WT/DS473/11  
 
31 May 2016  
(16-2927)  Page: 1/4  
  Original: English  
   
 EUROPEAN UNION — ANTI-DUMPING MEASURES ON BIODIESEL FROM ARGENTINA 
NOTIFICATION OF AN OTHER APPEAL BY ARGE NTINA UNDER ARTICLE 16.4 AND ARTICLE 17 OF 
THE UNDERSTANDING ON RULES AND PROCEDURES  GOVERNING THE SETTLEMENT OF DISPUTES 
(DSU), AND UNDER RULE 23(1) OF THE WO RKING PROCEDURES FOR APPELLATE REVIEW 
The following communication, dated 25 May 2016, fr om the delegation of Argentina, is being 
circulated to Members. 
 
_______________ 
  
1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  ("DSU") and Rule 23 of the Working Procedures for 
Appellate Review (WT/AB/WP/6) ("Working Proced ures"), Argentina hereby notifies the Dispute 
Settlement Body ("DSB") of its decision to appeal certain issues of law covered in the Panel Report 
in European Union – Anti-Dumping Measures on Biodiesel from Argentina  (WT/DS473/R) 
("Panel Report") and certain legal interpretations developed by the Panel in that Report. 
2. Pursuant to Rules 23(1) and 23(3) of the Working Procedures, Argentina simultaneously files 
this Notice of Other Appeal and its Other Appellant Submission with the Appellate Body Secretariat. Argentina is providing as well an Executive Summary of the Other Appellant Submission, in accordance with the Guidelines in Respect of Executive Summaries of Written 
Submissions in Appellate Proceedings (WT/AB/23).  
3. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures, this Notice of Other Appeal includes 
an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice of Argentina's ability to refer to other paragraphs of the Panel Report in the context of 
this appeal. 
4. Argentina requests the Appellate Body to reverse various findings and conclusions of the 
Panel as a result of the errors of law and of legal interpretation contained in the Panel Report as 
identified below. 
1  REVIEW OF THE PANEL'S FINDINGS WI TH RESPECT TO ARGENTINA'S CLAIM UNDER 
ARTICLE 2.2.1.1 OF THE ANTI-DUMPING AGREEMENT CONCERNING ARTICLE 2(5) OF 
THE BASIC REGULATION 
5. Argentina seeks review by the Appellate Body  of the Panel's findings and conclusions 
concerning Argentina's claim that Article 2(5), second subparagraph, of Council Regulation 
No. 1225/2009 ("the Basic Regulation") is inconsistent as such with Article 2.2.1.1 of the 
Anti-Dumping Agreement. The Panel erred in its ap plication of Article 2.2.1.1 of the Anti-Dumping 
Agreement and failed to make an objective asse ssment, as required by Article 11 of the DSU, 
when it concluded that Article 2(5), second subparagraph, of the Basic Regulation is not 
inconsistent as such with Article 2.2.1.1.
1 In particular, Argentina has identified, inter alia , the 
following errors in the issues of law and legal interpretations developed by the Panel: 
- the Panel erred in the application of Article 2.2.1.1 of the Anti-Dumping Agreement 
when finding that Article 2(5), second subparagraph, of the Basic Regulation only 
                                               
1 Panel Report, paras. 7.127–7.154 and 8.1(b)(i). WT/DS473/11 
 
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  deals with what has to be done after the EU authorities have determined that a 
producer's records do not reasonably reflect the costs of production pursuant to the first subparagraph. Based on its incorrect understanding of the scope, meaning and content of Article 2(5), second subparagraph, of the Basic Regulation, the Panel 
erroneously concluded that Article 2(5), second subparagraph, is not inconsistent "as 
such" with Article 2.2.1.1 of the Anti-Dumping Agreement; 
 
- the Panel erred in the application of Article 2.2.1.1 of the Anti-Dumping Agreement 
when finding that Article 2(5), second subparagraph, of the Basic Regulation does not require the European Union to determine that a producer's records do not reasonably reflect the costs associated with the production and sale of the product under 
consideration when these records reflect prices that are considered to be artificially 
low or abnormally low as a result of a distortion. Based on its incorrect understanding of the scope, meaning and content of Article 2(5), second subparagraph, of the 
Basic Regulation, the Panel erroneously concluded that Article 2(5), 
second subparagraph, is not inconsistent "as such" with Article 2.2.1.1 of the Anti-Dumping Agreement; 
 
- the Panel failed to make an objective assessment of the matter before it when 
examining the scope, meaning and content of Article 2(5), second subparagraph, contrary to Article 11 of the DSU. 
 
6. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to 
complete the analysis by finding that Article 2(5), second subparagraph, of the Basic Regulation is 
inconsistent as such with Article 2.2.1.1 of the Anti-Dumping Agreement.  
7. Consequently, the Appellate Body should also reverse the Panel's findings and conclusions 
that Article 2(5), second subparagraph, of the Basic Regulation is not inconsistent with 
Article XVI:4 of the WTO Agreement and Ar ticle 18.4 of the Anti-Dumping Agreement.
2 
2  REVIEW OF THE PANEL'S FINDINGS WI TH RESPECT TO ARGENTINA'S CLAIM UNDER 
ARTICLE 2.2 OF THE ANTI-D UMPING AGREEMENT AND ARTICLE VI:1(B)(II) OF THE 
GATT 1994 CONCERNING ARTICLE 2(5) OF THE BASIC REGULATION 
8. Argentina seeks review by the Appellate Body  of the Panel's findings and conclusions 
concerning Argentina's claim that Article 2(5), second subparagraph, of the Basic Regulation is inconsistent as such with Article 2.2 of the Anti -Dumping Agreement and Article VI:1(b)(ii) of the 
GATT 1994. The Panel erred in its interpretation and application of Article 2.2 and of 
Article VI:1(b)(ii) and acted inconsistently with Article 11 of the DSU when it concluded that Article 2(5), second subparagraph, of the Basic Regulation is not inconsistent as such with these 
provisions.
3 In that respect, Argentina has identified, inter alia , the following errors in the issues of 
law and legal interpretations developed by the Panel:  
- the Panel erred in its interpretation of Article 2.2 of the Anti-Dumping Agreement and 
of Article VI:1(b)(ii) of the GATT 1994 when finding that these provisions "do not limit 
the sources of information that may be used in establishing the costs of production", 
that they do not "prohibit an authority resorting to sources of information other than producers' costs in the country of origin" but would "require that the costs of 
production established by the authorities reflect conditions prevailing in the country of 
origin"
4; 
 
                                               
2 Panel Report, paras. 7.175 and 8.1(b)(iii). 
3 Panel Report, paras. 7.155–7.174 and 8.1(b)(ii). 
4 Panel Report, para. 7.171. WT/DS473/11 
 
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  - the Panel erred in its application of Arti cle 2.2 of the Anti-Dumping Agreement and 
Article VI:1(b)(ii) of the GATT 1994 when finding that Article 2(5), second subparagraph, "is formulated in permissive terms" and only lays out a series of options for the EU authorities in establishing the costs and when finding that this 
measure concerns "the sources of information" as opposed to the costs themselves. 
Based on its incorrect understanding of the scope, meaning and content of Article 2(5), second subparagraph, of the Basic Regulation, the Panel erroneously 
concluded that the measure at issue is not inconsistent "as such" with Article 2.2 of 
the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994; 
 
- the Panel failed to make an objective assessment of the matter before it when 
examining the scope, meaning and content of Article 2(5), second subparagraph, of 
the Basic Regulation, contrary to Article 11 of the DSU; 
 
- the Panel applied an erroneous legal standard for the establishment of the "as such" 
claim when it found that Argentina was required to demonstrate that Article 2(5), second subparagraph "cannot be applied in a WTO-consistent manner".
5 
 
9. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to 
find that Article 2(5), second subparagraph, of the Basic Regulation is, as such, inconsistent with Article 2.2 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994. 
10. Consequently, the Appellate Body should also reverse the Panel's findings that Article 2(5), 
second subparagraph, of the Basic Regulation is not inconsistent with Article XVI:4 of the WTO Agreement and Article 18:4 of the Anti-Dumping Agreement.
6 
3  REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO ARGENTINA'S CLAIMS 
CONCERNING THE ANTI-DUMPING MEASURES  IMPOSED BY THE EUROPEAN UNION ON 
IMPORTS OF BIODIESEL FROM ARGENTINA 
3.1  Review of the Panel's findings with resp ect to Argentina's claim under Article 2.4 of 
the Anti-Dumping Agreement 
11. Argentina seeks review by the Appellate Body  of the Panel's findings and conclusions 
concerning Argentina's claim that the European Union violated Article 2.4 of the Anti-Dumping 
Agreement by failing to make a fair comparison between normal value and export price, and in 
particular, by failing to make due allowances for differences affecting price comparability.7 The 
Panel erred in its interpretation and application of Article 2.4 of the Anti-Dumping Agreement, 
amongst others, in the following respects: 
- the Panel erred in finding that the difference at issue is not a difference affecting price 
comparability, in particular because it is one that arose from the methodology used to 
construct the normal value; 
 
- the Panel erred when finding that its conclusion is consistent with the views of the 
Appellate Body in EC – Fasteners (China) (Article 21.5 – China) . 
 
12. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to 
find that the European Union violated Article 2.4 of the Anti-Dumping Agreement because by 
failing to make adjustment for differences affecting price comparability, including differences in 
taxation, it failed to make a fair comparison between the normal value and the export price. 
3.2  Review of the Panel's findings with re spect to Argentina's claim under Articles 3.1 
and 3.5 of the Anti-Dumping Agreement 
13. Argentina seeks review by the Appellate Body  of the Panel's findings and conclusions 
concerning Argentina's claim that the European Union violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in failing to ensure th at the injury caused by the overcapacity of 
                                               
5 Panel Report, para. 7.174. 
6 Panel Report, paras. 7.175 and 8.1(b)(iii). 
7 Panel Report, paras. 7.292–7.306 and 8.1(c)(v). WT/DS473/11 
 
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  the European Union industry was not attributed to the allegedly dumped imports.8 The Panel erred 
in the interpretation and application of Articles  3.1 and 3.5 of the Anti -Dumping Agreement when 
it concluded that the European Union did not act inconsistently with Articles 3.1 and 3.5 with respect to the treatment of overcapacity as an "oth er factor" of injury to the EU domestic industry. 
In that respect, Argentina has identified, inter alia , the following errors in the issues of law and 
legal interpretations developed by the Panel: 
- the Panel erred in its interpretation and application of the obligation to make an 
"objective examination" based on "positiv e evidence" of the overcapacity of the 
EU industry pursuant to Articles 3.1 and 3.5 of the Anti-Dumping Agreement; 
 
- the Panel erred in its application of Articles  3.1 and 3.5 when it failed to distinguish 
overcapacity from capacity utilization and when it failed to note the inconsistency of 
the EU authorities' conclusion in light of the evidence before it. 
 
14. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions with 
respect to Argentina's claim under Articles 3.1 and 3.5 of the Anti-Dumping Agreement with regard to the issue of overcapacity, and to find that th e European Union violated these provisions with 
respect to overcapacity as an "other factor" of injury to the EU domestic industry. 
3.3  Review of the Panel's findings with respect to Argentina's claim under 
Article 2.2.1.1 of the Anti-Dumping Agreement 
15. If the Appellate Body reverses the Panel's findings under Article 2.2.1.1 of the Anti-Dumping 
Agreement concerning the European Union's failure to calculate the cost of production of the 
product under investigation on the basis of the records kept by Argentinean producers, Argentina requests the Appellate Body to complete  the analysis of Argentina's second claim under 
Article 2.2.1.1 of the Anti-Dumping Agreemen t for which the Panel did not make findings.
9 
16. In that regard, Argentina requests the Appellate Body to find that the European Union acted 
inconsistently with Article 2.2.1.1 of the An ti-Dumping Agreement by including costs not 
associated with the production and sale of biodiese l in the calculation of the cost of production of 
that product.  
 
__________ 
                                               
8 Panel Report, paras. 7.462–7.472 and 8.1(c)(x). 
9 Panel Report, paras. 7.268–7.269 and 8.1(c)(iii).