WT/DS397/RW  
 
7 August 2015  
(15-4049)  Page: 1/89  
  Original: English  
 
 EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA 
REPORT OF THE PANEL 
 
 
 WT/DS397/RW 
 
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  TABLE OF CONTENTS 
1   INTROD UCTION  ........................................................................................................ 10  
1.1   Complaint by China ................................................................................................... 10 
1.2   Panel establishm ent and comp osition .......................................................................... 10 
1.3   Panel proceedings ..................................................................................................... 11 
1.3.1   Genera l ............................................................................................................... . 11 
2   FACTUAL ASPECTS ..................................................................................................... 11  
3   PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIONS ................................ 12  
4   ARGUMENTS OF  THE PARTIES ................................................................................... 13  
5   ARGUMENTS OF TH E THIRD PA RTIES ........................................................................ 13  
6   INTERIM REVIEW ...................................................................................................... 13  
6.1   Introduction ............................................................................................................. 13 
6.2   Parties' requests for changes to the interim report......................................................... 13 
7   FIND INGS ................................................................................................................. 16 
7.1   General principles regarding treaty interpretation, the applicable standard of review, 
and the burden  of proof .................................................................................................... 16 
7.1.1   Treaty interpreta tion .............................................................................................. 16 
7.1.2   Standard  of Review ................................................................................................ 16 
7.1.3   Burden  of Proof ..................................................................................................... 17 
7.2   Alleged violations of Articles  6.5 and 6.5.1 of the AD Agreement ..................................... 17 
7.2.1   Legal provisions at issue ......................................................................................... 17 
7.2.2   Rele vant fa cts ....................................................................................................... 17 
7.2.3   Arguments of parties .............................................................................................. 18 
7.2.3.1   China ............................................................................................................... . 18 
7.2.3.2   European Union .................................................................................................. 19 
7.2.4   Arguments of third parties ...................................................................................... 20 
7.2.5   Evaluation by the Panel .......................................................................................... 20 
7.2.5.1   Terms of reference of the Panel ............................................................................. 21 
7.2.5.2   Assessment of th e claim on th e merits ................................................................... 24 
7.2.5.2.1   Conclusion ...................................................................................................... 27 
7.3   Alleged violations of Articles  6.4 and 6.2 of the AD Agreement ........................................ 28 
7.3.1   Legal provisions at issue ......................................................................................... 28 
7.3.2   Arguments of parties .............................................................................................. 28 
7.3.2.1   China ............................................................................................................... . 28 
7.3.2.2   European Union .................................................................................................. 29 
7.3.3   Arguments of third parties ...................................................................................... 30 
7.3.4   Evaluation by the Panel .......................................................................................... 30 
7.3.4.1   Terms of reference of the Panel ............................................................................. 30 
7.3.4.1.1   Is this a claim that could have been but was not raised in the original 
proceedings? ................................................................................................................... 30 WT/DS397/RW 
 
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  7.3.4.1.2   Adequacy of China's panel request ...................................................................... 34 
7.3.4.2   Assessment of th e claim on th e merits ................................................................... 35 
7.4   Alleged violation of Article 6.1.2 of the AD Agreement .................................................... 37 
7.4.1   Legal provisions at issue ......................................................................................... 37 
7.4.2   Arguments of parties .............................................................................................. 37 
7.4.2.1   China ............................................................................................................... . 37 
7.4.2.2   European Union .................................................................................................. 37 
7.4.3   Arguments of third parties ...................................................................................... 38 
7.4.4   Evaluation by the Panel .......................................................................................... 38 
7.4.4.1   Is this a claim that could have been but was not raised in the original 
proceedings? ................................................................................................................... 38 
7.4.4.2   Assessment of th e claim on it s meri ts .................................................................... 41 
7.5   Alleged violation of Article 2.4 of the AD Agreement: failure to provide information 
to enable Chinese exporter s to request adjustments ............................................................. 42 
7.5.1   Legal provision at issue .......................................................................................... 42 
7.5.2   Arguments of parties .............................................................................................. 43 
7.5.2.1   China ............................................................................................................... . 43 
7.5.2.2   European Union .................................................................................................. 44 
7.5.3   Arguments of third parties ...................................................................................... 45 
7.5.4   Evaluation by the Panel .......................................................................................... 45 
7.6   Alleged violation of Article 2.4 of the AD Agreement: failure to ensure that price 
comparisons were made on the basi s of same types of fast eners ............................................ 50 
7.6.1   Arguments of parties .............................................................................................. 50 
7.6.1.1   China ............................................................................................................... . 50 
7.6.1.2   European Union .................................................................................................. 50 
7.6.2   Arguments of third parties ...................................................................................... 51 
7.6.3   Evaluation by the Panel .......................................................................................... 51 
7.6.3.1   Terms of reference of the Panel ............................................................................. 51 
7.6.3.2   Assessment of th e claim on th e merits ................................................................... 55 
7.6.3.2.1   The Commission's treatment of fasteners sold to high-end users and which 
were not made to a customer drawing ................................................................................ 56 
7.6.3.2.2   The Commission's assessment of th e accuracy of the lists of standard and 
special fasteners provid ed by Pooj a Forge ........................................................................... 59 
7.6.3.2.3   Conclusion ...................................................................................................... 60 
7.7   Alleged violation of Article 2.4 of the AD Agreement: failure to make adjustments 
for differences that affe ct price comp arability ....................................................................... 61 
7.7.1   Arguments of parties .............................................................................................. 61 
7.7.1.1   China ............................................................................................................... . 61 
7.7.1.2   European Union .................................................................................................. 62 
7.7.2   Arguments of third parties ...................................................................................... 64 
7.7.3   Evaluation by the Panel .......................................................................................... 64 
7.7.3.1   Differen ces in ta xation ......................................................................................... 64 WT/DS397/RW 
 
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  7.7.3.2   Differences in physical char acterist ics .................................................................... 68 
7.7.3.2.1   Differences in physical characterist ics that were included in the original PCNs ........... 69 
7.7.3.2.2   Differences in physical characteri stics that were not included in the original 
PCNs .............................................................................................................................. 70 
7.7.3.2.2.1   Terms of reference of the Panel ....................................................................... 70 
7.7.3.2.2.2   Assessment of the claim on the merits .............................................................. 71 
7.7.3.3   Certain other differences ...................................................................................... 72 
7.7.3.3.1.1   Terms of reference of the Panel ....................................................................... 72 
7.7.3.3.1.2   Assessment of the claim on the merits .............................................................. 72 
7.7.3.4   Conclusion ......................................................................................................... 75 
7.8   Alleged violation of Articles 2.4 and 2.4.2 of the AD Agreement: failure to take into 
account all comparable export transactions .......................................................................... 75 
7.8.1   Legal provisions at issue ......................................................................................... 75 
7.8.2   Arguments of parties .............................................................................................. 76 
7.8.2.1   China ............................................................................................................... . 76 
7.8.2.2   European Union .................................................................................................. 76 
7.8.3   Arguments of third parties ...................................................................................... 77 
7.8.4   Evaluation by the Panel .......................................................................................... 77 
7.9   Alleged violation of Articles 4.1 and 3.1 of the AD Agreement with respect to the 
definition of dome stic industry ........................................................................................... 82 
7.9.1   Legal provisions at issue ......................................................................................... 82 
7.9.2   Arguments of parties .............................................................................................. 82 
7.9.2.1   China ............................................................................................................... . 82 
7.9.2.2   European Union .................................................................................................. 83 
7.9.3   Arguments of third parties ...................................................................................... 84 
7.9.4   Evaluation by the Panel .......................................................................................... 84 
7.9.4.1   Terms of reference of the Panel ............................................................................. 84 
7.9.4.2   Assessment of th e claim on th e merits ................................................................... 86 
8   CONCLUSIONS AN D RECOMMEND ATION ................................................................... 89  
 
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  LIST OF ANNEXES 
 
ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel A-2 
ANNEX B 
ARGUMENTS OF CHINA 
Contents Page 
Annex B-1 Executive summary of the first written submission of China B-2 
Annex B-2 Executive summary of the second written submission of China B-8 
Annex B-3 Executive summary of the oral statements of China B-14 
ANNEX C 
ARGUMENTS OF THE EUROPEAN UNION 
Contents Page 
Annex C-1 Executive summary of the first written submission of the European Union C-2 
Annex C-2 Executive summary of the second writte n submission of the European Union C-10 
Annex C-3 Executive summary of the opening oral statement by the European Union C-19 
ANNEX D 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex D-1 Integrated executive summary of the arguments of Japan D-2 
Annex D-2 Integrated executive summary of the arguments of the United States D-4 
 
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  CASES CITED IN THIS REPORT 
Short Title Full Case Title and Citation 
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 5 November 2001, 
DSR 2001:XII, p. 6241 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affect ing Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167 
China – Autos (US) Panel Report, China – Anti-Dumping and Countervailing Duties 
on Certain Automobiles from the United States , WT/DS440/R and Add.1, 
adopted 18 June 2014 
EC – Bed Linen Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, p. 2049 
EC – Bed Linen 
(Article 21.5– India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted 24 Ap ril 2003, DSR 2003:III, p. 965 
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 modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269 
EC – Computer Equipment Appellate Body Report, European Communities – Cu stoms Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, 
adopted 22 June 1998, DSR 1998:V, p. 1851 
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 2 011: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 – 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 
EC – Salmon (Norway) Panel Report, European 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 – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 
18 August 2003, DSR 2003:VI, p. 2613 
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 
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 
p. 5295 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United Stat es – Recourse to Article 21.5 of the 
DSU by the United States , WT/DS132/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, p. 6675 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – FSC  
(Article 21.5-EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
p. 4721 WT/DS397/RW 
 
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  Short Title Full Case Title and Citation 
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 – 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 – Offset Act  
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 (US – Offset Act (Byrd Amendment)) , WT/DS217/AB/R, 
WT/DS234/AB/R, adopted 27 January 2003, DSR 2003:I, p. 375 
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, p. 1875 
U S  –  S o f t w o o d  L u m b e r  V I  
(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 – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, Add.1 
to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, p. 299 
US - Upland Cotton  
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 20 June 2008, 
DSR 2008:III, p. 809 
US – Upland Cotton  
(Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – Recourse to 
Article 21.5 of the DSU by Brazil , WT/DS267/RW and Corr.1, adopted 20 June 
2008, as modified by Appellate Body Report WT/DS267/AB/RW, DSR 2008:III, 
p. 997 
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 
US – Zeroing (EC) 
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, adopted 11 June 
2009, DSR 2009:VII, p. 2911 
US – Zeroing (EC)  
(Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU 
by the European Communities , WT/DS294/RW, adopted 11 June 2009, as 
modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII, p. 3117 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, p. 4793 
 
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  EXHIBITS REFERRED TO IN THIS REPORT 
Panel Exhibit Title 
Exhibit CHN-1 Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive 
anti-dumping duty on imports of certain iron or steel fasteners originating in the 
People's Republic of China, OJEU L 29, 31 January 2009 
Exhibit CHN-2 Notice regarding the anti-dumping measures  in force on imports of certain iron 
or steel fasteners originating in the People's Republic of China, following the 
recommendations and rulings adopted by the Dispute Settlement Body of the 
World Trade Organization on 28 July 2011 in the EC – Fasteners dispute  
(DS397), OJEU C 66, 6 March 2012  
Exhibit CHN-3 Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 
amending Regulation (EC) No 91/2009 im posing a definitive anti-dumping duty 
on imports of certain iron or steel fasteners originating in the People's Republic of China, OJEU L 275 
Exhibit CHN-4 Index of the file in the review investigation concerning the anti-dumping 
measures in force on import s of certain iron or steel fasteners originating in the 
People's Republic of China 
Exhibit CHN-5 Letter of the Commission to interested parties including the disclosure 
document concerning normal value, 30 May 2012 
Exhibit CHN-6 Letter on behalf of Biao Wu to the Commission, 13 June 2012 
Exhibit CHN-7 Letter on behalf of CCCME to the Commission, 19 June 2012 
Exhibit CHN-8 Letter on behalf of Changshu to the Commission, 12 June 2012 
Exhibit CHN-10 Letter on behalf of Ninbgo Jinding and Changshu to the Commission, 
20 June 2012 
Exhibit CHN-11 Email of the Commission concerning Biao Wu and CCCME, 26 June 2012 
Exhibit CHN-12 Email of the Commission concerning Ningbo Jinding and Changshu, 
21 June 2012 
Exhibit CHN-13 Submission on behalf of Changshu, 25 June 2012 
Exhibit CHN-14 Submission on behalf of Ningbo Jinding, 25 June 2012 
Exhibit CHN-15 Letter of the Commission to interested parties, 5 July 2012 
Exhibit CHN-17 Note for the file on the reclassi fication of normal value from one producer in 
India, 11 July 2012 
Exhibit CHN-21 Letter on behalf of Biao Wu and CCCME to the Commission, 19 July 2012 
Exhibit CHN-22 General Disclosure Document in the review investigation (R548) concerning 
anti-dumping measures in force on imports of certain iron or steel fasteners originating in the People's Republic of China: implementation of the recommendations and rulings adopted by the Dispute Settlement Body of the 
World Trade Organization on 28 July 2011 in the EC – Fasteners dispute  
(DS397), 31 July 2012 
Exhibit CHN-23 Comments on behalf of CCCME and Biao Wu, 20 August 2012 
Exhibit CHN-25 Emails exchanged between the Commission and Pooja Forge, 2 July 2012 
Exhibit CHN-30 Report of the Hearing with the Commission of 11 July 2012, 18 July 2012 
Exhibit CHN-33 Letter on behalf of Ningbo Jinding to the Commission, 13 June 2012 
Exhibit CHN-34 Letter on behalf of Changshu to the Commission, 13 June 2012 
Exhibit CHN-44 Calculations for Biao Wu 
Exhibit CHN-45 Calculations for Ningbo Jinding 
Exhibit CHN-46 Calculations for Changshu 
Exhibit EU-1 Letter from the European Commission to Pooja Forge dated 6 December 2007 
Exhibit EU-2 E-mail from Pooja Forge to the European Commission dated 3 July 2012 
Exhibit EU-4 Covering letter to the general disclosure dated 31 July 2012 
Exhibit EU-5 Letter from Ms JAKAS to the Panel dated 26 November 2014 
Exhibit EU-6 Email exchanges between the European Co mmission and Pooja Forge during the 
review investigation in 2012 (BCI) 
Exhibit EUR-7 Full index of the review investigation generated on 25 April 2013 
 
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  ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
AD Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994  
DMSAL Domestic sales listing 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes 
EU European Union 
GATT 1994 General Agreement on Tariffs and Trade 1994 
IA Investigating authority 
PCN Product control number 
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679 
WA-WA Weighted average to weighted average 
WTO World Trade Organization 
 WT/DS397/RW 
 
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  1  INTRODUCTION 
1.1  Complaint by China 1.1.  On 30 October 2013, China requested consultations
1 with the European Union (EU) pursuant 
to Articles 21.5 and 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), 
Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (AD Agreement) and paragraph 1 of the Agreed Procedures under Articles 21 
and 22 of the Dispute Settlement Understanding  between China and the European Union2 with 
respect to the issues identified below. 
1.2.  Consultations were held on 27 November 2013, but did not settle the dispute. 1.2  Panel establishment and composition 
1.3.  On 5 December 2013, China requested the es tablishment of a panel pursuant to Articles 6 
and 21.5 of the DSU, Article XXIII of the GA TT 1994, Article 17 of the AD Agreement and 
paragraph 1 of the Agreed Procedures under Articles 21 and 22 of the Dispute Settlement 
Understanding between China and the European Union  with standard terms of reference.
3 At its 
meeting on 18 December 2013, the Dispute Settlement Body (DSB) referred this dispute, if possible, to the original panel in accordance wi th Article 21.5 of the DSU to examine the matter 
referred to the DSB by China in document WT/DS397/18.
4 
1.4.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by China in 
document WT/DS397/18 and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements. 
1.5.  On 17 March 2014, China requested the Director-General to determine the composition of the 
Panel pursuant to paragraph 7 of Article 8 of the DSU. This paragraph provides: 
If there is no agreement on the panelists  within 20 days after the date of the 
establishment of a panel, at the request of either party, the Director-General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council 
or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or 
covered agreements which are at issue in the dispute, after consulting with the parties 
to the dispute. The Chairman of the DSB sh all inform the Members of the composition 
of the panel thus formed no later than 10 days after the date the Chairman receives 
such a request. 
1.6.  On 27 March 2014, the Director-General accordingly composed the Panel as follows:  Chairperson:  Mr Jose Antonio Buencamino
5 
 
 Members:  Mr Michael Mulgrew 
    Mr Arie Reich  
1.7.  Japan and the United States reserved their rights to participate in the Panel proceedings as 
third parties. 
                                               
1 WT/DS397/17. 
2 WT/DS397/16. 
3 WT/DS397/18. 
4 See WT/DSB/M/340. 
5 Article 21.5 of the DSU provides that a complia nce dispute shall be handled "wherever possible" 
through recourse to "the original panel". The Chairperso n of the original Panel, Mr Luiz O. Baptista, was not 
available for these proceedings. WT/DS397/RW 
 
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  1.3  Panel proceedings 
1.3.1  General 1.8.  After consultation with the partie s, the Panel adopted its Working Procedures
6 and timetable 
on 5 May 2014. The timetable was further modified on 16 May 2014. 
1.9.  The Panel held its substantive meeting with the parties on 11-12 November 2014. A session 
with the third parties took place on 12 November 2014. The Panel issued its Interim Report to the 
parties on 6 March 2015. The Panel issued its Final Report to the parties on 4 May 2015. 
2  FACTUAL ASPECTS 
2.1.  In these compliance proceedings initiated under Article 21.5 of the DSU, China challenges the 
consistency with the covered agreements of the measure taken by the European Union to comply with the DSB recommendations and rulings issued following the panel and Appellate Body reports 
in EC – Fasteners (China) . 
2.2.  On 26 January 2009, the European Union imposed, through Council Regulation (EC) 
No. 91/2009, definitive anti-dumping duties on impo rts of certain iron or steel fasteners originating 
in China. China challenged the imposition of such duties and initiated dispute settlement 
proceedings against the European Union. In the or iginal dispute, China challenged two measures 
adopted by the European Union, namely 1) Article 9(5) of Council Regulation (EC) No. 384/96 of 
22 December 1995 on Protection against Dumped Imports from Countries not Members of the 
European Community, as amended  (Basic AD Regulation) with respect to the issue of the 
individual treatment of producers from non-market economies (NME) in anti-dumping investigations conducted by the European Union, and 2) Council Regulation (EC) No. 91/2009 of 
26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel 
fasteners originating in the People's Republic of China . 
2.3.  With respect to Article 9(5) of the Basic AD Regulation, the original panel found violations of 
various provisions of the AD Agreement, the GATT 1994 and the WTO Agreement. With respect to 
Council Regulation (EC) No. 91/2009 imposing de finitive duties on fasteners from China, the 
original panel found certain violations of the AD Agreement.
7 It rejected certain claims and applied 
judicial economy with respect to others.8 On appeal, the Appellate Body made mixed findings. The 
original panel's findings regarding Article 9(5) of the Basic Regulation were mainly upheld. As far as the claims regarding the fasteners investigation were concerned, the Appellate Body upheld some of the panel's findings and reversed others.
9  
2.4.  With a view to implementing the DSB recomme ndations and rulings concerning Article 9(5) of 
the Basic Regulation, the European Union adopted Regulation (EU) no. 765/2012.10 In relation to 
the implementation of the DSB recommendations and rulings regarding the fasteners investigation, 
the European Commission initiated an investigation (review investigation), pursuant to its WTO 
enabling Regulation11, in order to "inform interested parties of the manner in which the [DSB's] 
findings in regard to the measures in force on imports of certain iron or steel fasteners originating 
in the People's Republic of China [would] be taken into account".12 In the notice initiating the 
review investigation, the Commission explained how it was planning to implement each aspect of the DSB recommendations and rulings. 
                                               
6 See the Panel's Working Procedures in Annex A-1. 
7 Panel Report, EC – Fasteners (China) , para. 8.2. 
8 Ibid. paras. 8.3-8.4. 
9 Appellate Body Report, EC – Fasteners (China) , para. 624. 
10 OJ L 237, 3.9.2012. 
11 Council Regulation (EC) No 1515/2001 of 23 July 2001 on the measures that may be taken by the 
Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-
subsidy matters, OJ L 201, 26.7.2001. 
12 Notice regarding the anti-dumping measures in fo rce on imports of certain iron or steel fasteners 
originating in the People's Republic of China, foll owing the recommendations and rulings adopted by the 
Dispute Settlement Body of the World Trade Organization on 28 July 2011 in the EC – Fasteners 
dispute  (DS397), OJEU C 66, 6 March 2012 (notice of initiation of the review investigation), (Exhibit CHN-2), 
p. 66/29. WT/DS397/RW 
 
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  2.5.  The review investigation was conducted by the Commission and its results were announced in 
the Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 amending Regulation 
(EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China  (review regulation). The review regulation 
explains the determinations made by the Commission and comes to the conclusion that "the 
injurious dumping determined in the original investigation is confirmed". It therefore continues definitive duties on certain fasten ers from China, at revised rates.
13 
2.6.  In these compliance proceedings, China does not question the existence, or consistency with 
the covered agreements, of the EU's implementa tion of the DSB recommendations and rulings 
regarding Article 9(5) of the Basic Regulation. This dispute concerns exclusively China's claims concerning the conduct of the review investigation by the Commission. In these proceedings, 
China takes issue with the measure taken by the European Union to implement the DSB 
recommendations and rulings in relation to the anti-dumping duties on imports of certain iron or steel fasteners originating in China through the review regulation. China considers that the review 
regulation does not fully and correctly implement the DSB recommendations and rulings and that 
it is inconsistent with various provisions  of the AD Agreement and of the GATT 1994. 
3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.  China requests that the Panel find that: 
a. The measures taken by the European Union to implement the recommendations and 
rulings of the DSB in relation to the AD duties on imports of certain iron or steel fasteners originating in China through Council Regulation (EU) No 924/2012 of 
4 October 2012 are not consistent with: 
i. Article 6.5 of the AD Agreement since the European Union treated as confidential, 
information concerning the products sold by the Indian producer while such 
information had not been provided on a confidential basis and/or in the absence of 
good cause shown and Article 6.5.1 to the extent that the European Union failed to ensure that the Indian analogue producer provided a non-confidential summary of 
the information provided on an allegedly confidential basis in sufficient detail to 
enable a reasonable understanding of the substance of such information or establish that there were "exceptional circumstan ces" and provide a statement of reasons 
why, in such exceptional circumstances, summarization was not possible; 
ii. Articles 6.4 and 6.2 of the AD Agreement since the European Union failed to provide 
to the Chinese interested parties a full opportunity for the defence of their interests and because the European Union did not prov ide timely opportunities for them to see 
all information that was not confidential as defined in Article 6.5, that was relevant to 
defend their interests and that was used by the authorities in the AD investigation, with regard to the products sold by the Indian producer; 
iii. Article 6.1.2 of the AD Agreement be cause the evidence presented by the 
Indian producer concerning its products was not made available promptly to the Chinese interested parties participating in the investigation; 
iv. Article 2.4 of the AD Agreement because the European Union failed to indicate to the 
Chinese interested parties what information was necessary to ensure a fair 
comparison and, in particular, since the European Union failed to provide information on the products sold by the Indian producer which was used for the determination of 
the normal value and since it failed to indicate to the Chinese interested parties what 
information was necessary to substantiate their requests for adjustments; 
v. Article 2.4 of the AD Agreement because the European Union failed to ensure that 
the export price of standard fasteners manufactured by the Chinese exporters was 
not compared to the normal value of special fasteners; 
                                               
13 Council Implementing Regulation (EU) No 924/ 2012 of 4 October 2012 amending Regulation (EC) 
No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China, OJEU L 275 (review regulation), (Exhibit CHN-3), recital 138. WT/DS397/RW 
 
- 13 - 
 
  vi. Article 2.4 of the AD Agreement and Article VI:1 of the GATT 1994 because the 
European Union failed to make a fair comparison between the normal value and the export price, in particular in failing to ma ke allowances for differences affecting price 
comparability, namely differences in taxation, differences in certain physical 
characteristics and other differences affecting price comparability; 
vii. Articles 2.4 and 2.4.2 of the AD Agreement because the European Union failed to 
take into account all export transactions in determining the margin of dumping of 
each of the Chinese exporters concerned; and 
viii. Articles 4.1 and 3.1 of the AD Agreement because the European Union re-defined the 
domestic industry by merely using the data of the EU producers which had come forward within the deadline laid down in para graph 6(b)(i) of the Notice of Initiation 
of the original investigation and thereby failed to remedy the self-selection process 
imposed by its approach and to carry out an injury determination involving an objective examination. 
b. The European Union has failed to comply with the recommendations and rulings of the 
DSB. 
3.2.  China also requests the Panel to recomme nd that the DSB request the European Union to 
bring its measures into conformity with its obligations under the AD Agreement and the 
GATT 1994. 
3.3.  The European Union requests that the Panel reject China's claims in this dispute in their 
entirety. 
4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties are reflecte d in their executive summaries, provided to the 
Panel in accordance with paragraph 17 of the Working Procedures adopted by the Panel (see 
Annexes B and C). 
5  ARGUMENTS OF THE THIRD PARTIES 5.1.  The arguments of Japan and the United States are reflected in their integrated executive 
summaries, provided in accordance with paragrap h 18 of the Working Procedures adopted by the 
Panel (see Annex D).  
6  INTERIM REVIEW 6.1  Introduction 
6.1.  On 6 March 2015, we issued our interim report to the parties. In accordance with our working 
procedures, both parties submitted requests for the review of precise aspects of the interim report on 20 March 2015. On 1 April 2015, both parties also submitted their comments on each other's 
written requests. Neither party requested an additional meeting with the Panel. 
6.2.  Parties' requests and our treatment thereof are explained below. We have also corrected 
typographical and other non-substantive errors throughout the Report, including those identified 
by the parties, which are not referred to specifically below. 
6.2  Parties' requests for changes to the interim report 6.3.  China requests that paragraphs 1.3 and 2.6 be modified in order to accurately reflect China's 
panel request. The European Union has not commented on these requests. We have modified 
these two paragraphs in order to address China's concerns. 
6.4.  China requests the Panel to modify paragraph 7.9 in order to better reflect the facts. 
Specifically, China requests that the phrase "because Pooja Forge indicated that 'it was impossible 
to provide a meaningful summary of it without revealing sensitive business information'" be WT/DS397/RW 
 
- 14 - 
 
  deleted from this paragraph because it is not su pported by evidence on the record. China also 
requests that the phrase "according to the European Union" be inserted in this paragraph in order to reflect the fact that the statement regarding the contents of the Pooja Forge's company brochure reflects the EU's allegation. The European Union disagrees with this request, noting that 
interim review is not the stage in panel proceedings to re-litigate factual issues and that granting 
China's request would raise due process concerns. Further, with respect to the first aspect of China's request, the European Union submits that the statement at issue is supported by evidence. 
With respect to the second aspect of China's re quest, the European Union notes that during the 
panel proceedings China did not contest the EU's  statements regarding the contents of the 
company brochure and it even made references to the brochure as containing the type of information referred to in the EU's statement. As footnotes 25 and 26 show, the statements in 
paragraph 7.9 which China challenges reflect the EU's arguments in its first written submission. 
We have modified paragraph 7.9 in order to underline this. 
6.5.  China requests the Panel to modify paragraphs 7.11, 7.12, 7.35, 7.43, 7.99, 7.126, 7.150, 
7.151, 7.171, 7.173, 7.175, 7.177, 7.210, 7.224, 7.225, 7.227, 7.232, 7.238, 7.243, 7.245, 
7.254, 7.280 and 7.287 in order to better reflect China's arguments. The European Union argues that China's request concerning paragraph 7.99 shou ld be rejected because China fails to indicate 
where in its submissions the requested additional language is found. We agree with the 
European Union that China does not identify where in its submissions the additional language that it requested the Panel to add to paragraph 7.99 is found. Further, we do not consider that the request serves to improve the summary of China's arguments. We therefore decline to make this 
change. The European Union objects to the propos ed modifications to paragraphs 7.150, 7.151, 
7.171, 7.173 and 7.177 because the Panel accurately reflects China's arguments in these paragraphs. We consider that the changes China requested to these five paragraphs are useful and 
have reflected them. The European Union contends that China's request to modify 
paragraph 7.175 should be rejected because it concerns the Panel's own conclusions that accurately reflect China's claim. China's comment on this paragraph has to do with the scope of 
China's claim regarding the types of fasteners. In  the context of this claim, we understand China 
to challenge the Commission's treatment of fasteners sold to high-end users such as automotive producers, which were not made according to the customer's drawing, as opposed to such 
fasteners that were made according to the customer's drawing. We have modified paragraph 7.175 
in order to clarify this. The European Union considers that China's request for the modification of paragraph 7.243 is also unwarranted but proposes an alternative modification should the Panel decide to modify this paragraph. In the EU's  view, China's request for the modification of 
paragraph 7.245 is also unwarranted because in this  paragraph the Panel sets out its own findings, 
rather than describing China's arguments. We have modified paragraphs 7.243 and 7.245 in order to reflect certain arguments raised in China's second written submission. The European Union has 
not commented on China's requests to modify the other paragraphs cited above in this paragraph. 
Taking into account China's specific comments, we have also modified paragraphs 7.11, 7.12, 7.35, 7.43, 7.126, 7.210, 7.224, 7.225, 7.227, 7.232, 7.238, 7.254, 7.280 and 7.287. 
6.6.  China requests that paragraphs 7.20 and 7.292 be modified in order to clarify that these 
paragraphs describe the EU's arguments. The European Union disagrees with the request to 
modify paragraph 7.20, noting that making this mo dification would be inconsistent with the Panel's 
drafting style generally in this Report and woul d necessitate modifications to other parts of the 
Report for the sake of consistency. Since paragraph 7.20 summarizes the EU's arguments, we 
have modified it in a way that underlines this. Contrary to the EU's argument, we do not consider that such a modification requires similar modifications to other parts of this Report. The 
European Union has not commented on the requested modification to paragraph 7.292. We have 
modified this paragraph. 
6.7.  China requests the Panel to modify para graph 7.57 in order to better reflect the EU's 
arguments. The European Union has not commented on this request by China. We have modified 
this paragraph. 
6.8.  China requests the Panel to modify para graphs 7.111, 7.112, 7.128 and 7.144 in order to 
better reflect the facts. The European Union maintains that China's request with respect to 
paragraphs 7.111 and 7.112 should be rejected because China did not dispute the relevant facts 
during the panel proceedings. Since Exhibit EU-6 shows that during the review investigation Pooja Forge submitted information regarding the coating of its products, we have modified 
paragraphs 7.9, 7.111, 7.112 and 7.114 in order to reflect this fact. The European Union does not WT/DS397/RW 
 
- 15 - 
 
  object to the requested modification to paragraph 7.128 aimed at clarifying China's own 
arguments. We have modified this paragraph. The European Union objects to the proposed modification to paragraph 7.144 on the basis th at this paragraph describes the Panel's own 
reasoning. As argued by the European Union, the part of this paragraph that China requests the 
Panel to delete reflects the Panel's own reasoning. We therefore decline to make the requested 
modification. 
6.9.  The European Union requests the Panel to modify paragraph 7.9 in order to better reflect the 
EU's and China's arguments. China submits that th is paragraph describes the relevant facts, not 
the parties' arguments, and asks the Panel to reject the EU's request. China adds that the textual addition requested by the European Union does not correctly describe China's arguments. We have modified paragraph 7.9 in order to provide further clarity with respect to the EU's arguments. 
However, we have not introduced the part of the requested modification concerning China's 
arguments because we believe the current version correctly reflects such arguments. 
6.10.  The European Union requests the Panel to modify paragraphs 7.14, 7.15, 7.16 and 7.91 in 
order to better reflect the EU's arguments. China requests the Panel to reject the modifications 
requested to paragraphs 7.14 and 7.15. We agree with the EU's suggestion and have modified these two paragraphs. China argues that no modifi cation is needed to paragraph 7.16 but suggests 
an alternative modification should the Panel consider granting the EU's request. Since this 
paragraph contains the EU's arguments, we have modified this paragraph as requested by the European Union. China has not commented on the requested modification to paragraph 7.91. We 
agree with the EU's request and have modified this paragraph accordingly. 
6.11.  The European Union requests the Panel to modify paragraph 7.273 in order to address the 
EU's argument that there was nothing "inherently unfair" about the methodology used by the Commission in calculating dumping margins. China submits that the EU's argument about the lack 
of inherent unfairness is irrelevant to the Pane l's assessment and that therefore the Panel should 
not make any changes to this paragraph. We have made the necessary modification to address this argument but found it more appropriate to add it to paragraph 7.275 of our Report. 
6.12.  The European Union requests the Panel to modify paragraph 7.283 in order to add certain 
aspects of the EU's arguments that are missing in this paragraph and then to address such aspects in the Panel's findings. China contends that this paragraph adequately addresses the EU's arguments regarding the domestic industry claim. Ho wever, should the Panel decide to modify this 
paragraph, China requests the Panel to also full y reflect the counterarguments raised by China in 
this regard. We have added the EU's arguments to paragraphs 7.283, 7.297 and 7.298 and assessed such arguments in paragraphs 7.297 and 7.298 of the Report. In paragraphs 7.297 and 
7.298, we have also reflected China's relevant counterarguments. 
6.13.  Finally, the European Union requests the Panel to modify paragraph 7.287 in order to apply 
the test that the Panel itself developed for determining whether claims that could have been but 
were not raised in original panel proceedings are within this Panel's terms of reference. China 
maintains that there is no need to modify this  paragraph because the concern identified by the 
European Union is already addressed in paragraph 7.290 of the Report. As the European Union notes, in paragraph 7.287, we state that "China could have raised the present claim as an 
additional argument under the domestic industry claim in the original proceedings". In 
paragraph 7.289, we note that the issue raised  by China's claim regarding the Commission's 
domestic industry definition is whether or not the Commission complied with the DSB 
recommendations and rulings in defining the domestic industry in the review investigation and 
conclude that this issue "goes to the very heart of a compliance panel's task under Article 21.5 of the DSU and falls within our terms of reference". In paragraph 7.290 of the Report, we state that 
"[g]iven this, we do not consider relevant for our present inquiry whether or not China could have 
raised this claim during the original proceedings. However, assuming that China could have raised it in the original proceedings, we would still have found the claim to fall within our terms of reference given the decisive role that the contested statement in the original notice of initiation 
played in the Commission's definition of domestic industry in the review investigation." As China 
notes, this part of paragraph 7.290 applies to the present claim the test that we developed with respect to the issue of whether or not claims that could have been but were not raised in the 
original proceedings fall within our terms of reference in these compliance proceedings. We have, 
nevertheless, added one sentence to this paragraph in order to underline this. WT/DS397/RW 
 
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  7  FINDINGS 
7.1  General principles regarding treaty in terpretation, the applicable standard of 
review, and the burden of proof 
7.1.1  Treaty interpretation 
7.1.  Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the 
provisions of the covered agreements "in accordan ce with customary rules of interpretation of 
public international law". It is generally accepted that these customary rules are reflected in 
Articles 31-32 of the Vienna Convention on the Law of Treaties (Vienna Convention). 
7.2.  A number of WTO reports address the applicatio n of these provisions on treaty interpretation 
in dispute settlement in the WTO. It is clear that interpretation must be based above all on the text of the treaty
14, and that the context of the treaty provisions also plays a role. It is also well 
established that these principles of interpretation  "neither require nor condone the imputation into 
a treaty of words that are not there or the importation into a treaty of concepts that were not intended".
15 Furthermore, panels "must be guided by the rules of treaty interpretation set out in 
the Vienna Convention, and must not add to or di minish rights and obligations provided in the 
WTO Agreement".16 
7.3.  Article 17.6(ii) of the AD Agreement also prov ides that if a panel finds that a provision of the 
AD Agreement admits of more than one permissible interpretation, it shall uphold a measure if it 
rests upon one of those interpretations. 
7.1.2  Standard of Review 7.4.  Panels generally are bound by the standard of review set forth in Article 11 of the DSU, which 
provides, in relevant part, 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. 
7.5.  The Appellate Body has explained that where a panel is reviewing an investigating authority's 
(IA) determination, the "objective assessment" standard in Article 11 of the DSU requires a panel 
to review whether the authority has provided a reasoned and adequate explanation as to (i) how 
the evidence on the record supported its factual findings; and (ii) how those factual findings support the overall determination.
17 Furthermore, in addition to the obligation to conduct an 
objective assessment under Article 11 of the DSU, with respect to disputes that arise under the 
AD Agreement, Article 17.6(i) of the AD Agreement provides that: 
[I]n its assessment of the facts of the matter, the panel shall determine whether the 
authorities' establishment of the facts wa s proper and whether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned. 
7.6.  The Appellate Body has clarified that a panel should not conduct a de novo  review of the 
evidence, nor substitute its judgement for that of the IA. A panel must limit its examination to the evidence that was before the IA during the course of the investigation and must take into account all such evidence submitted by the parties to the dispute.
18 At the same time, a panel must not 
                                               
14 Appellate Body Report, Japan – Alcoholic Beverages II , p. 10. 
15 Appellate Body Report, India – Patents (US) , para. 45. 
16 Ibid. para. 46. 
17 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS , para. 186; and US – 
Lamb , para. 103. 
18 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , paras. 187-188. WT/DS397/RW 
 
- 17 - 
 
  simply defer to the conclusions of the IA; a panel's examination of those conclusions must be "in-
depth" and "critical and searching".19 
7.1.3  Burden of Proof 7.7.  The general principles applicable to burden of proof in WTO dispute settlement require that a 
party claiming a violation of a provision of the WTO Agreement by another Member assert and 
prove its claim.
20 China, as the complaining party in this dispute, must therefore make a prima 
facie case of violation of the relevant provisions of the WTO agreements it cites, which the 
European Union must refute in order not to have the Panel rule against it. We also note that it is 
generally for each party asserting a fact, whether complainant or respondent, to provide proof thereof.
21 We recall that a prima facie case is one which, in the absence of effective refutation by 
the other party, requires a panel, as a matter of law, to rule in favour of the party presenting the 
prima facie case.22 
7.2  Alleged violations of Articles  6.5 and 6.5.1 of the AD Agreement 
7.2.1  Legal provisions at issue 
7.8.  Articles 6.5 and 6.5.1 of the AD Agreement read: 
6.5 Any information which is by nature confidential (for example, because its 
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. 
6.5.1 The authorities shall require interested parties providing confidential information 
to furnish non-confidential summaries thereo f. 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. 
(footnote omitted) 
7.2.2  Relevant facts 7.9.  We recall that in the original investigation, the Commission resorted to the so-called 
"analogue country" methodology in determining normal values because it considered China to be 
an NME. The Commission chose India as the analogue country and sent questionnaires to Indian companies producing the investigated product, i. e. fasteners. In the letter accompanying the 
questionnaire, the Commission confirmed that any information provided by the company would be 
treated as strictly confidential and reminded the company that, in any event, non-confidential summaries would need to be provided.
23 Two Indian producers cooperated and submitted 
questionnaire responses. Only one of these two co mpanies, Pooja Forge, provided a response that 
contained sufficiently detailed data needed by the Commission in determining the normal value.24 
However, Pooja Forge's initial questionnaire response, submitted in March 2008, was not complete. It did not include a detailed domestic sales listing (DMSAL), nor did Pooja Forge fill out 
section B of the questionnaire concerning product description. A few weeks after the submission of 
Pooja Forge's questionnaire response, the Commission  officials went to that company's premises in 
order to collect the missing information and to confirm its suitability as an analogue country 
                                               
19 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93. 
20 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
21 Ibid. 
22 Appellate Body Report, EC – Hormones , paras. 98, 104. 
23 European Union's first written submissi on, para. 41; and Exhibit EU-1, p. 1. 
24 Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on 
imports of certain iron or steel fasteners originating in the People's Republic of China, OJEU L 29, 31 January 2009 (definitive regulation), (Exhibit CHN-1), recitals 86-91. WT/DS397/RW 
 
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  producer. During that verification visit, Pooj a Forge provided the DMSAL file, which contained 
information on approximately 80,000 transactions. For each transaction, this file provided information such as prices, quantities, internal item codes and a product description text string. No non-confidential summary of the DMSAL file was provided because, the European Union argues, 
Pooja Forge indicated that "it was impossible to provide a meaningful summary of it without 
revealing sensitive business information".
25 During the verification visit, Pooja Forge also provided 
a non-confidential summary of its questionnaire response as well as a company brochure which, 
according to the European Union, contained information on product range, production process and 
other company sensitive details, such as production capacity and number of employees.26 The 
present claim, as well as some of the other claims raised by China, which we examine below, takes issue with two pieces of information, namely , the list of Pooja Forge's products and the 
characteristics of such products. The information on the list of Pooja Forge's products was 
submitted in the DMSAL file presented during the verification visit. The information on the characteristics of such products was provided partly in the DMSAL file and partly through other 
documents submitted by Pooja Forge, such as its company brochure.
27 Certain information 
regarding product characteristics, namely, coating, was also presented to the Commission during the review investigation.
28 
7.2.3  Arguments of parties 
7.2.3.1  China 7.10.  China argues that the Commission acted inconsistently with Article 6.5 of the AD Agreement 
by treating as confidential the information su bmitted by Pooja Forge regarding the list and 
characteristics of its products. China asserts that this information was neither by nature 
confidential nor submitted on a confidential basis and that no good cause was shown for its confidential treatment. 
7.11.  For both types of information, China contends that such information is routinely provided to 
potential customers and therefore cannot be by nature confidential.
29 China notes that the 
guidelines issued by the European Union on how to complete the non-confidential version of a 
questionnaire response define the "product catalogue" as non-confidential, which further proves 
that the information at issue could not be treated as confidential by nature.30 As to whether the 
information was submitted on a confidential basis, China distinguishes between the list of products and the product characteristics. With regard to the list of products, China notes Pooja Forge's 
email to the Commission, dated 2 July 2012
31, indicating that Pooja Forge would not like to 
disclose its company details to interested parties, but contends that this cannot constitute a request for confidential treatment, nor the submissi on on a confidential basis. According to China, 
a party seeking confidential treatment for its information should at least identify the information 
for which such request is made.
32 With regard to product characteristics, China maintains that 
nothing on the record indicates that Pooja Fo rge requested confidential treatment for this 
information.33 In any case, China argues, with regard to both types of information, that 
Pooja Forge failed to show good cause that  would justify their confidential treatment.34 
7.12.  Should the Panel disagree with China's assertion that the EU's treatment of Pooja Forge's 
information as confidential was inconsistent with Article 6.5, China argues, in the alternative, that 
the European Union in any event violated Ar ticle 6.5.1 of the AD Agreement because the 
Commission failed to require Pooja Forge to provide a non-confidential summary of that 
                                               
25 European Union's first wr itten submission, para. 41. 
26 Ibid. 
27 European Union's response to Panel question No. 9; and China's response to Panel question Nos. 3 
and 9. 
28 Email exchanges between the Euro pean Commission and Pooja Forge during the review investigation 
in 2012 (BCI), (Exhibit EU-6). 
29 China's first written submission, para. 106. 
30 China's second written submission, para. 39. 
31 Emails exchanged between the Commission and Pooja Forge, 2 July 2012, (Exhibit CHN-25). 
32 China's first written submission, para. 107. 
33 China's first written submission, paras. 107 an d 120; and China's second written submission, 
para. 42. 
34 China's first written submission, paras. 110, 114-117, 120; and China's second written submission, 
paras. 43-48. WT/DS397/RW 
 
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  information. With regard to the third sentence of Article 6.5.1, China also asserts that Pooja Forge 
failed to establish that there were exceptional circumstances that made summarization of confidential information impossible, and failed to  provide a statement of reasons on that matter.
35 
7.2.3.2  European Union 
7.13.  The European Union submits that China is precluded from presenting this claim in these 
compliance proceedings because it was raised in the original proceedings and ultimately rejected by the Appellate Body.
36 In the original dispute, China brought a claim under Articles 6.5 and 6.5.1 
of the AD Agreement with respect to the confiden tial treatment of all information provided in 
Pooja Forge's questionnaire response but only presented supporting evidence and arguments with respect to information regarding "product types". The panel made a finding of violation of Article 6.5 of the Agreement with regard to the information on product types. On appeal, the 
Appellate Body found that China had not substantiated its claim under Article 6.5 in a timely 
fashion, thus failing to observe the panel's work ing procedures and the requirement of due process 
of law, and reversed the panel's finding that the European Union had acted inconsistently with 
Article 6.5. In the EU's view, therefore, China should not be given a second chance to provide 
evidence and arguments that it failed to provide in the original proceedings.
37 
7.14.  The European Union also requests the Panel to reject this claim on its merits. The 
European Union contends that the information submitted by Pooja Forge was properly treated as 
confidential pursuant to the requirements of Ar ticle 6.5. The European Union maintains that the 
information provided by Pooja Forge, concerning both the list and the characteristics of its products, was confidential by nature. With respec t to the list of products, the European Union 
asserts that this is proprietary information. It is the kind of sensitive information that companies 
do not like to share with their competitors. Rega rding product characteristics, the European Union 
posits that this information is by nature confidential because knowing the products sold in a 
market in detail would indicate which types of products a competitor could offer in that market. It 
would also show which product types are not sold in that market so that competitors can offer such products. In the EU's view, this also applies to the company brochure because the latter 
includes sensitive information about the company,  such as its production process, production 
capacity and the number of employees.
38 The European Union also submits that, at the time of the 
original investigation as well as the review investigation, the Indian producer did not give its company brochure to anyone who was not its customer, since this would allow its competitors to 
see exactly what it made and how.
39 
7.15.  In any case, the European Union argues that the information at issue was submitted by 
Pooja Forge on a confidential basis and that good cause was shown to justify confidential 
treatment of such information, as envisaged by Article 6.5.40 In this regard, the European Union 
underlines the fact that Pooja Forge agreed to cooperate with the Commission in the original investigation as an analogue country producer on the condition that no company details would be 
disclosed to interested parties.
41 In the context of the verification visit that took place in 
April 2008, Pooja Forge requested Commission offici als to maintain the confidentiality of the 
information on the list and characteristics of its products.42 The company maintained the same 
position in the review investigation and told the Commission officials, through an email dated 
2 July 2012, that it did not agree to the disclosure of any company details to interested parties. In 
another email, dated 3 July 201243, Pooja Forge pointed out that the list of products should not be 
disclosed because such disclosure would give an advantage to its competitors. 
7.16.  With respect to China's claim under Article 6.5.1 of the AD Agreement, the European Union 
contends that Pooja Forge provided the summary "fasteners" as a general summary contained in Pooja Forge's response to the questionnaire about its product range.
44 When this information was 
                                               
35 China's first written submis sion, paras. 123 and 129. 
36 European Union's first wr itten submission, para. 40. 
37 Ibid. paras. 39-40; and European Unio n's second written submission, para. 15. 
38 European Union's first writ ten submission, paras. 43-47. 
39 Ibid. para. 47. 
40 Ibid. paras. 49-53. 
41 Ibid. para. 41. 
42 European Union's response to Pane l question No. 6; and Exhibit EU-5. 
43 E-mail from Pooja Forge to the European Commission dated 3 July 2012, (Exhibit EU-2). 
44 European Union's first wr itten submission, para. 56. WT/DS397/RW 
 
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  first obtained from Pooja Forge in 2008, during  the original investigation, Pooja Forge had 
expressed its views about the impossibility of summarising the information on the list and 
characteristics of its products in a way other than by means of this general summary.45 After 
careful consideration, it seemed obvious to the Commission that, other than the general statement 
"fasteners", Pooja Forge could not provide another, more meaningful confidential summary of a list 
of 80,000 item codes relating to specific transact ions as well as their product description text 
strings without either revealing internal company details or other sensitive market information to 
competitors.46 Therefore, the European Union requests that the Panel also reject China's claim 
under Article 6.5.1. 
7.2.4  Arguments of third parties 7.17.  Japan  recognizes the important balance that needs to be struck between providing 
interested parties in an anti-dumping investigation with adequate access to confidential 
information to enable them to defend their interest s, and the need to protect the confidentiality of 
the information. In Japan's view, the good cause requirement of Article 6.5 of the AD Agreement 
aims to ensure that the avoidance of the risk of disclosure of confidential information is important 
enough to warrant non-disclosure. Japan contends that good cause must be determined objectively by the IA, and should not be based on the subjective considerations of the party 
submitting the information. Japan notes that the interested party submitting confidential 
information may provide evidence that the IA may use in determining whether there is good cause justifying confidential treatment. However, the ultimate determination in this regard has to be made by the IA. In making such a determination, the IA has to take into account not only the 
evidence provided by the interested party seek ing confidential treatment, but also any other 
evidence submitted by other parties or obtained from other sources.
47 In Japan's view, the 
consideration of good cause should also appear on the investigation record. Japan considers that 
where the IA itself decides to treat information as  confidential, it has to demonstrate that good 
cause exists for such treatment.48 In order to decide whether good cause was shown in this review 
investigation, Japan invites the Panel to consider "whether there was any other way to disclose 
more specific information relating to possible differences in product comparability, while still 
protecting the confidential information".49 
7.18.  The United States  disagrees with China's argument that information that is routinely 
provided to potential customers cannot be by nature confidential, as a categorical matter, for 
purposes of Article 6.5 of the Agreement. Article 6.5 contains no such carve out and there may be 
situations where information that is by nature confidential is provided to potential customers on the condition that it not be shared with others.
50 The United States, however, does not take a 
position as to whether or not the Commission acted consistently with the requirements of 
Article 6.5 in treating the information at issue as confidential in this review investigation. As for China's claim under Article 6.5.1 of the AD Agreement, the United States notes that this 
provision's requirement to provide non-confidential summaries only applies to information 
presented by "interested parties". China has not established that Pooja Forge was an interested party within the meaning of the AD Agreement. Ar ticle 6.11 of the AD Agreement provides a list of 
interested parties. In the view of the United St ates, Pooja Forge does not fall under any of the 
categories in that list. Because Pooja Forge was not an interested party, the Commission was not 
obliged to require that a non-confidential summary be provided for the confidential information submitted by Pooja Forge.
51 
7.2.5  Evaluation by the Panel 
7.19.  In our assessment of the present claim, we will first address the European Union's argument 
that China is precluded from raising this claim before this compliance Panel. We will only proceed 
with our assessment of the claim on the merits if we find that China is allowed to raise it in these 
proceedings. 
                                               
45 Ibid. 
46 Ibid. 
47 Japan's statement at the meeting of the Panel, para. 2. 
48 Ibid. para. 15. 
49 Ibid. para. 17. 
50 United States' written submission, para. 9. 
51 United States' written su bmission, paras. 13-17. WT/DS397/RW 
 
- 21 - 
 
  7.2.5.1  Terms of reference of the Panel 
7.20.  The European Union contends that China is precluded from raising this claim in these 
compliance proceedings because this claim was raised in the original dispute settlement proceedings and was ultimately rejected by the Appellate Body. The European Union notes that 
although China presented a broadly-defined claim under Article 6.5 of the AD Agreement before 
the original panel whereby it challenged the confidential treatment of "all information" presented in Pooja Forge's questionnaire response, it provided su pporting evidence only with respect to part of 
that information, namely, "product types". The European Union recalls that the original panel 
noted this and assessed China's claim only with respect to the information on "product types". The European Union also underlines that, on appeal, the Appellate Body noted that China had not developed its Article 6.5 claim in a timely fashion before the original panel. In the EU's view, 
through the present claim, China is attempting to provide additional evidence and arguments with 
respect to the confidential treatment of informatio n other than "product types", which it failed to 
provide in the original dispute. Citing the relevant WTO jurisprudence, including the Appellate Body 
report in EC – Bed Linen (Article 21.5 – India) , the European Union argues that China should not 
be given a "second chance" to make a case that it was supposed, but failed, to make in the original dispute.
52 
7.21.  China disagrees with the European Union for four reasons. First, China asserts that the WTO 
jurisprudence relied upon by the European Union precludes the presentation before a compliance 
panel of the same claim against a component of the original measure that remained unchanged in the implementation phase and was not found to be WTO-inconsistent in the original dispute 
settlement proceedings. The present claim, however, does not challenge an unchanged component 
of the original measure. The original claim concerned information on "product types", whereas the present claim concerns information on the list and characteristics of Pooja Forge's products. 
Second, China could not have raised the present claim in the original proceedings because the 
Chinese producers became aware of the confidenti al treatment of information on the list and 
characteristics of Pooja Forge's products during the review investigation. Third, China argues that, 
if the Panel does not consider these two aspects to be new components, it should nevertheless 
conclude that these are "changed" components. Fourth, China submits that, differently from the  
EC – Bed Linen (Article 21.5 – India)  case where the contested claim did not challenge an 
"inseparable" element of the measure taken to comp ly, in the present proceedings, the confidential 
treatment by the Commission of information on the list and characteristics of Pooja Forge's 
products represents an "integral" part of the measure taken to comply with the DSB rulings and recommendations after the original dispute.
53 
7.22.  The function of a compliance panel is described in Article 21.5 of the DSU, which reads as 
follows in relevant part: 
Where there is disagreement as to the existence or consistency with a covered 
agreement of measures taken to comply with the recommendations and rulings such 
dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. 
7.23.  Article 21.5 states that a compliance proceeding under this provision may concern either the 
existence or the consistency with a covered agreement of measures taken to comply with DSB 
recommendations and rulings. That is, a complainant in a compliance proceeding may argue that the defendant has not taken any measures to comply with the DSB recommendations and rulings 
or that the measure taken to comply with such recommendations and rulings is inconsistent with 
the covered agreements. 
7.24.  It is now well established in WTO jurisprudence that the scope of the claims that may be 
raised in compliance proceedings is "not unbounded".
54 One limitation in the scope of such 
proceedings is the claims raised in the original dispute settlement proceedings with respect to which the complainant failed to make a prima facie  case. Those claims cannot ordinarily be raised 
in compliance proceedings. The European Union contends that because China raised a claim under 
                                               
52 European Union's second written submission, para s. 14-17; and European Union's opening statement 
at the meeting of the Panel, paras. 7-9. 
53 China's second written submission, paras. 13-23. 
54 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 210. WT/DS397/RW 
 
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  Articles 6.5 and 6.5.1 in the original proceedings but failed to make a prima facie  case thereon, 
this same claim cannot be raised before this compliance Panel. We note that this specific issue has been discussed in WTO jurisprudence, including in EC – Bed Linen (Article 21.5 – India)  and 
US – Upland Cotton (Article 21.5 – Brazil) , which the parties also cite in their arguments regarding 
this jurisdictional issue. It is therefore useful to recall the gist of the Appellate Body's findings in 
these disputes on this particular issue. 
7.25.  In EC – Bed Linen (Article 21.5 – India) , one of the issues raised was whether or not a claim 
which had been raised in original proceedings, dismissed by the original panel and not appealed by 
the complainant, could be raised in compliance proceedings under Article 21.5 of the DSU. The compliance panel declined to rule on this claim, noting that doing so would open "[t]he possibility for manipulative or abusive litigation tactics[.]".
55 On appeal, the Appellate Body agreed with the 
compliance panel. In its analysis, the Appellate Body noted, inter alia , that, in this regard, there was 
no difference between a case where the original panel found that the complainant failed to make a prima facie  case of violation or where it found that the challenged measure was not inconsistent with 
the WTO Agreement.
56 
7.26.  In US – Upland Cotton (Article 21.5 – Brazil) , the original panel found that the complainant, 
Brazil, had shown a violation of the Agreement on Agriculture with respect to export credit 
guarantees provided to rice but that it had not made the same showing with respect to export credit 
guarantees provided to certain other agricultural goods; in doing so, the original panel did not analyse specifically Brazil's argument with respect to the guarantees other than those provided to rice.
57 On appeal, the Appellate Body found that the panel had erred in concluding that the export 
credit guarantees provided other than to rice were inconsistent with the United States' WTO 
obligations because it had not examined Brazil's arguments on these export credit guarantees.58 The 
Appellate Body, however, did not complete the analysis because of the absence of uncontested facts 
on the record.59 Brazil raised the same claim in the compliance proceedings. In a preliminary ruling 
issued at the request of the respondent, the United States, the compliance panel found this claim to be within its terms of reference because of the close nexus between the measure taken to comply 
and the measure that the contested claim challenged.
60 On appeal, the Appellate Body reiterated its 
finding in EC – Bed Linen (Article 21.5 – India) that a complainant that failed to make out a prima 
facie case in the original proceedings regarding an element of the original measure which remained 
unchanged in the implementation phase cannot re-litigate that claim before a compliance panel with 
respect to the same aspect of the measure.61 However, the Appellate Body observed that the 
situation presented in US – Upland Cotton (Article 21.5 – Brazil) was different in that the disputed 
claim had not been resolved on its merits in the original proceedings because the Appellate Body had 
not completed the analysis. Therefore, according to the Appellate Body, allowing such a claim in 
compliance proceedings would not raise the due process concerns identified by the respondent.62  
7.27.  In the light of this jurisprudence, we  must consider whether the present claim under 
Articles 6.5 and 6.5.1 of the AD Agreement is the same as the claim raised in the original 
proceedings under the same two provisions. If we find that these are the same claims, we will conclude that the present claim is outside our terms of reference and will refr ain from addressing it 
on its merits. If, however, we conclude that these claims are not the same, the present claim will 
be within our terms of reference and we will proceed to make an assessment on the merits. 
7.28.  Turning to the facts that are relevant to our examination, we recall that China raised a claim 
under Articles 6.5 and 6.5.1 of the AD Agreement in the original proceedings. The scope of that 
claim was described by the original panel as follows: 
With respect to the non-confidential versio n of the Indian producer's questionnaire 
response, China alleges a violation of both Articles 6.5 and 6.5.1. China contends that 
the non-confidential version of the questionnaire response does not contain any 
information at all, particularly with respect to the product types on the basis of which 
                                               
55 Panel Report, EC – Bed Linen (Article 21.5 – India) , para. 6.43. 
56 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96. 
57 Panel Report, US – Upland Cotton , para. 7.881. 
58 Appellate Body Report, US – Upland Cotton , para. 692. 
59 Ibid. para. 693. 
60 Panel Report, Upland Cotton (Article 21.5 – Brazil) , paras. 9.19, 9.26-9.27. 
61 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 210. 
62 Ibid. WT/DS397/RW 
 
- 23 - 
 
  the information was provided by this producer. China argues that the Commission 
erred by treating the information in this questionnaire response as confidential without 
good cause and thus acted inconsistently with Article 6.5 of the AD Agreement. If the Panel finds that the information was properly treated as confidential, China claims a 
violation of Article 6.5.1 of the AD Agreement …
63 (emphasis added) 
7.29.  The European Union argued before the original panel that China had dropped its Article 6.5 
claim with respect to Pooja Forge's questionnaire response because China had not developed 
arguments in this regard in its first written submission. China clarified in its second written 
submission that it had not dropped this claim and provided its supporting arguments with respect to the claim. In response to questioning from the panel, the European Union stated that the way in which China had developed this claim violated the European Union's due process rights and the 
panel's working procedures.
64 The panel expressed concern over the way in which China had 
developed this claim but decided that, overall, th e European Union had not been deprived of its 
due process rights; accordingly, it addressed the claim on its merits.65 However, in terms of the 
scope of the claim, the panel noted that China's claim concerned all the information submitted in 
Pooja Forge's questionnaire response and that China had only presented evidence and arguments with respect to information concerning "product types". For this reason, the panel limited its 
substantive assessment of the claim under Arti cle 6.5 to the information on product types.
66 The 
panel then noted that the Commission had treated the information about Pooja Forge's product types as confidential without a showing of good cause and found this to be in violation of Article 6.5. Having found a violation of Article 6.5, the panel refrained from making a finding under 
Article 6.5.1.
67 On appeal, the Appellate Body found that China had not substantiated its claim 
under Article 6.5 with respect to the "product type" information in the questionnaire because it had asserted it late in the proceedings and had failed to provide supporting arguments and evidence. 
Therefore, the Appellate Body concluded that th e European Union was not called upon to respond 
to this claim. On this basis, the Appellate Body reversed the panel's finding that the European Union had acted inconsistently with Article 6.5.
68 
7.30.  As noted above, in the original proceedings, the claim under Articles 6.5 and 6.5.1 of the 
AD Agreement was initially presented with respect to the confidential treatment of information in Pooja Forge's questionnaire response but was subsequently pursued only with respect to information on "product types". The EU's jurisdictional objection is based on the contention that 
the claim in the original proceedings concerned "all information" in Pooja Forge's "questionnaire 
response" and that therefore it also encompassed information on the list and characteristics of this company's products, which is the object of the pres ent claim. We note, however, that, in terms of 
its object, the present claim is distinct from the original claim. The present claim concerns 
information on the "list and characteristics" of the products sold by Pooja Forge, whereas the 
original claim was presented with respect to the entirety of Pooja Forge's questionnaire response 
but was pursued only with respect to information on this company's product types. Indeed, China 
makes it clear that its claim does not challenge Pooja Forge's questionnaire response, but only the information on the list and characteristics of the company's products.
69 
7.31.  Importantly, the information on the "list an d characteristics" of Pooja Forge's products was 
not submitted in Pooja Forge's questionnaire re sponse. It was submitted separately from the 
questionnaire response. Parties have no disagreement on this particular factual aspect. In this 
regard, we note the EU's statement that: 
Pooja Forge submitted the information re garding the "list of products" and the 
characteristics of the products sold in the Indian market during the IP in the 
DMSAL file during the verification visit that took place in April 2008 … 
With respect to other more general inform ation about Pooja Forge's product range, 
the European Commission also obtained Pooja Forge's company brochure during its 
                                               
63 Panel Report, EC – Fasteners (China) , para. 7.510. (footnotes omitted) 
64 Ibid. paras. 7.519-7.521. 
65 Ibid. para. 7.522. 
66 Ibid. para. 7.524. 
67 Ibid. para. 7.525. 
68 Appellate Body Report, EC – Fasteners (China) , paras. 574-575. 
69 China's response to Panel question No. 5. WT/DS397/RW 
 
- 24 - 
 
  verification visit. However, such information, as well as other information collected 
during the inspection by the European Commission, was not provided by Pooja Forge 
as part of its questionnaire response; rather, it was provided as part of the verification 
visit and thus placed on the confidential part of the investigation record.70 (emphasis 
added) 
7.32.  In its first written submission, the Euro pean Union also clarifies that "[Pooja Forge's 
questionnaire response] did not contain a detailed domestic sales listing (DMSAL) file, nor did 
Pooja Forge fill out Section B (on product description) in its questionnaire response".71 
7.33.  As to when the information on the list of Pooja Forge's products was submitted, China also 
refers to the DMSAL file obtained during the verification visit in 2008. As for the information on product characteristics, China refers to the DM SAL file for certain characteristics, such as 
"diameter and length" and "type of fastener", and to other parts of the investigation file, such as 
certain emails and references to websites, for ce rtain other characteristics, such as "type of 
coating" and "type of chrome".
72 
7.34.  This clarifies that the information that the present claim under Articles 6.5 and 6.5.1 takes 
issue with was not part of Pooja Forge's questionnaire response, which was the object of the claim presented in the original proceedings. The EU's a ssertion is that the present claim was raised and 
rejected in the original proceedings. However, since the record shows that these two claims take 
issue with different types of information, in our view they cannot be the same. Consequently, allowing China to present the claim under Articles 6.5 and 6.5.1 in these proceedings would not prejudice the EU's due process rights, as it would not give China a second chance to argue a claim 
that was raised and rejected in the original proceedings.
73 On the basis of the foregoing, we find 
China's claim under Articles 6.5 and 6.5.1 to be wi thin our terms of reference and therefore we will 
proceed with our assessment of that claim on its merits. 
7.2.5.2  Assessment of the claim on the merits 
7.35.  China contends that the information on the list and characteristics of Pooja Forge's products 
was neither by nature confidential74 nor submitted on a confidential basis.75 Further, no good 
cause was shown to justify its confidential treatment.76 Therefore, the Commission violated 
Article 6.5 of the AD Agreement by treating this  information as confidential. The European Union 
asserts that the information at issue was by nature confidential77 and was also submitted on a 
confidential basis78 by Pooja Forge. The European Union also submits that Pooja Forge showed 
good cause79 for the confidential treatment of this information, which the Commission assessed 
and accepted.80 Therefore, the Commission did not act inconsistently with Article 6.5. 
7.36.  China's argument is two-tiered. China fi rst alleges a violation of Article 6.5 of the 
AD Agreement on the grounds that the Commission erred in treating the information on the list 
                                               
70 European Union's response to Panel question No. 9. 
71 European Union's first wr itten submission, para. 41. 
72 China's responses to Panel question Nos. 3 and 9. 
73 In addition to the fact that the two claims at issue are not the same, we note that, in the review 
investigation, a fair amount of exchange of views took place between the Commission and the Chinese producers with respect to the confidentiality of the information regarding the list and characteristics of Pooja Forge's products. These discussions between the Commission and the Chinese producers, which we cite in paragraphs 7.70-7.74 below, demonstrate that the issue of the disclosure of information regarding the list and characteristics of Pooja Forge's products constituted an important aspect of the review investigation. This, 
in turn, indicates that this particular issue was closely related to the debate regarding the consistency of the measure taken by the European Union to comply with the DSB recommendations and rulings following the original proceedings. In our view, this reinforces the view that the present claim falls within our terms of reference. 
74 China's first written submission, para. 106; and China's second written submission, paras. 25–40. 
75 China's first written submission, paras. 107 and 120; and China's second written submission, 
para. 42. 
76 China's first written submission, paras. 109–121; and China's second written submission, 
paras. 43-51. 
77 European Union's first writ ten submission, paras. 43-48. 
78 Ibid. para. 49. 
79 Ibid. paras. 50-53. 
80 European Union's second written submission, para. 42. WT/DS397/RW 
 
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  and characteristics of Pooja Forge's products as confidential. China's second allegation is that 
should we find that the Commission's confidential treatment of that information was consistent with the requirements of Article 6.5, the Commission acted inconsistently with Article 6.5.1 by failing to ensure that Pooja Forge submitted a non-confidential summary in sufficient detail to 
permit a reasonable understanding of the information submitted in confidence. In terms of the 
order of our evaluation, we will first assess the alleged violation of Article 6.5. If we find a violation of Article 6.5, we will not address the alleged violat ion of Article 6.5.1. If, however, we do not find 
a violation of Article 6.5, we will evaluate the claim under Article 6.5.1. 
7.37.  We find it useful to start out by noting that there is no disagreement between the parties as 
to the applicability of the disciplines in Article 6. 5 to the information submitted by Pooja Forge. The 
European Union does not submit that Article 6. 5 does not apply to information submitted by 
Pooja Forge by virtue of that entity not bein g a "party" to the investigation. In fact, the 
European Union clearly states that, in its view, "the obligations under Article 6.5 of the AD Agreement also apply in the case of analogue country producers".
81 
7.38.  China alleges a violation of Article 6.5 on tw o grounds: first, the information on the list and 
characteristics of Pooja Forge's products was neit her by nature confidential nor submitted on a 
confidential basis; and, second, no good cause was shown to justify the confidential treatment of 
this information. These two aspects of the Article 6.5 claim are very closely related; indeed, in 
practice, they go hand in hand. When an interested party submits confidential information to an IA, it explains why the information is to be kept confidential. In turn, a showing of good cause naturally encompasses the underlying aspect that the information being submitted is confidential. 
Under the circumstances, we see no need to break the claim into the two components referred to 
by China and will assess this claim in a holistic fashion, with a focus on the more inclusive issue of good cause. 
7.39.  The European Union disagrees with China's allegation that good cause was not shown to 
justify the confidential treatment of the informatio n on the list and characteristics of Pooja Forge's 
products. In support of this argument, the Europe an Union states generally that disclosing such 
information could have given an advantage to Pooja Forge's competitors and could have caused 
adverse effects to the company.
82 In response to China's objection that such arguments represent 
a posteriori  justification and that good cause must be  shown by the party seeking confidential 
treatment, the European Union contends that the determination of good cause is the IA's task.83 In 
this regard, the European Union relies on the Appellate Body's findings in the original dispute, 
particularly its statement that good cause "must be assessed and determined objectively by the investigating authority".
84 
7.40.  We do not agree with the EU's interpretation of the Appellate Body's findings at issue. In the 
original proceedings in this dispute, the Appellate  Body pointed out that the requirement to show 
good cause applies both to information that is by nature confidential and information submitted on 
a confidential basis. It also indicated that the good cause that has to be shown "must demonstrate 
the risk of a potential consequence, the avoidance of which is important enough to warrant the non-disclosure of the information." The Appellate Body stressed that claim of good cause has to be assessed objectively by the IA and that it canno t be simply based on the subjective concerns 
raised by the party submitting  the confidential information.
85 Importantly, the Appellate Body 
distinguished between the role of the party submitti ng confidential information and that of the IA: 
In practice, a party seeking confidential treatment for information must make its 
"good cause" showing to the investigating authority upon submission of the 
information. The authority must objectively assess the "good cause" alleged for 
confidential treatment, and scrutinize th e party's showing in order to determine 
whether the submitting party has sufficiently substantiated its request. In making its 
assessment, the investigating authority must seek to balance the submitting party's interest in protecting its confidential information with the prejudicial effect that the non-disclosure of the information may have on the transparency and due process 
                                               
81 Ibid. para. 45. 
82 European Union's first writ ten submission, paras. 50-54. 
83 European Union's second written submission, para. 40. 
84 Ibid. para. 39. 
85 Appellate Body Report, EC – Fasteners (China) , para. 537. WT/DS397/RW 
 
- 26 - 
 
  interests of other parties involved in the investigation to present their cases and 
defend their interests. The type of eviden ce and the extent of substantiation an 
authority must require will depend on the nature of the information at issue and the particular "good cause" alleged. The obligation remains with the investigating 
authority to examine objectively the justification given for the need for confidential 
treatment. If information is treated as co nfidential by an authority without such a 
"good cause" showing having been made, the authority would be acting inconsistently 
with its obligations under Article 6.5 to grant such treatment only "upon good cause 
shown". (footnote omitted, emphasis added) 
7.41.  We note that this interpretation makes a clear distinction between the role of a party 
seeking confidential treatment of information and that  of the IA receiving such a request. It is for 
the IA to require the party submitting the confidential information to show good cause – that is, to 
show the reasons why the information deserves to be treated as confidential. Once the reasons have been provided by the submitting party, the IA is under an obligation to assess them 
objectively, and thereby determine whether the party has shown good cause for treating the 
information as confidential. We therefore disagree with the European Union that the determination 
of good cause lies with the IA. It is rather the a ssessment of good cause claimed by the submitting 
party that lies with the IA. 
7.42.  In support of its argument that Pooja Forg e showed good cause to justify the confidential 
treatment of the information at issue, the European Union also refers
86 t o  a n  e m a i l  f r o m  
Pooja Forge, dated 3 July 2012, which reads: 
Kindly note that the list of the products sold by Pooja Forge cannot be provided 
because this information if disclosed, will give advantage to our competitor.87 
7.43.  China submits that this email should not be taken into consideration by the Panel because it 
was not part of the investigation record.88 The European Union disagrees.89 We recall that, 
pursuant to Article 17.5(ii) of the AD Agreement, we have to make our findings on the basis of the facts contained on the record of the investigation at issue. Following our meeting with the parties, 
we asked them a question in order to clarify this matter. In response, the European Union stated 
that this email was part of the confidential file, but not the public file. China submitted an index
90 
of the review investigation dated 9 July 2012, which also includes the contents of the confidential file, but it does not list this email. The European Union submitted a full index of the review 
investigation dated 25 April 2013, which does list this email as a confidential document concerning 
the dumping aspect of the investigation submitted by Pooja Forge on 12 July 2012.
91 
7.44.  There is no explanation on the record as to  why this email was treated as confidential by the 
Commission. The European Union does not explain what information contained in this email was 
treated as confidential and on what basis. In fa ct, the email itself simply conveys Pooja Forge's 
assertion that disclosing its information would give an advantage to its competitors. Therefore, it is 
not clear to us why it was placed on the confidenti al file. It is clear, however, from the documents 
presented to the Panel that this email was not on the public file which the Chinese producers could have consulted. In our view, this is where the pr oblem lies. Placing the email on the confidential 
file rather than the public one deprived the Chin ese producers of the opportunity to know of this 
argument made by Pooja Forge and eventually to respond to it during the course of the review 
investigation. In any case, we also think that, in terms of its contents, the email does not seem to support the argument that Pooja Forge provided g ood cause to justify confidential treatment of 
Pooja Forge's information. It is no more than a bald assertion on the part of Pooja Forge. 
7.45.  We asked the European Union to explain to  the Panel, on the basis of the record of the 
investigation at issue, the manner in which any confidentiality requirement by Pooja Forge was 
                                               
86 See, for instance, European Union' s first written submission, para. 42. 
87 E-mail from Pooja Forge to the European Commission dated 3 July 2012, (Exhibit EU-2). 
88 See, for instance, China's second written submission, para. 46; and China's opening statement, 
para. 19. 
89 European Union's second written submission, paras. 43-44. 
90 Index of the file in the review investigation concer ning the anti-dumping measures in force on imports 
of certain iron or steel fasteners originating in the People's Republic of China, (Exhibit CHN-4). 
91 Full index of the review investigation generated on 25 April 2013, (Exhibit EUR-7), p. 2. WT/DS397/RW 
 
- 27 - 
 
  assessed by the Commission. In response, the European Union states that the investigation record 
does not contain "much" about this: 
To recall, the confidentiality of Pooja Forge's product range was a non-issue in the 
original investigation. The Chinese exporting producers never contested this aspect of 
the investigation; nor did China take issue with this aspect of the original investigation 
in the original panel proceedings. Hence, there is not much explicit reference to the European Commission's assessment of Pooja Forge's request in the file of the original 
investigation.
92 
7.46.  In our view, this admission leaves no doubt that the Commission never performed "an 
objective assessment" on whether the information was confidential by nature or whether good cause had been shown to justify its confidential  treatment as required under Article 6.5 and 
elaborated by the Appellate Body in the original  proceedings. In our view, the duty to perform 
such an assessment was not dependent upon whether or not the underlying issue was contested by the Chinese producers in the investigation. Lack of such contestation by the Chinese parties 
could not be an excuse for the absence of any assessment by the Commission on this matter. 
7.47.  The European Union maintains, however, that because the issue of confidentiality did arise 
in the review investigation, the steps taken by the Commission in this respect in the review 
investigation are a good proxy of how this issue was treated during the original investigation. In 
this regard, the European Union refers to Pooja Forge's email dated 3 July 2012, which, as already 
noted, we do not consider sufficient to constitute  an objective showing of good cause to justify 
confidential treatment of information. 
7.48.  Before leaving the issue of confidentiality, we would like to underline an inconsistency in the 
EU's arguments. While the EU's main argument un der the present claim is that the information on 
the list and characteristics of Pooja Forge's products was confidential, in connection with China's 
claim under Articles 6.4 and 6.2, which we address below, the European Union maintains that 
some of this information was disclosed to the Chinese producers. For instance, the European Union contends
93 and, as noted in paragraph 7.74 below, the record shows that, through a letter dated 
5 July 2012, the Commission provided the Chinese producers with information regarding the 
characteristics of Pooja Forge's products, in particular on coating and diameter. Similarly, as noted in paragraph 7.91 below, the European Union also asserts that through the final disclosure, the Commission disclosed information on the characteristics of Pooja Forge's products. In our view, 
these contradictions also undermine the EU's contention that the information at issue was 
confidential and that good cause was shown to keep it as confidential. 
7.49.  Before concluding our analysis of Article 6.5, we note that, as part of its argumentation 
under this claim, China submitted, in Exhibit CHN-51, a price list which purportedly belonged to 
Pooja Forge and was extracted from the public doma in. This exhibit was first introduced during the 
Panel's substantive meeting with the parties and su bsequently submitted in the attachment to the 
written version of China's oral statement. During the meeting and in its written comments on 
China's response to the Panel's question on th is matter, the European Union expressed concern 
about the authenticity of this document and stated that it might have been obtained illegally and disclosed without Pooja Forge's permission. The European Union therefore requested that this 
document not be used in the context of WTO di spute settlement. The European Union added that, 
in any case, this exhibit did not support China's arguments under this claim.
94 In our evaluation of 
this claim, we did not use the price list presente d in Exhibit CHN-51. We therefore need not, and 
do not, address the issue of the admissibility of this document as evidence in these proceedings. 
7.2.5.2.1  Conclusion 7.50.  On the basis of the foregoing, we find th at the Commission failed to act consistently with 
Article 6.5 of the AD Agreement by treating as confidential the information submitted by 
Pooja Forge regarding the list and characteristics of its products. Having found a violation of Article 6.5 with respect to the confidential treatmen t of this information, we need not, and do not, 
                                               
92 European Union's response to Panel question No. 6.b. 
93 European Union's first written submission, para. 184. 
94 European Union's comment on China's response to Panel question No. 2. WT/DS397/RW 
 
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  make a finding with respect to China's claim under Article 6.5.1 of the AD Agreement concerning 
the non-confidential summary of the same information. 
7.51.  We wish to note that by finding a violation of Article 6.5 of the AD Agreement with respect 
to the confidential treatment of the information regarding the list and characteristics of 
Pooja Forge's products, we do not necessarily say that such information was not of a confidential 
nature. In fact, the standard of review that we have to follow in these proceedings would not allow us to make such a conclusion since this would have been a de novo  review. Our finding only 
indicates that, in according confidential treatment to this information, the Commission failed to 
observe the obligations set forth in Article 6.5. We should also note that, in light of our finding under this claim, where relevant in the following parts of this Report, we will consider the information on the list and characteristics of Pooja Forge's products as not requiring confidential 
treatment within the meaning of Article 6.5 of the Agreement. 
7.3  Alleged violations of Articles 6.4 and 6.2 of the AD Agreement 7.3.1  Legal provisions at issue 
7.52.  Article 6.4 of the AD Agreement reads: 
6.4 The authorities shall whenever practicable provide timely opportunities for all 
interested parties to see all information that is relevant to the presentation of their 
cases, that is not confidential as defined in paragraph 5, and that is used by the 
authorities in an anti-dumping investigat ion, and to prepare presentations on the 
basis of this information. 
7.53.  Article 6.2 of the AD Agreement provides: 
Throughout the anti-dumping investigation all interested parties shall have a full 
opportunity for the defence of their interests.  To this end, the authorities shall, on 
request, provide opportunities for all interested parties to meet those parties with 
adverse interests, so that opposing views may be presented and rebuttal arguments 
offered. Provision of such opportunities mu st take account of the need to preserve 
confidentiality and of the convenience to th e parties. There shall be no obligation on 
any party to attend a meeting, and failure to do so shall not be prejudicial to that 
party's case. Interested parties shall also have the right, on justification, to present other information orally. 
7.54.  Article 6.2 of the DSU provides: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In case the applicant requests the establishment of a panel with other than 
standard terms of reference, the written re quest shall include the proposed text of 
special terms of reference. 
7.3.2  Arguments of parties 
7.3.2.1  China 7.55.  China submits that by failing to provide opportunities to the Chinese producers to see the 
information regarding the list and characteristics of  products sold by Pooja Forge, which were used 
in the determination of the normal value, the European Union violated its obligation under 
Article 6.4 of the AD Agreement. In this regard, China notes the requirements on which this obligation is conditioned and argues that all those conditions were met in this case: first, the fact 
that the Chinese producers repeatedly requested to see the information concerning the lists and 
characteristics of Pooja Forge's products shows that  they found such information to be "relevant" 
to the presentation of their cases; second, the information that the Chinese producers requested WT/DS397/RW 
 
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  to see was "not confidential" within the meaning of Article 6.5 of the Agreement; and third, the 
information at issue was "used" by the Commission in this review investigation.95 
7.56.  China argues that by failing to provide the Chinese producers with the information on the 
list and characteristics of Pooja Forge's products, the European Union also violated Article 6.2 of 
the Agreement. This aspect of China's claim is two-tiered. First, China contends that the violation 
of Article 6.4 also led to a violation of Article 6.2. Second, China maintains that, even if there is no violation of Article 6.4, the European Union in any case violated Article 6.2 by not allowing the 
Chinese producers to access information on the list and characteristics of Pooja Forge's products 
that the Chinese producers needed for the defence of their interests.
96 
7.3.2.2  European Union 7.57.  The European Union raises two sets of jurisdictional objections to China's claim under 
Articles 6.4 and 6.2 of the AD Agreement. First, the European Union asserts that this claim could 
have been but was not raised by China in the original proceedings. In the EU's view, this claim pertains to an unchanged aspect of the original determination that was incorporated into the 
measure taken to comply with the DSB rulings and recommendations, and that it is separable from 
the measure taken to comply. Therefore, the Europe an Union contends that this claim falls outside 
the Panel's terms of reference altogether.
97 Second, should we disagree with the first jurisdictional 
objection, the European Union asserts that China expanded the scope of the dispute in respect of 
this claim as far as the list of products is concerned. Specifically, the European Union contends that whereas in its panel request China raises the claim under Articles 6.4 and 6.2 "with regard to, inter alia , the products sold by the Indian producer", in its first written submission, China takes 
issue with Pooja Forge's internal company codes and product description text strings which, unless 
the internal reference to match the item codes is  obtained from Pooja Forge, "do not say much" 
about the products sold by this company.
98 Therefore, argues the European Union, the Panel 
should refrain from addressing the part of China's claim that takes issue with the list of products.99 
7.58.  On the substance of China's claims, the Eu ropean Union contends that the three conditions 
set forth in Article 6.4 that must be met in order to give rise to the obligation regarding 
information that interested parties must have timely opportunities to see, were not met in this 
review investigation. As for the first condition, namely the relevancy of the information, the European Union argues that a list of 80,000 transactions, including internal item codes and the company product description text strings, could not be relevant to the presentation of the Chinese 
producers' cases. In the EU's view, what was relevant was the information on the characteristics of 
the products sold by Pooja Forge, and which was used in the determination of the normal value. This information was disclosed by the Commission to these producers.
100 Second, the 
European Union maintains that the information at issue was confidential; therefore, it did not fall 
within the scope of the obligation set forth in Article 6.4.101 Third, the Commission did not use all 
the raw data provided by Pooja Forge regarding its sales in India. For instance, it did not use the 
internal item codes. Whatever information th e Commission used was disclosed to the Chinese 
producers. Specifically, the European Union notes that, together with the final disclosure, the Chinese producers received detailed dumping margin calculations where they could see the export transactions that were matched with the Indian producer's normal value.
102 For these reasons, the 
European Union requests the Panel to reject China's claim under Article 6.4. 
7.59.  On the basis of the same substantive ar guments, the European Union also requests the 
Panel to reject China's claim under Article 6.2. In the EU's view, the Panel cannot find a violation 
                                               
95 China's first written submission, paras. 139-142. 
96 Ibid. paras. 150-154. 
97 European Union's response to Panel question No. 1. 
98 European Union's first written submission, para. 63;  and European Union's se cond written submission, 
para. 60. 
99 European Union's first wr itten submission, para. 63. 
100 Ibid. paras. 65-68. 
101 Ibid. para. 69. 
102 European Union's first writ ten submission, paras. 70-71. WT/DS397/RW 
 
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  of Article 6.2 if it finds that there is no violation of Article 6.4, since the Article 6.2 claim is entirely 
consequential to the Article 6.4 claim.103 
7.3.3  Arguments of third parties 7.60.  The United States  considers that the ability of an interested party to defend its interests in 
an anti-dumping investigation is particularly important with respect to the information on the 
calculation of the normal value and the price comp arisons made by the IA. Article 6.4 requires an 
IA to provide access to all non-confidential information on the investigation file that an interested 
party finds relevant to the presentation of its case. Failure to observe this obligation would violate 
not only Article 6.4 but also Article 6.2 of the Agreement, which requires that interested parties be given a full opportunity for the defence of their interests.
104 The United States takes no position as 
to whether treating the information at issue as confidential was consistent with the requirements 
of Article 6.5. However, to the extent that such  treatment was inconsistent with Article 6.5, the 
United States contends that it would have to be disclosed pursuant to Article 6.4.105 The 
United States adds that even if the information provided by Pooja Forge could not be disclosed in 
full, if the Commission relied on that information an d if the Chinese producers needed to see it in 
order to defend their interests, Article 6.2 required the Commission to adopt some sort of mechanism that would give the Chinese producers such an opportunity.
106 
7.3.4  Evaluation by the Panel 
7.61.  In our assessment of the present claim, we will first address the EU's jurisdictional 
objections. Specifically, we will first examine the EU's argument that this claim falls outside our terms of reference because it could have been but was not raised in the original proceedings. If we 
reject this objection, we will then assess the EU's  second jurisdictional objection, namely that the 
part of China's claim regarding the list of Pooja Forge's products falls outside our terms of reference because it was not identified in China' s panel request. We will then proceed with our 
assessment of the claim on its merits, the scope of which will depend upon our finding regarding 
the EU's second jurisdictional objection. If we re ject the EU's second jurisdictional objection, our 
substantive assessment will cover information on both the list and characteristics of Pooja Forge's 
products. If, however, we accept that objection,  our substantive assessment will cover only the 
information on the characteristics of those products. 
7.3.4.1   Terms of reference of the Panel 7.62.  As noted above, the European Union makes two jurisdictional objections. First, it argues 
that this claim falls outside our terms of reference altogether because it could have been but was 
not raised in the original proceedings, and it pertains to an unchanged aspect of the original measure and is separable from the measure taken to comply. Second, it contends that the part of 
the claim pertaining to the list of Pooja Forge' s products falls outside our terms of reference 
because it was not identified in China's panel request. We will examine these two objections in turn. 
7.3.4.1.1  Is this a claim that could have been but was not raised in the original 
proceedings? 
7.63.  In the EU's view, China's claim under Articles 6.4 and 6.2 pertains to unchanged aspects of 
the original measure which were incorporated into the measure taken to comply but which are 
separable from it; therefore, this claim falls outside this compliance Panel's terms of reference.
107 
7.64.  We note that the jurisdictional issue that arose in US – Zeroing (EC) (Article 21.5 – EC)  and 
which the Appellate Body addressed in its report was the extent to which new claims, i.e. claims 
not raised in original proceedings, may be raised in compliance proceedings. In the original 
proceedings of that dispute, which also concerne d anti-dumping measures, the complainant raised 
                                               
103 European Union's second written submission, para. 68; and European Union's first written 
submission, paras. 73-74. 
104 United States' written su bmission, paras. 21-22. 
105 Ibid. para. 23. 
106 Ibid. para. 24. 
107 European Union's response to Panel question No. 1. WT/DS397/RW 
 
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  claims regarding the so-called "zeroing" methodology.108 In the compliance proceedings, the 
complainant raised a claim regarding an alleged arithmetical error in the IA's dumping calculation, which was not related to zeroing, and which had not been raised in the original proceedings.
109 The 
compliance panel found that this claim was outside its terms of reference because it pertained to 
an unchanged aspect of the original measure and could have been but had not been raised in the 
original proceedings.110 
7.65.  The Appellate Body disagreed, noting that its jurisprudence on this matter, on which the 
panel had relied, "does not preclude raising new claims against measures taken to comply that 
incorporate unchanged aspects of original measures that could have been made, but were not made, in the original proceedings".
111 The Appellate Body noted that, in principle, claims that could 
have been but were not pursued in the original proceedings may not be brought in compliance 
proceedings. However, the Appellate Body stressed that this does not preclude bringing new 
claims against unchanged aspects of the original measure which are incorporated in the measure taken to comply and which are not separable from it.
112 According to the Appellate Body, 
therefore, the critical question for the complianc e panel in that dispute was "whether the alleged 
arithmetical error was an integral part of the measure taken to comply".113 However, because of a 
lack of factual findings by the panel and of  undisputed evidence on the panel record, the 
Appellate Body was not able to complete the analysis of the complainant's claim in that dispute.114 
7.66.  The Appellate Body's reasoning applies to situations where the complainant brings a claim in 
compliance proceedings, which it could have brought but did not bring in original proceedings and that such claims challenge aspects of the measure taken to comply that are incorporated from the 
original measure. Where the measure taken to comply incorporates an aspect of the original 
measure which could have been but was not challenged in the original proceedings and such aspect is an integral part of the measure taken to comply, the Appellate Body's reasoning explains 
that claims may be brought against such aspect in compliance proceedings. If, however, that 
aspect of the original measure is not an integral part of the measure taken to comply, claims against such an aspect will fall outside the compliance panel's terms of reference. 
7.67.  Applying this jurisprudence to the claim before us, we have to consider first whether the 
present claim is one that could have been but was not brought in the original proceedings. If we find that it could not have been brought in the original proceedings, we will conclude that this 
claim falls within our terms of reference. If we find that it could have been brought in the original 
proceedings, we will then determine whether this  claim challenges an unchanged aspect of the 
original measure which has become an integral part of the measure taken to comply. If so, this claim will fall within our terms of reference, otherwise it will not. 
7.68.  In deciding whether this claim could have been brought by China in the original 
proceedings, we have to take into account the factual circumstances in the review investigation under which the claim was raised and examine to what extent such circumstances also existed in 
the original investigation. We recall that the obligations contained in Articles 6.4 and 6.2 concern 
the interested parties' right to see the information on the investigation file and to defend their interests on that basis. Such procedural obligati o n s  m a y  b e  v i o l a t e d  b y  a n  I A  i n  r e s p e c t  o f  a  
r e q u e s t  m a d e  b y  a n  i n t e r e s t e d  p a r t y  t o  s e e  a  p a r t i c u l a r  p i e c e  o f  i n f o r m a t i o n ,  o r  t o  m a k e  a  
presentation on a particular issue. Such violations could occur multiple times during an 
investigation, depending on the piece of information that an interested party requests to see or the presentation that such a party wishes to make for the defence of its interests. Therefore, an 
assessment of whether or not two sets of claims raised under these two provisions are the same 
requires a comparison of the factual circumstances under which the relevant interested party made a request to use these procedural rights, which was denied by the IA. With this in mind, let 
us now turn to the facts before us. 
                                               
108 Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.243. 
109 Ibid. para. 8.238. 
110 Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.239. 
111 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 427. 
112 Ibid. para. 432. 
113 Ibid. para. 434. 
114 Ibid. para. 439. WT/DS397/RW 
 
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  7.69.  In the original proceedings, China presented a claim under Articles 6.4 and 6.2 challenging 
the Commission's failure to let Chinese producers see information regarding (i) Pooja Forge's product types; (ii) the Commission's normal value determinations; and (iii) the comparison between the normal value and the export price. With  respect to the first aspect, the original panel 
found a violation of Articles 6.4 and 6.2.
115 With respect to the second and third aspects, the panel 
rejected China's claim.116 On appeal, the Appellate Body upheld the original panel's finding of 
violation with respect to the first aspect.117 Importantly, the scope of China's claim did not include 
the information on the list and characteristics of Pooja Forge's products in particular. 
7.70.  In the review investigation, the Commission took steps to implement the 
DSB recommendations and rulings stemming from the violations of Articles 6.4, 6.2 and 2.4 of the AD Agreement in connection with the Chinese producers' right to see the information on 
Pooja Forge's product types. The record shows th at this triggered a series of communications 
between the Commission and the Chinese producers which seem to have given rise to the present claim. 
7.71.  The notice of initiation of the review investigation states, in this regard, that: 
[T]he Commission intends to re-disclose to all interested parties that participated in 
the fasteners investigation more precise information regarding the product 
characteristics which were found to be pertinent in the determination of the normal 
value that was used in the comparison with the product concerned.
118 
7.72.  To this end, the Commission conveyed to the Chinese producers, through a letter dated 
30 May 2012, information regarding the determination of normal values in the original 
investigation. The attachment to this letter expl ains the process of the determination of normal 
values. It describes the characteristics of product control numbers (PCN) on the basis of which the Commission initially requested information from interested parties and the reasons why the Indian 
producer was unable to present its information on the basis of such characteristics.
119 
7.73.  Thereafter, the Chinese producers wrote to the Commission, arguing that the disclosure was 
insufficient and seeking further information, including regarding the Indian producer's products. A 
letter dated 12 June 2012, sent on behalf of two Chinese producers, asserts that "[t]he disclosure 
of 30 May 2012 … does not provide any information wh atsoever as regards the type of products of 
the Indian producer that were used for the de termination of the dumping margin[]" and seeks 
more information on the "precise and detailed char acteristics" of the product types sold by the 
Indian producer. This letter also makes more detailed and specific comments about "chrome" and 
"chrome on coating" used in such product types.120 Another letter, dated 19 June 2012 and sent 
on behalf of China Chamber of Commerce for Import & Export Machinery & Electronic Products, 
complains, among other things, that "by merely disclosing the criteria used for creating the 
categories which were used to determine the no rmal value, the Commission fails to give the 
appropriate information to the parties on the products or product groups".121 
7.74.  In response to these letters, the Commission stated, in an email sent on 26 June 2012, that 
"the models" sold by the Indian cooperating producer were provided to the Commission on a confidential basis and could not be disclosed".
122 In subsequent letters addressed to the 
Commission, the Chinese producers underlined the difficulty of making requests for adjustments 
without having information about the products sold by the Indian producer and reiterated their 
request for further information about the characteristics of such products.123 Following these 
                                               
115 Panel Report, EC – Fasteners (China) , paras. 7.494-7.495. 
116 Ibid. paras. 7.497 and 7.501. 
117 Appellate Body Report, EC – Fasteners (China) , para. 527. 
118 Notice of initiation of the review investigation, (Exhibit CHN-2), p. 30. 
119 Letter of the Commission to interested parties in cluding the disclosure document concerning normal 
value, 30 May 2012 (Commission's letter of 30 May 2012), (Exhibit CHN-5). 
120 Letter on behalf of Changshu to the Commissi on, 12 June 2012 (Changshu letter), (Exhibit CHN-8), 
p. 5. 
121 Letter on behalf of CCCME to th e Commission, 19 June 2012 (CCCME letter), (Exhibit CHN-7), p. 7. 
122 Email of the Commission concerning Biao Wu and CCCME, 26 June 2012 (Commission's email of 
26 June 2012), (Exhibit CHN-11), para. 2.3. 
123 Submission on behalf of Changshu, 25 June 2012,  (Exhibit CHN-13), pp. 2-3 and Submission on 
behalf of Ningbo Jinding, 25 June 2012, (Exhibit CHN-14), p. 2. WT/DS397/RW 
 
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  exchanges, the Commission, through a letter dated 5 July 2012, provided further information 
regarding the characteristics of Pooja Forge's products, in particular on coating and diameter.124 
The review regulation notes the fact that some exporting producers "requested further clarifications and information in order to be able to make a possible request for adjustments to 
their own dumping margin" with respect, among others, to "characteristics of the products sold by 
the Indian producer used for the determination of the normal value".
125 The review regulation 
states that "…for confidentiality reasons, it is not possible to disclose the exact types of model of 
screws and bolts sold by the Indian producer".126 
7.75.  In our view, these facts show that what gave rise to the present claim was the 
communications that were exchanged between th e Commission and the Chinese producers with 
respect to access to information regarding characteristics of Pooja Forge's products. Such 
communications were triggered by the Commission's disclosure, through its letter dated 
30 May 2012, of further information to the Chinese producers regarding the determination of normal values in the original in vestigation. As we note in paragraphs 7.112-7.114 below, in the 
original investigation, there were no discussions with respect to the Chinese producers' request to 
access information on the list and characteristics of Pooja Forge's products. As a result, no claim was raised in the original proceedings under Articles 6.4 and 6.2 with respect to the Chinese 
producers' right to access the mentioned information. 
7.76.  In this regard, we note the EU's statement that: 
The disclosure of the product types used fo r the normal value determinations of the 
Chinese interested parties (i.e. the revised PCNs) is indeed a new element of the 
measure taken to comply; in contrast, the information relating to Pooja Forge's 
products is an element that remained unchanged (the European Commission did not 
reopen it, no new evidence was provided  by Pooja Forge and the confidential 
treatment remained the same) in the review investigation, and that the 
European Commission treated in a separabl e manner from the "product types" or 
"product grouping" discussion.127 (emphasis added) 
7.77.  This statement confirms our understanding of the facts. The Commission had in its 
possession certain information on the list and characteristics of Pooja Forge's products. Part of such information, which had not been provided to the Chinese producers in the original investigation, was provided for the first time in the review investigation. As we noted above, it is 
this disclosure of new information that triggered further discussions between the 
Chinese producers and the Commission, which ultimately gave rise to the present claim. 
7.78.  If an interested party is not aware of the existence of certain information on the 
investigation record, it cannot make a request to see that information or make presentations on 
that basis to defend its interests. Naturally, no claim of violation of Articles 6.4 or 6.2 may be brought in connection with such information. We  are persuaded therefore that the present claim 
does not challenge an aspect of the original measure which was incorporated into the measure 
taken to comply.  
7.79.  We also note that, in anti-dumping investigations, the disclosure of certain information may 
trigger further requests by interested parties to s ee other information on the record or to challenge 
certain aspects of the IA's determinations which they might not have been in a position to 
challenge in the absence of the disclosed information. This is what happened in this case. Following the Commission's disclosure of information on normal values, which was not disclosed in 
the original investigation, the Chinese producers made repeated requests to see the information on 
the list and characteristics of Pooja Forge's products, the rejection of which gave rise to the present claim. Therefore, we disagree with the EU's  contention that this claim could have been but 
was not raised by China in the original proceedings. 
                                               
124 Letter of the Commission to interested parties, 5 July 2012, (Exhibit CHN-15). 
125 Review regulation, (Exhibit CHN-3), recitals 54 and 54(b). 
126 Ibid. recital 57. 
127 European Union's comment on China's response to Panel question No. 1. WT/DS397/RW 
 
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  7 . 8 0 .   O n  t h i s  b a s i s ,  w e  r e j e c t t h e  E U ' s  f i r s t  j u r i s d i c t i o n a l  o b j e c t i o n .  I n  l i g h t  o f  t h i s  f i n d i n g ,  w e  
need not, and do not, determine whether this clai m challenges an unchanged aspect of the original 
measure which has become an integral part of the measure taken to comply. 
7.3.4.1.2  Adequacy of China's panel request 
7.81.  The EU's second jurisdictional objection is that the aspect of China's claim pertaining to the 
list of Pooja Forge's products falls outside our terms of reference because it was not identified in China's panel request in these compliance proceedings. Specifically, the European Union contends 
that "item codes" and "product description text strings" are not covered by China's panel request. 
The European Union therefore submits that the Pa nel should limit its examination of the present 
claim to the characteristics of Pooja Forge's products.
128 China disagrees with the European Union, 
arguing that the wording of its panel request is sufficiently wide to cover the claim it raised under 
Articles 6.4 and 6.2.129 
7.82.  Article 7.1 of the DSU provides that a panel's terms of reference are determined by the 
complainant's panel request.130 Therefore, the panel request identifies the claims that a panel has 
authority to examine and on which it may make findings.131 According to Article 6.2 of the DSU, a 
panel request must identify the specific measures at issue  and must provide a brief summary of 
the legal basis of the complaint . Together, these two elements comprise the "matter referred to 
the DSB", which forms the basis for a panel's terms of  reference under Article 7.1 of the DSU. It is 
important that the panel request include these elemen ts for two reasons. First, it defines the scope 
of the dispute. Second, it serves the due process  objective of notifying the parties and third parties 
of the nature of a complainant's case.132 Article 6.2 of the DSU also applies to compliance 
proceedings under Article 21.5 of the DSU, subjec t to the particularities of such proceedings.133 In 
this regard, therefore, compliance proceedings are similar to original proceedings: the "matter" at issue in compliance proceedings consists of: (i) the specific measure at issue, as identified in the 
panel request; and (ii) the legal basis of the complaint, i.e. the claims, as set forth in the panel 
request.
134 
7.83.  Turning now to China's panel request, we note that it reads in pertinent part: 
Articles 6.4 and 6.2 of the AD Agreement because the EU failed to provide to the 
Chinese interested parties a full opportunity for the defence of their interests and because the EU did not provide timely oppo rtunities for them to see all information 
that was not confidential as defined in Article 6.5, that was relevant to defend their 
interests and that was used by the authority in the anti-dumping investigation with 
regard to, inter alia , the products sold by the Indian producer[]135 (italic in original, 
underlining added) 
7.84.  The panel request alleges violations of Articles 6.4 and 6.2 on the grounds that the 
European Union failed to provide the Chinese interested parties with an opportunity to see all information with regard to, inter alia , the products sold by Pooja Forge. Thus, the panel request 
clearly refers to information pertaining to the pr oducts sold by Pooja Forge. Further, the request 
refers to "all information" pertaining to such products. 
                                               
128 European Union's response to Panel question No. 14.a. 
129 China's second written submission, para. 67. 
130 Article 7.1 of the DSU reads: 
Panels shall have the following terms of refe rence unless the parties to the dispute agree 
otherwise within 20 days from the establishment of the panel:  "To examine, in the light of the relevant provisions in (name of the covered 
agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)." 
131 Appellate Body Report, EC – Selected Customs Matters , para. 131. 
132 Appellate Body Report, Brazil – Desiccated Coconut , p. 20. 
133 Appellate Body Report, US – FSC (Article 21.5-EC II) , para. 59. 
134 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 78. 
135 WT/DS397/18, p. 3. WT/DS397/RW 
 
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  7.85.  The claim that China raised before this Pane l pertains to the "list and the characteristics" of 
the products sold by Pooja Forge. The European Union argues that because of the alleged deficiency in China's panel request, the part of the present claim taking issue with "the list of products" is outside the Panel's terms of reference. That is, the European Union maintains that the 
reference to "all information" regarding the products sold by Pooja Forge did not suffice to put the 
European Union on notice that China's claim stemming from this part of the panel request could take issue with the list of the products sold by Pooja Forge. We consider that this argument 
represents an overly restrictive interpretation of China's panel request.
136 We find it reasonable 
that a complaining party can raise a claim regarding the list of products sold by a company if the complainant's panel request refers to "all information" regarding the products sold by that company. 
7.86.  On this basis, we also reject the EU's second jurisdictional objection and proceed with an 
assessment of China's claim on its merits. 
7.3.4.2  Assessment of the claim on the merits 
7.87.  China's claim has two aspects - one under Ar ticle 6.4 and the other under Article 6.2 of the 
AD Agreement. In connection with Article 6.4 of the Agreement, China submits that the Commission violated this provision by failing to provide timely opportunities to the Chinese 
producers to see the information regarding the list and characteristics of Pooja Forge's products. 
We note at the outset that the information at issue here is the same information that is the object of China's claim under Articles 6.5 and 6.5.1, which we assessed above. 
7.88.  We recall that the obligation under Article 6.4 applies to information that meets 
three conditions: first, the information has to be relevant to the presentation of the interested 
parties' cases; second, it should not be confidential within the meaning of Article 6.5 of the Agreement; and third, it must have been used by the IA.
137 We have already found that there was 
no evidence before the Commission justifying conf idential treatment of the information on the list 
and characteristics of Pooja Forge's products an d thus that the Commission acted inconsistently 
with Article 6.5 of the Agreement in according confidential treatment to that information. 
Accordingly, for purposes of the present claim, we treat that information as not confidential within 
the meaning of Article 6.5. This means that the second condition is met. 
7.89.  With respect to the first condition, we recall that the question of whether or not information 
is relevant has to be answered from the perspective of the interested parties requesting to see the 
information, not from the IA's perspective.138 In paragraphs 7.70-7.74 above, we cited the many 
instances where the Chinese producers requeste d to see the information on the list and 
characteristics of Pooja Forge's products and note d that such requests were not granted on the 
grounds of confidentiality. Indeed, the European Union does not contest that the Chinese 
producers did request to see the information at issu e and that it was not provided to them. To us, 
these requests show that the Chinese producers found this information to be relevant to the 
presentation of their cases. Further, the nature of the information at issue underlines its relevance 
to the presentation of the Chinese producers' cases. These producers made repeated requests to see this information because it concerned the determination of their normal values, which, together with export prices, determined the dumping margins that the Commission would calculate 
for the Chinese producers. It goes without saying that dumping calculations are one of the most 
important aspects of an anti-dumping investigation. Thus, we consider that the first condition is also met. 
7.90.  Turning now to the third condition, we recall that whether information was "used" by the IA 
does not depend on whether the IA specifically relied on that information in its determinations. The information should be considered as having been used by the IA if it pertains to "a required step" 
in an anti-dumping investigation.
139 As we have mentioned, the information at issue had to do with 
the determination of normal values in the calculation of dumping margins for the Chinese 
                                               
136 In this regard, we note that the Appellate Body in EC – Computer Equipment  found significant the 
use of the word "all" in the complainant's panel request, in finding certain claims to be within the panel's terms of reference. Appellate Body Report, EC – Computer Equipment , para. 72. 
137 Appellate Body Report, EC – Tube or Pipe Fittings , para. 142. 
138 Ibid. para. 145. 
139 Appellate Body Report, EC – Tube or Pipe Fittings , para. 147. WT/DS397/RW 
 
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  producers. Dumping calculations being one of  the fundamental steps of an anti-dumping 
investigation, it seems clear to us that the information at issue was used by the Commission in this review investigation. In our view, therefore, the third condition is also met in this case. 
7.91.  Finally in this regard, we note the EU's argument that the information on the characteristics 
of Pooja Forge's products was disclosed to the Chinese producers.
140 The European Union refers to 
both the general and company-specific final disclosures made to the Chinese producers in order to satisfy the obligation set forth under Article 6.9 of the AD Agreement.
141 We note that Article 6.9 
requires the disclosure of essential facts under consideration which form the basis for the decision 
whether to apply definitive measures. It requires that such disclosure take place "before a final 
determination is made". Hence, a disclosure under Article 6.9 occurs towards the end of an investigation, before the final decision is made. We therefore consider that the final disclosure was 
too late to afford the Chinese producers an appropriate opportunity to use the information in the 
presentation of their cases. In this sense, the Chinese producers were not provided with "timely 
opportunities" to see the information, as Article 6. 4 requires. Nor does the European Union seek to 
argue that the final disclosure at issue was made to satisfy the requirements of Article 6.4. Hence 
this argument does not affect our assess ment of this aspect of China's claim. 
7.92.  On the basis of the foregoing, we conclude that the Commission violated Article 6.4 of the 
AD Agreement by failing to provide the Chinese producers with timely opportunities to see the 
information on the list and characteristics of Pooja Forge's products, which information was not confidential within the meaning of Article 6.5, an d which was relevant to the presentation of the 
Chinese producers' cases and used by the Commission. 
7.93.  The second aspect of China's claim concerns  Article 6.2 of the AD Agreement. China argues 
that by failing to provide the Chinese producers wi th timely opportunities to see the information on 
the list and characteristics of Pooja Forge's products, the Commission violated the obligation set 
forth in Article 6.2 of the AD Agreement. China's argument in this regard is two-fold. First, China 
maintains that by violating Article 6.4, the Commission also violated Article 6.2. Second, independently from this consequential argument, China contends that failure to provide timely 
opportunities to see the information at issue was in violation of Article 6.2 on its own account. 
7.94.  We have found that the Commission violated  Article 6.4 of the AD Agreement by failing to 
provide the Chinese producers with timely opportunities to see the information on the list and characteristics of Pooja Forge's products. Accessing  this information potentially would have allowed 
the Chinese producers to request adjustments to their normal values, determined on the basis of 
Pooja Forge's prices, or to their export prices. Th erefore, we do not see how the Chinese producers 
could be considered to have had full opportunity to defend their interests, within the meaning of 
Article 6.2, without first seeing this information. 
7.95.  We recall the important link between the obligations under Articles 6.4 and 6.2, underlined 
by the Appellate Body in EC – Tube or Pipe Fittings : 
One of the stated objectives of the disclosure of information required under Article 6.4 
is to allow interested parties "to prepare presentations on the basis of this information". The "presentations" referred to in Article 6.4, whether written or oral, logically are the principal mechanisms through which an exporter subject to an anti-
dumping investigation can defend its interests. Thus, by failing to disclose 
Exhibit EC-12 and thereby depriving the Br azilian exporter of an opportunity to 
present its defense, the European Communities did not act consistently with 
Article 6.2.
142 
7.96.  Guided by the Appellate Body's finding, we find that by not allowing the Chinese producers 
to see the information on the file regarding the list and characteristics of Pooja Forge's products, 
the Commission also violated the obligation laid down in Article 6.2. 
                                               
140 European Union's first wr itten submission, para. 66. 
141 Ibid. para. 81; and European Union's response to Panel question No. 18.a. 
142 Appellate Body Report, EC – Tube or Pipe Fittings , para. 149. WT/DS397/RW 
 
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  7.4  Alleged violation of Article 6.1.2 of the AD Agreement 
7.4.1  Legal provisions at issue 7.97.  Article 6.1.2 of the AD Agreement provides: 
Subject to the requirement to protect confid ential information, evidence presented in 
writing by one interested party shall be made available promptly to other interested 
parties participating in the investigation. 
7.98.  Article 6.11 of the AD Agreement reads: 
6.11 For the purposes of this Agreement, "interested parties" shall include: 
i. an exporter or foreign producer or the importer of a product subject to 
investigation, or a trade or business association a majority of the 
members of which are producers, exporters or importers of such product; 
ii. the government of the exporting Member; and 
iii. a producer of the like product in the importing Member or a trade and 
business association a majority of the members of which produce the like 
product in the territory of the importing Member. 
This list shall not preclude Members from allowing domestic or foreign parties other 
than those mentioned above to be included as interested parties. (emphasis added) 
7.4.2  Arguments of parties 7.4.2.1  China 7.99.  China argues that by failing to ensure  that the information provided by Pooja Forge 
concerning the list and characteristics of its products was made available promptly to the Chinese 
producers, the European Union acted inconsistently with the obligation set forth in Article 6.1.2 of 
the AD Agreement. China reiterates its view that the information regarding Pooja Forge's products sold in the Indian market was not confidential within the meaning of Article 6.5.
143 China maintains 
that Pooja Forge was an interested party in this investigation and that therefore the obligation set 
forth in Article 6.1.2 does apply to the informat ion submitted by this company. In this regard, 
China acknowledges that producers in a third country do not appear in the list of interested parties 
in Article 6.11 of the AD Agreement. However, give n that Pooja Forge actively participated in this 
investigation and provided a significant amount of information, it had an interest in the investigation and should therefore be considered as an interested party.
144 
7.100.  China also maintains that by finding in the original proceedings that the obligation under 
Articles 6.5 and 6.5.1 apply to the information submitted by Pooja Forg e, the Appellate Body 
meant that Pooja Forge should be treated as an "interested party".145 
7.4.2.2  European Union 
7.101.  The European Union maintains that China' s claim under Article 6.1.2 of the AD Agreement 
could have been but was not raised in the original proceedings. The European Union asserts that this claim relates to an unchanged aspect of the original determination that was incorporated into 
the measure taken to comply with the DSB rulings and recommendations, and that it is separable 
from the measure taken to comply. Therefore, the European Union contends that this claim falls outside the Panel's terms of reference.
146 
                                               
143 China's first written submission, para. 164; second written submission, para. 88. 
144 China's first written submission, paras. 165-169. 
145 China's response to Panel question No. 17. 
146 European Union's response to Panel question No. 1. WT/DS397/RW 
 
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  7.102.  The European Union also disagrees with this claim on substance. The European Union 
contends that Pooja Forge was not an interested party in the review investigation at issue. In the EU's view, the Appellate Body in the original proceedings stated that the obligations set forth in Articles 6.5 and 6.5.1 apply to the information pr ovided by Pooja Forge, not that Pooja was an 
"interested party" in the sense of Article 6.11 of the Agreement.
147 In the review investigation at 
issue, the Commission did not designate Pooja Forge as an interested party although it could have 
done so under Article 6.11 of the AD Agreement.148 It follows that the obligation under 
Article 6.1.2 does not apply in respect of the information provided by Pooja Forge. 
7.103.  Further, the European Union reiterates that the information at issue was confidential and 
that therefore there was no obligation to make it available to the Chinese producers. It also 
repeats the argument that the information about the characteristics of Pooja Forge's products sold 
in the Indian market and which was used by the Commission in determining the normal value was 
disclosed to the Chinese producers.149 Therefore, the European Union requests the Panel to reject 
this claim. 
7.4.3  Arguments of third parties 
7.104.  The United States  notes that transparency is an important element of anti-dumping 
proceedings and that it requires that all inform ation on the record of a proceeding be made 
available to all interested parties. However, the United States does not share China's view that a 
party that submits information to the IA in the context of an anti-dumping investigation should be considered as an interested party for purposes  of Article 6.1.2 of the AD Agreement. The 
United States argues that "a party that submits information to the IA" does not appear in the list 
of interested parties in Article 6.11 of the Agreement. The United States recognizes that 
Article 6.11 gives an IA discretion to treat as an interested party entities other than those listed therein, but argues that neither this provision nor the Appellate Body's interpretations cited by 
China oblige an IA to grant interested party status to entities that are not listed in Article 6.11.
150 
7.4.4  Evaluation by the Panel 7.105.  In resolving this claim, we will first address the EU's procedural objection, followed, if 
necessary, by our assessment on the merits of the claim. 
7.4.4.1  Is this a claim that could have been but was not rais ed in the original 
proceedings? 
7.106.  The European Union contends that China could have raised its claim under Article 6.1.2 in 
the original proceedings but did not do so. According to the European Union, this claim pertains to 
unchanged aspects of the original measure which were incorporated into the measure taken to 
comply but which are separable from it, and that therefore it falls outside this compliance Panel's 
terms of reference.
151 
7.107.  The EU's jurisdictional objection is the same as that raised with respect to China's claim 
under Articles 6.4 and 6.2 of the AD Agreement, which we have assessed above. In order to avoid 
repetition, we incorporate by reference our underst anding, in paragraphs 7.64-7.66 above, of the 
Appellate Body's findings in US – Zeroing (EC) (Article 21.5 – EC)  and apply it mutatis mutandis  to 
the EU's objection with respect to the present claim. 
7.108.  Applying the Appellate Body's jurisprudence to the claim before us, we have to first 
consider whether the present claim is one which could have been but was not brought in the 
original proceedings. If we find that it could not have been brought in the original proceedings, we will conclude that this claim falls within our terms of reference. If we find that it could have been 
brought in the original proceedings, we will then determine whether this claim challenges an 
unchanged aspect of the original measure which has become an integral part of the measure taken to comply. If so, this claim will fall within our terms of reference, otherwise it will not. 
                                               
147 European Union's first wr itten submission, para. 78. 
148 European Union's second written submission, para. 76. 
149 European Union's first writ ten submission, paras. 80-81. 
150 United States' written su bmission, paras. 25-30. 
151 European Union's response to Panel question No. 1. WT/DS397/RW 
 
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  7.109.  China's claim is that the Commission viol ated Article 6.1.2 of the AD Agreement by not 
making the information submitted by Pooja Forge ab out the list and characteristics of its products 
available promptly to the Chinese producers. Arti cle 6.1.2 stipulates that evidence presented in 
writing by one interested party has to be made available promptly to other interested parties 
participating in the investigation. However, this obligation is subject to the requirement to protect 
confidential information. Thus, Article 6.1.2 on ly requires the disclosure of non-confidential 
information presented by an interested party. Further, under Article 6.1.2, evidence presented in 
writing by an interested party has to be made available "promptly" to other interested parties 
participating in the investigation. Promptness implies that this obligation has to be fulfilled relatively quickly by the IA. We recall, for instance, that the panel in Guatemala – Cement II  
stated that a 20-day delay did not meet the promptness requirement of this provision.
152 
7.110.  We also note that the obligation under Article 6.1.2 applies to "evidence presented in 
writing" by one interested party. Typically, interested parties present evidence in writing to the IA at different stages of an investigation and on different issues that are relevant to the IA's 
determinations. For instance, questionnaire responses are submitted by foreign producers within 
the deadline given by the IA; responses are also submitted to any supplementary questionnaires that the IA may send; domestic producers have to present in writing the information requested by 
the IA, which may or may not be sought by means of a questionnaire; other interested parties, 
such as producers and associations of producers, may also submit evidence in writing concerning 
various aspects of the investigation. In our view, the obligation under Article 6.1.2 applies on a submission-specific basis; this is only logical given the nature of such investigations, which usually 
involve several requests for information from several sources and at different times. In other 
words, each time evidence is submitted in writ ing to the IA, Article 6.1.2 requires that such 
evidence be made available "promptly" to other interested parties participating in the 
investigation. 
7.111.  In the present dispute, the evidence presented in writing which China argues was not 
made available to the Chinese producers is the information regarding the list and characteristics of 
Pooja Forge's products.
153 As noted in paragraph 7.9 above, the list of Pooja Forge's products was 
presented to the Commission in the DMSAL file provided during the verification visit conducted in 2008 in the context of the original investigation. As for the evidence regarding the characteristics 
of Pooja Forge's products, it was submitted in the DMSAL file and in certain other documents 
presented to the Commission during the original investigation and the review investigation. It is 
undisputed that these pieces of evidence were no t made available to the Chinese producers during 
the original investigation or the review investigation. 
7.112.  With regard to the evidence concerning the list and characteristics of Pooja Forge's 
products that was submitted in the course of the original investigation, it should have been made available promptly after their presentation during that investigation, provided, of course, that the 
other conditions set forth in Article 6.1.2 were me t. We note, however, that during the original 
investigation, the Chinese producers were not aware of this information. China maintains that the Chinese producers were informed of the presence of the information at issue through the explanation provided by the Commission in its note for the file dated 11 July 2012.
154 
7.113.  This note does indeed suggest that certain information regarding Pooja Forge's products 
was being brought to the Chinese producers' attention for the first time. It reads in relevant parts: 
Subject: Reclassification of normal  value from one producer in India 
The purpose of this note is to further explai n the evolution of the classification of the 
normal value, based on the domestic sales of one producer in India. 
1. ORIGINAL SUBMISSION 
The company provided a domestic sales listing ('DMSAL') without PCNs. The only 
identifier of each sale was an Item Code, which was an internal code for each product, and a product description text string… 
                                               
152 Panel Report, Guatemala – Cement II , para. 8.142. 
153 China's response to Panel question No. 16. 
154 China's first written submission, para. 100. WT/DS397/RW 
 
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  … 
4. COMMENTS TO THE FIRST DISCLOSURE Interested parties made reference to the lack of comparison on the basis of coating, 
diameter and length of the fastener and argued that this might have an effect on the 
level of the normal value originally calculated. 
4.1. Diameter and length In the absence of the PCN, the Description  text string of each transaction…was 
analysed to extract the diameter and length of the fastener sold: 
… 
To ensure matching between the normal valu e and the export price, we then ranged 
the diameter and length into three equal ba nds, as set out in the second disclosure 
letter of 5 July 2012: 
… 4.2. Coating 
It is clear from the example above that th e product description text string does not 
include any information on the coating used by the Indian domestic producer. 
The investigation file was therefore checked fo r any evidence of the type of coating, if 
any, used by the Indian producer for their [ sic] sales of standard fasteners on their 
[sic] domestic market. 
Confidential evidence in the file, verified at  the premises of the Indian producer shows 
the use of electroplating (PCN type A) on standard fasteners on the domestic market 
and this was disclosed to all parties on July 5. 
The website of the Indian producer Pooja Forge confirms the existence of their [ sic] 
facilities for electroplating ….155 (emphasis added) 
7.114.  The note starts by saying that its purp ose is to further explain the evolution of the 
classification of the normal value, based on Pooja Forge's domestic sales. It also notes that interested parties took issue with the lack of co mparison on the basis of such characteristics as 
coating, diameter and length of the fasteners and argued that these factors might affect the level 
o f  t h e  n o r m a l  v a l u e .  I t  t h e n  p r o v i d e s  i n f o r m a t i o n  o n  s u c h  f a c t o r s .  T h i s  n o t e  s u g g e s t s  t h a t  information on product characteristics, such as diameter, length and coating was being provided to the Chinese producers for the first time in the investigative process. Indeed, the European Union 
also acknowledges that the information at issue was submitted during the original investigation 
and that it was only disclosed to the Chinese producers during the review investigation.
156 It 
follows that without the Chinese producers being aware of the information on the list and 
characteristics of Pooja Forge's products, China could not have brought a claim under Article 6.1.2 
in the original proceedings to challenge the Commission's failure to provide that information promptly to the Chinese producers. We also recall that Pooja Forge provided information on 
coating during the review investigation.
157 China could not have brought a claim under 
Article 6.1.2 in the original proceedings with respect to the disclosure of this information. 
7.115.  On this basis, we find this claim to be  within our terms of reference in these compliance 
proceedings and proceed with our assessment of the cl aim on its merits. In light of this finding, we 
                                               
155 Note for the file on the reclassification of norm al value from one producer in India, 11 July 2012, 
(Exhibit CHN-17), pp. 1-3. 
156 European Union's response to Panel question No. 18.c. 
157 Email exchanges between the Euro pean Commission and Pooja Forge during the review investigation 
in 2012 (BCI), (Exhibit EU-6). WT/DS397/RW 
 
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  need not, and do not, determine whether this clai m challenges an unchanged aspect of the original 
measure which has become an integral part of the measure taken to comply. 
7.4.4.2  Assessment of the claim on its merits 7.116.  China argues that the Commission violated Article 6.1.2 by not making the information on 
the list and characteristics of Pooja Forge's produc ts available promptly to the Chinese producers. 
Underlying China's claim are the arguments that: (i) the information at issue was not confidential; and (ii) Pooja Forge was an interested party in the investigation at issue. The European Union 
disagrees with both arguments, contending that the information was confidential and that 
Pooja Forge was not an interested party in the investigation. As noted in paragraph 7.51 above, in light of our finding that the Commission violated Article 6.5 of the Agreement in treating the information on the list and characteristics of Pooja Forge's products as confidential, we are 
proceeding on the basis that it has not been established that this information had to be treated as 
confidential. Therefore, the only remaining issue is  whether Pooja Forge was an interested party in 
the review investigation at issue. If we find that it was, we will find a violation of Article 6.1.2; 
otherwise we will reject China's claim. 
7.117.  We recall that Article 6.11 of the AD Agr eement defines "interested party" for purposes of 
the AD Agreement. The definition consists of two parts. The first part, which stipulates what 
"interested parties shall include" for purposes of the AD Agreement, contains a list of entities that 
an IA must treat as an interested party, by virtue of the use of the word "shall". The word "include" in the chapeau indicates that this list is not exhaustive. The second part of Article 6.11 is 
permissive; it stipulates that a Member is not pr ecluded from allowing entities other than those 
explicitly listed in the first part of the provision to be included as interested parties in a given 
investigation. 
7.118.  There is no dispute between the parties that  Pooja Forge, an analogue country producer, is 
not one of the entities listed in the first part of Article 6.11. China submits, however, that, given its 
active participation in the investigation, and the significant amount of information it provided, Pooja Forge was an interested party in this investigation. We note that the second part of 
Article 6.11 does not state that a party that subm its significant information to the IA or that 
participates actively in an investigation automatically becomes an "interested party". Rather, it conditions the acquisition of "interested party" status on a decision by the IA. 
7.119.  In stating that Members are not precluded from allowing other domestic or foreign parties 
not mentioned in the earlier part of Article 6.11 to  be included as interested parties, the second 
part of Article 6.11 implies in our view that if an IA so wishes, it may allow an entity, such as an analogue country producer or another party, to participate in an investigation as an interested 
party. Although not stated explicitly in Article 6.11, it is logical to assume that such decision 
normally would be made at the request of the party in question. Arguably, such party would request to be included as an interested party in a given investigation if it expects to be affected by 
the outcome of the investigation. This is because gaining "interested party" status creates not only 
obligations, but also rights for such parties. One obligation that the Agreement imposes on interested parties is the preparation of a non-confidential summary of confidential information presented to the IA. Similarly, when the IA requ ests information from an interested party, the 
latter must provide it; otherwise, the consequences laid down in Article 6.8 of the Agreement will 
follow. As for the rights that stem from "interested party" status, we note, among others, the right to have a full opportunity for the defence of its in terests under Article 6.2, and the right to see the 
non-confidential information on the investigation file, pursuant to Article 6.4. To us, this shows 
that the decision to allow a party not specifically listed in Article 6.11 to be included as an interested party is an important one such that it is likely to appear on the investigation record. 
This was not the case in the dispute before us. Nowhere in the record is it indicated that the 
Commission decided to include Pooja Forge as an "interested party" in this investigation. We 
therefore find that Pooja Forge was not an "interes ted party" in this investigation and therefore the 
obligation set forth under Article 6.1.2 of the Agre ement did not arise with respect to the evidence 
provided by this company. 
7.120.  China asserts that, in connection with it s assessment of China's claim under Articles 6.5 
and 6.5.1 in the original proceedings, the Appellate Body found that Pooja Forge was an 
"interested party" in the original investigation. China argues, however, that the Appellate Body did WT/DS397/RW 
 
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  so implicitly, not explicitly.158 In this regard, China refers to the following findings in 
paragraph 540 of the Appellate Body's report: 
… Article 6.5 does not limit the protection afforded to sensitive information to the 
"interested parties" expressly listed under Article 6.11 of the Anti-Dumping 
Agreement . In our view, the term "parties to an investigation" refers to any person 
who takes part or is implicated in the investigation. Moreover, Article 6.11 does not contain an exhaustive list of "interested parties", but states that "'interested parties' 
shall include " the persons or groups listed in that Article. In our view, the persons 
expressly listed in Article 6.11 are those who are in every case considered to be "interested parties", but are not the only persons who may be considered "interested parties" in a particular investigation. We do not believe that an investigating authority 
is relieved of its obligations under Article 6.5 merely because a participant in the 
investigation does not appear on the list of "interested parties" in Article 6.11.
780 
Rather, once "good cause" is shown, confidential treatment of sensitive information 
must be afforded to any party who takes part or is implicated in the investigation or in 
the provision of information to an authority. Pursuant to Article 6.5 such parties include persons supplying information, persons from whom confidential information is 
acquired, and parties to an investigation. 
_______________ 
780 … In our view, the decision by the Commission to determ ine normal value based on 
information from an analogue country producer, and the participation of Pooja Forge in the 
investigation, require that Pooja Forge be afford ed the protection of sensitive information upon 
"good cause" shown and the obligations of both Articles 6.5 and 6.5.1 apply.159 (two footnotes 
omitted, emphasis added)  
7.121.  With respect to the findings in the body  of paragraph 540 of the Appellate Body's report, 
China maintains that by noting that parties other than those listed in Article 6.11 may also be 
considered as interested parties, the Appellate Bo dy "appears to take the view that this was the 
case of Pooja Forge in the fasteners investigation".160 We disagree. First, the Appellate Body's 
statement merely repeats what the second part of Article 6.11 of the AD Agreement stipulates. Second, we note that the Appellate Body makes this statement, en passant ,  a s  p a r t  o f  i t s  
reasoning regarding the scope of the obligation set forth in Article 6.5 of the Agreement, which 
concerns the protection of confidential information. 
7.122.  China points to the Appellate Body's statement in footnote 780 above and argues that 
through this statement, "the Appellate Body conf irmed that Pooja Forge should be treated as an 
'interested party' although not listed on the list of Article 6.11".
161 We do not read the Appellate 
Body's finding in the same way. Again, the Appella te Body's statement in this footnote concerns 
the scope of the obligation under Article 6.5, not the issue of whether or not Pooja Forge was an 
interested party in the original investigation. All that the Appellate Body says is that the Commission had to accord the protection provided for in Articles 6.5 and 6.5.1 of the AD Agreement to the information provided by Pooj a Forge. In our view, this statement alone does 
not suffice to conclude that Pooja Forge was an interested party in the original investigation, or 
that the Appellate Body considered that it was. 
7.123.  On the basis of the foregoing, we reject China's claim under Article 6.1.2 of the 
AD Agreement on substance. 
7.5  Alleged violation of Article 2.4 of the AD Agreement: failure to provide information 
to enable Chinese exporters to request adjustments 
7.5.1  Legal provision at issue 
7.124.  Article 2.4 of the AD Agreement reads in relevant part: 
                                               
158 China's response to Panel question No. 17. 
159 Appellate Body Report, EC – Fasteners (China) , para. 540. 
160 China's response to Panel question No. 17. 
161 Ibid. WT/DS397/RW 
 
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  A fair comparison shall be made between th e export price and the normal value. This 
comparison shall be made at the same level of  trade, normally at the ex-factory level, 
and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in conditions and terms of sale, taxation, levels of 
trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability… The authorities shall indicate to the 
parties in question what information is nece ssary to ensure a fair comparison and shall 
not impose an unreasonable burden of proof on those parties. (footnote omitted) 
7.5.2  Arguments of parties 7.5.2.1  China 
7.125.  China argues that by failing to prov ide the Chinese producers with the information 
concerning the characteristics of the products sold by Pooja Forge in the Indian market, the Commission violated Article 2.4 of the AD Agreement. In this regard, China distinguishes between 
two types of product characteristics, namely, (i) characteristics affecting price comparability 
identified in the original PCNs and which have been partially taken into account by the Commission, and (ii) characteristics affecting price comparability not identified in the original PCNs 
and which have not been taken into account by the Commission. 
7.126.  As far as product characteristics that were identified in the original PCNs and partially 
taken into account by the Commission are concerned, China cites four specific characteristics, namely, (i) diameter and length, (ii) types of fasten ers, (iii) coating, and (iv) chrome. With respect 
to diameter and length, China contends that in the review investigation the Commission initially 
indicated that it would not take diameter and length into account because this characteristic was 
not considered to be relevant to the price comparison. Later, however, the Commission indicated 
that it extracted this information from the text st ring of sales coding provided by Pooja Forge, and 
took it into account in the determination of normal value. China notes that the Commission took diameter and length into account in terms of ranges, as opposed to actual numbers, and argues 
that it should have taken them into account fully. China also maintains that the Commission 
should have provided this information in full to the Chinese producers because this was essential for these producers to substantiate their requests for adjustments.
162 With respect to types of 
fasteners, China argues that the information prov ided by Pooja Forge included types of fasteners 
sold by this company in the Indian market but that such information was not provided to the 
Chinese producers, in violation of Article 2.4. China emphasises that such information was essential for the Chinese exporters to be in a posi tion to request adjustments and to substantiate 
their requests for adjustments.
163 China also argues that the Commission noted that the 
information provided by Pooja Forge indicated that  adjustments may be needed for the differences 
between various types of fasteners.164 China further argues that the categorisation according to 
type of fasteners on the basis of CN codes is insufficient, as within a single CN code, significant 
differences may exist.165 With regard to coating, China argues that, in the review investigation, the 
Commission initially indicated that Pooja Forge had not provided any information on the type of coating. Later, however, it pointed out that Pooj a Forge's products used for the determination of 
the normal value had two types of coating, namely, type A or type B. Subsequently, the 
Commission stated that Pooja Forge's domestic sales of standard fasteners were electroplated, i.e. 
that they had type A coating. Chinese producers requested to see the information on the basis of 
which the Commission came to this conclusion, which the Commission did not allow. China argues 
that failure to provide this information violated Article 2.4.
166 With respect to chrome, China 
maintains that, in the review investigation, the Commission initially provided no information 
regarding chrome, stating that there was no indication of a difference with regard to this factor. 
Later, however, the Commission stated that the in formation on chrome had been clarified and that 
the fasteners that Pooja Forge sold in the Indian market contained chrome Cr3. China argues that 
                                               
162 China's first written submission, paras. 190-194. 
163 China's second written submission, para. 116. 
164 China's first written submission, paras. 195-203. 
165 Ibid. paras. 350-355. 
166 China's first written submission, paras. 204-205. WT/DS397/RW 
 
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  the Commission came to this conclusion regarding chrome without providing any information in 
this regard to the Chinese producers and that this violates Article 2.4.167 
7.127.  As for product characteristics not identified in the original PCNs, China argues that two 
Chinese producers informed the Commission that some product characteristics other than those 
included in the original PCNs could affect price comparability, asked that these differences be 
taken into account, and asked that the Commission indicate what kind of further evidence it required regarding these factors in order to ensure a fair comparison. The factors raised by the 
Chinese producers were traceab ility; ISO 9000; unit of defective rate; and hardness, bending, 
strength impact toughness, friction coefficient.
168 The Commission rejected the Chinese producers' 
requests for adjustments on the basis that the requesting Chinese producers had not shown that these factors affected price comparability.
169 In China's view, however, in the absence of 
information about the actual characteristics of the products sold by Pooja Forge, the Chinese 
producers were not in a position to identify which one of these factors affected price comparability. China claims that, in respect of these factors, the Commission violated Article 2.4 in two ways: 
(i) by failing to inform the Chinese producers on whether any of these factors were present in the 
products sold by Pooja Forge, and if so to what extent, and (ii) by not providing further information to the Chinese producers in order to enable them to substantiate their requests for 
adjustments with regard to these factors.
170 
7.128.  China also contends that the Commission did not provide the Chinese producers with 
information regarding characteristics of Pooja Forge's products other than those reflected in the PCNs. For instance, China submits that the Chinese producers "did not know if there were 
fasteners complying with traceability requirements or with lower defective rates".
171 Therefore, 
these producers were not in a position to know whether adjustments could be requested for any other characteristic.
172 
7.129.  China adds that by failing to indicate to  the Chinese exporters the information that their 
requests should contain, the Commission acted inconsistently with Article 2.4. Further, the 
Commission imposed an undue burden on the Chinese producers by rejecting their requests for 
adjustments on the grounds that they were not based on evidence.173 
7.5.2.2  European Union  7.130.  The European Union argues that Article 2.4 only requires that interested parties be 
informed of the approach adopted by an IA on fa ir comparison, but does not require the disclosure 
of raw data provided by an interested party. No r does it require the disclosure of confidential 
information.
174 The European Union contends that, in the review investigation at issue, the 
Commission engaged in an extensive dialogue with  the Chinese producers, which led to detailed 
product categories that took into consideration ma ny of the suggestions made by such producers. 
Further, information on the characteristics of the products used in the dumping determination and information on Pooja Forge's sales of such product categories were made available to the Chinese 
producers.
175 The dialogue maintained with the Chin ese producers informed them of product 
categories used in the dumping determination.176 Further, together with the final disclosure, the 
Chinese producers received detailed dumping calculations which allowed them to see their export transactions that were matched with the normal value determined on the basis of Pooja Forge's 
sales. Chinese producers were given three weeks to comment on the disclosure and were also 
given the opportunity to request adjustments.
177 Thus, the European Union concludes that it 
complied with its obligations under Article 2.4. 
                                               
167 Ibid. paras. 206-208. 
168 Ibid. para. 209. 
169 Ibid. para. 213. 
170 Ibid. paras. 217-219. 
171 China's response to Panel question No. 23. 
172 Ibid. 
173 China's second written submission, para. 128. 
174 European Union's first wr itten submission, para. 94. 
175 Ibid. para. 95. 
176 Ibid. para. 100. 
177 European Union's first written submission, para. 104. WT/DS397/RW 
 
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  7.131.  In response to China's arguments regarding product characteristics that were included in 
the original PCNs, the European Union submits that an IA is not required "to permit interested parties to satisfy themselves of the accuracy of  the information provided by other interested 
parties or entities".
178 It is the IA's task to satisfy itself as to the accuracy of the information 
provided by interested parties and on which the IA bases its determinations.179 Further, the 
European Union notes that the actual sales information presented by Pooja Forge was confidential.
180 
7.132.  As for product characteristics not identified in the original PCNs, the European Union states 
that the Commission did review the information received from the Chinese producers regarding these factors and explained, consistently with the requirements of Article 2.4, why those requests 
were rejected. Specifically, the Commission conc luded that the requesting Chinese producers had 
not shown how these alleged factors affected price comparability. The European Union notes that 
Article 2.4 does not require an adjustment for all differences, but only for those that affect price comparability.
181 
7.5.3  Arguments of third parties 
7.133.  The United States  submits that Article 2.4 of the AD Agreement requires an IA to solicit 
information regarding what differences in physical characteristics affect price comparability. In the 
view of the United States, the transparency requir ements of Article 6 of the Agreement, reinforced 
by the last sentence of Article 2.4, require an IA to exercise transparency with respect to the 
products used in the determination of normal va lue, the considered physical differences between 
such products, and the way in which such differenc es have been taken into consideration. Failure 
to provide information regarding the products and transactions used for the normal value 
determination would deprive the interested parties of their right to defend their interests. Thus, the United States maintains that, to the exte nt the Commission fail ed to provide Chinese 
producers with information on the full range of product characteristics considered in the price 
comparisons, the European Union acted inconsistently with the obligation set forth in Article 2.4.
182 
7.5.4  Evaluation by the Panel 
7.134.  China asserts that the Commission violated Article 2.4 of the AD Agreement by failing to 
provide to the Chinese producers information on the characteristics of Pooja Forge's products 
which was used for the calculation of the normal values in the review investigation at issue and therefore failed to implement the DSB recommendat ions and rulings. The specific basis of this 
claim is the last sentence of Article 2.4, which stipulates that "[t]he authorities shall indicate to the 
parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties".
183 China identifies two types of information 
that the Commission allegedly failed to provide: (i) characteristics identified in the original PCNs 
and which have been partially taken into account by the Commission, and (ii) characteristics affecting price comparability not identified in the original PCNs and which have not been taken into 
account by the Commission. 
7.135.  We note that in its argumentation under this claim China draws heavily on the Appellate 
Body's findings in the original proceedings and requests this Panel to find a violation of Article 2.4 by following that reasoning. We therefore find it useful to start our evaluation of the present claim 
with a brief summary of how China's claim under Article 2.4 was evaluated by the panel and the 
Appellate Body in the original proceedings. We will then identify the relevant facts from the review investigation and finally decide the extent to which, if at all, the Appellate Body's findings in the 
original proceedings are pertinent to our assessment of the present claim. 
                                               
178 Ibid. para. 110. 
179 Ibid. para. 111. 
180 Ibid. para. 113; second written submission, para. 107. 
181 European Union's first written submission, paras. 115-116. 
182 United States' written su bmission, paras. 36-39. 
183 See, for instance, China's second written submissi on, para. 125: "… China takes issue with the failure 
of the Commission to provide to the Ch inese exporters the necessary informat ion in particular in light of the 
requirement of the last sentence of Article 2.4 of the AD Agreement …". WT/DS397/RW 
 
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  7.136.  In the original investigation, the Commi ssion requested dumping-related information from 
Pooja Forge and from the Chinese producers on the basis of PCNs which included six 
characteristics, namely type of fasteners (by CN code), strength/hardness, coating, presence of 
chrome on coating, diameter, and length/thickness. However, Pooja Forge did not provide its 
information on the basis of such PCNs. For this reason, the Commission used what it called 
"product types" in comparing the normal value with  the export price. "Product types" were defined 
by two factors, namely, strength class and the distinction between standard and special 
fasteners.184 The remaining factors in the original PCNs were not taken into consideration in the 
price comparison. 
7.137.  In the original dispute settlement proceedings, China brought a claim under Article 6.4, 
arguing, among other things, that the Commission had violated this provision by not allowing the 
Chinese producers to see the information on the record regarding the product types sold by 
Pooja Forge until very late in the process.185 The original panel found a violation of Article 6.4 on 
the grounds that the Commission had failed to give the Chinese producers a timely opportunity to 
see this information.186 China also raised a claim under Article 2.4, arguing, among other things, 
that the Commission had failed to consider whether adjustments needed to be made for elements of the PCNs which were not reflected in the "product types" used in price comparisons. The interim 
review section of the panel's final report shows that, in its interim report, the original panel 
rejected this claim on the grounds that during the original investigation, none of the Chinese producers had required adjustments with respect to factors other than the two factors included in "product types", which affected price comparabili ty within the meaning of Article 2.4 of the 
AD Agreement.
187 
7.138.  In its comments on the interim report, China argued that the panel had failed to take into 
consideration China's argument, under the last sentence of Article 2.4, that the Commission had 
erred by not informing the interested parties of the comparison method used and of the fact that 
the comparison was no longer made on the basis of the PCNs but on the basis of other product characteristics.
188 The original panel disagreed, noting that this argument had been raised by 
China in connection with its claims under Articles 6.2, 6.4, 6.5 and 6.9 of the AD Agreement and 
had already been addressed by the panel in that context.189 China appealed this finding by the 
original panel. The Appellate Body observed that China had not raised a separate claim under the 
last sentence of Article 2.4, but only an argument  in support of its claim that the 
European Commission had failed to conduct a fair comparison under Article 2.4. The Appellate 
Body nevertheless faulted the original panel for having failed to address China's argument  under 
the last sentence of Article 2.4 in the light of its findings under Article 6.4: 
[W]e nonetheless consider that, in the light of its findings under Article 6.4 of the 
Anti-Dumping Agreement , the Panel should have considered China's argument under 
the last sentence of Article 2.4 of the Anti-Dumping Agreement  in reaching its finding. 
As discussed above, Article 2.4 obliges investigating authorities to indicate to the 
parties what information is necessary to ensure a fair comparison and requires an investigating authority, at a minimum, to inform the parties of the products or product 
groups used for purposes of the price compar ison. This will then allow the parties to 
decide whether a request for adjustment regarding any differences affecting price 
comparability should be made.190 (emphasis added) 
[T]he Panel correctly found, in its analysis under Article 6.4, that, without knowing 
what "product types" were used by the Commission, "it would be difficult if not 
impossible, for foreign producers to request adjustments that they consider necessary in order to ensure a fair comparison." Thus, the facts of the case indicate that, 
because the Commission did not clearly indica te the product types used for purposes 
of price comparisons until very late in the proceedings, the European Union acted inconsistently with its obligations under Article 2.4 by depriving the Chinese producers 
                                               
184 Panel Report, EC – Fasteners (China) , para. 7.293. 
185 Ibid. para. 7.484. 
186 Ibid. para. 7.494. 
187 Ibid. para. 7.306. 
188 Ibid. para. 6.96. 
189 Ibid. para. 6.98. 
190 Appellate Body Report, EC – Fasteners (China) , para. 512. WT/DS397/RW 
 
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  of the ability to request adjustments for differences that could have affected price 
comparability. (footnote ommitted)191 
The Panel found, however, that the European Union acted consistently with Article 2.4 
of the Anti-Dumping Agreement . In so finding, the Panel analyzed China's claim under 
Article 2.4 in isolation from its analys is under Article 6.4 of that Agreement.192 
(emphasis added) 
7.139.  Turning to the facts presented in the review investigation at issue, we note that the 
Commission initially intended to base its dumping determination on the same two factors used in 
the original investigation, namely strength class and the distinction between standard and special fasteners. However, following the Chinese producers' comments and requests to see further information regarding Pooja Forge's products, the Commission used the so-called "revised PCNs" 
which were based on the following product characteristics: standard/special, strength class, 
coating, diameter (per ranges) and length (per ranges).
193 The composition of such revised PCNs 
was communicated to the Chinese producers. However, as noted in paragraphs 7.70-7.74 above in 
connection with China's claim under Article 6.5 of  the AD Agreement, the Commission rejected the 
Chinese producers' repeated requests to see the information regarding the characteristics of Pooja Forge's products. Thus, although the Ch inese producers knew the basis on which the 
Commission grouped the products on the normal value and the export price sides in comparing 
prices, they did not know the specific product ty pes of Pooja Forge with which their own product 
types were being compared. 
7.140.  We note that the facts underlying the present claim as well as the claim under Article 6.4, 
which we evaluated above, are very similar to the facts that underlay China's claims under 
Articles 6.4 and 2.4 in the original proceedings. Whereas in the original proceedings China based 
these claims on the Commission's failure to let the Chinese producers see the information 
regarding the "product types" of Pooja Forge, in these proceedings the claims under these 
two provisions are based on a similar contention , namely that the Commission did not provide the 
Chinese producers with information on the "charact eristics" of Pooja Forge's products. Mindful of 
the Appellate Body's guidance referred to above, we turn now to examine China's claim under the 
last sentence of Article 2.4 in light of our findings with respect to the claim under Article 6.4. 
7.141.  Above, we have found that the Commission  violated Article 6.4 of the AD Agreement by 
failing to provide the Chinese producers with timely  opportunities to see the information on the list 
and characteristics of Pooja Forge's products. Although the Chinese producers knew which product 
characteristics the Commission took into consideration in comparing the normal value with the export price, they did not know which specific  product types were being compared with one 
another. Therefore, they were not in a position  to know whether the product types were grouped 
consistently with the revised PCNs established by the Commission. Nor were they in a position to know whether, in light of the product types that were being compared, there were factors other 
than those included in the revised PCNs which could have justified further adjustments. In the 
review investigation, the Commission used revised PCNs, which contained more product 
characteristics compared to product types used in the original investigation. The fact remained, however, that the Chinese producers were still left in the dark with respect to the characteristics of 
the product types that were actually being compared. 
7.142.  In our view, this runs counter to the obligat ion set forth in the last sentence of Article 2.4. 
We recall that the last sentence of Article 2.4 ad ds a procedural requirement to the obligation to 
make a fair comparison. Whereas the exporters have to substantiate their requests for 
adjustments, the IA has first to "tell the parties what information the authority will need in order to ensure a fair comparison".
194 As the Appellate Body made clear, the IA has to inform the 
interested parties, at a minimum, of the product gr oups on the basis of which it will make the price 
comparisons.195 By failing to provide the Chinese producers with the information regarding the 
characteristics of Pooja Forge's products which were used in determining the normal value and which were then compared with the products of the Chinese producers, the Commission deprived 
                                               
191 Appellate Body Report, EC – Fasteners (China) , para. 513. 
192 Ibid. para. 514. 
193 Review regulation, (Exhibit CHN-3), recital 43. 
194 Appellate Body Report, EC – Fasteners (China) , para. 489. 
195 Ibid. para. 490. WT/DS397/RW 
 
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  these producers of the opportunity to make informed decisions on whether to request adjustments 
under Article 2.4. This, in our view, is inconsistent with the obligation set forth in the last sentence of Article 2.4. We do not see how the Chinese producers could have made requests for adjustments without having adequate knowledg e of the product types with which their own 
products were being compared by the Commission. 
7.143.  The European Union maintains that this in formation was provided to the Chinese producers 
through the Commission's final disclosure. Specifically, the European Union contends that, 
together with the final disclosure, the Chinese exporters received detailed dumping calculations in 
which they saw the export transactions that matched with Pooja Forge's normal value. The European Union argues further that: 
As can be seen in those calculations, the European Commission disclosed the 
characteristics of the products sold by Pooja Forge and which were used for the 
normal value determination of each Chinese exporter. To recall, those transactions were organised by reference to the simplified PCNs used for the purpose of making 
the dumping determination, including six letters (i.e., coating, codes A to N; chrome 
yes or no, codes P – Q; type of fastener, codes PCN 0 to 9; strength, codes A to Y; diameter, codes S, M and L; and length, codes S, M and L). When there was a match 
between export transactions and domestic transactions, this was indicated in the 
dumping calculation. Then, by looking into the specific PCN for those transactions 
(e.g. AP4GSS), the Chinese exporters could see that Pooja Forge had sold e.g. a 
standard hexagon socket head screw, with chrome, with a strength class of 8.8 and 
small diameter and length. Thus, the Chines e exporters knew about the characteristics 
of the products sold by Pooja Forge. The Chinese exporters were given three weeks to 
make comments on the disclosure, including the possibility of asking for 
adjustments.196 (footnote omitted, emphasis added) 
7.144.  We have looked at the disclosure documents referred to by the European Union.197 As 
China also argues198, however, such disclosures indicate the PCN characteristics of the products 
that were matched on the normal value and export price sides but do not indicate which models 
w e r e  b e i n g  c o m p a r e d .  T o  f o l l o w  o n  t h e  E U ' s  example, underlined in the above quote, the 
disclosure did indicate that Pooja Forge had sold e.g. a standard hexagon socket head screw, with chrome, with a strength class of 8.8 and small diameter and length. Contrary to what the 
European Union asserts, however, this does not show the characteristics of Pooja Forge's product 
with which the products of the Chinese producers were compared. It only shows how a particular product compares to each of the PCN characteristics taken into account in categorizing different 
product types. It does not show what particular model of Pooja Forge's products was being 
compared with what model sold by the Chinese pr oducers. Without seeing such product types, and 
understanding their characteristics, the Chinese producers could not, in our view, have had a 
meaningful opportunity to request adjustments. Fu rther, we do not consider that the information 
provided in the final disclosure, which conveys the essential facts under consideration with respect to the decision to impose definitive measures, and which therefore is sent to interested parties towards the end of an investigation, satisfies the requirements of Article 2.4. The Appellate Body 
has made clear that Article 2.4 imposes an obligation on the IA "to tell the parties what 
information the authority will need in order to ensure a fair comparison"
199, not what information it 
has used. 
7.145.  With respect to the EU's argument that th e information at issue was confidential, we recall 
our finding in paragraph 7.50 above that the Commission's confidential treatment of Pooja Forge's information was inconsistent with Article 6.5 of the AD Agreement. We therefore also reject the 
EU's confidentiality argument in connection with the present claim.
200 
                                               
196 European Union's second written submission, para. 65. 
197 Calculations for Biao Wu, (Exhibit CHN-44); calculations for Ningbo Jinding, (Exhibit CHN-45); and 
calculations for Changshu, (Exhibit CHN-46). 
198 See, for instance, China's second written submission, paras. 109-110. 
199 Appellate Body Report, EC – Fasteners (China) , para. 489 (emphasis added). 
200 We note, however, that even if  the information were confidential, the obligation under Article 2.4 
would still have required the IA to make some disclosure to the interested parties in order to allow them to make informed decisions about the issue of adjustments. Such disclosure would be subject to the obligations WT/DS397/RW 
 
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  7.146.  We note that in developing its arguments under this claim, China gave a detailed account 
of specific product characteristics, both those included in the original PCNs and those that were not included, in respect of which the Chinese produc ers requested information which the Commission 
failed to provide. We see these arguments as specific examples of the Commission's failure 
generally to provide information regarding the characteristics of Pooja Forge's products. Because 
we have found as a matter of fact that the Commi ssion refused the Chinese producers' requests to 
access information regarding the characteristics of Pooja Forge's products and that the information 
provided in this regard was limited to what was in the final disclosure, we need not, and do not, 
review China's arguments with respect to the Commission's failure to provide information regarding each of the characteristics of Pooja Forge's products. 
7.147.  We also note that in presenting such arguments, China sometimes contends that the 
Commission failed to make certain adjustments th at it had to make, or that the way it made 
certain adjustments was not appropriate. For inst ance, with respect to "diameter and length", 
China asserts that the Commission did not take these characteristics fully into account.
201 Because 
such assertions concern the actual adjustments made by the Commission, or lack thereof, we have 
not taken them into consideration in the context of the present claim, which concerns the Commission's alleged failure to provide information regarding the characteristics of Pooja Forge's 
products as required under the last sentence of  Article 2.4. We note that the issue of the 
adjustments that allegedly had to be made but were not made is raised under China's last claim under Article 2.4, which we examine below. 
7.148.  On this basis, we conclude that the Commission violated Article 2.4 of the AD Agreement 
by failing to provide the Chinese producers with  information regarding the characteristics of 
Pooja Forge's products that were used in determining normal values in the investigation at issue. 
7.149.  We would like to underline, however, that our finding of violation under this claim is made 
in the context of a very particular factual situation. In the investigation at issue, the Commission 
used the so-called analogue country methodology in determining normal values for the Chinese producers because the European Union considered China to be an NME. The Commission 
determined the normal values of the Chinese produc ers on the basis of the prices of Pooja Forge, 
the analogue country producer selected for this purpose. This aspect makes this investigation very different from a typical anti-dumping investigation. In a normal investigation where the normal value is based on the foreign producer's own prices, the latter can participate meaningfully in the 
dialogue envisaged under Article 2.4 aiming to en sure a fair comparison between the normal value 
and the export price. In such an investigation, the foreign producer is well positioned to make informed decisions about the adjustments that it deems necessary for a fair comparison. By 
contrast, in an investigation, such as the one before us, where the normal value information is 
obtained from a third source, an issue arises as to the foreign producer's access to that information. Fair comparison is to be carried out between two prices, namely the normal value and 
the export price. Where the IA uses the analogue  country methodology, the foreign exporter will 
be left in the dark to the extent it does not have access to the normal value information. The IA's task in such an investigation is to find ways to disclose as much information on normal value as the foreign producer would need in order to meaningfully participate in the fair comparison 
process. In other words, the IA has to endeavour to put the foreign producer on an equal footing 
with a producer in a normal investigation in terms of access to the information on the basis of which requests for adjustments may be formulated. Failure to do so would preclude the exchange 
of information from taking place and would frustrat e the purpose of Article 2.4, which is to ensure 
fair comparison between the normal value and the ex port price. We would also like to underline, 
however, that our findings under this claim should not be interpreted to mean that the last 
sentence of Article 2.4 requires an IA to suggest to exporters differences in respect of which they 
may require adjustments. That would have blurred the line between the responsibilities of an IA and the interested parties, in particular foreign producers, in the process of making a fair comparison. We only find that, given the particular factual circumstances presented in this review 
investigation, the Commission failed to observe the obligation under the last sentence of 
Article 2.4. 
                                                                                                                                               
set forth in Articles 6.5 and 6.5.1 of the AD Agreement regarding the treatment of confidential information and 
the preparation of non-confidential  summaries of such information. 
201 China's first written submission, para. 192. WT/DS397/RW 
 
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  7.6  Alleged violation of Article 2.4 of the AD Agreement: failure to ensure that price 
comparisons were made on the basis of same types of fasteners 
7.6.1  Arguments of parties 7.6.1.1  China 
7.150.  China submits that the European Union acted inconsistently with Article 2.4 of the 
AD Agreement by failing to ensure that the expo rt price of standard fasteners sold by Chinese 
producers to the European Union was compared to the normal value of standard fasteners sold by 
Pooja Forge, in the calculation of du mping margins for the Chinese producers.
202 China's claim has 
two aspects. First, China contends that the Commission failed to consider as "special" those fasteners destined for high-end applications and which were not made according to a customer drawing.
203 Second, China maintains that the Commission did not act objectively in assessing the 
accuracy of the lists of standard and sp ecial fasteners provided by Pooja Forge.204 
7.151.  Regarding the first aspect of its claim, China argues that the Commission should have 
treated as "special" fasteners destined for hi gh-end applications and which were not made 
according to a customer drawing, but failed to do so.205 China also asserts that the Commission, in 
its communications with the Chinese producers in the course of the review investigation, made ambiguous and inconsistent statements on whether or not fasteners sold to high-end users, in 
particular the automotive industry, which were not based on special customer drawing, were 
considered as standard or special fasteners in the determination of the normal value.
206 China 
recognizes that the review regulation indicates that the fasteners that Pooja Forge sold to the 
automotive industry which were not based on a customer drawing were considered as special 
fasteners and were not taken into account in the determination of the normal value, but asserts 
that these are a posteriori  justifications provided by the Commission and have no basis.207 
7.152.  Regarding the second aspect of its claim, China contends that on the basis of the evidence 
on the record, the Commission could not reasonably and objectively have concluded that the lists 
of standard and special fasteners provided by Pooja Forge were accurate. Specifically, China 
argues that the Commission could not have concluded that the distinction between standard and 
special fasteners used in the lists provided by P ooja Forge corresponded to the distinction that the 
Commission followed in this review investigation. China notes the part of the review regulation indicating that the distinction reflected in the li sts provided by Pooja Forge was based solely on 
whether or not the fasteners were made pursuant to a customer drawing, and that the 
Commission was unable to conduct an on-the-spot verification of these lists. Although the review 
regulation states that the Commission conducted walk-through tests and checked the split of the sales listings provided by Pooja Forge against an average price level of the split, China submits 
that such tests did not suffice to confirm the accuracy of those lists.
208 
7.6.1.2  European Union 7.153.  The European Union notes that China raised this claim, albeit in the injury context, in the 
original dispute, which was rejected by the original  panel. In the EU's view, the fact that in the 
original dispute this claim was raised in the injury context is immaterial because the underlying issue, i.e. the distinction between standard and special fasteners, is the same. The European Union maintains that the issue of the distinction between  standard and special fasteners represents an 
inseparable element of the original measure that did not change during the review investigation. 
The European Union also submits that China could have raised this issue in the original dispute in connection with the Commission's dumping determination, but did not do so. The European Union 
                                               
202 China's first written submission, para. 222. 
203 Ibid. para. 257. 
204 Ibid. para. 256. 
205 Ibid. para. 270. 
206 Ibid. paras. 233-249. 
207 Ibid. paras. 272-280. 
208 Ibid. paras. 285-287. WT/DS397/RW 
 
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  notes that a complainant ordinarily would not be allowed to raise before a compliance panel claims 
that it could have but did not raise in original proceedings.209 
7.154.  On substance, the European Union disagrees with both aspects of China's claim. Regarding 
the first aspect, the European Union recalls that in the original investigation, the original PCNs did 
not include the distinction between standard and spec ial fasteners. This distinction was later raised 
by the Chinese producers and the Commission took it into account because it was considered to affect price comparability. As stated in the final determination in the original investigation, 
"customer drawing" was taken as the basic difference between special and standard fasteners. 
Thus, special fasteners were fasteners "on demand", whereas standard fasteners were those that met general industry standards. Where fasteners pr oduced at the request of a customer also met 
general industry standards, they were considered as special fasteners and were not taken into 
consideration in the dumping margin calculations.
210 The Commission followed the same approach 
in the review investigation. The European Union maintains that in the review investigation, there was no ambiguity about the distinction between standard and special fasteners. The review 
regulation makes it very clear that Pooja Forge split its domestic sales into standard and special 
fasteners, based on whether or not they were ma nufactured to a customer drawing. In the EU's 
view, therefore, China's claim is based on speculation and lacks a basis on the record.
211 
7.155.  Regarding the second aspect of China's claim, the European Union contends that the 
Commission took the steps necessary to verify the accuracy of the sales listings provided by Pooja Forge in order to ensure that special fasteners were not improperly included in the list of standard fasteners. Since the fasteners sold to the automotive industry are significantly more 
expensive than standard fasteners, the Commissio n also checked the split between standard and 
special fasteners against the average price level, again to ensure that no special fasteners were 
included in the sales list of standard fasteners.  The European Union notes that the AD Agreement 
does not require an on-the-spot verification of the information submitted. The European Union 
adds that the Commission did not simply accept th e information provided by Pooja Forge at face 
value, but checked that information by a number of walk-through tests, as explained in the review 
regulation.
212 
7.6.2  Arguments of third parties 7.156.  The United States  recalls that Article 2.4 of the AD Agreement requires an IA to inform 
the interested parties of the products and transactions at issue so that they can provide relevant 
information and arguments in response. Citing the Appellate Body decision in the original dispute, 
the United States maintains that an IA must communicate to the parties, in a clear manner, what information their requests for adjustments should contain. Failure to provide clarity on this aspect 
may prevent the interested parties from defendin g their interests. Without taking any position 
about the merits of China's factual allegations, the United States presents the view that "a mere statement by an investigating authority that a certain product grouping is defined the same in both 
markets, without providing further information, is likely to be inconsistent with the requirements of 
Article 2.4".
213 
7.6.3  Evaluation by the Panel 7.157.  In resolving this claim, we will first addr ess the EU's terms of reference objection. We will 
proceed with an assessment of the claim on the merits only if we find it to be within our terms of 
reference. 
7.6.3.1  Terms of reference of the Panel 
7.158.  The European Union argues that this claim is outside our terms of reference. Early in these 
proceedings, the European Union based this assertion on the fact that this claim repeated a claim 
                                               
209 European Union's first written submission, para. 147 and footnote 110; second written submission, 
para. 118. 
210 European Union's first written submission, paras. 123 and 125. 
211 Ibid. para. 134. 
212 Ibid. paras. 149-150 and 153. 
213 United States' written submission, para. 45. WT/DS397/RW 
 
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  that was raised and rejected in the original proceedings.214 Later in the process, the 
European Union also argued that this claim could have been but was not raised in the original proceedings. 
7.159.  As noted in paragraphs 7.24-7.26 above, WTO jurisprudence suggests that claims raised in 
original proceedings, which respect to which the complainant failed to make a prima facie  case, 
may not ordinarily be raised in compliance proceedings. In the original proceedings in this dispute, China raised a claim challenging the distinction between standard and special fasteners in the 
context of the Commission's price undercutting determination. Under this claim, China argued that 
the Commission had violated Articles 3.2 and 3.1 of the AD Agreement by failing to take into 
consideration the fact that all Chinese standard fasteners which were "basic standard fasteners" simply met the relevant industry standards, whereas an important part of the standard fasteners 
produced by the EU producers were "standard-plus  fasteners" which, in addition to meeting the 
relevant industry standards, also met specific customer requirements.
215 The original panel 
rejected this claim on the grounds that China failed to show that this was indeed how the 
Commission had made its price undercutting determination.216 
7.160.  The present claim challenges the Commission 's dumping determinations. China argues that 
the Commission failed to compare the prices of Chinese standard fasteners exported to the 
European Union with the standard fasteners sold by Pooja Forge in the Indian market. By contrast, 
the claim in the original proceedings challenged the Commission's injury determination, in particular its assessment of the effects of dumped imports on the prices of the domestic industry in the European Union. The object of that claim was the alleged differences between fasteners 
exported by China to the European Union and those produced by the EU producers. These 
two claims are legally different in that one concerns the Commission's dumping determination and the other its injury determination. They are also different factually because they take issue with 
the alleged differences between different sets of fasteners. Given these important legal and factual 
differences, we do not consider these two to be the same claims and therefore reject the EU's first argument regarding our terms of reference. 
7.161.  The EU's second argument with respect to our terms of reference is that China could have 
raised the present claim in the original proceedin gs, but chose not to do so. In this regard, the 
European Union submits that the Commission followed the same approach in distinguishing between standard and special fasteners in the context of its injury and dumping determinations. 
The European Union contends that, since in the original proceedings China only brought a claim 
challenging this distinction in the injury context and it did not appeal the original panel's finding rejecting that claim, it "could legitimately understand that China was not contesting the validity of 
using the same approach in any measure taken to comply".
217 
7.162.  In paragraphs 7.64-7.66 above, we have  discussed the Appellate Body's findings in US – 
Zeroing (EC) (Article 21.5 – EC)  on the issue of whether a claim that could have been but was not 
raised in original dispute settlement proceeding s may be raised before a compliance panel. As 
noted above, in resolving this issue, we have to first consider whether the present claim is one which could have been but was not brought in the original proceedings. If we find that it could not have been brought in the original proceedings, we will conclude that this claim falls within our 
terms of reference. If we find that it could have been brought in the original proceedings, we will 
then determine whether this claim challenges an unchanged aspect of the original measure which has become an integral part of the measure taken to comply. If so, this claim will fall within our 
terms of reference, otherwise it will not. 
7.163.  As noted in paragraph 7.68 above, in examining whether the present claim could have 
been brought by China in the original proceedings, we will take into account the factual 
circumstances in the review investigation under which the claim was raised and examine the 
extent to which such circumstances also existed in the original investigation. In this respect, although the European Union contends that the di stinction between standard and special fasteners 
in the dumping context was known to the Chinese producers during the original investigation, it 
                                               
214 See, for instance, European Union's first writte n submission, para. 147; second written submission, 
para. 116. 
215 Panel Report, EC – Fasteners (China) , paras. 7.314 and 7.330. 
216 Ibid. para. 7.332. 
217 European Union's response to Panel question No. 1. WT/DS397/RW 
 
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  has not submitted any proof of such knowledge, or any evidence that a discussion took place 
between the Commission and the Chinese interested parties in the original investigation on this particular issue. In the review investigation, however, the evidence demonstrates that this issue became controversial, and triggered many exchanges between the Commission and the Chinese 
producers. 
7.164.  The notice of initiation of the review investigation states that: 
[T]he Commission intends to re-disclose to all interested parties that participated in 
the fasteners investigation more precise information regarding the product 
characteristics which were found to be pertinent in the determination of the normal value that was used in the comparison with the product concerned.
218 
7.165.  To this end, the Commission conveyed to the Chinese producers, through a letter dated 
30 May 2012, information regarding the determination of normal values in the original 
investigation. In this regard, this letter states: 
3. DETERMINATION OF NORMAL VALUE 
Normal value was determined based on the prices of the product concerned on the 
domestic market of India… 
[The analogue country producers] provided data on their domestic sales during the 
investigation period but without the full PCN requested. They however were able to 
identify the strength class of the fastener sold, and also whether that fastener was 'standard' or 'special' as defined in the final Regulation. 
The need to distinguish between standa rd and special fasteners had not been 
identified at the start of the investigation when the PCN had been created. It therefore 
does not appear in the list of characteristics in point 1 above. However the Commission noted that this distinction affected price comparability and therefore this 
data was requested from the Indian producer and was provided.
219 (footnote omitted) 
7.166.  Through a letter dated 12 June 2012, two Chinese producers responded to the 
Commission's letter and stated: 
However, it is unclear what was considered to be a 'standard' fastener and what was 
considered to be a 'special' fastener. The disclosure of 30 May 2012 refers to the fact that the cooperating producer in the analogue country was able to identify "whether 
that [sic] fasteners was 'standard' or 'special' as defined in the final Regulation" . 
Unfortunately, the final Regulation does not seem to clarify on the basis of which 
criteria fasteners were classified as either 'standard' or 'special'. This is, however, necessary to assess whether or not allowances should be made. Therefore, can the 
Commission please explain in a detailed way how the distinction between special and 
standard fasteners were made and which elements were taken into account in this 
distinction? 
Our clients are not even in a position to assess whether or not their own products are special or standard. Can the Commission please inform us of how the exported 
product of Changshu City Standard Parts Factory and Changshu British Shanghai 
International Fasteners Co. were considered (standard or special)?220 (emphasis in 
original) 
7.167.  Other Chinese producers also reacted to the Commission's letter of 30 May and sought 
clarification with respect to the distinction between standard and special fasteners: 
                                               
218 Notice of initiation of the review investigation, (Exhibit CHN-2), p. 30. 
219 Commission's letter of 30 May 2012, (Exhibit CHN-5), p. 2. 
220 Changshu letter, (Exhibit CHN-8), p. 4. WT/DS397/RW 
 
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  [T]he Commission should provide a detailed explanation of how it has distinguished 
special from standard fasteners. Which criteria have been taken into account?221 
Were the automobile fasteners manufactured by the Indian producer considered as 
special or standard fasteners …?222 
7.168.  On 21 June 2012, the Commission replied by email: 
"[S]pecial" fasteners have to conform to a particular user's design and/or 
requirements and are used in sectors such as the automotive, chemical and other high 
end industries … Nonetheless, in order to ensure a fair price comparison, these 
fasteners destined to industrial high end applications such as the automotive, earth moving, engineering, chemicals, etc. were considered as specials and not compared with the standard fasteners exported by your clients.
223 
7.169.  These discussions between the Commission  and the Chinese interested parties continued 
through the review investigation, including the hearing meetings. The review regulation also contains many references to the discussions be tween the Commission and the Chinese producers 
on this particular issue. Such references include the following: 
The statement made by the said parties according to which the Commission stated 
that 'the split of the normal value between special and standard fasteners was carried 
out, inter alia, on the basis of the names of  the customers', is therefore incomplete as 
more information regarding this issue has been provided as mentioned in the recital below.
224 
On the difference between standard and special fasteners, the Commission's note of 
13 July 2012 explained that 'it cannot be excluded that the automotive industry also 
uses standard fasteners for certain applications'. Some parties argued that the Commission considered that automotive fasteners could also have been regarded as 
standard. Such allegation is unfounded.
225 
The Chinese Chamber of Commerce and a Chinese exporting producer made similar 
claims as above regarding the possible inclusion of fasteners destined to the 
automotive sector in the normal value and, in addition, alleged that …226 
With regard to the claim concerning the absence of verification of the split made by 
the Indian producer, the Commission verified the sales listing through …227 
In particular the exporting producers raised the following issues: 
(a) the methodology by which the Indian producer had split its domestic sales into 
standard and special; 
(b) in the event that some fasteners sold to the automotive industry were considered 
as standard fasteners, an 'important adjustment' would be warranted;228 
The Commission is thus confident that standard fasteners destined to the automotive 
industry were not included in the list of standard fasteners …229 
                                               
221 Letter on behalf of Biao Wu to the Commission (Biao Wu's letter), 13 June 2012, (Exhibit CHN-6), 
p. 3. 
222 Letter on behalf of Ninbgo Jinding and Changshu to the Commission, 20 June 2012, 
(Exhibit CHN-10), p. 3. 
223 Email of the Commission concerning Ningbo Ji nding and Changshu, 21 June 2012, (Exhibit CHN-12), 
p. 1. 
224 Review regulation, (Exhibit CHN-3), recital 46. 
225 Ibid. recital 47. 
226 Ibid. recital 48. 
227 Ibid. recital 49. 
228 Ibid. recital 76. WT/DS397/RW 
 
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  The Commission considers that the information available in the file is sufficiently 
reliable to ensure that only standard fasteners were used for the determination of the normal value used for the comparison with the export prices of the said Chinese exporter.
230 
7.170.  Thus, the record shows that the issue of  the distinction between standard and special 
fasteners in the context of the Commission's dumping determinations was an important aspect of the review investigation. In fact, these communications demonstrate that the Chinese producers 
asked for, and the Commission provided, additional information regarding the distinction between 
standard and special fasteners in the dumping context. This, in turn, indicates that this particular issue was closely related to the debate regarding the consistency of the measure taken by the European Union to comply with the DSB recomm endations and rulings following the original 
proceedings. We also find it important that, as discussed below, one of China's main arguments on 
the merits of this claim is an alleged lack of clarity regarding the distinction made between standard and special fasteners in the dumping context. The Chinese producers asked various 
questions to the Commission regarding the criterion on the basis of which the Commission 
distinguished standard fasteners from special fasteners because they found this to be unclear. This reinforces our observation that the issue of the distinction between standard and special fasteners 
in the context of the Commission's dumping determinations was critical to the review 
investigation. 
7.171.  We recall that the gist of China's claim is that the Commission treated as "standard" those 
fasteners destined for high-end applications and which were not made according to a customer 
drawing, and therefore compared their prices with the prices of the standard fasteners exported to 
the European Union by the Chinese producers. We note that the record does not show any discussion that took place on this particular issue during the original investigation. In the review 
investigation, however, the Commission disclosed information about this distinction which 
triggered considerable exchange between the Comm ission and the Chinese producers. Given these 
facts, we do not see how China could have brought a claim on this issue in the original 
proceedings. We therefore conclude that the pres ent claim falls within our terms of reference and 
proceed with the assessment of the claim on the merits. In light of this finding, we need not, and do not, determine whether this claim challenges an unchanged aspect of the original measure which has become an integral part of the measure taken to comply. 
7.6.3.2  Assessment of the claim on the merits 
7.172.  We recall that in the original investigation the Commission requested dumping-related 
information from Pooja Forge and from the Chinese producers on the basis of PCNs which included 
six characteristics. The distinction between stan dard and special fasteners was not one of these 
characteristics. However, Pooja Forge did not prov ide its information on the basis of such PCNs. 
For this reason, the Commission used what it called "product types" in comparing the normal value 
with the export price. "Product types" were defi ned by two factors, namely, strength class and the 
distinction between standard and special fasten ers. The reason why the distinction between 
standard and special fasteners was taken into consideration was because the Commission found this factor to affect price comparability.
231 Because the comparison in the dumping context - that 
is, between Pooja Forge's prices and those of th e Chinese producers - was going to take into 
account the distinction between standard and special fasteners, the Commission asked Pooja Forge to provide two DMSAL files, one reporting its sale s of standard fasteners and the other reporting 
its sales of special fasteners. 
                                                                                                                                               
229 Review regulation, (Exhibit CHN-3), recital 78. 
230 Ibid. recital 99. 
231 In this regard, the definitive re gulation states, in relevant part: 
Although the distinction between standard and special fasteners was not originally part of the product type classification (product control numb ers or PCN) used in the investigation, it was 
decided after the adversarial meeting that it shou ld be added to the product characteristics being 
considered for the dumping and injury margin calculations. Given that the vast majority of the exports of the product concerned by the investigated companies were of standard products, this 
means that in most cases the comparison made are [ sic] between standard products produced in 
the PRC, the analogue country and the Communit y. Definitive regulati on, (Exhibit CHN-1), 
recital 51. WT/DS397/RW 
 
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  7.173.  China claims that the Commission failed to en sure that it compared the prices of standard 
fasteners sold by Pooja Forge with the prices of standard fasteners exported by the Chinese 
producers to the European Union. China's assertion focuses on the Commission's treatment of a specific type of fastener in determining normal values on the basis of Pooja Forge's data, namely 
fasteners destined for high-end applications and which were not made according to a customer 
drawing. 
7.174.  We understand from the arguments of the parties that, sometimes, a high-end user such 
as an automotive producer may order fasteners which, according to the definition referred to 
above, would be considered as "standard". This may occur in two different ways. First, the high-
end user may order standard fasteners but ask that  there be fewer variations within the products 
ordered. In this case, the customer makes a specific order for standard fasteners that conform to 
certain industry standards, instead of buying them from the producer's stock of that particular 
type of fastener. The producer produces the fa steners ordered and verifies that there are no 
variations from the relevant standard or fewer variations than what is allowed under the relevant 
industry norms. In other words, the fasteners sold  are standard fasteners but the producer incurs 
additional costs because of eliminating, or limi ting beyond what is allowed under the relevant 
industry norms, the variations from the standard at issue.
232 Second, a high-end user may buy 
standard fasteners without any additional requirements whatsoever. Our understanding is that the 
only factor that distinguishes such sales is the fact that the buyer is a high-end user, such as an automotive producer, rather than a traditional buyer of fasteners, such as one who engages in construction. 
7.175.  China's claim does not concern the fasteners described in the first situation above, namely 
fasteners sold to high-end users such as automotive producers, which met the customer's additional requirements. Rather, China argues that  the fasteners sold to high-end users such as 
automotive producers in the second situation described above were not treated as "special" - 
although in China's view they should have been - and were taken into account in determining the normal values for the Chinese producers. In China' s view, this is of paramount importance because 
such fasteners are more expensive than standard fasteners exported to the European Union by the 
Chinese producers.
233 It follows that if such fasteners were treated as "standard" and taken into 
consideration in determining the normal values, this would increase the resulting dumping margins. The treatment by the Commission of this  type of fasteners is the focus of the present 
claim. 
7.176.  We recall that under this claim China pres ents two main arguments, namely (i) that the 
Commission failed to consider as "special" those fasteners sold to high-end users and which were 
not made according to a customer drawing, and (ii) that the Commission did not act objectively in 
assessing the accuracy of the lists of standard and special fasteners provided by Pooja Forge. 
Below, we examine these two arguments in turn. 
7.6.3.2.1  The Commission's treatment of fasteners sold to high-end users and which 
were not made to a customer drawing 
7.177.  China contends that the Commission should have treated as "special" those fasteners 
destined for high-end applications such as automotive fasteners and which were not made to a 
customer drawing, but failed to do so. This ar gument challenges the way the Commission made 
the distinction between standard and special fasteners. 
7.178.  We note that the definitive regulation defi nes standard versus special fasteners as follows: 
Standard products are described in detail by  industry standards such as, for example, 
Deutsches Institut für Normung (DIN) or German Institute for Standardisation standards. These standards ensure that the products manufactured by different 
suppliers in different countries are essentially interchangeable from a user point of 
view. Special fasteners, on the other hand, conform to a particular user's design and/or requirements. It is also generally recognised that special fasteners tend to be used in more demanding applications such as the automotive, chemical and other 
                                               
232 European Union's response to Panel question No. 33.a. 
233 China's first written submission, para. 265. WT/DS397/RW 
 
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  industries and are, on average, significantly more expensive to produce and sell than 
standard fasteners.234 
7.179.  Thus, the definitive regulation clarifies that the distinction between standard and special 
fasteners was made on the basis of whether a fastener conformed to the relevant industry 
standards or whether it met the customers' special design or other requirements. Put simply, a 
"standard fastener" is one that conforms to the relevant industry standards, whereas a "special fastener" is one that meets a particular customer's requirements. Standard fasteners are made to 
stock and not on specific request of a customer. When an order is received for standard fasteners, 
such fasteners are taken from the stock, packaged  and shipped to the customer. Special fasteners 
are made on request, when a customer submits its own drawing or a particular specification, which the producer will have to follow.
235 This distinction between standard and special fasteners was 
maintained in the review investigation.236 
7.180.  In its opening statement at the Panel's meeting with the parties, China presented 
arguments that challenge the distinction between  standard and special fasteners used by the 
Commission: 
China submits that the fact that the existence of a customer drawing was the sole 
criterion clearly shows that the European Union has excluded high-end fasteners that 
were not made according to a customer drawing from the group of special 
fasteners.237 
China's argument is that the categorization of special fasteners on the sole basis of 
the existence of a customer drawing is improper, as it fails to ensure that all sales of 
special fasteners are excluded from Pooj a Forge's domestic sales of standard 
fasteners. The sole criterion of the existenc e of a customer drawing fails to properly 
categorize as special fasteners those that are used in high-end applications, such as 
the automotive industry, but which are not made according to a customer drawing.238 
7.181.  However, China has not explained to the Panel why a definition of standard fasteners 
based on the existence of a customer's drawing is inconsistent with the obligation to conduct a fair 
comparison between the normal value and the ex port price set forth under Article 2.4 of the 
AD Agreement. China implies that the definition of a special fastener should include criteria other than the presence of a customer's drawing, but it  does not explain what such criteria should be. 
7.182.  In the circumstances of the investigation at issue, we do not see any reason to find that 
the Commission acted in a non-objective or biased manner in adopting a definition that uses the 
existence of a customer drawing as the distinguishing criterion between standard and special fasteners. China has not explained to us why standard fasteners, which are not made to a 
customer drawing, should be treated as "special" when sold to a high-end user such as an 
automotive maker. The mere fact that the seller charges a higher price when selling such standard fasteners to automotive producers does not in our view transform a standard fastener into a 
special one. We note that it is not uncommon in the business world to charge different prices to 
different buyers for the same product. Such price differentiation does not necessarily render the products sold different from one another. We also note that under China's interpretation, the same fasteners would be considered as "standard" when sold to someone engaged in construction but 
"special" when sold to an automotive producer. We are not persuaded by this argument. 
7.183.  China also contends that, in the review investigation, the Commission's explanations 
regarding the distinction between standard and special fasteners were ambiguous. To support this 
argument, China refers to various communicati ons from the Commission which allegedly were 
inconsistent with one another.
239 From such alleged ambiguities, China concludes that the 
Commission failed "to ensure that fasteners destined for high-end applications but not made 
                                               
234 Definitive regulation, (E xhibit CHN-1), recital 50. 
235 European Union's response to Panel question No. 33.a. 
236 Review regulation, (Exhibit CHN-3), recitals 32, 33, 45 and 47. 
237 China's opening statement, para. 50. 
238 Ibid. para. 52. 
239 China's first written submission, paras. 232-252 and 261-270. WT/DS397/RW 
 
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  according to a customer drawing were considered by the parties to the investigation, in particular 
by Pooja Forge, as 'special' fasteners".240 
7.184.  We do not agree. The record shows that during the review investigation, the Commission 
explained how it distinguished between standard and special fasteners. In this regard, the review 
regulation states in relevant part: 
(47) On the difference between standard and special fasteners, the Commission's note 
of 13 July 2012 explained that 'it cannot be  excluded that the automotive industry 
also uses standard fasteners for certain applications'. Some parties argued that the 
Commission considered that automotive fasteners could also have been regarded as standard. Such allegation is unfounded. As  is clearly explained in that note, the 
Commission's statement was made in the absence of a customer list from the Indian 
producer. However, as established in the original investigation and further explained 
in section 2.7 below, for quality and commercial reasons, automotive producers 
always order fasteners which are custom designed in order to comply with that 
industry's ISO requirements. Therefore, all fasteners destined for the automotive 
sector that [ sic] are considered as 'special' products by fasteners producers, including 
in India, according to information found on the websites of Indian automotive 
producers. Since the Indian producer clearl y defined as 'special fasteners' all parts 
manufactured to a custom design, the Commission considers that standard fasteners 
destined to the automotive industry were no t included in the list of standard fasteners 
provided during the original investigation.241 (emphasis added) 
7.185.  The review regulation addresses the specific argument made by the Chinese producers 
that the Commission might have treated as "standard" fasteners sold to automotive producers and explains why such argument is misplaced. The regulation conveys the Commission's finding that 
automotive producers always order fasteners whic h are custom designed and that therefore they 
are considered as "special" fasteners. It follows that Pooja Forge's sales that the Commission took into account in determining normal values for the Chinese producers did not include fasteners sold 
to automotive producers. 
7.186.  China submits that this explanation "is an a posteriori  justification provided by the 
Commission in order to address the arguments raised by the interested parties during the review investigation". China finds this to be inconsistent with an IA's obligation to act in an even-handed 
manner.
242 We are puzzled by this argument. First, we note that an IA is under an obligation to 
address the pertinent arguments made by interested parties on the IA's determinations made in an investigation.
243 Second, in terms of its timing, we do not see the review regulation as a 
determination that post-dates the review investigation. Indeed, it was probably the most 
important step in the review investigation in that it explains in detail the Commission's determinations and their underpinnings. In any case, we note that the Commission's final 
disclosure issued pursuant to Article 6.9 of the AD Agreement, more than two months before the 
review regulation, also contained, almost verbatim, the same explanations about the distinction between standard and special fasteners that were fo und in the part of the review regulation that 
we have quoted above.
244 The Chinese interested parties were given almost three weeks to 
                                               
240 China's first written submission, para. 271. 
241 Review regulation, (Exhibit CHN-3), recital 47. 
242 China's first written submission, para. 273. 
243 We note in this regard that Article 12.2.2 of the AD Agreement requires that the notice of final 
determination contain "the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers". We also  note the finding by the panel in EC – Salmon (Norway)  underlining the 
IA's obligation to take into account comments and information submitted by interested parties after a final disclosure under Article 6.9 of the Agreement and the fact that the IA may issue a definitive determination which differs from the fina l disclosure. Panel Report, EC – Salmon (Norway) , para. 7.799. 
244 General Disclosure Document in the review investigation (R548) concerning anti-dumping measures 
in force on imports of certain iron or steel fasteners originating in the People's Republic of China: 
implementation of the recommendations and rulings adopted by the Dispute Settlement Body of the World 
Trade Organization on 28 July 2011 in the EC – Fasteners dispute  (DS397), 31 July 2012 (final disclosure), 
(Exhibit CHN-22), pp. 12-13. WT/DS397/RW 
 
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  comment on such disclosure.245 This, in our view, puts paid to the argument that the Commission's 
explanations in the review regulation constituted a posteriori  justification. 
7.187.  Finally, we also note that, under the pres ent claim, China challenges the consistency with 
Article 2.4 of the Commission's definition, albeit without showing why such definition is 
inconsistent with that provision. To us, the very fact that China challenges the WTO-consistency of 
the Commission's definition shows that such definition was explained to the Chinese producers in the investigation at issue and that they understood its contours. Whether or not that definition was 
properly applied by the Commission to Pooja Forge's sales is another issue, to which we now turn. 
7.6.3.2.2  The Commission's assessment of th e accuracy of the lists of standard and 
special fasteners provided by Pooja Forge 
7.188.  China maintains that on the basis of what was on the record, the Commission could not 
conclude that the lists of standard and special fasteners provided by Pooja Forge were accurate. 
Put differently, China claims that "the Commission could not reasonably and objectively conclude that the lists of standard and of special fastener s provided by Pooja Forge … included respectively 
only standard and special fasteners as defined for the purposes of the investigation".
246 In making 
this argument, China points to the failure of the Commission to conduct an on-the-spot verification to verify the lists provided by Pooja Forge. China recognizes that the Commission took two 
initiatives with a view to verifying the lists at issue: (i) it conducted walk-through tests, and (ii) it 
checked the split made by Pooja Forge against average price levels. China contends, however, that these steps did not suffice to verify the accuracy of Pooja Forge's lists. We disagree with China, for the reasons explained below. 
7.189.  The record shows that the Commission conducted a series of walk-through tests in order to 
verify the accuracy of the two lists provided by Pooja Forge. The European Union describes a walk-
through test as follows: 
A "walk-through" test is an in-depth verification of the accuracy of the information 
provided on a transaction by transaction sale s listing, by testing the sales information 
on one line of this listing against the different documents relating to that particular 
sale. A "walk-through" test involves the selection of a sample of invoices and 
examining the original documents that "walk" the European Commission "through" the process of sale. For example for a domestic sale contained in the listing, we would expect to see a contract or purchase order; price negotiation; production or stock 
order; stock movements; packaging; handling and shipping and finally payment. A 
significant number of lines are checked through this test until the investigating authority is satisfied of the accuracy of the information provided.
247 
7.190.  Hence, a walk-through test seems to be a process that allows the Commission to verify the 
accuracy of a range of documents pertaining to a group of sales that are selected from among the 
entirety of the sales reported by a given company. China does not dispute the fact that the 
Commission did carry out walk-through tests in order to verify the accuracy of Pooja Forge's lists. 
China's argument is that such a test would not allow the Commission to verify the accuracy of the information provided by Pooja Forge. We do not see why this would be the case. 
7.191.  It is common knowledge that anti-dumping investigations often entail the collection of 
information pertaining to thousands of sales made by the companies involved, be it on the 
dumping or the injury side of the investigation. Article 6.6 of the AD Agreement generally requires 
an IA to "satisfy [itself] as to the accuracy of  the information supplied by interested parties upon 
which [its] findings are based." Article 6.7 provides that an IA may conduct an on-the-spot 
verification "[i]n order to verify information provided or to obtain further details". This provision does not oblige an IA to conduct on-the-spot verifications in order to verify information provided 
by interested parties. The general obligation laid down in Article 6.6 is that an IA must ensure that 
the information on which it bases its findings is accurate. The Agreement does not prescribe specific ways in which this general obligation has to be observed. It is now well settled in WTO 
                                               
245 The final disclosure was dated 31 July 2012 an d interested parties had until 20 August 2012 to 
present their comments. See, covering letter to the general disclosure dated 31 July 2012, (Exhibit EU-4), p. 2. 
246 China's first written submission, para. 284. 
247 European Union's response to Panel question No. 32. WT/DS397/RW 
 
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  case law that "[w]hile such on-site verification visits are common practice, the Agreement does not 
say that this is the only way or even the preferred way for an investigating authority to fulfil its obligation under Article 6.6 to satisfy itself as to the accuracy of the information supplied by interested parties on which its findings are based".
248 On-the-spot verification is one but by no 
means the only way in which an IA may verify the accuracy of the information provided by 
interested parties. China does not argue otherwise but contends that in this investigation, the Commission should have conducted an on-the-spot verification. However, in light of the facts on 
the record and the explanation by the European Union of what a walk-through test entails, we see 
no reason that would compel such a conclusion. We are not persuaded that in the investigation at issue, conducting walk-through tests in order to ve rify the accuracy of the information provided by 
Pooja Forge was incompatible with what would have been expected from an objective an 
unbiased IA. 
7.192.  As noted above, the record shows that, in  addition to walk-through tests, the Commission 
also conducted a price analysis in an effort to verify the accuracy of the lists provided by 
Pooja Forge. The review regulation provides in this regard that: 
With regard to the claim concerning the absence of verification of the split made by 
the Indian producer, the Commission verified the sales listing through a number of 
'walk-through' tests (i.e. in-depth verification of a sample of sales transactions 
included in the sales listing in order to verify its accuracy) as per standard verification practices. In addition, the subsequent split of  that sales listing provided by the Indian 
producer was checked against an average price level of the split as explained in the 
said note. Therefore, the allegation that the Commission took at face value the data 
provided by the Indian producer is not founded.
249 
7.193.  China posits that an average price check would not ensure that the export price of 
standard fasteners was not compared to the normal value of special fasteners. The reason for this, 
argues China, is that "[a]n average price check does not allow for the detection of special fasteners of which the price is low as the result of other product characteristics".
250 China adds 
that "[i]t is perfectly possible that the sales listing of 'standard' fasteners contain fasteners which 
in fact should have been included in the listing of 'special' fasteners".251 China also asserts that an 
average price check "offers no conclusive evidence that all the fasteners labelled as standard were indeed standard fasteners".
252 We agree with these views in the abstract. By its nature, an 
average price check cannot verify that each and every transaction included in the list of special 
fasteners indeed pertains to a special fastener an d that each and every transaction included in the 
list of standard fasteners pertains to a standard fastener. We are not aware of any provision in the 
AD Agreement which requires such conclusive evidence from an IA in a case like this. Nor would 
such a showing have been possible or practicabl e given the particularly high number of sales 
transactions involved in this investigation.253 The issue here is whether or not the steps taken by 
the Commission to verify the accuracy of the sale s lists provided by Pooja Forge represented an 
unbiased and objective evaluation of facts as requ ired under Article 17.6(i) of the AD Agreement. 
China has not shown to us that this was not the case. In our view, an average price check, in addition to the walk-through tests conducted, wo uld only enhance the quality of the verification 
made by the Commission. We therefore reject Ch ina's argument that the Commission failed to 
objectively assess the accuracy of the sales lists provided by Pooja Forge. 
7.6.3.2.3  Conclusion 
7.194.  In light of our findings above, we reject China's claim under Article 2.4 of the 
AD Agreement that the Commission failed to compare the prices of standard fasteners with the prices of standard fasteners in calculating dumping margins for the Chinese producers in the 
review investigation at issue. 
                                               
248 Panel Report, Argentina – Ceramic Tiles , footnote 65. We also note the similar finding made by the 
panel in Egypt – Steel Rebar . Panel Report, Egypt – Steel Rebar , paras. 7.326-7.327. 
249 Review regulation, (Exhibit CHN-3),recital 49. 
250 China's first written submission, para. 290. 
251 Ibid. para. 290. 
252 China's response to Panel question No. 28. 
253 The European Union argues that Pooja Forge repo rted 80,000 sales transactions in the DMSAL file. 
See, for instance, European  Union's first written submission, para. 41. China has not disagreed with this 
statement. WT/DS397/RW 
 
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  7.195.  China asked the Panel to exercise its fact-seeking power under Article 13 of the DSU to 
request the European Union to provide a copy of Pooja Forge's DMSAL file, and other information, 
used to distinguish between standard and special fa steners and to verify the accuracy of the split 
made by Pooja Forge.254 We did not make such a request because we did not find it necessary to 
consult the mentioned file or other information in our evaluation of China's claim. 
7.7  Alleged violation of Article 2.4 of the AD Agreement: failure to make adjustments 
for differences that affect price comparability 
7.7.1  Arguments of parties 
7.7.1.1  China 7.196.  China asserts that the European Union acted inconsistently with Article 2.4 of the 
AD Agreement by failing to make adjustments for ce rtain factors that affected price comparability. 
Specifically, China takes issue with three differences that allegedly affected price comparability and 
that were not taken into account by the Commission: (i) differences in taxation, (ii) differences in physical characteristics, and (iii) certain other differences. 
7.197.  First, with respect to differences in taxation, China notes that Pooja Forge imported 80% of 
its raw material - wire rod - and paid import duties and other indirect taxes on such imports. The 
Chinese producers, however, bought their wire rod from the domestic market. These Chinese 
producers asked the Commission to make an adjustment to the normal value for this difference, 
but the Commission declined to do so on the gro unds that the Chinese producers had not provided 
evidence showing that exports of fasteners from China to the European Union would benefit from a non-collection or refund of import charges on imports of wire rod. China contends that these 
explanations are not relevant where the normal valu e is established on the basis of the prices of 
an analogue country producer.
255 Under Chinese law, Chinese producers of fasteners could benefit 
from a duty drawback had they imported their ra w materials. Similarly, Indian law would have 
allowed Indian fasteners producers to request du ty drawback for the imports of wire rod when 
they exported fasteners.256 China therefore argues that, by choosing an analogue country producer 
that imported most of its raw materials and incurr ed significant import duties and other indirect 
taxes, and by not making an adjustment to account for this difference, the Commission failed to 
make a fair comparison as required under Article 2.4.257 
7.198.  Second, with respect to differences in physical characteristics, China argues that, during 
the review investigation, Chinese producers demonstrated to the Commission that all 
characteristics which were included in the original PCNs, as well as others which were not included 
in the PCNs, affected price comparability and asked that adjustments be made for them. The 
Commission failed to make such adjustments, in violation of the fair comparison obligation set 
forth in Article 2.4.258 As regards the differences in physical characteristics that were reflected in 
the PCNs, China refers specifically to coating, chrome, diameter and length and types of fasteners, and argues that, with respect to each of these characteristics, the Commission should have made 
the necessary adjustments. Regarding coating,  China takes issue with the Commission's 
determination that all fasteners produced by Pooj a Forge were electroplated. This determination 
was based on confidential evidence on the investigation file and information posted on Pooja Forge's website. China submits that this di d not represent a proper establishment of facts 
and an objective and unbiased evaluation thereof.
259 With regard to chrome, China argues 
similarly that the Commission's determination that only chrome Cr3 was used in the fasteners 
manufactured by Pooja Forge did not represent a pr oper establishment of facts and an objective 
and unbiased evaluation thereof.260 Regarding diameter and length, China contends that the 
Commission took these differences only partially into account by grouping fasteners on the basis of 
ranges rather than per specific diameter and length.261 With regard to types of fasteners, China 
                                               
254 China's opening statement, para. 55. 
255 China's first written submission, para. 324. 
256 Ibid. para. 325. 
257 Ibid. paras. 326-327. 
258 Ibid. paras. 339-340. 
259 Ibid. paras. 342-345. 
260 Ibid. paras. 346-347. 
261 Ibid. para. 348. WT/DS397/RW 
 
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  maintains that the way the Commission took this difference into account was not satisfactory for 
two reasons: first, because the Commission failed to take into account the different characteristics of fasteners that fall within the same CN code; and second, because it made this adjustment on the basis of differences between the types of fasteners sold in the EU market.
262 
7.199.  As regards the differences in physical characteristics that were not reflected in the original 
PCNs, China maintains that, during the review investigation, the Chinese producers argued before the Commission that certain factors other than those reflected in the PCNs, such as traceability, 
standards, unit of defective rate, hardness, bending strength, impact toughness and friction 
coefficient, affected price comparability but that they could not further substantiate their requests in this regard without information about the products of the Indian producer, Pooja Forge. The Commission rejected these requests on the grounds that they were not substantiated by evidence. 
China asserts that such rejection violated Article 2.4 because, by requiring the Chinese producers 
to substantiate their requests for these adjustments without first giving them sufficient information about the products sold by Pooja Forge, the Commission imposed an undue burden on these 
producers.
263 
7.200.  Third, with respect to certain other differences, China argues that, during the review 
investigation, the Chinese producers argued be fore the Commission that the differences with 
regard to "easier access to raw materials", "use of  self-generated electricity", and "efficiency and 
productivity", affected price comparability, and requested that adjustments be made to the normal value for such differences.
264 The Commission declined these requests on two grounds, namely, 
(i) that the EU's Basic Regulation referred to prices, as opposed to costs, in respect of 
adjustments, and that the Chinese producers did not present evidence showing that these 
differences affected price comparability; and (ii) that in investigations against NMEs, the costs and prices of producers in functioning market economies were used in the determination of normal 
values.
265 With respect to the first ground, China argues that the Chinese producers did provide 
some evidence regarding the alleged differences and that they could not further substantiate their requests because they did not have sufficient information about the characteristics of the fasteners 
produced by Pooja Forge.
266 China also adds that it is the EU's practice, in investigations against 
NMEs, to make adjustments to the normal value calc ulated on the basis of the prices of analogue 
country producers, to account for the comparative advantages enjoyed by NME producers subject to the investigation.
267 With respect to the second ground, China submits that the adjustments 
that the Chinese producers requested did not pertain to their own prices, but to the prices of the 
Indian producer. China further argues that China's status as an NME is irrelevant to the Commission's obligation under Article 2.4 of the Agreement to make a fair comparison between 
the normal value and the export price.
268 
7.7.1.2  European Union 7.201.  The European Union argues as a general matter that the Commission evaluated the 
Chinese producers' requests for adjustments for alleged differences in taxation, physical 
characteristics and certain other differences, and rejected them because the Chinese producers failed to provide evidence showing that such differences affected price comparability, as required under Article 2.4.
269 The European Union then presents counter arguments to the three main 
aspects of China's claim. 
7.202.  First, with respect to the alleged differences in taxation, the European Union asserts that 
the Commission examined the Chinese producers' re quest for an adjustment for this factor and 
rejected it because these producers did not subm it evidence showing that Chinese exporters of 
fasteners to the European Union would benefit from a non-collection or refund of import charges for the imports of raw materials, i.e. wire rod.
270 The European Union also points out that the fact 
that the Chinese producers do not import the ra w materials and do not pay import charges on 
                                               
262 China's first written submission, paras. 350-355. 
263 Ibid. paras. 356-358. 
264 Ibid. paras. 259-364. 
265 Ibid. para. 377. 
266 Ibid. paras. 378 and 383. 
267 Ibid. para. 380. 
268 Ibid. para. 390. 
269 European Union's first written submission, para. 167. 
270 Ibid. paras. 168-169. WT/DS397/RW 
 
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  them is one of the main reasons why market economy status could not be extended to the Chinese 
producers in the fasteners investigation.271 For the European Union, the fact that the Chinese 
producers do not pay import charges on their imports of raw materials is immaterial to the question of adjustments.
272 
7.203.  Second, with respect to alleged differences in physical characteristics, the European Union 
contends that China has failed to show that the Commission's decision to reject these requests for 
adjustments was unreasonable or biased or that the Commission did not engage in an active and 
substantive dialogue with the Chinese producers in this regard.273 In the EU's view, Article 2.4 
does not impose any particular evidentiary burden on an IA, and therefore the latter is entitled to 
rely on the information provided by the relevant interested parties and make determinations on that basis.
274 As far as the differences in physical characteristics that were reflected in the PCNs 
are concerned, the European Union argues, with respect to the alleged difference concerning 
coating, that the Indian producer stated, in an email addressed to the Commission, that it used 
only electroplating on its standard fasteners. It also notes in this regard that the AD Agreement 
does not impose a verification obligation on an IA and that China has not raised a claim under 
Article 6.6 of the Agreement concerning an IA's obligation to satisfy itself about the accuracy of the information provided by interested parties on which the IA's findings are based.
275 With regard 
to chrome, the European Union submits that the Commission examined the information available 
in order to address the Chinese producers' claim regarding alleged differences in chrome, and 
relied on the information provided in Pooja Forge's questionnaire response, which was corroborated by other sources. This information sh owed that Pooja Forge used only chrome Cr3, 
and not the more expensive chrome VI, in its standard fasteners.
276 Regarding diameter and 
length, the European Union asserts that the fact that prices of products falling within a certain 
range may differ does not necessarily preclude an IA from using ranges in distinguishing different product types in the context of price comparisons under Article 2.4.
277 With respect to types of 
fasteners, the European Union argues that it was at the request of the Chinese producers that the 
Commission decided to distinguish between diffe rent types of fasteners in making a fair 
comparison between the normal value and the expo rt price. Since Pooja Forge had not provided 
CN code information about its products, the Commission made the distinction between standard and special fasteners on the basis of an alternativ e methodology, looking at the fasteners sold in 
the EU market. In the EU's view, China's argument that the Commission failed to take into account 
the different characteristics of fasteners that fall within the same CN code seeks to impose an 
unreasonable burden on the IA. The European Un ion adds that the Chinese producers did not 
submit evidence during the review investigation showing that the general price differences used to 
distinguish between standard and special fasteners were inaccurate or inappropriate.
278 
7.204.  Regarding the differences in physical characteristics that were not reflected in the PCNs, 
such as traceability, standards, unit of defective rate, hardness, bending strength, impact 
toughness and friction coefficient, the European Union first underlines that this aspect of the claim 
could have been but was not raised by China during the original proceedings. It is therefore inappropriate for China to raise this in these compliance proceedings. The European Union does 
not present this as a procedural objection. However,  it notes that, because jurisdiction is a matter 
for the Panel to examine on its own initiative, the European Union would not object if the Panel 
concluded that this aspect of China's claim could not be raised in these proceedings.
279 On 
substance, the European Union maintains that an interested party has to demonstrate under 
Article 2.4 the existence or absence of product features that affect price comparability when 
comparing the normal value with the export price.  The Chinese producers did not do this and the 
Commission rightly rejected their request for lack of substantiation. China has not shown before 
this Panel that such rejection was not objective and unbiased.280 
                                               
271 European Union's first written submission, para. 169. 
272 Ibid. para. 172. 
273 Ibid. para. 178. 
274 Ibid. para. 182. 
275 Ibid. para. 184. 
276 Ibid. para. 186. 
277 Ibid. para. 187. 
278 Ibid. paras. 188-189. 
279 European Union's second written submission, para. 156. 
280 European Union's first written submission, para. 192. WT/DS397/RW 
 
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  7.205.  Third, with respect to certain other differ ences alleged by China, namely "easier access to 
raw materials", "use of self-generated electr icity", and "efficiency and productivity", the 
European Union maintains that this aspect of the claim could have been but was not raised by China during the original proceedings.
281 On substance, the European Union underlines that raw 
materials and energy distortions are am ong the typical features of an NME.282 The European Union 
contends that the Chinese producers failed to substantiate their requests for adjustments for these alleged differences and the Commission rejected such requests. The European Union again argues 
that such rejection represented an objectiv e and unbiased assessment on the part of the 
Commission.
283 The European Union asserts that, under Ar ticle 2.4, the burden to substantiate a 
request for an adjustment lies with the requesting interested party, whereas, through this claim, China seeks to switch that burden to the IA.
284 The European Union adds that this aspect of 
China's claim suggests that the Commission should have assumed that the analogue country 
producer, Pooja Forge, used more or less the same production factors as the Chinese exporters. This, in the EU's view, seeks to undo the recourse to the analogue country methodology.
285 
7.7.2  Arguments of third parties 
7.206.  The United States  notes that, as underlined by the Appellate Body in US – Hot-Rolled 
Steel, the obligation to ensure fair comparison under Article 2.4 is on the IA, not the foreign 
producers. However, interested parties are under an obligation to support their requests for 
adjustments for differences that affect price comparability. Without taking any position on whether necessary adjustments were made in the review investigation at issue, the United States argues that to the extent that any such differences were  demonstrated to affect price comparability, the 
Commission was obliged under Article 2.4 to make the necessary adjustments. The United States 
adds, however, that the Commission was under no such obligation with regard to requests for adjustments in respect of differe nces that were not demonstrated  to affect price comparability.
286 
7.207.  As far as the aspect of the claim regarding certain other differences is concerned, the 
United States notes that this aspect does not concern the obligation set forth in Article 2.4. Rather, 
it raises the issue of whether India was an appr opriate analogue country. Whereas the underlying 
concern in Article 2.4 is "price comparability", this aspect of China's claim pertains to alleged 
differences in costs. In this regard, the United States agrees with the European Union that in investigations against NMEs, it is appropriate not to base normal value on prices charged in the domestic market of the exporting country because of, inter alia , distorted raw material prices and 
that when such an approach is followed, such as in the investigation at issue here, it would be 
inappropriate to make adjustments for alleged differences in costs. The United States finds China's argument to be 'fundamentally circular' and contends that such an argument disregards the 
purpose of not relying on the prices of NME producers in determining normal value.
287 
7.7.3  Evaluation by the Panel 7.208.  China maintains that the Commission violated Article 2.4 of the AD Agreement by failing to 
make adjustments for three types of differences that allegedly affected price comparability: 
(i) differences in taxation, (ii) differences in physical characteristics, and (iii) certain other differences. We will examine each of these three allegations in turn. 
7.7.3.1  Differences in taxation 
7.209.  China notes that whereas Pooja Forge impo rted 80% of wire rod, the raw material it 
needed to produce fasteners, the Chinese producers bought their wire rod from the Chinese market. Since Pooja Forge paid import duties and other indirect taxes on its imports of wire rod, 
which the Chinese producers did not have to pay, China argues that the Commission should have 
made an adjustment to the normal value in order to account for this difference affecting price comparability. By failing to do so, argues China, the Commission violated the fair comparison 
                                               
281 European Union's response to Panel question No. 37.b. 
282 European Union's first written submission, para. 193. 
283 Ibid. paras. 195 and 200. 
284 Ibid. para. 198. 
285 European Union's second written submission, para. 163. 
286 Unites States' written submission, paras. 48-51. 
287 United States' statement at the meeting of the Panel, paras. 22-24. WT/DS397/RW 
 
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  obligation set forth in Article 2.4 of the Agreem ent. The European Union disagrees, arguing that 
China's argument effectively aims to undo the ef fect of the analogue country methodology, an 
issue which is not part of this dispute. Moreover, the European Union maintains that the Commission was not required to make an adjustment to the normal value for alleged differences in 
taxation because the Chinese producers failed to demonstrate to the Commission that this was a 
difference that affected  price comparability. 
7.210.  Turning to the relevant facts, we note that the Commission's final disclosure states that 
Pooja Forge paid "the basic customs duty (5% of assessable value) and the Customs Education 
Cess (3% of the basic customs duty value plus the CVD amount)" on the raw material that it imported.
288 China notes that the CVD amount exceeded 20% of the customs value which resulted 
in total import duties ranging between 26 and 30%  of the customs value during the period of 
investigation.289 During the review investigation, the Ch inese producers argued that they did not 
import their raw material and therefore did not pay such duties, and that therefore the Commission should make an adjustment for this difference that affected price comparability. 
Following the Commission's letter dated 30 May 2012, in which further information was disclosed 
regarding Pooja Forge's products, one Chinese producer wrote to the Commission to argue that: 
The annual reports (see Annexes 1 and 2) reve al that the Indian producer during the 
IP imported 80% of raw materials (wire rod) from abroad. This relates to the fact that 
the Indian producer had, in order to produce the fasteners with the particular physical 
characteristics it is producing, to use particular types of wire rod. Our client, by 
contrast, purchased its raw materials for the production of fasteners with different 
physical characteristics, on the domestic market. 
Obviously, this results in additional co sts that are being incurred by the Indian 
producer (for instance, freight and import duty) that are not born [ sic] by our client. 
This is thus a difference that  affects price comparability. 
With a view to ensuring a fair comparison, the normal value should thus be adjusted 
to account for the difference between the Indian domestic price of wire rod and the 
purchase price paid by the Indian produc er during the IP. On the basis of the 
comparison included in Annex 3, the normal value should be lowered by 7.026 Rupee per ton.
290 (emphasis added) 
7.211.  The Commission replied by email: 
Please note [ sic] import duties on raw material purchased outside the analogue 
country have been taken into account as per standard practice, and the normal value was based on net invoiced prices.
291 
7.212.  This issue was also raised by the Chinese interested parties during the hearing that took 
place on 11 July 2012, to which the Commission officials' reaction was that "[t]he starting point would be for parties to claim an adjustment as to the extent to which export prices are not 
compared on a comparable level".
292 
7.213.  Through a letter dated 19 July 2012, Chinese interested parties argued that whereas in 
China exporters of fasteners would have obtained an import duty refund for the raw materials imported from outside, the same was not the case in India and that therefore an adjustment had 
to be made to the normal value to account fo r this difference affecting price comparability: 
                                               
288 Final disclosure, (Exhibit CHN-22), recital 78. 
289 China's second written submission, paras. 203-204. 
290 L e t t e r  o n  b e h a l f  o f  N i n g b o  J i nding to the Commission, 13 June 2012 (Ningbo Jinding's letter of 
13 June 2012), (Exhibit CHN-33), p. 5. The same issue was raised by another Chinese producer and by the 
China Chamber of Commerce for Import & Export Machiner y & Electronic Products. See, Letter on behalf of 
Changshu to the Commission, 13 June 2012 (Changshu's letter of 13 June 2012), (Exhibit CHN-34), p. 5 and CCCME letter, (Exhibit CHN-7), p. 8. 
291 Commission's email of 26 June 2012), (Exhibit CHN-11). 
292 Report of the Hearing with the Commission of 11 July 2012, 18 July 2012 (hearing report), 
(Exhibit CHN-30), p. 9. WT/DS397/RW 
 
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  Article 2(10)(c) of the Basic Anti-Dumping Regulation provides that an adjustment to 
normal value must be made corresponding to the amount of import charges or indirect 
taxes which are applicable to materials incorporated in the like product when it is intended for consumption in the exporting country but which are not collected or 
remitted when the product is exported[.] 
Chinese producers who export fasteners from China obtain an import duty refund 
pursuant to Article 5 of the Measures of the Customs of th e People's Republic of China 
on the Control of Processing Trade Goods . These rules provide either for the non-
collection of the import duties on raw materials provided that the final product is subsequently exported ("suspension regime")  or the repayment of the import duties 
actually collected when the final product is exported ("drawback regime"). Thus, 
export prices do not include the amount of  the import duty paid on raw materials. 
In contrast, domestic prices in India reflect the very high import duties levied on 
imported raw materials. Pooja Forge imports a significant proportion of its steel from 
outside India. Its domestic prices are theref ore likely to be higher as a result of the 
import duties paid. 
In consequence, an adjustment to the normal value of the Indian producer reflecting 
the amount of import duties and indirect taxes included in its domestic prices is 
necessary to ensure a fair comparison.
293 (italic in original, underlining added) 
7.214.  The Commission addressed these concerns in its final disclosure as follows: 
[A]ccording to Article 2(10)(b) of the basic anti-dumping regulation, such an 
adjustment is available if the import charges borne by the like product and by material 
physically incorporate [ sic] therein, when intended for consumption on the domestic 
market would not be collected or would be refunded when the like product is exported 
to the European Union. In the absence of a claim and evidence that exports from the 
above-mentioned exporting producers to the EU would benefit from a non—collection 
or refund of import charges on imports of raw materials (wire rod), the claim must be 
rejected. Furthermore, it is also noted that , normally, such adjustment is not available 
when the exporting producer concerned, as is the case in this review, sources all its 
raw materials from domestic suppliers incurring therefore no import charge.294 
(emphasis added) 
7.215.  In their comments on the final disclosure, Chinese interested parties wrote to the 
Commission, arguing that instead of rejecting this request for an adjustment, the Commission should first have explained to the Chinese produc ers how they should further substantiate their 
assertion that exports of fasteners from China to the European Union benefited from a non-
collection or refund of import charges on imports of raw materials.
295 
7.216.  The record shows that Pooja Forge imported most of the raw material (wire rod) it needed 
in producing fasteners, the product subject to the investigation. It is also uncontested by the 
parties that, in contrast to Pooja Forge, the Chinese producers bought their wire rod mainly from the Chinese market. The issue is whether or not in such a situation the Commission was under an obligation to make an adjustment for the customs duties and other indirect taxes paid by 
Pooja Forge on its imports of wire rod. 
7.217.  The European Union contends that the fa ct that the Chinese producers bought their raw 
material domestically, rather than importing it, was one of the reasons why the Commission 
considered China to be an NME and decided to resort to the analogue country methodology in 
determining normal values in this investigation.
296 In the EU's view, the reason why the Chinese 
producers did not import raw materials is because the Chinese market provides them with access 
                                               
293 Letter on behalf of Biao Wu and CCCME to the Commission, 19 July 2012 (Biao Wu and CCCME's 
letter of 19 July 2012), (Exhibit CHN-21), p. 10. 
294 Final disclosure, (Exhibit CHN-22), recital 78. The review regulation contai ns, almost verbatim, the 
same explanations about this issue. Review regulation, (Exhibit CHN-3), recital 80. 
295 Comments on behalf of CCCME and Biao Wu, 20 August 2012, (Exhibit CHN-23), p. 12. 
296 European Union's first written submission, para. 169. WT/DS397/RW 
 
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  to such materials at cheap prices.297 The European Union asserts that the fact that the Indian 
producer imports most of its raw materials whereas the Chinese producers do not "is not pertinent to the question of adjustments".
298 It is the consequence of the analogue country methodology 
used by the Commission, and not a difference that affects price comparability.299 The 
European Union therefore concludes that, through this claim, "China is effectively arguing that the 
European Commission should have taken the distorted raw material situation of the Chinese fasteners producers into account through an adjustment".
300 
7.218.  We agree with the EU's argument. China states that "it does not question the use of the 
analogue country methodology as such but rather the failure of the European Union to make necessary adjustments for differences affecting pr ice comparability existing between the export 
price and the analogue country's normal value as a result of the inclusion in the normal value of 
import duties on raw material that are not included in the export price".
301 However, to find for 
China in this respect would undermine the Commission's right to have recourse to the analogue country methodology, which China does not dispute here. The Commission resorted to the 
analogue country methodology because it determined that the Chinese producers subject to the 
investigation did not operate according to the principles of a market economy, including with respect to the price paid for domestic wire rod. As a result of this determination, the Commission 
decided to base the normal values of Chinese producers on the domestic prices charged by 
Pooja Forge, a fastener producer from India,  which the Commission found to be operating 
according to market economy principles, including taking into account the price paid for imports of wire rod. We agree with the European Union th at the very reason why such an exceptional 
methodology was used in determining the normal values of Chinese producers was the underlying 
determination that their costs and prices did not reflect the dynamics of a market economy. 
7.219.  We also note that the issue of customs duties and other indirect taxes collected on the 
imports of raw materials has to do with India's internal tax and trade policy. Different WTO 
Members design such policies in different ways taking into account their economic needs and other relevant factors. Where an IA decides to resort to the analogue country methodology in an 
investigation involving producers that are not a ccorded market economy treatment and uses the 
prices of an analogue producer to determine the no rmal value, the different kinds of taxes that are 
imposed on different inputs used in the production of the investigated product in the analogue country may be relevant to the issue of the selection of the analogue country.
302 However, once 
the analogue country has been selected, the existence of such taxes on inputs will likely become 
irrelevant as far as the obligation to conduct a fair comparison is concerned. This is because once the IA starts making adjustments for such cost di fferences, it will effect ively be moving towards 
the costs in the investigated country that, at the outset of the investigation, was not considered to 
be a market economy. 
7.220.  Even if the Commission were under an oblig ation to consider making an adjustment due to 
alleged differences in the taxation of wire rod in India, despite the fact that the analogue country 
methodology was used in the investigation, the facts on the record do not show that the Chinese producers showed to the Commission that this difference in taxation affected price comparability as prescribed under Article 2.4 of the Agreement.  In response to the Chinese producers' request 
for an adjustment for the alleged difference in ta xation, the Commission stated, during the hearing 
held on 11 July 2012, that "[t]he starting point would be for parties to claim an adjustment as to the extent to which export prices are not compared on a comparable level".
303 In response, the 
                                               
297 European Union's first written submission, para. 172. 
298 Ibid. 
299 Ibid. 
300 Ibid. para. 173. 
301 China's second written submission, para. 202. 
302 In this regard, we note that Article 2(A)7(a) of the EU's Basic AD Regulation stipulates as follows 
with respect to the selection of an analogue country: 
An appropriate market economy third country shal l be selected in a not unreasonable manner, 
due account being taken of any reliable informat ion made available at the time of selection. 
Account shall also be taken of time limits; where appropriate, a market economy third country which is subject to the same investigation shall be used. The parties to the investigation shall be informed shortly after its initiation of the market 
economy third country envisaged and sh all be given 10 days to comment. 
G/ADP/N/1/EU/1/Rev.1, p. 10. 
303 Hearing report, (Exhibit CHN-30), p. 9. WT/DS397/RW 
 
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  Chinese producers indicated, in their letter dated 19 July 2012, that under Chinese law producers 
of fasteners benefited from an import duty refund for the duties paid on raw materials used in the production of fasteners when such fastener s were subsequently exported from China.
304 We note, 
however, that this was simply an explanation of what Chinese law said, and not a description of 
what had actually happened to the Chinese producers subject to the investigation at issue. In 
other words, the Chinese producers did not argue that they benefited from a refund of import duties paid for raw materials used in the production of the fasteners exported to the 
European Union and which were the subject of the investigation at issue. In fact, their main 
argument was that, unlike Pooja Forge, they bought their raw material from their domestic market. The Commission, in its final disclosure, indicated that given that the Chinese producers had not shown that they had benefited from a non-collection or refund of import duties paid on the 
imports of raw materials, no adjustment could be made to the normal value to remove the effect 
of the import duties and other charges paid by Pooja Forge on its own imports of raw materials. The Commission also found it normal that the Ch inese producers did not come forward with such 
evidence because they bought their raw material s from the Chinese market and therefore incurred 
no import duties.
305 These explanations are repeated in the review regulation.306 
7.221.  These facts make it clear that the Chinese producers did not come forward with a 
substantiated request for an adjustment for the alleged difference in taxation. In our view, 
therefore, the obligation to make an adjustment, laid down in Article 2.4 of the AD Agreement, was not triggered. We do not consider that the Commission acted inconsistently with this obligation by rejecting an unsubstantiated reques t for an adjustment. China maintains that this 
reason is irrelevant where the comparison is made with the prices of an analogue country 
producer. In China's view: 
The difference in taxation is due to the fact that the analogue producer used imported 
raw materials subject to high indirect taxes, while the Chinese exporters used locally 
produced wire rod. As stated above, and undisputed by the Commission, in case the 
Chinese producers would have used imported raw materials, they would have been 
able to obtain a duty drawback when exporting pursuant to Article 41 of the 
Regulations of the People's Republic of Ch ina on Import and Export Duties. Likewise, 
the Indian producer could have claimed a du ty drawback under the applicable Indian 
customs rules when exporting its fastener s. (footnote omitted, emphasis added) 
7.222.  China's arguments are hypothetical. The AD Agreement does not require that adjustments 
be made on the basis of such remote possibilities. Article 2.4 only requires that an adjustment be made where there is a substantiated request show ing the existence of a difference affecting price 
comparability. This was not the case in this investigation. We agree with China's argument that the 
fact that the analogue country methodology was used does not relieve the Commission from the obligation to conduct a fair comparison as required under Article 2.4.
307 Nor, however, does an IA 
come under an obligation that is not found under Article 2.4 simply because it used the analogue 
country methodology in its dumping determination. China also contends that by requiring the Chinese producers to show that their exports to the European Union actually benefited from a non-collection or refund of import duties, the Commission imposed an unreasonable burden on them.
308 
We disagree. The Commission's request that eviden ce of the existence of an alleged difference 
that affects price comparability be shown cannot be said to be unreasonable. 
7.223.  On this basis, we reject China's argument that the Commission violated Article 2.4 of the 
AD Agreement by rejecting the Chinese producers' request for an adjustment due to an alleged 
difference in taxation. 
7.7.3.2  Differences in physical characteristics 
7.224.  China argues that by failing to make adjustments for certain differences in physical 
characteristics, the Commission failed to conduct a fair comparison as required under Article 2.4 of the Agreement. In terms of the alleged differences in physical characteristics, China refers to two 
                                               
304 Biao Wu and CCCME's letter of 19 July 2012, (Exhibit CHN-21), p. 10. 
305 Final disclosure, (Exhibit CHN-22), recital 78. 
306 Review regulation, (Exhibit CHN-3), recital 80. 
307 China's second written submission, para. 217. 
308 Ibid. para. 209. WT/DS397/RW 
 
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  groups of characteristics, namely the characterist ics that were included in the original PCNs, and 
those that were not included in such PCNs. As far as the first group is concerned, China claims that the Commission failed to conduct a fair comparison with respect to each of the characteristics included in the original PCNs, namely, coating, chrome, diameter and length, and type of 
fasteners.
309 With respect to the second group, China cites characteristics such as traceability, 
standards, unit of defective rate, hardness, bending strength, impact toughness and friction 
coefficient, which allegedly affected price comparability.310 China's argument with respect to each 
of these two groups of characteristics is different. With regard to the first group, China argues that 
the Commission failed to take the characteristics included in the original PCNs into account and thereby violated Article 2.4. With regard to the second group, China maintains that the Commission acted inconsistently with Article 2.4 by failing to give the Chinese producers further 
information to allow them to substantiate their initial requests for adjustments. We will evaluate 
each of these two sets of allegations in turn. 
7.7.3.2.1  Differences in physical characterist ics that were included in the original PCNs 
7.225.  With respect to the physical characteristics that were included in the original PCNs, China 
contends that while the Commission acknowledged that all such characteristics were differences that affected price comparability, it failed to take  them into account properly and thereby violated 
Article 2.4. With regard to coating, China no tes the Commission's statement during the review 
investigation that all fasteners produced by Pooja Forge were electroplated. This determination 
was based on confidential information on the record and information found on Pooja Forge's website. China also notes that the same website confirms that Pooja Forge also had manufacturing 
facilities for other types of coating and conclu des that it is very unlikely that Pooja Forge 
manufactured only electroplated fasteners.
311 China argues that the Commission failed to carry out 
an objective and unbiased determination in making this determination because the latter was 
based on limited and unverified information.312 We recall that Article 2.4 requires that an 
adjustment be made where the requesting interested party shows to the IA that there is a difference between the products being compared wh ich affects price comparability. In our view, 
with respect to coating, the Chinese producers failed to make such a showing. China's argument is 
that the Commission's assessment of the information on the record was inadequate, without showing the basis for the alleged inadequacy. As noted above, the AD Agreement does not 
necessarily require that the IA conduct an on-the-spot verification to examine the accuracy of 
every piece of information that it uses in its determinations. We also recall that China has not 
brought a claim under Article 6.6 of the AD Agreement alleging the Commission's failure to satisfy itself about the accuracy of the information on the record on which it based its findings. We 
therefore reject China's argument with respect to coating. 
7.226.  With regard to chrome, China claims that the Commission's determination that only 
chrome Cr3 was used in the fasteners manufactu red by Pooja Forge did not represent a proper 
establishment of facts and an objective and unbiased evaluation thereof. China notes that in 
coming to this conclusion the Commission relied on information posted on Pooja Forge's website without verifying it. China argues that the Commi ssion should have gathered detailed and precise 
information regarding the chrome used in Pooja Forge's products.
313 A s  w i t h  C h i n a ' s  c l a i m  
regarding coating, China has not shown to the Panel that the Chinese producers made a 
substantiated request for an adjustment for chrome  which the Commission rejected in violation of 
Article 2.4. Here too, we recall that China has not brought a claim under Article 6.6 of the 
AD Agreement alleging the Commission's failure to satisfy itself about the accuracy of the 
information on the record on which it based its findings. Without a showing that the Chinese producers identified a difference which affected price comparability, which the Commission 
rejected, we cannot find a violation of the obligation set forth in Article 2.4. We therefore reject 
China's argument with respect to chrome. 
7.227.  With regard to diameter and length, China maintains that the Commission took these 
differences only partially into account because it made its comparisons on the basis of ranges, 
                                               
309 China's first written submission, para. 341. 
310 Ibid. para. 356. 
311 Ibid. para. 344; second written submission, para. 227. 
312 China's first written submission, paras. 343-345. 
313 Ibid. para. 346. WT/DS397/RW 
 
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  rather than per specific diameter and length.314 China contends that an analysis prepared by two 
Chinese exporters shows differences in prices within the same range because of differences in diameter and length.
315 We are not convinced that the mere fact that the Commission used 
ranges, instead of specific figures, in assessing  diameter and length necessarily violates the 
obligation set forth in Article 2.4. China has not shown to the Panel why such an approach 
rendered the Commission's determination biased or non-objective. Nor did China show that the Chinese producers identified a difference on diameter and length which affected price 
comparability, which the Commission rejected. We therefore also reject China's argument with 
respect to diameter and length. 
7.228.  With regard to types of fasteners (standard vs. special), China challenges the 
Commission's determination on two grounds. First, it argues that the Commission erred by 
identifying the types of fasteners with reference to CN codes since each code might have included 
different types of fasteners. Second, China contends that the Commission made adjustments on the basis of differences that existed between diffe rent types of fasteners in the EU market. China 
takes issue with the EU's methodology in this regard on the grounds that: (i) since Pooja Forge 
had not made a distinction between types of fasteners in the original investigation the Commission itself could not have known for what exact differences it was making an adjustment to the normal 
value; (ii) there was no evidence that price differe nces observed in the EU market with respect to 
the differences in types of fasteners represented the differences in the Indian market; and (iii) comparing the price averages of each type of fastener to a global average was unreliable.
316 
We recall, once again, that in order to show a violation of the fair comparison obligation set forth 
under Article 2.4 of the Agreement, the complainant has to show that a request for an adjustment 
linked to a difference that is shown to affect pr ice comparability was rejected by the IA. China has 
not shown that there was such a showing in the review investigation with respect to types of 
fasteners. China's arguments purport to show weaknesses in the way the Commission made the 
distinction between standard and special fasteners, but this does not constitute a difference between Pooja Forge's and Chinese producers' fasteners which affected price comparability. We 
therefore reject this argument. 
7.229.  China suggested that the Panel use its fa ct-seeking power under Article 13 of the DSU to 
request from the European Union certain documents on the record with respect to coating, chrome, diameter and length.
317 We have not done so because we did not consider it necessary to 
see documents beyond what has been submitted in exhibits by both parties in resolving China's 
claim. 
7.230.  On the basis of the forego ing, we reject China's argument  that by failing to take into 
account the differences in the physical characteristics that were included in the original PCNs the 
Commission acted inconsistently with the fair comparison obligation laid down in Article 2.4 of the AD Agreement. 
7.7.3.2.2  Differences in physical characterist ics that were not included in the original 
PCNs 
7.231.  The European Union asserts that this aspect of China's claim could have been but was not 
raised by China in the original proceedings. The European Union does not raise this as a procedural 
objection but points out that since jurisdiction is a matter that has to be examined on the Panel's 
own initiative, it would not object if the Panel found this aspect of the claim to be outside its terms of reference.
318 In our assessment of this aspect of the present claim, we will first evaluate the 
issue alluded to by the European Union and will only proceed with our substantive assessment if 
we find the claim to be with in our terms of reference. 
7.7.3.2.2.1  Terms of reference of the Panel 
7.232.  In response to the EU's argument on terms of reference, China maintains that this aspect 
of its claim could not have been raised in the original proceedings because, as noted by the 
                                               
314 China's first written submission, para. 348. 
315 Ibid. para. 348. 
316 Ibid. paras. 350-355. 
317 China's opening statement, para. 63. 
318 European Union's second written submission, para. 156. WT/DS397/RW 
 
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  Appellate Body in the original dispute, the Chinese producers were not able to request adjustments 
in the original investigation due to the Commission's failure, until late in the original investigation, to explain on what basis price comparisons were going to be made.
319 
7.233.  As noted in paragraph 7.68 above, in examining whether the present claim could have 
been brought by China in the original proceedings, we will take into account the factual 
circumstances, in the review investigation, under which the claim was raised and examine the extent to which such circumstances also existed in the original investigation. We note that in the 
review investigation, following the Commission's disclosure of 30 May 2012, which conveyed 
further information regarding the characteristics of Pooja Forge's products, the Chinese company Biao Wu submitted comments in which it argued, among other things, that the characteristics such as traceability, standards, unit of defective rate, hardness, bending strength, impact toughness 
and friction coefficient had an impact on price comparability.
320 We have not seen anything on the 
record of the original investigation, nor does the European Union argue, that these alleged differences were discussed in the original investigation. This shows that this issue was unique to 
the review investigation and therefore could no t have been raised in the original dispute 
settlement proceedings. On this basis, we conclude that this aspect of China's claim is within our terms of reference and proceed with our assessment of it. 
7.7.3.2.2.2  Assessment of the claim on the merits 
7.234.  As regards the differences in physical characteristics that were not reflected in the original 
PCNs, China cites characteristics such as traceability, standards, unit of defective rate, hardness, bending strength, impact toughness and friction coefficient. China submits that, during the review 
investigation, the Chinese producers argued before the Commission that these characteristics 
affected price comparability but they could not further substantiate their requests without information about Pooja Forge's products. The Comm ission rejected these requests on the grounds 
that they were not substantiated by evidence. China asserts that such rejection violated Article 2.4 
because, by requiring the Chinese producers to substantiate their requests for these adjustments without first giving them sufficient information about the products sold by Pooja Forge, the 
Commission imposed an undue burden on these producers.
321 
7.235.  We recall that in order to make a prima facie  showing of a violation of the fair comparison 
obligation under Article 2.4, China has to show that the Chinese producers made a substantiated 
request for an adjustment which the Commission rejected. China has not done so. China's main 
argument regarding the alleged differences in physical characteristics that were not included in the 
original PCNs is the Commission's failure to provide information on the characteristics of Pooja Forge's products. We recall that, above, we have evaluated China's claims challenging 
specifically the Commission's failure to provide such information and concluded, in 
paragraph 7.148, that the Commission violated the obligation set forth in the last sentence of Article 2.4 by failing to provide such informat ion. The present claim, however, concerns the 
substantive aspects of the Commission's determination with respect to the issue of fair 
comparison. To prevail on such a claim, China has to show that the Commission rejected a substantiated request for an adjustment made by the Chinese producers. This China has not done. Finding a violation of Article 2.4 under the present claim, which concerns the substantive aspects 
of the Commission's determination, on the basis that the Commission failed to provide information 
on the characteristics of Pooja Forge's products, would have been speculative since it would have been based on the assumption that had the Commission provided the necessary information the 
Chinese producers would have made a substantiated request for an adjustment. We cannot make 
such a finding. 
7.236.  On this basis, we reject China's allegation that the Commission acted inconsistently with 
Article 2.4 by failing to make adjustments for alleged differences in physical characteristics that 
were not included in the original PCNs. 
                                               
319 China's second written submission, paras. 242-243; China's comment on the EU's response to Panel 
question No. 37.b. 
320 Biao Wu's letter, 13 June 2012, (Exhibit CHN-6), pp. 5-6. 
321 China's first written submission, paras. 356-358. WT/DS397/RW 
 
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  7.7.3.3  Certain other differences 
7.237.  The European Union asserts that this aspect of China's claim could have been but was not 
raised by China in the original proceedings.322 Therefore, we will first ev aluate this jurisdictional 
issue and will only proceed with our substantive assessment of this aspect of China's claim if we 
find it to be within our terms of reference. 
7.7.3.3.1.1  Terms of reference of the Panel 7.238.  The European Union contends that this aspect of China's claim could have been raised in 
the original proceedings. The European Union asserts that given that in the original proceedings 
China brought claims regarding the use of PCNs and the alleged need to make an adjustment for quality differences, it could also have brought claims regarding any other alleged cost differences between Pooja Forge and the Chinese producers. This , in the EU's view, raises procedural fairness 
concerns.
323 China maintains that this aspect of its claim could not have been raised in the original 
proceedings because, as noted by the Appellate Body in the original dispute, the Chinese producers were not able to request adjustments in the original investigation due to the 
Commission's failure, until late in the original investigation, to explain on what basis price 
comparisons were going to be made.
324 
7.239.  As we note in paragraphs 7.241-7.242 below, in the review investigation, the Chinese 
producers raised the issue of alleged differences between their and Pooja Forge's costs and 
requested that adjustments be made to reflect such differences. In this context, the Chinese 
producers referred specifically to alleged differences in cost factors such as "easier access to raw materials", "use of self-generated electricity", and "efficiency and productivity". In this regard, we 
disagree with the EU's argument that since in the original proceedings China brought a claim 
regarding alleged differences in the costs of qual ity control it could also have brought claims 
regarding other alleged cost differences. The letters sent by the two Chinese producers arguing 
that adjustments had to be made for certain cost differences state clearly that such arguments 
were presented in response to "[the Commission's] disclosure dated 30 May 2012".
325 Clearly, 
therefore, these comments were presented in response to the new information disclosed by the 
Commission in the review investigation. We have not seen anything on the record of the original 
investigation, nor does the European Union argue, that these alleged cost differences were discussed in the original investigation. We therefore conclude that this aspect of China's claim is within our terms of reference and proceed with our substantive assessment of it. 
7.7.3.3.1.2  Assessment of the claim on the merits 
7.240.  China contends that the Commission violated the fair comparison obligation set forth in 
Article 2.4 of the Agreement by rejecting the Chinese producers' requests for adjustments for 
differences with regard to "easier access to raw ma terials", "use of self-generated electricity", and 
"efficiency and productivity" which affected price comparability. China notes that the Commission declined these requests on two grounds, namely, (i) that the EU's Basic Regulation referred to 
prices, as opposed to costs, in respect of adjustments, and that the Chinese producers did not 
present evidence showing that these differences a ffected price comparability; and (ii) that in 
investigations against NMEs, the costs and prices of producers in functioning market economies were used in the determination of normal values.
326 
7.241.  With respect to these alleged differences, the review regulation st ates in relevant part: 
Subsequently, these parties repeated their claim that adjustments should be made to 
take into account the differences in cost of production such as differences in efficiency 
of consumption of the raw material; differences in wire rod consumption; in electricity 
consumption, in self-generated electricity, in productivity per employee, in reasonable profit level and in differences related to tooling. As stated above, Article 2(10) of the 
                                               
322 European Union's response to Panel question No. 37.b. 
323 Ibid. 
324 China's comment on the EU's response to Panel question No. 37.b. 
325 Ningbo Jinding's letter of 13 June 2012, (Exhibit CHN-33), p. 2; and Changshu's letter of 
13 June 2012, (Exhibit CHN-34), p. 2. 
326 China's first written submission, para. 377. WT/DS397/RW 
 
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  basic Regulation is referring to price and not cost. There was no evidence adduced by 
these parties that the alleged differences in cost translated into differences in prices. 
In investigations concerning economies in transition such as China, an analogue 
country is used when warranted to prevent account being taken of prices and costs in 
non-market economy countries which are not the normal result of market forces. 
Thus, for the purpose of establishing the normal value, a surrogate of the costs and 
prices of producers in functioning market economies is used. Therefore, these claims 
for adjustments taking into account the differences in cost of production are 
rejected.327 (emphasis added) 
7.242.  China argues that the Chinese producers did provide evidence showing that the alleged 
differences in costs translated into differences in prices and therefore justified adjustments. In this 
regard, China refers to letters sent to the Commission by two Chinese producers, specifically to 
their Annexes 3.328 These letters329 contain the requests for adjustments by the requesting 
Chinese producers, among others, with respect to "efficiency of consumption of raw material", 
"difference in wire rod used for production", "consumption of electricity", "self-generated 
electricity" and "productivity". The Annexes 3 to  these letters provide a comparative account of 
Pooja Forge's and the requesting Chinese producers' costs with respect to each of these five cost 
factors. In our view, however, while highlighti ng the differences between Pooja Forge and the 
Chinese companies in terms of the amounts incurred  for each of these cost factors, these letters 
do not show how such cost differences affected pr ice comparability. For instance, the letter sent on 
behalf of Ningbo Jinding Fastener Co., Ltd. states, with respect to electricity consumption, that: 
The differences between the fasteners prod uced by the Indian producer and those 
produced by our client (for instance, coating, diameter, strength, quality requirements, etc.) result in the fact that the Indian producer's consumption of 
electricity per unit produced is significantly higher than that of our client. 
This is revealed by comparing the data of the Indian producer … with the data of our 
client … In order to account for this difference in electricity consumption that affects 
price comparability, the lower value should be adjusted by lowering it by 1.402 Rupee 
per ton.330 (emphasis added) 
7.243.  This letter argues that there is a difference between Pooja Forge and Jinding in terms of 
electricity costs per unit.331 It argues that this difference is due to the differences, such as coating, 
diameter, strength, between the products that these two companies produce. We note that such 
differences were part of the revised PCNs that the Commission took into account in comparing the normal value with the export price in the review investigation. Therefore, whatever effect such 
differences had on price comparability would have been taken into account through the use of 
PCNs. After explaining the difference in electricity costs, Jinding's letter asserts that such difference affects price comparability, but no explanation is provided as to why this would be so. It 
is clear that, mathematically speaking, differences in cost factors incurred by two companies 
producing the same product likely will have an impa ct on their prices because it will affect their 
overall cost of production. Clearly, this fact, alone, cannot justify any adjustment. The Commission used Pooja Forge as an analogue country produc er and used its prices in determining normal 
values for the Chinese companies. In such a situation, a request for an adjustment because of a 
difference in costs cannot simply be based on a calculation that shows an actual difference in costs. To succeed in achieving an adjustment, the request has to go beyond that and demonstrate 
how such difference affects price comparability and therefore requires an adjustment under 
Article 2.4. The letters before us do not make this demonstration and therefore we agree with the EU's argument that the Chinese producers failed to show that the alleged differences in costs 
affected price comparability. China also argues that Jinding and Changsu stated, in their comments 
on the Commission's final disclosure, that Pooja Forge's cost of manufacturing amounted to 80% of the price of its finished product "and that therefore any difference in costs would directly 
translate into the difference in price".
332 In our view, however, this fact, alone, does not amount to 
                                               
327 Review regulation, (Exhibit CHN-3), recital 41. 
328 China's first written submission, para. 378. 
329 Ningbo Jinding's letter of 13 June 2012, (Exhibit CHN-33) and Changshu's letter of 13 June 2012, 
(Exhibit CHN-34). 
330 Ningbo Jinding's letter of 13 June 2012, (Exhibit CHN-33), p. 6. 
331 Annex 3 to Ningbo Jinding's letter shows the calculation of this difference. 
332 China's second written submission, para. 253. WT/DS397/RW 
 
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  showing that the alleged difference in costs affected price comparability within the meaning of 
Article 2.4. That a company's cost of manufacturing represents a certain percentage of the price of its final product does not, in itself, show a difference that affects price comparability. 
7.244.  China maintains that had the Commission no t refused to disclose information regarding the 
product types and the prices of the fasteners so ld by Pooja Forge, the Chinese producers would 
have been able to provide further evidence rega rding the effect of these cost differences on 
prices.
333 The Commission's failure to provide information was the object of China's other claims, 
which we have discussed above. The present cl aim concerns the substantive aspects of the 
Commission's determination regarding fair comparison, and not whether the Chinese producers had the information that would have allowed them to make a substantiated request for an adjustment. Therefore, we do not take this argument into account in this particular context. 
7.245.  The EU's other argument in this respect is  that China's claim purports "to partly undo the 
recourse to the analogue country method."
334 We agree. We recall China's statement that it does 
not question the use of the analogue country methodology per se .335 As noted in paragraph 7.218 
above, however, we think the present claim undermines the Commission's use of the analogue 
country methodology. The Commission resorted to  the analogue country methodology because it 
found that the Chinese fasteners producers did not operate according to the principles of a market 
economy. As a result of this determination, the Commission took India as the analogue country 
and calculated the normal values of Chinese produc ers on the basis of the prices of Pooja Forge, a 
fastener producer from India. Requiring the European Union to look at the cost factors that China cites in connection with the present claim would indeed have the effect of undoing the 
Commission's recourse to the analogue country methodology. China argues that easier access to 
raw materials is unrelated to China's NME status because it is due to the fact that, unlike India, China has domestic production of wire rod. With respect to alleged differences in electricity prices, 
China contends that the electricity price in China is very similar to that in India and that the self-
generation of electricity by Pooja Forge is due to poor infrastructure and lack of electricity supply in India.
336 We are not convinced by these arguments. As mentioned above, in an investigation 
against an NME where the analogue country me thodology is used, claiming adjustments for 
alleged differences in costs would undermine the IA's recourse to that methodology. In this investigation, the Commission used the prices of  Pooja Forge, a market economy producer, as 
normal value for the Chinese producers because it considered these producers' prices not to reflect 
the market dynamics. Two companies producing the same product in two different countries will 
naturally have different costs for a variety of reasons, including the availability of raw materials or the supply of energy in the country of production. In our view, however, the IA is not obligated to 
make adjustments to reflect such differences in costs in an investigation where the analogue 
country methodology is used. Therefore, the reasons why there were differences between Pooja Forge and the Chinese producers with respect to access to raw materials or energy costs 
were immaterial to the Commission's inquiry in the investigation at issue. 
7.246.  China argues that in the past the Commission did make adjustments to the normal values 
obtained from analogue country producers on the basis of differences in costs such as easier access to raw materials, lack of additional production processes and higher efficiency and 
productivity.
337 The European Union disagrees with China's description of such past practice.338 In 
any case, we note that the EU's past practice is not a factor that we can take into account in our assessment of China's claim under Article 2.4 of the AD Agreement, which is based on the 
particular circumstances of the investigation before us. 
7.247.  China also refers to the fact that in the original fasteners investigation the Commission 
made an adjustment to the normal value for differences in quality control and questions why the 
Commission did not take the same approach with respect to other alleged differences in costs for 
which the Chinese producers requested adjustments.
339 The European Union acknowledges that it 
made such adjustment but contends that the adjustment made for quality control was different because applying quality control procedures allows a producer to charge higher prices and 
                                               
333 China's first written submission, para. 383. 
334 European Union's second written submission, para. 163. 
335 China's second written submission, para. 202. 
336 Ibid. para. 265. 
337 China's first written submission, para. 380. 
338 European Union's second written submission, paras. 165-166. 
339 China's first written submission, para. 381; second written submission, para. 266. WT/DS397/RW 
 
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  therefore has a direct impact on prices.340 According to the European Union, the same does not 
apply to production factors cited by China because a competitive market price for a standard fastener is determined by supply and demand in the market, not by production costs.
341 In 
response to a question by the Panel on why an adjustment was made for quality control in the 
original investigation, the European Union stated that such an adjustment was made because the 
Commission found that, unlike the Chinese producers, Pooja Forge had quality control as an additional step in its production process. The Commission made this adjustment not because of the 
differences in costs of quality control between Chinese producers and Pooja Forge, but because 
Pooja Forge had an additional step in its production process which the Chinese producers did not have.
342 We observe that the definitive regulation refers to this matter and explains why an 
adjustment was made for diffe rences in quality control.343 
7.248.  We also note that the review regula tion also mentions this issue as follows: 
In the original investigation the Commission already made an adjustment to the 
normal value to take into account quality control steps applied by the Indian producer 
which were not found for Chinese sampled producers.344 
7.249.  We are persuaded by the EU's explanatio n regarding the difference between the quality 
control adjustment made in the original investigation and the cost factors for which the Chinese 
producers requested adjustments in the review investigation. The record shows that the reason 
why the Commission made an adjustment for differences regarding quality control was because Pooja Forge and the Chinese producers did not have the same step in their production processes. As the European Union also argues, however, the cost factors for which adjustments were 
requested in the review investigation did not pertain to such a process. These cost factors were 
incurred both by Pooja Forge and the Chinese producers. China's argument is that because the amounts incurred were different with respect to each  of such factors, adjustments had to be made. 
As noted above, in our view, this goes to the issue of considering China as an NME and using an 
analogue country for the determination of norm al value. In using this methodology, the 
Commission did not construct the normal value on the basis of cost factors incurred by 
Pooja Forge; it took Pooja Forge's prices and used them as normal value.
345 Therefore, making 
adjustment for differences in cost factors would have defied logic and rendered the use of the analogue country methodology meaningless. 
7.250.  On this basis, we reject China's argument that the Commission violated the fair 
comparison obligation set forth in Article 2.4 of the Agreement by rejecting the Chinese producers' 
requests for adjustments for differences with regard to "easier access to raw materials", "use of self-generated electricity", and "efficiency and productivity" which affected price comparability. 
7.7.3.4  Conclusion 
7.251.  On the basis of the foregoing, we reject China's claim that the Commission acted 
inconsistently with Article 2.4 of the AD Agreemen t by failing to make adjustments for differences 
that affected price comparability. 
7.8  Alleged violation of Articles 2.4 and 2.4. 2 of the AD Agreement: failure to take into 
account all comparable export transactions 
7.8.1  Legal provisions at issue 
7.252.  For Article 2.4 of the Agreement, see paragraph 7.124 above. 
7.253.  Article 2.4.2 provides: 
                                               
340 European Union's first written submission, para. 200. 
341 European Union's second written submission, para. 167. 
342 European Union's response to Panel question No. 41. 
343 Definitive regulation, (Exhibit CHN-1), recital 103. 
344 Review regulation, (Exhibit CHN-3), recital 50. 
345 See, European Union's second written submission, para. 164. WT/DS397/RW 
 
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  Subject to the provisions governing fair comparison in paragraph 4, the existence of 
margins of dumping during the investigation phase shall normally be established on 
the basis of a comparison of a weighted average normal value with a weighted 
average of prices of all comparable export transactions or by a comparison of normal 
value and export prices on a transaction-to-transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ 
significantly among different purchasers, regions or time periods, and if an 
explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weight ed average-to-weighted average or 
transaction-to-transaction comparison. (emphasis added) 
7.8.2  Arguments of parties 
7.8.2.1  China 7.254.  China argues that, in calculating the dumpin g margins in the review investigation at issue, 
the Commission left out the export transactions for which there was no match in Pooja Forge's 
sales, on the basis of which the normal value was determined. This, in China's view, is inconsistent with Article 2.4.2 of the Agreement. China notes the Commission's finding that all models of 
fasteners exported from China to the European Union were "like" the fasteners produced and sold 
by Pooja Forge in India. Therefore, they were "com parable" within the meaning of Article 2.4.2. It 
follows that the Commission should have included all export transactions of the Chinese producers in the calculation of their dumping margins.
346 In support of this claim, China relies on the WTO 
jurisprudence finding the so-called practice of "zeroing" to be inconsistent with the AD Agreement 
chiefly on the grounds that a margin of dumping can only be calculated for the product under investigation as a whole, and not for models thereof. China contends that by failing to take into 
account "all" comparable export transactions in its dumping margin calculations, the Commission 
also acted inconsistently with the obligation to conduct a fair comparison between the normal value and the export price, as requir ed under Article 2.4 of the Agreement.
347 In this regard, China 
submits that the comparison made by the Commission resulted in a presumption of dumping for 
those export transactions that were not used in the dumping determination and thus, such comparison must be considered as failing to meet the requirement of "fair comparison".
348 
7.8.2.2  European Union 
7.255.  The European Union maintains that, in the review investigation at issue, the Commission 
based its dumping determinations on all comparable export transactions, i.e. all export transactions for which a comparable transaction was found in the lists of Pooja Forge's domestic 
sales. In a few cases where there were no matches on the normal value side for certain export 
transactions, such transactions were not included in the calculation of dumping margins. The European Union contends that China's reliance on the WTO jurisprudence regarding the zeroing 
methodology in connection with this claim is inapposite because in the calculation of dumping 
margins in the review investigation at issue, the Commission took into consideration all comparable export and normal value transactions. In the EU's view, the zeroing jurisprudence was developed to ensure that the results of all model-to-model comparisons were included in dumping 
calculations made through the weighted average to weighted average (WA-WA) methodology. The 
Commission did include the results of all such model-specific comparisons in its overall dumping calculations in the review investigation at issue.
349 
7.256.  The European Union submits that China's assertion that the Commission's failure to take 
into account "all" comparable export transactions was inconsistent with Article 2.4.2 disregards the consequences of the methodology used by the Commission in calculating dumping margins in this 
review investigation. In this regard, the European Union underlines the fact that the Commission 
prepared the detailed product categories, which it used in its dumping margin determinations, in close communication with the Chinese producers.
350 The European Union underscores the word 
                                               
346 China's first written submission, paras. 420-421. 
347 Ibid. para. 424. 
348 China's second written submission, para. 300; and China's opening statement, para. 91. 
349 European Union's first written submission, paras. 205 and 207. 
350 Ibid. paras. 220-221. WT/DS397/RW 
 
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  "comparable" in Article 2.4.2 of the Agreemen t and argues that this provision cannot be 
interpreted as requiring an IA to compare transactions that are not comparable.351 Further, the 
European Union argues that, given that Article 6.10 of the Agreement allows the use of certain sampling techniques in dumping determinations as long as all comparable export transactions are 
taken into consideration, it should not be inconsistent with the obligation set forth in Article 2.4.2 
not to include in such determinations export transactions for which no comparable domestic sales exist.
352 
7.257.  The European Union submits that ther e was nothing "inherently unfair" about the 
Commission's methodology.353 An alternative to the methodology used by the Commission could 
have been to construct the normal values for the export transactions for which no matches were found or to compare their prices with those of non-comparable normal value transactions. Such 
methods, however, would have raised obvi ous problems of reliability and accuracy.
354 Finally, the 
European Union maintains that the export transactions that were matched with normal value transactions and used in dumping margin calculations were, both quantitatively and qualitatively, 
representative of the product as a whole. Specifically, the European Union notes that the 
percentage of export transactions that were matched and taken into consideration by the Commission ranged between 75%-98% of the exports of all the main models of the fasteners that 
the Chinese producers had sold to the European Union.
355 
7.8.3  Arguments of third parties 7.258.  The United States  notes that the text of Article 2.4.2 limits the comparison to 
"comparable" export transactions, which means that this obligation does not extend to "all" export 
transactions. If the drafters intended to require that all export transactions be compared, they 
would not have qualified this obli gation with the word "comparable". The United States argues that 
the Appellate Body's jurisprudence also supports this view.
356 This, however, does not mean that 
an IA has unfettered discretion in limiting the export transactions that it will use in its price 
comparisons. In this regard, the United States notes that Article 2.2 of the AD Agreement addresses situations where a proper comparison cannot be made between the export price and the 
normal value. Further, the United States conten ds that Article 6.10 of the Agreement provides 
important context by indicating certain factors that may be relevant in deciding when certain export transactions may be excluded from price comparisons, and invites the Panel to take that 
context into account in assessing the present claim.
357 Though the United States takes no position 
with regard to the facts underlying this claim, it agrees with the European Union's factual assertion 
that China is an NME. As a result of this, the Commission had to use the analogue country methodology and faced difficulties in examining all product types in comparing the normal value 
with the export price.
358 
7.8.4  Evaluation by the Panel 7.259.  We note that the factual aspects of this claim are not disputed by the parties. In the review 
investigation at issue, the Commission followed the WA-WA methodology to compare the normal 
value with the export price in calculating dumping margins for the Chinese producers. The Commission made these comparisons in two steps. In the first step, it made model-specific comparisons; in the second step, it combined such model-specific results in order to determine the 
margin of dumping for the investigated product. In the first step, the Commission excluded from 
the scope of its calculations exports of models which did not match with any of the models sold by Pooja Forge. Therefore, such exports were not taken into consideration in the calculation of the 
amount of dumping. Nor were they taken into consideration in the second step of the 
Commission's calculations. When the Commission aggregated the results of model-specific calculations, it divided the total amount of dumpin g by the total value of exports pertaining to the 
models for which individual calculations were made in the first step. Exports that were excluded in 
                                               
351 European Union's second written submission, paras. 177-179. 
352 European Union's first written submission, para. 216. 
353 European Union's second written submission, para. 180. 
354 Ibid. para. 179. 
355 Ibid. paras. 183 and 188. 
356 United States' statement at the meeting of the Panel, paras. 6-9. 
357 Ibid. paras. 11-18. 
358 Ibid. para. 18. WT/DS397/RW 
 
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  the first step were also excluded from the denomi nator of the formula used to calculate the overall 
dumping margin for the investigated product. 
7.260.  Chinese producers objected to this calculation method, requesting that the Commission 
divide the total amount of dumping by the total value of all exports in the second step of its 
calculation. The Commission rejected this objection, stating that its method provided the most 
reliable basis to establish the level of dumping. These facts are explained in the review regulation as follows: 
The dumping margins were established on the basis of a comparison of a weighted 
average normal value with a weighted average export price. 
… One exporting producer argued that in calculating its dumping margin, the total 
amount of dumping found should be expresse d as a percentage of the total CIF value 
of all export transactions and not as a percentage of those export transactions used in calculating the amount of dumping. To do otherwise would, in this company's opinion, 
amount to a presumption of dumping for those export transactions not used in the 
dumping determination. 
A comparison between export price and normal value was made on a weighted 
average basis only for those types exported  by the Chinese exporting producer for 
which a matching type was produced and sold by the Indian producer. This was 
considered to be the most reliable basis for establishing the level of dumping, if any, 
of this exporting producer; to attempt to match all other exported types to closely 
resembling types of the Indian producer would have resulted in inaccurate findings. 
On this basis, it is correct to express the amount of dumping found as a percentage of 
those export transactions used in calculating the amount of dumping – this finding is 
considered to be representative for all types exported. The same approach was used 
in calculating the dumping margins of the other exporting producers.359 (emphasis 
added) 
7.261.  The parties disagree on whether or not the Commission's calculation method was 
consistent with Articles 2.4.2 and 2.4 of the AD Ag reement. China maintains that by failing to take 
into account all export transactions of the Chinese producers in the calculation of dumping margins, the Commission violated the obligations set forth in Articles 2.4.2 and 2.4. The 
European Union disagrees, arguing that Article 2. 4.2 only requires that "comparable" export 
transactions be taken into consideration in calculating dumping margins. The Commission complied with Article 2.4.2 in this investigation because it took into consideration only exports of models 
which matched with one of the models sold by Po oja Forge. The European Union also submits that 
such a methodology is not inconsistent with the fair comparison obligation set forth in Article 2.4. 
7.262.  In our assessment of the present claim,  we will first examine the alleged violation of 
Article 2.4.2, followed, if necessary, by the alleged violation of Article 2.4. 
7.263.  We note at the outset that Article 2.1 of  the AD Agreement defines "dumping" as follows: 
For the purpose of this Agreement, a product is to be considered as being dumped, 
i.e. introduced into the commerce of another country at less than its normal value, if 
the export price of the product exported from  one country to another is less than the 
comparable price, in the ordinary course of  trade, for the like product when destined 
for consumption in the exporting country. (emphasis added) 
7.264.  Thus, the Agreement defines dumping with reference to the "product" under investigation, 
not parts thereof. Therefore, the margin of du mping for a product subject to an anti-dumping 
investigation has to be calculated with respect to that "product". We also note that in WTO case 
law Article 2.1 has been consistently interpreted to mean that "dumping is defined in relation to a 
                                               
359 Review regulation, (Exhibit CHN-3), recitals 105, 108 and 109. WT/DS397/RW 
 
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  product as a whole as defined by the investigating authority".360 The phrase "[f]or purposes of this 
Agreement" clarifies that the definition of dumping in Article 2.1 applies to the entire AD Agreement, including, naturally, with respect to Article 2.4.2.
361 
7.265.  In calculating margins of dumping for the Chinese producers in the review investigation at 
issue, the Commission did not take into consideration exports of models that did not match with 
any of the models sold by Pooja Forge. Nor were  such exports included in the denominator when 
the Commission aggregated the results of model-specific calculations in determining the overall 
margin of dumping for the investigated product. In our view, given the definition of dumping in 
Article 2.1, a margin of dumping that excludes certain export transactions cannot be said to have been calculated for the investigated product as a whole. Such a calculation would therefore violate 
Article 2.4.2 of the Agreement which provides that  "margins of dumping" have to be established 
by comparing the weighted average normal valu e with a weighted average of prices of all 
comparable export transactions. 
7.266.  The European Union contends that the Commission's calculation was consistent with 
Article 2.4.2 because, as stated in that provision, the Commission took into account only export 
transactions that were "comparable", and did not exclude any comparable export transactions.
362 
The alternative to the Commission's methodology, argues the European Union, would have been 
"to construct matching domestic sales (e.g. by ma king adjustments as suggested by China)" or "to 
compare export sales with non-comparable normal value transactions".363 We disagree. We note 
that the meaning of "comparable" in the text of Article 2.4.2 of the AD Agreement has been 
discussed in case law and a consistent line of reasoning has emerged. In EC – Bed Linen , the 
Appellate Body first noted that the use of the word "comparable" did not "diminish in any way, the 
obligation of investigating authorities to establish the existence of margins of dumping on the basis of 'a comparison of the weighted average normal  value with the weighted average of prices of all 
comparable export transactions'".
364 I n  r e s p o n s e  t o  t h e  E U ' s  a r g u m e n t  i n  t h a t  d i s p u t e  t h a t  t h e  
differences between various models of the product subject to the investigation at issue in that dispute were so substantial that they could no t be eliminated by making adjustments, the 
Appellate Body noted the fact that at the outset of the investigation, the Commission had 
determined that the different types of the investig ated product constituted one single product. The 
Appellate Body then pointed out that: 
Having defined the product at issue and the "like product" on the Community market 
as it did, the European Communities could not, at a subsequent stage of the 
proceeding, take the position that some types or models of that product had physical characteristics that were so different from each other that these types or models were 
not "comparable".
365 
7.267.  Our understanding of the Appellate Body's finding is that once the IA defines the like 
product for purposes of an investigation, all export sales of product types that fall within the like 
product definition have to be taken into consideration in calculating dumping margins. The IA 
cannot exclude export sales of certain product types from the scope of its dumping determinations on the grounds that such types are not comparable to any of the types in domestic sales that are 
used to determine the normal value. Obviously, the fact that all sales falling within the IA's like 
product definition have to be taken into consideration in calculating dumping margins will not 
necessarily make all product types exported to the investigating country directly comparable to product types that are sold domestically in an exporting company's market. The general obligation 
under Article 2.4 to make a fair comparison will still apply. To comply with this obligation, the IA 
will resort either to multiple averaging (expla ined in paragraph 7.272 below) or to individual 
adjustments or some combination of these two methods. 
7.268.  We find the Appellate Body's reasoning persuasive and find it appropriate to apply it to the 
legal issue before us. The EU's argument before us is very similar to that presented before the Appellate Body in EC – Bed Linen . Here, the European Union argues that the Commission was right 
                                               
360 Appellate Body Report, US – Softwood Lumber V , para. 93. 
361 Ibid. para. 93. 
362 European Union's first written submission, para. 227. 
363 European Union's second written submission, para. 179. 
364 Appellate Body Report, EC – Bed Linen , para. 56. (emphasis in original) 
365 Ibid. paras. 57-58. WT/DS397/RW 
 
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  in excluding from the scope of its dumping determinations Chinese producers' exports of models 
that did not match any of the models sold by Pooja Forge because they were not "comparable" exports within the meaning of Article 2.4.2. We note, however, that, as in the investigation underlying the EC – Bed Linen  dispute, in the investigation at issue, the Commission defined the 
like product in a way that covered all different models of fasteners. In response to Chinese 
producers' comments regarding alleged differences between fasteners sold by Pooja Forge and those sold by the Chinese producers, the Commission states in the definitive regulation that: 
It was also argued by several importers and exporting producers that the fasteners 
produced in the analogue country, India, ar e mostly high-value product types destined 
for the automotive industry and similar applications, and therefore are not alike to the fasteners exported to the Community by the PRC producers. The investigation has 
shown, however, that both special and stan dard products are also produced and sold 
in India. As explained above those fasteners have been found to have the same basic physical and technical characteristics as products exported from the PRC.
366 
7.269.  The Commission then concludes that: 
[T]he fasteners produced and sold by the Community industry in the Community, 
fasteners produced and sold on the domestic market in the PRC and those produced 
and sold on the domestic market in India, which served as an analogue country, and 
fasteners produced in the PRC and sold to the Community are alike within the 
meaning of Article 1(4) of the basic Regulation.367 (emphasis added) 
7.270.  As the Appellate Body underlined in the EC – Bed Linen  dispute, we are of the view that 
"[a]ll types or models falling within the scope of a 'like' product must necessarily be 'comparable', 
and export transactions involving those types or models must therefore be considered 'comparable 
export transactions' within the meaning of Article 2.4.2".368 It follows that, by ignoring exports of 
certain models by the Chinese producers on the grounds that they did not match any of the 
models sold by Pooja Forge, the Commission violated the obligation to calculate margins of dumping on the basis of "all comparable export transactions" as required under Article 2.4.2 of the 
AD Agreement. In our view, by making its dumping determinations in this particular way, the 
European Union imposed anti-dumping duties on ce rtain exports from China with respect to which 
the Commission had not found dumping, without specific authorization to do so under the AD Agreement. 
7.271.  We also share the Appellate Body's view that Article 2.4 reinforces, as context, such an 
interpretation of the word "comparable" in Article 2.4.2.
369 Article 2.4.2 starts with the phrase 
"[s]ubject to the provisions governing fair comp arison in paragraph 4". Therefore, the general 
obligation of fair comparison set forth in Article 2.4 informs the specific obligation set forth in 
Article 2.4.2.370 Article 2.4 requires that a fair comparison be made between the normal value and 
the export price in calculating margins of dumping. To this end, this provision states that the 
comparison should be made at the same level of tr ade and in respect of sales made at as nearly as 
possible the same time. It also stipulates that due allowance shall be made for differences affecting price comparability. Article 2.4 then provides an illustrative list of factors which may require that allowances be made. Importantly, the factors explicitly cited in Article 2.4 include 
"physical characteristics". This list is not exhaustive; if the circumstances of a given investigation 
require that adjustments be made for factors other than those listed in Article 2.4, the IA has to make such adjustments in order to comply with the general obligation to conduct a fair 
comparison.
371 
                                               
366 Definitive regulation, (E xhibit CHN-1), recital 56. 
367 Ibid. recital 57. 
368 Appellate Body Report, EC – Bed Linen , para. 58. 
369 Ibid. para. 59. 
370 In this regard we note the Appellate Body's statement in EC – Bed Linen  that "[Article 2.4 contains] a 
general obligation that, in our view, informs all of Article 2, but applies, in particular, to Article 2.4.2 which is specifically made "subject to the provisions governing fair comparison in [Article 2.4]"."Appellate Body Report, EC – Bed Linen , para. 59. 
371 In this regard, we note the Appellate Body's finding, in US – Hot-Rolled Steel , that "[t]here are, 
therefore, no differences 'affect[ing] price comparability' which are precluded,  as such, from being the object of 
an 'allowance'". Appellate Body Report, US – Hot-Rolled Steel,  para. 177. WT/DS397/RW 
 
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  7.272.  Apart from laying down the general obligat ion to make a fair comparison and listing some 
of the factors that may necessitate adjustments, Article 2.4 does not prescribe a particular methodology that has to be used in ensuring fair comparison. In practice, typically, an IA makes adjustments to the normal value or the export price in order to comply with this obligation. 
Sometimes, the IA may group the investigated pr oduct into different models, compare the normal 
value and the export price of each model on a WA-WA basis, and then aggregate the results of 
model-specific results in order to calculate the overall margin of dumping for the investigated 
product. This practice, also known as "multiple av eraging", has been found to be compatible with 
the AD Agreement.
372 Using this method minimizes, or even eliminates, the need to make 
adjustments for individual differences that are shown to affect price comparability. This is what the Commission did in this case. The Commission grouped the investigated product - fasteners - into 
models by using the simplified PCNs and thereby attempted to minimize or eliminate the need to 
make adjustments for various factors that were fo und to affect price comparability. However, the 
use of such a methodology does not relieve the IA from the general obligation to carry out a fair 
comparison. If, in an investigation such as the one at issue here, there are certain exported 
models which do not match any of the models on the normal value side of the comparison, the IA cannot simply exclude exports of such models from its dumping calculations. In our view, in such a 
situation, Article 2.4 requires that the IA take non-matching models into account by making the 
necessary adjustments to eliminate the effect of factors that affect price comparability. We therefore disagree with the EU's argument th at the matching problem encountered by the 
Commission in this investigation was one of the "downsides" of the use of PCNs.
373 
7.273.  The European Union argues that the WTO jurisprudence that China relies upon in 
connection with this claim, and which concerns the so-called practice of "zeroing", is inapposite because the issue that China's claim presents is  different from the problem addressed in that 
jurisprudence. Specifically, the European Union contends that the zeroing jurisprudence suggests 
that the results of all model-specific calculations be taken into consideration in the calculation of the overall dumping margin for the investigated product as a whole, whereas the issue here is the 
treatment in the context of model-specific calculations of export sales for which there is no 
comparable normal value.
374 We note that China does not argue that the Commission's calculation 
method at issue here constituted "zeroing". Nor are we of the view that the Commission used zeroing in calculating dumping margins in this investigation. Nevertheless, we find the 
Appellate Body's reasoning in EC – Bed Linen  h i g h l y  r e l e v a n t  t o  o u r  a n a l y s i s  e v e n  t h o u g h ,  
technically speaking, the measure before us pertains to a different stage of the calculation of 
dumping margins through the WA-WA methodology. Thus although the issue before the 
Appellate Body in EC – Bed Linen  was the treatment of the results of model-specific calculations in 
the calculation of the overall dumping margin for the investigated product and the issue before us is the model-specific calculations themselves, the Appellate Body's legal reasoning is instructive for 
our inquiry because it clarifies that all product types that fall within the scope of a like product are 
"comparable" within the meaning of Article 2.4.2.  
7.274.  The European Union maintains that there was no violation of Article 2.4.2 because the 
export sales that were excluded by the Commission "do not concern the main types of the product 
and are relatively limited in numbers".
375 Therefore, it argues, "the matched and included export 
transactions are both qualitatively and quantitati vely representative of the product as a whole".376 
We do not consider that the percentage of the exports that are taken into consideration in 
calculating dumping margins, either quantitatively or qualitatively, is pertinent to the legal 
obligation under Article 2.4.2. This provision requires that all comparable export transactions be taken into account in calculating dumping margins. Once the IA defines the like product in a 
particular way, Article 2.4.2 requires that exports of  all models that fall within that definition be 
taken into account in calculating dumping margins. We therefore reject this argument. 
7.275.  The European Union refers to Article 6.10 of the AD Agreement and argues that this 
provision shows that the Agreement does not necessarily require that "in any and all 
circumstances all export transactions must be taken into consideration".
377 We agree with the 
                                               
372 Appellate Body Report, US – Softwood Lumber V , para. 81. 
373 European Union's first written submission, para. 220. 
374 See, for instance, European Union's first written submission, paras. 205 and 207. 
375 European Union's first written submission, para. 228. 
376 European Union's second written submission, para. 186. 
377 Ibid. para. 181. WT/DS397/RW 
 
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  European Union. We note, however, that Article 6.10 allows a limited examination of exports in 
specifically-defined circumstances. This provision lays down the general rule that an IA must make an individual dumping determination for each known exporter or producer concerned of the 
product under investigation. Exceptionally, "[i]n cases where the number of exporters, producers, 
importers or types of products involved is so large as to make such a determination 
impracticable", it allows the IA to "limit [its] examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of 
information available to the authorities at the time of the selection, or to the largest percentage of 
the volume of the exports from the country in question which can reasonably be investigated". Thus, Article 6.10 addresses an entirely different situation from that which we are examining here. We observe that the European Union does not argue that Article 2.4.2 or any other provision of the 
AD Agreement contains a similar exception that woul d allow an IA to exclude from the scope of its 
dumping determination exports of models that do not match any of the models sold on the normal value side. The European Union also contends that there was nothing "inherently unfair" about the 
methodology that the Commission used in calculating the Chinese producers' dumping margins. 
According to the European Union, an alternative to this methodology could have been to construct normal values for the export transactions for which no matches were found or to compare their 
prices with those of non-comparable product types on the normal value side. This argument does 
not find any basis in the AD Agreement and ther efore cannot change our assessment based on the 
text of Article 2.4.2. In our view, a dumping calculation methodology that fails to take into consideration exports of all product types falling within the definition of like product would violate 
Article 2.4.2 of the Agreement irrespective of wh ether or not the WTO Member that employs such 
a methodology considers it not to be inherently  unfair. We therefore reject this argument. 
7.276.  On the basis of the foregoing, we conclu de that the Commission violated Article 2.4.2 of 
the AD Agreement by not taking into consideration, in its dumping determinations, Chinese 
producers' exports of models that did not match any of the models sold by Pooja Forge. Having 
found that there is a violation of Article 2.4.2, we need not, and do not, address China's allegation 
that by doing so, the Commission also vi olated Article 2.4 of the AD Agreement. 
7.9  Alleged violation of Articles 4.1 and 3. 1 of the AD Agreement with respect to the 
definition of domestic industry 
7.9.1  Legal provisions at issue 
7.277.  Article 4.1 of the AD Agreement reads in pertinent part: 
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 
them whose collective output of the products constitutes a major proportion of the 
total domestic production of those products. 
7.278.  Article 3.1 of the AD Agreement provides: 
A determination of injury for purposes of Article VI of GATT 1994 shall be based on 
positive evidence and involve an objective examination of both (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic 
producers of such products. 
7.9.2  Arguments of parties 7.9.2.1  China 
7.279.  China recalls that, in the original investigation, the Commission excluded from the 
definition of domestic industry European producers that did not express willingness to be part of the injury sample that the Commission would use. In the original dispute, China challenged this 
aspect of the original investigation and the Appellate Body found that excluding some domestic 
producers from the definition of domestic industry on the basis of this self-selection gave rise to a material risk of distortion in defining that industry, and found that the original panel had erred in WT/DS397/RW 
 
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  finding that the Commission's domestic industry definition was not inconsistent with Article 4.1 of 
the AD Agreement. 
7.280.  China notes that in the review investigation, the Commission included in the domestic 
industry definition all European producers which had come forward within the deadline pursuant to 
the notice of initiation of the original investigation. The Commission did not condition the inclusion 
in the domestic industry definition on willingness to be part of the injury sample. However, China 
maintains that this definition of domestic industry continues to be inconsistent with Article 4.1 of 
the AD Agreement because the notice of initiation of the original investigation mixed the issue of 
sampling with the definition of domestic indust ry and may have discouraged European producers 
from participating in the investigation by providing that they would be excluded from the domestic industry definition unless they agreed to be part of the sample.
378 China contends that the 
confusion between the selection of the sample and the definition of domestic industry also 
appeared in the sampling form.379 
7.281.  China submits that including domestic produc ers in the definition of domestic industry even 
if they did not agree to be part of the sample does not remove the inconsistency found by the 
Appellate Body because it does not eliminate the material risk of distortion.380 In China's view, in 
order to implement the DSB recommendations and rulings in the original dispute, the Commission 
was required to start the process of selecting the producers for the definition of domestic industry 
from scratch.381 In this regard, China emphasizes that what the Appellate Body found problematic 
regarding the domestic industry definition in the original investigation was the "approach" followed by the Commission, not the actual exclusion of some producers from the definition of domestic 
industry.
382 Finally, China contends that the European Union also acted inconsistently with 
Article 3.1 of the AD Agreement because the Co mmission's injury determination in the review 
investigation at issue was based on a wrongly-defined domestic industry.383 
7.9.2.2  European Union 
7.282.  The European Union submits that this claim falls outside the Panel's terms of reference 
because it could have been but was not raised in the original proceedings. The European Union 
also argues that the definition of domestic industry was not an integral part of the measure taken 
to comply because the Commission treated this issue separately in the review investigation.384 
7.283.  The European Union points out that, foll owing the DSB recommendations and rulings in the 
original dispute, the Commission in the review investigation re-examined the file and included in 
the domestic industry definition all producers that we re excluded from that definition in the original 
investigation. The Commission then concluded that, given the fragmented nature of the industry, the producers included in this new definition represented a major proportion of the domestic 
industry and that the sample selected in the original investigation remained representative of the 
newly-defined domestic industry.
385 In the EU's view, what the Appellate Body found to be a 
material risk of distortion was the actual exclusion from the domestic industry definition of 
domestic producers which came forward within the deadline given in the original notice of initiation 
and provided the required information. Since th e Commission did not exclude any such Community 
producer from its domestic industry definition in the review investigation, there can be no violation of Article 4.1 of the Agreement.
386 The European Union describes as speculative China's contention 
regarding the effect of the language in the notice of initiation on European producers' willingness 
to come forward and participate in the investigation.387 Indeed, according to the European Union, 
the facts on the record contradict China's argument. In this regard, the European Union maintains 
that the 25 EU producers that came forward within the deadline but which indicated that they were 
not willing to be part of the injury sample did have a sufficient incentive to provide information and 
                                               
378 China's first written submission, paras. 449-453. 
379 China's second written submission, paras. 312-315. 
380 China's first written submission, para. 458. 
381 China's second written submission, para. 330. 
382 Ibid. paras. 310-311. 
383 China's first written submission, para. 459. 
384 European Union's response to Panel question No. 1. 
385 European Union's first written submission, para. 232. 
386 Ibid. paras. 240 and 251. 
387 Ibid. paras. 235, 248 and 250. WT/DS397/RW 
 
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  participate in the process.388 The European Union adds that the new definition of domestic industry 
represented 36% of total Community production, wh ich is relatively high given the fragmented 
nature of the industry.389 The European Union therefore requests the Panel to reject China's claims 
under Articles 4.1 and 3.1 of the Agreement. 
7.9.3  Arguments of third parties 
7.284.  Japan  considers that in resolving this claim, the Panel has to take into account 
three aspects of the Commission's determination, namely (1) whether a domestic industry 
definition that represents 36% of total production continues to involve a high risk of distortion, 
(2) the elements that render the process of defining the domestic industry biased or distorted, and (3) whether the IA comes under a greater obligation to avoid bias and to ensure that the domestic producers within the domestic industry definition are as representative as possible, in cases where 
their percentage share in total production remains low.
390 Regarding the first issue, Japan 
maintains that 36% continues to have a relatively high risk of distortion and bias. Referring to the Appellate Body's findings in the original dispute,  Japan underlines that the starting point in the 
process of defining the domestic industry should be domestic producers as a whole and the IA has 
to ensure that those producers that are included in the definition "substantially reflect" the total production so as to avoid any risk of distortion.
391 Japan argues that in the review investigation, 
the Commission did not do this.392 Japan sees self-selection as a source of bias and points out that 
when the request for participation is crafted in a way that favours participation from producers with a particular view, the potential problem arising from self-selection becomes worse.
393 
7.285.  As to the second issue, Japan considers it an improvement that the Commission included 
in the domestic industry definition all producers that provided a questionnaire response, but notes 
that the process through which such questionnaires were collected did not change. In Japan's view, the nature of the process for soliciting information from the European producers appears not 
to be neutral and may have given rise to bias. In relation to the third issue, Japan argues that 
where producers within the domestic industry definition account for a relatively low percentage of total production, the IA comes under a more serious obligation to avoid bias and to ensure that the 
selected producers are as representative as possi ble. In Japan's view, an injury determination 
based on a domestic industry definition that fails to take into consideration one of these three elements cannot be considered as reflecting an "objective examination" within the meaning of 
Article 3.1 of the AD Agreement, read in conjunction with Article 4.1.
394 
7.9.4  Evaluation by the Panel 
7.286.  In resolving the present claim, we will first address the EU's jurisdictional objection, 
followed, if necessary, by an assessment of the merits of the claim. 
7.9.4.1  Terms of reference of the Panel 
7.287.  The European Union contends that this claim falls outside our terms of reference because it 
could have been but was not raised by China in the original proceedings. The European Union also 
maintains that the definition of domestic industry was not an integral part of the implementing 
measure because the Commission treated this issue separately in the review investigation. China disagrees with the European Union. According to China, its claim concerns the EU's failure to 
implement the DSB recommendations and rulings issu ed in the original proceedings - a claim that 
could not have been raised in the original proceedings.
395 China notes the EU's statement in its 
response to Panel question No. 1 that "in the or iginal panel proceedings China could have but did 
not make the same arguments …" and contends that the issue is not whether China could have 
raised the same argument, but rather whether it could have raised the same claim in the original 
                                               
388 European Union's second written submission, para. 198. 
389 European Union's first written submission, para. 248. 
390 Japan's written submission, para. 23. 
391 Japan's statement at the meeting of the Panel, para. 4. 
392 Ibid. para. 5. 
393 Ibid. para. 6. 
394 Japan's written submission, paras. 24-27. 
395 China's response to Panel question No. 47. WT/DS397/RW 
 
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  proceedings.396 We note that in its response, the European Union clearly argues that "China's claim 
under Article 4.1, as well as its consequential claim under Article 3.1 of the AD Agreement, equally fall outside the scope of these compliance proceeding s". We recall that, in the original proceedings, 
China raised a claim challenging the Commission's domestic industry definition in the original 
investigation. Under that claim, China raised five allegations of error.
397 None of the alleged errors 
challenged the contested language in the notice of initiation of the original investigation conditioning inclusion in the domestic industry de finition on willingness to be part of the injury 
sample. The original panel rejected all of China's allegations. On appeal, the Appellate Body 
reversed the panel's finding on one aspect of th e claim and concluded that "the Commission failed 
to ensure that the domestic industry definition would not introduce a material risk of distortion to the injury analysis by relying on a minimum benchmark irrelevant to the issue of what constitutes 
'a major proportion', and by excluding certain kn own producers on the basis of a self-selection 
process among the producers".
398 The present claim is based solely on the argument that the 
existence of the contested language in the original  notice of initiation rendered the Commission's 
domestic industry definition in the review investigation inconsistent with Article 4.1 of the 
Agreement. We think that China could have raised  the present claim as an additional argument 
under the domestic industry claim in the original proceedings. However, this is now raised as an 
independent claim in these compliance proceeding and we have to decide whether this claim is 
within our terms of reference. We therefore disagr ee with China's contention that the EU's terms of 
reference objection takes issue with China's argument s, as opposed to its claim. Further, we recall 
that "[t]he vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel 
proceedings[]"399 and that WTO panels "must deal with such [jurisdictional] issues –if necessary, 
on their own motion- in order to satisfy themse lves that they have authority to proceed".400 We 
will therefore examine whether the present claim is within our terms of reference. 
7.288.  In the original dispute settlement proceedings, the Appellate Body found, among other 
things, that the original panel had erred in finding that the European Union had not acted inconsistently with Article 4.1 of the AD Agreement in defining the domestic industry as comprising 
domestic producers that accounted for 27% of tota l production on the basis that such percentage 
constituted "major proportion".
401 The Appellate Body came to this conclusion on the grounds that 
"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".
402 We note that the Appellate Body made this finding in 
response to China's argument that "by requiring producers to come forward within 15 days and express a willingness to be included in the sample within that deadline, the European Union 
adopted an approach that was 'fundamentally non-objective', because producers opposing the 
investigation were less likely to be willing to be part of the sample".
403 On 28 July 2011, the DSB 
adopted the Appellate Body report, and the pane l report, as modified by the Appellate Body 
report.404 Thereafter, the Appellate Body's finding and recommendation regarding the definition of 
domestic industry became a DSB recommendation.  Under article 21.1 of the DSU which provides 
that "[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members", the European Union was 
required to implement this DSB recommendation. We also recall that pursuant to Article 21.5 of 
the DSU, the function of a compliance panel is to  resolve disagreements between disputing parties 
as to "the existence or consistency with a covered agreement of measures taken to comply with 
the recommendations and rulings". 
7.289.  Under the present claim, China argues that the European Union failed to implement the 
DSB recommendations and rulings in this dispute because its domestic industry definition in the 
review investigation was inconsistent with such recommendations and rulings since it did not take 
into account the legal reasoning provided in the underlying Appellate Body report. This claim requires us to examine whether the Commission implemented the DSB recommendations and rulings consistently with the findings in the Appellate Body report in the original proceedings. In 
                                               
396 China's comments on the European Unio n's response to Panel question No. 1. 
397 Panel Report, EC – Fasteners (China) , paras. 7.184-7.189. 
398 Appellate Body Report, EC – Fasteners (China) , para. 422. 
399 Appellate Body Report, US – 1916 Act , para. 54. 
400 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36. 
401 Appellate Body Report, EC – Fasteners (China) , para. 624(b)(i). 
402 Ibid. para. 427. 
403 Ibid. para. 151. 
404 WT/DS397/11. WT/DS397/RW 
 
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  our view, such a claim goes to the very heart of a compliance panel's task under Article 21.5 of the 
DSU and falls within our terms of reference. 
7.290.  Given this, we do not consider relevant for our present inquiry whether or not China could 
have raised this claim during the original proceedings. However, assuming that China could have 
raised it in the original proceedings, we would still have found the claim to fall within our terms of 
reference given the decisive role that the contested statement in the original notice of initiation played in the Commission's definition of domestic industry in the review investigation. In other 
words, we consider that such statement was an unchanged aspect of the original measure which 
became an integral part of the measure taken to comply, namely, the review investigation conducted by the Commission. In defining the domestic industry in the review investigation, the Commission bound itself by the limitation that the original notice of initiation imposed on the 
universe of producers that could have been included in the domestic industry definition. It should 
also be underlined that the producers included in the definition of domestic industry could also have a bearing on the selection of producers for the injury sample and ultimately on the injury 
determination itself. 
7.291.  On this basis, we find this claim to be within our terms of reference and proceed with our 
assessment of it. 
7.9.4.2  Assessment of the claim on the merits 
7.292.  China maintains that the Commission's domestic industry definition in the review 
investigation was inconsistent with Article 4.1 of the Agreement because it continued to introduce a material risk of distortion by reason of the statement in the notice of initiation of the original 
investigation that only producers willing to be included in the injury sample would be part of the 
domestic industry definition.
405 In China's view, this language shows that the notice "mixed the 
issues of the domestic industry definition and the sampling determination"406 and may have 
discouraged more European producers from coming forward because they knew that they would 
b e  e x c l u d e d  f r o m  t h e  d o m e s t i c  i n d u s t r y  d e f i n i t i o n  u n l e s s  t h e y  a g r e e d  t o  b e  p a r t  o f  t h e  i n j u r y  sample. China contends that in the original proceedings the Appellate Body condemned the 
Commission's approach in defining the domestic indu stry on the basis of willingness to be included 
in the injury sample, as opposed to the actual exclusion of such producers from that definition.
407 
The European Union asserts that what the Appellate Body found to be inconsistent with Article 4.1 
of the AD Agreement was the actual exclusion of European producers that came forward within the 
relevant deadline and which provided the required information, not the statement in the notice of 
initiation to the effect that only producers that agreed to be included in the injury sample would be considered as cooperating and included in the domestic industry definition.
408 The European Union 
claims that it complied with the DSB recommendations and rulings because in the review 
investigation the Commission defined the domestic industry as including all producers that came forward within the deadline given, regardless of whether they were willing to be part of the injury 
sample. 
7.293.  The issue before the Panel is whether or not the European Union complied with the DSB 
recommendations and rulings with regard to the definition of domestic industry. We start our assessment by recalling the Appellate Body's findings in the original proceedings regarding the 
definition of domestic industry. In those procee dings, the Appellate Body noted that a 27% share 
in total production was "at the lower end of the spectrum" but that such a figure could suffice to establish "major proportion" within the meaning of Article 4.1 provided the definition "[did] not 
introduce material risks of distortion".
409 The Appellate Body then observed that the Commission 
had defined the domestic industry on the basis of producers that had fully cooperated in the 
investigation.410 In the Appellate Body's view: 
[B]y 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 
                                               
405 China's first written submission, para. 457. 
406 Ibid. para. 447. 
407 China's second written submission, para. 310. 
408 European Union's first written submission, para. 240. 
409 Appellate Body Report, EC – Fasteners (China) , para. 422. 
410 Ibid. para. 426. WT/DS397/RW 
 
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  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. As China argues on appeal, the Commission's 
approach "confuses two different steps", because the domestic industry should be 
defined first, before a sample may be sele cted from the producers included in the 
domestic industry.411 (footnote omitted, italic in original, underlining added) 
7.294.  The Appellate Body noted that more producers had come forward than those that had been 
included in the Commission's domestic industry definition. Of the 75 producers that had come forward, the Commission had excluded 25 from the domestic industry definition for reasons 
including unwillingness to be included in the sample.
412 The Appellate Body reiterated that: 
[T]he sample of domestic producers is a smaller universe than the domestic industry, 
and the unwillingness to be part of the sample should not affect whether a producer should be part of the domestic industry … Thus, by including only those willing to be 
part of the sample  in the domestic industry definition, the Commission's approach 
shrank the universe of producers whose data could have been used for part of the injury determination.
413 (italic in original) 
7.295.  We note that the Appellate Body found the Commission's domestic industry definition to be 
inconsistent with Article 4.1 of the Agreement beca use of the exclusion of domestic producers that 
came forward within the deadline but which were not willing to be included in the injury sample. In other words, it was the actual exclusion of such producers that lead the Appellate Body to find a 
violation of Article 4.1 of the Agreement in the original proceedings. We also note, however, that 
the legal reasoning on which this finding was based is not necessarily limited to instances where the IA actually excludes from the domestic indust ry definition producers that come forward within 
the relevant deadline. The Appellate Body stated that by identifying the domestic industry on the 
basis of willingness to be included in the injury sample the Commission imposed a self-selection process among the domestic producers that introduced  a material risk of distortion. Applying this 
reasoning to the facts of the original investigation, the Appellate Body found that the Commission 
had erred by excluding from the definition of do mestic industry those producers that had come 
forward within the deadline but which were not willing to be included in the injury sample. 
7.296.  We find the Appellate Body's reasoning to be persuasive and will apply it to the facts 
presented in the review investigation. It is uncontested that in the review investigation the 
Commission did not issue a new call to domestic producers willing to participate in the investigation. The Commission re-defined the domestic industry on the basis of all European 
producers that had come forward within the deadline given in the notice of initiation of the original 
investigation. None of those producers was excluded from the new definition of domestic industry. The fact remained, however, that the boundaries of the Commission's domestic industry definition 
were set by the notice of initiation of the original investigation. The producers that the Commission 
included in the new definition of domestic indu stry were those that had come forward after the 
issuance of the original notice of initiation, which stated clearly that only those producers that agreed to be part of the injury sample would be considered as cooperating. To us, this shows that 
the self-selection, or the mixing of the definition of domestic industry and the establishment of an 
injury sample that the Appellate Body identified in connection with the original investigation, continued to exist in the review investigation. In our view, therefore, the Commission's domestic 
industry definition in the review investigation also continued to suffer from a self-selection process 
that introduced a material risk of distortion.
 
7.297.  The fact that, as argued by the European Union, certain EU producers came forward within 
the relevant deadline and presented information to the Commission although they were unwilling 
to be part of an injury sample does not eliminate the risk of distortion in the process of defining the domestic industry. The European Union seeks to find support in the panel report in China – Autos (US), wherein the panel rejected the argument that the registration requirement 
imposed by the Chinese IA introduced a material ri sk of distortion by using a process capable of 
                                               
411 Appellate Body Report, EC – Fasteners (China) , para. 427. 
412 Ibid. paras. 428-429. 
413 Ibid. para. 429. WT/DS397/RW 
 
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  leading to self-selection among domestic producers in defining the domestic industry414, and 
invites this Panel to reject China's claim on the same basis.415 China contends that in the 
investigation at issue in China – Autos (US) the IA  had not defined the domestic industry on the 
basis of willingness to be included in the injury sa mple and that therefore that panel's findings are 
not relevant to the present claim.416 We do not find support for the European Union's position in 
China — Autos (US) . We note that the panel in that case examined a registration requirement 
which "require[d] interested parties to come forw ard by a deadline and make themselves known to 
the IA to be considered part of the domestic industry".417 The panel observed that an IA "must be 
allowed some flexibility in how it ensures an orderly conduct of its investigations, for instance by establishing deadlines for interested parties to come forward to be considered for inclusion in the domestic industry".
418 It reasoned "merely that domestic producers might choose not to participate 
does not mean that the registration requirement leads to a definition of domestic industry 
inconsistent" with the AD Agreement.419 Importantly, the panel added that "[p]rovided a 
registration requirement strikes an appropriate ba lance between the right of interested parties to 
participate in an investigation, and administrative efficiency, we see nothing in the relevant 
provisions that would preclude it".420 We are looking at something different from a registration 
requirement. In this case, the domestic industry was defined on the basis of producers that came 
forward and that agreed to be part of an eventual injury sample - clearly a more onerous 
undertaking than simply registering before a deadline because, in addition to registering, it requires a commitment to provide extensive informat ion that the IA will subsequently request. It 
seems to us that the facts before us dictate a different conclusion from that in China — 
Autos (US) , for the balance between orderly conduct of investigations and administrative efficiency 
found to exist in that case is not achieved with the more onerous requirements imposed on domestic producers in this case. Under the circumstances, we are not persuaded by the EU's 
argument based on the reasoning of the panel in China – Autos (US) .
 
7.298.  The European Union also refers to the Appellate Body report in US – Offset Act (Byrd 
Amendment), finding support in the Appellate Body's reje ction there of the view that a domestic 
producer's motivation in deciding to support an application for the initiation of an investigation was 
relevant to determining whether there was a violation of Article 5.4 of the AD Agreement.421 We 
recall that Article 5.4 addresses the degree of su pport or opposition on the part of domestic 
producers to an application for the initiation of an anti-dumping investigation, which is commonly 
referred to as "standing". We do not see a parallel in US — Offset Act (Byrd Amendment)  to our 
inquiry in this case. We have found that there was a risk of material distortion in the manner in which the domestic industry was defined because of the requirement to agree to be part of an 
injury sample. We do not thereby suggest that the domestic producers' motivation per se  is 
relevant to finding a violation of Article 4.1 of the AD Agreement. Nor does China make such an 
argument.
422 Moreover, the definition of domestic industry is made after the initiation of an 
investigation and is wholly unrelated to the issue of standing. We therefore do not find the 
Appellate Body's reasoning in US – Offset Act (Byrd Amendment)  to be relevant to the resolution of 
the issue before us.  
7.299.  For these reasons, we find that by defining the domestic industry on the basis of domestic 
producers that came forward in response to a notice of initiation which stated that only those 
producers willing to be included in the injury sample would be considered as cooperating, the Commission acted inconsistently with Article 4.1 of the AD Agreement. Further, we consider that a 
domestic industry definition based on a self-selection which introduced a material risk of distortion 
to the IA's injury analysis would necessarily render the resulting injury determination inconsistent with the obligation to make an objective injury analysis based on positive evidence laid down in 
Article 3.1 of the AD Agreement.
423 We therefore also conclude that the Commission's injury 
                                               
414 Panel Report, China – Autos (US) , paras. 7.213-7.214. 
415 European Union's first written submission, para. 250. 
416 China's second written submission, paras. 326-327. 
417 Panel Report, China – Autos (US) , para. 7.214. 
418 Ibid. para. 7.214. 
419 Ibid. para. 7.214. 
420 Ibid. para. 7.214. 
421 European Union's second written submission, paras. 200-201. 
422 China's opening statement, para. 102. 
423 This view is consistent with the Appellate Body's interpretation of Article 3.1 of the AD Agreement in 
the original proceedings. Appellate Body Report, EC – Fasteners (China) , para. 414. WT/DS397/RW 
 
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  determination, based on the data obtained from a wrongly-defined domestic industry, was 
inconsistent with Article 3.1 of the AD Agreement.424 
8  CONCLUSIONS AND RECOMMENDATION 8.1.  For the reasons set forth in this Report, the Panel concludes as follows: 
i. The European Union acted inconsistently with Article 6.5 of the AD Agreement by 
treating as confidential the information submitted by Pooja Forge regarding the list and characteristics of its products; 
ii. The European Union violated Articles 6.4 an d 6.2 of the AD Agreement by failing to 
provide the Chinese producers with timely opportunities to see the information on the list and characteristics of Pooja Forge's products; 
iii. The European Union violated Article 2.4 of  the AD Agreement by failing to provide 
the Chinese producers with information rega rding the characteristics of Pooja Forge's 
products that were used in determining normal values; 
iv. The European Union violated Article 2.4.2 of the AD Agreement by not taking into 
consideration, in its dumping determinations, Chinese producers' exports of models 
that did not match any of the models sold by Pooja Forge; 
v. The European Union's definition of domestic industry was inconsistent with 
Article 4.1 of the AD Agreement and the resulting injury determination was 
inconsistent with Article 3.1 of the AD Agreement. 
8.2.  For the reasons set forth in this Report, the Panel further concludes as follows: 
i. China has not established that by failing to ensure that the information provided by 
Pooja Forge concerning the list and characteristics of its products was made available 
promptly to the Chinese producers, the European Union acted inconsistently with the obligation set forth in Article 6.1.2 of the AD Agreement; 
ii. China has not established that by failing to  compare the prices of standard fasteners 
with the prices of standard fasteners in calculating dumping margins for the Chinese producers in the review investigation at issue, the European Union acted 
inconsistently with Article 2.4 of the AD Agreement; 
iii. China has not established that by failing to make adjustments for differences that 
affected price comparability, the European Union acted inconsistently with Article 2.4 of the AD Agreement. 
8.3.  Having found a violation of Article 6.5 with respect to the confidential treatment of 
information submitted by Pooja Forge regarding the list and characteristics of its products, the Panel refrains from making a finding with respect to China's claim under Article 6.5.1 of the 
AD Agreement concerning the non-confidential summary of the same information. Similarly, 
having found that the European Union violated Article 2.4.2 of the AD Agreement by not taking into consideration, in its dumping determinations, Chinese producers' exports of models that did 
not match any of the models sold by Pooja Forg e, the Panel refrains from addressing China's 
allegation that by doing so, the Commission al so violated Article 2.4 of the AD Agreement. 
8.4.  Our findings of violation of the AD Agreement demonstrate that the measure taken by the 
European Union to comply with the DSB recommendations and rulings is inconsistent with the 
AD Agreement. To the extent they have not been implemented, those recommendations and 
rulings remain operative. 
__________  
                                               
424 I n  t h i s  r e g a r d ,  w e  f i n d  s u pport in the panel reports in EC – Salmon (Norway)  and China – 
Autos (US) . See, Panel Reports, EC – Salmon (Norway) , para. 7.124 and China – Autos (US) , para. 7.210.