided any evidence that the support programme was 
discontinued or that Sollers' LCVs no longer benefited from it after th e end of 2010. Absent 
evidence to suggest that a benefit to Sollers' LCVs was no longer available after 2010, there is no 
basis for the argument that the termination of the programme, if true, caused injury to the 
                                               
390 Comments by Daimler of 16 March 2012 regarding the Public Hearing , (Exhibit EU -8), p. 8 and 
attachment 6: List of models and producers of new vehicles, produced in Russi a, eligible to be sold at 
discounted prices as part of a test to stimulate the acquisition of new vehicles in return for used and to be 
recycled vehicles . 
391 European Union 's first written submission, para. 307 ; second written submission, para. 170.  
392 Russi an Federation's response to Panel question No. 36, para. 102 (referring to the Order of the 
Government of the Russian Federation dated 31 December 2009, No. 1194, as revised by the Order o f the 
Government of the Russian Federation dated 28 December 2010 No . 1171); opening statement at the second 
meeting of the Panel, paras. 62 and 63.  
393 Russian Federation's response to Panel question No. 36, para. 102 (referring to the Order of the 
Government of the Russian Federation dated 31 December 2009, No. 1194, Rules  of provision of subsidies 
from the Federal budget for recovering revenue losses of trading companies from selling new vehicles, 
produced in the Russian Federation, with discounts).  
394 Russian Federation's response to Panel question No. 36, para. 103.  WT/DS479/ R 
 
- 89 - 
 
  domestic industry.  Accordingly, we find th at the  European Union has not demonstrated that the 
discontinuation  of the "subsidized discounts" programme  was a "known factor"  causing injury to 
the domestic industry .  
7.234.   Second, the record contains no indication that Daimler submitted any evidence to supp ort 
its allegations that : (a) there was a "Sole Supplier" programme; ( b) Sollers benefited from this 
programme; and ( c) the programme was discontinued or Sollers no longer benefited from it after 
the end of 2010. In fact, the record shows that Daimler did not even allege that Sollers was a 
beneficiary of the "Sole Supplier" programme with respect to its diesel -engine  LCVs, but merely 
mentioned that the programme supported "local producers" without further explanation . In the 
absence of any evidence to sugge st that Sollers ever benefitted from this programme, there is 
again no basis for the argument that the termination of the programme, if true, caused injury to 
the domestic industry.  Accordingly, we  find that the European Union has not established that the 
discontinuation of the "Sole Supplier" programme  was a "known factor " causing injury to the 
domestic industry.   
7.235.   For the reasons above, we find that the DIMD did not act inconsistently with Articles  3.1 
and 3.5 by failing to undertake  a no n-attribution anal ysis with respect to the alleged 
discontinuation of government support programmes.  
7.6.3   Conclusion  
7.236.   For the reasons set out  above , we conclude that the DIMD acted inconsistently with 
Article s 3.1 and  3.5, insofar as it relied on its price suppression  analysis  in its causation 
determination.  
7.237.   We also conclude  that the European Union failed to establish that:  
a. the DIMD's determination that the increased volume and market share of dumped 
imports caused material injury to the domestic industry was inconsistent with 
Articles  3.1 and 3.5;  
b. the DIMD acted inconsistently with Articles  3.1 and 3.5 by failing to conduct a proper 
non-attribution analysis of the termination of the Fiat licence agreement ; 
c. the DIMD acted inconsistently with Articles  3.1 and 3.5 in its non -attrib ution analysis of 
competition from GAZ;  
d. the DIMD acted inconsistently with Articles  3.1 and 3.5 by failing to consider the alleged 
financing difficulties as an "other factor" causing injury;  and 
e. the DIMD acted inconsistently with Articles  3.1 and 3.5 by fa iling to consider the alleged 
discontinuation of the government support programmes as an "other factor" causing 
injury . 
We further conclude that the DIMD acted inconsistently with Articles  3.1 and 3.5 by failin g to (a) 
examine  whether the alleged overly am bitious business plan of Sollers, in particular the level of 
capacity, was causing injury to the domestic industry at the same time as dumped imports, and if 
so, (b) separat e and distinguish  the injurious effects of that factor from the injurious effects o f the 
dumped imports . 
 
7.7  Confidential  Treatment  
7.7.1   Introduction  
7.238.   The European Union argues that confidential treatment by the DIMD of certain information 
submitted by interested  parties was inconsistent with Articles  6.5 and 6.5.1 because, with respect 
to each i tem of information in question, one or more of the following occurred:  
a. the DIMD failed to require a showing of good cause for confidential treatment;  WT/DS479/ R 
 
- 90 - 
 
  b. the DIMD did not assess whether the cause shown was sufficient to warrant the 
confidential treatment ;  
c. there was no "meaningful " summary of the conf idential information submitted; or   
d. no explanation of why a summary was not possible was provided.395  
7.239.   The Russian Federation  rejects these arguments . In general terms, the Russian Federation 
contends that : 
a. with respect to requiring  that good cause be shown, the CU law contains an 
unconditional requirement that an  interested party submitting information show good 
cause for confidential treatment and provide a non -confidential summary of such 
confidential information.396 Such a legal requirement, along with "recommendations" 
issued by the investigating authority, meets the requirements of Articles  6.5 
and 6.5.1397;  
b. the Anti -Dumping Agreement does not provide for specific sanctions to penalize 
interested parties if they fai l to provide a sufficient non -confidential summary or a 
statement of the reasons why summarization is not possible  and the Anti -Dumping 
Agreement does not require an investigating authority to reject confidential information 
submitted in the absence of goo d cause shown398; 
c. with respect to whether good cause was actually shown, "in some instances the nature 
of information itself may show justification, this applies mainly to the information which 
is by nature confidential. With respect to such information, the  basis for providing 
confidential treatment is self -evident "399; and  
d. with respect to the requirement to assess  good cause shown, "the Anti -Dumping 
Agreement could not be understood as to require an investigating authority to explain 
why it accepted whatever  the Anti -Dumping Agreement provides for … Rather it required 
to explain the reasons why an investigating authority did not "400, and so "the fact that 
confidential treatment is granted signifies that an investigating authority is satisfied with 
the good caus e shown and finds that a request for confidentiality is warranted"401; "the 
DIMD assessed the reasons for withholding the information from the public file and was 
satisfied with the 'good cause' shown ."402 
In respect of specific information, the Russian Federa tion further argues that:  
 
e. import/export statistics could be treated as confidential, where for example there is "risk 
of potential disclosure of the details on the individual transactions, including the terms of 
transactions and personal information of th e entities, exists"403, and "[t]he provisions of 
the Protocol on the Status of the Customs Statistic Centre of the CU clearly define the 
absence of the Centre 's competence to provide the statistics on foreign trade of the CU 
to anyone except the government b odies of the CU Member States "404;  
f. material redacted as confidential in the "textual part of particular sections of the 
Application" could be found in the accompanying tables either in whole or in summarised 
                                               
395 European Union's second written submission, para. 174.  
396 Russian Federation's first written submission, para. 349.  
397 Ibid. para. 352; second written submission , para.  252. 
398 Russian Federation's first written submission,  para. 449.  
399 Russian Federation's second written submission , para. 255.  
400 Russian Federation's second written submission, para. 260. (emphasis original)  
401 Ibid. para. 264.  
402 Ibid. para. 266.  
403 Russian Federation's first written submission,  para. 359. 
404 Ibid. para. 369. (fn omitted)  WT/DS479/ R 
 
- 91 - 
 
  format405, and this was sufficient to permit intere sted parties to have a reasonable 
understanding of the substance of the information submitted in confidence406; and 
g. the GAZ Questionnaire response was not included in either the confidential or the 
non-confidential record of the investigation, because:  
i. GAZ had not made a distinction between confidential and non -confidential 
information407, and 
ii. the information supplied by GAZ was deficient.408 
h. Sollers ' letter  of 25 December 2012  and the letter of the "Association of Russian 
Automakers " of 11 February 2013  were re ferenced in the non -confidential version of the 
investigation report and were not treated as confidential by the DIMD.  
7.7.2   Evaluation by the Panel  
7.7.2.1   Relevant provisions  
7.240.   Article  6.5 provides : 
Any information which is by nature confidential (for example, because i ts disclosure 
would be of significant competitive advantage to a competitor or because its 
disclosure would have a significantly adverse effect upon a person supplying the 
information or upon a person from whom that person acquired the information), or 
which is provided on a confidential basis by parties to an investigation shall, upon 
good cause shown, be treated as such by the authorities. Such information shall not 
be disclosed without specific permission of the party submitting it.  
Article  6.5.1 provide s: 
 
The authorities shall require interested parties providing confidential information to 
furnish non -confidential summaries thereof. These summaries shall be in sufficient 
detail to permit a reasonable understanding of the substance of the information 
submitted in confidence. In exceptional circumstances, such parties may indicate that 
such information is not susceptible of summary. In such exceptional circumstances, a 
statement of the reasons why summarization is not possible must be provided.  
Articles  6.5 and 6.5.1 thus strike a balance between confidentiality and due process,  
 
[B]y protecting information where good cause has been shown for confidential 
treatment, while providing an alternative method for its communication so as to 
satisfy the right of o ther parties to the investigation to obtain a reasonable 
understanding of the substance of the confidential information.409 
7.7.2.2   Article  6.5 
7.241.   "Confidential information " is defined in Article  6.5 as information that is : (a) b y nature 
confidential ; or (b) provided  on a confidential basis by parties to an investigation . Under 
Article  6.5, "upon good cause shown" an  investigating authority  must:  
a. treat such information as confidential;  and 
b. not disclose such information without the permission of the submitter . 
                                               
405 Ibid. para. 374. 
406 Ibid. para. 377. 
407 Russian Federation's first written submission , paras. 677  and 678; second written submission, 
para. 272. 
408 Russian Federation's first written submission, para. 678.  
409 Appellate Body Report , EC – Fasteners (China) (Article 21.5 – China) , para.  5.36.  WT/DS479/ R 
 
- 92 - 
 
  Showing go od cause is thus a "condition precedent for according confidential treatment to 
information submitted to an authority".410 The condition applies to all information to be treated as 
confidential, whether it is by nature confidential or submitted on a confiden tial basis .411 An 
interested party fulfils this requirement where it demonstrates " the risk of a potential 
consequence, the avoidance of which is important enough to warrant the non -disclosure of the 
information ".412 Article  6.5 does not require a showing of g ood cause in respect of each item  of 
such information.  Rather, depending on the information and the documents in question, good 
cause may be shown in respect of  general categories of information.  Where an investigating 
authority treats as confidential info rmation in respect of which no good cause has been shown, 
that investigating authority acts inconsistently with its obligation under Article  6.5.  
 
7.242.   In this case, the Russian Federation does not identify any instance of an actual showing of 
good cause by th e submitter  of information in respect of documents containing information to 
which the DIMD extended confidential treatment . Indeed, the Russian Federation agrees that 
many of these documents do not contain an express showing of good cause.413 The 
Russian  Federation raises three general arguments in defence of its position that in spite of the 
absence of an express showing of good cause, the DIMD met the requirements of Article  6.5 in 
treating the information as confidential.  
7.243.   First, the Russian Federation ar gues that it is acting consistently with Article  6.5 because 
CU law414 and certain "recommendations" issued by the investigating authority415 "require" that 
interested parties show good cause. We recall  the specific words of Article  6.5: "upon good cause 
shown ". By its express terms, Article  6.5 envisages more than a formal requirement in a Member's 
anti-dumping law or regulations; it  sets out an obligation of results : it is not enough for a Member 
merely to "require " the showing of "good cause" in its legal re gime; under Article  6.5, a uthorities 
that conduct an anti -dumping investigation may extend confidential treatment to information only 
where good cause is, in fact, shown . The Russian  Federation's position  is not consistent with the 
words of the Article 6.5  of the Anti -Dumping Agreement. As well, were it to prevail, the 
interpretation proposed by the Russian  Federation would permit Members to be in apparent  
compliance with Article 6.5 of the Anti -Dumping Agreement while at the same time providing no 
basis on  which to ensure that , in substance,  the requirements of Article  6.5 are met by the 
interested parties to an investigation  and the investigating authority . The facts of this case  are 
instructive. We note  the Russian Federation's  claim that the interested p arties were "required " to 
show good cause . But the interested parties  did not , in fact,  do so  in respect of any of the 
information at issue.416 Having received information that, inconsistently with the alleged 
require ment417 under CU law418, did not contain or w as not accompanied by a showing of good 
cause, the DIMD  nevertheless extended confidential treatment to such information.  
7.244.   Second, the Russian Federation argues that the Anti -Dumping Agreement does not require 
an investigating authority to reject  confident ial information submitted without good cause . This 
                                               
410 Appellate Body Report , EC – Fasteners (China) (Article 21.5 – China) , para.  5.38. 
411 Appellate Body Report s, EC – Fasteners (China) , para. 537; and EC – Fasteners (China) (Article 21.5 
– China) , para. 5.37: "Article 6.5 applies to bo th information that is confidential by nature, and information 
that has been submitted to authorities on a confidential basis. …  the requirement to show 'good cause ' applies 
to both categories of information."  (fn omitted)  
412 Appellate Body Report , EC – Fasteners (China) , para. 537.  
413 Russian Federation's first written submission, paras. 344, 347, and 349 -354; second written 
submission, paras. 261 -267. 
414 Russian Federation's first written submission, para. 349.  
415 Ibid. para. 352; second written submission , para. 252. 
416 The Russian Federation argues that in some instances an express showing of good cause was not 
necessary because the confidential nature of the information was "self -evident". We address this argument 
below  in paragraph 7.245 . 
417 We observe that, according to the Russian Federation, this "requirement" was set out in CU law and 
"recommendations" or "Guidelines" in the various documents sent out by the DIMD . There is therefore some 
question as to whethe r on its own terms, the DIMD  "require d" that good cause be shown . Indeed, the failure to 
observe this requirement by the submitters of information seems to have been without any consequence for 
either the submitter or the information submitted.  
418 We note that the European Union alleges that regardless  of the Russian Federation's municipal legal 
requirements, on the facts and on the record of this case good cause was not shown for confidential treatment 
of items of information.  Even if relevant in law, t he arguments of the Russian Federation merely demonstrate s 
that its anti -dumping regime is not as such  inconsistent with Article 6.5; they do not respond to whether in this 
case and in respect of the documents and information in question the Russian Federatio n acted consistently 
with its obligations under Article 6.5.  WT/DS479/ R 
 
- 93 - 
 
  argument does not address the requirements of Article  6.5. An investigating authority may not 
extend confidential  treatment to information in respect of which the submitter of the information 
has not shown  good cause for confidential treatment. Accordingly, where a submitter fails to show 
good cause to maintain the confidentiality of the information it submits, it has three choices . It 
may: seek to show good cause, thereby fulfilling the condition precedent  for confidential treatment 
by the investigating authority; withdraw the request for confidential treatment; or withdraw the 
information.  
7.245.   Third, the Russian Federation argues that w ith respect  to information that is by nature 
confidential, " the basis for providing confidential treatment is self -evident" . This argument again 
does not address the requirements of Article  6.5. We recall the specific words of Article  6.5: "upon 
good cause shown ". These words imply the performance of an act – the showing of good  cause – 
above and beyond  the submission of information that is self -evidently confidential. The arguments 
of the Russian Federation would reduce the "upon good cause shown" condition to inutility by 
merging the requirement into the other parts of Article  6.5: the task of a panel would be to review 
not whether good cause was shown , but whether the information was of such nature as to contain 
within itself the required showing of good cause. As well, we recall that the obligation to show 
good cause applies e qually to information that is by nature confidential  and to  information that is 
provided on a confidential basis by parties to an investigation . The Russian Federation further 
argues that "the fact that confidential treatment is granted signifies that an i nvestigating authority 
is satisfied with the good cause shown  and finds that a request for confidentiality is warranted" .419 
That may well be – if good cause were , in fact,  shown . For much of the information at issue the 
Russian Federation admits that no sho wing of good cause was made420, and for the rest  of the 
information at issue,  nothing in the record indicates that a showing of good cause  was made . We 
find it difficult to see how an investigating authority could be "satisfied " with a condition precedent  
that by its own admission  has not been met.  
7.246.   In respect of specific  information , the Russian Federation raises the following additional 
arguments:  
a. The Russian Federation argues that "[t]he provisions of the Protocol on the Status of the 
Customs Statistic Cent re of the CU clearly define the absence of the Centre 's 
competence to provide the statistics on foreign trade of the CU to anyone except the 
government bodies of the CU Member States ".421 We consider that this does not detract 
from the obligation of the DIMD , under Article  6.5, not to extend confidential treatment 
to information unless good cause has been shown to justify such treatment.  
b. In respect of certain material redacted as confidential in the "textual part of particular 
sections of the Application"  (sections 9.4 and 9.5 of Sollers' Application) , the Russian 
Federation argues that the information  could be found in the accompanying tables either 
in whole or in summarised format .422 However, in our view , to the extent that 
information that is set out in one part of a document is treated as confidential in another 
part of the document, this aggravates rather than responds to concerns about 
compliance with Article  6.5: not only is there no good cause shown, it is difficult to see 
how good cause could  be shown i n respect of such information.  
c. With respect to the GAZ Questionnaire  response , the Russian Federation  argues that the 
information at issue was not in either the confidential or non -confidential versions of the 
record.  We find the Russian Federation 's argum ent difficult to reconcile with the 
Investigation Report.  We note in particular that data set out in the Investigation Report 
up to section 4.2 includes data related to GAZ as one of two domestic producers of the 
like product. We recall in particular our f indings in paragraph 7.14.  Specifically, we found 
that: 
                                               
419 Russian Federation's second written submission  para. 264.  (emphasis added)  
420 Russian Federation's first written submission, paras. 344, 347, and 349 -354; second written 
submission, paras. 261 -267. 
421 Russian Federation's first written submission, para. 369. (fn omitted)  
422 Russian Federation's first written submission, paras. 374 and  394-396; response to Panel question 
Nos. 79 and 80, paras. 45 -48. WT/DS479/ R 
 
- 94 - 
 
  i. The investigating authority decided to not include in its definition a known producer 
of the like product that had provided data and sought to cooperate in the 
investigation after having reviewed that  producer's data. This sequence of events 
gives rise to an appearance of selecting among domestic producers based on their 
data to ensure a particular outcome, resulting in an obvious risk of material 
distortion in the subsequent injury analysis.  
ii. The reaso ns given by the Russian Federation for the DIMD's decision to not include 
GAZ in the definition of domestic industry were not set out in the Investigation 
Report and thus constitute impermissible post hoc rationalization.  
That is, we have already found tha t information submitted by GAZ in the form of a 
questionnaire  response  was on the record.423 Aggregate data in part informed by this 
information was treated as confidential.  According to the Russian Federation itself, GAZ 
did not distinguish between confiden tial and non -confidential information: by definition, it 
could not have shown "good cause." In this light, the DIMD's treatment as confidential of 
the information in the Questionnaire response was in contravention of Article 6.5.  
d. Concerning the Sollers le tter of 25 December 2012 and the letter of the Association of 
Russian Automakers of 11 February 2013, there was some disagreement between the 
parties as to whether  these two letters  were treated by the DIMD as confidential . The 
European Union  argues that t hese letters were not placed in the non-confidential  file. 
The Russian Federation asserts that the documents were not given confidential 
treatment in the first place  and w ere made available to interested parties in the 
non-confidential  file. The Russian Fe deration  contends that the non -confidential version 
of the Investigation Report also contained a reference to these letters. In the 
circumstances , we find that the European Union has not established that the DIMD 
treated these two letters as confidential.  
7.247.    In respect of the items of information  treated as confidential by the DIMD at issue in this 
dispute, t he European Union has demonstrated that the submitters  of that information did not 
show good cause for confidential treatment. On that basis, in respect of all the information at 
issue, treated as confidential by the DIMD,  the DIMD  did not act consistently with Article  6.5. The 
specific items of information to which this conclusion applies are set out in Table 11. 
Table  11: Information treated as confident ial in respect of which no good cause was 
show n 
Information  Description  
Sollers' Application, section 3  Information on the production of LCVs by GAZ  
Sollers' Application, section 7  Information on major consumers of Sollers' goods  
Sollers' Application, t able 8.1.1  Information on export volumes  
Sollers' Application, sections 9.1 and 9.2; fn 8 and 
annex 3; tables 9.1.1 and 9.1.3  Information on the volume of imports to Kazakhstan and 
Belarus  
Sollers' Application, section 9.4  Information on aggregated impo rt volumes  
Sollers' Application, section 9.5  Information on the volumes of dumped imports  
Sollers' Application, section 10.2  Information on export price data  
Sollers' Application, table 11.2.1  Information on Sollers' sales prices on the domestic market  
Sollers' Application, section 11.4  Information on changes in stocks  
Sollers' Application, sections 11.5 and 11.6  Information on the drop in the profit and profit margin  
Sollers' Application, section 11.7  Information on the supposed effect of the alleged ly dumped 
                                               
423 We note in particular the following assertion b y the Russian Federation:  
Specifically, the information pertaining to GAZ, which was used in the final determinat ion, was 
requested additionally. The investigation record demonstrates that this information was received 
in a Letter No. 18/ОД/2/2013 dated 21 February 2013 that contains only GAZ’s data on volume 
of production. Importantly, this information differed from  the information contained in the 
deficient Questionnaire response.  
Russian Federation's first written submission, para. 679 (footnote omitted).  We do not understand the 
Russian  Federation to be suggesting that the DIMD compared the new information receiv ed from GAZ to 
information that was not on the record to determine whether and how much they differed from one another. 
For this reason, we understood from this paragraph that deficient or not, the GAZ Questionnaire response was 
indeed part of the record.  WT/DS479/ R 
 
- 95 - 
 
  Information  Description  
imports on Sollers' obligations  
Sollers' Application, section 11.9  Information on the supposed effect of the allegedly dumped 
imports on the diesel engine production project  
Sollers' Application, section 12.2  Information on the market shares of  imported and domestic 
products  
Sollers' Application, annexes listed in the Annex List  The annexes to Sollers' Application  
Sollers' Questionnaire response424, section  1.3 Information on the legal organizational form of Sollers  
Sollers' Questionnaire resp onse, sections 2.5 and 2.6  Information on catalogues, brochures and Application areas  
Sollers' Questionnaire response, section 2.7  Information on quality complaints  
Sollers' Questionnaire response, section 2.8  Information on the major consumers of LCVs  
Sollers' Questionnaire response, sections 3.2 and 4.2  Information on production capacity  
Sollers' Questionnaire response, section 7.1  Information on accounting system and principles  
Sollers' Questionnaire response, section 8.2  Information on prices  
Sollers' Questionnaire response, section 8.3  Information on terms of sale  
Sollers' Questionnaire response, tables in sections  3-7  Information on production volume and capacities, sales 
volume, profit/loss, employment, salary, investments, 
purchase of the pr oducts from other sources, volume of 
inventories, sales of the products, average weighted prices 
for the sales, and production cost structure  
Turin-Auto's Questionnaire response425, section 1.3  Information on Turin -Auto's Articles  of Association  
Turin-Auto's Questionnair e response, tables in 
sections  3-6 Information on volume of product purchases, stock level 
volume, staff number, salaries, investments, volume of 
product sales, weighted prices, profit/losses, profitability, and 
costs structure  
Sollers' com ments after the hearing426, p. 1, 
subheading  1 Information on stakeholders and their commercial interests  
Sollers' comments after the hearing, pp. 2 and 3  Information on the goods subject to the investigation  
Sollers' comments after the hearing, pp. 7 and 8 Information on the production of the goods by Sollers  
Sollers' comments after the hearing, p. 10 Information on capacity utilisation  
Sollers' comments after the hearing, p. 10 Information on the sales of goods in the domestic market to 
independent buye rs 
Sollers' comments after the hearing, p. 12 Information on the financial and economic results from the 
sales of goods in the domestic market  
Sollers' comments after the hearing, pp. 13 and 14 Information on the dynamics of investments, staff headcount 
and salaries  
Sollers' comments after the hearing, p. 16 Information on price suppression  
Sollers' comments after the hearing, tables 4 -7, 11-15, 
and 17 -20 Information on production, capacity utilisation, sales of 
products, financial and economic results from sales, 
investments, staff, salaries, consumption, and vo lume of 
sales  
Sollers' comments after the hearing, annexes numbered 
1 and 2  Annexes to Sollers' comments after the hearing  
Public version of the Investigation Report, (Exhibits 
RUS-12 and EU -21) (exhibited twice) , section 1.2 
confirms receipt of GAZ's Questionnaire response  GAZ's Questionnaire response  
 
                                               
424 Sollers' Questionnaire response, 3 March 2012, ( Exhibit EU -3). 
425 Turin Auto's Questionnaire response , 3 March 2012, ( Exhibit EU -5). 
426 Sollers' Comments of 6 April 2012 regarding the Public Hearing of 22 March 2012, ( Exhibit EU -10). WT/DS479/ R 
 
- 96 - 
 
  7.7.2.3   Article  6.5.1  
7.248.   Under  Article  6.5.1 an investigating authority must require an interested party submitting 
information  that satisfies the requir ements of Article  6.5 for confidential treatment to:  
a. furnish a non -confidential summary of the information that is in sufficient detail to 
permit a reasonable understanding of the substance of the information submitted in 
confidence; and  
b. in exceptional  circumstances, where the submitter indicate s that confidential  information 
is not susceptible of summary , provide a statement of the reasons why summarization is 
not possible.427 
7.249.   Article  6.5.1 applies in respect of information properly treated as confidential u nder 
Article  6.5. Because  we find that the DIMD has not acted consistently with Article  6.5 in extending 
confidential treatment to the items of information at issue, we do not need to address the claims 
of the European Union  under  Article  6.5.1 to resolve this dispute . Nonetheless, in the light of the 
parties' extensive arguments and integrated approach to their arguments concerning Articles  6.5 
and 6.5.1, we make the following observations:  
a. The obligations of these provisions apply in respect of all infor mation submitted by all 
interested parties that falls under Article  6.5, whether or not the information is otherwise 
complete or used by the investigating authority. This is because the obligation applies to 
the interested party submitting information at the time  it submits the information in 
question. The interested party has no way of knowing ex ante whether an investigating 
authority will ultimately consider the information "complete" or use it.  
b. Where non -confidential summaries are provided, they must be  in "sufficient detail to 
permit a reasonable understanding of the substance of the information submitted in 
confidence". A "summary" is not a facsimile. In providing a summary, an interested 
party is not required to ensure a full understanding of the conf idential information, but 
rather a reasonable  understanding of the substance  of that information. The 
Anti-Dumping Agreement does not provide any guidance on how summaries may be 
prepared. Accordingly, whether a summary meets the requirements of Article  6.5.1 must 
be determined on a case -by-case basis. We note that much of the confidential 
information provided to the DIMD consists of figures set out in tables. Such information 
may be summarised in a number of ways. A "range o f figures" may, as the 
European  Union suggests, be one way of summarising such information. So are indexes, 
and the European Union does not argue that the fact of being summarised in the form of 
indexes (rather than, for example, ranges) would in itself constitute a violation of 
Article  6.5.1.  
c. Article  6.5.1 is not complied with where a Member  seeks to demonstrate that a summary 
of confidential information was provided, or provides a statement of reasons why 
confidential in formation could not be summarized,  in the course of WTO dispute 
settlement. In this case, many of the explanations linking confidential information to 
alleged "summaries" in the Investigation Report were set out in the Russian Federation's 
submissions to the Panel, rather than having been in the submitted documents or fo und 
elsewhere in the record of the investigation; all statements of reasons explaining the 
absence of a non -confidential summary were l ikewise provided by the 
Russian  Federation in the course of this dispute settlement proceeding.  
d. In accepting summaries of  information to be treated confidentially, an investigating 
authority might find it useful to consider its own disclosure obligations under Article  6.9. 
In respect of information properly treated as confidential, " the investigating authority 
could meet its  obligations under Article  6.9 through the use of non -confidential 
summaries of the ' essential ' but confidential facts ." 428 At a minimum, non -confidential 
                                               
427 Emphasis added.  
428 Panel Report, China – GOES , para. 7.410.  WT/DS479/ R 
 
- 97 - 
 
  summaries provided by a submitter of information to be treated as confidential could 
serve as a starti ng point for the required disclosure of essential facts under Article  6.9.429 
7.8  Essential Facts  
7.8.1   Introduction  
7.250.   The European Union alleges violations of Article  6.9 in respect of the alleged failure to 
inform interested parties of essential facts under considerat ion concerning all aspects of the 
decision to impose the definitive measure: the existence of dumping and the determination of 
material injury caused by dumped imports.430 The interested parties in question, to whom the 
required disclosure was not made, are the exporters of the subject LCVs, Daimler AG and 
Volkswagen AG.431 The European Union alleges that the following essential facts were not disclosed 
to these interested parties, either in full or in the form of "meaningful" summaries:  
a. the actual volumes of i mports of subject products to the CU effected by Daimler AG and 
Volkswagen AG that were used for the purpose of calculation of the normal value and of 
the export price432;  
b. the weighted average export prices of LCVs produced by Daimler AG and Volkswagen AG  
respectively433;  
c. the weighted average export price for subject products exported by each of the 
abovementioned companies into the CU434;  
d. the source of the information concerning import volumes and values used by the 
DIMD435; 
e. the actual figures that show "the co nsumption  volumes of LCVs in the Customs Union" , 
"the production and sales volume  of LCVs in the Customs Union" , "the evolution of the 
profits and profitability of the domestic industry in 2011 "436; 
f. the profit/loss of Sollers from the sale of LCVs in the CT CU in 2011437;  
g. "dynamics of profitability of sales of Goods in the CT CU (versus the respective period of 
the preceding year, in percentage points) "438;  
h. the source of the data used to compile tables 4.1.1.3 (import volume and volume of 
dumped imports )439;  
i. return on investments, actual and potential negative effects on cash flow and ability to 
raise capital or investments  for Sollers440;  
                                               
429 For reasons that are set out below, we do not make any findings in respect of non -confidential 
summaries under Article 6.9 in this dispute.  
430 European Union's first written submission, para. 416; second written subm ission, para. 278. See also 
the Panel's preliminary ruling in respect of the scope of this claim.  
431 Investigation Report , section  1.2. 
432 European Union's first written submission, paras. 428, 431, and 432; second written submission, 
para. 278.  
433 European U nion's second written submission, para.  278. 
434 European Union's first written submission, paras. 428 and 429; second written submission, 
para. 278. 
435 European Union's first written submission, paras. 430 -433; second written submission, para. 278.  
436 Europea n Union's first written submission, paras. 436 -438; second written submission, para. 278.  
437 European Union's first written submission, paras. 219, 437, and 438; second written submission, 
para. 278.  
438 European Union's first written submission, paras. 437 a nd 438; second written submission, 
para. 278. 
439 European Union's first written submission, paras. 448 -450; second written submission, para.  278. 
440 Table contained in section 4.2.7 of the Confidential version of the Investigation Report,  (Exhibit 
RUS-14) (B CI); European Union's second written submission, para. 301.  WT/DS479/ R 
 
- 98 - 
 
  j. the market share held by GAZ in 2011441; 
k. information on the relation of the volume of export to the total volume of production442;  
l. the figures for the production capacity of the domestic industry443; 
m. the figures for the structure of the costs of production of the domestic industry444;  
n. the production volumes, consumption volumes and sales volumes in aggregate form445; 
o. return on investment s, actual and potential negative effects on cash flow and ability to 
raise capital or investments446; and 
p. the figures for the numbers and salaries of staff.447 
7.251.   In general terms, the Russian Federation argues that:  
a. the European Union did not demonstrate that " the DIMD had an opportunity to disclose " 
the information at issue because the information was confidential448;  
b. "where facts available are by nature confidential, or are submitted to the investigating 
authority on a confidential basis, are also part of the 'essential facts under consideration ' 
the investigating authority has to meet dual obligations "449; 
c. the two interested parties were non -cooperating and a Member has limited disclosure 
obligations in respect of such interested parties450;  
d. "in cases where the rel evant essential facts are already in the possession of the 
respondents, a narrative description  of the data used cannot ipso facto  be considered 
insufficient disclosure "451; and 
e. to establish a violation of Article  6.9 of the Anti -Dumping Agreement , a complai ning 
party must demonstrate that  the omitted facts affected the interested parties ' right of 
defence. Thus, an incomplete disclosure document will satisfy the requirements of 
                                               
441 European Union's first written submission, para. 443; second written submission, para. 278.  
442 Investigation Report,  section 4.1.2; Eurasian Economic Commission, Results of the anti -dumping 
investigation with regard to light commercial vehicles originating in Germany, Italy, Poland, and Turkey 
imported into the common customs area of the Customs Union  (Moscow, 28 March 2013) (Draft Report) , 
(Exhibits EU -16 and RUS -10) (exhibited twice), section 4. 1.2; and European Union's second written 
submission, para. 302.  
443 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), table in section 4.2.3; Draft 
Report, (Exhibits EU -16 and RUS -10) (exhibited twice), table in section 4.2.3; and Eur opean Union's second 
written submission, para. 302.  
444 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), section 4.2.4 and 
table 4.2.4.2; Draft Report, (Exhibits EU -16 and RUS -10) (exhibited twice), section 4.2.4 and table 4.2.4.2 
(not complete); and European Union's second written submission, para. 302.  
445 European Union's first written submission, paras. 210, 355, and 356; second written submission, 
para. 296.  
446 European Union's first written submission, para. 236; second written su bmission, para. 301.  
447 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), section 4.2.6 and 
table 4.2.6; Draft Report, (Exhibits EU -16 and RUS -10) (exhibited twice), section 4.2.6; and European Union's 
second written submission, para . 302.  
448 Russian Federation's first written submission, paras. 343, 344, 359 -363, 371, 976, and 990; second 
written submission, paras. 243, 244, 269, 274, 313, 382, 419, 453, 489, 5 00, 503, 512, 514, 524 -537, 
and 610; opening statement at the first meeting  of the Panel, para. 78; and response to Panel question No. 44, 
para. 161.  
449 Russian Federation's first written submission, para. 722.  
450 Russian Federation's first written submission, paras. 696, 760, 827, and 877, and fn 325; second 
written submission, pa ras. 347 -358; opening statement at the first meeting of the Panel, para. 79; and 
response to Panel question No. 44, paras. 145 -161. 
451 Russian Federation's first written submission, para. 719.  WT/DS479/ R 
 
- 99 - 
 
  Article  6.9 of the Anti -Dumping Agreement if this incompleteness does not affect 
interested parties ' right of defence .452 
The Russian Federation also raises specific arguments in respect of certain essential facts; these 
we discuss below.  
 
7.8.2   Evaluation by the Panel  
7.8.2.1   Relevant provisions  
7.252.   Article  6.9 provides : 
The authorities shall, before a f inal determination is made, inform all interested 
parties of the essential facts under consideration which form the basis for the decision 
whether to apply definitive measures. Such disclosure should take place in sufficient 
time for the parties to defend their interests.  
7.253.   The first sentence is the operative part of Article  6.9. Broken down to its constituent parts, 
it has the following required elements:  
a. shall inform  
b. all interested parties  
c. before a final determination is made  
d. of the essential facts  
i. under co nsideration  
ii. which form the basis for the decision whether to apply definitive measures.  
Thus, a complaining party demonstrates that an investigating authority has acted inconsistently 
with Article  6.9 where it establishes that any one of these required ele ments has not been 
satisfied.  
 
7.254.   The second sentence of Article  6.9 is, on its face, a temporal exhortation. As context for 
the central obligation in Article  6.9453, it gives an indication both of why disclosure  is to be made454 
and when  it must be made. Nothin g in the second sentence suggests that it is an element 
noncompliance  with which must be independently demonstrated by the complaining party to 
establish inconsistency with Article  6.9. For this reason, to establish inconsistency with Article  6.9, 
a compla ining party is not required to demonstrate that a failure to disclose essential facts did 
"affect interested parties ' right of defence ".455  
7.255.   In view of the questions at issue in this dispute and the required elements of Article  6.9, 
our analysis will proceed  in three steps:  
a. What are the "essential facts" at issue? In particular, how is the obligation in Article  6.9 
to be met in respect of confidential information ? 
b. Are there any limits on who is entitled to receive disclosure?  
                                               
452 Russian Federation's response to Panel question No. 89, para. 65.  
453 Appellate Body Report, China – GOES , para. 240.  
454 The panel in  EC – Salmon (Norway)  at para. 7.805:  
We consider that the purpose of disclosure under Article 6.9 is to provide the interested parties 
with the necessary information to enable them to c omment on the completeness and correctness 
of the facts being considered by the investigating authority, provide additional information or 
correct perceived errors, and comment on or make arguments as to the proper interpretation of 
those facts.  
455 Russian Federation's response to Panel question No. 89, para. 65.  WT/DS479/ R 
 
- 100 - 
 
  c. How are interested parties to be "informed"?  
7.8.2.2   "Essential facts " 
7.256.   Article  6.9 requires the disclosure of " the essential  facts under consideration  which form 
the basis for the decision whether to apply definitive measures".456 There are three cumulative  
elements as to the kinds of information a n investigating authority is required to disclose:  
a. Article  6.9 requires the disclosure of facts: the information  underlying a decision rather 
the reasoning, calculation or methodology that led to a determination.457  
b. A fact is essential  where it is "extremel y important and necessary"458, "indispensable"459 
or "significant, important or salient"460 in the process of reaching a decision as to 
whether or not to apply definitive measures.   
c. Not every "essential fact" is required to be disclosed. Article  6.9 requires the  disclosure 
of "essential facts under consideration ": the "facts on the record that may be taken into 
account by an authority in reaching a decision as to whether or not to apply definitive 
anti-dumping and/or countervailing duties."461 
7.8.2.2.1   The facts at issue  
7.257.   The European Union has not demonstrated that three  of the alleged "essential facts" meet 
these requirements:  
a. The source  of the data used to compile tables 4.1.1.3 (import volume and volume of 
dumped imports ). In itself, the source of data is not an essentia l fact under 
consideration . Knowledge of the sources of data might be useful to establish the 
credibility of information used by investigating authorities, but the sources of data are 
not themselves essential facts under consideration.  
b. The source  of the in formation concerning import volumes and values used by the DIMD, 
for the same reasons as above.  
c. The market share held by GAZ. This information does not appear to have been under 
consideration  in the investigation.  
Accordingly, we make no findings in respe ct of these alleged essential facts.  
 
7.258.   In respect of disclosure of facts related to investments , the return on investments,  the 
actual and potentia l negative effects on cash flow,  the ability to raise capital or investments,  
relation of the volume of export  to the total volume of production, production capacity,  structure of 
production costs and  numbers and salaries of staff  the Russian Federation argues that these are 
"new claims" that the European Union raises for the first time in its second written submi ssion.462 
The European Union points out that its claim  in this dispute is that the DIMD failed to disclose 
essential facts related to the determination of dumping and injury, including causation. Additional 
instances of allegedly undisclosed essential facts became known only after the Russian Federation 
                                               
456 Emphasis added.  
457 Panel Report, China – Broiler Products , para. 7.90.  
458 Merriam -Webster dictionary online, definition of "essential", available at:  
http://www.merriam -webster.com/dictionary/essential .  
459 Oxford English dictionary online, definition of "essential", available at: 
http://www.oed.com/vie w/Entry/64503?redirectedFrom=essential#eid   
460 Appellate Body Report, China – GOES , para. 240:  
Moreover, we note that Articles 6.9 and 12.8 do not require the disclosure of all the facts that 
are before an authority but, instead, those that are "essential" ; a word that carries a connotation 
of significant, important, or salient.  
461 Appellate Body Report, China – GOES , para. 240.  
462 Russian Federation's opening statement at the second meeting of the Panel, paras. 77 and 78; 
response to Panel question No. 88, p ara. 60.  WT/DS479/ R 
 
- 101 - 
 
  submitted the confidential version of the Investigation Report.463 The European Union notes further 
that " Russia  does not appear to have actually made  any legal objection to their raising, and has 
been able to f ully engage with them  on the merits in these proceedings ."464 
7.259.   We recall the structure of a claim  under Article  6.9: a complaining party alleges that an 
investigating authority has acted inconsistently with its obligations by not disclosing  essential facts 
under consideration.  The European Union's claim follows this structure – in its request for 
establishment  of a panel , the European Union claimed that the Russia n Federation failed to inform 
interested parties of the essential facts under consideration , refer ring specifically to  the essential 
facts underlying the determinations of the existence of dumping and the calculation of the margins 
of dumping and the determination of injury.465 It is in the nature of a claim under Article  6.9 that a 
complaining party may  not know everything that the investigating authority did not disclose. 
Indeed, in certain instances a complaining party may only become aware of non -disclosure of 
certain essential facts in the course of WTO dispute settlement, when it has access to a les s-
redacted published  report. For this reason, a panel should exercise caution in unduly narrowing the 
scope of a claim  under Article  6.9 on the basis that specific facts known to the investigating 
authority but not to the complaining party were not identif ied as undisclosed essential facts by the 
complaining party early in the dispute. This does not mean that a complaining party may expand 
the scope of its Article  6.9 claims as the case develops or is excused from providing the 
evidentiary basis for establi shing its case, only that if a claim regarding non -disclosure of essential 
facts is properly before it, a panel should not ex ante exclude certain evidence and argument from 
consideration.  
7.260.   In this case, the European Union's claim in respect of Article  6.9 is properly before us.466 
The parties agree that the European Union did not mention certain allegedly undisclosed essential 
facts in its earlier submissions. At issue is the legal relevance of  this omission for the 
European  Union's claim under Article  6.9. We have compared the Draft Report, which constitutes 
the Russian Federation's disclosure under Article  6.9, with the confidential version of the 
Investigation Report. As a matter of fact, we find that:  
a. tables containing figures in section s 4.2.6 and 4.2.7 of the confidential version of the 
Investigation Report are missing in their entirety , and in sections 4.1.2 and 4.2.3 in part,  
from the Draft Report; and  
b. in the Draft Report, there is no indication that there were tables containing figures in 
section s 4.2.6 and 4.2.7. However, the Draft Report  does contain  tables showing that 
figures were redacted  as indicated by the use of the term "CONFIDENTIAL".  
That is, in respect of the "essential facts" at issue, entire pieces of information are missing  from 
the Dra ft Report; nothing  in the Draft Report suggest ed the existence of confidential information 
that had been redacted; the contrast with other instances where confidential information was 
redacted from the Draft Report suggest ed the exact opposite.  
 
7.261.   We furthe r note that:  
a. the Russian Federation has been aware of the full scope of the European Union's claims 
under Article  6.9 since 15 September 2014  and at the latest 20 April 2016 ; 
b. the European Union raised these matters at the earliest opportunity after the Rus sian 
Federation submitted a less -redacted version of the Investigation Report  as an exhibit in 
this dispute ;  
c. the Russian Federation has been in full possession of all the evidence at issue since the 
beginning of the case; and  
d. the Russian Federation has ha d ample opportunity to respond to the arguments of the 
European Union, and has done so in considerable detail.   
                                               
463 European Union's response to Panel question No. 88, paras.  70 and 71. 
464 European Union's comments on Russian Federation's response to Panel question No. 88, para. 43.  
465 European Union's panel request, para. 8.  
466 Russia – Commercial Vehicles , preliminary ruling of the panel, para. 4.1.  (Annex D -1) WT/DS479/ R 
 
- 102 - 
 
  Accordingly, we do not consider these additional allegations of undisclosed essential facts  to 
constitute "new claims", and will address them in  our findings.  
 
7.262.   The Russian Federation further  argues that [***] "were not central to the conclusion of 
injury  and did not weigh significantly "467 and therefore did not constitute essential facts. T he 
Russian Federation argues that [***] does not constitute an essential fact because, in part, "the 
named factors do not constitute relevant factors listed in Article  3.4 of the Anti -Dumping 
Agreement".468 As to whether the facts at issue constituted "essential facts", the European Union 
argues  that: 
The body of ess ential facts to be disclosed under Article  6.9 concerns the facts "under 
consideration" by the investigating authority in determining whether (or not) to apply 
measures, including those that are "salient for a decision to apply definitive measures, 
as well  as those that are salient for a contrary outcome".  This surely covers the facts 
underlying the assessment of mandatory injury factors which an investigating 
authority is required to undertake under Article  3.4 of the AD Agreement.469 
The European Union furt her argues that in addition to the mandatory injury factors, Article  3.4 
requires analysis of "relevant economic factor having a bearing on the state of the industry". 
Accordingly, information related to non -listed factors such as [*** ] is nevertheless " salient for the 
DIMD's decision to apply definitive measures " and thus an essential fact subject to the disclosure 
requirements of Article  6.9.470 
 
7.263.   A fact is essential  if it is "significant, important or salient" or "indispensable" in the process 
of reaching a  decision as to whether or not to apply definitive measures . That "process" has three 
principal constituent elements: dumping, material injury and causation. Each of these constituent 
elements has, in turn, specific analytical and evidentiary requirements.  A fact is essential  where it 
is "significant, important or salient" in respect of a requirement under any of the three elements. 
Accordingly, even if we were to agree with the Russian Federation that the facts at issue were not 
"central to the conclusion of injury", that does not end the analysis as to whether they are 
"essential facts" within the meaning of Article  6.9. In this instance, the Russian Federation does 
not dispute that [***] are required elements in evaluating the injury factors under Article  3.4.471 
Facts that are "significant, important or salient" in conducting required analyses are "essential 
facts" whether or not they are "central" to the final injury determination.  For this reason, we find 
that the facts at issue, that is, the figures rela ted to investments, the return on investments, the 
actual and potential negative effects on cash flow and the ability to raise capital or investments are 
essential facts subject to the disclosure requirements of Article  6.9. 
7.264.   Finally, w e agree with the Russ ian Federation that some of the [***] does not relate 
directly to the specific factors listed in Article  3.4. However, we recall that Article  3.4 requires an 
analysis of "all relevant economic factors and indices " including  the listed fifteen specific fact ors. 
The information at issue is in our view salient to the analysis  of relevant  economic factors and 
therefore constitutes essential facts subject to the disclosure requirement of Article  6.9.  
7.265.   The parties do not disagree as to whether the other  facts at issue are "essential facts 
under consideration" within the meaning of Article  6.9. As well, the parties do not disagree that 
the essential facts in question were not disclosed in their entirety to the two interested parties 
named.  Rather, the Russian Feder ation considers that the information allegedly not disclosed was 
                                               
467 Russian Federation's response to Panel question No. 89, para. 61.  
468 Russian Federation's opening statement at the second meeting of the Panel, para. 79.  
469 European Union's response to Panel question No . 89, para. 72. (fn omitted, emphasis added ) 
470 European Union's second written submission, paras. 303 and 304.  
471 Article 3.4 provides that:  
The examination of the impact of the dumped imports on the domestic industry concerned shall 
include an evaluation o f all relevant economic factors and indices having a bearing on the state 
of the industry, including actual and potential decline in sales, profits, output, market share, 
productivity, return on investments , or utilization of capacity; factors affecting do mestic prices; 
the magnitude of the margin of dumping; actual and potential negative effects on cash flow , 
inventories, employment, wages, growth, ability to raise capital or investments . This list is not 
exhaustive, nor can one or several of these factors  necessarily give decisive guidance.  (emphasis 
added)  WT/DS479/ R 
 
- 103 - 
 
  subject to confidentiality requirements.  The European Union initially argued that the failure to 
disclose certain actual figures (whether or not confidential) amounted to acting inconsistentl y with 
Article  6.9.472 In later submissions, the European Union appears to argue that to the extent that 
information was confidential, it was not properly disclosed.473 We now turn to the question of 
disclosure  under Article  6.9 of information properly treated  as confidential under Article  6.5. 
7.8.2.2.2   Confidential information  
7.266.    The Russian Federation  argues that:  
a. in respect of information treated as confidential474, the European Union  did not 
"demonstrate that the DIMD had an opportunity  to disclose the actual figures  …"475; and  
b. certain "essential facts" in this case constituted information subject to the confidentiality 
requirements of Article  6.5.476  
7.267.   The European Union considers that:  
[T]he central objective of Article  6.9 is to enable interested parties to defend their 
interests. With respect to confidential information, whether they are summarized in a 
meaningful way will similarly often depend on whether the summary allows interested 
parties to defend their interests.477 
In this instance, then, " what is at issue is the omi ssion of essential facts, without providing a 
meaningful non -confidential summary ".478  
 
7.268.   Nothing in Article  6.9 requires a complaining party to demonstrate that an investigating 
authority had "an opportunity" to make the required disclosure. Under Article  6.9, a complaining 
party presents a prima facie case where it demonstrates that essential facts have not been 
disclosed to the interested parties as required. Article  6.9 does not require the disclosure of 
essential facts that benefit from confidential treat ment under A rticle 6.5. Indeed, the 
Russian  Federation  also argues that a Member is under "dual obligations"479 in respect of essential 
facts that are treated as confidential by an investigating authority. But Article  6.5 is not a 
carve -out to Article  6.9; c onfidentiality of information is neither an absolute bar to disclosure nor a 
defence to the failure to disclose as required under Article  6.9. Rather, a harmonious interpretation 
of the "dual obligation" is that where essential facts are properly  treated a s confidential, " the 
investigating authority could meet its obligations under Article  6.9 through the use of 
non-confidential summaries of the 'essential ' but confidential facts ".480 
7.269.   We have found above that none of the information set out in Table 11  that w as treated as 
confidential by the DIMD met the requirements of Article  6.5 for such treatment.  This includes the 
essential facts contained in that information. We stress that this finding does not mean that the 
information at issue was not confidential , or could not have been properly treated as confidential . 
Rather, we found that the condition precedent  for treatment as confidential of such information by 
                                               
472 European Union's first written submission, para. 438. Both the actual figures that show the domestic 
consumption, production and sales volumes, and the evolution of the profits and profitability of th e domestic 
industry in 2011, are essential facts that form the basis of the injury analysis.   
473 European Union's response to Panel question No. 71, para. 26.  
474 Specifically, the actual volumes of imports of subject products to the CU effected by Daimler AG  and 
Volkswagen AG that were used for the purpose of calculation of the normal value and of the export price; the 
actual value of imports of subject products to the CU effected by Daimler AG and Volkswagen AG that were 
used for the purpose of calculation o f the export price; the actual figures that show the domestic consumption, 
production and sales volumes, and the evolution of the profits and profitability rate of Sollers in 2011; the 
profit/loss of Sollers from the sale of LCVs in the CT CU in 2011; the profitability rate of Sollers from the sale of 
LCVs in the CT CU; and the production volumes, consumption volumes and sales volumes in aggregate form . 
475 Russian  Federation's second written submission, para. 313. (emphasis added)  
476 Russian Federation's firs t written submission, para. 722 . 
477 European Union's response to Panel question No. 82, para. 55.  
478 European Union's response to Russian Federation question No. 5, para. 12.  
479 The obligation to disclose under Article 6.9 and the obligation to protect confid ential information 
under Article 6.5. Both provisions apply in respect of confidential information.  
480 Panel Report, China – GOES , para. 7.410.  WT/DS479/ R 
 
- 104 - 
 
  the investigating authority , a showing of good cause,  was not met and therefore  that information , 
including the essential facts at issue, was not properly  treated as confidential in the investigation. 
Because confidential treatment of the essential facts in question by the DIMD was not consistent 
with the Russian Federation's obligations under Article  6.5, it was not properly treated as 
confidential; to the extent that the DIMD failed to disclose information that was not properly 
treated as confidential constitutes, it acted inconsistently with  Article  6.9. 
7.270.   In respect of information originating from electro nic customs database of national customs 
authorities of the CU, the Russian Federation argues that this information was submitted on a 
confidential basis to the DIMD and, accordingly, was treated as confidential by the DIMD. We note 
that there is no showin g of good cause on the record in respect of such information. T his does not 
mean that the information at issue was not confidential , or could not have been properly treated 
as confidential . Rather, the condition precedent  for treatment as confidential of s uch information 
by the investigating authority , a showing of good cause,  is nowhere on the record. For this reason, 
consistent with our finding in paragraph 7.269 , this  information , including the essential facts  at 
issue, was not properly  treated as confidential in the investigation. To the extent that the DIMD 
failed to disclose information that was not properly treated as confidential, it acted inconsistently 
with Article  6.9.   
7.8.2.3   "All" interested parties  
7.271.   The Rus sian Federation argues that the two interested parties at issue were 
non-cooperating  and that a  Member  has limited disclosure obligations in respect of such interested 
parties .  
7.272.   Article  6.9 requires the authorities to "inform all interested parties of the essential facts". 
The European Union and the Russian Federation  do not disagree that the two interested parties in 
question are, in fact, "interested parties" within  the meaning of Article  6.9. The question at issue is 
whether "all interested parties" in A rticle 6.9 includes non -cooperating interested parties.  
7.273.   Unless otherwise defined or indicated, "all" means everyone. Nothing in Article  6.9 
provides a different definition of "all" or otherwise suggests that "all" should be interpreted as 
anything other t han all. It is true that Article  6.9 does not set out the precise manner in which an 
investigating authority must disclose the essential facts.481 The disclosure, in whatever "manner" it 
is undertaken, must be made to all interested parties:  
a. before a final d etermination is made ;  
b. with a view to enabling interested parties to defend their interests; and  
c. "in a coherent way, so as to permit an interested party to understand the basis for the 
decision whether or not to apply definitive measures."482 
7.274.   The broader context supports the view that "all" means all.  Where the drafters intended  to 
make a distinction between various interested parties in a disclosure context, they did so 
expressly, as in Article 6.7. Furthermore, Article  6.9 follows  Article  6.8, which refers  to 
"non-cooperating" parties: it would therefore have been easy, had it been the intent of the 
drafters, to exclude such parties from the scope of disclosure in Article  6.9, which is not the case. 
And nothing in the object and purpose  of Article  6.9 detra cts from the textual understanding that 
"all" means all. Article  6.9 is not about disclosure in the abstract or transparency for its own sake. 
The second  sentence of Article  6.9 provides: "[s]uch disclosure should take place in sufficient time 
for the part ies to defend their interests ."483 This sentence, combined with the opening sub -clause 
                                               
481 Panel Report, China – Broiler Products , para. 7.95:  
Article 6.9 does not prescribe a particular format for the disclosure of the essential facts under 
consideration. The standard by which to assess whether a disclosure satisfies the requirements of 
Article 6.9 is not whether it was provided in the respondent's preferred format, but whether it 
provided sufficient di sclosure of the essential facts such that the respondent could defend its 
interests.  
482 Appellate Body Report, China – GOES , para. 240.  
483 Emphasis added.  WT/DS479/ R 
 
- 105 - 
 
  of Article  6.9 (" before a final determination is made "), makes clear the purpose of disclosure under 
Article  6.9:  
[To] provide the interested parties with the necessary i nformation to enable them to 
comment on the completeness and correctness of the facts being considered by the 
investigating authority, provide additional information or correct perceived errors, and  
comment on or make arguments as to the proper interpretat ion of those facts.484 
This purpose will not be served by reading "all" as not meaning all.  An interested party's failure to 
fully cooperate in the investigation does not necessarily lessen the interest or concerns of that 
interested party with the conduct a nd outcome of an investigation; the purpose of Article  6.9 will 
not be served by not including non -cooperating interested parties in its scope.  Indeed, in this 
instance, we note that the two "non -cooperating" interested parties in question were involved in  
the investigation from the beginning and made numerous representations to the DIMD.485 
 
7.275.   In respect of its obligations under Article  6.9, an investigati ng authority may not make a 
distinction between cooperating and non -cooperating interested parties.  All interested parties have 
the right to be informed of the essential facts under consideration.   
7.8.2.4   "Inform"  
7.276.   The Russian Federation argues that " in cases where the relevant essential facts are already 
in the possession of the respondents, a narrative description o f the data used cannot ipso facto  be 
considered insufficient  disclosure ". In respect of certain specific essential facts486 the Russian 
Federation argues that it has met its obligation to "inform" interested parties because:  
[T]he Draft Report allows any int erested parties to determine the weighted average 
price for LCVs produced by German exporting producers on EXW basis and the 
weighted average price for LCVs produced by German exporting producers on CIF 
basis … .487 
7.277.   Article  6.9 requires an investigating auth ority to disclose the essential facts "in a coherent 
way, so as to permit an interested party to understand the basis for the decision  whether or not to 
apply definitive measures".488 What other information is in the possession of the interested parties 
does not determine  the obligation of an investigating authority to "inform" the interested parties of 
the essential facts. As well, the requirement to "inform" interested parties of essential facts "in a 
coherent way" is not met where interested parties are ex pected to deduce the essential facts 
themselves from information they have otherwise received.  
7.8.2.5   Conclusion  
7.278.   In the light of the above, in respect of the "essential facts" at issue we make the following 
specific findings:  
                                               
484 Panel Report, EC – Salmon (Norway) , para. 7.805.  
485 Both Volkswagen AG and Daimler AG were registered as investigation participants. They both 
participated in investigation meetings, held on 28 February 2012 and 17 May 2012 with each respectively. 
Volkswagen AG presented non -confidential materials on 17 and 27 March 2012, and both companies 
participated in  the public hearing of 22 March 2012, presenting information in writing. ( Investigation Report , 
section 1.2 ).  
486 Specifically, "[e]xport volumes and weighted average export prices of LCVs produced by Daimler AG 
and Volkswagen AG respectively ." 
487 Russian Fe deration's first written submission, para. 813. (fn omitted)  
488 Appellate Body Report, China – GOES , para. 240.  WT/DS479/ R 
 
- 106 - 
 
  Table 12: Findings concerning the di sclosure of essential facts  
"Essential fact" at issue  Finding  
a. the source of the information concerning import volumes and 
values used by the DIMD489 
b. the source of the data used to compile tables  4.1.1.3 (import 
volume and volume of dumped imports)490 
c. market s hare held by GAZ in 2011491 Not an essential fact under consideration.   
Accordingly, the European Union  has not 
established that the DIMD acted inconsistently with 
Article 6.9 by failing to inform all interested parties 
of these items of information.  
d. the ac tual volumes of imports of subject products to the CU 
effected by Daimler AG and Volkswagen AG that were used for the 
purpose of calculation of the normal value and of the export 
price492 
e. the weighted average export prices of LCVs produced by Daimler 
AG and Volkswagen AG respectively 493 
f. the actual figures that show the domestic consumption, 
production and sales volumes, and the evolution of the profits and 
profitability rate of Sollers in 2011494 
g. the profit/loss of Sollers from the sale of LCVs in the CT CU in 
2011495  
h. the profitability rate of Sollers from the sale of LCVs in the CT 
CU496  
i. the production volumes, consumption volumes and sales volumes 
in aggregate form497 
j. the weighted average export price for subject products exported 
by each of the abovementioned comp anies into the CU498 
k. return on investments, actual and potential negative effects on 
cash flow and ability to raise capital or investments499  
l. information on the relation of the volume of export to the total 
volume of production500  
m. the figures for the productio n capacity of the domestic industry501 
n. the figures for the structure of the costs of production of the 
domestic industry502 
o. the figures for the numbers and salaries of staff503 Not properly treated as confidential.504  
Accordingly , the DIMD's failure to inform all  
interested parties of  these items of information was 
not consistent with Article  6.9.  
                                               
489 European Union's first written submission, paras. 430 -433; second written submission, para. 278.  
490 European Union's first written submission, paras. 448 -450; second written submission, para. 278.  
491 European Union's first written submission, para. 443; second written submission, para. 278.  
492 European Union's first written submission, paras. 426 and 429; second written submission, 
para. 278. 
493 European Union's second written submission, para.  278. 
494 European Union's first written submission, paras. 436 -438; secon d written submission, para. 278.  
495 European Union's first written submission, paras. 219, 437, and 438; second written submission, 
para. 2 78. 
496 European Union's first written submission, paras. 437 and 438; second written submission, 
para. 278. 
497 European Union's first written submission, paras. 210, 355, and 356; second written submission, 
para. 296.  
498 European Union's first written submis sion, paras. 428 and 429; second written submission, 
para. 278. 
499 European Union's first written submission, para. 236 ; second written submission, para. 301.  
500 Investigation Report,  section 4.1.2;  Draft Report , (Exhibits EU -16 and RUS -10) (exhibited twice) , 
section 4.1.2; and European Union's second written submission, para. 302.  
501 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), table in section 4.2.3; Draft 
Report, (Exhibits EU -16 and RUS -10) (exhibited twice), table in section 4. 2.3; and European Union's second 
written submission, para. 302.  
502 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), section 4.2.4 and 
table 4.2.4.2; Draft Report, (Exhibits EU -16 and RUS -10) (exhibited twice), section 4.2.4 (table 4.2.4.2 was 
not included); and European Union's second written submission, para. 302.  
503 Confidential version of the Investigation Report,  (Exhibit RUS -14) (BCI), section 4.2.6 and 
table 4.2.6; Draft Report, (Exhibits EU -16 and RUS -10) (exhibited twice), se ction 4.2. 6 (table  4.2.6 was not 
included ); and European Union's second written submission, para. 302.  
504 See paragraph 7.247  for our findings concerning the European Union's claims under  Article 6.5.  WT/DS479/ R 
 
- 107 - 
 
  7.9  Consequential claims  
7.279.   The European Union claims that the DIMD acted inconsistently with Articles  1 and 18.4 of 
the Anti -Dumping Agreement and Article  VI of the GATT 199 4, as a consequence of the alleged 
breaches of the Anti -Dumping Agreement.  
7.280.   We note that the European Union's claims under Article  1 of the Anti -Dumping Agreement 
and Article  VI of the GATT 1994 are purely consequential, in the sense that they depend on the  
outcome of other claims brought by the European Union under other provisions of the 
Anti-Dumping Agreement. As a consequence of the inconsistencies we have found to exist with the 
Anti-Dumping Agreement, we find that  the Russian Federation acted inconsist ently with  Article  1 of 
the Anti -Dumping Agreement and Article  VI of the GATT 1994.  
7.281.   With respect to the European Union's claim under Article  18.4 of the Anti -Dumping 
Agreement, we note that the European Union has not brought any claims concerning the 
confo rmity of any laws, regulations or administrative procedures with the provisions of the 
Anti-Dumping Agreement as they may apply to the Russian Federation. Accordingly, we find that  
the European Union  has not established its consequential claim under Articl e 18.4 of the Anti -
Dumping Agreement.  
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, we conclude as follows:  
a. the DIMD acted inconsistently with Article  4.1 in its definition of "domestic industry" ; 
b. the DIMD acted inconsistently wi th Article 3.1 because it undertook its injury and 
causation analyses on the basis of information related to an impro perly defined domestic 
industry ; 
c. the European Union  has failed to establish that the DIMD acted inconsistently with 
Article  3.1 by purporte dly using "non-equal  and non-consecutive " periods  in the 
examination of developments  in injury indicators for the domestic industry . Having 
reached this conclusion , we also reject the European Union 's consequential claims of 
inconsistency under Articles  3.2, 3.4, and 3.5 ;  
d. With respect to clai ms related to price suppression;   
i. the DIMD acted inconsistently with Articles  3.1 and 3.2 by failing to taken into 
account the impact of the financial crisis in its price suppression analysis;  
ii. the European Union has no t established that the DIMD acted inconsistently with 
Articles  3.1 and 3.2 because the DIMD "mixed up " data expressed in USD and RUB 
without any explanation in its price suppression analysis;   
iii. the European Union has not established that the DIMD's consider ation of whether the 
subject imports have "explanatory force " for the occurrence of significant 
suppression of domestic prices was inconsistent with Articles  3.1 and 3.2;  
iv. the European Union  has not establish ed that the  DIMD did not demonstrate that the 
alleged price suppression  was "to a significant degree " because the DIMD did not 
compare  the estimated prices and the actual prices for the domestic like product . 
e. With respect to claims related to the state of the domestic industry,  
i. the European Union has no t established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 in its consideration of profit/profitability d ata in the Investigation 
Report;  WT/DS479/ R 
 
- 108 - 
 
  ii. the European Union has not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 in  its consideration of inventories d ata in the Investigation 
Report;  
iii. the European Union has not established that the DIMD acted inconsistently with 
Articles 3.1 and 3.4 by failing to systematically compare data for 2011 with data for 
2008 for all economic i ndicators in the present case;  
iv. the European Union has not established that the DIMD failed to objectively examine 
the domestic industry's profit/profitability during the POI, the 1st half of  2011 and the 
full year of 2011;   
v. the European Union has not estab lished that the DIMD assumed that the exceptional 
positive developments in the domestic industry during 2009 could continue during 
2010-2011 without more explanation, and "base[d] its conclusions on a comparison 
between these two time periods" ; 
vi. the Europea n Union has not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 by failing to  consider whether  the market w ould accept further 
price increases;  
vii. the European Union has not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 by failing to specifically address the interested parties'  argument 
on the comparison of the domestic industry' s market share in 2010 and 2008;  
viii. the European Union  has not established that the DIMD acted inconsistently with 
Article s 3.1 and  3.4 in failing to  evaluate the inv entories of independent dealers  and 
the reason for the increase in inventories ; 
ix. the DIMD acted inconsistently with Article  3.4 by failing to evaluate the mag nitude of 
the margin of dumping ; 
x. the European Union  has not establis hed that the DIMD acted inconsistently with 
Article s 3.1 and  3.4 by failing to evaluate the domestic industry's return on 
investments, actual and potential effects on cash flow and the ability to raise capital 
or investments . 
f. With respect to claims related  to causation and non -attribution,  
i. the DIMD acted inconsistently with Article s 3.1 and  3.5, insofar as it relied on its 
price suppression  analysis  in its causation determination;  
ii. the European Union failed to establish t hat the DIMD's determination that the  
increased volume of dumped imports caused material injury to the domestic industry 
was inconsistent with Articles  3.1 and 3.5;  
iii. the European Union failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 by failing to conduct a prop er non -attribution analysis of the 
termination of the Fiat licence agreement;  
iv. the European Union failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 in its non -attribution analysis of the competition from GAZ;  
v. the European Unio n failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 by failing to consider the alleged financing difficulties as an 
"other factor" causing injury;  
vi. the European Union failed to establish that the DIMD acted inconsistently with  
Articles  3.1 and 3.5 by failing to consider the alleged discontinuation of the 
government support programmes as an "other factor" causing injury;  WT/DS479/ R 
 
- 109 - 
 
  vii. the DIMD acted inconsistently with Articles  3.1 and 3.5 by failing to  (a) examine, 
whether the alleged  overly  ambitious business plan of Sollers, in particular the level 
of capacity, was causing injury to the domestic industry at the same time as dumped 
imports, and if so, (b) separat e and distinguish the injurious effects of that factor 
from the injurious effect s of the dumped imports.  
g. With respect to claims concerning confidential treatment,  
i. the DIMD acted inconsistently with Article 6.5 by treating all information as set out in 
table 11  as confidential in the absence of any showing of good cause ; 
ii. the European U nion failed to  establish that the DIMD treated the Sollers letter of 25 
December 2012 and the letter of the Association of Russian Automakers of 11 
February 2013  as confidential . 
h. With respect to claims concerning the disclosure of essential facts,  
i.  the Eur opean Union failed to establish that the DIMD acted inconsistently with 
Article 6.9 by not inform ing all interested parties of  the information  listed in items (a) 
to (c) of table 12;  
ii. the DIMD acted inconsistently with Article 6.9 by failing to inform all i nterested 
parties of  the information listed in items ( d) to (o) of table 12.  
8.2.  We do not consider it necessary to address the European Union 's claims under Article 6.5.1.  
8.3.  With respect to the European Union 's consequential claims, we find that   
a. the Russian F ederation acted inconsistently with  Article  1 of the Anti -Dumping 
Agreement and Article  VI of the GATT 1994 ; 
b. the European Union  has not established its consequential claim under Article  18.4 of the 
Anti-Dumping Agreement.  
8.4.  Under Article  3.8 of the DSU, in c ases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue have been 
found t o be inconsistent with the Anti -Dumping Agreement and the GATT 1994 , they have nullified 
or impaired benefits accruing to the European Union under these agreements.  
8.5.  Pursuant to Article  19.1 of the DSU, we recommend that the Russian Federation bring its 
measures into conformity with its obligations under the Anti -Dumping Agreement and the 
GATT  1994.  
__________