WT/DS479/AB/R  
 
22 March  2018 
(18-1740) Page: 1/83 
  Original: English  
 
RUSSIA – ANTI -DUMPING DUTIES ON LI GHT COMMERCIAL VEHIC LES  
FROM GERMANY AND ITA LY 
AB-2017-3 
Report of the Appellate  Body 
  WT/DS479/AB/R  
 
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Table o f Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  11 
2   ARGUMENTS OF THE PAR TICIPANTS  ................................ ................................ .........  17 
3   ARGUMENTS OF THE THI RD PARTICIPANTS  ................................ ..............................  17 
4   ISSUES RAISED IN THI S APPEAL  ................................ ................................ ..............  17 
5   ANALYSIS OF THE APPE LLATE BODY  ................................ ................................ .........  19 
5.1   Definition of domestic industry  ................................ ................................ ..................... 19 
5.1.1    Introduction  ................................ ................................ ................................ ............ 19 
5.1.2    Panel's  findings  ................................ ................................ ................................ .......19 
5.1.3    Article  4.1 of the Anti -Dumping  Agreement  ................................ ................................ .21 
5.1.4    Whether the Panel erred in its interpretation and application of Articles  3.1 
and 4.1 of the Anti-Dumping Agreement  ................................ ................................ ............... 22 
5.1.5    Conclusions  ................................ ................................ ................................ ............. 28 
5.2   Price suppression ................................ ................................ ................................ ........ 28 
5.2.1    The 2009 rate of return used to construct the target domestic price  ............................... 29 
5.2.1.1    Introduction  ................................ ................................ ................................ ......... 29 
5.2.1.2    Panel's findings  ................................ ................................ ................................ .....29 
5.2.1.3    Articles  3.1 and 3.2 of the Anti -Dumping  Agreement  ................................ ................. 30 
5.2.1.4    Whether the Panel erred in its interpretation and application of Articles  3.1 
and 3.2 of the Anti -Dumping  Agreement in connection with the financial crisis  .......................... 32 
5.2.2    Article  11 of the DSU  ................................ ................................ ................................ 34 
5.2.2.1    Introduction  ................................ ................................ ................................ ......... 34 
5.2.2.2    Panel's findings  ................................ ................................ ................................ .....35 
5.2.2.3    Whether the Panel findings are internally incoherent and inconsistent  ......................... 36 
5.2.3    The abil ity of the market to absorb further price increases  ................................ ............ 40 
5.2.3.1    Introduction  ................................ ................................ ................................ ......... 40 
5.2.3.2    Panel's  findings  ................................ ................................ ................................ .....40 
5.2.3.3   Whether the Panel erred in its interpretation and application of Articles  3.1 and 
3.2 of the Anti -Dumping  Agreement in connection with further price increases  .......................... 41 
5.2.4    Conclusions  ................................ ................................ ................................ ............. 45 
5.3   Confidential investigation report  ................................ ................................ ................... 47 
5.3.1    Introduction  ................................ ................................ ................................ ............ 47 
5.3.2   Panel's findings  ................................ ................................ ................................ .......47 
5.3.3    Whether the Panel acted inconsistently with Article 11 of the DSU and Article 17.6 
of the Anti -Dumping Agreement  ................................ ................................ .......................... 48 
5.3.4    Conclusions  ................................ ................................ ................................ ............. 54 
5.4   Related dealer  ................................ ................................ ................................ ............ 55 
5.4.1    Introduction  ................................ ................................ ................................ ............ 55 
5.4.2    Panel's findings  ................................ ................................ ................................ .......55 
5.4.3    Whether the Panel erred in its interpretation of Articles 3.1 and 3.4 of the  Anti -
Dumping Agreement  ................................ ................................ ................................ .......... 56 WT/DS479/AB/R  
 
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5.4.4    Whether the Panel erred in its application of Articles 3.1 and 3.4 of the  Anti -
Dumping  Agreement  ................................ ................................ ................................ .......... 59 
5.4.5    Conclusions  ................................ ................................ ................................ ............. 60 
5.5   Essential facts  ................................ ................................ ................................ ............ 61 
5.5.1    Introduction  ................................ ................................ ................................ ............ 61 
5.5.2    Panel's findings  ................................ ................................ ................................ .......61 
5.5.3    Article  6.9 of the Anti -Dumping Agreement  ................................ ................................ .63 
5.5.4    Whether  the Panel erred in allegedly finding that an inconsistency with Article  6.5 
automatically entails an inconsistency with Article  6.9 ................................ ............................ 65 
5.5.5    Whether the Panel erred in its finding relating to the customs electronic database  ........... 67 
5.5.6    Completion of the analysis  ................................ ................................ ........................ 70 
5.5.7    Whether  the Panel erred in its interpretation and application of Article  6.9 of the 
Anti-Dumping  Agreement in relation to sources of information  ................................ ................. 72 
5.5.8    Completion of the analysis  ................................ ................................ ........................ 75 
5.5.9    Conclusions  ................................ ................................ ................................ ............. 76 
6   FINDINGS AND CONCLUS IONS  ................................ ................................ ..................  78 
6.1   Definition of domestic industry  ................................ ................................ ..................... 78 
6.2   Price suppression ................................ ................................ ................................ ........ 78 
6.3   Confidential investigation report  ................................ ................................ ................... 79 
6.4   Related dealer  ................................ ................................ ................................ ............ 80 
6.5   Essential facts  ................................ ................................ ................................ ............ 81 
6.6   Recommendation  ................................ ................................ ................................ ........ 82 
 
  WT/DS479/AB/R  
 
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ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article  VI of the General  Agreement 
on Tariffs and Trade 1994  
BCI  business confidential information  
confidential investigation 
report  Eurasian Economic Commission , DIMD , Findings from the 
anti-dumping investigation relating to light commercial vehicles 
originating in Germany, I taly, Poland and Turkey and imported into 
the common customs territory of the Customs Union  
(Confidential  version)  (Moscow , 2013) (Panel Exhibit RUS -14 (BCI) ) 
Customs Union  Customs Union between the Republic of Belarus, the Republic of 
Kazakhstan, and the  Russian Federation  
Customs Union Commission  Customs Union Commission  
DIMD  Department for Internal Market Defence of the EEC  
draft investigation report  Eurasian Economic Commission, DIMD, Report on the findings of  the 
anti-dumping investigation on imports of  light commercial vehicles 
from Germany, Italy, Poland, and Turkey  (Non-confidential version ) 
(Draft report , 28 March 201 3) (Panel  Exhibits EU -16 and RUS -10) 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
EAEU  Eurasian Economic Union  
EEC Eurasian Economic Commission  
electronic customs 
database  Electronic customs database of national customs authorities of the 
Customs Union between the Republic of Belarus, the Republic of 
Kazakhst an, and the Russian Federation  
Fiat Fabbrica Italiana Automobili Torino  
GATT 1994  General Agreement on Tariffs and Trade 1994  
GAZ Gorkovsky Avtomobilny Zavod  
LCVs light commercial vehicles  
MIT Ministry of Industry and Trade of the Russian Federation  
non-confidential 
investigation report  Eurasian Economic Commission , DIMD , Findings from the 
anti-dumping investigation  relating to light commercial vehicles 
originating in Germany, Italy, Poland, and Turkey and imported into 
the common customs territory of  the Customs Union (Moscow ,2013) 
(Non-confidential version) (Panel Exhibits EU -21 and RUS -12) 
Panel Interim Report  Interim Report of the Panel issued to the parties on 26  August  2016 
Panel Report  Panel Report, Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/R  and Add.1  
PCA Peugeot Citroen Automobiles  SA 
PCR Peugeot Citroën Russia   
period of injury assessment  1 January 2008 to 31 December 2011  
period of investigation  1 July 2010 to 30 June 2011  
RUB Russian roubles  
Sollers  Sollers -Elabuga  LLC 
USD US dollars  WT/DS479/AB/R  
 
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Abbreviation  Description  
Vienna Convention  Vienna Convention  on the Law of Treaties, d one at Vienna, 23 May 
1969, UN  Treaty Series, Vol. 1155, p.  331 
Working Procedures  Working Procedures for Appellate  Review , WT/AB/WP/6 , 16 August 
2010 
WTO World Trade Organization  
 
  WT/DS479/AB/R  
 
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PANEL EXHIBITS  CITED IN THIS REPORT  
Panel 
Exhibit  Short title  Description  
EU-4 Sollers' updated questionnaire 
response of 31 January 2013  Response dated 31 January 2013  by Sollers -Elabuga 
LLC to the EEC's  "Questionnaire to Determine Material 
Injury to an Industry in the Member States of the 
Customs Union for Manufacturers"   
(Non-confidential  version)  
EU-6 Turin Auto's updated 
questionnaire response of 
31 January 2013  Response dated 31 January 2013 by  Turin Auto to the 
EEC's " Questionnaire  for Trading Houses " 
(Non-confidential version)  
EU-8 Daimler's and Mercedes' 
comments of 16 March 2012 on 
the public hearing  Letter dated 16 March 2012 from Daimler AG and 
CJSC Mercedes -Benz RUS  to the MIT , concerning  
"Information to be presented … during the public 
hearings scheduled for 22 March 2012 in respect of 
the anti -dumping investigation concerning light 
commercial vehicles conducted by the Ministry for 
Industry and Trade of the Russian Federation un der 
the claim of OOO Sollers -Elabuga " 
(including  Annexes  1-9) 
EU-11 Volkswagen's comments  of 
6 April 2012 on the public 
hearing  Letter dated 6 April 2012 from Volkswagen AG to the 
MIT, concerning the public consultation of 22 March 
2012 (anti -dumping inv estigation on light commercial 
vehicles  from Germany, Italy, Poland and Turkey)  
EU-12 Annex 2 to Volkswagen's 
comments of 6  April 2012  Republic of Tartastan Business Center, Press  article, 
"Ford Sollers Elabuga plant delivered  first 1200 cars to 
dealers", 1  March 2012  
EU-16 draft investigation report  Eurasian Economic Commission,  DIMD, Results of the 
anti-dumping investigation with regard to light 
commercial vehicles originating in Germany, Italy, 
Poland and Turkey imported in to the common customs 
area of the Customs Union  (Non-confidential version) 
(Draft report , 28 March 2013 ) 
EU-19 Daimler 's and Mercedes' 
comments  of 11 April 2013  on 
the draft investigation report  Letter dated 11 April 2013 from Daimler AG and ZAO 
Mercedes -Benz RUS, concerning "Comments 
presented on the Report of 28 March 2013, prepared 
by the Department of Protection of Internal Market of 
the Eurasian Economic Commission on the preliminary 
findings of the anti -dumping investigati on in respect of 
light commercial vehicles originating in Germany, 
Italy, Poland and Turkey and imported into the 
common customs territory of the Customs Union of 
Russia, Belarus and Kazakhstan " 
EU-20 PCA's and PCR's comments  of 
11 April 2013  on the draft 
investigation report  Letter dated 11 April 2013  from Peugeot Citroën 
Automobiles SA  (PCA) and Peugeot Citroën Russia 
(PCR) , concerning " the report on the results of the 
anti-dumping investigation in respect of light 
commercial motor vehicles originated from Federal 
republic of Germany, Italian republic, Polish Republic 
and Republic of Turkey and imported into the common 
customs territory of the Customs Union " WT/DS479/AB/R  
 
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Panel 
Exhibit  Short title  Description  
EU-21 non-confidential  investigation 
report  Eurasian Economic Commission, DIMD, Findings from 
the anti -dumping investigation  relating to light 
commercial vehicles originating in Germany, Italy, 
Poland, and Turkey and imported into the common 
customs territory of the Customs Union (Non-
confidential version) (Moscow, 2013) 
EU-22 EEC Decision No. 113  Eurasian Economic Commission,  Board Decision 
No. 113 of 14 May 2013 , "Regarding the application of 
an anti -dumping measure by introducing an 
anti-dumping duty on light commercial vehicles 
originating from the Federal Republic of Germany, the 
Italian Republic and the Republic of Turkey, and 
imported into the common customs territory of the 
Customs Union " 
EU-31 Comments of the Association of 
Turkish exporters from the 
automotive industry  of 
11 February 2012  
 Letter dated 11 February 2012 ( No. 14/02 -11) from 
the Association of Turkish exporters from the 
automotive industry, concerning  the dumped import 
[and its conditions], the possible injury to the 
domestic industry, the causal link between the two 
and the national interest factor in the investigation  
RUS-2 Notice of Initiation  Ministry of Industry and Trade of the Russian 
Federation, Order No. 1587 (15 November 2011 ), 
Notice "On Initiation of Anti -dumping Investigation 
related to Light Commercial Vehicles Originating from 
German, Italy, Poland and Tu rkey and Imported into 
the Single Customs Territory of the Customs Union"  
RUS-10 draft investigation report  Eurasian Economic Commission, DIMD, Findings from 
the anti -dumping investigation relating to light 
commercial vehicles originating from Germany, I taly, 
Poland and Turkey and imported into the single 
customs territory of the Customs Union  
(Non-confidential version) (Draft report , 28 March 
2013) 
RUS-12 non-confidential i nvestigation 
report  Eurasian Economic Commission, DIMD, Findings from 
the anti -dumping investigation  relating to light 
commercial vehicles originating in Germany, Italy, 
Poland, and Turkey and imported into the common 
customs territory of the Customs Union of the 
Department for Internal Market Defence  of the 
Eurasian Economic Commissio n (Non-confidential 
version)  (Moscow,  2013)  
RUS-14 
(BCI)  Confidential investigation 
report  Eurasian Economic Commission, DIMD, Findings from 
the anti -dumping investigation relating to light 
commercial vehicles originating in Germany, Italy, 
Poland and Turkey and imported into the common 
customs territory of the Customs Union 
(Confidential  version) (Moscow , 2013)  
RUS-18 EEC Letter No. 14 -176  Letter No. 14 -176 dated 11 April 2013  from the 
Eurasian Economic Commission  to ZAO Mercedes -Benz 
RUS and OOO Volkswagen Group RUS  
 
  WT/DS479/AB/R  
 
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CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/AB/R , adopted 12 January 2000, DSR 2000:I, p. 515  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, p.  3327 
Australia – Salmon  Panel Report, Australia – Measures Affecting Importation of Salmon , WT/DS18/R  
and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report 
WT/DS18/AB/R, DSR 1998:VIII, p. 3407  
Canada  – Renewable 
Energy / Canada – Feed-
in Tariff Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, DSR 2013:I, 
p. 7 
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on Broiler 
Products from the United States , WT/DS427/R  and Add.1, adopted 25 September 
2013, DSR 2013:IV, p. 1041  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/AB/R , 
adopted 16 November 2012, DSR 2012:XII, p. 6251  
China – GOES  Panel Report, China – Countervailing a nd Anti -Dumping Duties on Grain Oriented 
Flat-Rolled Electrical Steel from the United States , WT/DS414/R  and Add.1, 
adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R, 
DSR 2012:XII, p. 6369  
China – HP-SSST (Japan) 
/ China – HP-SSST (E U) Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from the European Union , WT/DS454/AB/R  
and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28  October 2015  
China – HP-SSST (Japan) 
/ China – HP-SSST (EU)  Panel Reports, China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel  Seamless Tubes ("HP -SSST") from Japan / China – 
Measures Imposing Anti -Dumping Duties on High -Performance Stainless Steel 
Seamless Tubes ("HP -SSST") from the European Union , WT/DS454/R  and Add.1 / 
WT/DS460/R , Add.1 and Corr.1, adopted 28 October 2015, as modified by 
Appellate Body Reports WT/DS454/AB/R / WT/DS460/AB/R  
Colombia – Textiles  Appellate Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add. 1, adopted 22 June 
2016 
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting Asbestos and 
Asbestos -Containing Products , WT/DS135/AB/R , adopted 5 April 2001, DSR 
2001:VII, p. 3243  
EC – Countervailing 
Measures on DRAM Chips  Panel Report, European Communities – Countervailing Measures on Dynamic 
Random Access Memory Chips from Korea , WT/DS299/R , adopted 3 August 2005, 
DSR 2005:XVIII, p. 8671  
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopt ed 
28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R, DSR 
2011:VIII, p. 4289  
EC – Fasteners (China) 
(Article 21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 
of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 12 February 2016  
EC – 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 – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / WT/DS401/AB/R , 
adopted 18 June 2014, DSR 2014:I, p. 7  WT/DS479/AB/R  
 
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Short Title  Full Case Title and Citation  
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 – Anti-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  
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast 
Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 18  August  2003, as 
modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701  
EC and certain member 
States – Large Civil 
Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Tr ade in Large Civil Aircraft , WT/DS316/AB/R , adopted 1 June 
2011, DSR 2011:I, p. 7  
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  
India – Solar Cells  Appellate Body Report, India – Certain Measures Relating to Solar Cells and Solar 
Modules , WT/DS456/AB/R  and Add.1, adopted 14 October 2016  
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy P roducts , WT/DS98/AB/R , adopted 12 January 2000, DSR 2000:I, 
p. 3 
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 20  December 
2005, DSR 2005:XXII, p. 10853  
Mexico – Olive Oil  Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from the 
European Communities , WT/DS341/R , adopted 21 October 2008, DSR 2008:IX, 
p. 3179  
Russia – Commercial 
Vehicles  Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add.1, circulated to WTO Members 27 
January 2017  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of I ron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/AB/R , 
adopted 5 April 2001, DSR 2001:VII, p. 2701  
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 – Anti-Dumping and 
Countervailing Duties 
(China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , adopted 
25 March 2011, DSR 2011:V, p. 2869  
US – Anti-Dumping 
Methodologies (China)  Appellate Body Report, United States – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  and 
Add.1, adopted 22 May 2017  
US – Anti-Dumping 
Methodologies (China)  Panel Report, United States – Certain Methodologies and Their Application to Anti -
Dumping Proceedings Involving China , WT/DS471/R  and Add.1, adopted 22 May 
2017, as modified by Appellate Body Report WT/DS471/AB/R  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p.  3779 
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19 February 2009, DSR 
2009:III, p. 1291  
US – Countervailing Duty 
Investigation on DRAMS  Panel Report, United States – Countervailing Duty Investigation on Dynamic 
Random Access Memory Semiconductors (DRAMS) from Korea , WT/DS296/R , 
adopted 20 July 2005, as modified by Appellate Body Report WT/DS296/AB/R, 
DSR 2005:XVII, p. 8243  
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
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  WT/DS479/AB/R  
 
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Short Title  Full Case Title and Citation  
US – Large Civil Aircraft 
(2nd complaint)  Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 23  March 2012, DSR 
2012:I, p. 7  
US – Section 211 
Appropriations Act  Appellate Body Report, United States – Section 211 Omnibus Appropriations Act 
of 1998 , WT/DS176/AB/R , adopted 1 February 2002, DSR 2002:II, p.  589 
US – Softwood Lumber VI 
(Article  21.5 – Canada)  Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to Article  21.5 of the 
DSU by Canada , WT/DS277/AB/RW , adopted 9 May 2006, and Corr.1, DSR 
2006:XI, p. 4865  
US – Steel Safeguards  Appellate Body Report, United States – Definitive Safeguard Measures on Imports 
of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , WT/DS251/AB/R , 
WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , WT/DS258/AB/R , 
WT/DS259/AB/R , adopted 10 December 2003, DSR  2003:VII, p. 3117  
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 – Washing Machines  Appellate Body Report,  United States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea , WT/DS464/AB/R  and Add.1, 
adopted 26 September 2016  
  WT/DS479/AB/R  
 
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WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Russia – Anti-Dumping Duties on Light 
Commercial Vehicles from Germany and 
Italy  
 
Russian Federation , Appellant/ Appellee  
European Union , Other Appellant /Appellee  
 
Brazil , Third Participant  
China , Third Participant  
Japan , Third Participant  
Korea , Third Participant  
Turkey, Third Participant  
Ukraine, Third Participant  
United States, Third Participant  AB-2017-3 
 
Appellate Body Division :  
 
Zhao, Presiding Member  
Bhatia , Member  
Servansing , Member  
 
 
1  INTRODUCTION  
1.1.  The Russian Federation (Russia) and the European  Union  each appeals certain issues of law 
and legal interpretations developed in the Panel Report,  Russia – Anti-Dumping Duties on Light 
Commercial Vehicles from Germany and Italy1 (Panel Report). The Panel was established  on 
20 October 20142 to consider a complaint by the European  Union3 with respect to the consistency 
of the levying of certain anti -dumping duties by Russia with the Agreement on Implementation of 
Article  VI of the General Agreement on Tariffs and Trade 1994 (Anti­Dumping Agreement) and the 
General Agreement on Tariffs and Trade 1994 (GATT 1994) . The factual aspects of this dispute are 
set forth in greater detail in the Panel Report . 
1.2.  Following consultation with the parties, the Panel adopted its Working Procedures  on 
1 December 2015  and Additional Wo rking Procedures Concerning Business Confidential 
Information on 14 January 2016 .4 
1.3.  Before the Panel, the European  Union  raised several  claims5 in relation to anti-dumping 
duties levied by Russia on certain light commercial vehicles (LCVs) from Germany and Italy 
pursuant to Decision No. 113 of 14 May 2013  of the Board of the Eurasian Economic Commission 
(EEC)6, including related  annexes,  notices , and reports of the Department for Internal Market 
Defence of the EEC (DIMD).7 Specifically, t he European  Union  claimed that the measure at  
                                                
1 WT/DS479/R , 27 January 2017.  
2 WT/DSB/M/ 351, para. 5.4 . 
3 Panel Report, para. 1.3; Request for the Establishment of a Panel by the European Union, 
WT/DS479/2.  
4 Panel Report, paras. 1.8.a and 1.8.c, and Annexes A -1 and A -2. 
5 Panel Report, paras. 3.1.a -3.1.i; European Union's first written submission to the Pane l, para. 453.  
6 See Eurasian Economic Commission, Board Decision No.  113 of 14 May 2013, "Regarding the 
application of an anti -dumping measure by introducing an anti -dumping duty on light commercial vehicles 
originating from the Federal Republic of Germany , the Italian Republic and the Republic of Turkey, and 
imported into the common customs territory of the Customs Union " (Panel Exhibit EU -22). 
7 While the European  Union challenged anti -dumping duties imposed by Russia, it was the DIMD that 
completed the a nti-dumping investigation underlying the decision to impose those duties. When the 
European  Union requested consultations (on 21  May 2014) with Russia in relation to this dispute, Russia was 
the only WTO  Member that was part of the then called Customs Unio n between Belarus, Kazakhstan, and 
Russia (the  Customs Union), which is now the Eurasian Economic Union  (EAEU).  WT/DS479/AB/R  
 
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issue8 was inconsistent with  the following provisions of the Anti -Dumping  Agreement : 
(i) Articles  3.1 and  4.1 by excluding Gorkovsky Avtomobilny Zavod  (GAZ) from the definition of 
domestic industry; (ii)  Articles  3.1, 3.2, 3.4 , and 3.5 by selecting non -consecutive periods of 
non-equal duration for the examination of the trends in the domestic industry ; (iii) Articles  3.1 and 
3.2 by failing to analyse properly  price suppression ; (iv) Articles  3.1 and 3.4 by failing to evaluat e 
properly all injury factors;  (v) Articles  3.1 and 3.5 by failing to examine properly (a) the causal 
relationship between the imports at issue and the alleged injury , and (b) factors other  than the 
imports at issue that have injured the domestic industry;  (vi) Article  6.5 by according confidential 
treatment to information without a proper showing of "good cause "; (vii) Article  6.5.1 by failing to 
require interested parties to provide proper non-confidential summaries or to explain why 
summarization was not possible;  and (viii)  Article  6.9 by failing to inform the interested parties of 
the essential facts under consideration which  formed the basis for the decision to impose 
anti-dumping measures . As a consequence of these inconsistencies, the European  Union  claimed 
that Russia also acted inconsistently with Articles  1 and 18.4 of the A nti-Dumping  Agreement and 
Article  VI of the GATT 1994 . 
1.4.  In the Panel Report, circulated to Member s of the World Trade Organization (WTO) on  
27 January 2017 , the Panel found that:  
a. with respect to the definition of domestic industry:  
i. the DIMD  acted inconsistently with Article  4.1 of the Anti -Dumping Agreement in its 
definition of "domestic industry"9; and 
ii. the DIMD acted inconsistently with Article  3.1 of the Anti -Dumping Agreement 
because it undertook its injury and causation analyses on the basis of information 
related to an impro perly defined domestic industry10; 
b. the European  Union  had failed to estab lish that the DIMD acted inconsistently with 
Article  3.1 of the Anti -Dumping Agreement by purportedly using "non-equal  and 
non-consecutive " periods  in the examination of developments  in injury indicators for the 
domestic industry11; 
c. with respect to price su ppression:   
i. the DIMD acted inconsistently with Articles  3.1 and 3.2 of the Anti -Dumping 
Agreement by failing to take into account the impact of the financial crisis in its price 
suppression analysis12; 
ii. the European  Union  had not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement  because the DIMD mixed data 
                                                
8 The product at issue in the underlying anti -dumping investigation was LCVs originating from Germany, 
Italy, Poland, and Turkey and  imported in to the then territory of the Customs Union. The LCVs investigated 
were those with a gross vehicle weight of 2.8 tonnes to 3.5 tonnes inclusive, van -type bodies, with a diesel 
engine with cylinder capacity not exceeding 3.000 cc, "designed for the transport  of cargo of up to two tonnes 
(cargo all -metal van version) or for the combined transport of cargo and passengers (combi cargo and 
passenger van version) falling under HS  code 8704 21 310 0 and HS code 8704 21 910 0". (European Union's 
first written submis sion to the Panel, para. 11 . See also Eurasian Economic Commission, DIMD, Findings from 
the anti -dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland and 
Turkey and imported into the common customs territory of the Customs Union of the Department for Internal 
Market Defence of the Eurasian Economic Commission  (Non-confidential version)  (Moscow , 2013) 
(non-confidential investigation report )(Panel Exhibits EU -21, p. 16  and RUS -12, p. 15 ); Notice of Initiation 
(Panel Exhibit RUS -2), p. 1) . 
9 Panel Report, paras.  7.16 and 8.1.a.  
10 Panel Report, paras.  7.16 and 8.1.b.  
11 Panel Report, paras.  7.53 and 8.1.c. Having reached this conclusion, the Panel also rejected the 
European Union's consequential claims of inconsis tency under Articles  3.2, 3.4, and 3.5 of the 
Anti-Dumping  Agreement.  
12 Panel Report, paras.  7.67, 7.108.a, and 8.1.d.i.  WT/DS479/AB/R  
 
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expressed in US dollars ( USD) and Russian r oubles ( RUB) without any explanation in 
its price suppression analysis13;  
iii. the European  Union  had not established that the DIMD's consideration of whether 
the subject imports have "explanatory force " for the occurrence of significant  
suppression of domestic prices was inconsistent with Articles  3.1 and 3.2  of the 
Anti-Dumping Agr eement14; and 
iv. the European  Union  had not establish ed that the  DIMD did not demonstrate that the 
alleged price suppression  was "to a significant degree " because the DIMD did not 
compare  the target domestic  prices and the actual prices for the domestic like 
product15; 
d. with respect to the  state of the domestic industry:   
i. the European  Union  had not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement  in its consideration of 
profit/profitability  data16; 
ii. the European  Union  had not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement  in its consideration of 
inventories d ata17; 
iii. the European  Union  had not established that the DIMD acted inconsistently w ith 
Articles 3.1 and 3.4 of the Anti -Dumping Agreement  by failing to compare 
systematically data for 2011 with data for 2008 for all economic indicators18; 
iv. the European  Union  had not established that the DIMD failed to examine objectively 
the domestic industry's profit/profitability during the period of investigation , the first 
half of  2011, and the full year of 201119;  
v. the European  Union  had not established that the DIMD assumed that the exceptional 
positive developments in the  domestic industry during 2009 could continue during 
2010-2011 without more explanation and "base[d] its conclusions on a comparison 
between these two time periods"20; 
vi. the European  Union  had not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement by failing to  consider whether  
the market w ould accept further price increases21; 
vii. the European  Union  had not established that the DIMD acted inconsistently with 
Articles  3.1 and 3.4  of the Anti -Dumping Agreement  by failing to address specifically 
the interested parties'  argument s on the comparison of the domestic industry' s 
market share in 2010 and 200822; 
viii. the European  Union  had not established that the DIMD acted inconsistently with 
Article s 3.1 and  3.4 of the Anti-Dumping Agreement by  failing to  evaluate the 
inventories of independent dealers  and the reason for the increase in inventories23; 
                                                
13 Panel Report, paras.  7.73, 7.108.b, and 8.1.d.ii.  
14 Panel Report, paras.  7.108.c and 8.1.d.iii.  
15 Panel Report, paras.  7.107, 7.108.d, and 8.1.d.iv.  
16 Panel Report, paras.  7.117, 7.173.a, and 8.1.e.i.  
17 Panel Report, paras.  7.123, 7.173.b, and 8.1.e.ii.  
18 Panel Report, paras.  7.133, 7.173.c, and 8.1.e.iii.  
19 Panel Report, paras.  7.138, 7.173.d, and 8. 1.e.iv.  
20 Panel Report, paras.  7.141, 7.173.e, and 8.1.e.v.  
21 Panel Report, paras.  7.143, 7.173.f, and 8.1.e.vi.  
22 Panel Report, paras.  7.153, 7.173.g, and 8.1.e.vii.  
23 Panel Report, paras.  7.155, 7.157, 7.173.h, and 8.1.e.viii.  WT/DS479/AB/R  
 
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ix. the DIMD acted inconsistently with Article  3.4 of the Anti -Dumping Agreement  by 
failing to evaluate the mag nitude of the m argin of dumping24; and 
x. the European  Union  had not established that the DIMD acted inconsistently with 
Article s 3.1 and  3.4 of the Anti -Dumping Agreement by failing to evaluate the 
domestic industry's return on investments, actual and potential effects on c ash flow , 
and the ability to raise capital or investments25; 
e. with respect t o causation and non -attribution:  
i. the DIMD acted inconsistently with Article s 3.1 and  3.5 of the Anti -Dumping 
Agreement  insofar as it relied on its price suppression  analysis  in its causation 
determination26; 
ii. the European Union had  failed to establish that the DIMD's determination that the 
increased volume of dumped imports caused material injury to the domestic industry 
was inconsistent with Articles  3.1 and 3.5  of the Anti -Dumping Agreement27; 
iii. the European Union had  failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement by failing to conduct a proper 
non-attribution analysis of the termination of the licence agreement  with 
Fabbrica  Italiana Automobili Torino  (Fiat)28; 
iv. the European Union had  failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement in its non -attribution analysis of 
the competition from GAZ29; 
v. the European U nion had  failed to establish that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement by failing to consider the alleged 
financing difficulties as an "other factor" causing injury30; 
vi. the European Union had  failed to establi sh that the DIMD acted inconsistently with 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement by failing to consider the alleged 
discontinuation of the government support programmes as an "other factor" causing 
injury31; and 
vii. the DIMD acted inconsistently wi th Articles  3.1 and 3.5 of the Anti -Dumping 
Agreement by failing to : (a) examine whether the alleged  overly ambitious business 
plan of Sollers -Elabuga LLC  (Sollers) , in particular its level of capacity, was causing 
injury to the domestic industry at the same time as dumped imports ; and, if so, (b) 
separat e and distinguish the injurious effects of that factor from the injurious effect s 
of the dumped imports32; 
                                                
24 Panel Report, paras.  7.162, 7.174, and 8.1.e.ix.  
25 Panel Report, paras.  7.172, 7.173.i, and 8.1.e.x.  
26 Panel Report, paras.  7.182. 7.236, and 8.1.f.i.  
27 Panel Report, paras.  7.237.a and 8.1.f.ii.  
28 Panel Report, paras.  7.202, 7.237.b, and 8.1.f.iii.  
29 Panel Report, paras.  7.214, 7.237.c, and 8.1.f.iv.  
30 Panel Report, paras.  7.230, 7.237.d, and 8.1.f.v.  
31 Panel Report, paras.  7.235, 7.237.e, and 8.1.f.vi.  
32 Panel Report, paras.  7.226, 7.237, and 8.1.f.vii.  WT/DS479/AB/R  
 
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f. with respect to confidentia l treatment  of information : 
i. the DIMD acted inconsistently with Article  6.5 of the Anti -Dumping Agreement by 
treating all information set out in Table 11  of the Panel Report as confidential in the 
absence of any showing of "good cause "33; and 
ii. the European Union had  failed to  establish that the DIMD treated the Sollers letter 
dated  25 December 2012 and the letter of the Association of Russian Automakers 
dated  11 February 2013  as confidential34; 
g. with respect to claims concerning the disclosure of essential fac ts: 
i. the European Union had  failed to establish that the DIMD acted inconsistently with 
Article  6.9 of the Anti -Dumping Agreement by failing to inform  all interested parties 
of the information listed in items (a) to ( c) of Table 12  in paragraph 7.278  of the 
Panel Report35; and 
ii. the DIMD acted inconsistently with Article  6.9 of the Anti -Dumping Agreement by 
failing to inform all interested parties of  the information listed in items ( d) to ( o) of 
Table 12  in paragraph  7.278 of the Panel Report36; and 
h. with respect to the European  Union 's consequential claims :  
i. Russia acted inconsistently with  Article  1 of the Anti -Dumping Agreement and 
Article  VI of the GATT 199437; and 
ii. the European  Union  had not established its consequential claim under Article  18.4 of 
the Anti-Dumping Agreement .38 
1.5.  In accordance  with Article  19.1 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and having found that Russia acted inconsistently with certain 
provisions of the Anti -Dumping Agreement and th e GATT 1994, the Panel recommended that 
Russia bring its measure into conformity with its obligations under those Agreements.39 
1.6.  On 20 February 2017 , Russia notified the Dispute Settlement Body ( DSB), pursuant to 
Articles  16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the 
Panel Report and certain legal interpretations developed by the Panel , and filed a Notice of 
Appeal40 and appellant's submission pursuant to Rule  20 and Rule 21, respectively, of the 
Working  Procedure s for Appellate  Review41 (Working Procedures). On  27 February 2017 , the 
European  Union  notified the DSB, pursuant to Articles  16.4 and 17 of the DSU, of its intention to 
appeal certain issues of law covered in the Panel Report and certain legal interpretati ons developed 
by the Panel , and filed a Notice of Other Appeal42 and other appellant's submission  pursuant to 
Rule 23 of the Working  Procedures .  
1.7.  On 24  February  2017, the Appellate Body received a communication from the United  States 
requesting an extension of the deadline for filing third participants' submissions. On 1  March  and 
3 March  2017, the Appellate Body received a communication from Russia and the European  Union , 
respectively, requesting an extension of the deadline for filing appellees' submissions. After having 
invited the participants and third participants to comment on these  requests, the Divi sion issued a 
Procedural Ruling  on 4 March  2017, extending the deadline for filing appellees' submissions to 
                                                
33 Panel Report, para.  8.1.g.i. See also para.  7.247. In light of this findin g, the Panel did not consider it 
necessary to address the European Union's claims under Article  6.5.1 of the Anti -Dumping Agreement . 
(Ibid.,  paras.  7.249 and 8.2)  
34 Panel Report, paras.  7.246.d and 8.1.g.ii.  
35 Panel Report, paras.  7.278 and 8.1.h.i.  
36 Panel Report, paras.  7.278 and 8.1.h.ii.  
37 Panel Report, paras.  7.280 and 8.3.a.  
38 Panel Report, paras.  7.281 and 8.3.b.  
39 Panel  Report, para. 8.5.  
40 WT/DS479/6.  
41 WT/AB/WP/6 , 16 August 2010.  
42 WT/DS479/7.  WT/DS479/AB/R  
 
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14 March  2017, and the deadline for filing third participant's submissions and notifications under 
Rule 24(1) and (2) of the Working Procedures to 17 March 2017.43  
1.8.  On 14 March  2017, the European  Union  and Russia each filed an appellee's submission .44 
On 17 March  2017, Brazil, Japan, Ukraine, and the United States  each filed a third participant's 
submission .45 On the same day, Korea  notified its intention to a ppear at the oral hearing as a 
third participant .46 Subsequently, China and Turkey each  notified its intention to appear at the 
oral hearing as a third participant.47 
1.9.  By letter dated  13 April 2017, the Chair of the Appellate Body notified the Chair of the DSB 
that the Appellate  Body would not be able to circulate its Report in this appeal wit hin the 
60-day period pursuant to Article  17.5 of the DSU , or within the 90 -day period pursuant to the 
same provision .48 The Chair of the Appellate  Body explained that this was due to a number of 
factors, including the substantial workload of the Appellate  Body in 2017, scheduling issues arising 
from overlap in the composition of the Divisions hearing different appeals, the number and 
complexity of the issues raised in this and concurrent appellate proceedings, together with the 
demands that these appellate proceedings place on the WTO Secretariat's translation services, and 
the shortage of staff in the Appellate  Body Secretariat.  By letter dated  8 March  2018, the Chair of 
the Appellate  Body informed the Chair of the DSB that the Report in these pro ceedings would be 
circulated no later than 22 March  2018.49 
1.10.   On 11  September  2017, the Chair of the Appellate  Body notified the participants and 
third participants that Appellate Body Member Mr Hyun Chong Kim, a member of the Division 
selected to hear this a ppeal, had resigned on 1  August  2017 pursuant to Rule 14 of the 
Working  Procedures with immediate effect. The Chair of the Appellate  Body indicated that, 
pursuant to Rules 6(2) and 13 of the Working Procedures, Appellate Body Member Mr Shree B.C. 
Servansing replace d Mr Kim on the Appellate Body Division hearing this appeal . 
1.11.   On 21  September  2017, Russia requested the Division hearing this appeal to reschedule the 
oral hearing from 13 -14 November 2017 to the middle of January 20 18. On 22  September  2017, 
the Division invited the European  Union  and the third participants to comment on Russia's request. 
In a letter dated  25 September  2017, the European  Union  objected to Russia's request to delay 
the hearing. By letter dated 27 September  2017, the Divisio n informed the participants and third 
participants that it was not in a position to accommodate Russia's request .  
1.12.   By letter dated 23 October  2017, Russia and the European  Union  jointly requested the 
Division hearing this appeal to adopt  additional procedures for the protection of business 
confidential information ( BCI) in these appellate proceedings . On 25 October  2017, the Division 
invited the third participants to comment on the joint request . By letter dated 27 October 2017, 
the United  States commented on the suggested  provision regarding  the resolution of any 
disagreement on the BCI designation of information. No other third participant commented on the 
joint request . On 7 November  2017, the Division issued a Procedural Ruling accordin g additional 
protection, on specified terms,  to the information that the Panel treated as BCI in its Report and in 
the Panel record .50 
                                                
43 On 6 March  2017, in order to rectify a clerical error, a corrected version of the Procedural Ruling and 
a revised Working Schedule for this appeal were conveyed to the participants and third participants.  The 
corrected Procedural Ruling  is contained in An nex D -1 of the Addendum to this Report 
(WT/DS479/AB/R/Add.1).  
44 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
45 Pursuant to Rule 24(1) of the Working Procedures.  
46 Pursuant to Rule 24(2) of the Working Procedures.  
47 On 7 and 8 November 2017, respectively, China and Turkey submitted their delegation lists for the 
oral hearing to the Appellate  Body Secretariat and the participants and third participants in this dispute. For 
purposes of this appeal, we have interpreted China's and Turkey's action  to be a notification expressing the 
intention to attend the oral hearing pursuant to Rule  24(4) of the Working Procedures.  
48 WT/DS479/8.  
49 WT/DS479/9.  
50 The Procedural Ruling is contained in Annex D -2 of the Addendum to this Report 
(WT/DS479/AB/R/Add.1).  WT/DS479/AB/R  
 
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1.13.   The oral hearing in this appeal was held on  13-14 November 2017 . The participants and 
four of the third participants  (Japan, Ukraine, Turkey, and the United States)  made 
oral statements and responded to questions posed by the Members of the Division hearing the 
appeal.  
2  ARGUMENTS OF THE PAR TICIPANTS  
2.1.  The claims and arguments of the participants are reflected in the executiv e summaries of 
their written submissions provided to the Appellate  Body.51 The Notice s of Appeal and 
Other  Appeal, and the executive summaries of the participants' claims and arguments, are 
contained in Annexes  A and B of the Addendum to this Report , WT/DS4 79/AB/R/Add.1 . 
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
3.1.  The arguments  of the third participants that filed a written submission ( Brazil, Japan, 
Ukraine, and the United States ) are reflected in the executive summar ies of their written 
submissions provided to the  Appellate  Body52, and are contained in Annex  C of the A ddendum to 
this Report, WT/DS479/AB/R/Add.1 . 
4  ISSUES RAISED IN THI S APPEAL  
4.1.  The following issues are raised in this appeal : 
a. whether the Panel erred in its interpretation and application of Article s 3.1 and 4.1 of the 
Anti-Dumping  Agreement in finding that the DIMD acted inconsistently with these 
provision s in its definition of "domestic industry"  (raised by Russia);  
b. with respect to price suppression:  
i. whether the Panel erred in its interpretation and appli cation of Articles 3.1 and 3.2 of 
the Anti -Dumping Agreement in finding that the DIMD acted inconsistently with these 
provisions because it failed to take into account the impact of the financial crisis in 
determining the rate of return used to construct t he target domestic price for its 
price suppression analysis (raised by Russia);  
ii. whether the Panel failed to make an objective assessment under Article 11 of the 
DSU in finding that the European  Union had not established that the DIMD acted 
inconsistently w ith Articles  3.1 and 3.2 of the Anti -Dumping  Agreement when 
assessing the "explanatory force" of dumped imports for price suppression and 
whether the degree of price suppression was "significant " (raised by the 
European  Union);  
- conditionally, in the event the Appellate Body disagrees with the 
European  Union's claims under Article  11 of the DSU, whether the Panel erred in 
its interpretation and application of Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement in finding that the DIMD's methodology  will necessarily show that the 
dumped imports have "explanatory force " for the existence of price suppression 
(raised by the European  Union);  and 
- in the event that the Appellate Body reverses the Panel's findings  in this regard , 
whether the Appellate Body  can complete the analysis and find that the DIMD 
acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by 
failing to consider whether the dumped imports have explanatory force for the 
existence of "significant " price suppression (re quested by the European Union);  
                                                
51 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive  Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March 2015 ).  
52 Pursu ant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive  Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March 2015 ).  WT/DS479/AB/R  
 
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iii. whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of 
the Anti -Dumping Agreement in finding that the evidence on the record was not 
sufficient to require an objective and unbiased investigating authority to consider 
whether the market would absorb price increases beyond those that actually took 
place in the context of its consideration of price suppression  (raised by the 
European  Union);  
- conditionally, in the event that the Appella te Body reverses the Panel's findings  in 
this regard , whether  the Appellate Body can complete the analysis and find that 
the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement  by failing to examine whether the market would ac cept additional 
domestic price increases  (requested by the European  Union);  
c. whether, by basing its assessment of the European Union's claims under A rticles 3.1 and 
3.4 of the  Anti-Dumping Agreement on parts of the confidential investigation report,  the 
Panel failed to: (i) make an objective assessment of the matter before it pursuant to  
Article 11 of the DSU; and (ii) determine whether the DIMD's establishment of the facts 
was proper and whether its evaluation of those facts was unbiased and objective  within 
the mean ing of Article 17.6 of the Anti -Dumping Agreement (raised by the 
European  Union);  
i. conditionally, in the  event that the Appellate Body reverse s the Panel findings, 
whether the Appellate Body can complete the analysis and find that the DIMD acted 
inconsistently with Articles 3.1 and 3.4 of the Anti –Dumping Agreement by failing to 
evaluate the three injury factors at issue  (requested by the European  Union);  
d. with respect to dealers  related to Sollers , whether the Panel erred in its interpretation 
and application of Articles 3.1 and 3.4 of the Anti -Dumping Agreement in finding that the 
DIMD was not required to evaluate the inventory information of Turin Auto  in examining 
injury to the domestic industry (raised by the European  Union);  and 
e. with respect to the disclosure of essential facts:  
i. whether the Panel erred in its interpretation and applica tion of Article 6.9 of the 
Anti-Dumping Agreement in finding that:  
- a failure to disclose essential facts that were not properly treated as confidenti al 
under Article 6.5 would lead to an inconsistency with Article 6.9 of the 
Anti-Dumping Agreement (raised by Russia);  
- the DIMD acted inconsistently with Article 6.9 of the Anti -Dumping Agreement by 
not disclosing the actual figures for the import volumes and the weighted average 
import price of LCVs produced by each German exporting producer and the 
figures for domestic consumption and production volumes of LCVs in the 
Customs  Union (raised by Russia);  
- the data concerning the actual import volumes and the  weighted average import 
price of LCVs produced by Daimler AG and Volkswagen AG that originated from 
the electronic customs database  was not properly treated as confidential 
(raised  by Russia);  
- a methodology is not an "essential fact" within the meaning of  Article 6.9 of the 
Anti-Dumping  Agreement (raised by the European Union);  
- not every "essential fact" is required to be disclosed, but only those that are 
additionally shown to be "under consideration" (raised by the European  Union);  
- a source of data in general and the source of data concerning import volumes and 
values used by the DIMD in its dumping and injury determinations are not 
"essential facts " within the meaning of Article 6.9 of the Anti -Dumping Agreement 
(raised by the European Union);  WT/DS479/AB/R  
 
- 19 - 
 
ii. whether  the Panel acted inconsistently with Articles 15.2 and 7 of the DSU by 
adding, in paragraph 7.270 of the Panel Report , a legal finding under Article 6.5 of 
the Anti -Dumping Agreement  that had not appeared in the Panel's Interim Report 
(raised by Russia);  
iii. conditionally,  in the event that the Appellate Body reverses the relevant Panel's 
findings concerning essential facts:  
- whether the Appellate Body can complete the analysis and find  that the DIMD 
acted inconsistently with Article 6.9 of the Anti -Dumping Agr eement by failing to 
disclose the "essential facts " at issue (requested by the European  Union); and  
- whether the Appellate Body can complete the analysis and find that, by failing to 
disclose the source of information concerning import volumes and values in  its 
dumping and injury determinations, the DIMD ac ted inconsistently with 
Article  6.9 of the Anti -Dumping Agree ment (requested by the European  Union).  
5  ANALYSIS OF THE APPE LLATE BODY  
5.1  Definition of domestic industry  
5.1.1   Introduction  
5.1.  Russia appeals the Panel's f inding that the DIMD acted incon sistently with Articles  3.1 
and 4.1 of the Anti -Dumping  Agreement when defining the domestic industry.53 Russia's main 
claim is that the Panel erred in its interpretation and application of Article  4.1 by failing to take into  
account Article  3.1 of the Anti -Dumping  Agreement. Russia argues that an injury determination 
would be inconsistent with Article  3.1 if an investigating authority were to rely on deficient 
information provided by domestic producers of the like product. To  Russia, producers that provided 
such deficient information cannot be included in the definition of domestic industry under 
Article  4.1.54 Russia requests us to reverse the Panel findings  at issue.55 By contrast, the 
European  Union  requests us to uphold the Panel's findings. To the European  Union , the Panel 
correctly found that Article  4.1, "in light of the requirement to carry out an objective assessment 
based on positive evidence, implies that  an investigating authority cannot define … a 'domestic  
industry ' on the basis of the alleged deficient information provided by one or some producers ."56 
5.2.  At the outset, we recall that both Sollers and GAZ produced the domestic like product at 
issue in this anti -dumping investigation. The DIMD sent anti -dumping questionna ires to both 
companies and, after reviewing their responses, defined the domestic industry as comprising only 
Sollers.57 
5.3.  Before examining Russia's claim s of error on appeal, we summarize the relevant Panel 
findings with respect to Article  4.1 of the Anti-Dumping  Agreement. We then set out our 
understanding of this provision. Thereafter, we turn to examine  the merits of Russia 's claim s on 
appeal.  
5.1.2   Panel's  finding s 
5.4.  Before the Panel, the European  Union  argued that the  DIMD's definition of domestic  indust ry 
is inconsistent with Articles  4.1 and 3.1 of the Anti -Dumping  Agreement because GAZ was 
impermissibly excluded from the domestic industry, leading  to a risk of distorting the injury 
                                                
53 Panel Report , paras.  7.15-7.16; Russia's appellant's submission, paras.  63-65. 
54 Russia's appellant's submission, paras.  40-42, 44, 50 -51, and 54.  
55 Russia refers to: (i)  paragraphs 7.15.c, 7.21.b, 7.21.c, 7.26.a, 7.27, 8.1.a, and footnote  85 to 
paragraph 7.15.c (rega rding the interpretation of Article  4.1); (ii)  paragraphs 7.15.a and 7.21.d (regarding the 
risk of distortion); and (iii)  paragraphs  7.16, 7.22, 7.27, and 8.1.b of the Panel Report (regarding the 
consequential inconsistency with Article  3.1). (Russia's app ellant's submission, paras.  63-65) 
56 European  Union's appellee's submission, para.  34. 
57 Panel Report, para.  7.12. WT/DS479/AB/R  
 
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analysis.58 Russia responded that, although the domestic industry initially included both Sollers 
and GAZ, the DIMD conducted the injury analysis only in relation to Sollers due to the deficiency in 
GAZ's questionnaire responses.59 
5.5.  The Panel noted that  the term  "domestic industry"  in Article  4.1 of the 
Anti-Dumping  Agreement ma y be interpreted as either  the domestic producers as a whole of the 
like products , or domestic producers whose collective output constitutes a major proportion of the 
total domestic production of those products. The Panel also observed that "producers of d omestic 
like products may not be left out of the definition of domestic industry on the basis of 
considerations or selection methods that, by their nature, are likely to distort the subsequent 
injury determination."60 
5.6.  Turning to the facts of this case, the Panel observed  that, according to the DIMD's 
investigation report  on imports of LCVs from Germany, Italy, Poland, and Turkey61, the DIMD 
initially identified the domestic producers of the like product as Sollers and GAZ. The DIMD then 
sent questionnaires to  both producers, reviewed their responses, and defined the domestic  
industry as comprising only Sollers on the basis of its 87.9% share of total domestic production of 
the like product.62 The Panel considered that an 87.9% share of total domestic production falls 
within the quantitative bounds of the term "major proportion" of the total domestic production in 
Article  4.1 of the Anti -Dumping  Agreement.63 The Panel noted, however, that the de finition of 
domestic industry as a "major proportion of the total domestic production" under Article  4.1 has 
both a quantitative and a qualitative aspect .64 A qualitative assessment of a "major proportion" of 
the total domestic production implies ensuring t hat the approach of the investigating authority , 
including  its methodology for selecting the domestic industry , does not create a risk of distortion  in 
the injury analysis .65 
5.7.  The Panel identified three concerns  related  to the DIMD's approach in this investi gation. First, 
the DIMD decided not to include in the definition of domestic industry a known producer of the like 
product that had provided data and had sought to cooperate in the investigation , after having 
reviewed that producer's data. To the Panel, th is sequence of events g ave rise to an appearance of 
selecting among domestic producers based on their data to ensure a particular outcome, resulting 
in a risk of distortion in the subsequent injury analysis .66  
5.8.  Second, the reasons given by Russia for the DI MD's decision not to include GAZ in the 
definition of domestic industry were not set out in the investigation report. The Panel thus 
considered that these reasons constitute d an impermissible post hoc  rationalization.67  
5.9.  Third, in relation to Russia's argum ent that the data provided by GAZ suffered from 
deficiencies, the Panel considered that nothing in Article  4.1 of the Anti -Dumping  Agreement  
suggests that a Member may ignore a domestic producer for purposes of defining the domestic 
industry on the basis o f alleged deficiencies in the information provided by that producer to the 
                                                
58 Panel Report, paras.  7.4-7.5; European  Union's first written submission to the Panel, para.  63. 
59 Panel Report, paras.  7.6-7.8; Russia's fi rst written submission to the Panel, para s. 38 and 41 -43; 
response to Panel question No.  13(c), para.  44; second written submission to the Panel, paras.  24 and 46 -47; 
response to Panel question No.  64, paras.  20-22. 
60 Panel Report, para.  7.11. In this resp ect, the Panel noted the following two examples: (i)  an 
investigating authority may not leave out an entire group of domestic producer s of the like product (referring 
to Panel Report, EC – Salmon (Norway) , paras.  7.107 -7.108 and 7.112); and (ii)  an investi gating authority 
may not limit the domestic industry to only those producers willing to participate in the investigation by 
providing data for a sample (referring to Appellate Body Report, EC – Fasteners (China) , paras.  426-427 
and 430).  (Panel Report, par a. 7.11)  
61 Non-confidential investigation report (Panel Exhibits EU -21 and RUS -12). 
62 Panel Report, para.  7.12. 
63 Panel Report, para.  7.13. 
64 Panel Report, para.  7.15 (referring to Appellate Body Report, EC – Fasteners (China) (Article  21.5 – 
China) , paras.  5.298 -5.303).  
65 Panel Report, para.  7.15. 
66 Panel Report, para.  7.15.a.  
67 Panel Report, para.  7.15.b.  WT/DS479/AB/R  
 
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investigating authority.68 To the Panel, t he definition of domestic industry and the collection and 
use of data from that domestic industry are separate issues .69 
5.10.   The Panel concluded that the DIMD defined the domestic industry as Sollers only after it had 
received the questionnaire responses from both Sollers and GAZ. For the reasons set out above, 
the Panel found that the DIMD acted inconsistently with Article  4.1 of the Anti -Dumping  Agreement 
in its definition of domestic industry. As a consequence, the Panel also found that the DIMD acted 
inconsistent ly with Article  3.1 of the Anti -Dumping  Agreement.70 
5.1.3   Article  4.1 of the Anti -Dumping  Agreement  
5.11.   Article 4.1 of the Anti -Dumping Agreement defines the term "domestic industry" as referring 
to: (i) the domestic producers as a whole of the like products; or (ii) those producers whose 
collective output of the products constitutes a major proportion of th e total domestic production of 
those products. At the same time, Article  4.1 provides for two situations where producers of the 
like product may be excluded from the definition of domestic industry: (i)  where producers are 
"related " to exporters or importe rs or are themselves importers of the allegedly dumped product; 
and (ii)  where the territory of a Member is divided into competitive markets and the producers 
within each market are regarded as a separate industry  under specified conditions .  
5.12.   The Appellate  Body has explained that, by using the term "major  proportion", the second 
method of defining the domestic industry focuses on the question of how much  production must be 
represented by those producers  of the like product  making up the domestic industry wh en the 
domestic industry is defined as less than the domestic producers as a whole.71 The Appellate  Body 
has read the "major proportion" requirement in Article 4.1 as having both quantitative and 
qualitative connotations .72 
5.13.   Regarding the quantitative element , Article 4.1  of the Anti -Dumping  Agreement  does not 
stipulate a specific proportion for evaluating whether a certain percentage constitutes a "major 
proportion".73 The Appellate  Body, however,  has indicated that "[t]he absence of a specific 
proportion does  not mean … that any percentage, no matter how low, could automatically qualify 
as 'a major proportion '."74 The qualitative element , in turn, is concerned with ensuring that the 
domestic producers of the like product that are included in the definition of domestic industry are 
representative  of the total domestic production. The Appellate  Body has explained that there is an 
inverse relationship between, on the one hand, the proportion of total production included in the 
domestic industry and, on the other h and, the existence of a material risk of distortion in the 
definition of domestic industry and in the assessment of injury. The lower the proportion, the more 
sensitive an investigating authority will have to be to ensure that the proportion used sufficien tly 
                                                
68 Panel Report, para.  7.15.c. The Panel explained that, where producers included in the domestic 
industry fail to cooperate with the investigation,  the investigating authority "may be forced to … seek additional 
information, … may face difficulties in verifying information received [and] may ultimately have to proceed on 
the basis of less than complete information regarding the domestic industry". ( Ibid., fn 85 thereto) 
69 Panel Report, fn 85 to para.  7.15.c.  
70 Panel Report, para.  7.16. Given that, at the later stages of the Panel proceedings, both Russia and 
the European  Union suggested a different sequence of events with respect to the timing of the definition of 
domestic industry, the Panel made alternative findings in relation to alternative factual scenarios. In this 
respect, the Panel addressed Russia's contention that the DIMD had initially defined the domestic industry as 
comprising both Sollers  and GAZ, then considered only Sollers' information because of deficiencies in GAZ's 
information, and redefined the domestic industry to include only Sollers. The Panel noted that Russia's 
contention is not supported by the chronology of events set out in the DIMD's investigation report, and thus 
constitute d a post hoc rationalization. ( Ibid., paras.  7.22, 7.26.b, and 7.27) Even if it were to accept that the 
DIMD initially defined the domestic industry to include Sollers and GAZ, the Panel explained that it  would have 
found that the DIMD acted inconsistently with Article  4.1 of the Anti -Dumping  Agreement by excluding GAZ 
from the domestic industry. ( Ibid., paras.  7.22 and 7.27)  
71 Appellate Body Report, EC – Fasteners (China) , para. 411.  
72 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.302.  
73 Appellate Body Report, EC – Fasteners (China) , para. 411. As the Appellate Body  clarified , the 25 % 
benchmark under Article  5.4 of the Anti -Dumping  Agreement concerns the issue of standing of the domestic 
industry for the initiation of an investigation, and does not address the question of what constitutes "a major 
proportion" in Article  4.1 of the Anti -Dumping  Agreement. (Ibid. , paras.  418 and 425)  
74 Appellate Body Report, EC – Fasteners (China) , para. 412.  WT/DS479/AB/R  
 
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represents the total production of the producers as a whole.75 A definition of domestic industry 
that includes a very high proportion that "substantially reflects the total domestic production" will 
very likely satisfy both the quantitative and qualitat ive aspect s of the requirements of Articles  4.1 
and 3.1 of the Anti -Dumping  Agreement .76  
5.14.   The Appellate  Body has read the definition of domestic indu stry in Article  4.1 of the 
Anti-Dumpi ng Agreement together with the require ment in Article 3.1 of the Anti -Dumping 
Agreement that the determination of injury "be based on positive evidence and involve an 
objective examination".77 An "objective examination" , pursuant to Article 3.1 , requires that the 
effects of dumped imports  on the domestic industry  be investigat ed in an unbiased manner, without 
favouring the interests of any interested party, or group of interested parties in the investigation .78 
In this respect, to ensure the accuracy of an injury determination, an investigating authority must 
not act so as to gi ve rise to a material risk of distortion in defining the domestic industry, for 
example, by excluding a whole category of producers of the like product .79 
5.1.4   Whether the Panel erred in its interpretation and application of Articles  3.1 
and 4.1 of the Anti-Dumping Agreement  
5.15.   At the outset, we observe that the European  Union  submits that certain of Russia's claims 
and arguments concern the Panel's alternative findings80 and thus need not be addressed . To the 
European Union, given that Russia has not appealed th e assessment of facts by the Panel under 
Article  11 of the DSU, Russia accepts the factual basis on which the Panel made its main finding.81 
The Panel's main finding was based on the factual assessment that the DIMD defined the domestic 
industry as Sollers only after it had received the questionnaire responses from both Sollers and 
GAZ.82 The Panel's alternative findings were based on the alternative factual assessment that the 
DIMD had initially defined the domestic industry as comprising both Sollers and GA Z, then 
considered only Sollers' information because of deficiencies in GAZ's information, and redefined 
the domestic industry to include only Sollers.83  
5.16.   We note that Russia has not challenged  on appeal the Panel's factual assessment 
underpinning its main finding under Article  4.1. To the extent that this assessment is left 
undisturbed , we consider that it is not necessary to address Russia's claims and argument s 
concerning the Panel's alternative factual findings. Nevertheless, we observe that some of the 
Panel's reasoning substantiating its main and alternative findings is intertwined. Thus, insofar as 
Russia refers to elements of the Panel's alternative findings that are also reflected in the Panel's 
main finding , we consider these  references when address ing the substantive issues raised by 
Russia on appeal.  
                                                
75 Appellate Body Report s, EC – Fasteners (China) , para. 412; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.302.  
76 Appellate Body Reports, EC – Fasteners (China) , paras. 414 and 419; EC – Fasteners (China) 
(Article  21.5 – China) , paras. 5.300 and 5.30 3. The Appellate Body has recognized the difficulty of obtaining 
information regarding domestic producers, particularly in special market situations, such as fragmented 
industries with numerous producers. In such special cases, the term "major proportion" in Article  4.1 of the 
Anti-Dumping  Agreement provides an investigating authority with some flexibility to define the domestic 
industry. Therefore, what constitutes a "major proportion" may be lo wer in light of the practical constraints of 
obtaining information in a special market situation. Nevertheless, in such cases, an investigating authority 
bears the same obligation to ensure that the way in which it defines the domestic industry does not in troduce a 
material risk of skewing the economic data and, consequently, distorting its analysis of the state of the 
industry. Ultimately, the definition of domestic industry must remain representative of total domestic 
production. (See Appellate Body Repor ts, EC – Fasteners (China) , para. 416; EC – Fasteners (China) 
(Article  21.5 – China) , paras. 5.301 and 5.303)  
77 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
78 Appellate Body Reports,  US – Hot-Rolled Steel , para. 193; EC – Fasteners (China) , para.  414; EC – 
Fasteners (China) (Article 21.5 – China) , para. 5.300. See also Appellate Body Report, EC – Fasteners (China) 
(Article 21.5 – China) , paras. 5.319 and 5.323.  
79 Appellate Body Report s, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
80 See supra , fn 70. 
81 European  Union's appellee's submission, paras.  27-28, 31, 60, 75, and 83.  
82 See Panel Report, paras.  7.15-7.16. 
83 See Panel Report, para s. 7.17-7.27. WT/DS479/AB/R  
 
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5.17.   Russia claims that the Panel erred in its interpretation and application of Article  4.1 by 
failing to take into account Article  3.1 of the Anti -Dumping  Agreement.84 Russia's claim  concerns 
the Panel's understanding that the definition  of domestic industry and the collection and use of 
data from that domestic industry are separate issues. The Panel considered that "data collection 
concerns cannot be a consideration for determining w hich specific producers are included in the 
domestic industry and which are not ."85 
5.18.   Russia submits that  the definition of domestic industry must be based on ample and reliable 
data to ensure an accurate injury analysis. To Russia, where the definition of do mestic industry 
includes the domestic producers of the like product that did not provide credible and reliable data, 
an investigating authority is not able to meet the requirement of Article  3.1 of the 
Anti-Dumping  Agreement to determine injury based on "p ositive evidence". Russia thus argues 
that, when interpreted in the context of Article  3.1, Article  4.1 of the Anti -Dumping  Agreement 
requires investigating authorities to define the domestic industry based on considerations of 
"objective examination" and "positive evidence".86 Russia submits that the Panel's interpretation of 
Article  4.1 creates a conflict  between the obligation to define the domestic industry under 
Article  4.1 and the obligation to base the injury determination on "positive evidence" under  
Article  3.1.87 In Russia's view , the Panel's conclusion results in a situation where, in the absence of 
reliable data on injury indicators, the investigating authority would be required to base its injury 
determination on data that does not comport with th e requirements of Article  3.1.88 
5.19.   The European  Union  submits that Russia confuses , on the one hand,  the obligation to define 
the domestic industry in an objective manner and the evidence required to do so under Article  4.1 
of the Anti -Dumping  Agreement  and, on the other hand,  the collection and use of data from the 
domestic industry to determine injury under Article  3.1 of the Anti -Dumping  Agreement .89 To the 
European  Union , there is no reason why compliance with Article  4.1 would conflict with the 
obligation to base  the injury determination on "positive evidence ".90 In addition, the 
European  Union  contends that allowing an investigating authority to define the domestic industry 
on the basis of its assessment of the quality of the information gives rise to a mat erial risk of 
distortion in the injury analysis.91 
5.20.   As noted above, Article  4.1 of the Anti -Dumping  Agree ment defines the term 
"domestic  industry" in relation to the domestic producers of the like product . Article  4.1 also 
provides for two  specific situations where those producers may be excluded from the definition of 
domestic industry.92 This provision does not , however,  refer to the non -inclusion of producers of 
the like product in the domestic industry definition based on the investigating authori ty's 
consideration of alleged deficiencies in the information submitted by domestic producers. 
In addition, as noted earlier, t he Appellate  Body has read the definition of domestic industry in 
Article  4.1 together with the require ment in Article 3.1 of the  Anti-Dumping Agreement that the 
determination of injury "be based on positive evidence and involve an objective examination".93 To 
ensure the accuracy of an injury determination, an investigating authority must not act so as to 
give rise to a material risk  of distortion in defining the domestic industry.94 
                                                
84 Russia's appellant's submission, paras.  40-42. 
85 Panel Report, fn  85 to para.  7.15.c.  
86 Russia's appellant's submission, paras.  23 and 40 -41. 
87 Russia's appellant's submission, paras.  42 and 44.  
88 Russia's appellant's submission, para.  45. 
89 European  Union's appellee's submission, paras.  61, 65, 67, and 77. To the European  Union, while 
data collection problems can arise during an investigation, the issue under Article  4.1 concerns the definition of 
domestic industry and not the quality of th e data provided by domestic producers. ( Ibid., para.  61) 
90 European  Union's appellee's submission, paras.  65 and 70. The European  Union submits that, rather 
than excluding a part of the domestic industry, an investigating authority making an objective asse ssment 
based on positive evidence under Article  3.1 of the Anti -Dumping  Agreement is required to seek the evidence 
necessary to undertake the injury assessment in relation to the domestic industry, as defined at the outset. 
(Ibid., para.  70) 
91 European  Union's appellee's submission, para.  61. 
92 See para.  5.11 above.  
93 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
94 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fastene rs (China) (Article 21.5 – 
China) , para. 5.300.  WT/DS479/AB/R  
 
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5.21.   Thus, contrary to Russia's argument, Article 3.1 of the Anti -Dumping  Agreement neither 
permits nor obliges an investigating authority to derogate from defining the domestic industry in 
relation to the dome stic producers of the like product , so as to leave out producers that provided 
allegedly deficient data. Rather than being permitted or even required by Article 3.1, as Russia 
seems to argue, the non -inclusion of domestic producers of the like product in the domestic 
industry definition solely on the basis that they furnished allegedly deficient information is 
incompatible with the requirements of this provision. This is because, i f an investigating authority 
were permitted to leave out , from the definition  of domestic industry , domestic producers of the 
like product that provided allegedly  deficient information, a material risk of distortion would  arise 
in the injury analysis.95 The non-inclusion of this category of producers could  make the domestic 
industry  definition no longer representative of the total domestic production , thereby undermining 
the accuracy of the injury analysis . 
5.22.   Rather than leaving a producer of the like product that provided allegedly deficient 
information out of the domestic industry, t he investigating authority should seek to obtain 
additional information from that domestic producer. In this respect, Article  6.6 of the 
Anti-Dumping  Agreement provides that investigating authorities shall, "during the course of an 
investigation", satisfy themselves as to the accuracy of the information supplied. Article  6.7 of the 
Anti-Dumping  Agreement sets out additional actions that authorities may take to verify 
information provided or to obtain further details. Article  6.8 of the Anti -Dumping  Agreemen t allows 
investigating authorities to make determinations on the basis of facts available in cases where an 
interested party refuses access to or otherwise does not provide necessary information, or 
significantly impedes the investigation. Thus, tools exis t under the Anti -Dumping  Agreement to 
address the inaccuracy and incompleteness of information. We therefore disagree with Russia's 
proposition that, in order to ensure the accuracy of the injury analysis, an investigating authority 
needs, from the outset, to leave out of the definition of domestic industry the domestic producers 
of the like product that provide d allegedly deficient information.  As noted by the United  States, the 
deficiency of information need not have a bearing on whether a domestic producer can be included 
in the definition of domestic industry under Article  4.1, or on whether the r equirements of 
Article  3.1 could be met.96 
5.23.   For the reasons above, we do not consider that the requirements of Article  3.1 of the 
Anti-Dumping  Agreement permit investigating authorities to leave domestic producers of the like 
product out of the definition of  domestic industry because of alleged  deficiencies in the information 
submitted by those producers. We also disagree with Russia that the Panel's interpretation of 
Article  4.1 of the Anti -Dumping  Agreement creates a conflict between the obligation to defin e the 
domestic industry under Article  4.1 and the obligation to base the injury determination on "positive 
evidence" under Article  3.1.97 To the contrary, the requirement in Article 3.1 that an investigating 
authority conduct an "objective examination" does  not provide support for the proposition that 
domestic producers of the like product providing allegedly deficient information may be left out of 
the definition of domestic industry. Instead, as explained above, the Appellate Body has relied on 
Article 3.1  to explain that an investigating authority must not act so as to give rise to a material 
risk of distortion in the injury analysis when  defining the domestic industry.98 
5.24.   Russia also claims that the Panel erred in its interpretation of Article  4.1 of the 
Anti-Dumping  Agreement by reducing the term "major proportion" to inutility.99 Russia argues that 
Article  4.1 allows an investigating authority to define the domestic industry as a "major  proportion 
                                                
95 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
96 United States' third participant's submission, para.  13. 
97 Russia's appellant's submi ssion, paras.  42 and 44.  
98 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
99 Russia's appellant's submission, paras.  51 and 55.  WT/DS479/AB/R  
 
- 25 - 
 
of the total domestic production" when information on certai n domestic producers is deficient, 
unreliable, incomplete, or unavailable.100 
5.25.   The European  Union  submits that the Panel's interpretation of Articl e 4.1 of the 
Anti-Dumping  Agreement does not prevent an investigating authority from basing the definition of 
domestic industry on a "major proportion of the total domestic production". The European  Union 
stresses that the "major proportion" criterion is subject to the qualitative requirement under 
Article  4.1.101 
5.26.   We first observe that Russia contended before the Pane l that GAZ was not part of the 
definition of domestic industry because of the alleged deficiency in the information provided by this 
producer. The Panel considered that the reason given by Russia was not set out in the  DIMD's 
investigation report . On this basis, the Panel stated that this reason constitute d an impermissible 
post hoc  rationalization.102 We note that Russia does not challenge this Panel statement on appeal. 
Thus, this assertion by Russia has not been substantiated and was rejected by the Panel as an 
impermissible post hoc  rationalization.  
5.27.   Turning to the substance of this claim, we note Russia's argument that Article  4.1 of the 
Anti-Dumping  Agreement allows an investigating authority to define the domestic industry as a 
"major proportion of the total domestic production" when information on certain domestic 
producers is deficient, unrelia ble, incomplete, or unavailable.103 We recall that , if an investigating 
authority does not include domestic producers of the like product in the domestic industry 
definition because th ose producers submitted allegedly  deficient information, a material risk o f 
distortion would arise in the injury analysis. This is because the failure to include those producers 
could make the definition of domestic industry no longer representative of the total domestic 
production.104 As explained earlier, the Appellate Body has interpreted the "major proportion" 
requirement under A rticle 4.1  as having both quantitative and qualitative connotations .105 The 
qualitative element is concerned with ensuring that the domestic producers of the like product that 
are included in the "domesti c industry" are representative of the total domestic production.  While 
the definition of domestic industry that is based on the "major proportion" needs to satisfy both 
elements, there is an inverse relationship between, on the one hand, the proportion of the total 
production included in the domestic industry and, on the other hand, a material risk of distortion in 
the definition of domestic industry and in the assessment of injury.106  
5.28.   Moreover, we recall that the Appellate  Body has recognized the difficulty  of obtaining 
information regarding domestic producers  in certain situations, such as fragmented industries with 
numerous producers.107 In such special cases, the term "major proportion" in Article  4.1 allows  an 
investigating authority a certain degree of flexibilit y in defining the domestic industry.108 
Nevertheless, an investigating authority continues to bear the obligation to ensure that the way in 
which it defines the domestic industry does not introduce a material risk of distortion into the 
                                                
100 Russia's appellant's submission, para.  54. Russia takes issue with the Panel's understanding that, 
pursuant to Article  4.1 of the Anti -Dumping  Agreement, it is not possible to leave domestic producers of the 
like product out of the definition of domestic industry on account of the non -availability of reliable and correct 
information from those producers. (See ibid., paras.  50-51) While Russia refers to a passage of the Panel's 
alternative findings ( ibid., para.  49 (referring to Panel Report, para.  7.27) ), we observe that the Panel made a 
similar statement in the context of its main finding  under Article  4.1. There, the Panel stated that "[n]othing in 
Article  4.1 suggests that a Member may ignore a domestic producer for the purposes of defining the domestic 
industry  on the basis of alleged 'gaps' in the information the producer has provided to the investigating 
authority." (Panel Report, para.  7.15.c. (emphasis  original))  
101 European  Union's appellee's submission, para.  79. 
102 Panel Report, para.  7.15.b (in rel ation to the Panel's main finding ), and para.  7.27 (in relation to the 
Panel's alternative findings).  
103 Russia's appellant's submission, para.  54. 
104 Appellate Body Reports, EC – Fasteners (China) , para. 414; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.300.  
105 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.302.  
106 Appellate Body Report s, EC – Fasteners (China) , para. 412; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.302.  
107 Appellate Body Reports, EC – Fasten ers (China) , para. 41 5; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.301.  
108 Appellate Body Reports, EC – Fasteners (China) , paras. 414 -416 and 419; EC – Fasteners (China) 
(Article 21.5 – China) , para. 5.30 1.  WT/DS479/AB/R  
 
- 26 - 
 
injury anal ysis.109 In our view, the situation where an investigating authority is unable to collect 
any information at all from every  domestic producer due to the fragmented nature of the industry 
is different  from the situation where a domestic producer sought to coo perate in the investigation 
and did submit information  that the investigating authority , however,  considered to be deficient . 
5.29.   We consider that the Panel correctly recognized that an investigating authority could define 
the domestic industry as a "major pro portion" of the total domestic production as long as both the 
quantitative and qualitative elements are satisfied.110 The Panel also correctly found that 
Article  4.1 does not allow an investigating authority to leave out of the definition of domestic 
industr y the domestic producers  of the like product  that provided allegedly deficient information . 
Thus, contrary to Russia's claim on appeal111, we do not consider that the Panel's interpreta tion of 
Article  4.1 of the Anti -Dumping  Agreement reduces the term "major  proportion" in this provision to 
inutility.  
5.30.   Russia also claim s that the Panel erred in its interpretation and application of Article  4.1 of 
the Anti -Dumping  Agreement in finding that the  sequence of events in the anti -dumping 
investigation at issue result ed in a risk of distortion in the injury analysis.112 Russia submits that 
the Anti -Dumping  Agreement does not prescribe the exact sequence of steps to be taken in 
defining the domestic industry. Thus, Russia claims that the Panel erred in reading obligations  into 
Article  4.1 concerning the timing of the definition of domestic industry  that are not there.113 Russia 
also argues that it is not possible for an investigating authority to select from the information 
provide d so as to ensure a particular outcome in th e injury analysis if the information at issue is 
deficient and incorrect.114 
5.31.   The European  Union  submits that defining the domestic industry only after having examined 
the information submitted by the domestic producers results in an appearance of selecting among 
domestic producers based on their information. This, i n turn, creates a risk of distortion in the 
subsequent injury analysis, as the Panel correctly found.115 
5.32.   In its third participant 's submission, the United States does not consider that collecting and  
reviewing data before defining the domestic industry is  per se  contrary to Articles  4.1 and 3.1 of 
the Anti -Dumping Agreement or that such an approach inherently gives rise to a risk of distortion. 
For example, an authority may need to collect and review evidence to define what constitutes the 
"like product" or to assess whether parties are "related " before the "domestic industry" is defined . 
These are steps that ordinarily precede the definition of domestic industry.116  
5.33.   The Panel found that the DIMD decide d not to include in its definition of domestic industry a 
known producer of  the like product that had provided data and sought to cooperate  in the 
                                                
109 Appellate Body Reports, EC – Fasten ers (China) , para. 416; EC – Fasteners (China) (Article 21.5 – 
China) , para. 5.301.  
110 Panel Report, para.  7.15. 
111 Russia's appellant's submission, paras.  51 and 55.  
112 Russia's appellant's submission, paras.  58-62 (referring to Panel Report, para.  7.15.a).  
113 Russia's appellant's submission, paras.  59-60. Russia also submits that the sequence of events in 
this investigation was the only possible sequence that allowed the DIMD to comply with Article  3.1 of the 
Anti-Dumping  Agreement. Russia refers to its earl ier arguments that Article  4.1 of the 
Anti-Dumping  Agreement allows investigating authorities to define the domestic industry based on 
considerations of "objective  examination" and "positive evidence", in particular where a domestic producer has 
not provid ed credible and reliable information. ( Ibid., para.  61) We have examined above Russia's arguments 
at issue and explained that Article  3.1 of the Anti -Dumping  Agreement does not allow investigating authorities 
to leave domestic producers of the like product  out of the definition of domestic industry because of alleged  
deficiencies in the information submitted by those producers. (See paras.  5.20-5.23 above)  
114 Russia's appellant's submission, para.  62. 
115 European  Union's appellee's submission, para.  83 (refer ring to Panel Report, para.  7.15.a).  
116 United States' third participant's submission, para.  24. The United States also notes that Articles  4.1 
and 3.1 of the Anti -Dumping  Agreement do not suggest that the domestic industry may only be defined at a 
particul ar point in the investigation, without the possibility of future revision. The United States considers that 
it may be appropriate to redefine the domestic industry in certain scenarios, and this would not necessarily 
give rise to a risk of distortion in th e injury analysis. The United States submits that, e.g. it may be appropriate 
to narrow or broaden the original definition if, after gathering evidence, an authority modifies the scope of the 
investigated product. This could, in turn, affect the definition  of domestic industry. ( Ibid., para.  25) WT/DS479/AB/R  
 
- 27 - 
 
investigation after having reviewed that producer's data.117 The Panel then stated that this 
"sequence of event s gives rise to an appearance of selecting among domestic producers based on 
their data to ensure a particular outcome, resulting in an obvious risk of … distortion in the 
subsequent injury analysis."118  
5.34.   We note that this statement by the Panel is not accom panied by specific references to any 
determination, exhibits , or other factual evidence on the record of the investigation. Rather, the 
Panel consider ed the sequence of events by itself, and conclude d that it gave rise to an 
appearance of selecting among domestic producers to ensure a particular outcome. The 
Appellate  Body's interpretation of the "domestic industry" based on a "major proportion of total 
domestic production" does not take into account the timing of the definition of domestic industry. 
Rathe r, it is concerned with ensuring that the domestic producers of the like product selected for 
inclusion in the domestic industry are sufficiently representative of the total domestic production. 
Given the relationship between Article  3 and Article  4.1 of the Anti -Dumping Agreement – namely , 
that the injury analysis under Article s 3.1 and 3.4 is conducted on the basis of the domestic 
industry as defined under Article  4.1 – the domestic industry would logically be defined before the 
injury analysis.119 That sai d, we do not consider that these provisions prevent an investigating 
authority from initially examining the information submitted by the domestic producers before 
defining the domestic industry to the extent that the information submitted or collected is 
pertinent to defining the domestic industry. In deed, for example, Article  4.1(i) of the 
Anti-Dumping  Agreement provides for a scenario where this may be necessary . It cannot be 
excluded that a n investigating authority may need to examine the information sub mitted in 
relation to a certain domestic producer before coming to a definit ive assessment of whether that 
producer is related  to an exporter or importe r, or is itself an importer of the alleged dumped 
product.120  
5.35.   Notwithstanding the above observations, our  analysis of the Panel Report suggests that the 
Panel 's reasoning is more nuanced than the statements above concerning the "sequence of 
events", and that the Panel 's findings should be viewed holistically in light of its entire reasoning. 
In this respect, we note that t he Panel based its finding of inconsistency on the following elements: 
(i) the DIMD decided not to include in its definition of domestic industry a known producer of the 
like product that had provided information and sought to cooperate in th e investigation after 
having reviewed that producer's information121; (ii) the DIMD did not explain in its  investigation 
report the decision not to include GAZ  in the domestic industry122; and (iii)  even if the DIMD had 
justified its decision  based  on the fact that GAZ submitted allegedly deficient information  – as 
Russia contended  before the Panel  – this is not a valid reason to leave a domestic producer out of 
the definition of domestic industry.123  
5.36.   Thus, in light of the above, we are of the view t hat the Panel did not reach its finding solely 
on the basis of the fact that the DIMD reviewed the information submitted by Sollers and GAZ 
before defining the domestic industry. Rather, the Panel focused on the actions taken by the DIMD 
in the investigati on at issue, including the fact that no explanation was contained in the DIMD's 
investigation report for the decision not to include GAZ in the definition of domestic industry. In 
addition, we agree with the Panel's understanding that the fact that GAZ allegedly  failed to 
distinguish between confidential and non -confidential information and that GAZ's questionnaire 
responses allegedly  suffered from gaps and inaccuracies are not the grounds on which the DIMD 
should have left GAZ out of the domestic industry in this investigation. Thus, in light of the specific 
circumstances of this case, we find no reversible error in the Panel's interpretation and application 
of Article  4.1, as read together with Article 3.1  of the Anti -Dumping Agreement . 
                                                
117 Panel Report, para.  7.15.a.  
118 Panel Report, para.  7.15.a. The European  Union advances a similar understanding when it submits 
that defining the domestic industry only after having examined the data from the releva nt producers 
necessarily brings about an appearance of selecting among domestic producers based on their data.  
(European  Union's appellee's submission, para.  83) 
119 See European  Union's appellee's submission, para.  84. 
120 As explained above, however, an inve stigating authority must not act so as to give rise to a material 
risk of distortion in defining the domestic industry.  
121 Panel Report, para.  7.15.a.  
122 Panel Report, para.  7.15.b.  
123 Panel Report, para.  7.15.c.  WT/DS479/AB/R  
 
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5.37.   Finally, we examine  Russia's request that we  reverse the Panel's finding under Article  4.1 of 
the Anti -Dumping  Agreement because , according to Russia,  the DIMD acted in conformity with one 
of the "permissible " interpretations of Article  4.1 within the meaning of Article  17.6(ii) of the 
Anti-Dumping Agreement .124 
5.38.   The second sentence of Article 17.6(ii) of the Anti -Dumping Agreement provides that , where 
the panel finds that a relevant provision of the Agreement admits of more than one permissible 
interpretation, the panel shall f ind the investigating authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations. Read together with the 
first sentence of Article 17.6(ii), t he second  sentence allows for the possibility that the application 
of the rules of the Vienna Convention  on the Law of Treaties125 (Vienna Convention) may give rise 
to an interpretative range and, if it does, an interpretation falling within that range is permissible 
and must be given effect by holding the challenged measure to be in conformity with th e 
Anti-Dumping Agreement.126  
5.39.   In this case, the Panel did not find that the interpreta tion of Article 4.1 of the Anti -Dumping 
Agreement , according to the customary rules of interpretation codified in the Vienna C onvention , 
resulted in at least two  permissible interpretations. We have found above that, i f an investigating 
authority does not include certain domestic producers of the like product in the domestic industry 
definition because th ose producers submitted allegedly  deficient information, a material risk of 
distortion would arise in the injury analysis. Therefore, Russia's proposed interpretation of 
Article  4.1 is not a permissible interpretation within the meaning of Article  17.6(ii) of the 
Anti-Dumping  Agreement.  
5.1.5   Conclusions  
5.40.   Article  4.1 of the Anti -Dumping  Agreement provides that the "domestic industry" is 
composed of domestic producers of the like product. I f an investigating authority were permitted 
to leave out , from the definition of domestic industry , the domestic producers of the like product 
that provided allegedly  deficient information, a material risk of distortion would  arise in the injury 
analysis . This is because the non -inclusion of those producers could make the definition of 
domestic industry n o longer representative of the total domestic production.  We do not consider 
that Article  3.1 of the Anti -Dumping  Agreement  allows investigating authorities to leave domestic 
producers of the like product out of the definition of domestic industry because of alleged  
deficienc ies in the information submitted by those producers.  The Anti -Dumping  Agreement, in 
particular Article  6, sets out tools to address the inaccuracy and incompleteness of information.  
Thus, in o ur view, the Panel's interpretation of Article  4.1 does not create a conflict between the 
obligation s in Article  3.1 and Article 4.1 of the Anti -Dumping  Agreement . We also do not read the 
Panel's interpretation of Article  4.1 as having reduced the term "ma jor proportion" to inutility  in 
this provision . Moreover, we  do not consider that Articles  3.1 and 4.1 prevent an investigating 
authority from initially examining the information submitted by domestic producers before defini ng 
the domestic industry to the extent that the information collected is pertinent to defining the 
domestic industry.  We do not consider that the Panel reach ed its finding solely on the basis of the 
fact that the DIMD reviewed the information submitted by Sollers and GAZ before defining the 
domestic industry.  In light of the specific circumstances of this case, we find no reversible error in 
the Panel's interpretation and application of Articles  4.1 and 3.1 of the Anti -Dumping  Agreement.  
5.41.   We therefore find that the Panel did not err in its  interpretation and application of 
Articles  3.1 and 4.1 of the Anti -Dumping  Agreement in finding that the DIMD acted inconsistently 
with these provision s in its definition of "domestic industry ". Consequently, we uphold  the Panel's 
findings in paragraphs  8.1.a and 8.1.b of the Panel Report.  
5.2  Price suppression  
5.42.   In this section, we address the claims of error raised by both Russia and the 
European  Union relating to the Panel's findings with respect to the DIMD's determination of price 
                                                
124 Russia's appellant's submission, paras.  66-67. 
125 Done at Vienna, 23 May 1969, UN  Treaty Series, Vol. 1155, p.  331. 
126 Appellate Body Reports, US – Continued Zeroing , para. 272; US – Hot-Rolled Steel , para. 59.  WT/DS479/AB/R  
 
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suppression under Article  3.2 of the Anti -Dumping  Agreement. We examine , first, Russia's claim of 
error, and then turn to examine the European  Union's claims on appeal.  
5.2.1   The 2009 rate of return used to construct the target domestic price  
5.2.1.1   Introduction  
5.43.   Russia challenges the Panel's finding s that the DIMD acted inconsistently with Articles 3.1 
and 3.2 of the Anti -Dumping  Agreement by failing to take  into account the impact of the financial 
crisis in determining the rate of return used to construct the target domestic price. To Russia,  the 
focus on one particular factor – such as the financial crisis – would lead to a biased price 
suppression analysis because the rate of return could be potentially influenced by a number of 
factors127, and an analysis of all known factors is not required under Article  3.2.128 Russia requests 
us to reverse the Panel's findings at issue.129 The European  Union disagrees with Russia's 
contention that an investigating authority is not obliged to consider evidence that questions the 
rate of return used to cons truct the domestic target price .130 The European  Union seeks to have 
the Panel 's findings at issue upheld .131 
5.44.   We begin by summariz ing the relevant Panel finding s. Thereafter , we set out our 
understanding of the relevant aspect of Articles  3.1 and 3.2 of the Anti -Dumping Agreement. 
Finally, we examine the merits of Russia 's claim on appeal.  
5.2.1.2   Panel's finding s 
5.45.   Before the Panel, the European  Union claimed that the DIMD's price suppression analysis is 
inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement because the DIMD used an 
improper rate of return when constructing the target domestic price.132 The Panel observed that, 
for its price suppression analysis, the DIMD constructed the estimated domestic price that would 
have existed in the absence of dumped i mports – the "target domestic price" – on the basis of the 
actual costs of production and a "reasonable rate of return".133 The DIMD used the rate of return 
achieved by Sollers in 2009 as the benchmark rate of return for constructing the target domestic 
price. According to  its investigation report , the DIMD chose this rate of return because 2009 was 
the year in which the market share of dumped imports was the lowest. The Panel explained that 
the DIMD compared the data pertaining to actual economic indicators (e.g. the prices and profits 
achieved by the domestic industry) with the data pertaining to the constructed counterfactual, and 
concluded that domestic prices had been significantly suppressed by dumped imports.134 
5.46.   The Panel noted that the reference price for assessing price suppression under Article  3.2 of 
the Anti -Dumping  Agreement is the domestic price "which otherwise would have occurred".135 
Article  3.2 does not provide specific guidance on how such a counterfactual situation should be 
constructed.136 According to the Panel, the investigating authority is guided by the principle set out 
in Article  3.1 of the Anti -Dumping  Agreement. Thus, where an investigating authority constructs a 
target domestic price, it must use a rate of return that is objective and b ased on positive 
evidence.137 The Panel therefore considered that an investigating authority would act inconsistently 
with Articles 3.1 and 3.2  if the rate of return used in constructing a counterfactual target domestic 
price is not one that the domestic ind ustry could have expected to achieve in the subsequent years 
                                                
127 Russia's appellant's submission, para.  76. 
128 Russia's appellant's submission, para. 77.  
129 Russia 's appellant's submission, para. 89 (referring to Panel Report, paras.  7.64-7.67 and 8.1.d.i ). In 
the event that we reverse the Panel findings at issue, Russia also requests us to reverse the Panel's findings in 
paragraphs  7.181 -7.182 and 8.1.f.i of  the Panel  Report regarding the consequential inconsistency with  
Articles  3.1 and 3.5 of the Anti -Dumping  Agreement. ( Ibid., para.  90) 
130 European  Union's appellee's submission, paras.  92 and 105 -106. 
131 European  Union's appellee's submission, paras.  120-121. 
132 Panel Report, para. 7.59; European  Union's first written submission to the Panel, paras.  138-142; 
response to Panel question s No. 29, para.  98 and No. 35, paras.  113 and 116.  
133 Panel Report, para. 7.58.  
134 Panel Report, para. 7.58 ( referring to investig ation report , Section 5.2).  
135 Panel Report, para. 7.61 (referring to Appellate Body Report, China – GOES , para. 141).  
136 Panel Report, para. 7.61.  
137 Panel Report, para. 7.61.  WT/DS479/AB/R  
 
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under normal conditions of competition and in the absence of dumped imports.138 If there is 
evidence before the investigating authority of market conditions during the selected year that calls 
into question whether that rate of return could be achieved in subsequent years under normal 
conditions of competition and in the absence of dumped imports, an investigating authority may 
not ignore such evidence.139 
5.47.   In relation to the rate of return used by the  DIMD, the Panel  did not find it unreasonable for 
the DIMD to have used the 2009 rate of return as a starting point for the calculation of the target 
domestic price. It was the rate of return actually achieved by the domestic industry during a period 
in wh ich the dumped imports had a low market share.140 The Panel then noted that, as 
acknowledged by the DIMD  in its investigation report , Sollers' performance in 2009 was positively 
affected by the financial crisis, when "consumers preferred the cheaper light co mmercial vehicles" 
manufactured in the Customs  Union  between the Republic of Belarus, the Republic of Kazakhstan, 
and the Russian Federation .141 In the Panel's view, the financial crisis was an extraordinary event 
affecting the domestic industry's operations  in 2009.142 Therefore, the Panel did not consider it 
reasonable for an investigating authority to base its analysis on facts relating to a period in which 
extraordinary conditions prevailed without, at a minimum, explaining why the extraordinary 
conditions are not relevant to its counterfactual analysis.143 The Panel concluded that nothing in 
the DIMD's  investigation report  suggest ed that it  had considered, in its evaluation of price 
suppression, whether the high rate of return reported in 2009 could reasonabl y be expected in the 
subsequent years in the absence of dumped imports.144 
5.48.   For these reasons, the Panel found that the DIMD acted inconsistently with Article s 3.1 
and 3.2 of the Anti -Dumping Agreement by failing to take into account the impact of the financial 
crisis in determining the appropriate rate of return in its consideration of price suppression.145 
5.2.1.3   Articles  3.1 and 3.2 of the Anti -Dumping  Agreement  
5.49.   This dispute calls for us to examine the disciplines of Article 3 of the Anti -Dumping 
Agreement, a nd in particular those paragraphs relating to price suppression. The paragraphs of 
Article 3 stipulate, in detail, an investigating authority's obligations in determining the injury to the 
domestic indus try caused by dumped imports.146 These provisions conte mplate a logical 
progression of inquiry l eading to an investigating authority's ultimate injury and causation 
determination.147 This process entails a consideration of the volume of dumped imports and their 
price effects, and requires an examination of the i mpact of such imports on the state of the 
domestic industry. These various elements are linked through a causation and non -attribution 
analysis between the dumped imports and the injury to the domestic industry, taking into account 
all factors that must be  considered and evaluated.148 
5.50.   Articles 3.1 and 3.2 of the Anti -Dumping Agreement provide:  
3.1 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 o f 
the dumped imports and the effect of the dumped imports on prices in the domestic 
                                                
138 Panel Report, paras.  7.61 and 7.64.  
139 Panel Report, para. 7.64.  
140 Panel Report, para. 7.63.  
141 Panel Report, para. 7.66 (quoting investigation report , Section  4.3). 
142 Panel Report, para. 7.66.  
143 Panel Report, para. 7.66. In the Panel's view, an investigating authority may take extraordinary 
conditions into account in its  consideration of price effects in different ways, but it may not ignore the 
possibility that such conditions will not continue. According to the Panel, this could involve making an 
adjustment to the chosen rate of return, or taking into account the extrao rdinary circumstances in considering 
the "explanatory force" of dumped imports for price suppression. (Ibid.)  
144 Panel Report, para. 7.66.  
145 Panel Report, para. 7.67.  
146 Appellate Body Report, China – GOES , para. 128.  
147 Appellate Body Report, China – GOES , para. 128. See also Appellate Body Report s, China  ‒ HP-SSST  
(Japan) / China – HP-SSST (EU) , para. 5.140.  
148 Appellate Body Report s, China – HP-SSST  (Japan) / China – HP-SSST (EU) , para. 5.140. See also 
Appellate  Body Report, China  ‒ GOES , para.  128. WT/DS479/AB/R  
 
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market for like products, and (b) the consequent impact of these imports on domestic 
producers of such products.  
3.2 With regard to the volume of the dumped imports, the in vestigating authorities 
shall consider whether there has been a significant increase in dumped imports, either 
in absolute terms or relative to production or consumption in the importing Member. 
With regard to the effect of the dumped imports on prices, th e investigating authorities 
shall consider whether there has been a significant price undercutting by the dumped 
imports as compared with the price of a like product of the importing Member, or 
whether the effect of such imports is otherwise to depress pri ces to a significant 
degree or prevent price increases, which otherwise would have occurred, to a 
significant degree. No one or several of these factors can necessarily give decisive 
guidance.  
5.51.   Article 3.1 is an overarching provision that sets forth a Membe r's fundamental, substantive 
obligation with respect  to the determination of injury and informs the more detailed obligations in 
succeeding paragraphs.149 In Article  3.1, the thrust of an investigating authorit y's obligation lies in 
the requirement that it base its determination on "positive evidence " and conduct an 
"objective  examination ".150 The term "positive evidence" relates to the quality of the evidence that 
authorities may rely on in making a determination .151 The term "objective examination" is concerned  
with t he investigative process itself. The  word "examination" relates to the way in which the evidence 
is gathered , inquired into , and, subsequently, evaluated . The word "objective" indicates that the 
examination process must conform to the principles of good faith and fundamental fairness.152 Thus, 
an "objective examination" requires that the domestic industry, and the effects of dumped imports, 
be investigated in an unbiased manner, without favouring the interests of any interested party, or 
group of inter ested parties, in the investigation .153 
5.52.   Pursuant to the second sentence of Article 3.2, an investigating authority shall consider 
whether the effect of dumped imports is to prevent price increases,  which otherwise would have 
occurred, to a significant degree . Articles 3.1 and 3.2 do not prescribe a particular methodology 
that an investigating authority must follow in assessing whether price suppression has occurred. 
An investigating authority enjoys a certain degree of discretion in adopting a methodology to guide 
its analysis. Within the bounds of this discretion, an investigating authority may have to rely on 
reasonable assumptions or draw inferences.154 The exercise of this discretion must nonetheless 
comply with the requirements of Articles  3.1 and 3.2. Accordingly, when an investigating 
authority's determination rests upon assumptions, these assumptions should be derived as 
reasonable inferences from a credible basis of facts, and should be sufficiently explained so that 
their objectivity and credibility can  be verified.155 An investigating authority that uses a 
methodology premised on unsubstantiated assumptions does not conduct an examination based 
on positive evidence .156 An assumption is not properly substantiated when the investigating 
authority does not exp lain why it would be appropriate to use it in the analysis.157 
5.53.   With regard to the examination of whether imports have prevented domestic price  increases 
to a significant degree under Article  3.2, it would not be sufficient that prices of like domestic 
produc ts have not risen  during the period of investigation , even though they would normally be 
expected to have risen.158 Rather, b y asking the question " whether the effect of " the dumped 
imports  is significant price suppression,  the second sentence of Article  3.2 specifically instruct s an 
investigating authority to consid er whether certain price effects  are the consequences of dumped  
                                                
149 Appell ate Body Report, Thailand – H-Beams , para. 106.  
150 Appellate Body Report, US – Hot-Rolled Steel , para. 192.  
151 Appellate Body Report, US – Hot-Rolled Steel , para. 192.  
152 Appellate Body Report, US – Hot-Rolled Steel , para. 193. See also Appellate Body Reports , China – 
GOES , para. 126; China – HP-SSST  (Japan) / China – HP-SSST (EU) , para. 5.138.  
153 Appellate Body Report, US – Hot-Rolled Steel , para. 193. See also Appellate Body Reports, China – 
GOES , para. 126; China – HP-SSST  (Japan) / China – HP-SSST (EU) , para. 5.138.  
154 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204.  
155 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204.  
156 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 205.  
157 Appellate Bod y Report, Mexico – Anti-Dumping Measures on Rice , para. 205.  
158 Appellate Body Report, China – GOES , para. 138.  WT/DS479/AB/R  
 
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imports.159 Article  3.2 thus contemplates an inquiry into the relationship between dumped imports 
and domestic prices. Specifically,  in China – GOES , the Appellate  Body stated that an investigating 
authority is required to consider whether dumped imports have "explanatory force" for the 
occurrence of significant suppression of domestic prices.160 In this respect, an investigating 
authority  may not disregard evidence regarding elements that call into question the explanatory 
force of dumped imports for significant price suppression. Where there is evidence on the 
investigating authority's record concerning elements other than dumped imports that may explain 
the significant suppression of domestic prices, the investigating authority must consider relevant 
evidence pertaining to such elements for purposes of understanding whether dumped imports 
indeed have a suppressive effect on domestic price s.161  
5.54.   The inquiry into whether dumped imports have "explanatory force" for significant 
suppression of domestic prices under Article  3.2 of the Anti -Dumping  Agreement is distinct from 
the injury causation and non -attribution analysi s under Article  3.5 of the  Anti-Dumping  
Agreement .162 While the assessments under both Article  3.2 and 3.5 are interlinked elements of 
the single, overall injury analysis163, the inquiry under each provision has a distinct focus. The 
analysis under Article  3.2 focuses on the relationsh ip between  dumped imports and  domestic 
prices .164 In contrast, the analysis under Article 3.5 focuses on the causal relationship between 
dumped imports  and injury  to the domestic industry.165 More specifically, the examination under 
Article 3.5 encompass es "all relevant evidence " before the investigating authority, including the 
volume of dumped  imports and their price effects listed under Article  3.2, as well as  all relevant 
economic factors concerning the state of the domestic industry as listed in Article  3.4.166 The 
examination under Article  3.5, by definition, covers a distinct and broader  scope than the sc ope of 
the elements considered in relation to price suppression under Article 3.2.167 Therefore , while an 
investigating authority is not required  under Art icle 3.2 to conduct  an "analysis of all known factors 
that may cause injury  to the domestic industry "168, as required by Article 3.5, the authority must 
consider under Article  3.2 whether dumped imports have "explanatory force" for the occurrence of 
signific ant suppression of domestic prices .169 
5.2.1.4   Whether the Panel erred in its interpretation and application of Articles  3.1 
and 3.2 of the Anti -Dumping  Agreement in connection with the financial crisis  
5.55.   In challenging the Panel's finding that the DIMD acted inconsis tently with Articles  3.1 
and 3.2 of the Anti-Dumping  Agreement by failing to take into account the impact of the financial 
crisis, Russia submits two main arguments. We examine each of them in turn below.  
5.56.   Russia first argues that focusing on certain particular factors in the price suppression 
analysis – such as the financial crisis – would lead to a biased and non -objective analysis because 
the rate of return can potentially be influenced by a number of factors.170 The European  Union 
disagrees with Russ ia's contention that an investigating authority is not obliged to consider any 
evidence that questions the rate of return used to construct the domestic target prices.171 To the 
European  Union, if there is evidence before the investigating authority that the  rate of return 
selected is very high because of exceptional circumstances in the market, relying on this rate 
                                                
159 Appellate Body Report, China – GOES , para. 136.  
160 Appellate Body Report, China – GOES , para. 136.  
161 Appellate Body Report, China – GOES , para. 152. 
162 Appellate Body Report, China – GOES , para. 147.  
163 Appellate Body Report s, China – HP-SSST  (Japan) / China – HP-SSST (EU) , para. 5.141.  
164 Appellate Body Report, China – GOES , para. 147.  
165 Appellate Body Report, China – GOES , para. 147. Article  3.5 of  the Anti -Dumping  Agreement 
provides, in relevant part:  
It must be demonstrated that the dumped imports are, through the effects of dumping, as set 
forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. … The 
authorities shall a lso examine any known factors other than the dumped imports which at the 
same time are injuring the domestic industry, and the injuries caused by these other factors 
must not be attributed to the dumped imports.  
166 Appellate Body Report, China – GOES , para.  147. 
167 Appellate Body Report, China – GOES , para. 147.  
168 Appellate Body Report, China – GOES , para. 151. (emphasis original)  
169 Appellate Body Report, China – GOES , para. 136.  
170 Russia's appellant's submission, paras.  76 and 86.  
171 European  Union's appellee's submission, paras. 105 -106. WT/DS479/AB/R  
 
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without considering whether these circumstances will likely continue to exist, and without making 
any adjustments, leads to a biased price suppre ssion analysis.172 
5.57.   The Panel found that an investigating authority would act inconsistently with Articles 3.1 
and 3.2  of the Anti -Dumping  Agreement if the rate of return used in constructing a counterfactual 
target domestic price is not one that the domestic  industry could have expected to achieve in the 
subsequent years under normal conditions of competition and in the absence of dumped imports. 
To the Panel, if there is evidence before the investigating authority of market conditions during the 
selected yea r that calls into question whether that rate of return could be achieved in subsequent 
years under normal conditions of competition and in the absence of dumped imports, an 
investigating authority may not ignore such evidence.173 The Panel noted that, as ack nowledged by 
the DIMD, Sollers' performance in 2009 was positively affected by the financial crisis.174 The Panel 
did not consider it reasonable for an investigating authority to base its analysis on facts relating to 
a period in which extraordinary conditio ns prevailed without, at a minimum, explaining why the 
extraordinary conditions are not relevant to its counterfactual analysis.175  
5.58.   As noted earlier, the second sentence of Article 3.2 of the Anti -Dumping  Agreement requires 
an investigating authority to con sider whether dumped imports prevent an increase in the price of 
the domestic like product. When  an investigating authority's determination rests upon 
assumptions, these assumptions should be derived as reasonable inferences from a credible basis 
of facts,  and should be sufficiently explained so that their objectivity and credibility can be 
verified.176 An investigating authority is required to consider whether dumped imports have 
"explanatory force"  for the occurrence  of significant suppression  of domestic p rices.177 In this 
respect, an investigating authority may not disregard evidence that calls into question the 
explanatory force of dumped imports for significant price suppression. We consider that the Panel  
statements at issue are in line with our understan ding of Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement.  
5.59.  In our view, the fact that several factors or elements could potentially influence the rate of 
return used to construct the target domestic price does not allow an investigating authority to 
disregard evidence regarding any particular factor or element that calls into question the 
explanatory force of dumped imports for significant price suppression.178 Thus, we do not believe 
that the consideration of evidence regarding factors or elements – such as , in this dispute,  the 
financial crisis – that call into question the explanatory force of dumped imports for the existence 
of price suppression would lead to a biased analysis simply because there could be other factors 
that could also potentially affect the selected rate of return.  
5.60.   Russia also argues that the examination of " all known  factors" is not required in the price 
suppression analysis under Article  3.2 of the Anti -Dumping  Agreement.179 Russia submits that  
considering the impact of the financial crisis in the price suppression analysis would put an 
additional burden on the investigating authority to conduct, under Article  3.2, an exhaustive 
causation and non -attribution analysis analogous to the one require d under Article  3.5 of the 
Anti-Dumping  Agreement.180  
5.61.   In response, the European  Union submits that factoring into the price suppression analysis 
the exceptional circumstances surrounding the 2009 high rate of return does not involve a 
consideration of wheth er other factors caused injury under Article 3.5 of the 
                                                
172 European  Union's appellee's submission, para. 109.  
173 Panel Report, paras.  7.61 and 7.64.  
174 Panel Report, para. 7.66 ( referring to  investigation report , Section  4.3). 
175 Panel Report, para. 7.66.  
176 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204.  
177 Appellate Body Report, China – GOES , para. 136.  
178 We note that Russia has not identified , before the Panel  or on appeal, any other relevant factor that 
should have influenced the r ate of return used by the DIMD to construct the target domestic price.  
179 Russia's appellant's submission, para. 77. (emphasis original)  
180 Russia's appellant's submission, paras. 78 -81 and 83 -85 (referring to Panel Reports, 
EC ‒ Countervailing Measures on DRAM Chips , paras.  7.337 -7.339; US – Countervailing Duty Investigation on 
DRAMS , para.  7.351;  China – GOES , para.  7.522; Appellate  Body Report, China – GOES , paras.  142, 151, and 
164). WT/DS479/AB/R  
 
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Anti-Dumping  Agreement.181 Rather, the European  Union  submits that an investigating authority's 
inquiry under Article 3.2 is focused on the relationship between dumped imports and domestic 
prices.182 While the investigating authority is not required to conduct an analysis of all known 
factors that may cause injury , it cannot disregard evidence that calls into question the explanatory 
force of the dumped imports for the significant price suppression.183  
5.62.   We d o not consider that the Panel's interpretation of Article  3.2 of the 
Anti-Dumping  Agreement suggests that an investigating authori ty is required to conduct a 
non-attribution analysis of all known factors that may be causing injury  to the domestic industry in 
the context of its price suppression analysis. Rather, the Panel considered that it was not 
reasonable for an investigating authority to base its analysis on facts relating to a period where 
extraordinary conditions prevailed without, at a minimum, expl aining why the extraordinary 
conditions are not relevant to its price suppression analysis or making pertinent adjustments.184  
5.63.   As explained earlier, the inquir ies under Article  3.5 and under Article  3.2 have distinct 
focuses. The analysis under Article 3.5 focuses on the causal relationship between dumped imports  
and injury  to the domestic industry. In contr ast, the analysis under Article  3.2 focuses on the 
relationship between  dumped imports and  domestic prices .185 Considering whether a factor such as 
the fin ancial crisis called into question the explanatory force of dumped imports for the existence 
of price suppression would relate to the consideration of price effects under Article 3.2. Thus, such 
examination would not implicate the injury causation or non -attribution analysis under 
Article  3.5.186 Indeed, the consideration of price effects under Article  3.2 is not conclusive of the 
determination of injury under Article  3.5. A s far as Article 3.2 is concerned, an assessment of the 
relationship between dumped imports and significant suppression of domestic prices  relate s only to 
the impact on domestic prices . Such an assessment need not take into account factor s that may 
be rele vant to the analysis of injury  causation and non -attribution under Articles 3.4 and 3.5  of the 
Anti-Dumping  Agreement.187 In addition, we agree with the United  States that, while a panel need 
not make a determination of injury causation in the context of Art icle 3.2, a panel may find it 
necessary to consider some of the same facts in its analys es under Article 3.2 and under 
Article  3.5.188 
5.64.   For the reasons  above , we consider that the Panel did not err in its interpretation and 
application of Articles 3.1 and 3.2  of the Anti-Dumping  Agreement  when finding that the DIMD 
acted inconsistently with these provisions by failing to take into account the impact of the financial 
crisis in its price suppression analysis.  
5.2.2   Article  11 of the DSU  
5.2.2.1   Introduction  
5.65.   The European  Union  challenges certain Panel findings concerning the explanatory force of 
the dumped imports for price suppression and the degree of such price suppression. The 
European  Union claims that, in making these findings, the Panel acted inconsistently with 
Article  11 of the DSU. This is because, to the European  Union, the Panel's reasoning at issue is 
inconsistent and incoherent with its earlier finding that the DIMD acted inconsistently with 
Articles  3.1 and 3.2 of the Anti-Dumping  Agreement  by failing to take into  account the impact of 
the financial crisis when using the 2009 rate of return for constructing the target domestic price .189 
The European  Union  requests us to reverse the Panel's findings at issue.190 In the event that we 
                                                
181 European  Union's appellee's submission, para. 113.  
182 European  Union's  appellee's submission, para. 116.  
183 European  Union's appellee's submission, para. 116.  
184 Panel Report, para. 7.66.  
185 Appellate Body Report, China – GOES , para. 147.  
186 An investigating authority may consider whether a financial crisis calls into question t he explanatory 
force of dumped imports for significant suppression of domestic prices , and whether the same  financial crisis 
calls into question the causal relationship between dumped imports and injury  to the domestic industry.  
187 See Appellate Body Report , China – GOES , para. 151.  
188 United States' third participant's submission, para. 39.  
189 European  Union's other appellant's submission, paras. 76 and 90.  
190 European  Union's other appellant's submission, para.  100 (referring to Panel Report , paras.  7.77-
7.81 and fn 197 thereto , 7.104 -7.107, 8.1.d.iii, and 8.1.d.iv ). WT/DS479/AB/R  
 
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dismiss the European  Union's claims under Article  11 of the DSU, the European  Union also claims 
that the Panel erred in its interpretation and application of A rticles  3.1 and 3.2 of the 
Anti-Dumping  Agreement in finding that the DIMD's methodology explained that the effect of the 
dumped impo rts was to supress domestic prices.191 In this respect, the European Union requests 
us to reverse the Panel's findings at issue, complete the  analysis, and find that the DIMD acted 
inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by fai ling to consider 
whether the dumped imports have explanatory force for the existence of significant price 
suppression.192 
5.66.   Russia responds that the European  Union has not demonstrated that the Panel's assessment 
was not objective within the meaning of Article  11 of the DSU.193 Russia thus seeks to have the 
Panel's findings at issue upheld.194 
5.67.   Before examining the European  Union's claim  under Article  11 of the DSU, we summarize 
the relevant Panel findings . Thereafter, we examine the merits of the European  Union's claim on 
appeal.  
5.2.2.2   Panel's finding s 
5.68.   Before the Panel, the European  Union claimed that the price gap between higher priced 
imports and domestic products calls into question the explanatory force of the dumped imports for 
the alleged price suppression. T o the European  Union, this is because the price gap may suggest 
that other factors, unrelated to the dumped imports, were responsible for the alleged price 
suppression.195 The European  Union also argued that the long -term price trends of dumped 
imports and t he domestic like product did not support the conclusion of price suppression.196 This 
is because, according to the European  Union, from 2008 to 2011, the increase in domestic prices 
was higher than the increase in import prices.197 To the European  Union, this stands in contrast 
with a price suppression situation, where the domestic prices should fail to increase or increase 
less than would otherwise be the case, while import prices decrease.198 Finally, the 
European  Union argued that the DIMD did not demonstrate that the alleged price suppression was 
to a significant degree , because it failed to compare the target  domestic prices and the actual 
domestic prices, and to consider the gap between these prices.199 
5.69.   To the Panel, the fact that dumped import prices were hig her than domestic prices is not, in 
itself, evidence that dumped imports do not have explanatory force for significant suppression of 
domestic prices.200 The Panel therefore found that the absence of price undercutting, or the 
presence of a "price gap" betwe en import and domestic prices, does not necessarily preclude or 
call into question the explanatory force of the dumped imports for price suppression.201 
Furthermore, the Panel indicated that, "where  an investigating authority constructs  a target 
domestic pri ce that otherwise would have occurred in the absence of the dumped imports , the 
methodology itself ensures  that the failure of actual domestic prices to rise to the level of the 
target domestic price is an effect of the dumped imports ."202 Thus, according to the Panel, in the 
anti-dumping investigation at issue, " the DIMD's use of that methodology itself explained the 
                                                
191 European  Union's other appellant's submission, paras.  101-102. 
192 European  Union's other appellant's submission, para.  132 (referring to Panel Report , paras.  7.77-
7.78 and 8.1.d.iii ). 
193 Russia's appellee's submission, paras. 93, 95, and 99.  
194 Russia's appellant's submission, para.  120. 
195 Panel Report, para. 7.75.  
196 Panel Report, para. 7.75.  
197 Panel Report, para. 7.79.  
198 Panel Report, para. 7.79.  
199 Panel Report, para. 7.101.  
200 Panel Report, para.  7.77. According to the Panel, higher dumped import prices can have a 
suppressing effect on domestic prices, particularly in situations where imports command a price premium over 
the domestically produced product. (Ibid.)  
201 Panel Report, para. 7.77.  
202 Panel Report, para. 7.78.  WT/DS479/AB/R  
 
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effect of the dumped imports to suppress domestic prices in the absence of price undercutting and 
despite the price gap ."203 
5.70.   Regarding the European  Union 's argument that the long -term price trends of dumped 
imports and the domestic like product do not support the conclusion of price suppression, the 
Panel noted that this argument was premised on a simple end -point-to-end-point (2 008-2011) 
comparison of domestic and import prices. To the Panel, this could not be determinative of the 
question of whether the effect of the dumped imports was to suppress domestic prices to a 
significant degree. This is because, according to the Panel, this simple comparison ignored 
intervening developments over the period considered.204 
5.71.   In addition, on the basis of the trends in domestic prices and dumped import prices during 
the period under consideration, the Panel noted that dumped import prices increa sed from 2008 to 
2009, but then decreased in 2010, and eventually converged with steadily increasing domestic 
prices in 2011. The Panel found it significant that, after 2009, dumped import prices continued on 
a deep downward trend, despite an additional 15 % customs duty imposed after 2009.205 The Panel 
noted that the DIMD relied on the downward pressure of dumped imports on domestic prices in 
considering price suppression.206 The Panel considered that, by virtue of this downward pressure at 
least since 2009, th e long -term price trends did not call into question the explanatory force of 
dumped imports for price suppression, contrary to the European  Union's argument. Rather, relying 
on a graph depicting actual domestic prices, the target domestic price, and the du mped import 
prices between 2008 and 2011, the Panel found that the long -term price trends corroborated the 
DIMD's counterfactual analysis.207 
5.72.   Finally, regarding the significant degree of price suppression, the Panel noted that 
Article  3.2 of the Anti -Dumping  Agreement does not set out any methodological guidance on how 
to consider price suppression, and thus nothing requires that a comparison be made between 
target domestic prices  in the absence of dumped imports  and actual prices of the domestic like 
product.208 Furthermore, in assessing the approach chosen by the DIMD in determining  whether 
price suppression was to a significant degree, the Panel noted that, while the DIMD did not 
explicitly compare the actual dom estic prices and the constructed target domestic prices , 
Table  5.2.2 of the investigation report set out both actual and target domestic prices, and the 
difference between these prices was "evident on the face of the table".209 
5.73.   The Panel found that the Europ ean Union had not  demonstrate d that the DIMD failed to 
consider  evidence that was self -evidently before it, o r that its consideration of evidence was biased 
or otherwise lacked objectivity.210 The Panel then noted that the DIMD had compared the actual 
domest ic prices with the  dumped import prices, and the target domestic prices with the dumped 
import prices . The DIMD had also considered the difference between the total profit/loss actually 
reported and the profit/loss that would have occurred in the absence o f dumped imports during 
the period of investigation.211 On this basis, the Panel concluded that the DIMD had, in fact, 
consider ed whether the effect of dumped imports was significant price suppression, and in fact 
ultimately concluded that this was the case.212 
5.2.2.3   Whether the Panel findings are internally incoherent and inconsistent  
5.74.   The European  Union claims that the Panel acted inconsistently with Article  11 of the DSU 
because certain of its findings are internally incoherent and inconsistent with its earlier fin ding that 
the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping  Agreement  by failing 
to take into account the impact of the financial crisis when using the 2009 rate of return for the 
                                                
203 Panel Report, para.  7.78. 
204 Panel Report, para. 7.80.  
205 Panel Report, para. 7.80.  
206 Panel Report, para. 7.81 ( referring to  investigation report, Section  5.2). 
207 Panel Report, para. 7.81.  
208 Panel Report, para. 7.102.  
209 Panel Report, para. 7.104 and Table 5 thereto.  
210 Panel Report, para.  7.104.  
211 Panel Report, para. 7.105.  
212 Panel Report, para. 7.105.  WT/DS479/AB/R  
 
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construction of the target domestic price .213 In par ticular, the European  Union claims that the 
Panel's finding concerning the DIMD's "methodology itself" is problematic since "any application of 
such methodology is necessarily affected by the illegal profit rate chosen to construct the target 
domestic pric es."214 In addition, the European  Union challenges the Panel's finding that the 
long-term price trends corroborate the DIMD's counterfactual analysis , because, as the 
European  Union stresses, the target  domestic prices were based on the 2009 rate  of return.215 
Finally, with respect to the significant degree of price suppression, the European  Union notes that 
the Panel found that the DIMD considered the difference between the total profit/loss actually 
reported by the domestic industry and the profit/loss that w ould have occurred in the absence of 
dumped imports.216 The European  Union contends that the target domestic prices and the 
profit/loss used by the DIMD were calculated on the basis of the 2009 rate of return, which the 
Panel found earlier to be inconsistent  with Articles 3.1 and 3.2 of the Anti -Dumping Agreement.217 
5.75.   Russia responds that the Panel's findings regarding the DIMD's methodology concern the 
interpretation of Articles  3.1 and 3.2 of the Anti -Dumping  Agreement, and not the objectivity of 
the Panel's a nalysis under Article  11 of the DSU.218 In relation to the  long-term price trends, 
Russia  contends that the European  Union has not show n why the analysis of the Panel was not 
objective.219 Finally, Russia contends that the European  Union mischaracterizes the P anel's findings 
concerning the significant degree of price suppression.220 Russia recalls that the Panel found that 
there is no requirement in the Anti -Dumping Agreement to compare target domestic prices and 
actual prices of the domestic like product to asse ss the significance of price suppression.221 In this 
regard, Russia again argues that the Panel's findings concern the interpretation of Article 3.2 of 
the Anti -Dumping Agreement rather than the objectivity of the Panel's analysis under Article 11 of 
the DSU .222 
5.76.   We recall that Article  11 of the DSU imposes upon panels a comprehensive obligation to 
make an "objective assessment of the matter ", an obligation that embraces all aspects of a panel's 
examination of the "matter ", both factual and legal.223 In previous d isputes, the Appellate  Body 
has held that a panel does not comply with its obligations under Article  11 if its findings are 
internally incoherent and inconsistent. For example, in US – Upland Cotton (Article  21.5 – Brazil) , 
the Appellate  Body considered th e panel's treatment of the competing evidence submitted by the 
parties as internally inconsistent. That panel had dismissed the significance of certain re -estimates 
data because they were projections subject to uncertainty. At  the same time, the panel had 
considered other estimates of central importance , despite the fact that they suffered from the 
same uncertainty , given that they too were estimates.224 
5.77.   Another example is found in EC and certain member States – Large Civil Aircraft , where the 
Appellate  Body considered the panel's reasoning in relation to the United  States' proposed project -
specific risk premium as internally inconsistent. The panel dismissed venture capital financing as a 
source from which to derive the project risk o f the projects financed with launch aid /member 
State financing because it considered venture capital financing to be more risky than launch aid 
/member State financing . Notwithstanding these reservations, which question ed the 
appropriateness of using the rates of return of venture capital financing as a proxy  from which  to 
derive the risk premium of the projects financed by launch aid /member State financing , the panel 
used a project -specific risk premium derived from the returns of venture capital financi ng in its 
analysis of large civil aircraft  projects. To the Appellate  Body, t his type of internally inconsistent 
                                                
213 European  Union's other appellant's submission, paras. 76 and 90.  
214 European  Union's other appellant's submission, para . 94. 
215 European  Union's other appellant's submission, para. 96 (referring to Panel Report, para.  7.81). The 
European  Union also argues that the Panel referred to Figure 2 contained in paragraph 7.81 of its Report, 
which included data pertaining to the target dom estic prices calculated on the basis of the 2009 rate of return. 
(Ibid.)  
216 European  Union's other appellant's submission, para. 98 (referring to Panel Report, para.  7.105).  
217 European  Union's other appellant's submission, para. 99.  
218 Russia's appellee's s ubmission, para.  93. 
219 Russia's appellee's submission, paras.  94-95. 
220 Russia's appellee's submission, para. 114.  
221 Russia's appellee's submission, para. 114.  
222 Russia's appellee's submission, para. 116.  
223 Appellate Body Report, US – Hot-Rolled Steel , para . 54. See also Appellate Body Reports, Colombia – 
Textiles , para. 5.17; India – Solar Cells , para. 5.15.  
224 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , paras.  287-292. WT/DS479/AB/R  
 
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reasoning could not  be reconciled with the Panel's duty to make an objective assessment of the 
facts under Article  11 of the DSU.225 
5.78.   We now turn to examine the three sets of Panel findings challenged by the European  Union 
under Article  11 of the DSU. In relation to the Panel's findings concerning the methodology itself, 
the Panel found that, "where  an investigating authority constructs  a target dom estic price  that 
otherwise would have occurred in the absence of the dumped imports , the methodology itself 
ensures  that the failure of actual domestic prices to rise to the level of the target domestic price is 
an effect of the dumped imports ."226 The Panel then recalled the manner in which the DIMD 
applied its methodology in the anti -dumping investigation at issue. In particular, the Panel recalled 
that the DIMD identified a benchmark rate of return in the year with the lowest dumped import 
penetr ation.  The Panel further recalled that the DIMD constructed, on the basis of the rate of 
return in that year, the target domestic prices that would otherwise have occurred in the absence 
of the dumped imports , and then compared those  prices with the actual  price during the period 
considered.227 The Panel finally observed that it was because the actual prices were lower than the 
target domestic prices  that the DIMD ultimately concluded that the effect of the dumped imports 
was to suppress domestic prices significantly . Given that the DIMD's methodology explained that 
the effect  of the dumped imports was to suppress domestic prices, the Panel considered that the 
DIMD was not required to explain separately why, despite being higher priced, the effect of 
dumped im ports was to prevent domestic price increases .228 
5.79.   Therefore , it is evident that, when  the Panel stated  that the "methodology itself" ensures 
that the failure of actual domestic prices to rise to the level of the target domestic price is an effect 
of the dump ed imports229, the Panel was referring  to the manner in which the  DIMD  designed and 
applied its  methodology in the anti -dumping investigation at issue  in order to consider whether 
significant price suppression had occurred . This finding , however,  is not coherent and consistent 
with the Panel's earlier finding that the manner in which the DIMD used the 2009 rate of return to 
determine the target domestic price was WTO -inconsistent . As explained above, the Panel found 
that the DIMD acted inconsistently with  Articles 3.1 and 3.2 of the Anti-Dumping  Agreement by 
failing to take into account the impact of the financial crisis in determining the rate of return  to be 
used in constructing  the target domestic price.230 By later finding that the DIMD's application of its 
methodology ensured that the failure of actual domestic prices to rise to the level of the target 
domestic price was an effect of the dumped imports, the Panel appears to have ignored its earlier 
finding that the DIMD's construction of the target domes tic price was WTO -inconsistent. Such an  
internally incoherent reasoning cannot be reconciled with the Panel's duty to make an objective 
assessment of the matter before it, and is therefore inconsistent with Article 11 of the DSU.  
5.80.   In relation to the Panel's  findings concerning the long -term price trends, the Panel found 
that, in light of the downward pressure exercised  by dumped imports on domestic prices at least 
since 2009, the long -term price trends do not call into question the "explanatory force" of dum ped 
imports for price suppression . The Panel considered that the long -term price trends, in fact, 
corroborate the DIMD's  counterfactual analysis.231 In making this finding, the Panel relied on 
Figure 2 in paragraph 7.81 of the Panel Report. Figure 2 shows three lines, one of which 
represents the trend in target domestic prices.  
5.81.   As explained above, in its counterfactual analysis, the DIMD used target d omestic prices 
calculated on the basis of the 2009 rate of return. The Panel had found earlier that the DIMD's 
construction of the target domestic price was WTO -inconsistent. The Panel's finding that the 
long-term price trends corroborate the DIMD's  counte rfactual analysis232 is not coherent and 
consistent with its earlier finding concerning the DIMD's construction of the target domestic price 
on the basis of the 2009 rate of return. This is because the DIMD's counterfactual analysis relied 
                                                
225 Appellate Body Report, EC and certain member States – Large Civi l Aircraft , paras.  884, 886, and 
894. 
226 Panel Report, para.  7.78. 
227 Panel Report, para.  7.78. 
228 Panel Report, para.  7.78. 
229 Panel Report, para 7.78.  
230 We have upheld the Panel's findings under Article s 3.1 and 3.2 of the Anti -Dumping  Agreement 
concerning t he 2009 rate of return. See paras.  5.55-5.64 above.  
231 Panel Report, para.  7.81. 
232 Panel Report, para.  7.81. WT/DS479/AB/R  
 
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on the target dome stic price, and the Panel had found earlier that the manner in which the DIMD 
used the 2009 rate of return to determine the target domestic price was WTO -inconsistent. Thus, 
the Panel could not have later relied on the DIMD's counterfactual analysis as a b asis for its finding 
concerning the price trends.  
5.82.   For these reasons, we consider that the Panel's finding concerning the long-term price 
trends is not coherent and consistent with its earlier finding that the manner in which the DIMD 
used the 2009 rate of return to determine the target domestic price was WTO -inconsistent . Thus, 
we find that, in this regard, the Panel acted inconsistently with Article 11 of the DSU.  
5.83.   Finally, in relation to the Panel's finding concerning the significant degree of price 
suppr ession, we recall that the Panel first observed that the DIMD did not explicitly compare the 
actual domestic prices and the constructed target domestic prices .233 Nonetheless, the Panel noted 
that Table 5.2.2 of the investigation report sets out both actual and target domestic prices, and 
that the difference between these prices was "evident on the face of the table".234 The Panel then 
stated that there was no basis for it to conclude that, "having set out the relevant data in the 
Investigation Report, the DIMD  did not in fact consider it, including the self -evident fact that the 
actual domestic prices were consistently below the target domestic prices, apart from 2009, the 
benchmark year ."235 The Panel also observed that the DIMD had compared the dumped imports 
prices with : (i) the actual domestic prices and (ii)  the target domestic prices, as well as considered 
the difference between the total profit/loss actually reported and the profit/loss that would have 
occurred in the absence of dumped imports.  On this basi s, the Panel concluded that it  was "beyond 
question that the DIMD did, in fact, consider whether the effect of dumped imports [was] 
significant price suppression, and in fact ultimately concluded that this was the case".236 
5.84.   We consider that the Panel's reasoning at issue is not consistent with its earlier finding 
concerning the 2009 rate of return. The Panel could not have relied on the target domestic price, 
in particular on the difference between the actual domestic prices and the target domestic prices, 
in its assessment of the DIMD's consideration of the degree of price suppression, given that it had 
found earlier that the DIMD's construction of the target domestic price was WTO-inconsistent. 
Thus, we consider that the Pan el's findings concerning the significant degree of price suppression 
are not coherent and consistent with its earlier finding concerning the 2009 rate of return. As a 
result, the Panel's reasoning is internally incoherent and contrary to the requirements o f Article  11 
of the DSU.  
5.85.   We recall that the European  Union claims that the Panel erred in its interpretation and 
application of Articles  3.1 and 3.2 of the Anti -Dumping  Agreement in finding that the DIMD's 
methodology explained that the effect of the dumpe d imports was to supress domestic prices.237 
The European Union requests us to reverse the Panel's findings at issue, complete the  analysis, 
and find that the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by failing to con sider whether the dumped imports have explanatory force for the 
existence of significant price suppression.238 The European  Union conditions this aspect of its other 
appeal to the dismissal of its claims under Article  11 of the DSU in connection with price 
suppression.239 Given that  we have found  that the Panel acted inconsistently with Article  11 of the 
DSU, we do not examine that aspect of the European  Union's appeal.  
                                                
233 Panel Report, para.  7.104.  
234 Panel Report, para. 7.104 and Table 5 thereto.  
235 Panel Report, para.  7.104.  
236 Panel Report, para. 7.105.  
237 European  Union's other appellant's submission, paras.  101-102 (referring to Panel Report, 
para. 7.78). 
238 European  Union's other appellant's submission, para.  132 (referring to Panel Report, paras.  7.77-
7.78 and 8.1.d.iii ). 
239 European  Union's other appella nt's submission, paras.  100-101. WT/DS479/AB/R  
 
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5.2.3   The ability of the market to absorb further price increases  
5.2.3.1   Introduction  
5.86.   The European  Union appeals the Panel's finding that the evidence on the  investigation  
record did not require the DIMD to examine whether the market could absorb further  price 
increases. The European  Union claims  that the Panel erred in its interpretation and application of 
Articles 3.1 and 3.2 of the Anti -Dumping Agreement because, to the European  Union, where there 
is evidence on the record of significant price and production cost increases, an investigating 
authority must consider whether the market would absorb further pri ce increases.240 The 
European  Union requests us  to reverse the Panel's finding  at issue.241 The European  Union also 
requests us to complete the  analysis and find that the DIMD acted inconsistently with Articles  3.1 
and 3.2  by failing to examine whether the mar ket would accept additional domestic price 
increases.242 Russia responds that there is no explicit requirement in  Articles 3.1 and 3.2 to 
consider whether the market would accept pri ce increases and that an investigating authority has 
to examine this issue o nly if it is faced with evidence that calls into question the ability of the 
market to absorb price increases.243 Russia seeks to have the Panel's findings upheld.244 
5.87.   We begin by summariz ing the relevant Panel finding s. Thereafter, we examine the merits of 
the European Union's claim on appeal.  
5.2.3.2   Panel's  finding s 
5.88.   Before the Panel, the European  Union  contended that the DIMD failed to examine the 
reasons for the increase in the domestic industry's costs, and the likelihood that the market would 
accept additional domestic price increas es.245 The Panel noted that the parties did not disagree 
that, where there is evidence before an investigating authority that calls into question the ability of 
the market to absorb price increases, the authority should consider this qu estion .246 To the Panel, 
if the market would not accept price increases in the absence of dumped imports, it seems unlikely 
that price increases "otherwise would have occurred" within the meaning of Article 3.2 of the 
Anti-Dumping  Agreement .247 
5.89.   The Panel then observed that the record did not indicate that the interested parties 
questioned the ability of the market to absorb additional price increases, made arguments, or 
presented evidence in this regard before the DIMD.248 The Panel also noted that the investigat ion 
report does not contain any indication that the DIMD considered whether the market would accept 
additional price increases by the domestic industry.249 The Panel nonetheless proceeded to 
examine whether , in the absence of any clearly raised argument s concerning the ability of the 
market to accept additional price increase s, the evidence before the DIMD was such that an  
objective and unbiased investigating authority should nonetheless have consider ed this issue .250  
5.90.   First, the Panel addressed the European  Union's argument that domestic prices increased 
between 2008 and 2009 and again between 2010 and 2011 .251 To the Panel , the fact that 
domestic prices increased during the period of investigation cannot in itself call into qu estion the 
market's ability to absorb additional price increases . The Panel explained that there must be 
evidence that the price increases have resulted in prices having reached a level where the market 
                                                
240 European  Union's other appellant's submission, para.  135. 
241 European  Union's other appellant's submission, para. 159  (referring to Panel Report,  paras. 7.87-
7.91 and 8.1.d.iii ). 
242 European Union's other appellant's submission, para. 159.  
243 Russia's appellee's submission, para. 159.  
244 Russia's appellee's submission, para. 168.  
245 Panel Report, para.  7.83 (referring to European Union's first written submission  to the Panel , paras. 
153-154; second written submission  to the Panel , para. 113; response to Panel question No.  30, para.  99). 
246 Panel Report, para. 7.86.  
247 Panel Report, para. 7.86.  
248 Panel Report, para. 7.87.  
249 Panel Report, para.  7.85. 
250 Panel Report, para. 7.87.  
251 Panel Repo rt, para.  7.83. WT/DS479/AB/R  
 
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will not accept any further increases.252 Second, the P anel turned  to the European  Union 's 
argument that there were "quality  issues" with Sollers' LCVs  that raised doubts about whether 
consumers would be willing to pay high prices for those LCVs. T he Panel considered that the 
evidence on the  investigation  record did not suffice to demonstrate the existence of quality 
problems  of a degree  that would support the conclusion that the DIMD acted unreasonably by 
failing to consider whether such problems affected the likelihood that the market would accept 
further pri ce increases .253 Finally,  regarding the European  Union's argument that there was a 
significant increase in the domestic industry's costs of production due to the increasing cost s of 
raw materials , the Panel found that there was no evidence on the record to indicate that the rising 
costs of production could not have been passed on to consumers.254 
5.91.   The Panel therefore concluded that the evidence on the  investigation  record was not 
sufficient to require an objective and unbiased investigating authority to conside r whether the 
market would absorb price increases beyond those that actually took place in the context of its 
consideration of price suppression.255 
5.2.3.3   Whether the Panel erred in its interpretation and application of Articles  3.1 and 
3.2 of the Anti -Dumping  Agreement in connection with further price increases  
5.92.   The European  Union claims that the Panel erred in its interpretation and application of 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement in finding that the evidence on the  
investigation  record did not re quire the DIMD to examine whether the market  could absorb further 
price increases.256 The European  Union argues that there is no requirement in these provisions 
that the interested parties must have explicitly questioned the ability of the market to absorb 
additional price increases.257 The European  Union submits that an investigating authority making 
an injury determination is required to base its determination on all relevant reasoning and facts 
before it, and not merely the specific arguments raised by the p articipants in the investigation.258 
The European  Union also argues that the DIMD was faced with compelling evidence that 
questioned the market's ability to absorb further price increases.259 To the European  Union, t he 
DIMD should have examined  this question. The European  Union points to evidence on the DIMD's  
investigation  record relating to the increase in market prices and in Sollers' production cost s 
between 2008 and 2011, as well as the alleged quality issues with the Fiat Ducato assembled 
domestically by Sollers.260 
5.93.   Russia responds that there is no explicit requirement in Articles  3.1 and 3.2 of the 
Anti-Dumping Agreement to consider whether the market would accept price increases and that an 
investigating authority must examine this issue only if it is face d with evidence that calls into 
question the ability of the market to absorb price increases.261 Russia submits that the Panel did 
not limit the scope of its analysis to the arguments raised by the interested parties.262 Rather, the 
Panel considered the evidence on the DIMD's  investigation  record and concluded that it was not 
sufficient to require an objective and unbiased investigating authority to consider whether the 
market would absorb price increases.263 Russia thus argues that there is no error in the  Panel's 
interpretation and application of Articles 3.1 and 3.2 of the Anti -Dumping Agreement.264 
5.94.   The Panel stated  that the term "which otherwise would have occurred" in Article  3.2 of the 
Anti-Dumping  Agreement suggests that an investigating authority shoul d at least consider whether 
the market would accept price increases in the absence of dumped imports, when faced with 
relevant evidence suggesting it would not. To the Panel, if the market would not accept price 
                                                
252 Panel Report, para. 7.88.  
253 Panel Report, para. 7.89.  
254 Panel Report, para. 7.90.  
255 Panel Report, para. 7.91.  
256 European  Union's other appellant's submission, paras. 135 and 158 -159. 
257 European  Union's other appellant's submission, para. 135. 
258 European  Union's other appellant's submission, para. 153.  
259 European  Union's other appellant's submission, paras.  154-155. 
260 European  Union's other appellant's submission, paras.  140-142, 144, and 146 -147. 
261 Russia's appellee's submission, para. 159 . 
262 Russia's appellee's submission, para. 164.  
263 Russia's appellee's submission, para. 164 ( referring to  Panel Report, para. 7.87).  
264 Russia's appellee's submission, paras. 165 and 167.  WT/DS479/AB/R  
 
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increases in the absence of dumped imports, it seems unlikely that price increases "otherwise 
would have occurred" within the meaning of Article 3.2 .265 
5.95.   We agree with these Panel statements to the extent that any assumptions relied on by the 
investigating authority are derived as reasonable inferences  from a credible basis of facts, and are 
sufficiently explained . As explained above, pursuant to the second sentence of Article 3.2  of the 
Anti-Dumping  Agreement, an investigating authority shall consider whether the effect of dumped 
imports is to prevent price increases, which otherwise would have occurred, to a significant 
degree. Although an investigating authority enjoys a certain degree of discretion in adopting a 
methodology to guide its price suppression analysis, the authority must nonetheless compl y with 
the requirements of Articles  3.1 and 3.2  of the Anti -Dumping Agreement . Accordingly, when an 
investigating authority's determination rests upon assumptions, these assumptions should be 
derived as reasonable inferences from a credible basis of facts,  and should be sufficiently explained 
so that their objectivity and credibility can be verified.266 Moreover, an investigating authority is 
required , under the second sentence of Article  3.2, to consider whether dumped imports are 
preventing domestic price i ncreases "which otherwise would have occurred" to a significant 
degree. Therefore, an authority must ensure that its methodology assesses  price increases "which 
otherwise would have occurred" in the absence of dumped imports. Were an investigating 
authorit y to rely on a methodology that concern ed price increases that would not have occurred in 
the absence of dumped imports, it would not be able to consider objectively, pursuant to  
Article  3.2, whether the effect of dumped imports was to suppress significantly domestic prices.  
5.96.   In addition, b y asking the question " whether the effect of " the dumped imports  is significant 
price suppression,  the second sentence of Article  3.2 of the Anti -Dumping  Agreement  specifically 
instruct s an investigating authori ty to consid er whether certain price effects  are the consequences 
of dumped  imports.267 As explained earlier, an investigating authority is thus required to consider 
whether dumped imports have "explanatory force" for the occurrence of significant suppressio n of 
domestic prices.268 In this respect, an investigating authority may not disregard evidence 
regarding elements that call into question the explanatory force of dumped imports for significant 
price suppression. Where there is evidence on the investigating  authority's record concerning 
elements other than dumped imports that may explain the significant suppression of domestic 
prices, the investigating authority must consider relevant evidence pertaining to such elements for 
purposes of understanding whether  dumped imports indeed have a suppressive effect on domestic 
prices.269 
5.97.   We note the European  Union's contention that the Panel's interpretation of Articles  3.1 and 
3.2 of the Anti -Dumping  Agreement included a requirement that interested parties must have 
explicitly questioned the ability of the market to absorb additional price increases for an 
investigating authority to consider this question.270 We do not read the Panel, however, to have 
added such a requirement. Indeed, although it noted that the  investigati on record does not 
indicate that interested parties questioned the ability of the market to absorb additional price 
increases271, the Panel went on to examine whether " the evidence before the DIMD was such that 
an objective and unbiased investigating authori ty should nonetheless have considered this 
issue."272 This indicates that the Panel did not consider that interested parties must have explicitly 
questioned the ability of the market to absorb additional price increases for an investigating 
authority to consider this question . Thus, in this respect, we do not find that the Panel erred as far 
as its interpretation of Articles 3.1 and 3. 2 of the Anti -Dumping Agreement is concerned.  
5.98.   Having examined the Panel's interpretation of A rticles  3.1 and 3.2 of the 
Anti-Dumping  Agreement, we now turn to the Panel's application of these provisions in its review 
of the anti -dumping determination at issue. W e examine whether the Panel erred in finding that 
                                                
265 Panel Report, para. 7.86.  
266 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204. An assumption is not 
properly substantiated when the investigating authority does not explain why it would be appropriate to use it 
in the analysis. (Ibid ., para.  205) 
267 Appellate Body Report, China – GOES , para. 136. 
268 Appellate Body Report, China – GOES , para. 136.  
269 Appellate Body Report, China – GOES , para.  152. 
270 European  Union's other appellant's submission, para.  135. 
271 Panel Report, paras.  7.85 and 7.87.  
272 Panel Report, para. 7.87.  WT/DS479/AB/R  
 
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the evidence on the  investigation  record did not require the DIMD to examine whether the market  
could absorb further price increases.  
5.99.   As noted above, the European Union argues that the DIMD was faced with compelling 
evidence that questioned the market's ability to absorb further price increases.273 The evidence in 
questio n on the DIMD's investigation record relates to the increase in market prices and in Sollers' 
production costs between 2008 and 2011, as well as the alleged quality issues with the FIAT 
Ducato assembled domestically by Sollers.274 The Panel noted that the in vestigation report does 
not contain any indication that the DIMD considered whether the market would accept additional 
price increases by the domestic industry.275 The Panel nonetheless proceeded to examine this 
evidence itself276, and concluded that it was no t sufficient to require an objective and unbiased 
investigating authority to consider whether the market would absorb additional price increases.277 
We now turn to examining whether the Panel erred in making this conclusion.  
5.100.   We consider that the question be fore the Panel was whether the DIMD properly 
considered, in light of the circumstances of the underlying anti-dumping investigation, relevant 
evidence in relation to whether the market could absorb additional price increases. As noted 
above, however, the D IMD's investigation report does not contain such an explanation. We note in 
this respect that there is evidence on the DIMD's  investigation  record relating to increases in 
domestic prices and cost of production as well as alleged quality issues with the do mestic 
product.278 In our view, this evidence is relevant to an assessment of whether the domestic market 
at issue in the anti -dumping investigation could absorb additional price increases. We consider that 
the DIMD should have explained in its investigation  report, at a minimum, why this evidence does 
not show that the target domestic price relied on by the DIMD was a price that would not have 
occurred in the absence of dumped imports . This is because, were the DIMD to rely on a 
constructed target domestic p rice that could not have been absorbed by the domestic market, the 
target domestic price would not correspond to one "which otherwise  would  have occurred" in the 
absence of dumped imports within the meaning of Article 3.2 of the Anti -Dumping  Agreement. The  
failure of the actual domestic price to meet the constructed target domestic price may be due to 
the unrealistic construction of that target domestic price, rather than to the effect of the dumped 
imports on domestic prices.  
5.101.   As explained above, in  its ass essment reflected in the  investigation report, the DIMD could 
not have disregarded evidence that calls into question the explanatory force of dumped imports for 
significant price suppression. In addition, to the extent that the DIMD's determination rested upon 
assumptions, these assumptions should have been derived as reasonable inferences from a 
credible basis of facts, and should have been sufficiently explained in the report so that their 
objectivity and credibility could  be verified.  In light of the above, given that there is no indication 
in the investigation report that the DIMD considered evidence that call ed into question the 
explanatory force of dumped imports for the occurrence of significant price suppression,  we 
consider that the Panel did not have a basis to find that the DIMD did not act inconsistently with 
Articles  3.1 and 3.2 of the Anti -Dumping  Agreement.  
5.102.   In addition, in light of the standard of review under the Anti -Dumping  Agreement, we 
recall that it is not for a panel  to conduct a de novo review of the facts of the case or substitute its 
judgement for that of the investigating authorit y.279 Rather, a panel must examine "whether, in 
the light of the evidence on the record, the conclusions reached by the investigating autho rity are 
reasoned and adequate".280 In this respect, a panel must ascertain whether the investigating 
authority has evaluated all of the relevant evidence in an objective and unbiased manner , 
including by taking sufficient account of confl icting evidence and  responding  to competing plausibl e 
                                                
273 European  Union's other  appellant's submission, paras.  154-155. 
274 European  Union's other appellant's submission, paras.  140-142, 144, and 146 -147. 
275 Panel Report, para.  7.85. 
276 Panel Report, paras.  7.88-7.90. 
277 Panel Report, para.  7.91. 
278 Panel Report, paras.  7.87-7.90. 
279 Appell ate Body Reports, US – Washing Machines , para.  5.258; US – Steel Safeguards , para.  299; 
Argentina – Footwear (EC) , para.  121; US – Anti-Dumping and Countervailing Duties (China) , para.  379. 
280 Appellate Body Report, US – Washing Machines , para.  5.258 (quoti ng Appellate  Body Report, 
US ‒ Softwood Lumber VI (Article  21.5 – Canada) , para.  93). WT/DS479/AB/R  
 
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explanations of that evidence .281 Thus, the Panel in this dispute could not have reached a 
conclusion about whether the DIMD should have examined certain evidence on the basis of the 
Panel's own appreciation of this evidenc e. The fact that the Panel itself undertook the assessment 
of the evidence on the investigation  record does not change the fact that the DIMD failed to make 
such an assessment. The conclusion of whether the evidence effectively undermines or confirms 
the investigating authority's price suppression analysis under Article  3.2 of the 
Anti-Dumping  Agreement can only be reached on the basis of the authority's review of the 
evidence within the particular circumstances of each investigation as reflected in the inv estigation 
report.  
5.103.   For the reasons above, we find that the Panel erred in its application of Articles  3.1 and 3.2 
of the Anti -Dumping Agreement in finding  that the evidence on the  investigation  record did not 
require the DIMD to examine whether the market  could absorb further price increases . 
Consequently, we reverse  the Panel's findings in paragraphs 7.87 -7.91 and 8.1.d.iii  of the Panel 
Report . 
5.104.   Having reversed the Panel's finding at issue , we turn to the European  Union's request for 
us to complete the  analysis and find that the DIMD acted inconsistently with Articles  3.1 and 3.2 of 
the Anti -Dumping Agreement  by failing to examine evidence relevant to whether  the market would 
accept additional domestic price increases. The European  Union submits that we can complete the  
analysis on the basis of the evidence on the Panel record cited by the European  Union.282 
5.105.   The Appellate  Body has generally decided to complete the analysis where it was necessary 
to do so in order to facilitate the prompt settlement and effe ctive resolution of the dispute.283 
Further, completion of the analysis is possible where factual findings in the panel report, 
undisputed facts on the record, and admitted facts provide the Appellate  Body with a sufficient 
basis for doing so.284 Finally, wher e the complexity of  the issues  raised , the absence of full 
exploration of  the issues before the panel, and considerations pertaining to  the parties' due 
process rights  do not warrant completing the analysis, or where doing so is not required to resolve 
the dispute, the Appellate  Body has declined to complete the analysis.285 
5.106.   In this dispute, there is evidence on the investigation  record relating to the increase in 
market prices and in Sollers' production cost s between 2008 and 2011, as well as the alleged 
quality issues with the FIAT Ducato assembled domestically by Sollers.286 In their comments of 
11 April 2013 on the  DIMD's draft investigation report287, Daimler  AG and ZAO Mercedes -Benz RUS 
stated that the report fails to provide any assessment of other factors that could have caused the 
absence of increases in domestic prices. In particular, they stated that Sollers " faced serious 
problems with regard to the quality of the manufactured goods ".288 Daimler AG and ZAO 
Mercedes -Benz RUS conclude d that " the inability to introduce further increases in prices, which 
had already risen significantly prior to the period under investigation, was a consequence of 
[Sollers']  own behaviour and the business solutions adopted by [Sollers] ."289 We also note that, 
                                                
281 Appellate Body Reports, US – Washing Machines , para.  5.258; US – Softwood Lumber VI 
(Article  21.5 – Canada) , para.  97; US – Anti-Dumping and Countervailing Duties (Chin a), para.  443. 
282 European Union's other appellant's submission, para.  159. 
283 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.146; EC and certain 
member States – Large Civil Aircraft , para.  1178; US ‒ Large Civil Aircraft (2nd compl aint), para.  1351; 
EC ‒ Asbestos , para. 78.  
284 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.146; Australia – Salmon , 
paras. 209, 241, and 255; Korea – Dairy , paras. 91 and 102; US – Large Civil Aircraft (2nd complaint) , 
para. 653; US – Section 211 Appropriations Act , para. 343; EC – Asbestos , paras. 78 -79.  
285 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.146; Canada – 
Renewable Energy / Canada – Feed-in Tariff Program , para.  5.224; EC ‒ Seal Products , paras. 5.63 and 5.69; 
US – Steel Safeguards , para. 431.  
286 Panel Report, paras.  7.87-7.90. 
287 Eurasian Economic Commission, Report on the findings of  the anti -dumping investigation on imports 
of light commercial vehicles from Germany, Italy, Poland, and Tur key (Non-confidential version) 
(draft  investigation report, 28 March 2013)  (Panel  Exhibits EU -16 and RUS -10). 
288 Daimler's and Mercedes' comments  of 11 April 2013  on the draft investigation report (Panel Exhibit 
EU-19), Section  2.2. 
289 Daimler's and Mercedes' comments  of 11 April 2013  on the draft investigation report of (Panel 
Exhibit EU -19), Section  2.2. See also Daimler's and Mercedes' comments of 16 March 2012 on the public 
hearing (Panel Exhibit EU -8). WT/DS479/AB/R  
 
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Peuge ot Citroën Automobiles SA (PCA) and Peugeot Citroën Russia (PCR) stated  in their comments 
of 11 April 2013 on the draft investigation report,  that the report "shows that the [Customs Union] 
industry increased both its costs of production and its prices fro m 2008 to the [investigation 
period] ."290 In its comments of 11  February  2012, the Association of Turkish exporters from the 
automotive industry stated that the increase in Sollers' costs was related to "the increase in the 
production costs, which was based on the increase of the prices of the main raw materials 
(coal,  iron ore), and also the increase in the tariffs of the natural monopolies ."291 In our view, the 
evidence above is relevant to the question of whether the market could absorb further price 
increas es, and thus whether the dumped imports ha d explanatory force for the occurrence of price 
suppression. The DIMD's investigation report, however, does not contain any indication that the 
DIMD considered such evidence in the context of whether the market wou ld accept additional price 
increases by the domestic industry. Indeed, we observe the Panel's statement that "[t]he notion 
that there was a margin for domestic prices to increase is not a part of the analysis set out by the 
DIMD in the Investigation Report ."292 Thus, we consider that the DIMD did not examine evidence 
relevant to whether the market would accept additional domestic price increases.  
5.107.   As noted above , an investigating authority is required under the second sentence of 
Article  3.2 of the Anti -Dumpin g Agreement  to consider whether dumped imports are preventing 
domestic price increases "which otherwise would have occurred" to a significant degree. Therefore, 
an authority must ensure that its methodology assesses  price increases "which otherwise would 
have occurred" in the absence of dumped imports. In addition, an investigating authority is 
required, under Article  3.2, to consider whether dumped imports have "explanatory force" for the 
occurrence of significant suppression of domestic prices.293 In this r espect, an investigating 
authority may not disregard evidence regarding elements that calls into question the explanatory 
force of dumped imports for significant price suppression. Where there is evidence on the 
investigating authority's record concerning elements other than subject imports that may explain 
the significant suppression of domestic prices, the investigating authority must consider relevant 
evidence pertaining to such elements for purposes of understanding whether dumped imports 
indeed have a suppressive effect on domestic prices.294  
5.108.   By failing to consider relevant evidence on  the investigation  record, the DIMD effectively 
disregarded evidence that call ed into question the explanatory force of the dumped imports for the 
occurrence of significant  price suppression. Thus, we find that the DIMD acted inconsistently with 
Articles 3.1 and 3.2 of the Anti-Dumping  Agreement by failing to examine evidence relevant to 
whether the market would accept additional domestic price increases.295 
5.2.4   Conclusions  
5.109.   In relation to Russia's appeal under Articles  3.1 and 3.2 of the Anti -Dumping  Agreement, 
the fact that several factors or elements could potentially influence the rate of return used to 
construct the target domestic price does not allow an  investigating  autho rity to disregard evidence 
regarding any particular factor or element that calls into question the explanatory force of dumped 
imports for significant price suppression under Article  3.2 of the Anti -Dumping  Agreement. We 
thus disagree with Russia's argumen t that the consideration of evidence regarding factors or 
elements – such as , in this dispute,  the financial crisis – that call into question the explanatory 
force of dumped imports for the existence of price suppression would lead to a biased analysis 
simply because there could be other factors that could also potentially affect the selected rate of 
return. In addition, we do not consider that the Panel's interpretation of Article  3.2 suggests that 
an investigating authority is required to conduct a non -attribution analysis of all known factors that 
may be causing injury  to the domestic industry in the context of its price suppression analysis. The 
inquiries under Article  3.5 and under Article  3.2 of the Anti -Dumping Agreement  have distinct 
                                                
290 PCA's and PCR's comments  of 11 April 2013  on the draft investigation report (Panel Exhibit EU -20), 
p. 4. 
291 Comments of the Association of Turkish exporters from the automotive industry of 11  February 2012 
(Panel Exhibit EU -31), p.  33. 
292 Panel Report, para.  7.85. 
293 Appellate Body Report, China – GOES , para. 136.  
294 Appellate Body Report, China – GOES , para.  152. 
295 In reaching this conclusion, we take no position on whether or not, in the circumstances of the 
anti-dumping investigation at issue, the market could have absorbed additional price increases in the absence 
of dumped imports.  WT/DS479/AB/R  
 
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focuses . The ana lysis under Article 3.5 focuses on the causal relationship between dumped imports  
and injury  to the domestic industry. In contr ast, the analysis under Article  3.2 focuses on the 
relationship between  dumped imports and  domestic prices .  
5.110.   We therefore find that the Panel did not err in its interpreta tion and application of 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement in finding that the DIMD acted inconsistently 
with these provisions because it failed to take into account the impact of the financial cris is in 
determining the rate of return used to construct the target domestic price for its price suppression 
analysis. Consequently, we uphold  the Panel's findings in paragraphs  7.64-7.67 and 8.1.d.i of the 
Panel Report.296 
5.111.   In relation to the European  Union's claims under Article  11 of the DSU, we consider that 
the Panel's findings concerning the DIMD's methodology, the long -term price trends, and the 
degree of price suppression are not coherent and consistent with the Panel's earlier finding that 
the manner in  which the DIMD used the 2009 rate of return to determine the target domestic price 
was WTO -inconsistent . We therefore  find that the Panel acted inconsistently with its obligations 
under Article 11 of the DSU. Consequently, we reverse  the Panel's findings in paragraphs 7.77 -
7.81, 7.104 -7.107 , 8.1.d.iii, and 8.1.d.iv of the Panel Report . 
5.112.   Having found that the Panel acted inconsistently with its obligations under Article  11 of the 
DSU, we do not examine the European  Union's conditional claim that the Panel er red in its 
interpretation and application of Articles  3.1 and 3.2 of the Anti -Dumping Agreement in finding 
that the DIMD's methodology explained that the effect of the dumped imports was to supress 
domestic prices.297 We also do not examine the European Unio n's request for us to complete the 
analysis and find that the DIMD acted inconsistently with Articles 3.1 and 3.2 by failing to consider 
whether the dumped imports have explanatory force for the existence of significant price 
suppression.298 
5.113.   In relation to t he European  Union's claim under Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement concerning whether the domestic market could absorb further price 
increases, we consider that an investigating authority must ensure that its price suppression 
methodology under Article  3.2 assesses  price increases "which otherwise would have occurred" in 
the absence of dumped imports. In addition, an investigating authority is required to consider 
whether dumped imports have "explanatory force" for the occurrence of signific ant suppression of 
domestic prices. Contrary to the European  Union's contention, we do not read the Panel to have 
added a requirement to Articles  3.1 and 3.2 that interested parties must have explicitly questioned 
the ability of the market to absorb additi onal price increases for an investigating authority to be 
required to consider this question. Thus, in this respect, we do not find that the Panel erred in its 
interpretation of Articles 3.1 and 3. 2 of the Anti -Dumping Agreement. We fault the Panel, 
howeve r, for having itself undertaken the assessment of relevant evidence on the DIMD's  
investigation  record. For these reasons, we find that the Panel erred in its application of 
Articles  3.1 and 3.2  of the Anti -Dumping Agreement  in finding that the evidence on  the 
investigation  record did not require the DIMD to examine whether the market  could absorb further 
price increases. Consequently, we reverse  the Pane l's findings in paragraphs 7.87 -7.91 and 
8.1.d.iii  of the Panel Report . 
5.114.   Having reversed the Panel's finding at issue , we complete the  analysis and find that the 
DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping  Agreement by failing to 
examine evidence relevant to whether the market would accept additional domestic price 
increases.  
                                                
296 Having upheld these Panel findings, we do not examine Russia's conditional request concerning 
paragraphs  7.181 -7.182 and 8.1.f.i of the Panel  Report regarding the consequential inconsi stency with 
Articles  3.1 and 3.5 of the Anti -Dumping  Agreement.  
297 European  Union 's other appellant's submission, para s. 101-102 (referring to Panel Report, 
para. 7.78).  
298 European  Union 's other appellant's submission, para.  132. WT/DS479/AB/R  
 
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5.3  Confidential  investigation  report  
5.3.1   Introduction  
5.115.   The European  Union takes issue with the Panel's reliance on the confidential investigation 
report  of the DIMD299 in its assessment of the European  Union's claims under Articles 3.1 and 3.4 
of the Anti-Dumping  Agreement with respect to the domestic industry's return on investments, 
actual and potential effects on cash flow, and the ability to raise capital or investments . 
The European  Union  claims that the Panel failed to make an objective assessment of the matter  
before it pursuant to  Article  11 of the DSU and failed to determine whether the DIMD's 
establishment of the facts was proper and whether its evaluation of those facts was unbiased and 
objective within the meaning of  Article 17.6 of the Anti-Dumping  Agreement by basing its 
evaluation  of the European  Union 's claims on the confidential investigation report  without 
assessing whether that document formed part of the investigation record  at the time the 
determination to impose the anti -dumping measure was  made .300 In the event that we reverse the 
Panel's findings , the European  Union requests us to complete the analysis and  find, on the basis of 
the non -confidential investigation report301, that the DIMD acted inconsistently with Articles 3.1 
and 3.4 of the Anti-Dumping  Agreement by failing to evaluate the three injury factors at issue.302 
5.116.   We begin by recalling the Panel's findings concerning the DIMD's evaluation of the three 
injury factors at issue before turning to address the European  Union's  claims under Arti cle 11 of 
the DSU and Article 17.6 of the Anti-Dumping  Agreement.  
5.3.2   Panel's findings  
5.117.   Before the Panel, the European  Union  argued that the DIMD acted inconsistently with 
Articles 3.1 and 3.4 of the Anti-Dumping  Agreement because it failed to examine, in the 
non-confidential investigation report, the domestic industry's return on investments, actual and 
potential effects on cash flow, and the ability to raise capital or investments.303 The 
European  Union  contended that the Panel should not base its assessment und er Articles  3.1 and 
3.4 on the confidential investigation report to the extent that the same inform ation did not appear 
in the non -confidential investigation report.304 
5.118.   The Panel noted that the evaluation of the Article 3.4 factors at issue was absent, in its 
entirety, from the non -confidential investigation report and that there was no indication  in that 
report  that the confidential information at issue had been redacted from it. The Panel further noted 
that this could give rise to a concern as to whether the non -confidential investigation report was 
consistent with Article 12 of the Anti-Dumping  Agreement. The Panel recalled the 
European  Union 's argument  that "total silence on a factor may call into question whether the DIMD 
actually examined it."305 The Pan el noted, however, that the European  Union  had not presented 
any evidence suggesting that the confidential investigation report was not "genuine ".306 Moreover, 
the Panel recalled that, although the European  Union  had raised a claim under Article 12 of the 
Anti-Dumping  Agreement  in its panel request307, it did not pursue this claim.308 At the same time, 
the Panel observed that Article 3.1 of the Anti-Dumping  Agreement "does not imply that the 
determination must be based only on reasoning or facts that were disclos ed to, or discernible by, 
the parties to an anti-dumping  investigation".309 Therefore, the Panel saw no basis for the 
                                                
299 Panel Exhibit RUS -14 (BCI ). 
300 European  Union's Notice of Other Appeal, pp. 1 -2; other appellant's submission, para.  32.  
301 Panel Exhibits EU -21 and RUS -12. 
302 European  Union's Notice of Other Appeal, pp.  1-2; other appellant's submission, paras.  72 and 74.  
303 Panel Report, para. 7.163.  
304 Panel Report, para. 7.164; European  Union 's second written submission to the Panel, para. 144. 
305 Panel Report, fn 300  to para. 7.165 (referring to European  Union's second written submission to the 
Panel, para. 146; response to Panel question No. 5 0, para. 156).  (emphasis original)  
306 Panel Report, fn 300 to para. 7.165.  
307 Request for the Establishment of a Panel by the European Union, WT/DS479/2, para. 9.  
308 Panel Report, fn 300  to para. 7.165.  
309 Panel Report, para. 7.165 (referring to Appellate  Body Report, Thailand – H-Beams , para.  111).  WT/DS479/AB/R  
 
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European  Union 's argument that the Panel could not base its assessment on the confidential 
investigation report.310 
5.119.   Having examined Section 4. 2.7 of the confidential investigation report, the Panel concluded 
that the DIMD  had evaluated the following three injury factors:  (i) return on investments of the 
domestic  industry ; (ii) the actual and potential negative effects on cash flow of the domesti c 
industry ; and (iii) the industry's ability to raise capital or investments.311 The Panel thus found  that 
the European  Union  had not established that  the DIMD acted inconsistently with Articles 3.1 and 
3.4 of the Anti-Dumping  Agreement.312 
5.3.3   Whether the Panel acted inconsistently with Article 11 of the DSU and Article 17.6 
of the Anti -Dumping  Agreement  
5.120.   The European  Union  claims that the Panel failed to make an objective assessment of the 
matter before it pursuant to  Article  11 of the DSU , and failed to determin e whether the DIMD's 
establishment of the facts was proper and whether its evaluation of those facts was unbiased and 
objective within the meaning of  Article 17.6 of the Anti-Dumping  Agreement , by basing its 
assessment of the European  Union 's claims under Articles 3.1 and 3.4 of the Anti-Dumping  
Agreement concerning three injury factors on the confidential investigation report.313 The 
European  Union  submits that the Panel erred by simply accepting that the entire content of the 
confidential investigation repo rt "that emerged for the first time during WTO proceedings actually 
formed part of the investigation record", instead of "assess[ing] whether that was indeed the 
case".314 In the European  Union 's view, the Panel should have made such an assessment and 
requir ed Russia to show, by providing relevant explanations or evidence, that the confidential 
content of the report actually formed part of the investigation record.315 The European  Union  
considers that, by failing to do so, the Panel "made no attempt to 'objecti vely assess' or 'properly 
establish' the facts pertinent to deciding whether or not the [confidential investigation report] 
formed part of the investigation record".316 In the European  Union 's view, while investigating 
authorities may base their injury deter mination partly on confidential facts that were not disclosed 
to interested parties, "a panel's assessment can only be based on facts and reasoning that formed 
part of the investigation record ."317 Moreover, the European  Union recalls that, in EC – Tube or 
Pipe Fittings , the Appellate  Body "made clear that panels cannot accept a document submitted by 
a respondent without question, and that they cannot simply rely on the presumption of good 
faith."318 
5.121.   Russia responds that the European  Union "misrepresents" the arguments it made before 
the Panel.319 Specifically, Russia points out that the issue before the Panel was whether the 
absence of indications in the non -confidential investigation report could preclude the Panel from 
considering certain parts of the confiden tial investigation report in its analysis of the 
European  Union's claims under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement.320 In Russia's 
view, the European  Union attempts to show on appeal that it did explain to the Panel why it was 
"doubtful whethe r the DIMD  had actually examined the three injury factors at issue during the 
investigation".321 Russia argues that the " European  Union 's attempt to explain why it considered 
that the DIMD actually might have not examined the three injury factors at issue du ring the 
                                                
310 Panel Report, para.  7.165.  
311 Panel Report, paras. 7.166 -7.169.  
312 Panel Report, para.  7.172.  
313 European  Union's Notice of Other Appeal, pp. 1 -2; other appellant's submission, para. 32. We recall 
that, b efore the Panel, the European  Union  argued that the DIMD acted inconsistently with Articles 3.1 and 3.4 
of the Anti-Dumping  Agreement because it had failed to examine the domestic industry's return on 
investments, actual and potential effects on cash flow,  and the ability to raise capital or investments . 
(Panel Report, para. 7.163)  
314 European  Union 's oth er appellant's submission, para. 51.  
315 European  Union 's oth er appellant's submission, para. 51.  
316 European  Union 's oth er appellant's submission, para. 60.  
317 European  Union's other appellant's submission, para. 63 (referring to Appellate  Body Report, 
Thailand  – H-Beams , paras. 117 -118). (emphasis original)  
318 European  Union's other appellant's submission, para. 64 (referring to Appellate  Body Report, 
EC ‒ Tube or Pipe Fittings , paras. 124 -127 and fn 143 thereto).  
319 Russia's appellee's submission, para. 45.  
320 Russia's appellee's submission, paras. 37 and 40.  
321 Russia's appellee's submission, para. 43.  WT/DS479/AB/R  
 
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investigation was never made before the Panel. "322 Russia also contends that the European  Union, 
as the complaining party, "carried the burden of proof which it failed to meet"323, and that the 
Panel was correct to state that the European  Union had no t presented any evidence suggesting 
that the confidential investigation report "was not genuine".324 Moreover, Russia considers that, in 
light of the arguments put forward by the parties and the discussion that took place during the 
Panel proceedings, there was no need for the Panel to seek clarifications from Russia.325 
5.122.   The participants disagree on whether the European  Union  argued before the Panel that the 
analysis of the three injury factors at issue did not form part of the investigation record.  
We therefor e start by addressing Russia's assertion that the European  Union did not raise before 
the Panel the issue of whether the relevant parts of the confidential  investigation  report formed 
part of the investigation record.  
5.123.   We recall that the confidential invest igation report326 was submitted by Russia together 
with Russia's first written submission  to the Pane l. Accordingly, the European  Union  could not have 
been aware of the contents of the confidential investigation report before the receipt of Russia's 
first written submission  to the Panel. The European Union  originally based its claim s under 
Articles  3.1 and 3.4  on the non -confidential investigation report tha t was available to it.327 In its 
second written submission to the Panel, after having received the confidential investigation report, 
the European  Union elaborated that the Panel should not base its assessment under Articles 3.1 
and 3.4 on the confidential  investigation report  to the extent that the same information was not 
apparent from the non -confidential investigation report .328 
5.124.   The Panel posed several questions to the European  Union  regarding its claim s under 
Articles  3.1 and 3.4  of the Anti-Dumping  Agreem ent with respect to the three injury factors. In 
particular, in Panel question No. 50, the Panel  asked the European  Union to explain the nature of 
its claim concerning the DIMD's failure to set out the evaluation of the three injury factors at issue 
in the  non-confidential investigation report. In response, the European  Union stated that there was 
"no trace of the missing factors in the evaluation of the injury factors or in the conclusion as 
regards material injury ", which " may [have]  call[ed] into question whether the DIMD actually 
examined those factors ".329 For the European  Union, the fact that the three injury factors were 
treated by the DIMD as confidential, without even indicating in the non -confidential investigation 
report that these fact ors were assessed, " strongly indicates ex post  rationalisation for the purposes 
of WTO proceedings ".330 In the European  Union's view, " at the very least the DIMD should have 
alerted the  interested parties that an analysis had been carried out also with respe ct to those  
factors ."331 
5.125.   In Panel question No. 70, the Panel asked the European  Union  to explain the basis for its 
request that the Panel not consider the confidential investigation report  in its analysis . 
In response, the European  Union  stated  that "the Pan el can base its judgement on the confidential 
version of the Report to the extent that the Panel is reassured that the elements in the confidential 
version of the Report have always been there. "332 For the European  Union, " conclusions that rely 
entirely on e vidence that was kept confidential until well into the proceedings of a dispute should 
                                                
322 Russia's appellee's submission, para. 44.  
323 Russia 's appellee's submission, para. 50.  
324 Russia's appellee's submission, para. 48.  
325 Russia's appellee's submission, para. 64. Specifically, Russia points that it was evidenced by the 
public record that the DIMD requested information on the financial state o f the domestic industry and received 
it in confidential form. Moreover, Russia notes that it expressed willingness to answer any questions regarding 
the confidential investigation report. (Ibid., para. 65)  
326 Exhibit RUS -14 (BCI).  
327 In its first written submission to the Panel, the European  Union asserted that the DIMD  had failed to 
examine the three factors at issue because there was nothing in the non -confidential investigation report or on 
the investigation  record showing that thes e factors had been  evaluated. (European  Union's first written 
submission to the Panel, para. 236)  
328 European  Union's second written submission to the Panel, para. 144.  In the European Union's view, 
the absence of any trace of the relevant injury factors an alysis in the non -confidential investigation report 
"may [have] call[ed] into question whether the DIMD actually examined those factors".  (Ibid., para. 146)  
329 European  Union 's response to Panel question No. 50, para. 156 . 
330 European  Union's response to Pan el question No. 50, para. 158.  
331 European  Union 's response  to Panel question No. 50, para. 1 61.  
332 European  Union's response to Panel question No. 70, para. 22.  WT/DS479/AB/R  
 
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be avoided " because this " risks opening the door for WTO Members to be able to adjust the 
confidential version of the report in light of the arguments made by the compla ining party in the 
disput e".333  
5.126.   In our  view, these statements by the European  Union  indicate  that, before the Panel, the 
European  Union expressed its concern as to whether certain parts of the confidential investigation 
report in which the DIMD allegedly examined the three injury factors at issue formed part of the 
investigation record. Notably, the Panel itself recognized the European  Union's concern by stating 
that "the European  Union has not presented any evidence suggesting that the confidential … 
Investigation Report is not genuine."334 We consider that the essence of the European  Union 's 
argument before the Panel and on appeal has remained the same: before the Panel the 
European  Union  questioned whether  certain parts of  the confidential investigation re port formed 
part of the investigation record ; while on appeal it faults the Panel for not having engaged with its 
argument . We thus disagree with Russia that, on appeal, the European  Union  "misrepresents " the 
arguments that it made before the Panel.335 
5.127.   We no w proceed to address the European  Union 's claim that the Panel acted inconsistently 
with Article 11 of the DSU and Article 17.6 of the Anti-Dumping  Agreement by basing its 
assessment of the European  Union 's claims under Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement on the confidential investigation report "without assessing whether that document was 
indeed part of the investigation record".336 
5.128.   Article  11 of the DSU imposes upon panels a comprehensive obligation to make an 
"objective assessment of the mat ter", which embraces "all aspects of a panel's examination of the 
'matter', both factual and legal".337 In conducting an assessment  of the WTO -consistency of a 
determination by an investigating authority , a panel must examine "whether, in  the light of the 
evidence on the record, the conclusions reached by the investigating authority are reasoned and 
adequate".338 First, a panel must ascertain whether the investigating authority has evaluated all of 
the relevant evidence in an objective and unbiased manner, in cluding by taking sufficient account 
of conflicting evidence and responding to competing plausible explanations of that evidence.339 
Second, the panel must test the relationship between the evidence on which the authority relied in 
drawing specific inference s, and the coherence of its reasoning.340 Finally, the adequacy of an 
investigating authority's explanations is also a function of the substantive provisions of the specific 
covered agreements that are at issue in the dispute.341 Under Article 17.6(i) of the A nti-Dumping 
Agreement, the task of panels is to review the investigating authorities' "establishment" and 
"evaluation" of the facts. To that end, Article 17.6(i)  provides that , "in its assessment of the facts 
of the matter, the panel shall determine whethe r the authorities ' establishment of the facts was 
proper and whether their evaluation of those facts was unbiased and objective ."342  
5.129.   We recall that t he Panel considered that it could base its assessment of the 
European  Union 's claim s under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement on the 
confidential investigation report and , in reaching this conclusion, it referred to the Appellate  Body 
report in Thailand – H-Beams.343 In Thailand – H-Beams , the Appellate  Body explained that "the 
requirement in Article 3.1 [of the Anti-Dumping  Agreement] that an injury determination be based 
on 'positive' evidence and involve an 'objective' examination of the required elements of injury 
                                                
333 European  Union 's response to Panel question No. 70, para. 2 3. 
334 Panel Report, fn 300 to par a. 7.165.  
335 Russia's appellee's submission, para. 45.  
336 European  Union's other appellant's submission, para. 62.  
337 Appellate  Body Report, US – Hot-Rolled Steel , para. 54.  
338 Appellate Body Report, US – Washing Machines , para.  5.258 (quoting Appellate  Body Report, 
US ‒ Softwood Lumber VI (Article  21.5 – Canada) , para.  93). 
339 Appellate Body Reports, US – Washing Machines , para.  5.258; US – Softwood Lumber VI 
(Article  21.5 ‒ Canada) , para.  97. 
340 Appellate Body Reports, US – Washing Machines , para.  5.258; US – Softwood Lumber VI 
(Article  21.5 ‒ Canada) , para.  97. 
341 Appellate Body Reports, US – Washing Machines , para.  5.258; US – Softwood Lumber VI 
(Article  21.5 ‒ Canada) , para.  95. 
342 In US – Hot-Rolled Steel , the Appellate B ody stated that "it is inconceivable that Article 17.6(i) 
should require anything other than that panels make an objective  'assessment of the facts of the matter'." 
(Appellate  Body Report, US – Hot Rolled Steel , para. 55 (emphasis original))  
343 Panel Report , para. 7.165 (referring to Appellate  Body Report, Thailand – H-Beams , para. 111).  WT/DS479/AB/R  
 
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does not imply that the determination must be based only o n reasoning or facts that were 
disclosed to, or discernible by, the parties to an anti -dumping investigation."344 Moreover, 
according to the Appellate  Body, Articles  17.5 and 17.6(i) of the Anti-Dumping  Agreement  "do not 
prevent a panel from examining facts that were not disclosed to, or discernible by, the interested 
parties at the time of the final determination".345  
5.130.   In the present dispute, the participants agree that, in principle, a panel could rely on parts 
of a confidential version of an investigation report in its examination of claims under Articles  3.1 
and 3.4 of the Anti -Dumping Agreement.346 We note that the absen ce of any indication in the 
non-confidential investigation report that the three injury factors a t issue were analysed may raise 
issues of due process. However, the issue of whether an investigating authority can conduct its 
analysis of the mandatory injury factors in a confidential version of an investigation report, without 
referring to it in a publ ic version of the investigation report, is not before us in this appeal. Rather, 
as noted, the issue before us is whether the Panel acted inconsistently with Article 11 of the DSU 
and Article 17.6 of the Anti -Dumping Agreement by basing its assessment of t he European  Union's 
claims under Articles 3.1 and 3.4 of the Anti -Dumping Agreement on the confidential investigation 
report without assessing whether or not it formed part of the investigation record at the time the 
determination was made . 
5.131.   We recall that the confidential investigation report was in Russia's exclusive possession 
until it was submitted to the Panel together with Russia's first written submission.  In this respect, 
we note the difficulty faced by the European  Union in challeng ing the validity of certain parts of the 
confidential investigation report first submitted in the course of WTO dispute settlement  
proceedings, in particular in obtaining and providing evidence to the Panel in support of its 
contention that the relevant parts of the confid ential  investigation  report may not have formed 
part of the investigation record . In US – Continued Zeroing , the Appellate  Body emphasized that 
"the nature and scope of the evidence that might be reasonably expected by an adjudicator in 
order to establish a fact or claim in a particular case will depend on a range of factors, including 
the type of evidence that is made available by a Member's regulating authority. "347 The 
Appellate  Body further explained that, " in a specific case, a panel may have a sufficien t basis to 
reach an affirmative finding regarding a particular fact or claim on the basis of inferences that can 
be reasonably drawn from circumstantial rather than direct evidence. "348 Moreover, in US – Large 
Civil Aircraft ( 2nd complaint) , the Appellate  Body observed that it could " conceive of circumstances 
in which a party [could not]  reasonably be expected to m eet [the] burden  [of adducing evidence in 
support of its claims or defences]  by adducing all relevant evidence required to make out its  case, 
most notably when that information is in the exclusive  possession of the opposing or a third 
party. "349 In such circumstances, a panel may have to seek out that information in order to make 
an objective assessment of the matter under Article 11 of the  DSU.350 
5.132.   In this dispute, t he European  Union  submitted circumstantial evidence in support of its 
claim that the confidential investigation report may not have formed part of the investigation 
record . In particular, the European Union argued that the absence of a summary or any trace of 
                                                
344 Appellate  Body Report, Thailand – H-Beams , para. 111. (emphasis original) The issue before the 
Appellate  Body in that dispute was:  
whether the terms 'positive evidence' and 'objective  examination' in Article  3.1 [of the 
Anti-Dumping  Agreement] require that ' the reasoning supporting the determination be  'formally 
or explicitly stated' in documents in the record of the investigation to which interested  parties 
(and/or their legal counsel) have access at least from the time of the final determination' , and,  
further, t hat 'the factual basis relied upon by the authorities must be discernible from those  
documents' .  
(Ibid., para. 107)  
345 Appellate  Body Report , Thailand – H-Beams , para. 118.  
346 European  Union's other appellant's submission, para. 63; responses to questioning at the oral 
hearing; Russia's appellee's submission, para. 40; responses to questioning at the oral hearing.  
347 Appellate  Body Report, US – Continued Zeroing , para. 357.  
348 Appellate  Body Report, US – Continued Zeroing , para. 357.  
349 Appellate  Body Report, US – Large Civil Aircraft ( 2nd complaint ), para. 1139.  
350 Appellate  Body Report, US – Large Civil Aircraft ( 2nd complaint ), para. 1139.  The Appellate  Body 
noted that, "[ i]n such circumstances, a  panel may be unable to make an objective assessment of the matter 
without exercising its authority under Article 13 of the DSU to  seek out that information, in particular if the 
party that needs t his evidence can show that it has diligently exhausted all means to acquire it, to the extent 
such means exist. " (Ibid.)  WT/DS479/AB/R  
 
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the examination of the  three  injury factors at issue in the non -confidential  investigation  report 
suggested that they were not evaluated by the DIMD , and that the confidential investigation report 
may have been adjusted for pur poses of WTO dispute settlement proceedings.351 In light of the 
circumstances of this case, we do not consider that it was incumbent upon the European  Union to 
prove conclusively that the relevant parts of the confidential investigation report did not form part 
of the investigation record at the time the determination was made. To request  the 
European  Union to do so would require submission of information to which the European  Union did 
not have access when it filed its panel request and its first written submission. Rather, it appears 
to us that the Panel should have requested from Russia evidence demonstrating that the 
confidential investigation  report formed part of the investigation record at the time the 
determination was made , given that Russia was best placed to provide such evidence .  
5.133.   We recall that, i n EC – Tube or Pipe Fittings , the Appellate  Body addressed the  issue of 
whether the panel's assessment of the fac ts was proper, under Article 17.6(i) of the Anti-Dumping  
Agreement, when it found that a certain document f ormed part of the record in the anti -dumping 
investigation  in that dispute .352 The Appellate  Body rejected Brazil's contention that the panel 
based its conclusion "exclusively on a mere unsubstantiated assertion from the EC which was 
accepted by the [p]anel on the basis of a presumption of good faith".353 The Appellate  Body 
referred to the questions tha t the panel  had posed to the European  Communities  concerning the 
document at issue  and to the European  Communitie s' responses  to those questions.354 In the 
Appellate  Body's view, this demonstrated that the panel "took into account the 
European  Communities ' responses to its questions before reaching its finding" and did not rely 
exclusively on the presumption of good  faith.355 In the Appellate  Body's view, the panel  had 
"conducted an overall inquiry into the genuineness of [the document] , including whether it fo rmed 
part of  the record of the anti -dumping investigation, and arrived at an overall finding on the basis 
of the results of that inquiry. "356 The Appellate  Body was thus satisfied that the panel took steps to 
assure itself of the validity of the document at issue. 
5.134.   We consider that, w hen faced with a claim that a report , or parts of it , on the basis of 
which an anti -dumping measure was imposed did not form part of the investigation record  at the 
time the determination was made , a panel has to take certain step s to assess objectively and 
assure itself of the report's  validity  and whether or not it formed part of the contemporaneous 
written record of the investigation.  The panel may do so, for example, by posing specific questions 
to the respondent party submitti ng the investigation report about its origin and the point in time 
when it was incorporated into the record of the investigation.  The manner in which a panel can 
assure itself of whether an investigation report , or parts of it , formed part of the investiga tion 
record  will depend on the facts of the particular case and may include, in addition to posing 
questions to the submitting party, examining additional evidence demonstrating that the contested 
report , or parts of it , formed part of the investigation record.357  
                                                
351 European  Union's second written submission to the Panel, para. 146 ; response s to Panel question s 
No. 50  and No. 70 . 
352 Appellate  Body Report, EC – Tube or Pipe  Fittings , para. 124.  In that case, Brazil had expressed 
doubts before the panel as to "whether Exhibit EC -12 formed part of the record of the underlying anti -dumping 
investigation".  (Ibid., para. 120)  
353 Appellate  Body Report, EC – Tube or Pipe  Fittings , para s. 122 and 127.  
354 The Appellate  Body referred to the following excerpt from the panel report in that dispute : 
We asked the European Communities to indicate in the record of the investigation the sources of 
information and th e methodology on which the statements and information in Exhibit EC -12 are 
based. The European Communities gave an account of the methodology and the sources of 
information on the basis of which the statements in Exhibit EC -12 were made. We further asked 
the European Communities to confirm and substantiate to us that Exhibit EC -12 was written 
within the time period of the investigation. The European Communities confirmed that this was 
the case. Given the EC responses, we find no basis to question whether Ex hibit EC -12 forms part 
of the record of the underlying investigation and we must consequently take its contents into 
account in our examination of the relevant substantive claims made by Brazil.  
(Appellate  Body Report, EC – Tube or Pipe  Fittings , para. 126  (quoting Panel Report,  EC – Tube or Pipe  
Fittings , para. 7.46) (fns omitted) )  
355 Appellate  Body Report, EC – Tube or Pipe  Fittings , para. 12 7. 
356 Appellate  Body Report, EC – Tube or Pipe  Fittings , fn 143 to para. 12 7. 
357 We recall that, pursuant to Article 13 of the DSU, a panel has the right to seek information from any 
individual or body which it deems appropriate .  WT/DS479/AB/R  
 
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5.135.   In the present dispute, the Panel did not pose pertinent question s to Russia or seek 
otherwise  to assure itself that the  relevant parts of the  confidential investigation report formed 
part of the investigation re cord at the time the determination was made .358 We note that Russia 
commented on the European  Union 's responses to Panel questions Nos . 70 and 71, and noted, in 
particular, that it had " not 'adjust [ed] the confidential version of the report'" .359 In our view , the 
Panel should have  engaged with Russia in this respect and  taken steps to assure itself that the  
relevant parts of the  confidential investigation report formed part of the investigation record at the 
time the determination was made .  
5.136.   The Panel, however,  did not assure itself that the relevant parts of the confidential 
investigation report formed part of the investigation record. Instead, the Panel rejected the 
European  Union's contention on the ground that it was not substantiated with evidence , and 
proceeded with its analysis of the European  Union's claims under Articles 3.1 and 3.4 of the 
Anti-Dumping  Agreement on the basis of the confidential investigation report as if it had been 
established that it formed part of the investigation record at the time the determination was 
made.360 In our view, by doing so, the Panel failed to conduct an objective assessment of the 
facts, as required under Article 11 of the DSU,  and to assess the facts of the matter pursuant to 
Article  17.6(i) of the Anti-Dumping  Agreemen t. 
5.137.   On the basis of the above, we find that the Panel acted inconsistently with Article 11 of the 
DSU and Article 17.6 of the Anti-Dumping  Agreement by relying, in its examination of the 
European  Union's claims under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement, on the 
confidential investigation report without assuring itself of whether  the relevant parts of  it formed 
part of the investigation record at the time the determination to impose the anti -dumping measure 
was made. Accordingly, we reverse  the Panel's intermediate finding, in paragraphs  7.165 and 
7.166 of the Panel Report, that it could base its analysis of the European  Union 's claims under 
Articles  3.1 and 3.4 of the Anti-Dumping  Agreement on the confidential investigation report. We 
also reverse the Panel's subsequent analysis, contained in paragraphs 7.166  to 7.171 of the 
Panel  Report, and the Panel's ultimate finding, in paragraphs 7.172, 7.17 3.i, and 8.1 .e.x of the 
Panel  Report, that the European  Union  had failed to establish that the DIMD acted inconsistently 
with Articles  3.1 and 3.4 of the Anti-Dumping  Agreement by failing to examine the three injury 
factors at issue.  
5.138.    Having reversed the Panel's intermediate finding that it could base its analysis on th e 
confidential investigation report, we turn to consider whether we can complete the analysis. The 
European  Union requests us to complete the  analysis and find, on the basis of the non -confidential 
investigation report, that the DIMD acted inconsistently w ith Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement by failing to evaluate the three injury factors at issue, namely: (i) the 
domestic industry's return on investments ; (ii) the actual and potential effects on cash flow ; and 
(iii) the ability to raise c apital or investments .  
5.139.   We consider that we would be in the position to address the European Union's request for 
completion on the basis of the non -confidential investigation report only if we were first to 
determine for ourselves that we cannot rely on th e confidential investigation report. We, therefore, 
first turn to consider whether we can determine for ourselves whether certain parts of the 
confidential investigation report formed part of the investigation record at the time the 
determination was made and whether , accordingly , we can rely  on the confidential investigation 
report in the assessment of the European  Union's claims under Articles 3.1 and 3.4 of the 
Anti-Dumping  Agreement.  
5.140.   In previous disputes, the Appellate  Body has completed the analysis with a view to 
facilitating the prompt settlement and effective resolution of  the dispute.361 The Appellate  Body 
                                                
358 By contrast, as we noted above, the Panel posed a number of questions to the European  Union  
seeking to clarify its request  that the Panel should not rely on the confidential investigation report in examining 
the European  Union 's claim s under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement.  
359 Russia's comments on the European  Union's response to Panel que stion No. 70, para. 36.  
360 Panel Report, para. 7.165 and fn 300 thereto, and para. 7.166. We recall that the European  Union 
could not have been aware of the contents of the confidential investigation report before the receipt of Russia's 
first written submi ssion to the Panel.  
361 See Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , para. 1178; 
US ‒ Large Civil Aircraft (2nd complaint) , para. 1351; EC – Asbestos , para. 78.  WT/DS479/AB/R  
 
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has completed the analysis where the factual findings in the panel report, undisputed facts on the 
panel record, and admitted facts provided it w ith a sufficient basis for conducting its own 
analysis.362 The Appellate  Body has declined to complete the analysis in light of the complexity of 
issues, the absence of full exploration of  the issues before the panel, and considerations pertaining 
to the parties' due process rights.363 
5.141.   We recall that the Panel did not pose pertinent  questions to Russia or seek  otherwise  to 
assure  itself that the relevant parts of the confidential investigation report formed part of the 
investigation record. As noted,  the Appellate  Body has refrained from completing the analysis in 
the absence of a full exploration of  the issues before the panel that might have given rise to 
concerns about the parties' due process rights.364 In light of the absence on the record  of this 
dispu te of a discernible attempt by the Panel to assure itself  of whether the confidential 
investigation report formed part of the investigation record and, in particular, the absence of 
questions being posed to Russia concerning the confidential investigation report, we cannot now 
on appeal decide  afresh whether the parts of the confidential investigation report relating to the 
three injury factors at issue formed part of the investigation record at the time the determination  
to impose the anti -dumping measure  was made . Accordingly, we cannot determine  for ourselves 
whether we can rely on the analysis contained in the confidential investigation report for purposes 
of the assessment of the European  Union's claims under Articles  3.1 and 3.4 of the Anti-Dumping  
Agreement.  In these circumstances, we cannot complete the analysis with respect to the 
European  Union's claims under Articles 3.1 and 3.4 concerning the three injury factors at issue.  
Consequently, we cannot reach a conclusion as to whether the DIMD acted inc onsistently with 
Articles  3.1 and 3.4 of the Anti-Dumping  Agreement by failing to examine the three injury factors 
at issue , as the European  Union alleges.  
5.3.4   Conclusions  
5.142.   In relation to Russia's contention that, on appeal, the European  Union misrepresents the  
arguments it made before the Panel, we consider that , before the Panel, the European  Union 
raised the issue of  whether  certain parts of  the confidential investigation report formed part of the 
investigation record at the time the final determination  to impose the anti -dumping measure  was 
made. On appeal , the European  Union faults the Panel for not having engaged with that same 
argument.  
5.143.   We recall that the confidential investigation report was submitted by Russia together with 
its first written submis sion to the Panel  and that  the European  Union could not have been  aware of 
the contents of the confidential investigation report before the receipt of Russia's first written 
submission.  We note the difficulty the European  Union had in the present case in o btaining and 
providing evidence to the Panel in support of its contention that the relevant parts of the 
confidential investigation report may not have formed part of the investigation record.  In our view, 
when faced with a claim that a report , or parts of  it, on the basis of which an anti -dumping 
measure was imposed  did not form part of the investigation record, a panel has to take certain 
steps to assess objectively and assure itself of the validity of such report , or its parts , and whether 
or not it form ed part of the contemporaneous written record of the investigation. In the present 
dispute, the Panel did not seek to assure itself that the  relevant parts of the  confidential 
investigation report formed part of the investigation record at the time the det ermination  to 
impose the anti -dumping measure  was made . 
5.144.   On the basis of the above, we find that the Panel acted inconsistently with Article 11 of the 
DSU and Article 17.6 of the Anti-Dumping  Agreement by relying, in its examination of the 
European  Union 's claims under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement, on the 
                                                
362 See Appellate  Body Reports, Australia – Salmon , paras. 241 and 255; Korea – Dairy , para. 102; 
US ‒ Large Civil Aircraft ( 2nd complaint) , para. 653; US – Section 211 Appropriations Act , para. 343; 
EC ‒ Asbestos , para. 78; China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.135; US ‒ Anti-Dumping  
Methodologies (China) , para. 5.164.  
363 See Appellate  Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
para. 5.224; EC ‒ Seal Products , paras. 5.63 and 5.69; US – Anti-Dumping  Methodologies (China) , para. 
5.178 . 
364 See Appellate  Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
para. 5.224; EC ‒ Seal Products , paras. 5.63 and 5.69; US – Anti-Dumping  Methodologies (China) , para. 
5.178. WT/DS479/AB/R  
 
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confidential investigation report without properly assuring itself of its validity, that is to say, of 
whether  the relevant parts of  it formed part of the investigation record  at th e time the 
determination to impose the anti -dumping measure was made . Consequently , we reverse  the 
Panel's intermediate finding, in paragraphs  7.165 and 7.166 of the Panel Report, that it could base 
its analysis of the European  Union 's claims concerning  the three injury factors under Articles 3.1 
and 3.4 of the Anti-Dumping  Agreement on the confid ential investigation report. We also reverse  
the Panel's subsequent analysis, contained in paragr aphs 7.166  to 7.171 , and the Panel's ultimate 
finding, in paragrap hs 7.172, 7.17 3.i, and 8.1 .e.x of the Panel Report, that the European  Union  
had failed to establish that the DIMD acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement by failing to examine the three injury factors at issue , namely: (i) the 
domestic industry's return on investments ; (ii) the actual and potential effects on cash flow ; and 
(iii) the ability to raise capital or investments . 
5.145.   In relation to the European  Union's request for completion of the analysis, in light of the 
absenc e on the Panel record of a discernible attempt by the Panel to assure itself  of whether 
certain parts of the confidential investigation report formed part of the investigation record at the 
time the determination  to impose the anti -dumping measure  was made , we are not in a position to 
decide whether these  parts of the confidential investigation report formed part of the investigation 
record at the time the determination was made. Accordingly, we cannot determine whether we can 
rely on the confidential inves tigation report in  the assessment of the European  Union's claims 
under Articles  3.1 and 3.4 of the Anti-Dumping  Agreement.365 In these circumstances, we cannot  
complete the analysis on the basis of the non -confidential  investigation  report as requested by the 
European  Union . 
5.4  Related dealer  
5.4.1   Introduction  
5.146.   The European  Union  appeals the Panel's finding that Article  3.4 of the Anti -Dumping 
Agreement does not generally require an investigating authority to consider the inventories of a 
dealer related to a domestic producer, but not itself part of the domestic industry.366 To the 
European  Union, the Panel erred in its interpretation and application of Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement in finding that the DIMD was not required to evaluate  the inventory 
information of Turin Auto in examining injury  to the domestic industry .367 The European  Union  
requests us to reverse the Panel 's findings in paragraphs 7.122 and 7.123 and declare moot and of 
no legal effect the Panel's conclusions in paragraphs 7.173 .c and 8.1.e.ii of the Panel Report.368 In 
response , Russia  requests us to uphold the Panel's  findings at issue .369 
5.147.   Before examining the European  Union 's claim  of error on appeal, we summarize the Panel 's 
findings with respect to Article s 3.1 and 3.4 of the Anti -Dump ing Agreement. We then set out our 
understanding of the relevant aspects of Articles  3.1 and  3.4. Thereafter, we turn to examine the 
merits of the European  Union 's claim of error on appeal . 
5.4.2   Panel's findings  
5.148.   Before the Panel, the European  Union claimed that Russia acted inconsistently with 
Articles  3.1 and 3.4 of the Anti -Dumping  Agreement by, inter alia , only partially evaluating the 
domestic industry's inventories in its examination of the impact of the dump ed imports. 
                                                
365 We note the European  Union's contention that we should complete the analysis with respect to the 
European  Union's claims under Articles 3.1 and 3.4 of the Anti-Dumping  Agreement on the basis of the 
evidence contained in the non-confidential  investigation report. (European  Union's other appellant's 
submission, para. 71)  We are of the view, however, that we cannot do so without having determined first 
whether the confidential  version of the investigation report formed part of the investigation record and whe ther 
we can rely on it in our analysis . 
366 Panel Report, para. 7.122; European Union's other appellant's submission, para.  160. 
367 European Union's Notice of Other Appeal, para. 5 (referring to Panel Report, paras. 7.122, 7.123, 
7.173.b, and 8.1.e.ii). See a lso European Union's other appellant's submission, para.  31. 
368 European Union's other appellant's submission, para s. 161 and 179. 
369 Russia's appellee's submission , para. 181.  WT/DS479/AB/R  
 
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The European  Union contended that the DIMD's evaluation of inventories should have included the 
inventory information of Turin  Auto, an LCV dealer related to Sollers.370  
5.149.   The Panel first noted that Article 3.4 of the Anti -Dumping  Agreement provid es that the 
injury examination " shall" include an evaluation of all relevant economic fact ors, including each of 
the 15 factors listed in this provision.371 The Panel recalled that the evidence to be considered and 
evaluated in relation to Article  3.4 must b e evidence pertaining to the domestic industry as defined 
in the investigation. To the Panel, Article  3.4 does not suggest that an investigating authority is 
generally required to consider the inventories of a dealer related to a domestic producer, but not  
itself a producer of the like product and thus not part of the domestic industry.372 Having made 
that statement, the Panel also recognized that, in certain circumstances, the information of a 
related dealer may constitute evidence pertaining to a relevant e conomic factor having a bearing 
on the state of the industry such that an investigating authority is required to evaluate it.373 The 
Panel noted, however, that "the relevance of such evidence would have to be demonstrated to the 
investigating authority, on t he basis of the facts of the particular investigation, in order that the 
investigating authority can be satisfied that it relates to the domestic industry and is therefore to 
be considered."374  
5.150.   Turning to the anti -dumping investigation at issue, the Panel r ecalled that the DIMD had 
defined the domestic industry as  the LCV producer  Sollers.375 To the Panel, the DIMD was required 
to examine,  for purposes of Article 3.4, "the state of Sollers, including its inventories".376 The Panel 
found that the European  Union h ad not identified evidence before the DIMD that would support the 
conclusion that the inventory information of Turin  Auto was a relevant economic factor having a 
bearing on the state of the domestic industry producing LCVs. On this ground, the Panel found that 
the European  Union had not established that the DIMD acted inconsistently with Articles 3.1 and 
3.4 by not considering the inventory data of Turin  Auto in its investigation report .377 
5.4.3   Whether the Panel erred in its interpretation of Articles 3.1 and 3.4 of the  
Anti-Dumping Agreement  
5.151.   The European  Union  claims that the Panel erred in finding that nothing in Article 3.4 of the 
Anti-Dumping Agreement suggests that "an investigating authori ty is generally required to 
consider the inventories of a dealer related to a domestic producer, but not itself a producer of the 
like product and therefore … not part of the domestic industry."378 To the European  Union , "the 
Panel found that investigating a uthorities can disregard the data of economic entities related to the 
domestic producer"379 and "meet the requirements under Articles  3.1 and 3.4 just by gathering 
and examining data from the 'domestic producer' in the narrow sense".380 The European  Union  
asserts that the Panel "adopted a very narrow interpretation of th e meaning of the term 
'domestic  industry' in Article 3.4" by excluding information relating to companies that belong to a 
"single  economic entity ".381 The European  Union submits that, if a domesti c producer is composed 
of several legal entities, the relevant data cannot relate to only the legal entity that brings the 
product into existence. Instead, the European  Union argues that,  in order to make an objective 
assessment based on positive evidence of the state of the domestic industry , as prescribed under  
                                                
370 Panel Report, paras.  7.109 , 7.118 .b, and 7.122 ; European Union's second written  submission to the 
Panel, para.  130; response to Panel question No.  45, paras.  141-143.  
371 Panel Report, paras. 7.111 (referring to Appellate Body Report, Thailand – H-Beams , para. 125 ) and 
para. 7.122.   
372 Panel Report, para.  7.122.  
373 Panel Report, para.  7.122.  
374 Panel Report, para.  7.122.  
375 Panel Report, para.  7.123.  
376 Panel Report, para.  7.123  (referring to Panel Report, Egypt – Steel Rebar , para. 7.60) .  
377 Panel Report, para.  7.123.  
378 European Union's other appellant's submission, p ara. 160. See also paras.  165, 172 , and 179 
(referring to Panel Report, paras.  7.122 -7.123 ). 
379 European Union's other appellant's su bmission, para . 165. 
380 European Union's other appellant's su bmission, para . 172. 
381 European Union's other appellant's su bmission, para.  19. Before the Panel, and in its other 
appellant's submission, the European Union has referred to different terms , including  "related trader", "single 
economic entity", "same economic group", "group of related entities", and "domestic producer … composed of 
several legal entities".  In response to questioning at the hearing, the European Union confirmed that it has 
used these terms interchangeably.  WT/DS479/AB/R  
 
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Article 3.1, the assessment of the relevant factors listed in Article  3.4 must relate to the 
"entire  single  economic entity".382 
5.152.   Russia responds that the Panel correctly stated that the focus of an i njury determination 
must be on the state of the "domestic industry"383, and that the evidence to be considered must 
pertain to the domestic industry as defined in the investigation.384 Russia submits that the text of  
Article  3 of the Anti -Dumping Agreement does not support a proposition that an investigating 
authority is generally required to analyse the data of entities that do not "bring into existence the 
like product" and that, consequently, are not part of the domestic industry.385 Russia also notes 
that the Panel's interpretation does not exclude the possibility that, in certain circumstances, 
evidence pertaining to a related dealer that is not part of the domestic industry may constitute 
evidence pertaining to a relevant economic factor having a bearing on the state of the industry 
such that an investigating authority is required to evaluate it.386 
5.153.   At the outset, we note that the European  Union's appeal is focused on the Panel's 
statement that " nothing in Article 3.4  [of the Anti -Dumping Agreement]  … sugges ts … that an 
investigating authority is generally required to consider the inventories of a dealer related to a 
domestic producer, but not itself a producer of the like product".387 The European  Union contends 
that the Panel found that an investigating autho rity is not required to examine the inventory data 
of a related dealer.388 In our view, the Panel's finding is more nuanced than the understanding 
advanced by the European  Union. We note that, in making the statement at issue, the Panel was 
addressing and re jecting the European  Union 's argument that , "by not considering the inventories 
of Sollers' related dealer Turin Auto, the DIMD relied on a partial picture of inventories, and 
consequently, that it failed to objectively examine positive evidence of the dom estic industry's 
inventories."389 In so doing, the Panel emphasized that Article  3 is concerned with the 
determination of injury to the "domestic industry".390 The Panel also  recalled that Article  3.4 
requires an evaluation of economic factors and indices havi ng a bearing on the state of the 
domestic industry.391 On this basis, the Panel considered that, "[a]s a rule, the evidence to be 
considered and evaluated for this purpose must be evidence pertaining to the domestic industry as 
defined in the investigation."392 The Panel observed, however, that it could not preclude the 
possibility that, in certain circumstances, an investigating authority may also be required to 
evaluate evidence pertaining to a related dealer  if that evidence concerns a relevant economic 
factor having a bearing on the state of the industry .393 
5.154.   The European  Union also submits that,  if a domestic producer and a dealer are part of a 
"single economic entity",  the evaluation of "inventories" under  Article 3.4 of the Anti -Dumping 
Agreement must extend beyond "the formal boundaries of the inventories of the producer at its 
premise"394 and " must relate to the entire single economic entity ".395 We understand the 
European  Union to argue that, to the extent tha t a domestic producer and a dealer are found to 
                                                
382 European Union's other appellant's submission, para.  173. The European Union argues that, if the 
Panel's interpretation of the term "inventories" in Article  3.4 of the Anti -Dumping  Agreement were accepted, 
this term "would be limited to the formal boundaries of the inventories of the producer at its premise and 
consequently could not extend to the inv entories of the entire economic entity of which the producer forms a 
part together with other entities also holding stocks of the relevant products." ( Ibid.,  para. 177) 
383 Russia's appellee's submission, para.  173. 
384 Russia's appellee's submission, para.  172. 
385 Russia's  appellee's submission, para.  176. Russia argues that domestic industry refers only to 
"domestic producers of the like product" that "bring into existence the like product". (Ibid.,  paras.  174-176 
(referring to Panel Reports, EC – Salmon (Norway) , para.  7.108, and Mexico  ‒ Olive Oil , para.  7.192) ) 
386 Russia's appellee's submission, para.  178 (referring to Panel Report, para.  7.122).  
387 Panel Report, para.  7.122.  
388 European Union Union's other appellant's s ubmission, para. 161.  
389 Panel Report, para. 7.122. (fn omitted) As we understand it, the European Union argued before the 
Panel that an investigating authority is always required to consider the inventory data of a relate d dealer , as 
failing to do so would , as in this case,  necessarily  "provide[] only a partial picture of the state of the 
inventories of Sollers".  (European Union's second written submission  to the Panel , para. 130 ) 
390 Panel Report, para.  7.122.  
391 Panel Report, para.  7.122 . 
392 Panel Report, pa ra. 7.122.  
393 Panel Report, para. 7.122.  
394 European Union's other appellant's submission, para. 177.  
395 European Union's other appellant's submission, para. 173.  WT/DS479/AB/R  
 
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comprise a single economic entity, an investigating authority is required to undertake a broader 
evaluation of "inventories" under Article 3.4 , even  though the related dealer may not be a 
producer of the like  product.  
5.155.   Article  3.4 of the Anti -Dumping  Agreement provides that the examination under that 
provision "shall include an evaluation of all relevant economic factors and indices having a bearing 
on the state of the industry". In our view, the clause "havin g a bearing on the state of the 
industry" focuses the evaluation on the factors and indices relevant to the state of the domestic 
industry. The dictionary definition of the term "bearing" includes "[p]ractical relation or effect 
(up)on ; influence , relevanc e".396 This definition suggests to us that Article 3.4 calls for an 
evaluation of the economic factors and indices that influence the state of the domestic industry.397 
In addition, the reference to "all" relevant economic factors and indices does not imply a narrow 
scope of evaluation. These factors and indices include those expressly listed in Article 3.4, as well 
as additional ones if they are relevant to the assessment of the state of the domestic industry. 
Thus, in our view, evidence on the record concerni ng all relevant economic factors and indices that 
influence the state of the domestic industry falls within the scope of an investigating authority's 
evaluation under Article  3.4.  
5.156.   In this respect, evidence pertaining to inventories of a related dealer that does not produce 
the like product and is not formally part of the domestic industry may be pertinent, in a particular 
case, to the evaluation of a relevant economic factor or index having a bearing on the state of the 
domestic industry. We agree with the  Panel that whether an evaluation under Article  3.4 requires a 
consideration of such evidence can be assessed only on a case -by-case basis.  
5.157.   We do not consider the degree of proximity in the relationship between different entities to 
be dispositive, without  more, of whether evidence relating to the inventory of a related dealer is 
pertinent  to the evaluation of the injury factor "inventories" under Article  3.4. As explained above, 
the focus of the evaluation under this provision is not on the nature of the r elationship between 
companies  such as producers and dealers; it centres instead on the relevant economic factors and 
indices having a bearing on the state of the domestic industry. Thus, regardless of whether a 
domestic producer included in the domestic industry and a dealer are independent from one 
another, related to each other, or part of the same economic entity, an investigating authority is 
required to assess whether the evidence on record concern s a relevant economic factor or index 
having a bearing on the state of the domestic industry. To the extent that this includes evidence 
relating to a dealer, an investigating authority is required to examine it under Article  3.4.  
5.158.   We observe that the Panel stated that the relevance of evidence  from a dealer related to a 
domestic producer "would have to be demonstrated  to the investigating authority, on the basis of 
the facts of the particular investigation, in order that the investigating authority  can be satisfied 
that it relates to the domestic industry and is therefore to be considered."398 While  this statement 
by the Panel is not devoid of  ambiguity , we understand the Panel to have used the verb 
"demonstrate"  to suggest that interested parties sho uld show to the investigating authority the 
possible relevance of evidence on the record to the examination  of the state of the 
domestic  industry . To us , evidence concerning all relevant economic factors and indices having a 
bearing on the state of the dom estic industry falls within the scope of an investigating authority's 
evaluation under Article 3.4  of the Anti -Dumping  Agreement. That said, where it is not plainly 
discernible that evidence on the record is pertinent to the evaluation of economic factors or indices 
having a bearing on the state of the domestic industry, interested parties must provide an 
explanation or reasons as to why they deem the evidence to be pertinent to the assessment of the 
state of the industry under Article  3.4. In such circumst ances, o nce interested parties have shown  
that evidence on the record may be pertinent  to the assessme nt of the state of the 
                                                
396 Shorter Oxford English Dictionary , 6th edn , A. Stephenson (ed.)  (Oxford University Press, 2007), 
Vol. 1, p. 205. 
397 The factors and indices listed in Article 3.4 of the Anti -Dumping  Agreement, including "inventories", 
are deemed to be relevant and must be evaluated in every investigation. ( Appellate Body Report, US – Hot-
Rolled Steel , para.  194) 
398 Panel Report, para. 7.122.  We note that the European Union does not directly challenge on appeal 
the Panel statement at issue . The European Union refer s to this statement  twice in its other appellant's 
submission, without addr essing it directly, as part of its description of the Panel's interpretation of Articles  3.1 
and 3.4 of the Anti -Dumping Agreement.  (European Union's other appellant's submission, paras. 176 -177) WT/DS479/AB/R  
 
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domestic  industry, an investigating authority is tasked with objectively examining such evidence , 
including its significance to particular injury factors and the injury determination  overall .  
5.159.   We do not understand the Panel statement at issue to imply that investigating authorities 
are excused from examining pertinent  evidence on the record merely because interested parties 
have not conclusively  "demonstrated" the relevance of such evidence to the assessment of the 
state of the domestic industry . In this respect, w e recall that Article 3.1 of the 
Anti-Dumping  Agreement requires  that a n investigating authority's  determination of injury  be 
based on positive evidence and invol ve an objective examination. Article  3.4 of the 
Anti-Dumping  Agreement, in turn, requires an evaluation of all relevant economic factors and 
indices having a bearing on the state of the industry.  Investigating author ities must determine, 
objectively, and on the basis of positive evidence, the importance and weight to be attached to 
each potentially relevant factor.399 In our view, in light of the requirements under Articles  3.1 and 
3.4, an investigating authority cannot  disregard evidence on the record  relating to an injury factor 
or index concerning the state of the domes tic industry merely because that authority is not 
satisfied that interested parties have conclusively  "demonstrated" the relevance of that evidence  to 
the state of the domestic industry.   
5.160.   For the reasons set out above, we do not consider that the European  Union's argument 
accurately describes the Panel's understanding of Articles  3.1 and 3.4 of the Anti -Dumping 
Agreement. As we see it , the Panel's findin g, when read together with the remaining statements 
made by the Panel, comport s with the text of Article s 3.1 and  3.4 specifying that the injury 
analysis concerns all relevant factors and indices having a bearing on the state of the "domestic 
industry" .400 In our view, as the Panel found, evidence concerning inventories of a related dealer 
that sells but does not produce the like product and is thus not formally part of the domestic 
industry may nevertheless be pertinent, in a particular case, to the evaluat ion of a relevant 
economic factor or index having a bearing on the state of the domestic industry. This is because 
evidence concerning all relevant economic factors and indices that have a bearing on the state of 
the domestic industry falls within the scop e of the evaluation provided for under Articles  3.1 and 
3.4. Consequently, we find that the Panel did not err in its interpretation of Article s 3.1 and 3 .4 of 
the Anti -Dumping Agreement  in relation to the evaluation of inventories under Article  3.4. 
5.4.4   Whethe r the Panel erred in its application of Article s 3.1 and 3.4 of the  
Anti-Dumping  Agreement  
5.161.   We now turn to the European  Union 's claim that the Panel erred in its application  of 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement to the investigation at issu e "by simply stating 
that the DIMD did not [act inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement] because the DIMD was only required to look into Sollers' [inventories] figures" .401  
5.162.   The Panel noted that the European  Union  had not point ed to any evidence before the DIMD 
that would support the conclusion that Turin  Auto's inventories were a relevant economic factor 
having a bearing on the state of the domestic industry producing LCVs .402 In particular, the Panel 
considered that, apart from focusing its claim on the nature of the relationship between Sollers 
and Turin  Auto, the European  Union had not presented any evidence or argument in support of its 
proposition that the inventories of Turin  Auto should have been taken into account by the D IMD in 
its evaluation of the state of the domestic industry .403 On this basis, the Panel concluded that the 
European  Union  had not established that the DIMD acted inconsistently with Articles  3.1 and 3.4 
by not considering the inventories  data of Sollers' related dealer  in the investigation report .404 
5.163.   We first note that the European  Union's challenge to the Panel's application of Articles  3.1 
and 3.4 of the Anti -Dumping  Agreement hinges upon its claim of error regarding the Panel's 
                                                
399 Appellate Body Report, US – Hot-Rolled Steel , para.  197. 
400 See Appellate  Body Reports, EC – Fasteners (China) , para. 413; China – GOES , para.  149. 
401 European Union's other a ppellant's submission, para.  174. 
402 Panel Report, para.  7.123.  
403 Panel Report, f n 254 to para.  7.123 .  
404 Panel Report, para. 7.123 . WT/DS479/AB/R  
 
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interpret ation of these provisions.405 We have found above that the Panel did not err in its 
interpretation of Articles  3.1 and 3.4 in relation to the scope of evidence to be evaluated by an 
investigating authority pertaining to a relevant injury factor or index havi ng a bearing on the state 
of the domestic industry and, more particularly, to the evaluation of inventories. As explained 
above , we do not consider the nature of the relationship between a domestic producer and its 
dealer to be dispositive, without more, of whether evidence relating to the inventory of a related 
dealer is pertinent  to the evaluation of "inventories" for purposes of the injury analysis under 
Article  3.4. In our view, the thrust of the European Union's argument concerns the nature of the 
relationship between Sollers and Turin  Auto. The European  Union has not sought to argue,  on the 
basis of the particular evidence before  the DIMD,  how the inventory information of Turin  Auto was 
specifically pertinent to the evaluation of "inventories" in relat ion to the state of Sollers.  
5.164.   In any event, we note that certain elements as to whether Turin  Auto's inventories may be 
pertinent to the evaluation of the injury factor "inventories" having a bearing on the state of 
Sollers were not explored before the DIMD or in the WTO panel proceedings. For instance, we note 
that the data on purchases and sales of LCV s, reported by Sollers and Turin  Auto in their 
respective questionnaire responses, correspond to each other.406 The European Union has not 
explained why the fact that the  inventories data from both Sollers and Turin  Auto correspond to 
each other could sugges t that Turin  Auto's inventories provide additional  relevant information that 
would  have assist ed the DIMD in evaluating Sollers' inventories. Rather than addressing the extent 
to which Turin  Auto's inventories were pertinent to the evaluation of the injury  factor "inventories" 
and the extent to which they had a bearing on the state of Sollers, the European  Union merely 
contended that the DIMD should have evaluated the "inventories" of Turin  Auto because 
Turin Auto and Sollers allegedly constitute a single e conomic entity.  
5.165.   We have found above that an investigating authority's assessment of the state of the 
domestic industry does not focus on the nature of the relationship between related companies, but 
centres instead on  whether  the relevant economic factors  and indices have a bearing on the state 
of the domestic industry . We therefore see no error in  the Panel's finding that the European  Union  
had not established that the DIMD acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement by  not considering the inventories data of Turin Auto in the investigation 
report .407 
5.4.5   Conclusions  
5.166.   In sum, we  consider that t he Panel's interpretation, which is more nuanced than the 
European  Union 's arguments on appeal suggest, comport s with the text of Article s 3.1 and 3.4 of 
the Anti -Dumping Agreement specifying that the injury analysis concerns all relevant factors and 
indices having a bearing on the state of the domestic industry . In our view, evidence concerning a 
related dealer that does not produce the like  product and is thus not included in the "domestic 
industry " may be pertinent, in a particular case, to the evaluation of a relevant economic factor or 
index having a bearing on the state of the domestic industry. We agree with the Panel that 
whether an ev aluation under Article  3.4 requires a consideration of such evidence can be assessed 
only on a case -by-case basis. W e do not consider the degree of proximity in the relationship 
between different entities to be dispositive, without more, of whether evidenc e relating to the 
inventory of a related dealer is pertinent  to the evaluation of "inventories" for purposes of the 
injury analysis under Article  3.4. With respect to the application of A rticles 3.1 and 3.4 to the 
anti-dumping investigation at issue, we fi nd that the European  Union does not have a separate and 
independent basis for its claim that the Panel erred in applying these provisions  when analysing 
the injury factor "inventories" in its assessment of the state of Sollers . We agree with the 
Panel's  finding that the European  Union ha d not established that the DIMD acted inconsistently 
with Articles 3.1 and 3.4 by not considering the inventories data of Turin  Auto in the investigation 
report.  
                                                
405 In response to questioning at the oral hearing, t he European  Union  indicated that , if we did not find 
error in the Panel's interpretation  of these provisions, no specific errors could be identified in the Panel's 
application  of Articles 3.1 and 3.4  of the  Anti-Dumping Agreement .  
406 Sollers' updated questionnaire response of 31 January 2013  (Panel Exhibit EU -4), Section 6; Turin's 
updated questionnaire response of 31 January 2013 ( Panel Exhibit EU -6), Section s 3.1 and 3.2.  
407 Panel Report, para. 7.123 . WT/DS479/AB/R  
 
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5.167.   We therefore find that the Panel did not err in its interpretation and application of 
Articles  3.1 and 3.4 of the Anti -Dumping  Agreement. Consequently, we uphold  the Panel's finding, 
in paragraphs  7.122, 7.123, 7.173 .b, and 8.1 .e.ii of the Panel Report, that the European  Union 
had not established that the DIMD acted inconsistently with these provisions in its injury analysis 
by not examining inventory information of a dealer related to a domestic producer of the like 
product , but not itself part of the domestic industry.  
5.5  Essential facts  
5.5.1   Introduction  
5.168.   The participants  appeal different aspects of the Panel's interpretation and application of 
Article 6.9 of the Anti -Dumping Agreement . Russia claims that, in reaching its conclusions, the 
Panel erred by interpreting and applying A rticle 6.9 in a way that suggests that, with respect to 
essential facts  treated as confidential, a finding of inconsistency with Article 6.5 of the 
Anti-Dumping Agreement will "automatically entail" an inconsistency with Article 6.9.408 Russia 
also raises cl aims of error under Articles 7 and 15.2  of the DSU with respect to an allegedly new 
finding concerning information originating from the electronic customs database of national 
authorities of the Customs Union ( electronic customs database ) that the Panel ad ded to its Report 
at the interim review stage.409 
5.169.   The European  Union claims that the Panel erred in its interpretation and application of 
Article  6.9 of the Anti -Dumping Agreement by concluding  that the source of information cannot be 
an "essential fact " and thus finding  that the source of information concerning import volumes and 
values  in the DIMD's investigation report  does not constitute "essential facts " under Article  6.9.410 
In the European  Union's view, this error stems from two earlier  interpretative errors made by the 
Panel in finding that: (i) a methodology is not an essential fact; and (ii) not every essential fact is 
required to be disclosed, but rather only those essential facts that are additionally shown  to be 
"under  consideration ".411 In the event that we reverse  the Panel's findings under Article 6.9 in 
response to the participants' appeals, the European  Union requests us to complete the analysis 
and find that the DIMD acted inconsistently with Article 6.9 of the Anti -Dumping Agree ment by 
failing to disclose the essential facts at issue.412  
5.170.   We begin by recalling the relevant Panel findings. Thereafter, we set out the legal standard 
under Article  6.9 of the Anti -Dumping Agreement. We then examine the claims and arguments 
raised by the  participants on appeal.  
5.5.2   Panel's  findings  
5.171.   Before  the Panel, the European  Union raised claims under Article 6.5 and Article 6.9 of the 
Anti-Dumping Agreement. Regarding the European  Union's claim s under Article 6.5, the Panel 
found that, with respect to all the information at issue treated as confidential by the DIMD, the 
DIMD acted inconsistently with Article 6.5 because "the submitters of that information did not 
show good cause for confidential treatment ."413 Having made that finding, the Panel considered 
that it did not need to address the European  Union's claims under Article 6.5.1 of the 
Anti-Dumping Agreement.414 
5.172.   The Panel then addressed the European  Union's claim  of inconsistency under Article  6.9 of 
the An ti-Dumping  Agreement with respect to the DIMD's alleged failure to inform Volkswagen AG 
and Daimler AG of the essential facts under consideration concerning the existence of dumping 
and the determination of material injury. The Panel observed that there ar e three cumulative 
elements as to the type of information that must be disclosed. First, the Panel noted that 
                                                
408 Russia's appellant's submission, para. 95.  
409 Russia's appellant's submission, paras. 99 -103. 
410 European Union's other appellant's submission, paras. 195 and 203.  
411 European Union's other appellant's submission, paras. 192 -193 and 195.  
412 European Union's o ther appellant's submission, para. 204; appellee's submission, para. 172.  
413 Panel Report, para. 7.247. The Panel summarized the specific information to which this conclusion 
applies in Table 11 of the Panel Report. (Ibid., para. 7.247)  
414 Panel Report, par a. 7.249.  WT/DS479/AB/R  
 
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"Article  6.9 requires the disclosure of facts: the information underlying a decision rather [than] the 
reasoning, calculation or methodology that led to a determination."415 Second, the Panel observed 
that "[a] fact is essential  where it is 'extremely important and necessary ', 'indispensable ' or 
'significant, important or salient ' in the process of reaching a decision as to whether or not to apply 
definitive measures. "416 Third, the Panel noted that  "[n]ot every 'essential fact' is required to be 
disclosed"417; rather, "Article 6.9 requires the disclosure of ' essential facts under  consideration ': 
the 'facts on the record that may be taken into account by a n authority in reaching a decision as to 
whether or not to apply definitive anti -dumping and/or countervailing duties '."418 
5.173.   The Panel further found that the European  Union had not demonstrated that certain 
alleged essential facts met the above -mentioned requ irements. In particular, the Panel took the 
view that the sources of certain information – i.e. import volumes, volumes of dumped imports, 
and import values used by the DIMD – were not essential facts. The Panel explained that, "[i]n 
itself, the source of data is not an essential fact under consideration "419 and that "[k]nowledge of 
the sources of data might be useful to establish the credibility of information used by investigating 
authorities, but the sources of data are not themselves essential facts under  consideration."420  
5.174.   The Panel then turned to address the European  Union's claim that, to the extent that 
certain information was treated as confidential, it was not properly disclosed under Article  6.9.421 
The Panel noted that Article 6.9 does not require the disclosure of essential facts that benefit from 
confidential treatment under Article 6.5.422 It further observed that "Article 6.5 is not a carve -out 
to Article 6.9" and that "confidentiality of informat ion is neither an absolute bar to disclosure nor a 
defence to the failure to disclose as required under Article 6.9."423 Rather, a Member has 
"dual obligations" with respect to these provisions whereby, pertaining to the essential facts that 
"are properly  treated as confidential, 'the investigating authority could meet its obligations under 
Article  6.9 through the use of non -confidential summaries of the 'essential' but confidential 
facts'".424 Referring to its previous finding of inconsistency under Article 6. 5, the Panel concluded 
that, "to the extent that the DIMD failed to disclose information that was not properly  treated as 
confidential …, it acted inconsistently with Article 6.9."425 
5.175.   The Panel further recalled that, with respect to information originating f rom the electronic 
customs database , Russia had argued that this information was submitted on a confidential basis 
to the DIMD and, accordingly, was treated as confidential by the DIMD.426 The Panel noted that 
there was no showing of "good cause" on the reco rd with respect to such information. For this 
reason, the Panel concluded that this information was not properly treated as confidential. The 
Panel then found that, to the extent that the DIMD  failed to disclose such information, it acted 
inconsistently wi th Article  6.9 of the Anti -Dumping Agreement.427 
                                                
415 Panel Report, para. 7.256.a (referring to Panel Report, China – Broiler Products , para. 7.90) . 
(emphasis original)  
416 Panel Report, para. 7.256.b (quoting, respectively, Merriam -Webster dictionary online, definition of 
"essential", http://www.me rriam -webster.com/dictionary/essential ; Oxford English dictionary online, definition 
of "essential", http://www.oed.com/view/Entry/64503?redirectedFrom=essential#eid ; Appellate Body Report, 
China – GOES , para. 240  (emphasis original)).  
417 Panel Report, para . 7.256.c.  
418 Panel Report, para. 7.256.c (quoting Appellate Body Report, China – GOES , para. 240).(emphasis 
added by the Panel)  
419 Panel Report, para. 7.257.a. (emphasis original)  
420 Panel Report, para. 7.257.a.  
421 The Panel observed that, while the European Union initially argued that the failure to disclose certain 
actual figures (whether or not confidential) amounted to acting incon sistently with Article 6.9, later the 
European Union appeared  to argue that , to the extent that information was confidential, i t was not properly 
disclosed . (Panel Report, para. 7.265)  
422 Panel Report, para. 7.268.  
423 Panel Report, para. 7.268.  
424 Panel Report, para. 7.268 (emphasis original) (quoting Panel Report, China – GOES , para. 7.410).  
425 Panel Report, para. 7.269.  
426 We note that, at the interim review, Russia requested the Panel to "reflect the reason why essential 
facts, which were determined on the basis of electronic customs database submitted to the DIMD by the 
national customs authorities of the Member States of the Customs Union on a confidential basis, did not meet 
the requirements of Article 6.5 of the Anti-Dumping  Agreement."  (Russia's comments on the Interim Report, 
para. 40)  
427 Panel Report, para. 7.270.  WT/DS479/AB/R  
 
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5.5.3   Article  6.9 of the Anti-Dumping Agreement  
5.176.   The first sentence of Article  6.9 of the Anti -Dumping Agreement provides that "[t]he 
authorities shall, before a final determination is made, inform all interested parties of the essential 
facts under consideration which form the basis for the decision whether to apply definitive 
measures." The second sentence of Article  6.9 further provides that "[s]uch disclosure should take 
place in sufficient time for the parties  to defend their interests."  
5.177.   Unlike Article  12.2.2 of the Anti -Dumping Agreement, which governs the disclosure of 
matters of fact and law and reasons at the conclusion of anti -dumping investigations428, Article  6.9 
concerns the disclosure of "facts" in the c ourse of such investigations "before a final determination 
is made".429 With respect to what kind of facts are "essential", the Appellate  Body in China – GOES  
explained that Article 6.9 does "not require the disclosure of all the facts that are before an 
authority but, instead, those that are 'essential'; a  word that carries a connotation of significant, 
important, or salient".430 Essential facts are those that "form the basis for the decision whether to 
apply definitive measures" and those that ensure the abil ity of interested parties to defend their 
interests . Thus, the term "essential facts" refers to those facts that are significant in the process of 
reaching a decision whether to apply definitive measures . Such facts are those that are salient for 
a decisio n to apply definitive measures as well as  those that are salient for a contrary outcome. An 
authority must disclose such facts, in a coherent way, so as to permit an interested party to 
understand the basis for the decision whether to apply definitive meas ures. Disclosing the 
essential facts under consideration pursuant to Article 6.9 is paramount for ensuring the ability of 
the parties concerned to defend their interests.431 Article  6.9 "require [s] in all cases that the 
investigating authority disclose those  facts in such a manner that an interested party can 
understand clearly what data the investigating authority has used, and how those data were used 
to determine the margin of dumping".432  
5.178.   In order to apply a definitive anti-dumping measure, an investigating authority must 
establish the existence of dumping, injury to the domestic industry, and a causal link between the 
dumping and the injury. Whether a particular fact is essential or "significant in the process of 
reaching a decision" therefore depends on the nature and scope of the particular substantive 
obligations, the content of the particular findings needed to satisfy the substantive obligations at 
issue, as well as the factual circumstances of each case, including the arguments and evidenc e 
submitted by the interested parties.433 For example, with respect to the determination of dumping, 
the Appellate  Body in China – HP-SSST (Japan) / China – HP-SSST (EU) explained that an 
investigating authority is expected "to disclose, inter alia , the home market and export sales being 
used, the adjustments made thereto, and the calculation methodology applied  by the investigating 
authority to determine the margin of dumping."434 
5.179.   We now turn to the relationship between Article  6.5 and  Article  6.9 of  the 
Anti-Dumping  Agreement. In particular, we examine whether a fail ure to disclose essential facts 
that were  not properly treated as confidential under Article  6.5 would lead to an inconsistency with 
Article 6.9 . 
                                                
428 Article  12.2.2 of the Anti -Dumping Agreement provides :  
A public notice of conclusion or suspension of an investigation in the case of an affirmative 
determination providing for the imposition of a definitive duty or the acceptance of a price 
undertaking shall contain, or otherwise make available through a s eparate report, all relevant 
information on the matters of fact and law and reasons which have led to the imposition of final 
measures or the acceptance of a price undertaking, due regard being paid to the requirement for 
the protection of confidential inf ormation. In particular, the notice or report shall contain the 
information described in subparagraph  2.1, as well as the reasons for the acceptance or rejection 
of relevant arguments or claims made by the exporters and importers, and the basis for any 
decision made under subparagraph  10.2 of Article  6. 
429 Appellate Body Report, China – GOES , para.  240. 
430 Appellate Body Report, China – GOES , para.  240. (emphasis original)  
431 Appellate Body Report, China – GOES , para.  240. 
432 Appellate Body Report s, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131.  (fn omitted)  
433 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.130 . (fn omitted)  
434 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131 
(quoting Appellate Body Report , China – GOES , para. 241 ). WT/DS479/AB/R  
 
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5.180.   Articles 6.5 and 6.9 of the Anti -Dumping Agreement are part of Article 6 of the 
Anti-Dumping Agreement, entitled "Evidence". Article 6 contains 14 paragraphs setting out specific 
rules relating to the treatment of evidence in an anti -dumping investigation. In EC – Tube or Pipe 
Fittings , the Appel late Body explained that the obligations set out in Article 6 establish a 
"framework of procedural and due process obligations".435 Particul arly, the provisions of Article  6 
"set out evidentiary rules that apply throughout the course of the anti -dumping inve stigation, and 
provide also for due process rights that are enjoyed by 'interested parties' throughout such an 
investigation".436 
5.181.   Article 6.5 of the Anti -Dumping Agreement requires investigating authorities to treat as 
confidential  any information which is by nature confidential, or which is provided on a confidential 
basis by parties to an investigation  upon "good cause" being shown.  The "good cause" alleged 
must constitute a reason sufficient to justify the withholding of information from both the public 
and the other parties interested in the investigation.437 The existence of a "good cause" alleged by 
a party must be examined by a panel on the basis of the investigating authority's published report 
and its related supporting documents, and in light of the n ature of the information at issue and the 
reasons given by the submitting party for its request for confidential treatment.438 In turn, 
Article  6.5.1  of the Anti -Dumping Agreement  "serves to balance the goal of ensuring that the 
availability of confidential treatment does not undermine the transparency of the investigative 
process."439 It does so by requiring that a non -confidential summary of the information be 
furnished by interested parties and that such summary contains "sufficient detail to permit a 
reason able understanding of the substance of the information submitted in confidence".440 
Articles  6.5 and 6.5.1 thus: 
accommodate the concerns of confidentiality, transparency, and due process by 
protecting information that is by nature confidential or is submitt ed on a confidential 
basis and upon 'good cause' shown, but establishing an alternative method for 
communicating its content so as to satisfy the right of other parties to the 
investigation to obtain a reasonable understanding of the substance of the confidential 
information, and to defend their interest s.441 
5.182.   Articles  6.5 and 6.9 strike a balance between the duty imposed on the investigating 
authority to protect information  as confidential upon a "good cause" shown , on the one hand, and 
the duty to discl ose the essential facts under consideration in order to ensure transparency and 
due process rights,  on the other hand. The text of the se provisions does not suggest that a finding 
of inconsistency under Article 6.5 would automatically lead to a finding  of inconsistency under 
Article  6.9. In particular, there is no indication in Article 6.9 of whether essential facts may or may 
not include information treated as confidential under Article  6.5 with or without  a showing of 
"good  cause" . This suggests to us tha t essential facts may comprise information properly treated 
as confidential  under Article 6.9  and information that does not qualify for such treatment . While 
the notions of essential facts under Article 6.9 and confidential information within the meaning o f 
Article 6.5 may overlap, they are not co -extensive . Thus, not every piece of information that is 
treated as confidential under Article 6.5, with or without showing  "good cause ", may  constitute 
essential  facts under Article 6.9 . The question of what is "s alient" for the decision of whether or 
not to impose a measure is different from the question of what qualifies as "good cause" for 
confidential treatment of certain information. Indeed, the content and scope of the obligations 
under Article  6.5 and Articl e 6.9 are different . An assessment under Article  6.5 focuses on whether 
confidential treatment was conferred to information on the investigation record upon a proper 
showing of "good cause". By contrast, an assessment under Article 6.9 concerns whether all  
                                                
435 Appellate Body Report, EC – Tube or Pipe Fittings , para. 138  (quoting Appellate Body Report, 
Thailand – H-Beams , para. 109).  
436 Appellate Body Report, EC – Tube or Pipe Fittings , para. 138. (emphasis original) See also 
Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.73 . 
437 Appellate Body Report, EC – Fasteners (China) , para. 537.  
438 Appellate  Body Report s, China – HP-SSST (Japan) / China – HP-SSST (E U), para.  5.97 (referring to 
Appellate Body Report, EC – Fasteners (China) , paras. 536 and 538). 
439 Appellate Body Report, EC – Fasteners (China) , para. 542 (quoting Panel Report, EC – Fasteners 
(China) , para. 7.515 ). 
440 Article 6.5.1 of the Anti -Dumping Agr eement.   
441 Appellate Body Report, EC – Fasteners (China) , para. 542 . See also Appellate Body Report, 
EC ‒ Fasteners (Ch ina) (Article 21.5 – China) , para. 5.36.  WT/DS479/AB/R  
 
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essential facts have been disclosed in a timely manner so as to ensure the ability of interested 
parties to defend their interests. Accordingly, an inquiry under Article  6.9 is separate and distinct 
from an assessment under Article 6.5 of the Anti -Dumping  Agreement.   
5.183.   The treatment of information as confidential under Article 6.5 does not absolve the 
investigating authority from its obligation to disclose essential facts as required under Article  6.9. 
When information treated as confidential under Article  6.5 constitutes essential facts within the 
meaning of Article 6.9 , "the disclosure obligations under these provisions should be met by 
disclosing non -confidential summaries of those facts."442 Given the relationship between Article  6.5 
and Article 6.9, regardless of whether or not the essential facts at issue were properly treated as 
confidential under Article  6.5 – i.e. with or without  showing  "good cause"  - a panel must examine 
whether any disclosure made – including that made through non -confidenti al summaries pursuant 
to Article 6.5.1 – meets the legal standard under Article  6.9.443 Thus, an inconsistency with 
Article  6.5 in relation to information that constitutes essential facts may not be presumed to result 
in an inconsistency with Article 6.9.  
5.5.4   Whether  the Panel erred in allegedly finding that an inconsistency with Article  6.5 
automatically entails an inconsistency with Article  6.9 
5.184.   Russia takes issue with several findings made by the Panel under Article 6.9 of the 
Anti-Dumping Agreement.444 First, Russia claims that the Panel erred in its interpretation and 
application of Article 6.9 by finding that, to the extent that the DIMD failed to disclose information 
that was not properly treated as confidential, it acted inconsistently with Article 6.9.445 According 
to Russia, the Panel's approach suggests that a failure to disclose information, including essential 
facts that were not properly treated as confidential under Article  6.5, would automatically lead to 
an inconsistency with Article  6.9.446 In Russia's  view, this is incorrect, because the issue of 
treatment of information as confidential – which  may include essential facts – "is a distinct legal 
question" from the disclosure of essential facts under Article  6.9.447 According to Russia, the Panel 
erred by not examining the non -confidential summaries of redacted actual figures provided by the 
DIMD in its draft investigation report.448  
5.185.   The European  Union responds that the Panel interpreted Articles  6.5 and 6.9 of the 
Anti-Dumping Agreement "harmoniously, witho ut creating any 'automatic' link between them in 
the abstract, and without stating that any breach of Article 6.5 will necessarily entail a breach of 
Article 6.9".449 To the European  Union, the Panel's reasoning suggests that, if confidential 
treatment canno t properly be extended to an essential fact, that essential fact must be disclosed 
by the investigating authority.450 The European  Union argues that there was no need for the Panel 
to examine the summaries of redacted actual figures provided by the DIMD, bec ause the absence 
of a showing of "good cause" meant that there was no legal basis to treat those figures as 
confidential and that they should have been disclosed.451  
5.186.   As noted, in  Russia's view, the Panel 's interpretation of Article 6.9 suggests  that, where 
essential facts are not properly treated as confidential  under Article 6.5, this will "automatically" 
entail a finding of inconsistency with Article 6.9, even if some essential facts were disclosed by 
means of a non -confidential summary .452 We recall that, with respect to the European  Union's 
claim under Article 6.9, Russia had  argued  before the Panel  that certain essential facts in this case 
                                                
442 Appellate Body Report, China – GOES , para. 247.  
443 We note that the scenario reflected in the third sentence of Article 6.5.1 of the Anti -Dumping 
Agreement (i.e. when information is not susceptible of summary) is not before us in this appeal.  
444 Russia's appellant's submission, paras. 98, 103, and 109 .  
445 Russia's appellant's submission, para. 95 (quoting Panel Report, para. 7.270).  
446 Russia's appellant's submission, paras. 94 -95. 
447 Russia's appellant's submission, para. 95.  
448 Russia's appellant's submission, para. 9 6.  
449 European Union's appellee's submission, para. 145 . 
450 European Union's appellee's submission, para. 151. The European Union recalls the Panel's finding 
that there are "dual obligations" resulting from Articles 6.5 and 6.9 of the Anti -Dumping Agreement, which 
means that, with respect t o essential facts, investigating authorities must comply with both provisions. 
(Ibid.,  para. 154)  
451 European Union's  appellee's submission, para. 162 . 
452 Russia's appellant's submission, para. 95.  WT/DS479/AB/R  
 
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constituted confidential information and  that therefore the DIMD had no opportunity to disclose the 
actua l figures.453 In its analysis, the Panel first expressed its understanding of the relationship 
between Article 6.5 and  Article  6.9 of the Anti -Dumping Agreement. The Panel explained:  
Nothing in Article  6.9 requires a complaining party to demonstrate that an 
investigating authority had "an opportunity" to make the required disclosure. Under 
Article  6.9, a complaining party presents a prima facie  case where it demonstrates 
that essential facts have not been disclosed to the interested parties as required. 
Article  6.9 does not require the disclosure of essential facts that benefit from 
confidential treatment under Article  6.5. Indeed, the Russian  Federation also argues 
that a Member is under "dual obligations"[*] in respect of essential facts that are 
treated as confidential by an investigating authority. But Article  6.5 is not a carve -out 
to Article  6.9; confidentiality of information is neither an  absolute bar to disclosure nor 
a defence to the failure to disclose as required under Article  6.9. Rather, a harmonious 
interpretation of the "dual obligation" is that where essential facts are properly  treated 
as confidential, "the investigating authorit y could meet its obligations under Article  6.9 
through the use of non -confidential summaries of the 'essential' but confidential 
facts".454 
[*fn original]479 The obligation to disclose under Article 6.9 and the obligation to protect 
confidential information under Article 6.5. Both provisions apply in respect of confidential 
information.  
5.187.   The Panel  accepted that the disclosure of essential but confidential facts could be done 
through non -confidential summaries within the meaning of Article 6.5.1 of the Anti -Dumping 
Agreement. The Panel, however, emphasized that the "dual obligation" in Articles 6.5 and 6.9 of 
the Anti -Dumping Agreement could be met through the use of non -confidential summaries 
"where  essential facts are properly  treated as confidential".455 The Panel further stated that " the 
condition precedent  for treatment as confidential of such information by the investigating 
authority , a showing of good cause,  was not met and therefore  that information , including the 
essential facts at issue, was not prope rly treated as confidential in the investigation ."456 In its 
subsequent analysis, the Panel referred to its previous finding of inconsistency with Article  6.5 and 
found that, "to the extent that the DIMD failed to disclose information that was not properly  
treated as confidential …, it acted inconsistently with Article 6.9."457 Read together, these 
statements of the Panel suggest to us that the Panel considered that the requirements of 
Article  6.9 could be met by disclosing essential facts through non-confide ntial summaries only 
where no inconsistency  with Article 6.5 had been established.  
5.188.   As we see it , the Panel's emphasis  on the word s "properly  treated "458 and the 
"condition  precedent "459 for confidential treatment support the conclusion that the Panel 
understo od that, if confidential treatment  was granted  to information that constitutes essential 
facts without complying with the requirements of Article 6.5 , the obligations under Article  6.9 may 
not be met through the disclosure of non-confidential summaries within the meaning of 
Article  6.5.1 of the Anti -Dumping  Agreement. Accordingly, the Panel did not consider it necessary 
to examine the  alleged  disclosure of essential facts made through the non -confidential summaries 
of confidential information in the draft investigation report . Instead , the Panel merely referred to 
its previous finding of inconsistency with Article 6.5 to establish an inconsistency with Article  6.9. 
5.189.   We disagree with the Panel's statement , in paragraph 7.268 of the Panel Report,  that, 
"where essential facts are properly  treated as confidential, 'the investigating authority could meet 
its obligations under Article  6.9 through the use of non -confidential summaries of the 'essential' 
but confidential facts'"460, as read in light of the Panel's further statements in paragraph 7.269 of 
the Panel Report. We understand these statements to reflect the Panel's erroneous understanding 
                                                
453 Panel Report, para. 7.266.  
454 Panel Report, para. 7.268. (e mphasis original; fn omitted)  
455 Panel Report, para. 7.268. (emphasis original)  
456 Panel Report, para. 7.269. (emphasis original)  
457 Panel Report, para. 7.269.  
458 Panel Report, para. 7.268. (emphasis original)  
459 Panel Report, para. 7.269. (emphasis original)  
460 Panel Report, para. 7.268 (quoting Panel Report, China – GOES , para. 7.410  (emphasis original)).  WT/DS479/AB/R  
 
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that, where essential facts are not properly  treated as confidential in accordance wit h Article 6.5, 
this would automatically lead to an inconsistency with Article 6.9.  As explained above, regardless 
of whether or not the essential facts at issue were treated as confidential consistently with the 
requirements of Article  6.5, a panel must ex amine whether any disclosure made – including that 
made through non -confidential summaries under Article 6.5.1 – meets the requirements of 
Article  6.9.  
5.190.   As noted  above , in its assessment of the European  Union's claim under Article 6.9, the 
Panel referred t o its previous finding  of inconsistency with Article  6.5. The Panel then concluded 
that, to the extent  that the DIMD failed to disclose essential facts because they constituted 
information that was not properly treated as confidential, the DIMD acted incon sistently with 
Article 6.9.461 In our view, the Panel's analysis does not comport with the legal standard under 
Article  6.9, in particular in light of the relationship between Article 6.5 and  Article  6.9 explained 
above.  We consider that, having made a findi ng of inconsistency  with Article 6.5, the Panel could 
not simply conclude, on that basis alone, that the DIMD had failed to comply with the 
requirements of Article  6.9. Rather, the Panel should have examined whether or not the  alleged  
disclosure made throu gh the non-confidential summaries met the requirements of Article  6.9. 
5.191.   For the above reasons, we find that the Panel erred in its interpretation of Article 6.9 of the 
Anti-Dumping Agreement by consider ing that, where essential facts are not properly  treated as 
confidential in accordance with Article 6.5, this automatically lead s to an inconsistency  with 
Article  6.9. The Panel also erred in finding, in paragraph 7.269 of the Panel Report, that , "to the 
extent that the DIMD failed to disclose informati on that was not properly treated as confidential …, 
it acted inconsistently with Article  6.9."462 We therefore reverse  the Panel's finding s, in paragraph 
7.268, as read in light of paragraph 7.269 , and in paragraphs  7.269 and 7.278 , Table 12 , as well 
as the Panel's conclusion, in paragraph 8.1 .h.ii of the Panel  Report, that the DIMD acted 
inconsistently with Article 6.9 of the Anti -Dumping Agreement by failing to inform all interested 
parties of the information listed in items (d) to (o) of Table 12.  Having reversed the Panel's 
findings, we examine whether we can complete the analysis and determine whether the DIMD 
acted inconsistently with Article 6.9 of the Anti -Dumping Agreement below in section 5.5.6 of this  
Report.  
5.5.5   Whether  the Panel erred in its find ing relating to the customs electronic database  
5.192.   Russia claims that the Panel acted inconsistently with Articles 7 and 15.2 of the DSU by 
adding, in its Final Report, paragraph 7.270, which had not appeared in the Panel's Interim 
Report.463 According to Russi a, the Panel exceeded its terms of reference when it found that the 
data from the electronic customs database and the data on the volumes of LCVs produced by GAZ 
did not meet the requirements of Article  6.5 of the Anti -Dumping  Agreement. Moreover, Russia 
considers that "an entirely new finding " cannot be made at the interim review stage.464 Russia also 
claims that the Panel erred in finding that "the actual import volumes and the weighted average 
import price of LCVs produced by Daimler AG and Volkswagen AG, respectively, were not properly 
treated as confidential."465 In this regard, Russia submits that those figures constitute sensitive 
business information for some interested parties and that , under the Russian and C ustoms Union 
law, the data from the electron ic customs database is treated as confidential.466 
5.193.   The European  Union responds that the Panel did not exceed its terms of reference because 
the failure to disclose information originating from the electronic customs databases was covered 
by the European  Union's panel request and mentioned in its written submissions.467 
The European  Union further notes that paragraph  7.270 of the Panel Report was "added at the 
specific request of Russia"468, and that Article  15.2 of the DSU "does not prevent a panel f rom 
                                                
461 Panel Report, para. 7.269.  
462 Panel Report, para. 7.269.  
463 Russia's appellant's submission, paras. 99, 101-102. 
464 Russia's appellant's submission, para. 102  (referring to  Panel Report , Australia – Salmon , para. 7.3).  
465 Russia's appellant's submission, para s. 19 and 108.  
466 Russia's appellant's submission, para. 97.  
467 European Union's appellee's submission, para. 181. (fns omitted)  
468 European Union's appellee' s submission, paras. 182 and 187. The European Union referred to the 
explanation provided by the Panel in paragraph 6.38 of its Report. (Ibid., para. 176 ( referring to  Panel Report, 
para. 6.38))  WT/DS479/AB/R  
 
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modifying certain aspects of its reasoning or of its findings when requested to do so by a party".469 
With respect to Russia's claim concerning the actual import volumes and prices of LCVs produced 
by Daimler AG and Volkswagen AG, the European  Union subm its that Russia did not specify any 
provision in the covered agreements that the Panel is alleged to have erred in interpreting o r 
applying.470 
5.194.   We recall that, before the Panel, the European  Union argued that Russia had  failed to 
inform interested  parties of  the essential facts, including the essential facts underlying the 
determinations of the existence of dumping and, in particular, the determination of normal value 
and the export price.471 With respect to the determination of normal value, the European  Union  
argued that, because the total number of LCVs imported by Volkswagen AG and Daimler AG into 
the C ustoms Union was treated as confidential, the interested parties  were unable to verify the 
numbers used by  the DIMD regarding  volumes of imported LCVs , and to  defend their interests.472 
With respect to the DIMD's calculation of the export price, the European  Union contended that the 
DIMD  had failed to disclose the weighted -average export prices and export volumes of LCVs 
produced by Volkswagen AG and Daimler AG a nd imported into the C ustoms Union.473  
5.195.   Russia explained before the Panel that the source of certain information used by  the DIMD 
to calculate the dumping margin for the German exporting producers was the electronic customs 
database on imports of goods into the Customs Union. Russia submitted that the information from 
that database was provided by the national customs authorities of the member States of the 
Customs Union on a confidential basis.474 According to Russia,  the DIMD could not disclose 
aggregated dat a concerning the volume and value of LCVs produced by Volkswagen AG and 
Daimler AG and imported into the Customs Union in disclosure documents.475 In Russia's view, 
information that is expressly protected from unauthorized disclosure by domestic legislation does 
not fall within the scope of Article  6.9 of the Anti -Dumping Agreement.476 
5.196.   In both the Interim and Final Reports, the Panel found that the DIMD  had acted 
inconsistently with Article 6.9 of the Anti -Dumping Agreement by not disclosing certain essential 
facts, including the actual volumes of LCVs imported into the C ustoms Union by Volkswagen AG 
and Daimler AG that were used for calculating the normal value and the export price , and the 
weighted -average export prices of LCVs produced by Volkswagen AG and Daimler AG .477 
Section  7.8.2.2 of the Interim Report ended with paragraph 7.267, which corresponds to 
paragraph 7.269 of the Final Report.  
5.197.   In its comments on the Interim Report, Russia requested, with regard to paragraph  7.267, 
that the Panel "reflect the re ason why essential  facts, which were determined on the basis of 
electronic customs database submitted to the DIMD by the national customs authorities of the 
                                                
469 European Union's appellee's submission, para. 187.  
470 Europe an Union's appellee's submission, para. 196.  
471 European Union's first written submission to the Panel, para. 423; second written submission  to the 
Panel , para. 278.  
472 European Union's first written submission to the Panel, para. 425; second written submiss ion to the 
Panel , para. 278.  
473 European Union's first written submission to the Panel, paras. 428 -429; second written submission  to 
the Panel , para. 278.  
474 Russia's second written submission to the Panel, paras. 371 and 381; r esponse to Panel question 
No. 69, para. 43 (referring to  non-confidential investigation report  (Panel Exhibit RUS -12), p. 16). In 
particular, according to Russia, the information from the electronic customs database was used by the DIMD to 
determine the total volume and value of LC Vs produced by Volkswagen AG and Daimler AG and imported into 
the Customs Union (Russia's second written submission to the Panel, para. 405) In this respect, Russia also 
argued that, if the investigating authority uses facts available that are submitted no t by interested parties but 
by national authorities on a confidential basis, the investigating authority is not obliged to disclose such data. 
(Ibid., para. 352)  
475 Russia's second written submission to the Panel, para. 371.  In the same vein, Russia noted t hat 
"export prices of LCVs were determined on the basis of electronic customs database submitted by the national 
customs authorities of the Member States of the Customs Union." ( Ibid., para. 381)  
476 Russia's second written submission to the Panel, paras. 34 6-365; appellant's submission, 
paras.  105-106. 
477 Interim Panel Report, para. 7.275; Panel Report, para. 7.278.  WT/DS479/AB/R  
 
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Member States of the Customs Union on a confidential basis, did not meet the requirements of 
Article 6.5 of the Anti -Dumping Agreement."478 
5.198.   The Panel added paragraph  7.270  to its Final Report in response to Russia's comment . 
It reads:  
In respect of information originating from electronic customs database of national 
customs authorities of the CU, the Russ ian Federation argues that this information 
was submitted on a confidential basis to the DIMD and, accordingly, was treated as 
confidential by the DIMD. We note that there is no showing of good cause on the 
record in respect of such information. This does not mean that the information at 
issue was not confidential, or could not have been properly treated as confidential. 
Rather, the condition precedent  for treatment as confidential of such information by 
the investigating authority, a showing of good cause,  is nowhere on the record. For 
this reason, consistent with our finding in paragraph 7.269, this information, including 
the essential facts at issue, was not properly  treated as confidential in the 
investigation. To the extent that the DIMD failed to discl ose information that was not 
properly treated as confidential, it acted inconsistently with Article  6.9.479  
5.199.   As we see it,  in its comments , Russia requested a clarification on the Interim Report 
because the information from the electronic customs database was not covered by the Panel's 
earlier findings under Article 6.5 of the Anti -Dumping  Agreement.480 In other words, given Russia's 
view that the Panel automatic ally found an inconsistency  with Article 6.9 on the basis of a finding 
of inconsistency with Article 6.5, we understand Russia to have requested an explanation from the 
Panel as to why it referred to the treatment of confidential information under Article 6.5 in relation 
to information from the electronic customs database when no finding under Article 6.5 had been 
made with respect to that information.  
5.200.   In addressing Russia's interim review request, the Panel explained that the information 
from the electronic customs database was not properly treated as confidential by the DIMD due to 
the absence of a showing of "good cause" on the record.481 Therefore, the Panel considered that, 
to the extent that the relevant information ha d not been disclosed, the DIMD acted inconsistently 
with Article 6.9 of the Anti -Dumping Agreement.482 Russia takes issue with the Pane l adding 
paragraph 7.270 to the Final Report. In particular, Russia submits that, in so doing, the Panel 
made a finding under Article 6.5 of the Anti -Dumping Agreement  that was not within the Panel's 
terms of reference.483 
5.201.   As we see it, in adding the finding  in paragraph 7.270 of the Panel Report, the Panel 
incorporated an element of analysis under Article 6.5 into its assessment under Article 6.9. This 
approach appears to stem from the Panel's erroneous understanding of the relationship between 
Article 6.5 a nd Article 6.9 of the Anti -Dumping Agreement, which we have addressed above. In 
particular, it seems to us that the finding at issue was premised on the Panel's understanding that, 
in circumstances where information that constitutes essential facts under A rticle 6.9 was 
improperly treated as confidential under Article  6.5, the requir ements that apply under Article  6.9 
to essential facts could not be met by means of the disclosure of non -confidential summaries 
within the meaning of Article 6.5.1. We thus do not consider that paragraph  7.270 of the 
Panel  Report contains a separate finding of inconsistency with Article 6.5 of the Anti -Dumping 
Agreement. Rather, we see it as an error in application that stems from the Panel's erroneous 
interpretation of Article 6.9. As we have noted above, we disagree with this interpretation because 
we consider the inquiry under Article 6.9 to be separate and distinct from the inquiry under 
Article  6.5. Accordingly, we also disagree with the Panel's analysis in paragraph 7.270 o f the 
Panel  Report.  
                                                
478 Russia's comments on the Interim Report, para. 40.  
479 Panel Report, para. 7.270.  (emphasis original)  
480 See Panel Report, para. 7.247 and Table 1 1. 
481 Panel Report, para. 7.270.  
482 Panel Report, para. 7.270.  
483 Russia's appellant's submission, paras. 100, 103, and 109(a).  WT/DS479/AB/R  
 
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5.202.   As we have found above, the Panel erred in its interpretation of Article 6.9 of the 
Anti-Dumping Agreement by considering that, where essential facts are not properly  treated as 
confidential in accordance with Article 6.5, this automatically lead s to an inconsistency with 
Article  6.9. The Panel also erred in finding, in paragraph 7.269 of the Panel Report, that "to the 
extent that the DIMD failed to disclose information that was not properly treated as confidential …, 
it acted in consistently with Article  6.9."484 We find that, as a result if its erroneous interpretation of 
Article  6.9 of the Anti -Dumping Agreement, the Panel also erred in finding, in paragraph 7.270 of 
the Panel Report , that, "[t]o the extent that the DIMD failed to  disclose information that was not 
properly treated as confidential, it acted inconsistently with Article 6.9" of the Anti -Dumping 
Agreement.485 We therefore reverse  the Panel's finding, in paragraph 7.270, and the Panel's 
conclusions, in paragraphs 7.278 , Table 12 , and 8.1 .h.ii of the Panel Report, as they relate to the 
information originating from the electronic customs database. In light of this reversal , we do not 
address the remainder of Russia's claims regarding the Panel's finding in paragraph 7.270  of the 
Panel Report , including its claims of error under Articles  7 and 15.2 of the DSU .486 
5.5.6   Completion  of the analysis  
5.203.   Having reversed the relevant Panel findings, we turn to the European  Union's request for 
completion of the analysis. We recall that, in the e vent we were to agree with Russia that the 
Panel erred in its interpretation and application of Article 6.9 of the Anti -Dumping Agreement, t he 
European  Union requests that we  complete the  analysis and find that the DIMD acted 
inconsistently with Article 6.9 by failing to disclose the essential facts listed in paragraphs  7.250  
and 7.278, Table 12 , of the Panel Report.487  
5.204.   In previous disputes, the Appellate  Body has completed the analysis with a view to 
facilitating the prompt settlement and effective resolu tion of the dispute.488 The Appellate  Body 
has done so where the factual findings in the panel report, undisputed facts on the panel record, 
and admitted facts provided it with a sufficient basis for conducting its own analysis.489 
The Appellate  Body has decli ned to complete the analysis when the complexity of the issues  
raised , the absence of full exploration of the issues before the panel, and considerations pertaining 
to the parties' due process rights  prevented it from doing so .490  
5.205.   The Panel  found that the i nformation concerning the return on investments, the actual and 
potential negative effects on cash flow, and the ability to raise capital or investments constitute 
essential facts subject to the disclosure requirements of Article 6.9.491 This finding of the Panel has 
not been challenged on appeal. The Panel also found that the parties " d[id] not disagree as to 
whether the other  facts at issue are ' essential facts under consideration'  within the meaning of 
Article  6.9"492 and that " the p arties d[id]  not disagree that the essential facts in question were not 
disclosed in their entiret y to the two interested parties".493 Furthermore, the Panel found that the 
draft investigation report  constitutes Russia's disclosure under Article 6.9.494 These find ings of the 
                                                
484 Panel Report, para. 7.269.  
485 Panel Report, para. 7.270.  
486 In particular, we do not need to address Russia' s claim that, by adding  paragraph 7.270 in the Final 
Report, the Panel acted inconsistently with  Articles 7 and 15.2 of the DSU. We also do not need to address 
Russia 's claim that  the Panel erroneously found that "the actual import volumes and the weighted average 
import price o f LCVs produced by Daimler AG and Volkswagen AG, respectively, were not properly treated as 
confidential."  (Russia's appellant's submission, paras. 99, 101-102, and 108)  
487 European Union's appellee's submission, para. 172.  
488 See Appellate Body Reports, EC and certain member States – Large Civil Aircraft , para. 1178; 
US ‒ Large Civil Aircraft (2nd complaint) , para. 1351; EC – Asbestos , para. 78.  
489 See Appellate Body Reports, Australia – Salmon , paras. 209, 241, and 255; Korea – Dairy , paras. 91 
and 102; US – Large Civil Aircraft (2nd complaint) , para. 653; US – Section 211 Appropriations Act , para. 343; 
EC – Asbestos , paras. 78 -79; China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.135; 
US ‒ Anti-Dumping  Methodologies (China) , para. 5.164.  
490 See Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 
5.224; EC ‒ Seal Products , paras. 5.63 and 5.69; US – Anti-Dumping Methodologies (China) , para. 5.184. 
491 Panel Report, para. 7.263.  
492 Panel Report, para. 7.265.  
493 Panel Report, para. 7.265.  The Panel noted that, instead, Russia considered  that the information 
allegedly not disclosed was subject to confidentiality requirements.  (Ibid.)  
494 Panel Report, para. 7.260.  WT/DS479/AB/R  
 
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Panel are not challenged on appeal. We will therefore examine the draft investigation report  to 
determine whether we can complete the analysis, as requested by the European  Union.  
5.206.   We note that, in certain instances, the relevant information is marked as confidential and 
is not disclosed at all  in the draft investigation report . In particular, these instances concern  
information with respect to: (i) the actual volumes of subject products  imported  into the 
Custo ms Union by Volkswagen  AG and Daimle r AG that were used for the purpose of calculating  
the normal value and the export price495; and (ii) the weighted -average export price for subject 
products exported by Volkswagen AG and by Daimler AG  into the Customs Union .496 In some other 
instances, the draft investigation  report does not disclose the relevant actual figures and instead 
provides either information on a change in  relation to the preceding period in percentage terms or 
another uninformative summary. In particular, this concerns the following essential facts: (i) the 
actual figures that show the domestic consumption, production and sales volumes, and the 
evolution o f the profits and profitability rate of Sollers in 2011497; (ii) the profit/loss of Sollers from 
the sale of LCVs in the Customs Union in 2011498; and (iii) the profitability rate of Sollers from the 
sale of LCVs in the Customs Union.499 Finally, certain essenti al facts were entirely omitted from the 
draft investigation r eport. These are the following:  (i) the return on investments, actual and 
potential negative effects on cash flow , and the ability to raise capital or investments500; 
(ii) information on the relati on of the volume of export s to the total volume of production501; 
(iii) the figures for the production capacity of the domestic industry502; (iv) the figures for the 
structure of the costs of production of the domestic industry503; and (v) the figures for the 
numbers and salaries of staff.504 Therefore, having reviewed the draft investigation  report, we 
conclude that the DIMD did not disclose the relevant essential facts , listed in  items (d) and (f) to 
(o) of  Table 12 in paragraph 7.278 of  the Panel Report, underly ing its final determination that 
would permit the interested parties  to understand what data ha d been used by the DIMD and  to 
defend their interests .  
5.207.   We also note that, in response to questioning at the hearing, Russia indicated that the 
information concerning the weighted average export prices of LCVs produced by Daimler AG and 
Volkswagen AG505 was disclosed in the additional disclosure letter.506 The Panel did not refer to the 
additional disclosure letter in its analysis under Article 6.9.  We do not con sider that there are 
sufficient factual findings by the Panel and uncontested evidence on the Panel  record that would 
allow us to complete the analysis and rule on whether Russia disclosed the information concerning 
the weighted average export prices of LC Vs produced by Daimler AG and Volkswagen AG.  
5.208.   On the basis of the above, we find that the DIMD acted inconsistently with Article 6.9 of 
the Anti -Dumping Agreement by failing to disclose the essential facts contained in items (d)  and 
(f) to (o) of Table 12 i n paragraph 7.278 of the Panel Report.507 
                                                
495 Panel Report, para. 7.278, Table 12, item (d); dr aft investigation report (Panel Exhibits EU -16 and 
RUS-10), pp. 38 -39. 
496 Panel Report, para. 7.278, Table 12, item (j); d raft investigation r eport ( Panel Exhibits EU -16 and 
RUS-10), p. 39.  
497 Panel Report, para. 7.278, Table 12, items (f ) and (i) ; draft investigation  report ( Panel Exhibits EU -
16 and RUS -10), Tables 4.1.1.1, 4.1.1.2, and 4.2.5.  
498 Panel Report, para. 7.278, Table 12, item (g ); draft investigation r eport ( Panel Exhibits EU -16 and 
RUS-10), Table  4.2.5.  
499 Panel Report, para. 7.278, Table 12, item (h ); draft investigation r eport ( Panel Exhibits EU -16 and 
RUS-10), Table  4.2.5.  
500 Panel Report, para. 7.278, Table 12, item (k ); draft investigation r eport ( Panel Exhibits EU -16 and 
RUS-10), Section 4.2.7.  
501 Panel Report, para. 7.278, Table 12, item (l); draft investigation  report ( Panel Exhibits EU -16 and 
RUS-10), Section 4.1.2.  
502 Panel Report, para. 7.278, Table 12, item (m ); draft investigation  report ( Panel Exhibits EU -16 and 
RUS-10), Table  4.2.3. 
503 Panel Report, para. 7.278, Table 12, item (n ); draft investigation  report ( Panel Exhibits EU -16 and 
RUS-10), Section  4.2.4. 
504 Panel Report, para. 7.278, Table 12, item (o ); draft investigation r eport ( Panel Exhibits EU -16 and 
RUS-10), Section  4.2.6. 
505 Panel Report, para. 7.278, Table 12, item (e ). 
506 EEC Letter No. 14 -176 (Panel Exhibit RUS -18). 
507 Panel Report, para. 7.278.  WT/DS479/AB/R  
 
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5.5.7   Whether  the Panel erred in its interpretation and application of Article  6.9 of the 
Anti-Dumping  Agreement in relation to source s of information  
5.209.   The European  Union claims that the Panel erred in its interpretation and application of 
Article 6.9 of the Anti -Dumping Agreement in finding that a source of data cannot constitute an 
"essential fact under consideration " and that the source of data on import volumes and values in 
the context of  the DIMD's dumping and injury analyses is not an essential fact under consideration 
in this dispute.508 The European  Union notes that, without knowing the source of data, in certain 
cases, it may be "impossible to properly understand the overall 'factual basis'  of the findings, or to 
put the raw data in its proper context".509 Thus, the source of data may very well be an essential 
fact under consideration depending on the circumstances of a case, and the disclosure  of the data  
may be necessary for the interested p arties to defend their interests.510 The European  Union 
submits that the Panel 's error flows from two earlier interpretative errors that it committed . First, 
the European  Union argues that "the Panel incorrectly interpreted Article 6.9 by finding, in general  
terms, that a 'methodology' is not a fact, or an essential fact."511 According to the European  Union, 
this interpretation contradicts the Appellate  Body's findings in China – HP-SSST (Japan) / China – 
HP-SSST (EU)  that certain methodologies, such as an inve stigating authority's methodology for 
calculating the dumping margin, constitute essential facts.512 Second, the European  Union argues 
that the Panel erred in its interpretation of Article 6.9 when it found that only "essential facts 
which are additionally s hown to be 'under consideration'" need  to be disclosed.513 In the 
European  Union's view, this would suggest that "essential facts' and 'facts under consideration' are 
two wholly separate and cumulative criteria for the application of Article 6.9"514, an interp retation 
that would contradict the Appellate  Body's findings in China  – GOES .515 
5.210.   In response, Russia requests us to reject the entirety of the European  Union's claims. 
Russia argues that the Panel correctly interpreted and applied Article 6.9 in accordance w ith the 
Appellate  Body's findings in China – GOES , when it found that "[k]nowledge of the sources of data 
might be useful to establish the credibility of information", but that the sources are not themselves 
essential facts under consideration.516 Russia dra ws a distinction between, on the one hand, the 
facts that are simply "useful" and that need not be disclosed under Article 6.9 and, on the other 
hand, the facts that would "form the basis for the decision to apply [a] definitive measure", be 
"salient for a  contrary outcome", and "ensure the ability of interested parties to defend their 
interest", the disclosure of which is mandated by Article 6.9.517 Moreover, with respect to the 
European  Union's argument regarding methodologies constituting essential facts, Russia submits 
that not all methodologies used by the investigating authority to reach its final determination 
should constitute "essential facts under consideration" under Article  6.9. According to Russia, 
"methodologies applied by the investigating autho rity in its determinations of dumping, injury and 
causality" would constitute "essential facts under consideration", while "methodologies of 
presenting facts used by the investigating authority in preparing the disclosure document" would 
not.518 
5.211.   We note that  the European  Union essentially takes issue with three aspec ts of the Panel's 
analysis: (i)  the Panel's statement that Article 6.9 does not require the disclosure of methodolog ies 
because they do not constitute "facts" or "essential facts"519; (ii) the Panel 's statement that 
Article  6.9 does not require the disclosure of "every 'essential fact'", but of those that are "under 
                                                
508 European Union's other appellant's submission, para s. 191-203.  
509 European Union's other appellant's submission, para. 201.  
510 European Union's other appellant's submission, para. 19 8.  
511 European Union's other appellant's submission, para. 192 (referring to Panel Report, para.  7.256).  
512 European Union's other appellant's submission, para. 192 (referring to Appellate Body Report s, 
China  – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131; Panel Report s, China  – HP-SSST 
(Japan)  / China – HP-SSST (EU) , para. 7.238).  
513 European Union's other appellant's submission, para. 193 (referring to Panel Report, para.  7.256).  
514 European Union's other a ppellant's submission, para. 193.  
515 According  to the European Union,  the Appellate Body report in  China – GOES  rather indicates that 
the term "essential facts under consideration" must be read in a holistic manner, so that "essential facts" are a 
subset of "facts under consideration". (European Union 's other appellant's submission, paras.  193-194 
(referring to Appellate Body Report, China – GOES , para.  240))  
516 Russia's appellee's submission, paras. 199 -201 (quoting Panel Report, para. 7.257).  
517 Russia's appellee's submission, para. 201.  
518 Russia's a ppellee's submission, para. 210.  
519 Panel Report, para. 7.256 .a. WT/DS479/AB/R  
 
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consideration"520; and (iii)  the Panel's finding that the source of information in itself and the source 
of information with respect to import volumes and values used by the DIMD in this case do not 
constitute essential facts.521 
5.212.   Above , we have set out our understanding of the legal standard under Article 6.9 of the 
Anti-Dumping Agreement. In particular, we recall that the scope of Article  6.9 "cover[s] 'facts 
under consideration', that is, those facts on the record that may be taken into account by an 
authority in reaching a decision as to whether or not to apply definitive anti -dumping … duties".522 
Whether a particular fact is essential depend s on the nature and scope of the particular 
substantive obligations, the content of the particular findings needed to satisfy the substantive 
obligations at issue, and the factual circumstances of each case.523 For example, with respect to 
the determination of dumping, an investigating authority is expected "to disclose, inter alia , the 
home market and export sales being used, the adjustments made thereto, as well as the 
calculation methodology applied by the investigating authority to determine the margin of  
dumping."524 The purpose of the disclosure of essential facts is to enable the interested parties to 
defend their interests.525  
5.213.   We first examine whether, as the European  Union contends, the Panel found that "[n]ot 
every 'essential fact' is required to be dis closed", but only those essential facts that are 
additionally shown to be "under consideration".526 We recall that  the relevant part of paragraph 
7.256 .c of the Panel  Report reads as follows:  
Not every "essential fact" is required to be disclosed. Article  6.9 requires the 
disclosure of "essential facts under consideration ": the "facts on the record that may 
be taken into account by an authority in reaching a decision as to whether or not to 
apply definitive anti -dumping and/or countervailing duties."[*]527 
[*fn original]461 Appellate  Body Report, China – GOES , para. 240.  
5.214.   In this statement, the Panel appears to have summarized its understanding of the relevant 
Appellate  Body's statements  in China – GOES  which read as follows:  
At the heart of Article [] 6.9 … is t he requirement to disclose, before a final 
determination is made, the essential facts under consideration which form the basis 
for the decision whether or not to apply definitive measures. … [Article 6.9 does] not 
require the disclosure of all the facts th at are before an authority but, instead, those 
that are "essential"; a word that carries a connotation of significant, important, or 
salient.528 
5.215.   The Appellate  Body explained that Article 6.9 of the Anti -Dumping Agreement does "not 
require the disclosure of all the facts that are before an authority but, instead, those that are 
'essential'".529 The Appellate  Body understood the essential facts to be those that are "under 
consideration" and form the basis for the decision whether to apply definitive measures. Th e 
Appellate  Body thus read the term s "essential facts under consideration " and  "which form the basis 
for the decision whether to apply definitive measures " together . Subsequently, the Appellate  Body 
has used the term "essential facts" as a shorthand in spe cifying that it understood this term  to 
refer to "those facts that are significant in the process of reaching a decision as to whether or not 
to apply definitive measures."530 
                                                
520 Panel Report, para. 7.256 .c. 
521 Panel Report, para. 7.257 .a and  b. 
522 Appellate Body Report, China – GOES , para.  240. 
523 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.130 . 
524 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131.  
525 Appellate Body Report, China – GOES , para.  240. 
526 European Union's other appellant's submission, para. 193 (quoting Panel Report, para. 7.256.c).  
527 Panel Report, para. 7.256.c. (emphasis original)  
528 Appellate Body Report , China – GOES , para. 240. (emphasis original)  
529 Appellate Body Report , China – GOES , para. 240. (emphasis original)  
530 Appellate Body Report , China – GOES , para. 240.  WT/DS479/AB/R  
 
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5.216.   In making  the statement challenged by the European Union , the Panel sought to refl ect the 
Appellate  Body's understanding that Article 6.9 does "not require the disclosure of all the facts that 
are before an authority but, instead, those that are 'essential'".531 In rephrasing the 
Appellate  Body's statement in China – GOES , the Panel may have cursorily stated that "[n]ot every 
'essential fact' is required to be disclosed"532, instead of saying that not every fact  is required to be 
disclosed, but only those that are under consideration  and form the basis for the decision whether 
to apply defi nitive measures.  We further note that, in paragraph 7.256 of the Panel  Report, the 
Panel correctly reflected the legal standard under Article 6.9 by stating that it " requires the 
disclosure of 'the essential  facts under consideration  which form the basis f or the decision whether 
to apply definitive measures."533 Accordingly, we have reservations with the Panel statement at 
issue to the extent that the Panel may be read as having distinguished between two categories of 
information: (i) essential facts (some of  which are not required to be disclosed); and 
(ii) essential  facts under consideration (that are required to be disclosed). Nevertheless, given that 
the Panel correctly expressed its understanding of this aspect of the legal standa rd under 
Article  6.9 else where in its Report, we do not consider that the Panel's rephrasing of the 
Appellate  Body's statement in China – GOES , in itself, amounts to a reversible error of law.  
5.217.   In addition , the European  Union contends that the Panel erred in finding that a 
methodol ogy does not constitute an "essential fact ".534 Specifically, the European  Union takes 
issue with the Panel's statement that "Article  6.9 requires the disclosure of facts: the information 
underlying a decision rather than the reasoning, calculation or methodology that led to a 
determination."535 In this statement, the Panel juxtaposed facts, which may be subject to the 
disclosure requirements under Article 6.9, with the reasoning, calculation, and methodology, which 
are not, in the Panel's view, "facts" a nd thus cannot be subject to Article 6.9 requirements.  
5.218.   As we have noted, in China – HP-SSST (Japan) / China – HP-SSST  (EU), the 
Appellate  Body stated that, with respect to the determination of dumping, an investigating 
authorit y is expected " to disclose, inter alia , the home market and export sales being used, the 
adjustments made thereto, and the calculation methodology applied by the investigating authority 
to determine the margin of dumping."536 The Appellate  Body thus found  that, in that dispute,  the 
calculation methodology used by the investigating authority to determine the margin of dumping 
constituted an essential fact within the meaning of Article 6.9 of the Anti -Dumping Agreement. We 
note, in this respect, that disclosure of the data underlying a dum ping determination alone may 
not enable an interested party to defend its interests, unless that interested party was also 
informed of the methodology applied by the investigating authority to determine the margin of 
dumping. At the same time, not all meth odologies used by an investigating authority may 
constitute essential facts within the meaning of Article 6. Rather, only those methodologies the 
knowledge of which is necessary for the participants to understand the basis of the investigating 
authority's decision and to defend their interests would be essential facts under Article 6.9. An 
assessment of whether a particular methodology constitutes an essential fact should therefore be 
made on a case -by-case basis. Consequently, we disagree with the Panel's statement to the extent 
that the Panel considered that a methodology cannot constitute an "essential fact " under 
Article  6.9 of the Anti -Dumping Agreement.  
5.219.   We next turn to  the European  Union 's argument that the Panel erred in its interpretation 
and application of Article 6.9  of the Anti -Dumping Agreement  by finding that the source of 
information, in general, and the source data concerning import volumes and values in the present 
case are not essential f acts.537 We recall that  the Panel stated  in this respect  that, "[i]n itself, the 
source of data is not an essential fact under  consideration ."538 The Panel further observed that 
"[k]nowledge of the sources of data might be useful to establish the credibility o f information used 
                                                
531 Appellate Body  Report , China – GOES , para. 240. (emphasis original)  
532 Panel Report, para. 7.256.c.  
533 Panel Report, para. 7.256. (emphasis original)  
534 European Union's other appellant's submission, para. 192 (referring to Panel Report, para. 7.256.a).  
535 Panel Report, para. 7.256.a (referring to Panel Report, China – Broiler Products , para. 7.90). 
(emphasis original)  
536 Appellate  Body Report s, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.131.  
537 European Union's other appellant's submission, par a. 195.  
538 Panel Report, para. 7.257.a. (emphasis original)  WT/DS479/AB/R  
 
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by investigating authorities, but the sources of data are not themselves essential facts under 
consideration."539  
5.220.   We recall  that the scope of Article 6.9 " cover[s] 'facts under consideration', that is, those 
facts on the record that may b e taken into account by an authority in reaching a decision as to 
whether or not to apply definitive anti -dumping … duties."540 An assessment of whether a 
particular fact is essential will depend on the nature and scope of the particular substantive 
obligations, the content of the particular findings needed to satisfy the substantive obligations at 
issue, and the factual circumstances of each case.541 The Appellate  Body has previously 
emphasized that the disclosure  of essential facts  should " permit an i nterested party to understand 
the basis for the decision whether or not to apply definitive measures" and enable an interested 
party to defend itself.542 In certain circumstances, knowledge of the data itself may not be 
sufficient to enable an interested par ty to properly defend itself, unless that party is also informed 
of the source of such data and how it was used by the investigating authority. Thus, knowing the 
source of data may be pivotal to the ability of an interested party to defend itself. In parti cular, 
knowing the source of information may enable the party to comment on the accuracy or reliability 
of the relevant information and allow it to propose alternative sources for that information . This 
may be particularly important in the circumstances wh ere the investigating authority uses data 
that was not submitted by an interested party, but obtained from other sources ( e.g. from a 
customs or statistical database).  
5.221.   On the basis of the above, we disagree with the Panel's general statement that sources of 
data are not essential facts within the meaning of Article 6.9 of the Anti -Dumping Agreement.543 
We note that the Panel relied on this interpretation as the reason for finding, in paragraph  7.257 .a 
and b of the Panel Report, that the European Union had  failed to demonstrate that the source of 
information concerning import volumes and values, and volumes of dumped imports used by the 
DIMD in the context of its dumping and injury determinations, constitute s an essential fact under 
Article 6.9 of the Anti -Dumping Agreement.544 Accordingly, we also disagree with the Panel's 
conclusion with respect to the source of information concerning import volumes and values, and 
volumes of dumped imports used by the DIMD.  
5.222.   For all these reasons, w e find that the Panel erre d in its interpretation of Article 6.9 of the 
Anti-Dumping Agreement as to whether methodologies and sources of information may qualify as 
"essential facts " under Article 6.9 of the Anti -Dumping Agreement, as set out in paragraphs 
7.256 .a and 7.257 .a of the Panel Report. The Panel also erred in the subsequent application of its 
general understanding that sources of information do not constitute essential facts to the facts of 
this case , as set out in paragraph 7.257 .a and  b of the Panel Report.545 We therefor e reverse  the 
Panel's findings, in paragraphs 7.256 .a and 7.257 .a and  b, and the Panel's conclusions, in 
paragraph s 7.278 , Table 12 , items (a) and (b), and 8.1 .h.i of the Panel Report, as they relate to 
items (a) and (b) of Table 12.  
5.5.8   Completion  of the analysis  
5.223.   In the event  that we reverse the Panel's findings, the European  Union requests us to 
complete the analysis and find that, "by failing to disclose the source of information concerning 
import volumes and values in the context of its dumping and injury analyses, the DIMD acted 
inconsistently with Article 6.9" of the Anti -Dumping Agreement.546  
5.224.   As noted above, the Appellate  Body has completed the analysis with a view to facilitating 
the prompt settlement and effective resolution of  the dispute.547 The Appellate  Body has done so 
where the factual findings in the panel report, undisputed facts on the panel record, and admitted 
                                                
539 Panel Report, para. 7.257.a.  
540 Appellate Body Report, China – GOES , para. 240.  
541 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.130 . 
542 Appellate Body Report, China – GOES , para. 240.  
543 Panel Report, para. 7.257.a.  
544 Panel Report, para. 7.257 .b. 
545 Panel Report, para. 7.257 .b. 
546 European Union's other appellant's submission, para. 204. 
547 See Appellate Body Reports, EC and certain member States – Large Civil Aircraft , para. 1178; 
US ‒ Large Civil Aircraft (2nd complaint) , para. 1351; EC – Asbestos , para. 78.  WT/DS479/AB/R  
 
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facts provided it with a sufficient basis for conducting its own analysis.548 The Appellate  Body has 
declined to complete the an alysis when the complexity of  the issues  raised , the absence of full 
exploration of  the issues before the panel, and considerations pertaining to  the parties' due 
process rights  did not permit it to do so .549 
5.225.   Turning to the case before us, we recall that, be fore the Panel, the European  Union argued 
that the  DIMD's  draft investigation r eport did not provide  the source of the information concerning 
the volume and value of LCV imports, which formed the basis for the DIMD's decision to apply 
definitive measures, with respect to the dumping determination.550 Having considered that sources 
of information in general do not constitute essential facts, the Panel found that the source of the 
information concerning the import volumes and values used by the DIMD in its dump ing 
determination was not an essential fact.551 The Panel did not engage further with the 
European  Union's and Russia's arguments and did not examine the contents of the draft 
investigation r eport.  Consequently, the Panel proceedings were conducted without t he Panel 
sufficiently exploring with the parties  the issue of whether the source s of information of import 
volumes and values used by the DIMD in its dumping determination  constituted essential facts and 
were actually disclosed in this case , and we thus la ck the benefit of sufficient elaboration of this 
issue in the Panel Report.552 
5.226.   On appeal, the participants agree that the DIMD disclosed essential facts to Volkswagen 
AG and Daimler AG by means of the draft investigation  report.553 Moreover, in its appellee's 
submission and in resp onse to questioning at the oral hearing, Russia referred to a letter dated 
11 April 2013 sent by the DIMD to  ZAO Mercedes -Benz RUS and Volkswagen Group RUS as an 
additional source of disclosure of essential facts.554 The European  Union did not refer to the 
additional disclosure letter in its submissions. In response to questioning at the oral hearing, the 
European  Union indicated that it accepted that it was a letter sent by the DIMD to one of the 
investigated compani es.555 As a result, it is not clear whether the participants agree on whether 
the additional letter is a disclosure document.  
5.227.   As noted, the Panel's inquiry into the issue of whether the DIMD had to disclose the source 
of information concerning the import vo lumes and values of LCVs was limited . Having considered 
that sources of information in general do not constitute essential facts, the Panel did not engage 
further with the European  Union's arguments. In these circumstances, we do not consider  that 
there ar e sufficient factual findings by the Panel and uncontested evid ence on the Panel  record 
that would allow us to complete the analysis and rule on whether the DIMD had to, and in fact did, 
disclose the source of information concerning import volumes and valu es that it used in its 
dumping and injury determinations.  
5.5.9   Conclusions  
5.228.   In relation to Russia's appeal, we note that an inconsistency under Article 6.5 of the 
Anti-Dumping  Agreement with respect to the confidential treatment of information that constitutes 
essential facts may not be presumed to result in an inconsistency with the requirements that apply 
to essential facts under Article 6.9 of the Anti -Dumping Agreement. The inquiry under Article  6.9 is 
separate and distinct  from the assessment under Article 6 .5 of the Anti -Dumping Agreement.  
                                                
548 See Appellate Body Reports, Australia – Salmon , paras. 209, 241, and 255; Korea – Dairy , paras. 91 
and 102; US – Large Civil Aircraft (2nd complaint) , para. 653; US – Section 211 Appropriations Act , para. 343; 
EC – Asbestos , paras. 78 -79; China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.135; 
US ‒ Anti-Dumping  Methodologies (China) , para. 5.164.  
549 See Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 
5.224; EC ‒ Seal Products , paras. 5.63 and 5.69; US – Anti-Dumping Methodologies (China) , para. 5.184; 
EC ‒ Export Subsidies on Sugar , para. 339 . 
550 European Union's first written submission to the Panel, paras. 430 -431 (referring to Tables 3.2, 3.3, 
and 3.4 of the draft investigation report).  
551 Panel Report, para. 7.257 .a and  b. 
552 In its other appellant's submission, the European Union indicated that it "has explained, and the 
Panel has largely ignored, why the source of the data pertaining to import volumes and values used by the 
DIMD was an essential fact under consideration". (European Union's other appellant's submission, para. 199)  
553 Russia's and European Union's responses to questioning at the oral hearing.  
554 Russia's appellee's submission, para. 186 (referring to  EEC Letter No. 14 -176 (Panel Exhibit 
RUS-18)), response to questio ning at the oral hearing.  
555 European Union's response to questioning at the oral hearing.  WT/DS479/AB/R  
 
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Regardless of whether or not the essential facts at issue were properly treated as confidential 
under Article  6.5, a panel must examine whether any disclosure made – including those made 
through non -confidential summaries under Article 6.5.1 of the Anti -Dumping Agreement – meets 
the legal standard under Article  6.9. We find that the Panel erred in its interpretation of Article 6.9 
of the Anti-Dumping  Agreement by considering that, where essential facts are not properly  treated 
as confidential in accordance with Article 6.5, this automatically lead s to an inconsistency with 
Article 6.9. We also find that t he Panel erred in finding, in paragraph 7.269 of the Panel Report, 
that, "to the extent that the DIMD failed to disclose i nformation that was not properly treated as 
confidential …, it acted inconsistently with Article  6.9."556 In addition, with respect to the 
information from the electronic customs database, we find that the Panel erred in finding, in 
paragraph 7.270 of the Panel Report , that, "[t]o the extent that the DIMD failed to disclose 
information that was not properly treated as confidential, it acted inconsistently with Article 6.9" of 
the Anti -Dumping Agree ment.557 Consequently, we reverse  the Panel's findings, in paragraph 
7.268, as read in light of paragraph 7.269 , and in paragraphs 7.269, 7.270, and 7.278 , Table 12 , 
as well as  the Panel's conclusion, in paragraph 8.1 .h.ii of the Panel Report, that the DIMD acted 
inconsistently with Article 6.9  of the Anti -Dumping Agreement  by failing to inform all interested 
parties of the information listed in items (d) to (o) of Table 12.  
5.229.   In relation  to the European  Union's request that we complete the analysis and find th at the 
DIMD acted inconsistently with Article 6.9  of the Anti -Dumping , having examined the draft 
investigation r eport, we find that the DIMD acted inconsistently with Article 6.9 by failing to 
disclose the essential facts contained in items (d)  and (f) to (o) of Table 12 in paragraph 7.278 of 
the Panel Report.  
5.230.   In relation  to the European  Union's appeal, we consider that not all  methodologies used by 
an investigating authority in a particular investigation can constitute essential facts within the 
meaning o f Article 6.9 of the Anti -Dumping Agreement. Rather, only those methodologies the 
knowledge of which is necessary for the participants to understand the basis of the investigating 
authority's decision and to defend their interests may be essential facts un der Article 6.9 of the 
Anti-Dumping Agreement. An assessment of whether a particular methodology constitutes an 
essential fact should therefore be made on a case -by-case basis. Moreover, in certain 
circumstances, know ledge of  the data itself may not be sufficient to enable an interested party to 
properly defend itself, unless that party is also informed of the source of such data and how it was 
used by the investigating authority. In particular, knowing the source of informati on may enable a 
party to comment on the accuracy or reliability of the relevant information and allow it to propose 
alternative sources of that information . This may be particularly important in the circumstances 
where the investigating authority uses data  that was not submitted by an interested party, but 
obtained from other sources ( e.g. from a customs or statistical database). Thus, in certain 
circumstances , the  source of the data may be an essential fact under Article 6.9 of the 
Anti-Dumping Agreement.  
5.231.   We therefore find that the Panel erred in its interpretation of Article 6.9 of the 
Anti-Dumping Agreement concerning  whether  methodologies and sources of information  may 
qualify  as essential facts , as set out in paragraphs  7.256 .a and 7.257 .a of the Panel Report. We 
also find that the  Panel erred in the subsequent application of its general understanding that 
sources of information do not constitute essential facts to the specifics of this case , as set out  in 
paragraph 7.257.a and b  of the Panel Report. Con sequently, we reverse  the Panel's findings, in 
paragraphs 7.256 .a and 7.257 .a and b, and the Panel's conclusions, in paragraph s 7.278 , 
Table  12, items  (a) and (b), and 8.1 .h.i of the Panel Report , as they relate to items (a) and (b) of 
Table 12.  
5.232.   In relation  to the European  Union's request that we complete the analysis and find that , by 
failing to disclose  the source of information concerning import volumes and values, the DIMD acted 
inconsistently with Article 6.9 of the Anti -Dumping Agreement,  we do  not consider  that there are 
sufficient factual findings by the Panel and uncontested evidence on the Panel record that would 
allow us to complete the analysis.  
                                                
556 Panel Report, para. 7.269.  
557 Panel Report , para. 7.270.  WT/DS479/AB/R  
 
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6  FINDINGS A ND CONCLUSIONS  
6.1.  For the reasons  set out in this Report, the Appellate  Body makes the f ollowing findings and 
conclusions.  
6.1  Definition of domestic industry  
6.2.  Article  4.1 of the Anti -Dumping  Agreement provides that the "domestic industry" is composed 
of domestic producers of the like product. I f an investigating authority were permitted to leave 
out, from the definition of domestic industry , domestic producers of the like product that provided , 
in the authority's view,  allegedly  deficient information , a material risk of distortion would  arise in 
the injury analysis . This is because the non -inclusion of those producers could make the definition 
of the domestic industry no longer representative of total domestic production.  We do not consider 
that Article  3.1 of the Anti -Dumping  Agreement  allows investigating authorities to leave domes tic 
producers of the like product out of the definition of domestic industry because of alleged  
deficienc ies in the information submitted by those producers.  The Anti -Dumping  Agreement, in 
particular Article  6, sets out tools to address the inaccuracy and incompleteness of information.  
Thus, in our view, the Panel's interpretation of Article  4.1 does not create a conflict between the 
obligation s in Article  3.1 and  Article  4.1 of the Anti -Dumping Agreement . We also do not read the 
Panel's interpretation of A rticle 4.1 as having reduced the term "major proportion" to inutility.  
Moreover, we  do not consider that Articles  3.1 and 4.1 prevent an investigating authority from 
initially examining the information submitted by domestic producers before defini ng the do mestic 
industry to the extent that the information collected is pertinent to defining the domestic industry.  
We do not consider that the Panel reach ed its finding solely on the basis of the fact that the DIMD 
reviewed the information submitted by Sollers a nd GAZ before defining the domestic industry.  In 
light of the specific circumstances of this case, we find no reversible error in the Panel's 
interpretation and application of Articles  4.1 and 3.1 of the Anti -Dumping  Agreement.  
a. We therefore find that the P anel did not err in its interpretation and application of 
Articles  3.1 and 4.1 of the Anti -Dumping  Agreement in finding that the DIMD acted 
inconsistently with these provision s in its definition of "domestic industry".   
b. Consequently, we uphold  the Panel's findings in paragraphs  8.1.a and 8.1.b of the Panel 
Report.  
6.2  Price suppression  
6.3.  In relation to Russia's appeal under Articles  3.1 and 3.2 of the Anti -Dumping  Agreement, the 
fact that several factors or elements could potentially influence the rate of return used to construct 
the target domestic price does not allow an  investigating  authority to disregard evidence regarding 
any particular factor or element that calls into question the explanatory force of dumped imports 
for significant price suppression under Article  3.2 of the Anti -Dumping  Agreement. We thus 
disagree with Russia's argument that the consideration of evidence regarding factors or elements – 
such as , in this dispute,  the financial crisis – that call into question the explanatory force of 
dumped i mports for the existence of price suppression would lead to a biased analysis simply 
because there could be other factors that could also potentially affect the selected rate of return. 
In addition, we do not consider that the Panel's interpretation of Art icle 3.2 suggests that an 
investigating authority is required to conduct a non -attribution analysis of all known factors that 
may be causing injury  to the domestic industry in the context of its price suppression analysis. The 
inquiries under Article  3.5 and under Article  3.2 of the Anti -Dumping Agreement have distinct 
focuses . The analysis under Article 3.5 focuses on the causal relationship between dumped imports  
and injury  to the domestic industry. In contr ast, the analysis under Article  3.2 focuses on the 
relationship between  dumped imports and  domestic prices .  
a. We therefore find that the Panel did not err in its interpretation and application of 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement by finding that the DIMD acted 
inconsistently with these p rovisions because it failed to take into account the impact of 
the financial crisis in determining the rate of return used to construct the target domestic 
price for its price suppression analysis.  WT/DS479/AB/R  
 
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b. Consequently, we uphold  the Panel's findings in paragraphs  7.64-7.67 and 8.1.d.i of the 
Panel Report.558 
6.4.  In relation to the European  Union's claims under Article  11 of the DSU, we consider that the 
Panel's findings concerning the DIMD's methodology, the long -term price trends, and  the degree of 
price suppression are not coherent and consistent with the Panel's earlier finding that the manner 
in which the DIMD used the 2009 rate of return to determine the target domestic price was 
WTO-inconsistent .  
a. We therefore  find that the Panel acted inconsistently wit h its obligations under Article  11 
of the DSU.  
b. Consequently, we reverse  the Panel's findings in paragraphs 7.77 -7.81, 7.104 -7.107 , 
8.1.d.iii, and 8.1.d.iv of the Panel Report . 
6.5.  Having found that the Panel acted inconsistently with its obligations under Article  11 of the 
DSU, we do not examine the European  Union's conditional claim that the Panel erred in its 
interpretation and application of Articles  3.1 and 3.2 of the Anti -Dumping Agreement in finding 
that the DIMD's methodology ex plained that the effect of the dumped imports was to supress 
domestic prices. We also do not examine the European Union's request for us to complete the 
analysis and find that the DIMD acted inconsistently with Articles 3.1 and 3.2 by failing to consider 
whether the dumped imports have explanatory force for the existence of significant price 
suppression.  
6.6.  In relation to the European  Union's claim under Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement concerning whether the domestic market could absorb furt her price 
increases, we consider that an investigating authority must ensure that its price suppression 
methodology under Article  3.2 assesses  price increases "which otherwise would have occurred" in 
the absence of dumped imports. In addition, an investiga ting authority is required to consider 
whether dumped imports have "explanatory force" for the occurrence of significant suppression of 
domestic prices. Contrary to the European  Union's contention, we do not read the Panel to have 
added a requirement to Articles 3.1 and 3.2 that interested parties must have explicitly questioned 
the ability of the market to absorb additional price increases for an investigating authority to be 
required to consider this question. Thus, in this respect, we do not find that th e Panel erred in its 
interpretation of Articles 3.1 and 3. 2 of the Anti -Dumping Agreement. We fault the Panel, 
however, for having itself undertaken the assessment of relevant evidence on the DIMD's 
investigation record.  
a. For these reasons, we find that th e Panel erred in its application of Articles  3.1 and 3.2  
of the Anti -Dumping Agreement in  finding that the evidence on the investigation record 
did not require the DIMD to examine whether the market  could absorb further price 
increases.  
b. Consequently, we reverse  the Panel's findings in paragraphs 7.87 -7.91 and 8.1.d.iii  of 
the Panel Report . 
c. Having  reversed  the Panel's finding at issue , we complete the analysis and find that the 
DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping  Agreemen t by 
failing to examine evidence relevant to whether the market would accept additional 
domestic price increases.  
6.3  Confidential investigation report  
6.7.  In relation to Russia's contention  that, on appeal, the European  Union misrepresents the 
arguments it made before the Panel, we consider that , before the Panel, the European  Union 
raised the issue of  whether certain parts of the confidential investigation report formed part of the 
                                                
558 Having upheld these Panel findings, we do not examine Russia's conditional request concerning 
paragraphs  7.181 -7.182 and 8.1.f.i of the Panel  Report  regarding the consequential inconsistency with 
Articles  3.1 and 3.5 of the Anti -Dumping  Agreement.  WT/DS479/AB/R  
 
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investigation record at the time the final determination to impose the anti -dumpi ng measure  was 
made. On appeal , the European  Union faults the Panel for not having engaged with that same 
argument.  
6.8.  We recall  that the confidential investigation report was submitted by Russia together with its 
first written submission to the Panel  and tha t the European  Union could not have been  aware of 
the contents  of the confidential investigation report before the receipt of Russia's first written 
submission.  We note the difficulty the European  Union had in the present case in obtaining and 
providing ev idence to the Panel in support of its contention that the relevant parts of the 
confidential investigation report may not have formed part of the investigation record.  In our view, 
when faced with a claim that a report , or parts of it , on the basis of which an anti -dumping 
measure was imposed  did not form part of the investigation record, a panel has to take certain 
steps to assess objectively and assure itself of the validity of such report , or its parts , and whether 
or not it formed p art of the contemporaneous written record of the investigation. In the present 
dispute, the Panel did not seek to assure itself that the relevant parts of the confidential 
investigation report formed part of the investigation record at the time the determi nation to 
impose the anti -dumping measure  was made . 
a. On the basis of the above, we find that the Panel acted inconsistently with Article 11 of 
the DSU and Article 17.6 of the Anti-Dumping  Agreement by relying, in its examination 
of the European  Union 's clai ms under Articles 3.1 and 3.4 of the Anti-Dumping  
Agreement, on the confidential investigation report without properly assuring itself of its 
validity, that is to say, of whether the relevant parts of  it formed part of the 
investigation record  at the time the determination to impose the anti -dumping measure 
was made .  
b. Consequently, we reverse  the Panel's intermediate finding, in paragraphs  7.165 and 
7.166 of the Panel Report, that it could base its analysis of the European  Union's claims 
concerning the three injury factors under Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement on the confidentia l investigation report.  
c. We also reverse  the Panel's subsequent analysis, contained in paragraphs 7.166  to 
7.171, and the Panel's ultimate finding, in paragraph s 7.172, 7. 173.i, and 8.1 .e.x of the 
Panel Report, that the European  Union had failed to establish that the DIMD acted 
inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping Agreement by failing to 
examine the three injury factors at issue, namely: (i) the domestic industry's return on 
investments ; (ii) the actual and potential effects on cash flow ; and (iii) the ability to 
raise capital or investments . 
6.9.  In relation to the European  Union's request for completion of the analysis, in light of the 
absence on the Panel record of a discernible attempt by the Panel to assure itself of whether 
certain parts of the confidential investigation report formed part of the investigati on record at the 
time the determination to impose the anti -dumping measure was made , we are not in a position to 
decide whether these parts of the confidential investigation report formed part of the investigation 
record at the time the determination was m ade. Accordingly, we cannot determine whether we can 
rely on the confidential investigation report in  the assessment of the European  Union's claims 
under Articles  3.1 and 3.4 of the Anti-Dumping  Agreement . In these circumstances, we cannot  
complete the ana lysis on the basis of the non -confidential investigation report as requested by the 
European  Union . 
6.4  Related dealer  
6.10.   In relation  to the European Union's claim that the Panel erred in its interpretation and 
application of Articles  3.1 and 3.4 of the A nti-Dump ing Agreement by finding that the DIMD was 
not required to evaluate  the inventory information of Turin  Auto in examining injury  to the 
domestic industry, we consider that t he Panel's interpretation, which is more nuanced than the 
European  Union 's arguments on appeal suggest, comport s with the text of Article s 3.1 and 3.4 
specifying that the injury analysis concerns all relevant factors and indices having a bearing on the 
state of the domestic industry . In our view, evidence concerning a related dealer that does not 
produce the like product and is thus not included in the "domestic industry " may be pertinent, in a 
particular case, to the evaluation of a relevant economic factor or index having a bearing on the WT/DS479/AB/R  
 
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state of the domestic industry. We ag ree with the Panel that whether an evaluation under 
Article  3.4 requires a consideration of such evidence can be assessed only on a case -by-case basis. 
We do not consider the degree of proximity in the relationship between different entities to be 
disposit ive, without more, of whether evidence relating to the inventory of a related dealer is 
pertinent to the evaluation of "inventories" for purposes of the injury analysis under Article  3.4. 
With respect to the application of Articles 3.1 and 3.4 to the anti -dumping investigation at issue, 
we find that the European  Union does not have a separate and independent basis for its claim that 
the Panel erred in applying these provisions  when analysing the injury factor "inventories" in its 
assessment of the state of Sollers . We agree with the Panel's  finding that the European  Union ha d 
not established that the DIMD acted inconsistently with Articles 3.1 and 3.4 by not considering the 
inventories data of Turin  Auto in the investigation report.  
a. We therefore find that th e Panel did not err in its interpretation and application of 
Articles  3.1 and 3.4 of the Anti -Dumping  Agreement.  
b. Consequently, we uphold  the Panel's finding, in paragraphs  7.122, 7.123, 7.173 .b, and 
8.1.e.ii of the Panel Report, that the European  Union ha d not established that the DIMD 
acted inconsistently with these provisions in its injury analysis by not examining 
inventory information of a dealer related to a domestic producer of the like product , but 
not itself part of the domestic industry.  
6.5  Essential  facts  
6.11.   In relation to  Russia's appeal, we note that an inconsistency under Article 6.5 of the 
Anti-Dumping Agreement with respect to the confidential treatment of information that constitutes 
essential facts may not be presumed to result in an inconsistenc y with the requirements that apply 
to essential facts under Article 6.9 of the Anti -Dumping Agreement. The inquiry under Article  6.9 is 
separate and distinct  from the assessment under Article 6.5 of the Anti -Dumping Agreement. 
Regardless of whether or not the essential facts at issue were properly treated as confidential 
under Article  6.5, a panel must examine whether any disclosure made – including those made 
through non -confidential summaries under Article 6.5.1  of the Anti -Dumping Agreement  – meets 
the legal standard under Article  6.9.  
a. We find that the Panel erred in its interpretation of Article 6.9 of the Anti-Dumping  
Agreement by considering that, where essential facts are not properly  treated as 
confidential in accordance  with Article 6.5, this automatically lead s to an inconsistency 
with Article 6.9. We also find that t he Panel erred in finding, in paragraph 7.269 of the 
Panel Report, that , "to the extent that the DIMD failed to disclose information that was 
not properly treated as confidential …, it acted inconsistently with Article  6.9."559 In 
addition, with respect to the information from the electronic customs database, we find 
that the Panel erred in finding, in paragraph 7.270 of the Panel Report , that, "[t]o the 
extent that the DIMD failed t o disclose information that was not properly treated as 
confidential, it acted inconsistently with Article 6.9" of the Anti -Dumping Agreement.560  
b. Consequently, we reverse  the Panel's findings, in paragraph 7.268, as read in light of 
paragraph 7.269 , and in paragraphs 7.269, 7.270, and 7.278 , Table 12, as well as the 
Panel's conclusion, in paragraph 8.1 .h.ii of the Panel Report, that the DIMD acted 
inconsistently with Article 6.9 of the Anti -Dumping Agreement  by failing to inform all 
interested parties of the  information listed i n items (d) to (o) of Table 12.  
6.12.   In relation  to the European  Union's request that we complete the analysis and find that the 
DIMD  acted inconsistently with Article 6.9  of the Anti -Dumping Agreement , having examined the 
draft investigati on report, we find that the DIMD acted inconsistently with Article 6.9 by failing to 
disclose the essential facts contained in items (d)  and (f) to (o) of Table 12 in paragraph 7.278 of 
the Panel Report.  
6.13.   In relation to the European  Union's appeal, we consider that not all methodologies used by 
an investigating authority in a particular investigation can constitute essential facts within the 
                                                
559 Panel Report, para. 7.269.  
560 Panel Report, para. 7.270.  WT/DS479/AB/R  
 
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meaning of Article 6.9 of the Anti -Dumping Agreement. Rather, only those methodologies the 
knowledge of which is nece ssary for the participants to understand the basis of the investigating 
authority's decision and to defend their interests may be essential facts under Article 6.9 of the 
Anti-Dumping Agreement. An assessment of whether a particular methodology constitutes  an 
essential fact should therefore be made on a case -by-case basis. Moreover, in certain 
circumstances , know ledge  of the data itself may not be sufficient to enable an interested party to 
properly defend itself, unless that party is also informed of the source of such data and how it was 
used by the investigating authority. In particular, knowing the source of informatio n may enable a 
party to comment on the accuracy or reliability of the relevant information and allow it to propose 
alternative sources of that information . This may be particularly important in the circumstances 
where the investigating authority uses data that was not submitted by an interested party, but 
obtained from other sources ( e.g. from a customs or statistical database). Thus, in certain 
circumstances , the source of the data may be an essential fact under Article 6.9 of the 
Anti-Dumping Agreement.  
a. We therefore find that the Panel erred in its interpretation of Article 6.9 of the 
Anti-Dumping Agreement concerning whether methodologies and sources of information 
may qualify as essential facts , as set out in paragraphs 7.256 .a and 7.257 .a of the 
Panel  Report. We also find that the  Panel erred in the subsequent application  of its 
general understanding that sources of information do not constitute essential facts to the 
specifics of this case , as set out  in paragraph 7.257.a and b  of the Panel Report.  
b. Consequently, we reverse  the Panel's findings, in paragraphs 7.256 .a and 7.257 .a and b, 
and the Panel's conclusions, in paragraph s 7.278 , Table 12 , items  (a) and (b), and 
8.1.h.i of the Panel Report , as they relate to items (a) and (b) of Table 12.  
6.14.   In relation to the European  Union's request that we complete the analysis and find that , by 
failing to disclose the source of information concerning import volumes and values, the DIMD acted 
inconsistently  with Article 6.9 of the Anti -Dumping Agreement,  we do not consider  that there are 
sufficient factual findings by the Panel and uncontested evidence on the Panel record that would 
allow us to complete the analysis.  
6.6  Recommendation  
6.15.   The Appellate  Body recommends  that the DSB request Russia to bring its measur es found  in 
this Report, and in the Panel  Report as modified by this Report, to be inconsistent with the 
Anti-Dumping  Agreement and the GATT  1994 into conformity with those Agreements.  
  WT/DS479/AB/R  
 
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