WT/DS397/AB/RW  
 
18 January 2016  
(16-0338)  Page: 1/98  
  Original: English  
 
 EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON 
CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA 
AB-2015-7 
Report of the Appellate Body 
 WT/DS397/AB/RW 
 
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 Table of Contents 
 
1   INTROD UCTION  ........................................................................................................ 11  
2   ARGUMENTS OF TH E PARTICIP ANTS ......................................................................... 15  
3   ARGUMENTS OF THE THIRD PARTIC IPANTS .............................................................. 15  
4   ISSUES RAISED IN THIS A PPEAL .............................................................................. 15  
5   ANALYSIS OF TH E APPELLATE BODY ......................................................................... 17  
5.1   Back ground ............................................................................................................. 17 
5.1.1   Overview of the origin al anti-dumping investig ation .................................................... 17 
5.1.2   Overview of th e review investigation ........................................................................ 19 
5.2   Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement ................................................... 21 
5.2.1   The Panel's terms of reference ................................................................................. 21 
5.2.2   Whether the Panel erred in finding that the European Union acted inconsistently 
with Article 6.5 of the Anti-Dumping Agreement ................................................................... 25 
5.2.2.1   The Panel's findings ............................................................................................. 25 
5.2.2.2   The "good cause" requirement under Article 6.5 of the Anti-Dumping Agreement ......... 26 
5.2.2.3   Whether the Panel erred in its treatment of Pooja Forge's request for 
confidential treatment of the informatio n at issue ................................................................. 27 
5.2.2.4   Whether the Panel erred in finding that the Commission "never" conducted an 
objective assessment of the good cause alleged by Pooja Forge .............................................. 31 
5.2.2.5   Whether the Panel erred in finding that there was an inconsistency in the 
arguments put forward by the European Union ..................................................................... 33 
5.2.2.6   Whether the Panel erred by not conducting its own analysis of the nature of the 
information at issue ......................................................................................................... 34 
5.3   Articles 6.4 and 6.2 of  the Anti-Dumpi ng Agreement...................................................... 36 
5.3.1   The Panel's terms of reference ................................................................................. 36 
5.3.2   Whether the Panel erred in finding that the European Union acted inconsistently 
with Articles 6.4 and 6.2 of the Anti-Dumping  Agreement ...................................................... 38 
5.3.2.1   The Panel's findings ............................................................................................. 39 
5.3.2.2   Whether the Panel erred in finding that the information at issue was not 
confidential for the purposes of its analys is under Article 6.4 of the Anti-Dumping 
Agreement ...................................................................................................................... 40 
5.3.2.3   Whether the Panel erred in finding that the information at issue was "relevant" 
to the presentation of the Chinese produc ers' cases .............................................................. 42 
5.3.2.4   Whether the Panel erred in finding that the information at issue was "used" by 
the Commission in the re view investigation ......................................................................... 44 
5.3.2.5   Whether the Panel erred in finding that the Chinese producers were not 
provided with "timely opportunities" to see the inform ation at issue ........................................ 45 
5.4   Article 6.1.2 of the Anti-Dumping Agreement ................................................................ 46 
5.4.1   The Panel's terms of reference ................................................................................. 46 
5.4.2   Whether the Panel erred in rejecting China's claim under Article 6.1.2 of the 
Anti-Dumping Agreement .................................................................................................. 48 
5.4.2.1   The Panel's findings ............................................................................................. 48 
5.4.2.2   Whether the Panel erred in finding that Pooja Forge was not an interested party 
in the review invest igation at issue ..................................................................................... 49 WT/DS397/AB/RW 
 
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 5.5   Article 2.4 of the Anti-Dumping Agreement .................................................................. 52 
5.5.1   The European Union's appeal under the last sentence of Article 2.4 of the 
Anti-Dumping Agreement .................................................................................................. 52 
5.5.1.1   The Panel's findings ............................................................................................. 52 
5.5.1.2   The procedural requirement of Ar ticle 2.4 of the Anti-Dumping Agreement .................. 54 
5.5.1.3   The European Union's claims unde r the last sentence of Article 2.4 of the 
Anti-Dumping Agreement .................................................................................................. 55 
5.5.1.3.1   Whether the Panel erred in suggesting that the obligation under Article 2.4 of 
the Anti-Dumping Agreement differs based on the methodology used to determine 
normal values .................................................................................................................  56 
5.5.1.3.2   Whether the Panel erred by turnin g the last sentence of Article 2.4 of the 
Anti-Dumping Agreement into a procedural ob ligation requiring the disclosure of "raw 
data" ......................................................................................................................... .... 58 
5.5.1.3.3   Whether the Panel erred in finding that the Commission deprived the Chinese 
producers of the opportunity to make informed decisions on whether to request 
adjustments .................................................................................................................... 59 
5.5.1.3.4   Whether the Panel erred in finding that the confidential nature of the 
information should not have prevented the Co mmission from disclosing a summary of the 
information at issue ......................................................................................................... 62 
5.5.2   China's appeal regarding the fair comparison requirement under Article 2.4 of the 
Anti-Dumping Agreement .................................................................................................. 63 
5.5.2.1   The Panel's findings ............................................................................................. 63 
5.5.2.2   The fair comparison requirement under Article 2.4 of the Anti-Dumping 
Agreement ...................................................................................................................... 65 
5.5.2.3   Differen ces in ta xation ......................................................................................... 67 
5.5.2.3.1   Whether the Panel erred in finding that adjusting for differences in taxation 
would undermine the Commission's right to have recourse to the analogue country 
methodol ogy ...................................................................................................................  68 
5.5.2.3.2   Whether the Panel erred in finding that the Chinese producers did not come 
forward with a substantiated request for an adjustme nt ........................................................ 69 
5.5.2.3.3   New documents refe rred to by Chin a on appeal .................................................... 71 
5.5.2.4   Other cost differences .......................................................................................... 71 
5.5.2.4.1   Whether the Panel erred in finding that adjusting for differences in costs 
would undermine the Commission's right to have recourse to the analogue country 
methodol ogy ...................................................................................................................  72 
5.5.2.4.2   Whether the Panel erred in finding that the Chinese producers did not come 
forward with substantiated requests for adjustments ............................................................. 74 
5.5.2.4.3   Whether the Panel failed to make an objective assessment of the facts as 
required under Arti cle 11 of the DSU .................................................................................. 76 
5.5.2.5   Differences in physical char acterist ics .................................................................... 77 
5.5.2.5.1   The Panel' s terms of reference ........................................................................... 77 
5.6   Article 2.4.2 of the Anti-Dumping Agreement ................................................................ 79 
5.6.1   "[A]ll comparable export transactions" under Article 2.4.2 of the Anti-Dumping 
Agreement ...................................................................................................................... 80 
5.6.2   Whether the Commission's exclusion of non-matching models from the dumping 
margin calculations is consistent with Article 2.4.2 of the Anti-Dumping Agreement ................... 82 
5.7   Articles 4.1 and 3.1 of  the Anti-Dumpi ng Agreement...................................................... 86 
5.7.1   The Panel's terms of reference ................................................................................. 86 WT/DS397/AB/RW 
 
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 5.7.2   Whether the Panel erred in finding that the European Union acted inconsistently 
with Articles 4.1 and 3.1 of the Anti-Dumping  Agreement ...................................................... 88 
5.7.3   The definition of domestic industry in Article 4.1 of the Anti-Dumping Agreement ............ 89 
5.7.4   Whether the Commission's definition of the domestic industry in the review 
investigation is consistent with Article 4.1 of the Anti-Dumping Agreement ............................... 90 
6   FINDINGS AND CONCLUSIONS .................................................................................. 95  
 
 WT/DS397/AB/RW 
 
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 ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
Appellate Body Report Appellate Body Report, European Communities – Definitive 
Anti-Dumping Measures on Certain Iron or Steel Fasteners from 
China , WT/DS397/AB/R 
Anti-Dumping Agreement Agreement on Implementation of Ar ticle VI of the General Agreement 
on Tariffs and Trade 1994 
CCCME China's Chamber of Commerce for Import and Export of Machinery 
and Electronic Products 
China's Accession Protocol Protocol on the Accession of the People's Republic of China, 
WT/L/432 
CN  combined nomenclature containe d in Annex 1 to Council Regulation 
(EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, Official Journal of 
the European Communities , L Series, No. 30 (7 September 1987), 
p. 256 
Commission Commission of the European Union 
DSB Dispute Settlement Body 
DMSAL domestic sales listing 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
EU European Union 
GATT 1947 General Agreement on Tariffs and Trade 1947 
GATT 1994 General Agreement on Tariffs and Trade 1994 
MET market economy treatment 
NME(s) non-market economy(ies) 
original panel  panel in the original proceedings  
original panel report Panel Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or Steel Fasteners from China , 
WT/DS397/R 
original investigation Anti-dumping investigation on imports of certain iron or steel 
fasteners originating in China initiated by the European Commission through its Notice of Initiation dated 9 November 2007  
Panel Panel in these Article 21.5 compliance proceedings 
Panel Report Panel 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/RW 
PCN(s) product control number(s) 
WA-WA weighted average-to-weighted average 
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization 
 WT/DS397/AB/RW 
 
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 PANEL EXHIBITS CITED IN THIS REPORT 
Panel 
Exhibit Original 
Panel Exhibit Short Title 
(if any) Description 
 CHN-1 
 Basic AD Regulation Council Regulation (EC) No. 384/96 of 22 December 
1995 on protection against Dumped Imports from Countries not Members of the European Community, Official Journal of the European Communities , L Series, 
No. 56 (6 March 1996), pp. 1-20  
 CHN-3 Basic AD Regulation Council Regulation (EC) No. 1225/2009 of 30 November 
2009 on Protection against Dumped Imports from 
Countries not Members of the European Community 
(codified version), Official Journal of the European Union , 
L Series, No. 343 (22 December 2009), pp. 51-73 and 
Corrigendum 
 CHN-14 Notice of Initiation  European Commission Noti ce of Initiation of an 
anti-dumping proceeding concerning imports of certain iron or steel fasteners originating in the People's Republic of China, Official Journal of the European Union , C Series, 
No. 267 (9 November 2007), pp. 31-35 
 CHN-18 final disclosure General Disclosure Document, AD525: Anti-dumping 
proceeding concerning imports of certain iron or steel 
fasteners originating in the People's Republic of China, 
Proposal to impose definitive measures, 3 November 
2008 
 CHN-28  Letter dated 7 November 2008 on behalf of Kunshan 
Chenghe and Ningbo Jinding to the European Commission concerning the Definitive Disclosure Document 
 CHN-30  Letter dated 17 November 2008 on behalf of Kunshan 
Chenghe and Ningbo Jinding to the European 
Commission concerning the Definitive Disclosure 
Document: Request for Information II 
 CHN-31  Letter dated 21 November 2008 from the European 
Commission to Van Bael & Bellis in response to Kunshan Chenghe's and Ningbo Jinding's request of 17 November 2008 
 CHN-59  Letter dated 24 November 2008 on behalf of Kunshan 
Chenghe to the European Commission containing 
comments on the Definiti ve Disclosure Document 
CHN-1 CHN-4 Definitive 
Regulation Council Regulation (EC) No. 91/2009 of 26 January 2009 
imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China, Official Journal of the European Union , 
L Series, No. 29 (31 January 2009), pp. 1-35 
CHN-2   European Commission  Notice regarding the anti-dumping 
measures in force on import s of certain iron or steel 
fasteners originating in the People's Republic of China, 
following the recommendations and rulings adopted by 
the Dispute Settlement Body of the World Trade 
Organization on 28 July 2011 in the EC – Fasteners 
dispute (DS397),  Official Journal of the European Union , 
C Series, No. 66 (6 March 2012), pp. 29-31 
CHN-3  Review Regulation Council Implementing Regulation (EU) No 924/2012 of 
4 October 2012 amending Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of 
certain iron or steel fasteners originating in the People's 
Republic of China, Official Journal of the European Union , 
L Series, No. 275 (10 October 2012), pp. 1-22 WT/DS397/AB/RW 
 
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 Panel 
Exhibit Original 
Panel Exhibit Short Title 
(if any) Description 
CHN-5   Letter dated 30 May 2012 from the European 
Commission to interested part ies including the disclosure 
document concerning normal value 
CHN-6   Letter dated 13 June 2012 on behalf of Biao Wu to the 
European Commission in response to the Commission's letter of 30 May 2012 
CHN-7   Letter dated 19 June 2012 on behalf of  China's Chamber 
of Commerce for Import and Export of Machinery and 
Electronic Products (CCCME) to the European 
Commission 
CHN-8   Letter dated 12 June 2012 on behalf of Changshu to the 
European Commission requesti ng further information and 
clarification regarding the determination of normal value 
CHN-9   Letter dated 12 June 2012 on behalf of Ningbo Jinding to 
the European Commission requ esting further information 
and clarification regarding the determination of normal 
value 
CHN-11   E-mail dated 26 June 2012 from the European 
Commission concerning CCCME, Biao Wu, and Jiashan 
CHN-12   E-mail dated 21 June 2012 from  the European 
Commission concerning Changshu and Ningbo Jinding  
CHN-15   Letter dated 5 July 2012 from  the European Commission 
to interested parties 
CHN-17   R548: WTO Fasteners Implementation Review Note for 
the File dated 11 July 2012 on the Reclassification of 
Normal Value from one producer in India 
CHN-20   Letter dated 17 July 2012 from the European 
Commission concerning the determination of normal value 
CHN-21   Letter dated 19 July 2012 on behalf of CCCME and Biao 
Wu to the European Commission concerning, inter alia , 
disclosure documents 
CHN-22  General Disclosure 
Document General Disclosure Document, R548: Anti-dumping 
measures in force on import s of certain iron or steel 
fasteners originating in the People's Republic of China: implementation of the recommendations and rulings 
adopted by the Dispute Settlement Body of the World 
Trade Organization on 28 July 2011 in the EC – Fasteners dispute (DS397), 31 July 2012 
CHN-23   Letter dated 20 August 2012 on behalf of CCCME and 
Biao Wu to the European Commission containing 
comments on the disclosure of 31 July 2012 
CHN-24   Response to the Europe an Commission's Anti-Dumping 
Questionnaire for producers in analogue countries of certain iron or steel fasteners, submitted by Pooja Forge in the original anti-dumping investigation 
CHN-27   Letter dated 11 July 2012 on behalf of CCCME and Biao 
Wu to the European Comm ission concerning the 
disclosure of 5 July 2012 
CHN-28   Comments dated 14 August 2012 on behalf of Ningbo 
Jinding on the disclosure of 31 July 2012 
CHN-29   Comments dated 14 August 2012 on behalf of Changshu 
on the disclosure of 31 July 2012 WT/DS397/AB/RW 
 
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 Panel 
Exhibit Original 
Panel Exhibit Short Title 
(if any) Description 
CHN-30  Hearing Officer's 
Report Report of the hearing of the European Commission held 
on 11 July 2012 concerning R548 Iron or steel fasteners originating in the People's Republic of China, 18 July 2012 
CHN-33   Letter dated 13 June 2012 on behalf of Ningbo Jinding to 
the European Commission concerning the disclosure of 
30 May 2012 
CHN-34   Letter dated 13 June 2012 on behalf of Changshu to the 
European Commission concer ning the disclosure of 
30 May 2012 
CHN-38   Council Regulation (EC) No. 1331/2007 of 13 November 
2007 imposing a definitive anti-dumping duty on imports 
of dicyandiamide originating in the People's Republic of 
China, Official Journal of the European Union,  L Series, 
No. 296 (15 November 2007), pp. 1-17 
CHN-39   Council Regulation (EC) No. 1659/2005 of 6 October 
2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain magnesia bricks originating in the People's Republic of China, Official Journal of the 
European Union,  L Series, No. 267 (12 October 2005) 
pp. 1-14 
CHN-40   Council Regulation (EC) No. 3386/93 of 6 December 
1993 imposing a definitive anti-dumping duty on imports 
of dead-burned (sintered) magnesia originating in the 
People's Republic of China, Official Journal of the 
European Communities,  L Series, No. 306 (11 December 
1993) pp. 16-21 
CHN-41   Council Regulation (EC) No. 1347/96 of 2 July 1996 
imposing definitive anti-dum ping duties on imports of 
unwrought pure magnesium originating in Russia and Ukraine and collecting definitively the provisional duty imposed, Official Journal of the European Communities,  
L Series, No. 174 (12 July 1996) pp. 1-10 
CHN-42   Commission Regulation (EC) No. 492/2008 of 3 June 
2008 imposing a provisional anti-dumping duty on 
imports of monosodium glutamate originating in the 
People's Republic of China,  Official Journal of the 
European Union,  L Series, No. 144 (4 June 2008) 
pp. 14-30 
CHN-44   Calculations for Biao Wu  
CHN-45   Calculations for Ningbo Jinding  
CHN-46   Calculations for Changshu  
EU-2   E-mail dated 3 July 2012 from Pooja Forge to the 
European Commission re questing information 
EU-4   Cover letter to the General Disclosure Document dated 
31 July 2012 
EU-5   Letter dated 26 November 2014 from the 
European Commission to the Panel concerning 
Pooja Forge 
EU-8   E-mail exchanges dated 2 July 2012 between the 
European Commission and Pooja Forge concerning request for information by Pooja Forge WT/DS397/AB/RW 
 
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 CASES CITED IN THIS REPORT 
Short title Full case title and citation 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 
p. 3327 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
China – Autos (US) Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United States , WT/DS440/R and Add.1, adopted 
18 June 2014 
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 – HP-SSST (Japan) /  
China – HP-SSST (EU) Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China – Measures Imposing Anti-Dum ping Duties on High-Performance 
Stainless Steel Seamle ss Tubes ("HP-SSST") from the European Union , 
WT/DS454/AB/R and Add.1 / WT/D S460/AB/R and Add.1, adopted 
28 October 2015 
China – Rare Earths Appellate Body Reports, China – Measures Related to  the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/AB/R / WT/DS432/AB/R / 
WT/DS433/AB/R, adopted 29 August 2014 
EC – Bed Linen Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, p. 2049 
EC – Bed Linen  
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
p. 965 
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 Stee l Fasteners from China , WT/DS397/R and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB/R, DSR 2011:VIII, p. 4289 
EC – Fasteners (China) 
(Article 21.5 – China) Panel Report, European Communities – Definiti ve Anti-Dumping Measures on 
Certain Iron or Steel Fasteners from Ch ina – Recourse to Article 21.5 of the 
DSU by China , WT/DS397/RW and Add.1, circulated to WTO Members 
7 August 2015 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, p. 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-D umping 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 Trade 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 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585 WT/DS397/AB/RW 
 
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 Short title Full case title and citation 
Guatemala – Cement II Panel Report, Guatemala – Definiti ve Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, p. 5295 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on  Imports of Certain Paper from 
Indonesia , WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, 
p. 10637 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 
21 November 2001, DSR 2001:XIII, p. 6675 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, p. 4793 
US – Carbon Steel (India)  Appellate Body Report, United States – Countervai ling Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R, adopted 
19 December 2014 
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 – Offset Act 
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 
2003, DSR 2003:I, p. 375 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular G oods from Argentina – Recourse to 
Article 21.5 of the DSU by Argentina , WT/DS268/AB/RW, adopted 11 May 
2007, DSR 2007:IX, p. 3523 
US – Shrimp  
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481 
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, p. 1875 
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R, adopted 31 August 2004, as modified 
by Appellate Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937 
US – Tyres (China) Appellate Body Report, United States – Measures  Affecting Imports of 
Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R, adopted 5 October 2011, DSR 2011:IX, p. 4811 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton 
(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 – Zeroing (EC)  
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of 
the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, 
adopted 11 June 2009, DSR 2009:VII, p. 2911 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 
p. 3 
 
 WT/DS397/AB/RW 
 
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 WORLD TRADE ORGANIZATION  
APPELLATE BODY 
  
European Communities – Definitive 
Anti-Dumping Measures on Certain Iron or 
Steel Fasteners from China 
 
Recourse to Article 21.5 of the DSU by China 
 European Union
1, Appellant/Appellee  
China, Other Appellant/Appellee  
 Japan, Third Participant  
United States, Third Participant  
 AB-2015-7 
  
 
Appellate Body Division:   Ramírez-Hernández, Presiding Member 
Graham, Member 
Servansing, Member  
 
 
1  INTRODUCTION 
1.1.  The European Union and China each appeals certain issues of law and legal interpretations 
developed in the Panel 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 2 
(Panel Report). The Panel was established pursuant to Article 21.5 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU) to consider a complaint by China3 
regarding the consistency with the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and the General Agreement on Tariffs and Trade 1994 (GATT 1994) of measures taken by the 
European Union to comply with the recommendations and rulings of the Dispute Settlement 
Body (DSB) in the original proceedings in EC – Fasteners (China).
4 
1.2.  On 9 November 2007, the European Commission (Commission) issued a "Notice of 
Initiation"5 of an anti-dumping investigation on imports of certain iron or steel fasteners from 
China (original investigation). This original investigation resulted in the imposition of definitive 
anti-dumping duties on fasteners from China, which was notified through the "Definitive Regulation" of 26 January 2009.
6  
1.3.  On 12 October 2009, China requested the es tablishment of a panel, and the original panel 
was established on 23 October 2009.7 Before the original panel, China challenged, inter alia , the 
WTO-consistency of the Definitive Regulation imposing anti-dumping duties on fasteners from 
China. In its report, which was circulated to Members of the World Trade Organization (WTO) on 
3 December 2010, the original panel found that the European Union had violated certain provisions 
of the Anti-Dumping Agreement, in particular: (i) Articles 6.10 and 9.2 with respect to the 
                                               
1 This dispute began before the Treaty of Lisbon entered into force in December 2009, which, for 
WTO purposes, led to the replacement of the "Europea n Communities" with the "European Union". For this 
reason, the case title in this dispute is European Communities – Definitive Anti-Dumping Measures on Certain 
Iron or Steel Fasteners from China , rather than European Union – Definitive Anti -Dumping Measures on Certain 
Iron or Steel Fasteners from China . As did the panel and the Appellate Bo dy in the original proceedings, apart 
from the case title, the Panel referred throughout its Report to the respon ding party in this dispute as the 
European Union or the EU. We follow this practice in this Report. 
2 WT/DS397/RW, 7 August 2015. 
3 Request for the Establishment of a Panel by China pursuant to Article 21.5 of the DSU, WT/DS397/18. 
4 The recommendations and rulings of the DSB result ed from the adoption on 28 July 2011, by the DSB, 
of the Appellate Body report (WT/DS397/AB/R) and the panel report (WT/DS397/R) in EC – Fasteners (China) . 
In this Report, we refer to the panel that considered the original complaint brought by China as the "original panel" and to its report as the "original panel report". 
5 European Commission, Notice of Initiation of an anti-dumping proceeding concerning imports of 
certain iron or steel fasteners originating in the People's Republic of China, Official Journal of the European 
Union , C Series, No. 267 (9 November 2007), pp. 31-35 (Original Panel Exhibit CHN-14). 
6 Council Regulation (EC) No. 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on 
imports of certain iron or steel fasteners originating in the People's Republic of China, Official Journal of the 
European Union , L Series, No. 29 (31 January  2009), pp. 1-35 (Panel Exhibit CHN-1). 
7 WT/DS397/3; WT/DS397/4. WT/DS397/AB/RW 
 
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 treatment of individual exporters and producers in the calculation of margins of dumping under 
Article 9(5) of the "Basic AD Regulation"8; (ii) Articles 3.1 and 3.2 with respect to the assessment 
of the volume of dumped imports in the injury dete rmination; (iii) Articles 3.1 and 3.5 with respect 
to the causation analysis of the injury determination; (iv) Articles 6.4 and 6.2 with respect to the 
failure of the Commission to disclose in a timely manner information regarding certain aspects of 
the normal value determination; (v) Article 6.5.1 with respect to non-confidential summaries of 
questionnaire responses; and (vi) Article 6.5 with  respect to confidential treatment of certain 
information.9  
1.4.  The European Union and China both appealed certain issues of law and legal interpretations 
developed by the original panel. The Appellate Body report was circulated to WTO Members on 15 July 2011. The Appellate Body, in particular: (i) upheld, albeit for different reasons, the original 
panel's finding of inconsistency of Article 9(5) of the Basic AD Regulation with Articles 6.10 and 9.2 
of the Anti-Dumping Agreement with respect to  the treatment of individual exporters and 
producers in the calculation of margins of dumping; (ii) found the original panel to be in error by 
not finding a violation of Article 4.1 with respect to the definition of the domestic industry; 
(iii) upheld the original panel's findings of violation of Articles 6.4 and 6.2 with respect to the failure of the Commission to disclose in a timely manner information regarding certain aspects of 
the normal value determination; (iv) found that the original panel erred in respect of Article 2.4 
and found instead that the Commission had failed to indicate to interested parties what information was necessary to ensure fair comparison; and (v) reversed the original panel's finding of violation of Article 6.5 regarding the confiden tial treatment of certain information and held 
instead that China had failed to substantiate its claim.
10 
1.5.  On 28 July 2011, the DSB adopted the original panel and Appellate Body reports. On 
19 January 2012, China and the European Union in formed the DSB that they had agreed on a 
reasonable period of time for implementation of 14 months and two weeks as from 28 July 2011.11 
The reasonable period of time expired on 12 October 2012. 
1.6.  On 11 October 2012, the European Union informed the DSB that it had adopted certain 
measures necessary to comply with the recommendations and rulings of the DSB.12 As regards the 
DSB's recommendations and rulings concerning the original investigation, which had resulted in the issuance of the Definitive Regulation, the European Union had initiated a review investigation.
13 Through the "Review Regulation" of 4 October 201214, the injurious dumping 
                                               
8 Council Regulation (EC) No. 384/96 of 22 December 1995 on protection against dumped imports from 
countries not members of the European Community, Official Journal of the European Union , L Series, No. 56 
(6 March 1996)  (Original Panel Exhi bit CHN-1) as repealed and replaced by, Council Regulation (EC) 
No. 1225/2009 of 30 November 2009, Official Journal of the European Union , L Series, No. 343 (22 December 
2009), pp. 51-73, and Corrigendum, Official Journal of the European Union , L Series, No. 7 (12 January 2010) 
pp. 23-24 (Original Panel Exhibit CHN-3). 
9 Original Panel Report, para. 8.2. In addition, th e original panel found that the European Union had 
acted inconsistently with Articles 6.10, 9.2, and 18.4 of the Anti-Dumping Agreement, Article I:1 of the GATT 1994, and Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) with respect to Article 9(5) of the Basic AD Regulation. Further,  in paragraph 8.3 of its 
report, the original panel rejected cert ain claims, in particular, finding that China had failed to establish that 
the European Union acted inconsistently with: (i) Articles 4.1 and 3.1 of the Anti-Dumping Agreement in respect of the definition of the domestic industry; and (i i) Article 2.4 of the Anti-Dumping Agreement in respect 
of the dumping determination. In paragraph 8.4 of its re port, the original panel appl ied judicial economy with 
respect to certain other claims.  
10 Appellate Body Report, EC – Fasteners (China) , para. 624. The Appellate Body, however, declared 
moot and of no legal effect the original panel's finding that Article 9(5) of the Basic AD Regulation was inconsistent with Article I:1 of the GATT 1994. 
11 WT/DS397/14. 
12 WT/DS397/15/Add.3. 
13 European Commission, Notice regarding the anti-d umping measures in forc e on imports of certain 
iron or steel fasteners originating in the People's Republic of China, following the recommendations and rulings adopted by the Dispute Settlement Body of the World Trade Organization on 28 July 2011 in the EC - Fasteners dispute (DS397), Official Journal of the European Union , C Series, No. 66 (6 March 2012), pp. 29-31 (Panel 
Exhibit CHN-2). 
14 Council Implementing Regulation (EU) No. 924/2012 of 4 October 2012 amending Regulation (EC) 
No. 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in 
the People's Republic of China, Official Journal of the European Union , L Series, No. 275 (10 October 2012) 
pp. 1-22 (Panel Exhibit CHN-3). WT/DS397/AB/RW 
 
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 determined in the original investigation was confirmed, and revised anti-dumping duties at lower 
rates were imposed. 
1.7.  China, however, considered that the measure taken by the European Union through the 
Review Regulation to implement the DSB's recommendations and rulings in relation to the original 
investigation was inconsistent with various provisions of the Anti-Dumping Agreement and the 
GATT 1994.15 Thus, on 5 December 2013, China requested the establishment of a panel.16 The 
Panel was established by the DSB on 18 December 2013.17 
1.8.  Before the Panel, China claimed that certain aspects of the review investigation leading to the 
continued application of definitive duties on fasteners from China were inconsistent with Articles 2.4, 2.4.2, 3.1, 4.1, 6.1.2, 6.2, 6.4,  6.5, and 6.5.1 of the Anti-Dumping Agreement and 
Article VI:1 of the GATT 1994. 
1.9.  In the Panel Report, circulated to Members of the WTO on 7 August 2015, the Panel made 
the following findings: 
a. with respect to the European Union's claims  regarding the Panel's terms of reference 
under Article 21.5 of the DSU, the Panel, for reasons stated in the Report, found that 
China's claims under: (i) Articles 6.5 and 6.5.1
18; (ii) Articles 6.4. and 6.219; 
(iii) Article 6.1.220; (iv) Article 2.421; and (v) Articles 4.1 and 3.122 of the Anti-Dumping 
Agreement were within its terms of reference; 
b. with respect to China's claim under Articl e 6.5 of the Anti-Dumping Agreement, the 
Panel found that the European Union acted inconsistently with that provision by treating the information on the list and characteristics of the products of the analogue country 
producer
23 (i.e. Pooja Forge) as confidential since the Commission never performed an 
objective assessment of whether the information at issue was confidential by nature, or whether good cause had been shown to justify its confidential treatment
24; 
c. with respect to China's conditional claim under Article 6.5.1 of the Anti-Dumping 
Agreement concerning the alleged failure of the Commission to ensure that Pooja Forge submit a non-confidential summary of the information at issue, the Panel found that it 
was not necessary to make a finding under that provision since it had already found a 
violation of Article 6.5 regarding the confiden tial treatment of the information at issue
25; 
d. with respect to China's claim under Articl e 6.4 of the Anti-Dumping Agreement, the 
Panel found that the European Union acted inconsistently under that provision by failing 
to provide the Chinese producers with timely opportunities to see the information on the 
list and characteristics of Pooja Forge's products, which information was not confidential within the meaning of Article 6.5, was relevant to the presentation of the 
Chinese producers' cases, and was used by the Commission
26;  
                                               
15 Panel Report, para. 2.6.  
16 WT/DS397/18. 
17 Panel Report, para. 1.3. 
18 Panel Report, para. 7.34. 
19 Panel Report, paras. 7.78-7.80. Additionally, in paragraphs 7.85 and 7.86 of the Panel Report, the 
Panel rejected the European Union's jurisdictional obje ction that a part of China's claim was not within its 
terms of reference since it was not id entified in China's panel request. However, this finding has not been 
appealed. 
20 Panel Report, paras. 7.114 and 7.115. 
21 Panel Report, paras. 7.171, 7.233, and 7.239.  
22 Panel Report, paras. 7.289 and 7.291. 
23 We recall that, due to the fact that market economy treatment (MET) was not granted to the 
Chinese producers in the original investigation, the Commission sought to determine the normal values on the basis of prices of fasteners sold in an appropriate surro gate (analogue) country, which in this case was India. 
The Commission identified two Indian companies, and on e of them, Pooja Forge Ltd. (Pooja Forge), cooperated 
with the investigation and was considered to be the analogue country producer. (Appellate Body Report, 
EC - Fasteners (China) , fn 665 to para. 470)   
24 Panel Report, paras. 7.46, 7.50, and 8.1.i. 
25 Panel Report, paras. 7.50 and 8.3.  
26 Panel Report, paras. 7.92 and 8.1.ii. WT/DS397/AB/RW 
 
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 e. with respect to China's claim under Articl e 6.2 of the Anti-Dumping Agreement, the 
Panel found that the Commission, having denied the Chinese producers, access to information relevant within the meaning of Article 6.4, acted inconsistently with Article 6.2 since the Chinese producers did not have full opportunity to defend their 
interests
27;  
f. with respect to China's claim under Article 6.1.2 of the Anti-Dumping Agreement, the 
Panel found that Pooja Forge was not an interested party in the review investigation, and 
that China had failed to establish that the European Union acted inconsistently with the 
obligations under Article 6.1.2 by failing to ensure that the information provided by Pooja Forge concerning the list and characteristics of its products was made available promptly to the Chinese producers
28; 
g. with respect to China's claims under Article 2.4 of the Anti-Dumping Agreement, the 
Panel found that: 
i. the European Union acted inconsistently with that provision by failing to provide 
the Chinese producers with the information regarding the characteristics of 
Pooja Forge's products that were used in the determination of the normal values and which would have allowed the Chinese producers to request adjustments 
under Article 2.4
29; 
ii. China had failed to establish that "by failing to compare the prices of the 
standard fasteners with the prices of standard fasteners in calculating dumping margins for the Chinese producers", the European Union acted inconsistently 
with Article 2.4
30; and 
iii. China had failed to establish that by fa iling to make adjustments for differences 
that affected price comparability, namely, differences: (i) in taxation; (ii) in 
physical characteristics; and (iii) with regards to "easier access to 
raw materials", "use of self-generated electricity", and "efficiency and productivity", the European Union acted inconsistently with Article 2.4
31;  
h. with respect to China's claim under Article 2.4.2 of the Anti-Dumping Agreement, the 
Panel found that the European Union acted inconsistently with that provision by not taking into consideration, in its dumping margin determinations, models exported by the Chinese producers that did not match any of the models sold by Pooja Forge
32; and 
i. with respect to China's claim under Articles 4.1 and 3.1 of the Anti-Dumping Agreement, 
the Panel found that the European Union acted inconsistently with Article 4.1 in defining the domestic industry in the review investigation on the basis of domestic producers that 
came forward in response to the Notice of Initiation issued in the original investigation 
since the definition suffered from a self-selection process that introduced a material risk of distortion.
33 The Panel also found that the European Union acted inconsistently with 
Article 3.1 since the Commission's injury de termination was based on the data obtained 
from a wrongly defined domestic industry.34  
1.10.  On 9 September 2015, 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 interpretations developed by the Panel and filed a Notice of Appeal and an appellant's 
                                               
27 Panel Report, paras. 7.94, 7.96, and 8.1.ii. 
28 Panel Report, paras. 7.119, 7.123, and 8.2.i. 
29 Panel Report, paras. 7.142, 7.148, and 8.1.iii. 
30 Panel Report, paras. 7.194 and 8.2.ii. This finding has not been appealed. 
31 Panel Report, paras. 7.223, 7.230, 7.236, 7.250, 7.251, and 8.2.iii. 
32 Panel Report, paras. 7.276 and 8.1.iv. In paragraphs  7.276 and 8.3 of its Report, the Panel refrained 
from addressing China's allegation of violation of Articl e 2.4 owing to the exclusion of models from the dumping 
determinations, since it had already found a violatio n of Article 2.4.2 of the Anti-Dumping Agreement. 
33 Panel Report, paras. 7.296, 7.299, and 8.1.v. 
34 Panel Report, paras. 7.299 and 8.1.v. WT/DS397/AB/RW 
 
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 submission.35 On 14 September 2015, China 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 interpretations developed by the Panel and filed a Notice of Other Appeal and other appellant's submission.
36 On 28 September 2015, the European Union and China each filed an 
appellee's submission.37 On 1 October 2015, Japan and the United States each filed a 
third participant's submission.38  
1.11.  By letter dated 6 November 201539, 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 within the 
60-day period pursuant to Article 17.5 of the DSU,  or within the 90-day period pursuant to the 
same provision. The Chair of the Appellate Body  explained that this was due to a number of 
factors, including the substantial workload of the Appellate Body, scheduling difficulties arising 
from overlap in the composition of the Divisions hearing appeals concurrently pending before the 
Appellate Body, the length of the submissions file d in this appeal, the number and complexity of 
the issues raised in this and concurrent appellate  proceedings, and the shortage of staff in the 
Appellate Body Secretariat. The Chair of the Appe llate Body estimated that the Report in this 
appeal would be circulated to WTO Members no later than Monday, 18 January 2016.  
1.12.  The oral hearing in this appeal was held on 10-11 November 2015. The participants and 
third participants made oral statements and resp onded to questions posed by the Appellate Body 
Division hearing the appeal. 
2  ARGUMENTS OF THE PARTICIPANTS  2.1.  The claims and arguments of the participan ts are reflected in the executive summaries of 
their written submissions provided to the Appellate Body.
40 The Notices of Appeal and Other 
Appeal, and the executive summaries of the partic ipants' claims and arguments, are contained in 
Annexes A and B of the Addendum to this Report, WT/DS397/AB/RW/Add.1. 
3  ARGUMENTS OF THE THIRD PARTICIPANTS 
3.1.  The arguments of the third participants ar e reflected in the executive summaries of their 
written submissions provided to the Appellate Body41, which are contained in Annex C of the 
Addendum to this Report, WT/DS397/AB/RW/Add.1. 
4  ISSUES RAISED IN THIS APPEAL 4.1.  With respect to the Panel's findings under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement, the following issues are raised on appeal:  
a. whether the Panel erred in finding that China's claims under Articles 6.5 and 6.5.1 fell 
within its terms of reference (raised by the European Union); 
b. whether the Panel erred in finding that the European Union acted inconsistently with 
Article 6.5 because, in the review investigation, the Commission accorded confidential 
treatment to the information at issue, without objectively assessing whether Pooja Forge had shown "good cause" for such treatment (raised by the European Union); and 
                                               
35 Pursuant to Rules 20 and 21, respectively, of  the Working Procedures for Appellate Review, 
WT/AB/WP/6, 16 August 2010 (Working Procedures).  
36 Pursuant to Rule 23 of the Working Procedures. 
37 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
38 Pursuant to Rule 24(1) of the Working Procedures. 
39 WT/DS397/23. 
40 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). 
41 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). WT/DS397/AB/RW 
 
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 c. in the event that the Appellate Body reverses the Panel's finding that the 
European Union acted inconsistently with Article 6.5, whether the European Union acted inconsistently with Article 6.5.1 in the review investigation as regards the Commission's alleged failure to ensure that Pooja Forge submit a non-confidential summary of its 
information in accordance with the requirements of Article 6.5.1 (raised by China). 
4.2.  With respect to the Panel's findings under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement, the following issues are raised on appeal:  
a. whether the Panel erred in finding that China's claims under Articles 6.4 and 6.2 fell 
within its terms of reference (raised by the European Union); 
b. whether the Panel erred in finding that the European Union acted inconsistently with 
Article 6.4 because, in the review investigation, the Commission failed to provide "timely 
opportunities" for the Chinese producers to s ee the information at issue (raised by the 
European Union); and 
c. whether, as a consequence of the alleged errors made by the Panel under Article 6.4, 
the Panel erred in finding that the European Union acted inconsistently with Article 6.2 
(raised by the European Union). 
4.3.  With respect to the Panel's findings under Article 6.1.2 of the Anti-Dumping Agreement, the 
following issues are raised on appeal: 
a. whether the Panel erred in finding that China's claim under Article 6.1.2 fell within its 
terms of reference (raised by the European Union); and 
b. whether the Panel erred in finding that Pooja Forge was not an "interested party" in the 
review investigation at issue within the meaning of Article 6.11 of the Anti-Dumping 
Agreement, and that, therefore, the obligatio n under Article 6.1.2 to make information 
available promptly to interested parties did not apply to information provided by 
Pooja Forge (raised by China). 
4.4.  With respect to the Panel's findings unde r Article 2.4 of the Anti-Dumping Agreement, the 
following issues are raised on appeal: 
a. whether the Panel erred in finding that the European Union acted inconsistently with the 
last sentence of Article 2.4 because, in the review investigation, the Commission failed to provide the Chinese producers with certain information regarding the characteristics of Pooja Forge's products (raised by the European Union); 
b. whether the Panel erred in finding that China's claim under Article 2.4 in respect of 
adjustments relating to differences in physical characteristics not reflected in the original PCNs fell within its terms of refere nce (raised by the European Union); 
c. in the event that the Appellate Body reverses the Panel's finding that the 
European Union acted inconsistently with the last sentence of Article 2.4, whether the Panel erred in finding that the European Union did not act inconsistently with Article 2.4 
by failing to make adjustments for differences in physical characteristics (raised by 
China); and 
d. whether the Panel erred in finding that the European Union did not act inconsistently 
with Article 2.4 as regards the Commission's failure to make adjustments for differences 
in taxation and differences in other costs, namely, differences relating to access to 
raw materials, use of self-generated electricity, efficiency in raw material consumption, efficiency in electricity consumption, and productivity per employee (raised by China). WT/DS397/AB/RW 
 
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 4.5.  With respect to the Panel's findings under Article 2.4.2 of the Anti-Dumping Agreement, the 
following issue is raised on appeal: 
a. whether the Panel erred in finding that the European Union acted inconsistently with this 
provision by excluding, in the Commission's dumping determinations, models exported 
by the Chinese producers that did not match any of the models sold by Pooja Forge 
(raised by the European Union). 
4.6.  With respect to the Panel's findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement, the following issues are raised on appeal:  
a. whether the Panel erred in finding that China's claims under Articles 4.1 and 3.1 fell 
within its terms of reference (raised by the European Union); 
b. whether the Panel erred in finding that the European Union acted inconsistently with 
Article 4.1 because the Commission defined the domestic industry on the basis of 
domestic producers that had come forward in response to the Notice of Initiation which stated that only those producers willing to be included in the injury sample would be 
considered as cooperating (raised by the European Union); and 
c. whether the Panel erred in finding that the Commission's injury determination, based on 
the data obtained from a wrongly-defined domestic industry, was inconsistent with 
Article 3.1 (raised by the European Union). 
5  ANALYSIS OF THE APPELLATE BODY 5.1  Background 5.1.1  Overview of the original anti-dumping investigation 
5.1.  In the Notice of Initiation of an anti-dumping investigation on imports of certain iron or 
steel fasteners from China issued on 9 November 2007, the Commission specified that it intended to examine, on the basis of sampling, whether the domestic industry had suffered injury and 
further noted that, only those producers that had come forward within the timeline stipulated 
therein and were willing to be included in the injury sample, would be considered as cooperating.
42 
Out of approximately 300 domestic producers, 70 came forward in response to the Notice of 
Initiation.43 The Commission excluded 25 of these 70 producers from the domestic industry 
definition for various reasons, one of which was the producers' expressed unwillingness to be a part of the injury sample.
44 Thus, 45 producers were found to constitute the domestic industry for 
purposes of the investigation. The producers that supported the complaint and cooperated with the 
Commission represented 27% of the total production of the like product in the European Union.45 
5.2.  The Commission considered that the Chinese producers under investigation did not operate 
according to the principles of a market economy. Thus, the Commission resorted to the so-called 
"analogue country methodology"46 for determining the normal values for the Chinese products 
under investigation. India was chosen as the analogue country.47 The Commission, through its 
anti-dumping questionnaires, requested the Ch inese producers and Pooja Forge to provide 
information on the product under investigation on the basis of product control numbers (PCNs), 
                                               
42 Notice of Initiation (Original Panel Exhibit CHN-14), recital 5.1(a)(iii). 
43 Appellate Body Report, EC – Fasteners (China) , para. 428. 
44 Appellate Body Report, EC – Fasteners (China) , para. 429. 
45 Original Panel Report, para. 7.143. 
46 Section 15(a) of China's Accession Protocol permits a WTO Member, in certain circumstances, to "use 
either Chinese prices or costs for the industry under investigation or a methodology that is not based on a 
strict comparison with domestic prices or costs in China"  in "determining price comparability under Article VI of 
the GATT 1994 and the Anti-Dumping Agreement". (Protocol on the Accession of the People's Republic of China, WT/L/432) Thus, the Commission's resort to the analogue country methodology arises from this 
provision. In this regard, we also recall the finding of the Appellate Body that the second Ad Note to 
Article VI:1 of the GATT 1994, in certain circumstances, "allows investigating authorities to disregard domestic 
prices and costs of … an NME in the determination of th e normal value and to resort to prices and costs in a 
market economy third country".  (Appellate Body Report, EC – Fasteners (China) , para. 285) 
47 Panel Report, para. 7.9. WT/DS397/AB/RW 
 
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 which were made up of six elements: (i) types of fasteners (by combined nomenclature (CN) 
code); (ii) strength/hardness; (iii) coating; (iv) presence of chrome on coating; (v) diameter; and (vi) length/thickness (the original PCNs).
48 However, Pooja Forge did not provide information 
categorized on the basis of the original PCNs in its questionnaire response. Subsequently, during a 
verification visit by the Commission, Pooja Forge provided a domestic sales listing (DMSAL) file 
that contained prices, quantities, an internal item code for each product sold, and a product description text string (e.g. M8X1.25X16 FLANGE SCREW) for about 80,000 transactions.
49 
Pooja Forge also provided a non-confidenti al summary of its questionnaire response50, as well as a 
company brochure, which, according to the Commission, contained information on product range, production process, and other company-sensitive details, such as production capacity and number of employees.
51 Additionally, Pooja Forge identified the stre ngth class for each of the products sold 
in the Indian domestic market.52 
5.3.  Since the normal values for the Chinese prod ucers were to be established on the basis of the 
information provided by Pooja Forge, and since P ooja Forge had failed to provide information on 
the basis of the original PCNs, the Commission could not make its comparison between the normal 
values and the export prices on the basis of the original PCNs. Therefore, the Commission resorted 
to the use of "product types" defined by two elements: (i) strength class; and (ii) the distinction 
between standard and special fasteners.53 Although the Commission indicated in the "final 
disclosure"54 in the original investigation that it had based the normal value determination on 
"product types", it did not specify the number or relevant characteristics of the product types or how they were determined.
55  
5.4.  The Chinese producers requested information concerning the "product types", asking in 
particular to "see a listing of such 'product types' and a linkage with the PCNs" that had been used for the normal value calculation.
56  This request was subsequently reiterated, stating that "it would 
still be very useful [to] have a listing simply of which type of fastener or which PCNs of 
Pooja [Forge] were matched with [their] PCNs."57 One day before the deadline for submitting 
comments on the final disclosure, the Commission confirmed that "[t]he comparison was not made 
on the basis of the full PCN[s], but on part of  the characteristics of the product, namely the 
strength class as well as the … distinction between special and standard [fasteners]"58 – i.e. the 
"product types". Referring to the Commission's belated confirmation, the Chinese producers once again stressed the importance of obtaining information concerning these "product types" in order 
to comment on the dumping determination, and reiterated that it was "moreover still unclear what 
characteristics were finally included for product differentiation purposes in the calculations".
59 
Thereafter, the European Union issued the Defini tive Regulation imposing anti-dumping duties 
which, as described in paragraph 1.2 above, was challenged by China in the original proceedings 
before the WTO as being inconsistent with the covered agreements. 
                                               
48 Appellate Body Report, EC – Fasteners (China) , para. 470. 
49 Panel Report, para. 7.9. 
50 Response to the European Commission's Anti-D umping Questionnaire for producers in analogue 
countries of certain iron or steel fasteners, submitted by  Pooja Forge in the original anti-dumping investigation 
(Panel Exhibit CHN-24). 
51 Panel Report, para. 7.9. 
52 R548: WTO Fasteners Implementation Review, Note for the File dated 11 July 2012 on the 
Reclassification of normal value from one producer in India (Panel Exhibit CHN-17). 
53 Appellate Body Report, EC – Fasteners (China) , para. 471 (referring to Original Panel Report, 
para. 7.293). 
54 General Disclosure Document, AD525: Anti-dumping proceeding concerning imports of certain iron or 
steel fasteners originating in the People's Republic of China, Proposal to im pose definitive measures, 
3 November 2008 (Original Panel Exhibit CHN-18). 
55 Appellate Body Report, EC – Fasteners (China) , para. 472 (referring to Original Panel Report, 
para. 7.485). 
56 Letter dated 7 November 2008 on behalf of Kunshan Chenghe and Ningbo Jinding to the 
European Commission concerning the Definitive Disclosu re Document (Original Panel Exhibit CHN-28), para. 2. 
57 Letter dated 17 November 2008 on behalf of Kunshan Chenghe and Ningbo Jinding to the 
European Commission concerning the Definitive Disc losure Document: Request for Information II (Original 
Panel Exhibit CHN-30), para. 4. 
58 Letter dated 21 November 2008 from the European Commission to Van Bael & Bellis in response to 
Kunshan Chenghe's and Ningbo Jinding's request of  17 November 2008 (Original Panel Exhibit CHN-31), 
point (4). 
59 Letter dated 24 November 2008 on behalf of Kunshan Chenghe to the European Commission 
containing comments on the Definitive Disclosure  Document (Original Panel Exhibit CHN-59), p. 4. WT/DS397/AB/RW 
 
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 5.1.2  Overview of the review investigation 
5.5.  On 6 March 2012, the European Union issued a notice for the purposes of: (i) initiating the 
review investigation; and (ii) "inform[ing] interested parties of the manner in which the [DSB's] findings in regard to the measures in force on imports of certain iron or steel fasteners originating 
in the People's Republic of China [would] be taken into account".
60 It is uncontested that in the 
review investigation the Commission did not issue a new notice of initiation asking domestic producers willing to participate in the investigation to come forward. Instead, the Commission 
re-defined the domestic industry on the basis of all EU producers that had come forward within the 
15-day deadline prescribed in the Notice of Initiation of the original investigation, irrespective of their willingness to be a part of the injury sample.
61 Thus, the newly defined domestic industry 
represented approximately 36% of the total production of the like product in the 
European Union.62 
5.6.  In the review investigation, the Commission disclosed more information than it had given in 
the original investigation regarding "the product characteristics [that it had] found to be pertinent 
in the determination of the normal value[s]".63 The record reflects that the Chinese producers then 
requested more information regarding: (i) the "product types" used for the determination of the normal values; and (ii) the characteristics of the products sold by [Pooja Forge], in particular, 
information regarding "the models of products sold" and "a table matching type-by-type the 
products sold by [Pooja Forge] and the products sold by [the Chinese producers]".
64 The 
Commission informed the Chinese producers that the models65 sold by Pooja Forge were provided 
on a confidential basis and could not be disclosed.66 Additionally, the Chinese producers requested 
that adjustments be made for: (i) differences in ph ysical characteristics, namely, type of fastener; 
coating and use of chrome; diameter and length; traceability; standards; unit of defective rate; and hardness, bending strength, impact toughness, friction coefficient
67; as well as (ii) differences 
in efficiency of consumption of the raw material; in wire rod used for production; in electricity 
                                               
60 European Commission, Notice regarding the anti-d umping measures in forc e on imports of certain 
iron or steel fasteners originating in the People's Republic of China, following the recommendations and rulings adopted by the Dispute Settlement Body of the World Trade Organization on 28 July 2011 in the EC - Fasteners  
dispute (DS397), Official Journal of the European Union , C Series, No. 66 (6 March 2012), pp. 29-31 (Panel 
Exhibit CHN-2). 
61 Panel Report, para. 7.296. 
62 Review Regulation (Panel Exhibit CHN-3), recitals 112 and 115. 
63 Letter dated 30 May 2012 from the European Commission to interested parties including the 
disclosure document concerning no rmal value (Panel  Exhibit CHN-5). 
64 Letter dated 12 June 2012 on behalf of Changshu  to the European Commis sion requesting further 
information and clarification regarding the determination of normal value (Panel Exhibit CHN-8), pp. 5-6. 
See also Letter dated 13 June 2012 on behalf of Biao Wu to the European Commission in response to the 
Commission's letter of 30 May 2012 (Panel Exhibit CHN-6); Letter dated 12 June 2012 on behalf of Ningbo Jinding to the European Commissi on requesting further information and clarification regarding the 
determination of normal value (Panel Exhibit CHN-9). 
65 We note certain discrepancies in the terminology used in this dispute, in particular, in the usage of 
the term "model(s)". We note that the Commission, in  Panel Exhibits CHN-11 and CHN-12, appears to have 
used the term "models" to mean specific products. This understanding is further reinfo rced by the fa ct that the 
Commission informed the Chinese intere sted parties that Pooja Forge did no t want to disclose information on 
"models actually manufactured and sold". (Report of the Hearing with the Commission of 11 July 2012, 18 July 2012 (Panel Exhibit CHN-30), internal p. 5) We also note  the usage of the term "mod el(s)" by the Panel. In 
particular, in making its findings under Article 2.4.2 of the Anti-Dumping Agreement, the Panel relied on, 
inter alia , the Appellate Body's ruling in US – Softwood Lumber V , where the Appellate Body indicated that the 
multiple averaging technique is performed by dividing  the "like product … into product types or models". 
(Appellate Body Report, US – Softwood Lumber V , para. 80) This would mean that  the term "models" refers to 
different groupings of products dete rmined by the investigating authorit y for the purpose of the weighted 
average-to-weighted average (WA-WA) comparison. The Panel, however, appears to have used the term 
"model(s)" to refer, at time s, to the groupings of products (see e.g.  Panel Report, para. 7.270) and, at other 
times, to specific products (see e.g. Panel Report, para. 7.144). For the purposes of this Report, unless otherwise indicated, we use the term "model" to refer to the different  product groupings that the Commission 
used in the "multiple averaging" technique. 
66 E-mail dated 26 June 2012 from the European Commission concerning CCCME, Biao Wu, and Jiashan 
(Panel Exhibit CHN-11); E-mail dated 21 June 2012 from the European Commission concerning Changshu and 
Ningbo Jinding (Panel Exhibit CHN-12). 
67 Letter dated 13 June 2012 on behalf of Biao Wu to the European Commission in response to the 
Commission's letter of 30 May 2012 (Panel Exhibit CHN-6). WT/DS397/AB/RW 
 
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 consumption; in use of self-generated electricity;  in productivity per employee; and in reasonable 
profit level.68 
5.7.  Following the comments of the Chinese pr oducers, the Commission, after analysing the 
description text string of sales coding used by  Pooja Forge (which was contained in the DMSAL 
file), framed and disclosed the "revised PCNs" ba sed on the following elements: (i) the distinction 
between standard and special fasteners; (ii) strength class; (iii) coating; (iv) diameter (ranged into three equal bands); and (v) length (ranged into three equal bands), which it intended to use for 
the purposes of the normal value and dumping margin calculations
69 instead of the "product types" 
used in the original investigation. As the record further shows, the Chinese producers continued to seek clarification from the Commission with respect to the adjustments claimed by them and the confidential treatment of the information subm itted by Pooja Forge. The Chinese producers 
requested the disclosure of "the list of normal va lue product types", indicating to which export PCN 
they were compared; disclosure of the sales code identifying diameter and length; and information regarding additional physical characteristics of the normal value product type, including chrome 
and coating.
70 The Commission reiterated that the description text strings were confidential and 
Pooja Forge did not want to disclose the "models" it had sold to its competitors.71 
5.8.  On 31 July 2012, as part of its final di sclosure, the Commission issued the "General 
Disclosure Document" and gave the Chinese producers three weeks to submit comments.72 Along 
with the General Disclosure Document, the Commission provided company-specific disclosures, which revealed detailed dumping margin calculations.
73 We note that, in these calculation sheets, 
the transactions were organized by reference to th e revised PCNs, including six letters (i.e. coating 
by codes A to N; use of chrome by yes or no and codes P or Q; type of fastener by codes PCN 0 
to 9; strength by codes A to Y; diameter by code s S, M, and L; and length by codes S, M, and L). 
These disclosures indicated the characteristics of the products exported by the Chinese producers 
and those sold domestically by Pooja Forge as per the revised PCNs. When there was a match 
between export transactions and domestic transactions, the same was taken into account for the purposes of the dumping margin calculations. Export transactions for which there was 
no corresponding domestic transaction were excluded from the purview of the dumping 
calculations.  
5.9.  In their comments on the General Disclosure Document, the Chinese producers raised several 
issues regarding the obligation of the Commission to make a fair comparison between the normal 
values and the export prices, including, in particular: (i) the disclosure of "normal value product 
types"; (ii) the need for indications on how to substantiate requests for adjustments; (iii) the need for full disclosure on how adjustments had been made; and (iv) the obligation not to disregard any 
comparable export transactions in the calculation of the dumping margins.
74 The 
Chinese producers also elaborated on a number of  adjustments that had been rejected by the 
Commission in the General Disclosure Document, in particular, adjustments for differences relating 
to: (i) access to raw materials; (ii) use of self-generated electricity; and (iii) efficiency and 
                                               
68 Letter dated 13 June 2012 on behalf of Ningbo Jinding to the European Commission concerning the 
disclosure of 30 May 2012 (Panel Exhibit CHN-33); Lett er dated 13 June 2012 on behalf of Changshu to the 
European Commission concerning the disclosure of 30 May 2012 (Panel Exhibit CHN-34). 
69 Letter dated 5 July 2012 from the European Commission to interested parties (Panel Exhibit CHN-15); 
R548: WTO Fasteners Implementation Review, Note for th e File dated 11 July 2012 on the Reclassification of 
normal value from one producer in India (Panel Exhibit CHN-17). 
70 Letter dated 11 July 2012 on behalf of CCCME and Biao Wu to the European Commission concerning 
the disclosure of 5 July 2012 (Panel Exhibit CHN-27). 
71 Report of the Hearing with the Commission of 11 July 2012, 18 July 2012 (Panel Exhibit CHN-30), 
internal p. 5. 
72 Cover letter to the General Disclosure Document dated 31 July 2012 (Panel Exhibit CHN-22); General 
Disclosure Document, R548: Anti-dumping measures in force on imports of certain iron or steel fasteners 
originating in the People's Republic of China: implem entation of the recommendations and rulings adopted by 
the Dispute Settlement Body of the World Trade Organization on 28 July 2011 in the EC – Fasteners dispute (DS397), 31 July 2012 (Panel Exhibit EU-4).  
73 Calculations for Biao Wu (Panel Exhibit CHN-44); Calculations for Ningbo Jinding (Panel Exhibit 
CHN-45); Calculations for Changs hu (Panel Exhibit CHN-46). 
74 Letter dated 20 August 2012 on behalf of CCCME and Biao Wu to the European Commission 
containing comments on the disclosure of 31 July 2012 (Panel Exhibit CHN-23). WT/DS397/AB/RW 
 
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 productivity.75 Thereafter, the European Union issued th e Review Regulation, which, in China's 
request for the establishment of a panel, was identified as being the measure at issue that failed fully and correctly to implement the recommendat ions and rulings of the DSB in the original 
proceedings.
76 
5.2  Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement 
5.2.1  The Panel's terms of reference 5.10.  Before the Panel, the European Union argued that China was precluded from raising its 
claims under Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement in the compliance proceedings 
because it had already raised the same claims in the original proceedings and they were ultimately rejected by the Appellate Body.
77  
5.11.  The Panel found that, "in terms of its object, the present claim is distinct from the original 
claim."78 The Panel clarified that "[t]he present claim concerns information on the 'list and 
characteristics' of the products sold by Pooja Fo rge, whereas the original claim was presented with 
respect to the entirety of Pooja Forge's questio nnaire response but was pursued only with respect 
to information on [Pooja Forge's] product types."79 In support of this conclusion, the Panel noted 
that the "list and characteristics" were not subm itted in Pooja Forge's questionnaire response, but 
were submitted later on, in the DMSAL file and in the company brochure provided by Pooja Forge 
to the Commission during a verification visit in April 2008.80  
5.12.  On appeal, the European Union claims that the Panel wrongly concluded that the claims 
made in the original and in the compliance proceedings took issue with different types of information.
81 The European Union argues that, in the compliance proceedings, China took issue 
again with the same information, namely, Pooja Forge's "product characteristics", albeit using a 
different terminology.82 Therefore, the European Union contends that "[n]othing changed when 
compared with the facts as challenged by China in the original proceedings", and that China raises 
the "same claim against the same underlying facts in the context of the review investigation".83  
5.13.  China responds that the claim by the Europe an Union that the Panel erred in concluding that 
the objects of the claims in the original and compliance proceedings were different concerns the 
Panel's assessment of the facts and we should dismiss it as the European Union did not raise a 
claim under Article 11 of the DSU.84 Moreover, China argues that, in the original proceedings, its 
claim under Article 6.5 was about "product types", no t about "product characteristics" or the list of 
products.85 China explains that "product types" is a term "that [was] used in the original dispute 
settlement proceedings to designate the 'product categories upon which the Commission based its 
comparison between normal value[s] and export prices' in the original investigation".86 With the 
"list of products", China refers to the list of item codes in the DMSAL file87, and, with the 
"characteristics", China refers to information regarding the characteristics of Pooja Forge's 
products concerning at least the type of coating, chrome, diameter, length, and types of fasteners.
88 
5.14.  The first question before us is whether the European Union's claim concerning the Panel's 
terms of reference under Articles 6.5 and 6.5.1 is such that it could only have been raised on 
                                               
75 Comments dated 14 August 2012 on behalf of Ningbo Jinding on the disclosure of 31 July 2012 (Panel 
Exhibit CHN-28); Comments dated 14 August 2012 on behalf  of Changshu on the disclosure of 31 July 2012 
(Panel Exhibit CHN-28). 
76 WT/DS397/18, para. 11. 
77 Panel Report, paras. 7.13 and 7.20. 
78 Panel Report, para. 7.30.  
79 Panel Report, para. 7.30. See also Original Panel Report, para. 7.524. 
80 Panel Report, paras. 7.31-7.33. 
81 European Union's appellant's submission, para. 124. 
82 European Union's appellant's submission, para. 132. 
83 European Union's appellant's submission, para. 133. 
84 China's appellee's submission, para. 41. 
85 China's appellee's submis sion, paras. 46 and 50. 
86 China's response to Panel question No. 12.a,  para. 56. (emphasis omitted; fn omitted) 
87 China's appellee's submission, para. 50. 
88 China's appellee's submission, para. 50. See also China's response to Panel question No. 9, para. 47. WT/DS397/AB/RW 
 
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 appeal under Article 11 of the DSU. We observe that whether the information whose confidential 
treatment was at issue in the original proceedings is the same as the information whose confidential treatment is at issue in these co mpliance proceedings may involve factual aspects, 
which we would not be able to review on appeal in the absence of a claim under Article 11 of the 
DSU. At the same time, ascertaining whether the information is the same will in this case 
determine whether the Panel had jurisdiction under Article 21.5 of the DSU to address China's claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement. In the light of this, we 
are of the view that the European Union's term s of reference claim should be treated as one 
concerning the application of the law to the facts,  rather than a purely factual issue that should 
have been raised under Article 11 of the DSU. 
5.15.  Turning to the European Union's claim, we recall that, in EC – Bed Linen (Article 21.5  – 
India) , the Appellate Body stated that a complainant should not be allowed to raise claims in 
compliance proceedings that were already raised and dismissed in the original proceedings in respect of a component of the implementation measure that is the same as in the original 
measure.
89 However, in subsequent disputes, the Appellate Body clarified  that the same claim with 
respect to an unchanged element of the measure can be re-litigated in Article 21.5 proceedings if, in the original proceedings, the matter was not resolved because, for instance, the Appellate Body 
was not able to complete the analysis.
90  
5.16.  To succeed in claiming that China could no t raise its claims under Articles 6.5 and 6.5.1 of 
the Anti-Dumping Agreement before the Panel, th e European Union needed to demonstrate that 
the claims are the  same claims that were raised in the original proceedings, and that these claims 
were resolved  in the original proceedings.91 We thus begin our analysis by considering whether the 
claims raised by China in these compliance pr oceedings under Articles 6.5 and 6.5.1 are the same 
claims that China raised in the original proceedings. Only if we conclude that these are in fact the 
same  claims, shall we need to address the question of whether such claims were resolved  in the 
original proceedings.  
5.17.  We agree with the Panel that the question to be answered in order to determine whether 
the claims raised in the original and in the comp liance proceedings are the same claims is whether 
the "object" of the claims is the same.92 We understand the object of the claim to be the 
information that the Commission treated as confid ential within the meaning of Article 6.5. In 
addressing this question, we briefly recall relevant findings made by the Panel. 
5.18.  In the original investigation, the questionnaire sent by the Commission to the 
Chinese producers and Pooja Forge required that information on the products be provided based 
on the original PCNs composed of six elements . However, Pooja Forge failed to provide the 
information in the detailed manner as was required under the original PCNs. The 
Chinese producers that had submitted the information according to the original PCNs, however, assumed that the Commission would conduct the comparison between the normal values and the 
export prices based on the original PCNs. In the final disclosure, the Commission informed the 
Chinese producers that it had not conducted the comparison based on the full PCNs, but rather on "product types", without at that stage providing any information as to those "product types" or 
                                               
89 Appellate Body Report, EC – Bed Linen (Article 21.5  – India) , paras. 96 and 98. See also 
Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 96. In US – Zeroing (EC) (Article 21.5 – 
EC), the Appellate Body further clarifie d that a panel has jurisdiction un der Article 21.5 in respect of new 
"claims against a measure taken to comply  – that is, in principle, a new and di fferent measure" and that "[t]his 
is so even where such a measure take n to comply incorporates  components of the original measure that are 
unchanged, but are not separable from other aspects of  the measure taken to comply." (Appellate Body 
Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 432) 
90 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 210. For the same reasons, 
the Appellate Body has suggested that the same claim that was dismissed in the original proceedings due to an exercise of judicial economy could also be raised in th e compliance proceedings. (S ee Appellate Body Reports, 
US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , para. 148; and EC – Bed Linen 
(Article 21.5 – India) , fn 115 to para. 96)  
91 Indeed, as the Appellate Body explained in US – Upland Cotton (Article 21.5 – Brazil) , the exclusion of 
jurisdiction for an Article 21.5 panel in respect of claims  that are the same as clai ms raised in the original 
proceedings applies when such claims have been resolved  in the original proceedings. (Appellate Body Report, 
US – Upland Cotton (Article 21.5 – Brazil) , para. 210)  
92 Panel Report, para. 7.30. WT/DS397/AB/RW 
 
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 how they were determined.93 The Commission thereafter clarified that these "product types" were 
made of two elements: strength class and th e distinction between special and standard 
fasteners.94  
5.19.  Thus, in the original investigation, the Commission treated as confidential95 and did not 
disclose the "product types" it used to compare no rmal values and export prices for the purpose of 
determining the dumping margins until late in the proceedings and after repeated requests from the Chinese producers.
96 These "product types" were based on part of the elements of the original 
PCNs. The difference between using full PCNs, on  the one hand, and using the "product types" 
identified by the Commission, on the other hand , was described by the Appellate Body in the 
original proceedings as follows:  
[T]he PCNs include six elements further divided into 38 specifications, which could 
have resulted in hundreds of different comb inations. Yet, the PCN characteristics and 
the product types overlap only with regard  to one element, namely, the strength 
class.97  
5.20.  In the review investigation, following th e recommendations and rulings of the DSB that the 
European Union had acted inconsistently with Arti cles 6.4 and 6.2 of the Anti-Dumping Agreement 
by not providing a timely opportunity to the Chinese producers to see the information regarding 
the "product types", the Commission disclosed more precise information regarding the product 
characteristics that had been found to be pertin ent in the determination of the normal values, 
including information about Pooja Forge's "product types" and certain characteristics of Pooja Forge's products, such as coating, le ngth, and diameter. These disclosures led the 
Chinese producers to seek further information on the "product types" and the "precise and detailed 
characteristics" of the products sold by Pooja Forge
98, which the Commission stated were provided 
on a confidential basis and could not be disclosed.99 
5.21.  It follows that the Commission never fully disclosed the relevant product information 
concerning the dumping calculations. The partial disclosures that were made in the original and in the review investigation prompted the Chinese producers to request further information that they 
considered relevant to their cases. The requests for further disclosure by the Chinese producers in 
the review investigation were prompted by, and based, on information that the Commission had initially treated as confidential. As such, these requests and the Commission's treatment of the information as confidential and its non-disclosure cannot concern the same information that 
the Commission treated as confidential in the original investigation. 
5.22.  Thus, the objects of China's claims under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement in the original and in the compliance proceedings are not the same. China's claims 
under Articles 6.5 and 6.5.1 in the original procee dings concerned the confidential treatment of all 
                                               
93 Appellate Body Report, EC – Fasteners (China) , paras. 470-472. See also Original Panel Report, 
para. 7.485. 
94 Appellate Body Report, EC – Fasteners (China) , para. 475.  
95 In the original investigation, the Commission also treated as confidential all of the information 
contained in Pooja Forge's questionnaire response. This  information, however, did not include the "list and 
characteristics" of Pooja Forge's products, which were  submitted subsequently by Pooja Forge during the 
verification visit of April 2008 by providing, inter alia , the DMSAL file and the company brochure. 
96 In a letter dated 21 November 2008, the Commission replied to the request from Chinese producers 
stating: 
The comparison was not made on the basis of the full PCN, but on part [sic] of the characteristics 
of the product, namely the strength class as well as the abovementioned distinction between special and standard products. 
(Original Panel Report, para. 7.489 (quoting Letter dated 21 November 2008 from the European Commission to Van Bael & Bellis in response to Kunshan Chenghe's and Ningbo Jinding's requests of 17 November 2008 (Original Panel Exhibit CHN-31), p. 2 (e mphasis added by the original panel)) 
97 Appellate Body Report, EC – Fasteners (China) , para. 498. We recall that the types of fasteners by 
CN code included in the original PCNs were replaced by the distinction between standard and special fasteners when the Commission decided to  use the "product types" in the original investigation.  
98 Letter dated 12 June 2012 on behalf of Changshu to the European Commission (Panel Exhibit CHN-8), 
p. 5; Letter dated 12 June 2012 on behalf of Ningbo Jinding to the European Commission (Panel 
Exhibit CHN-9), p. 5; Letter dated 13 June 2012 on behalf of Biao Wu to the European Commission (Panel 
Exhibit CHN-6), pp. 3-4.  
99 Panel Report, paras. 7.70-7.74. WT/DS397/AB/RW 
 
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 the information provided in Pooja Forge's questionnaire100 and the "product types" (i.e. the 
strength class and the distinction between special and standard fasteners) that the Commission used to make the dumping calculations. China's claims under Articles 6.5 and 6.5.1 in the compliance proceedings concerned the confidential  treatment of the list and characteristics of 
Pooja Forge's products, which the Chinese producers asked to see after the Commission had 
disclosed to them the "product types" and certain characteristics used in the price comparison in order to bring itself into compliance with the DSB's recommendations and rulings in the original 
proceedings under Articles 6.4 and 6.2 of the Anti-Dumping Agreement. 
5.23.  In addition to its finding that the claims at issue in the original and in the compliance 
proceedings were not the same, the Panel also noted that, in the review investigation, a fair amount of exchange of views took place betwee n the Commission and the Chinese producers with 
respect to the confidentiality of the information regarding the list and characteristics of 
Pooja Forge's products. The Panel considered these communications between the Commission and the Chinese producers to be an indication that this particular issue was closely related to the 
debate regarding the consistency of the measure taken by the European Union to comply with the 
DSB's recommendations and rulings in the original proceedings.
101 The European Union disagrees 
and contends that, since there were no DSB reco mmendations or rulings on the Article 6.5 claim 
with respect to information regarding Pooja Forg e, the Commission "was not required to modify 
such a treatment in the context of the review investigation".102 
5.24.  We recall that, in the original proceedings, the Appellate Body did not find a violation of 
Article 6.5. However, the measure that the Appella te Body did not find to be inconsistent with 
Article 6.5 is the same measure that it found to be inconsistent with Articles 6.4, 6.2, and 2.4, that 
is, the confidential treatment and the non-timely disclosure of information regarding the "product types". Therefore, the measure taken by the European  Union to comply with Articles 6.4, 6.2, and 
2.4 also addressed China's claims in the original proceedings under Article 6.5, in that it resulted in 
the disclosure of the same information that was the object of China's claim under Article 6.5 in the 
original proceedings.
103 
5.25.  To comply with the recommendations and rulings of the DSB that the European Union had 
acted inconsistently with Articles 6.4 and 6.2 by  not disclosing the information on the "product 
types" on a timely basis, and with Article 2.4 by failing to indicate to the parties what information 
was necessary to ensure a fair comparison, the Commission disclosed certain information 
concerning the determination of normal values, including the "product types", as well as 
information about certain characteristics of Pooj a Forge's products. As explained above, these 
disclosures led the Chinese producers to seek furt her information concerning the "product types" 
and the "precise and detailed characteristi cs" of the products sold by Pooja Forge104, which the 
Commission responded had been provided on a confidential basis and could not be disclosed.105 
                                               
100 This information did not include the "list and char acteristics" of Pooja Forge's products that were 
provided in the DMSAL file and in the company br ochure during the verification visit of April 2008. 
101 Panel Report, fn 73 to para. 7.34. 
102 European Union's appellant's submission, paras. 136-139, specifically para. 139. In particular, the 
European Union argues that "the fact that an issue wa s 'discussed' or ev en 'considered' in the context of a 
review investigation following the DSB's recommendations and rulings does not necessarily mean that there is 
a close nexus with the obligations arising for the resp onding Member from the orig inal DSB's recommendations 
and rulings." (Ibid., para. 138)  
103 In the original proceedings, the Appellate Body reversed the original panel's finding that the 
European Union had acted inconsistently with Article 6.5 of the Anti-Dumping Agreement with respect to the confidential information submitted by  Pooja Forge. The Appellate Body considered that China had failed to 
substantiate its claim that the confidential treatment of the information on product types submitted by Pooja Forge was improper, because it had asserted this cl aim late in the proceedings and only in response to 
questioning by the original pa nel. (Appellate Body Report, EC – Fasteners (China) , paras. 574-575) However, 
the Appellate Body upheld the original panel's finding that the European Union had acted inconsistently with Articles 2.4, 6.4, and 6.2 by not disclosing the informat ion on the "product types" on a timely basis. (Ibid., 
paras. 505, 507, and 527) 
104 Letter dated 12 June 2012 on behalf of Changs hu to the European Commission (Panel Exhibit 
CHN-8), p. 5; Letter dated 12 June 2012 on behalf of Ningbo Jinding to the European Commission 
(Panel Exhibit CHN-9), p. 5; Letter dated 13 June 2012 on behalf of Biao Wu to the European Commission 
(Panel Exhibit CHN-6), pp. 3-4.  
105 Panel Report, paras. 7.70-7.74. WT/DS397/AB/RW 
 
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 5.26.  Under these circumstances, the Commissio n's confidential treatment of the list and 
characteristics of Pooja Forge's products and their non-disclosure to the Chinese producers in the review investigation constitute an integral part of the measure taken to comply with the DSB's recommendations and rulings under Articles 6.4, 6.2, and 2.4 of the Anti-Dumping 
Agreement in the original proceedings, which comprises the disclosures made by the Commission 
aimed at providing the Chinese producers with information relevant to their cases. We are thus of the view that the claims raised in these compliance proceedings by China under Articles 6.5 
and 6.5.1 concerning the Commission's confidential  treatment of the information on the list and 
characteristics of Pooja Forge's products can be considered as claims against a measure taken to comply within the meaning of Article 21.5 of the DSU. 
5.27.  In the light of the above, and considering th at the objects of the claims are not the same, it 
cannot be said that the claims raised by China under Articles 6.5 and 6.5.1 in the compliance 
proceedings are the same claims China had raised under these provisions in the original proceedings and that were dismissed by th e Appellate Body. Moreover, the Commission's 
confidential treatment of the list and characteri stics of Pooja Forge's products constitutes an 
integral part of the measure taken to comply with the DSB's recommendations and rulings in the original proceedings. We thus consider that the Panel did not err in finding that China's claims in 
these compliance proceedings under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement were 
within its terms of reference. 
5.28.  We, therefore, uphold the Panel's finding, in paragraph 7.34 of its Report, that 
China's claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement were within the Panel's 
terms of reference. 
5.2.2  Whether the Panel erred in finding th at the European Union acted inconsistently 
with Article 6.5 of the Anti-Dumping Agreement 
5.29.  We turn now to consider the European Unio n's appeal of the Panel's findings on the merits 
of China's claim under Article 6.5 of the Anti-Dumping Agreement. The Panel concluded that, in the review investigation, the European Union acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement because the Commission accorded confidential treatment to information 
concerning the list and characteristics of Pooja Forge's products without conducting an objective 
assessment of whether such information was confidential by nature, or whether Pooja Forge had shown good cause for such treatment to be accorded to its information.
106 We begin with a brief 
overview of the relevant findings of the Panel und er Article 6.5, followed by a brief review of the 
relevant legal standard before turning to address each of the European Union's discrete claims on 
appeal.  
5.2.2.1  The Panel's findings 
5.30.  In support of its argument that Pooja Forg e had shown good cause to justify the confidential 
treatment of the information at issue, the Euro pean Union relied on Pooja Forge's request for 
confidential treatment. This request is reflected in an e-mail to the Commission, dated 
3 July 2012, which stated that "the list of the products sold by Pooja Forge cannot be provided because this information if disclosed, will give advantage to our competitor."
107 The Panel noted 
that the Commission had placed this e-mail on the confidential file of the investigation, to which 
the Chinese producers did not have access. The Panel considered that the Chinese producers were 
thus deprived of the opportunity to know of, an d respond to, the particular "good cause" alleged 
by Pooja Forge for the confidential treatment of it s information. In addition, the Panel considered 
that the e-mail contained "no more than a bald assertion" on the part of Pooja Forge and, 
therefore, did "not seem to support the argument  that Pooja Forge [had] provided good cause to 
justify the confidential treatment" of the information at issue.108 
5.31.  The Panel further noted the European Union's statement that there was "not much" on the 
record in the form of an explicit reference to the Commission's assessment of Pooja Forge's 
request, because the Chinese producers "never co ntested" the confidentiality of "Pooja Forge's 
                                               
106 Panel Report, paras. 7.44-7.46 and 7.50. 
107 Panel Report, para. 7.42 (quoting E-mail dated 3 July 2012 from Pooja Forge to the 
European Commission (Panel Exhibit EU-2)). 
108 Panel Report, para. 7.44. WT/DS397/AB/RW 
 
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 product range" in the original investigation.109 The Panel characterized this statement as an 
"admission", and considered that there was "no do ubt" that the Commission "never performed" an 
objective assessment of whether the information at issue was confidential by nature, or whether good cause had been shown to justify its confidential treatment.
110 
5.32.   Before concluding its analysis of China's claim under Article 6.5, the Panel noted that 
although the European Union had argued, in connec tion with China's claim under Article 6.5, that 
the information regarding the list and characterist ics of Pooja Forge's products was confidential, 
the European Union had argued, in connection with China's claims under Articles 6.4 and 6.2, that 
some of this information was disclosed to the Ch inese producers. For example, the European Union 
argued that, through a letter dated 5 July 2012, the Commission provided the Chinese producers with information regarding the characteristics of Pooja Forge's products, in particular on coating 
and diameter. In the Panel's view, this "undermine [d]" the European Union's contention that the 
information at issue was confidential and that g ood cause had been shown by Pooja Forge for its 
confidential treatment.
111 
5.33.  In the light of these considerations, the Panel found that the European Union acted 
inconsistently with Article 6.5 of the Anti-D umping Agreement in the review investigation.112 
5.34.  We recall below pertinent aspects of the legal standard under Article 6.5 that governs the 
confidential treatment of information in anti-dumping investigations.  
5.2.2.2  The "good cause" requirement under Article 6.5 of the Anti-Dumping Agreement 
5.35.   Article 6.5 and footnote 17 theret o of the Anti-Dumping Agreement provides: 
Any information which is by nature confidential (for example, because its disclosure 
would be of significant competitive advantage to a competitor or because its 
disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or 
which is provided on a confidential basis by parties to an investigation shall, upon 
good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it.* 
[*original fn] Members are aware that in the terri tory of certain Members disclosure pursuant to 
a narrowly-drawn protective  order may be required. 
5.36.  Article 6.5 of the Anti-Dumping Agreem ent requires that, "upon good cause shown", 
investigating authorities treat as confidential information that is "by nature confidential", or that has been provided by parties to an investigation on a confidential basis. Article 6.5.1 requires that, 
for information that has been accorded confidential  treatment, a non-confidential summary of that 
information be provided by parties submitting the confidential information, unless, in "exceptional circumstances", summarization is not possible. Wh ere summarization is not possible, a statement 
of reasons as to why this is the case must be provided. Hence, Articles 6.5 and 6.5.1 
accommodate the concerns of confidentiality, transparency, and due process by protecting 
information where good cause has been shown fo r confidential treatment, while providing an 
alternative method for its communication so as to satisfy the right of other parties to the 
investigation to obtain a reasonable understanding of the substance of the confidential 
information.
113  
5.37.  Article 6.5 applies to both information that is confidential by nature, and information that 
has been submitted to authorities on a confidential basis.114 The Appellate Body has found that the 
                                               
109 Panel Report, para. 7.45 (quoting European Un ion's response to Panel question No. 6.b). 
110 Panel Report, para. 7.46. 
111 Panel Report, para. 7.48. 
112 Panel Report, para. 7.50. 
113 Appellate Body Report, EC – Fasteners (China) , para. 542. 
114 In the original proceedings, the Appellate Body dr ew a distinction between these two categories of 
information, while noting that they may, in practice, overlap. Whether information is confidential "by nature" 
depends on the content  of that information. By co ntrast, information submitted on  a confidential basis is not 
necessarily confidential by reason of its content. In stead, confidentiality in this context arises from the WT/DS397/AB/RW 
 
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 requirement to show "good cause" applies to both categories of information.115 The Appellate Body 
has further clarified that, as used in Article 6.5, "good cause" means a reason sufficient to justify withholding information from both the public and the other parties to the investigation, and that a showing of "good cause" involves a demonstration of a risk of a potential consequence, the 
avoidance of which is important enough to warrant the non-disclosure of the information.
116  
5.38.  Thus, Article 6.5 prescribes "good cause" as a condition precedent for according confidential 
treatment to information submitted to an authority.  In this regard, the Appellate Body considered 
in the original proceedings that, if information is treated as confidential by an authority without a 
showing of "good cause", the authority would be acting inconsistently with the obligations under Article 6.5.
117  
5.39.  Investigating authorities and parties submitting information to them have distinct roles 
under Article 6.5. The Appellate Body has stated that it is for the party requesting confidential 
treatment of its information to furnish reasons ju stifying such treatment, but the authority must 
assess those reasons and determine, objectively,  whether the submitting party has shown "good 
cause".118 The type of evidence and the extent of subs tantiation needed will depend on the nature 
of the information and the particular good cause alleged. An authority, in its assessment, must seek to balance the submitting party's interest in protecting its confidential information with the 
prejudicial effect that non-disclosure may have on the transparency and due process interests of 
other parties involved in the investigation. "[G]ood cause", within the meaning of Article 6.5, "cannot be determined merely based on the subjective concerns" of the party submitting the information at issue.
119 
5.40.  The Appellate Body further considered in China – HP-SSST (EU) / China – HP-SSST (Japan)  
that a WTO panel, tasked with reviewing whether an authority has objectively assessed "good cause", is to do so on the basis of the investigating authority's published report and its related 
supporting documents, in the light of the nature of  the information at issue, and the reasons given 
by the submitting party for its request for conf idential treatment. In reviewing whether an 
authority has objectively assessed "good cause", it is not for a panel to engage in a de novo  review 
of the record of the investigation and determine for itself whether the existence of "good cause" 
has been sufficiently substantiated by the submitting party.
120  
5.41.  With these considerations in mind, we turn now to examine the discrete claims raised by the 
European Union under Article 6.5. 
5.2.2.3  Whether the Panel erred in its treatment of Pooja Forge's request for 
confidential treatment of the information at issue 
5.42.  In support of its claim that the Panel erred in finding that the European Union acted 
inconsistently with Article 6.5 of the Anti-Dum ping Agreement, the European Union advances a 
series of arguments that take issue with the Panel's treatment of Pooja Forge's request for confidential treatment. As noted above, this request is reflected in an e-mail to the Commission, 
dated 3 July 2012, in which Pooja Forge stated that "the list of the products sold by Pooja Forge 
cannot be provided because this information if disclosed, will give advantage to our competitor."
121 
The European Union asserts, first, that the Panel disregarded this e-mail on the misguided ground 
that it had been placed on the confidential file of the investigation, to which the Chinese producers 
did not have access.122 The European Union contends that, by "excluding" the information in the 
e-mail from its consideration, and limiting its analysis to the information "actually set forth or 
                                                                                                                                               
circumstances in which the information has been prov ided to an authority. (Appellate Body Report, 
EC - Fasteners (China) , para. 536) 
115 Appellate Body Report, EC – Fasteners (China) , para. 537. 
116 Appellate Body Report, EC – Fasteners (China) , para. 537. 
117 Appellate Body Report, EC – Fasteners (China), para. 539. 
118 Appellate Body Report, EC – Fasteners (China) , para. 539. 
119 Appellate Body Reports, China – HP-SSST (EU) / China – HP-SSST (Japan) , para. 5.95 (quoting 
Appellate Body Report, EC – Fasteners (China),  para. 537). 
120 Appellate Body Reports, China – HP-SSST (EU) / China – HP-SSST (Japan) , para. 5.97. 
121 Panel Report, para. 7.42 (quoting E-mail dated 3 July 2012 from Pooja Forge to the 
European Commission (Panel Exhibit EU-2)). 
122 European Union's appellant's submission, para. 224. WT/DS397/AB/RW 
 
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 specifically referenced in the determination at issue and available in the public record", the Panel 
acted inconsistently with Article 17.5(ii) of the Anti-Dumping Agreement.123  
5.43.  At the outset, we recall that China had requested the Panel not to take Pooja Forge's e-mail 
into account in its analysis under Article 6.5 because it was not a part of the record of the 
investigation.124 Subsequently, the European Union clarified that the e-mail at issue had been 
placed on the confidential, rather than public, file of the record of the investigation.125 The Panel 
considered that the failure of the Commission to  place the e-mail on the public file of the 
investigation deprived the Chinese producers of the opportunity to know of, and respond to, the 
"good cause" alleged by Pooja Forge for the confiden tial treatment of the information at issue. The 
Panel further stated that, "[i]n any case", the e-mail, "in terms of its contents", did not seem to support the argument that Pooja Forge had prov ided good cause to justify the confidential 
treatment of its information.
126 According to the Panel, the e-mail contains "no more than a bald 
assertion" on the part of Pooja Forge.127  
5.44.  In our view, contrary to what the European Union appears to assert, the Panel did not 
"disregard" Pooja Forge's e-mail in its consideration of China's claim under Article 6.5. Instead, the 
Panel clearly engaged with the content of that e-mail and found that it contained "no more than a bald assertion", which, in the Panel's view, was insufficient to support the conclusion that 
Pooja Forge had shown good cause for the confid ential treatment of the information at issue.
128 
Accordingly, we do not agree with the European  Union that the Panel excluded Pooja Forge's 
e-mail from its consideration of China's claim under Article 6.5 and, thereby, acted inconsistently with Article 17.5(ii) of the Anti-Dumping Agreemen t. At this stage of our analysis, we are merely 
disagreeing with the European Union's assertion that the Panel did not take Pooja Forge's e-mail 
into account in its analysis of China's claim under Article 6.5. We discuss at a later stage of our analysis the European Union's challenge to the Panel's finding that Pooja Forge's e-mail contained 
only a "bald assertion".
129  
5.45.  The European Union further challenges the Panel's statement that, because the e-mail from 
Pooja Forge had been placed on the confidential file of the investigation, the Chinese producers 
were deprived of an opportunity to know of, and respond to, the particular good cause alleged by 
Pooja Forge for the confidential treatment of the information at issue. The European Union 
contends that the evidence on the record contradicts the Panel's statement. In particular, the European Union relies on the "Hearing Officer's Report"
130 dated 18 July 2012, which, in the 
European Union's view, demonstrates that the Chinese producers, in fact, knew of, and had ample 
opportunity to respond to, the particular good ca use alleged by Pooja Forge. The European Union 
contends that the Panel's finding that the Chines e producers were deprived of the opportunity to 
respond to Pooja Forge's request not only amounts to  an error in applying Article 6.5 to the facts, 
but also falls short of the Panel's duty under Article 11 of the DSU.131  
5.46.  The Appellate Body has stated that, in most  cases, the issue raised by a particular claim 
"will either  be one of application of the law to the facts or an issue of the objective assessment of 
                                               
123 European Union's appellant's submission, para. 223. 
124 Panel Report, para. 7.43. 
125 European Union's response to Panel question No. 10, para. 46. 
126 Panel Report, para. 7.44. 
127 Panel Report, para. 7.44. 
128 Indeed, there appears to be an inconsistency in  the arguments put forward by the European Union 
concerning the Panel's treatment of the e-mail from Pooj a Forge. On the one hand, the European Union argues 
that the Panel erred by "disregarding" the e-mail in its consideration of Chin a's claim under Article 6.5. Yet, on 
the other hand, the European Union claims that the Pane l erred in finding that, in terms of its contents, the 
e-mail contains no more than a bald assertion on the pa rt of Pooja Forge, which was insufficient to support the 
conclusion that good cause had been shown by Pooja Forg e for the confidential treatment of the information at 
issue. (European Union's appellant's submission, paras.  224 and 226) Thus, the European Union challenges the 
substance of the Panel's assessment of the content of th e e-mail, yet, at the same time, alleges that the Panel 
disregarded the e-mail in its consideration of China's claim. We note, in addition, that these claims are not framed as alternative claims.  
129 Panel Report, para. 7.44. 
130 Report of the hearing of the European Commission held on 11 July 2012 concerning R548 Iron or 
steel fasteners originating in the People's Republ ic of China, 18 July 2012 (Panel Exhibit CHN-30). 
131 European Union's appellant's  submission, paras. 224-225. WT/DS397/AB/RW 
 
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 facts, and not both".132 Allegations implicating a panel's appreciation of the facts and evidence fall 
under Article 11 of the DSU133, while "[t]he consistency or inconsistency of a given fact or set of 
facts with the requirements of a given treaty provis ion" is a question of legal characterization and, 
therefore, a legal question.134 It seems to us that, essentially, the European Union takes issue with 
the Panel's appreciation of the evidence when it stated that, because Pooja Forge's e-mail to the 
Commission was placed on the confidential file of the investigation, the Chinese producers were deprived of the opportunity to know of, and re spond to, the particular good cause alleged by 
Pooja Forge.
135 Thus, in our view, the European Union's claim implicates the Panel's appreciation of 
the evidence before it and, accordingly, we consider this claim under Article 11 of the DSU. 
5.47.  The European Union relies on the Hearing Officer's Report, which, in the European Union's 
view, demonstrates that the Chinese producers were aware of, and thus had an opportunity to 
respond to, the particular good cause alleged by Pooja Forge – i.e. that disclosure of the 
information at issue would confer an advantage to Pooja Forge's competitor. The Hearing Officer's Report reads, in relevant part, as follows: 
The company considers the information as confidential and does not want to disclose 
it to competitors, in particular the information on models actually manufactured and sold as opposed to models that can potentially be manufactured. The Commission's 
practice is to proceed with extreme care. If the Commission is not satisfied that it is 
confidential, the information would normally be rejected and facts available would be 
used. In this particular case, the company has been again asked at this late stage and refused again to disclose. Therefore the Commission will stand by the company's 
request to treat the information as confidential.
136 
5.48.  In examining the passage of the Hearing Officer's Report on which the European Union 
relies137, we see merit in China's contention that, on its face, the Hearing Officer's Report merely 
states that Pooja Forge did not wish to disclose its information to competitors without providing a 
specific reason as to why it wished not to do so.138 In these circumstances, we do not consider that 
the Hearing Officer's Report put the Chinese producers on notice that Pooja Forge had requested 
confidential treatment for its information on the ground that disclosure of such information could 
confer a competitive advantage to its competitors. Instead, the above passage of the Hearing Officer's Report suggests that the Chinese producers may also have been under the impression that the Commission was according confidential treatment to the information at issue simply 
because Pooja Forge had "been again asked at this late stage" to disclose the information and 
"refused again to disclose".
139 In this regard, we note China's contention that the 
Chinese producers repeatedly complained to the Commission about the absence of a showing of 
"good cause" by Pooja Forge and, in response, the Hearing Officer noted that "the Indian producer 
accepted to cooperate only under the condition that all details concerning its company would remain confidential and reiterated this position in a recent communication."
140  
5.49.  In the light of the above, we do not cons ider that the Panel erred in its assessment of the 
facts merely because it did not refer to the Hearing Officer's Report, or attribute the same weight that the European Union attributes to that piece of evidence. As the Appellate Body has stated in 
previous disputes, "it is generally within the discretion of [a] [p]anel to decide which evidence it 
chooses to utilize in making findings"
141, and the mere fact that a panel has not explicitly referred 
                                               
132 Appellate Body Report, China – GOES , para. 183 (quoting Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 872 (emphasis original)). 
133 Appellate Body Report, China – GOES , para. 183 (referring to Appellate Body Reports, US – Upland 
Cotton , para. 399; US – Upland Cotton (Article 21.5 – Brazil) , para. 385; and EC and certain member States – 
Large Civil Aircraft , para. 1005). 
134 Appellate Body Report, China – GOES , para. 183 (quoting Appellate Body Report, EC – Hormones , 
para. 132). 
135 In particular, the European Union cites the Hear ing Officer's Report as evidence that allegedly 
contradicts the Panel's finding. 
136 Hearing Officer's Report (Pan el Exhibit CHN-30), p. 5.  
137 European Union's appellant's submission, para. 224. 
138 China's appellee's submission, para. 180. 
139 Hearing Officer's Report (P anel Exhibit CHN-30), p. 5. 
140 China's appellee's submission, para. 181 (quoting Letter dated 17 July 2012 from the Hearing Officer 
of the European Commission (P anel Exhibit CHN-20), p. 1). 
141 Appellate Body Report, US – Carbon Steel (India) , para. 4.78 (quoting Appellate Body Report, 
EC - Hormones , para. 135). WT/DS397/AB/RW 
 
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 to each and every piece of evidence in its reasoning is insufficient to establish a violation of 
Article 11.142 Accordingly, we do not consider that the Panel exceeded the boundaries of its 
discretion as the trier of facts in finding that the Chinese producers were not aware of the particular good cause alleged by Pooja Forge for the confidential treatment of the information at 
issue. Thus, we find that the Panel did not act inconsistently with Article 11 of the DSU in this 
regard.  
5.50.  We turn now to consider the European Union's further claim that the Panel erred in finding 
that Pooja Forge's e-mail to the Commission reques ting confidential treatment of the information 
at issue contained "no more than a bald assertion" on the part of Pooja Forge that did not seem to support the argument that Pooja Forge had provided good cause to justify the confidential treatment of its information.
143 The European Union contends that the Panel failed to follow the 
guidance of the Appellate Body in the original proceedings that "the type of evidence and the 
extent of substantiation an authority must require will depend on the nature of the information at 
issue and the particular 'good cause' alleged."144 According to the European Union, the Panel was 
required to examine whether, in the light of the nature of the information at issue and the 
particular good cause alleged by Pooja Forge, the statement contained in the e-mail was sufficient to establish that the Commission objectively assessed "good cause" for the purposes of Article 6.5 
of the Anti-Dumping Agreement. 
5.51.  For its part, China recalls that, in the original proceedings, the Appellate Body emphasized 
that "good cause", within the meaning of Article 6. 5, involves a demonstration of "the risk of a 
potential consequence, the avoidance of which is important enough to warrant the non-disclosure 
of the information" at issue.
145 Thus, China submits that, in the absence of such a risk being 
identified, there is no good cause shown by th e party submitting information for confidential 
treatment. Noting the Appellate Body's finding th at "[t]he type of evidence and the extent of 
substantiation an authority must require will depend on the nature of the information at issue and 
the particular 'good cause' alleged"146, China asserts that this guidance becomes relevant once 
"the risk of a potential consequence" has been id entified. China contends that, in the present case, 
Pooja Forge merely stated that the disclosure of certain information would "provide an advantage 
to a competitor", and that this does not establish a "risk of a potential consequence".147 Thus, 
contends China, the Panel correctly found that Pooja Forge's request for confidential treatment 
contained "no more than a bald assertion".148  
5.52.  We recall that the pertinent evidence before  the Panel concerning the particular good cause 
alleged by Pooja Forge was contained in Pooj a Forge's e-mail to the Commission in which 
Pooja Forge stated that "the list of the products  sold by Pooja Forge cannot be provided because 
this information if disclosed, will give advantage to our competitor."149 The European Union has not 
pointed to any evidence on the record of the investigation demonstrating that Pooja Forge had substantiated or explained why this was a potential risk or why the competitive advantage that 
allegedly could materialize from disclosure would be "significant" within the meaning of Article 6.5. 
Yet, as the Appellate Body found in the origin al proceedings, the requirement to show "good 
cause" for the confidential treatment of information under Article 6.5 applies to both categories of information that fall within the scope of Article 6.5, i.e. information that is confidential by nature 
and information that has been submitted on a confidential basis.
150  
5.53.  There is also no evidence on the record of the investigation  of how the Commission arrived 
at the conclusion that the information concerning the list and characteristics of Pooja Forge's 
                                               
142 Appellate Body Reports, EC – Fasteners (China) , paras. 441-442; Brazil – Retreaded Tyres , 
para. 202. 
143 European Union's appellant's submission, para. 226. 
144 European Union's appellant's submission, para. 226 (quoting A ppellate Body Report, EC – Fasteners 
(China) , para. 539). 
145 China's appellee's submission, para. 185 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 537). 
146 China's appellee's submission, para. 186 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 539). 
147 China's appellee's submission, para. 185. 
148 China's appellee's submission, para. 186 (quoting Panel Report, para. 7.44). 
149 Panel Report, para. 7.42 (quoting E-mail dated 3 July 2012 from Pooja Forge to the 
European Commission (Panel Exhibit EU-2)). 
150 Appellate Body Report, EC – Fasteners (China) , para. 537. WT/DS397/AB/RW 
 
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 products was confidential by nature, and that P ooja Forge had shown good cause on this basis. 
However, before the Panel, the European Union soug ht to substantiate Pooja Forge's assertion that 
the information at issue was confidential by nature because its disclosure could confer an advantage on its competitor.
151 In this regard, the European Union argues on appeal that it 
"explained repeatedly" to the Panel that there was "strong competition between Pooja Forge and 
the Chinese producers in the after-sales market in India", and that a "significant" risk existed "in 
view of the particularly competitive situation in the India market".152 Such substantiation of the 
particular good cause alleged by Pooja Forge is, however, lacking in Pooja Forge's request for the 
confidential treatment of the information at issu e. Hence, the European Union's reference to the 
"strong competition between Pooja Forge and the Ch inese producers in the after-sales market in 
India" constitutes ex post  rationalization on the part of the European Union. In our view, it would 
have been incongruous with the applicable standard of review for the Panel to have determined 
whether the Commission had objectively assessed whether Pooja Forge had shown good cause for the confidential treatment of the information at issue on the basis of ex post rationales provided by 
the European Union in the course of the current WTO dispute settlement proceedings. 
5.54.  Moreover, in the light of the particular ci rcumstances of this case as set forth above, the 
European Union's contention on appeal is that it was for the Panel to examine, ab initio , 
Pooja Forge's request for confidential treatment in  the light of the nature of the information at 
issue and the particular good cause alleged by Pooja Forge. However, it is not a proper role for a panel to engage in such a review, as would have been required in this case. A panel does not comply with the applicable standard of review if , in the absence of an objective assessment by the 
investigating authority of the good cause alleged, it engages in a de novo  review of evidence on 
the record of the investigation and determines for itself, or on the basis of subjective concerns of the submitting party, whether the request for confidential treatment is sufficiently substantiated 
and that good cause for such treatment objectively exists.
153 
5.55.  Thus, in the particular circumstances of th is case, where substantiation of the particular 
good cause alleged by Pooja Forge was lacking in Pooja Forge's request for confidential treatment 
and in the Commission's published reports and rela ted supporting documents, we do not consider 
that the Panel erred in finding that Pooja Forge's e-mail contained "no more than a bald assertion", which did not seem to support the argument that Pooja Forge had shown good cause to justify the confidential treatment of its information. Accordingly, we reject the European Union's claim in this 
regard.  
5.2.2.4  Whether the Panel erred in findin g that the Commission "never" conducted an 
objective assessment of the good cause alleged by Pooja Forge 
5.56.  The European Union further claims that the Panel acted inconsistently with its duty under 
Article 11 of the DSU in finding that the Commission never conducted an objective assessment of whether the information at issue was confidential by nature or whether good cause had been 
shown to justify its confidential treatment as required by Article 6.5 of the Anti-Dumping 
Agreement.
154 At the outset, we recall that the Panel had asked the European Union to explain, on 
the basis of the record of the investigation, the manner in which the Commission had assessed 
Pooja Forge's request for the confidential treatment of the information at issue. In response, the 
European Union stated that there was "not much explicit reference to the European Commission's 
assessment of Pooja Forge's request" in the record of the investigation because "[t]he Chinese exporting producers never contested this aspect of the investigation".
155 The Panel characterized 
the European Union's response as an "admission" and stated that there was no doubt that the 
Commission "never" conducted an objective assessment of whether the information at issue was confidential by nature or whether good cause had been shown by Pooja Forge to justify its 
confidential treatment.
156 Further, the Panel considered that the obligation under Article 6.5 for the 
Commission to conduct an objective assessment of whether Pooja Forge had shown good cause for 
                                               
151 Panel Report, para. 7.14. 
152 European Union's appellant's submission, para. 227.  
153 Appellate Body Reports, China – HP-SSST (EU) / China – HP-SSST (Japan) , para. 5.102. 
154 European Union's appellant's  submission, paras. 229-235. 
155 Panel Report, para. 7.45 (quoting European Un ion's response to Panel question No. 6.b). 
156 Panel Report, para. 7.46. WT/DS397/AB/RW 
 
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 the confidential treatment of the information at issue was not dependent upon the 
Chinese producers contesting such confidential treatment.157 
5.57.  The European Union claims that the evidence on the record does not support the Panel's 
finding and that, in reaching this finding, the Panel failed to attribute proper weight to certain 
circumstances. As regards the evidence on the record, the European Union relies on a letter dated 
26 November 2014 from the case-handler who had conducted the verification visit at Pooja Forge's premises in the course of the original investigation.
158 This letter was addressed to the compliance 
Panel and was prepared specifically for the purposes of the current WTO dispute settlement 
proceedings. In this letter, the case-handler avers that, at the time of the Commission's 
verification visit, Pooja Forge had requested that its company details be treated confidentially, and that Pooja Forge was "very much concerned about the treatment of its information in the 
investigation" because of "tough competition" with Chinese producers in the after-sales market in 
India.
159 In addition, the European Union relies on an e-mail from Pooja Forge to the Commission 
dated 2 July 2012, in which Pooja Forge confirmed that it did not wish to disclose its company 
details to interested parties, as "mentioned" during the verification visit that took place in 2008.160 
5.58.  In response, China contends that the fact that Pooja Forge expressed concerns about the 
disclosure of its information is irrelevant to the question of whether the Commission conducted an 
objective assessment of whether Pooja Forge had sh own good cause for the confidential treatment 
of that information. According to China, there is simply no evidence on the record that demonstrates that the Commission conducted such an assessment.
161 Thus, for China, the Panel's 
finding that the Commission never conducted an objective assessment of whether Pooja Forge had 
shown good cause for the confidential treatment of its information was based on a proper analysis 
of the evidence on the record, in accordance with the Panel's mandate under Article 11 of the DSU.
162 
5.59.  Turning to our analysis, we note, as a preliminary matter, that the letter from the case-
handler to the compliance Panel on which the European Union relies is not a part of the record of the investigation, but, instead, a document prepared specifically for the purposes of the current 
WTO dispute settlement proceedings. The Appellate  Body has stated that a panel must examine 
whether the conclusions reached by the investigating authority are reasoned and adequate, and that such an examination must be critical and based on the information contained on the record 
and the explanations given by the authority in its published report.
163 Thus, the letter of the case-
handler referred to above does not constitute evidence that the Panel could properly have relied on 
in determining whether the Commission had objectively assessed "good cause" for the purposes of Article 6.5 of the Anti-Dumping Agr eement. Rather, the letter constitutes ex post  rationalization by 
the European Union. In any event, this letter merely confirms that Pooja Forge had requested 
confidential treatment of its information on the basis that its disclosure could confer an advantage on its competitor. Pooja Forge's exchange of e- mails with the Commission on 2 July 2012 merely 
confirms the same. However, such evidence does not indicate whether and how the Commission 
engaged with the particular good cause alleged by  Pooja Forge in according confidential treatment 
to the information at issue. Hence, we do not consider that this evidence calls into question the objectivity of the Panel's finding that the Commission never conducted an objective assessment of 
whether Pooja Forge had shown good cause for the confidential treatment of the information at 
issue. 
5.60.  The European Union further faults the Panel for not attributing proper weight to certain 
circumstances in reaching its finding that the Commission never conducted an objective 
assessment of whether Pooja Forge had shown good  cause for the confidential treatment of the 
information at issue. In this regard, the European Union argues that the Panel did not attribute 
                                               
157 Panel Report, para. 7.46. 
158 European Union's appellant's submission, para. 230 (referring to Letter dated 26 November 2014 
from the European Commission to the Panel (Panel Exhibit EU-5)). 
159 European Union's appellant's submission, fn 143 to para. 225 (quoting Letter dated 26 November 
2014 from the European Commission to the Panel (Panel Exhibit EU-5)). 
160 European Union's appellant's submission, para. 230 (referring to E-mail exchanges dated 2 July 2012 
between the European Commission and Pooja Forge (Panel Exhibit EU-8)). 
161 China's appellee's submission, para. 208. 
162 China's appellee's submission, para. 217. 
163 Appellate Body Report, US – Carbon Steel (India) , para. 4.311 (referring to Appellate Body Report, 
US – Tyres (China) , para. 123). WT/DS397/AB/RW 
 
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 proper weight to the fact that there was no explicit reference to the Commission's assessment of 
Pooja Forge's request in the original determinatio n because the "confidentiality of Pooja Forge's 
product range was a non-issue in the original investigation".164 Moreover, the European Union 
contends that the Panel failed to attribute proper weight to the circumstance that the facts and 
events to which the European Union needed to refer in this case date back to 2008, and it had 
thus "understandably become rather difficult" for the European Union to locate specific documents 
in the paper version of the confidential file.165  
5.61.  We recall that a panel's mandate under Arti cle 11 of the DSU does not require it to accord 
to factual evidence of the parties the same meaning and weight as do the parties.166 Moreover, the 
mere fact that a panel does not explicitly refer to each and every piece of evidence in its reasoning is insufficient to establish a claim of violation under Article 11.
167 Instead, for a claim under 
Article 11 to succeed, an appellant must explain why the evidence that it relies on is so material to 
its case that the panel's failure to address explicitly and rely upon that evidence has a bearing on the objectivity of the panel's factual assessment.
168 We do not consider that the circumstances to 
which the European Union alleges the Panel failed to attribute sufficient weight call into question 
the objectivity of the Panel's assessment. First, as regards the European Union's contention that 
the Panel failed to attribute proper weight to "t he fact that the confidentiality of Pooja Forge's 
product range was a non-issue in the original investigation"169, we agree with China that the Panel 
correctly found that "the duty to perform … an assessment [under Article 6.5] was not dependent upon whether or not the underlying issue was contested by the Chinese producers in the investigation."
170 With regard to the European Union's contention that the Panel failed to attribute 
proper weight to the circumstance that it had become difficult for the European Union to locate 
specific documents in the paper version of the confidential file because the case dates back to 2008, we also agree with China that such a circ umstance cannot excuse the fact that there was 
no evidence on the record as to whether and how the Commission assessed the particular good 
cause alleged by Pooja Forge in according confid ential treatment to the information at issue.
171  
5.62.  In the light of the above, we do not consider that the Panel failed to conduct an objective 
assessment of the facts, as required by Article 11 of the DSU, when it found that the Commission, 
contrary to the requirement of Article 6.5 of the Anti-Dumping Agreement, never conducted an 
objective assessment of whether Pooja Forge had sh own good cause for the confidential treatment 
of the information at issue. The Panel did not exceed the boundaries of its discretion as the trier of 
fact in reaching this finding. Accordingly, we see no merit in this claim of the European Union 
under Article 11 of the DSU. 
5.2.2.5  Whether the Panel erred in findin g that there was an inconsistency in the 
arguments put forward by the European Union 
5.63.  We recall that after finding that the Commission never conducted an objective assessment 
of "good cause" as required by Article 6.5 of the Anti-Dumping Agreement, the Panel considered 
that the European Union's contention that the information at issue was confidential, and that good 
cause had been shown for its confidential treatment, was undermined by the fact that the European Union had argued, in connection with China's claims under Articles 6.4 and 6.2 of the Anti-Dumping Agreement, that some of this info rmation was disclosed to the Chinese producers, 
for example, in the Commission's General Disclosure Document.
172 The European Union claims on 
appeal that the Panel's conclusion that the European Union acted inconsistently with Article 6.5 is in error, insofar as it rests on the Panel's statement that there was an inconsistency in the 
arguments presented by the European Union. The European Union argues that it is not logically 
inconsistent to argue that the entirety of certain information is confidential, whereas specific parts of that information are not equally confidential. Thus, contends the European Union, the Panel 
                                               
164 European Union's appellant's submission, para. 232. 
165 European Union's appellant's submission, paras. 232-233. 
166 Appellate Body Report, Australia – Salmon , para. 267. 
167 Appellate Body Reports, EC – Fasteners (China) , para. 442; Brazil – Retreaded Tyres , para. 202. 
168 Appellate Body Report, EC – Fasteners (China) , para. 442. 
169 European Union's appellant's submission, para. 232. 
170 China's appellee's submission, para. 213 (quoting Panel Report, para. 7.46). 
171 China's appellee's submission, para. 214. 
172 Panel Report, para. 7.48 (referring to, inter alia , General Disclosure Document (Panel Exhibit 
CHN-22)). WT/DS397/AB/RW 
 
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 incorrectly relied on a "non-existent" contradiction in the European Union's arguments in finding 
that the European Union acted inconsistently with Article 6.5.173  
5.64.  After making its main findings174, and "[b]efore leaving the issue of confidentiality"175, the 
Panel underlined that the European Union's contention that the information at issue was 
confidential and that good cause had been shown for its confidential treatment was undermined by 
the European Union's argument, in connection with China's claims under Articles 6.4 and 6.2 of the Anti-Dumping Agreement, that some of this info rmation was disclosed to the Chinese producers, 
for example, in the Commission's General Disclosure Document.
176 In our view, the 
Panel's statement that there was an inconsistency in the European Union's arguments constitutes obiter dictum that had no material bearing on its ultimate conclusion that the European Union 
acted inconsistently with Article 6.5 of the Anti-D umping Agreement. In this regard, we consider 
that the Panel's finding of a violation under Article 6.5 followed from its finding that the 
Commission had failed to conduct an objective assessment of whether Pooja Forge had shown good cause for the confidential treatment of the in formation at issue. In the circumstances, we do 
not consider that the alleged error of the Panel in stating that there was an inconsistency in the 
arguments put forward by the European Union prov ides a basis for reversing the Panel's ultimate 
conclusion that the European Union acted inconsistently with Article 6.5 of the Anti-Dumping 
Agreement. 
5.2.2.6  Whether the Panel erred by not conduc ting its own analysis of the nature of the 
information at issue 
5.65.  The European Union contends that the Panel erred in concluding that the European Union 
acted inconsistently with Article 6.5 of the Anti-Dumping Agreement because the Panel found, 
without a proper analysis, that the information at issue was not confidential. In this regard, the European Union asserts that the Panel failed to cond uct a proper analysis of the type and nature of 
the information at issue in determining whether such information was confidential for the purposes 
of Article 6.5. Noting that the Panel's conclusion under Article 6.5 was based on its finding that the Commission  had failed objectively to assess whether Pooja Forge had showed "good cause" for 
the confidential treatment of its information, the European Union points out that the Panel  did not, 
h o w e v e r ,  m a k e  a n y  f i n d i n g  o n  t h e  na t u r e  o f  t h e  i n f o r m a t i o n  a t  i s s u e .  I n  t h e  E u r o p e an  U n i o n ' s  view, the Panel was required to examine, separately, whether the information at issue could be considered as confidential by nature, but, instead, the Panel simply assumed that it was not.
177 
5.66.  China responds that the Panel focused its analysis under Article 6.5 on whether good cause 
had been shown by Pooja Forge and whether the Commission objectively assessed Pooja Forge's request for confidential treatment of its information. In China's view, the Panel correctly found that 
good cause had not been shown by Pooja Forge, and that the Commission did not conduct an 
objective assessment of whether good cause had been shown.
178 China submits that, in the 
absence of an objective assessment of "good cause"  within the meaning of Article 6.5, information 
cannot be treated as confidential under that prov ision. Thus, contends China, the Panel correctly 
considered the information at issue as  not requiring confidential treatment.179  
5.67.  At the outset, we disagree with the European Union to the extent that it suggests that the 
Panel found that the information at issue was, in fact, not confidential by nature.180 The Panel 
explicitly stated that it was not making such a finding.181 Instead, the Panel found that the 
                                               
173 European Union's appellant's submission, paras. 236-237 and 242-243. 
174 The Panel found that the particular good cause al leged by Pooja Forge for the confidential treatment 
of the information at issue was "no more than a bald assertion", which did not seem to support the argument 
that Pooja Forge had shown good cause to justify the confidential treatment of that information. Further, in the absence of evidence on the record of the investigat ion of the Commission's assessment of Pooja Forge's 
request for confidential treatment of the information at issue, the Panel found that the Commission never conducted an objective assessment of "good cause" within the meaning of Article 6.5. (Panel Report, 
paras. 7.44 and 7.46) 
175 Panel Report, para. 7.48. 
176 Panel Report, para. 7.48. 
177 European Union's appellant's submission, paras. 244-251. 
178 China's appellee's submission, para. 225. 
179 China's appellee's submission, para. 227. 
180 European Union's appellant's submission, para. 279. 
181 Panel Report, para. 7.51. WT/DS397/AB/RW 
 
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 European Union acted inconsistently with Article 6.5, and this finding was based on the 
Commission's failure to conduct an objective assessment of whether Pooja Forge had shown good cause for the confidential treatment of the informat ion at issue. The European Union suggests that 
this was an insufficient basis for the Panel's finding that the European Union acted inconsistently 
with Article 6.5. As we see it, the European Union's argument, in the circumstances of this case, is 
not in accordance with the Appellate Body's guid ance under Article 6.5 as regards the role of a 
party requesting confidential treatment for information that it submits to an authority; the role of 
that authority in examining that request; and the role of a WTO panel in the event of a claim that 
the authority acted inconsistently with Article 6.5 by according confidential treatment to the information in the absence of "good cause" being shown by the party submitting the information.  
5.68.   We recall that it is for the party requesting confidential treatment for information that it 
considers to be confidential by nature, or that it submits on a confidential basis, to furnish reasons 
justifying such treatment. The role of the auth ority is to assess such reasons and determine, 
objectively, whether the submitting party has show n good cause for the confidential treatment of 
its information. In the event of a claim of violatio n of Article 6.5, a panel, tasked with reviewing 
whether an authority has objectively assessed the good cause alleged by the party submitting information to that authority, must examine this issue on the basis of the investigating authority's 
published report and its related supporting documents, in the light of the nature of the information 
at issue, and the reasons given by the submitting party for its request for confidential treatment.
182  
5.69.  The Panel, however, found that the Commission never conducted an objective assessment 
of whether the information at issue was confidential by nature or whether Pooja Forge had shown 
good cause on this basis for the confidential treatment of such information.183 Having made that 
finding, it was not for the Panel to conduct a de novo review of whether the information at issue 
was confidential by nature or whether good caus e had been shown by Pooja Forge. Thus, we do 
not agree with the European Union that the Panel erred by not conducting its own analysis of the 
nature of the information at issue for the purposes of its assessment of China's claim under 
Article 6.5. We therefore see no merit in the European Union's claim in this regard.  
5.70.  Having regard to the entirety of the Panel's analysis under Article 6.5 of the Anti-Dumping 
Agreement, it appears to us that the Panel's conclusion that the European Union acted inconsistently with Article 6.5 was based on two findings. First, the Panel found that the particular 
good cause alleged by Pooja Forge for the confiden tial treatment of the information at issue was 
no more than a bald assertion, which did not seem to support the argument that Pooja Forge had shown good cause to justify the confidential treatment of that information.
184 Second, the Panel 
found that the Commission never conducted an objective assessment of "good cause" within the 
meaning of Article 6.5.185 We have reviewed these findings above and concluded that the Panel did 
not err in making them. These findings establish that the Commission acted inconsistently with 
Article 6.5 by according confidential treatment to  the information at issue in the absence of an 
objective assessment of the particular good cause alleged by Pooja Forge. 
5.71.  In the light of the foregoing considerations, we uphold the Panel's finding, in 
paragraphs 7.50 and 8.1.i of its Report, that the European Union acted inconsistently with 
Article 6.5 of the Anti-Dumping Agreement in the review investigation at issue.  
5.72.  We note that China has put forward a conditional appeal regarding the Commission's alleged 
failure to ensure that Pooja Forge submit a non-co nfidential summary of the information at issue in 
accordance with the requirements of Article 6.5.1 of the Anti-Dumping Agreement. This appeal is 
triggered in the event that we reverse the Panel's finding of a violation under Article 6.5, and find, instead, that the European Union acted consistently with that provision. Having upheld the Panel's 
finding under Article 6.5, the condition for addressing China's appeal under Article 6.5.1 has not 
                                               
182 Appellate Body Report, China – HP-SSST (EU) / China – HP-SSST (Japan) , paras. 5.95 and 5.97. 
183 Panel Report, para. 7.46. We have found above that  the Panel did not err in making this finding.  
184 Panel Report, para. 7.44. 
185 Panel Report, para. 7.46. WT/DS397/AB/RW 
 
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 been met. Accordingly, we make no findings on China's conditional appeal under Article 6.5.1 of 
the Anti-Dumping Agreement.186  
5.3  Articles 6.4 and 6.2 of the Anti-Dumping Agreement 5.3.1  The Panel's terms of reference 
5.73.  Before the Panel, the European Union argued that China was precluded from raising its 
claims under Articles 6.4 and 6.2 of the Anti-Dumping Agreement in the compliance proceedings because these were claims that China could have raised but did not raise in the original 
proceedings, and that pertained to an unchanged aspect of the original measure that was 
separable from the measure taken to comply.
187 
5.74.  The Panel stated that, in deciding whethe r these claims could have been brought by China 
in the original proceedings, it would have to take into account the factual circumstances in the 
review investigation in which the claims were raised and examine the extent to which these 
circumstances also existed in the original investigation. The Panel observed that violations of the procedural obligations set forth in Articles 6.4 and 6.2 of the Anti-Dumping Agreement could occur 
multiple times during an investigation, depending on the piece of information that an interested 
party requests to see or the presentation that such a party wishes to make for the defence of its interests.
188 The Panel focused on the fact that, since the original investigation, the Commission 
had in its possession certain information regarding the list and characteristics of Pooja Forge's 
products, parts of which it provided to the Chinese producers for the first time in the review investigation. In the Panel's view, the disclosure of certain information in the review investigation led the Chinese producers to make requests for further information regarding the list and 
characteristics of Pooja Forge's products, the rejection of which gave rise to the present claims.
189 
5.75.  The Panel thus rejected the European Union' s contention that these claims could have been 
but were not raised by China in the original proceedings. The Panel noted that, "[i]f an interested 
party is not aware of the existence of certain information on the investigation record, it cannot 
make a request to see that information or make presentations on that basis to defend its interests."
190  
5.76.  On appeal, the European Union claims that the Panel erred in considering that the 
information that China argues the Commission failed to disclose was "new" and hence was a 
"new" aspect of the measure taken to comply.191 The European Union contends that the list and 
characteristics of Pooja Forge's products was not a "new" aspect that was not present in the 
original investigation. In support of its contention, the European Union states, first, that, in the 
review investigation, the Commission based its determination on the data that Pooja Forge had provided in the original investigation
192, and, second, that, in the review investigation, 
the Commission provided more precise information, but that "the information provided by 
Pooja Forge remained the same."193 
5.77.  China responds that, in order to analyse whether it could have brought these claims in the 
original proceedings, it is not relevant whether the information relating to the list and 
characteristics of Pooja Forge's products was "new", that is to say, provided by Pooja Forge in the 
review investigation, or whether it was provided by Pooja Forge in the original investigation. Rather, China contends that what is relevant is the fact that the Chinese producers became aware 
                                               
186 Before the Panel, China's claim und er Article 6.5.1 was conditional upon its claim under Article 6.5 of 
the Anti-Dumping Agreement. Thus, China requested th e Panel to find that the European Union had acted 
inconsistently with Article 6.5.1 only if it found that the European Union had acted consistently with its obligation under Article 6.5. The Panel found that the European Union had acted inconsistently with Article 6.5 
of the Anti-Dumping Agreement and, therefore, the condition for examining China's claim under Article 6.5.1 was not met. Accordingly, the Panel made no findings  under Article 6.5.1 of the Anti-Dumping Agreement. 
(Panel Report, para. 7.50) 
187 Panel Report, paras. 7.57 and 7.62. 
188 Panel Report, para. 7.68. 
189 Panel Report, para. 7.77.  
190 Panel Report, para. 7.78. 
191 European Union's appellant's submission, para. 149. 
192 European Union's appellant's submission, para. 144. 
193 European Union's appellant's submission, para. 147. WT/DS397/AB/RW 
 
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 of the existence of the information concerning the list and characteristics of Pooja Forge's products 
for the first time in the review investigation.194 
5.78.  We begin our analysis by recalling that, in US – Upland Cotton (Article 21.5 – Brazil) , the 
Appellate Body stated that "[a] complaining Member ordinarily would not be allowed to raise 
claims in an Article 21.5 proceeding that it could have pursued in the original proceedings, but 
did not."195 In US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body found, however, that this 
is not the case for "new claims against a measure taken to comply – that is, in principle, a new 
and different measure" even if such measure "incorporates components of the original measure 
that are unchanged, but are not separable from other aspects of the measure taken to comply".196 
In the Appellate Body's view, allowing such new claims in Article 21.5 proceedings would not jeopardize the principles of fundamental fairness and due process or provide a second chance to 
the complainant.
197  
5.79.  In the light of the jurisprudence, we exam ine below whether the claims raised by China in 
the compliance proceedings under Articles 6.4 and 6.2 could have been but were not raised in the 
original proceedings. 
5.80.  The Panel found, and we agree, that violations of the procedural obligations under 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement could occur "multiple times" during an 
investigation, depending on the piece of information that an interested party requests to see or the 
presentation that such a party wishes to make for the defence of its interests.198 In order to 
determine whether claims under Articles 6.4 and 6.2 could have been raised in the original proceedings it is not dispositive whether the underlying information that was in the possession of 
the investigating authority is unchanged or is not new, but rather whether the factual 
circumstances in the review investigation also existed in the original investigation. 
5.81.  As we have explained above, in the original investigation, the Commission did not disclose 
information about the "product types" in a timely manner. In the review investigation, in order to 
comply with the DSB's recommendations and rulings under Articles 6.4, 6.2, and 2.4 of the Anti-Dumping Agreement, the Commission disclo sed information regarding the normal value 
determinations, including the "product types" (lat er replaced by the revised PCNs), as well as 
some information on certain characteristics of Pooja Forge's products. However, the Commission 
declined to disclose all of the information regarding the list and characteristics of Pooja Forge's products, which the Chinese producers were asking to see.
199 In the light of these facts, even if the 
underlying information is unchanged or is not new, the aspect of the measure that China 
challenges in these compliance proceedings has changed from the original proceedings considering that China is challenging a different episode of non-disclosure by the Commission, which concerns 
different aspects of Pooja Forge's product information. 
5.82.  Thus, the key question in addressing this issue on appeal is whether the Chinese producers 
were aware of the existence of this information in the original investigation and of its relevance to 
that investigation. That the Chinese producers may have been generally aware of the fact that the 
Commission had in its possession information concerning the list and characteristics of Pooja Forge's products may not be sufficient, in itself, to demonstrate that the producers could 
also have requested the disclosure of such information in the original investigation. In fact, even if 
the Chinese producers had been generally aware of this, they would not have requested the 
disclosure of such information if, due to the particular circumstances surrounding the original investigation, they were not aware of the relevance of this information. Thus, only if it can be 
demonstrated that the Chinese producers were aware of the existence of the information regarding 
the list and characteristics of Pooja Forge's products and of its relevance in the original investigation, could it be concluded that China could have claimed in the original proceedings that 
the non-disclosure of such information by the Commission amounted to a violation of Articles 6.4 
and 6.2. 
                                               
194 China's appellee's submission, para. 80.  
195 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 211. 
196 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 432. 
197 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 427. 
198 Panel Report, para. 7.68. 
199 Panel Report, para. 7.74 (referring to Review Regulation (Panel Exhibit CHN-3), recital 57). WT/DS397/AB/RW 
 
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 5.83.  As discussed above in respect of Articles 6.5 and 6.5.1, the Chinese producers' requests to 
see information concerning the list and characteristics of Pooja Forge's products were prompted by the Commission's disclosures of the "product types" used in the dumping margin calculations. The Commission, however, never fully disclosed all the relevant product information, including the 
product list and characteristics, and the disclosures that were made in the original and in the 
review investigations prompted the Chinese producers to request further information that they considered relevant to their cases.
200 
5.84.  We also recall that, in the original investigation, the Chinese producers expected the 
Commission to use the original PCNs to conduct the comparisons between the normal values and the export prices. When they were informed that the Commission would instead use "product 
types", they requested the disclosure of these "p roduct types", which the Commission refused to 
do until late in the investigation. In the review investigation, the Commission made disclosures 
regarding the determination of normal values in the original investigation, including the "product types" used, as part of its implementation of the DSB's recommendations and rulings in the 
original proceedings. The Chinese producers consid ered these disclosures insufficient and sought 
further information on the "product types" and th e "precise and detailed characteristics" of the 
products sold by Pooja Forge
201, which the Commission refused to disclose on grounds of 
confidentiality.202 
5.85.  The exchanges between the Commission and the Chinese producers in the review 
investigation suggest that the Chinese producer s only became aware of the existence of the 
information at issue during the review investigation following partial disclosures made by the 
Commission. We, therefore, agree with the Panel th at the claims China made before the Panel are 
not claims that it could have made in the original proceedings. China did raise claims under Articles 6.4 and 6.2 of the Anti-Dumping Agreem ent in the original proceedings, based on the 
information available – i.e. that the Commission had conducted the comparison based on "product 
types". The claims it raises in the compliance proceedings were prompted by the Commission's 
disclosures during the review investigation, which were made in order to implement the 
DSB's recommendations and rulings in the original proceedings. 
5.86.  Finally, the measure challenged by China in the compliance proceedings – i.e. the 
Commission's non-disclosure of the list and characteristics of Pooja Forge's products – can be characterized as an omission in the disclosures made by the Commission to comply with the 
DSB's recommendations and rulings under Articles 6.4, 6.2, and 2.4 of the Anti-Dumping 
Agreement. In disclosing certain information to comply with the DSB's recommendations and rulings in the original proceedings, the Commission failed to disclose other information – the list 
and all of the characteristics of Pooja Forge's prod ucts. This omission is the measure challenged by 
China in the compliance proceedings, and it constitutes an integral part of and is not separable from the measure taken to comply with the DSB's recommendations and rulings in the original 
proceedings. 
5.87.  In the light of the above, we consider that the claims that China has raised in these 
compliance proceedings under Articles 6.4 and 6.2 of the Anti-Dumping Agreement are not claims 
that China could have raised in the original proceedings.  
5.88.  We therefore uphold the Panel's finding, in paragraph 7.80 of its Report, that China's claims 
under Articles 6.4 and 6.2 of the Anti-Dumping Agreement were within the Panel's terms of 
reference. 
5.3.2  Whether the Panel erred in finding th at the European Union acted inconsistently 
with Articles 6.4 and 6.2 of the Anti-Dumping Agreement 
5.89.  We turn now to consider the European Unio n's appeal of the Panel's findings on the merits 
of China's claims under Articles 6.4 and 6.2 of the Anti-Dumping Agreement. We begin our 
                                               
200 Panel Report, paras. 7.70-7.74. 
201 Letter dated 12 June 2012 on behalf of Changs hu to the European Commission (Panel Exhibit 
CHN-8), p. 5; Letter dated 12 June 2012 on behalf of Ningbo Jinding to the European Commission 
(Panel Exhibit CHN-9), p. 5; Letter dated 13 June 2012 on behalf of Biao Wu to the European Commission 
(Panel Exhibit CHN-6), pp. 3-4. 
202 Panel Report, para. 7.74. WT/DS397/AB/RW 
 
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 analysis with a brief overview of the relevant findings of the Panel under Articles 6.4 and 6.2 of the 
Anti-Dumping Agreement.  
5.3.2.1  The Panel's findings 5.90.  Before the Panel, China claimed that the European Union acted inconsistently with 
Article 6.4 of the Anti-Dumping Agreement because the Commission failed to provide timely 
opportunities to the Chinese producers to see the information concerning the list and characteristics of Pooja Forge's products. China argued that the information at issue was used for 
the determination of normal values, was relevant to the presentation of the Chinese producers' 
cases, and was not confidential within the meanin g of Article 6.5 of the Anti-Dumping Agreement. 
Thus, by failing to provide timely opportunities for the Chinese producers to see such information, the European Union acted inconsistently with Article 6.4.
203 China further claimed that, as a 
consequence of its violation of Article 6.4, the Commission also violated Article 6.2 of the 
Anti-Dumping Agreement by failing to provide th e Chinese producers with a full opportunity to 
defend their interests on the basis of the information concerning the list and characteristics of 
Pooja Forge's products.204  
5.91.  The Panel recalled that information falling within the scope of Article 6.4 must: (i) be 
"relevant" to the presentation of interested partie s' cases; (ii) not be confidential as defined in 
Article 6.5; and (iii) be "used" by the authorities in the anti-dumping investigation.205 The Panel 
further recalled that it had found that there was no evidence before the Commission justifying the confidential treatment of the information at i ssue, and that the Commission, therefore, acted 
inconsistently with Article 6.5 in according confid ential treatment to that information. Hence, the 
Panel considered that, for the purposes of China's claim under Article 6.4, it would treat the 
information at issue as not confidential within the meaning of Article 6.5. Thus, the Panel considered that the second condition for the application of Article 6.4 had been met.
206  
5.92.  Turning to the first condition – i.e. whethe r the information at issue was "relevant" to the 
presentation of the Chinese producers' cases – th e Panel recalled that this question must be 
assessed from the perspective of the interested parties that have requested to see the 
information, rather than from the perspective of the investigating authority.207 Noting that the 
Chinese producers had requested to see the inform ation concerning the list and characteristics of 
Pooja Forge's products, and that such requests were denied by the Commission on the basis that such information was confidential, the Panel cons idered that these requests demonstrated that, 
from the perspective of the Chinese producers, the information at issue was relevant to the 
presentation of their cases. Further, the Panel co nsidered that the nature of the information at 
issue underlined its relevance to the presentation of the Chinese producers' cases because it 
concerned the determination of normal values, wh ich, together with export prices, determined 
dumping margins. Accordingly, the Panel considered that the first condition for the application of Article 6.4 had been met.
208 
5.93.  As regards the third condition, the Panel recalled that whether the Commission "used" the 
information at issue, within the meaning of Article 6.4, does not depend on whether the 
Commission specifically relied on that information in its determinations. Instead, the information should be considered as having been "used" by the Commission if it pertains to "a required step" 
in the anti-dumping investigation.
209 Recalling that the information at issue had to do with the 
determination of normal values and dumping margins, the Panel considered that it was thus clear that the information at issue was used by the Commission in the review investigation. Accordingly, 
the Panel found that the third condition for the application of Article 6.4 had been met.
210 
5.94.  The Panel then turned to consider the European Union's argument that the information 
concerning the characteristics of Pooja Forge's products had been disclosed to the 
                                               
203 Panel Report, para. 7.55. 
204 Panel Report, para. 7.56. 
205 Panel Report, para. 7.88 (referri ng to Appellate Body Report, EC – Tube or Pipe Fittings , para. 142). 
206 Panel Report, para. 7.88. 
207 Panel Report, para. 7.89 (referri ng to Appellate Body Report, EC – Tube or Pipe Fittings , para. 145). 
208 Panel Report, para. 7.89. 
209 Panel Report, para. 7.90 (quo ting Appellate Body Report, EC – Tube or Pipe Fittings , para. 147). 
210 Panel Report, para. 7.90. WT/DS397/AB/RW 
 
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 Chinese producers in the general and company-specific disclosures that had been made available 
to the Chinese producers in accordance with the requirements of Article 6.9 of the Anti-Dumping 
Agreement.211 The Panel noted that Article 6.9 requires the disclosure of the essential facts under 
consideration which form the basis for the decision whether to apply definitive measures. Thus, 
such disclosure occurs towards the end of an investigation before a final decision is made. The 
Panel therefore considered that the final di sclosure occurred "too late" to afford the 
Chinese producers an appropriate opportunity to us e the information in the presentation of their 
cases.212 Accordingly, the Panel found that the Chinese producers were not provided timely 
opportunities to see the information at issue, contrary to the requirement under Article 6.4.213  
5.95.  In the light of the foregoing consideratio ns, the Panel concluded that the European Union 
acted inconsistently with Article 6.4 of the Anti-Dumping Agreement because the Commission 
failed to provide the Chinese producers with timely opportunities to see the information at issue 
which was not confidential within the meaning of Article 6.5, and which was relevant to the presentation of the Chinese producers' cases and used by the Commission.
214 Turning to 
China's consequential claim under Article 6.2 of the Anti-Dumping Agreement, the Panel 
considered that accessing the information at issue would, potentially, have allowed the Chinese producers to request adjustments to thei r normal values, determined on the basis of 
Pooja Forge's prices, or to their export prices . Thus, the Panel found that, without seeing the 
information at issue, the Chinese producers could not be considered as having been provided a "full opportunity" to defend their interests within the meaning of Article 6.2.
215 Accordingly, the 
Panel found that the European Union acted inconsistently with Article 6.2 in the review 
investigation.216 
5.96.  Having set forth the relevant findings of the Panel under Articles 6.4 and 6.2 of the 
Anti-Dumping Agreement, we turn now to examine the discrete claims raised by the 
European Union under these provisions. 
5.3.2.2  Whether the Panel erred in findin g that the information at issue was not 
confidential for the purposes of its analys is under Article 6.4 of the Anti-Dumping 
Agreement 
5.97.  As stated by the Panel, information falling within the scope of Article 6.4 of the 
Anti-Dumping Agreement must: (i) be  "relevant" to the presentation of interested parties' cases; 
(ii) not be confidential as defined in Article 6.5 of the Anti-Dumping Agreement; and (iii) be "used" 
by the authorities in the anti-dumping investigation.217 When information meets these criteria, 
Article 6.4 requires that investigating authorities provide "timely opportunities" for interested parties to see it. The Panel found that the information at issue met these criteria, and that the 
Commission had violated Article 6.4 by failing to provide the Chinese producers with timely 
opportunities to see it.
218  
5.98.  On appeal, the European Union claims that the Panel erred in finding that: (i) the 
information requested by the Chinese producers was "relevant" to the presentation of their cases; 
(ii) such information was not "confidential" within the meaning of Article 6.5; and (iii) the information at issue was "used" by the Commission in its calculation of dumping margins.
219 We 
begin our analysis with the European Union's clai m that the Panel erred in finding that, for the 
purposes of its analysis under Article 6.4, the information at issue was not "confidential" within the 
meaning of Article 6.5. 
5.99.  The European Union argues that, in determining whether the information at issue was 
confidential within the meaning of Article 6.5, for the purposes of its analysis under Article 6.4, the 
Panel should not have relied on its finding that the Commission had accorded confidential 
                                               
211 Panel Report, para. 7.91 (referring to European Union's first written submission to the Panel, 
para. 66; and response to Panel question No. 18.a). 
212 Panel Report, para. 7.91. 
213 Panel Report, para. 7.91. 
214 Panel Report, para. 7.92. 
215 Panel Report, para. 7.94. 
216 Panel Report, para. 7.96. 
217 Panel Report, para. 7.88 (referri ng to Appellate Body Report, EC – Tube or Pipe Fittings , para. 142). 
218 Panel Report, para. 7.92. 
219 European Union's appellant's submission, para. 265. WT/DS397/AB/RW 
 
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 treatment to this information in a manner that did not conform to the requirements of Article 6.5. 
In the European Union's view, the Panel was requir ed to "carefully and separately" undertake an 
analysis of the information at issue in order to determine whether such information was confidential within the meaning of Article 6.5.
220 The European Union contends that, by failing to 
conduct this examination and finding that the information at issue was not confidential for the 
purposes of Article 6.4, the Panel "fell victim to a logical non sequitur ".221 
5.100.  For its part, China contends that the reference in Article 6.4 to information that "is not 
confidential as defined in paragraph 5" means information that cannot be treated as confidential 
because the "conditions" set forth in Article 6. 5 have not been fulfilled. Under Article 6.5, 
information which is by nature confidential or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Thus, in 
the absence of good cause shown by the submitting party, as determined pursuant to an objective 
assessment by the authority, information cannot be  accorded confidential treatment, and such 
information would not be "confidential as defined in paragraph 5".
222 Thus, submits China, the 
Panel correctly considered the information at issue as not requiring confidential treatment for the 
purposes of its analysis under Article 6.4 of the Anti-Dumping Agreement.  
5.101.  At issue here is the meaning of the reference in Article 6.4 to information "that is not 
confidential as defined in paragraph 5". As we have explained above, Article 6.5 prescribes a 
showing of "good cause" by the party requesting confidential treatment of its information as a 
condition precedent for an investigating authorit y to accord such treatment. The treatment of 
information as confidential is, therefore, the le gal consequence that flows from the establishment 
of good cause, as determined pursuant to an objective assessment by the authority reviewing a 
party's request for the confidential treatment of its information. Hence, in the absence of good 
cause being shown by the party submitting information, as determined pursuant to an objective 
assessment by the authority, there is no legal basis for the authority to accord confidential 
treatment to that information. In the light of our in terpretation of Article 6.5, we consider that the 
reference in Article 6.4 to information "that is not confidential as defined in paragraph 5" is 
properly to be understood as excluding from the scope of Article 6.4 information that has been 
accorded confidential treatment in accordance with Article 6.5 – i.e. information for which good 
cause has been shown by the submitting party for confidential treatment, as determined pursuant 
to an objective assessment by the investigating authority.223 Conversely, if information has been 
accorded confidential treatment under Article 6.5 in a manner that does not conform to the 
requirements of that provision, there is no legal basis for according confidential treatment and such information would, for the purposes of Articl e 6.4, be considered as information "that is not 
confidential as defined in paragraph 5". 
5.102.  We do not agree with the European Union that, for the purposes of conducting an analysis 
under Article 6.4 of the Anti-Dumping Agreement, a panel must "carefully and separately" 
undertake an examination of the information at issue in order to determine whether such 
information is confidential within the meaning of Article 6.5.
224 Article 6.5 requires an investigating 
authority to determine, pursuant to an object ive assessment, whether the reasons furnished by 
the submitting party as to why its information should be accorded confidential treatment constitute 
"good cause" for the confidential treatment of that information. Thus, it is not the role of a panel 
to conduct a de novo  review in order to determine for itself whether there is a legal basis for 
according confidential treatment to information submitted to an authority. In particular, we do not 
see a basis for converting an obligation imposed on  investigating authorities, under Article 6.5, 
into an obligation on a panel conducting an analysis  under Article 6.4. Instead, as stated above, if 
information has been accorded confidential treatment under Article 6.5 in a manner that does not 
comport with the requirements of that provision, there would be no legal basis for according 
confidential treatment to that information, an d such information would, for the purposes of 
Article 6.4, be considered as information "that is not confidential as defined in paragraph 5". 
                                               
220 European Union's appellant's submission, para. 278. 
221 European Union's appellant's submission, para. 276. 
222 China's appellee's submission, paras. 227-228. 
223 We find further support for our interpretation in the equally authentic French and Spanish versions of 
Article 6.4 of the Anti-Dumping Agreement. In the French  and Spanish versions of Article 6.4, the phrase "that 
is not confidential as defined in paragraph 5" is, respectively,  "qui ne seraient pas confidentiels aux termes du 
paragraphe 5 " and " que no sea confidencial conforme a los términos del párrafo 5". (emphasis added) 
224 European Union's appellant's submission, para. 278.  WT/DS397/AB/RW 
 
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 5.103.  In the light of the foregoing considerations, we do not agree with the European Union's 
contention that the Panel erred in treating the information at issue as not requiring confidential treatment for the purposes of its analysis under  Article 6.4 of the Anti-Dumping Agreement. 
5.3.2.3  Whether the Panel erred in finding th at the information at issue was "relevant" 
to the presentation of the Chinese producers' cases 
5.104.  The European Union further claims that the Panel's finding that the European Union acted 
inconsistently with Article 6.4 of the Anti-Dumping Agreement is in error because the Panel 
incorrectly found that the information at issue was "relevant", within the meaning of Article 6.4, to 
the presentation of the Chinese producers' cases. The European Union contends that, in finding that the information at issue was relevant to the presentation of the Chinese producers' cases, the 
Panel erred by relying on the fact that the Ch inese producers had requested the information at 
issue from the Commission. In the European Union's view, the fact that an interested party 
requests certain information does not mean that such information is "relevant" within the meaning of Article 6.4. The European Union cautions that, under the Panel's approach, the scope of 
Article 6.4 would be determined unilaterally by any interested party, rather than by any objective 
concept of what is "relevant". As a result, "irre levant requests" for information by interested 
parties that are not answered by authorities would be considered as triggering a violation of 
Article 6.4. The European Union submits that this does not constitute a reasonable interpretation 
of Article 6.4.
225  
5.105.  The European Union further takes issue with the Panel's finding that the nature of the 
information at issue underlines its relevance to the Chinese producers' cases because such 
information concerned the determination of normal values and dumping margins. The 
European Union argues that, in determining whether information is "relevant" for the purposes of Article 6.4, an analysis of the type and nature of the requested information must be conducted 
thoroughly in order to determine compliance with the obligation under Article 6.4. According to the 
European Union, the Panel failed to conduct such an analysis. The European Union contends that, contrary to the Panel's assertions, the information concerning the list and characteristics of 
Pooja Forge's products did not directly concern the calculation of dumping margins.
226  
5.106.  For its part, China recalls that, in the or iginal proceedings, the Appellate Body found that 
"it is the interested parties, rather than the auth ority, who determine whether the information is in 
fact 'relevant' for the purposes of Article 6.4."227 In China's view, the repeated requests made by 
the Chinese producers to have access to certain information are indeed indications that such 
information was "relevant" to the presentation of their cases, within the meaning of Article 6.4. 
5.107.  Turning to our analysis, we consider, first,  the European Union's argument that, in finding 
that the information at issue was, for the purposes of Article 6.4, "relevant" to the presentation of 
the Chinese producers' cases, the Panel erred by relying on the fact that the Chinese producers 
had repeatedly requested the information at issue from the Commission. We recall that Article 6.4 
stipulates that an authority must provide "timely opportunities for all interested parties to see all 
information that is relevant to the presentation of their  cases". As China correctly notes, the 
Appellate Body confirmed in the original proceedings that the "possessive pronoun 'their' clearly refers to the earlier reference in that sentence to 'interested parties'."
228 Therefore, whether an 
investigating authority "regarded the information … to be relevant does not determine whether the 
information would in fact have been 'rel evant' for the purposes of Article 6.4".229 Accordingly, we 
do not consider that the Panel erred in its analysis by considering whether the information 
requested by the Chinese producers was, from the perspective of these producers, "relevant" to 
the presentation of their cases within the meaning of Article 6.4.  
5.108.  We note that the European Union cautions that, under the Panel's approach, the scope of 
Article 6.4 would be determined unilaterally by any interested party, rather than by an objective 
                                               
225 European Union's appellant's submission, para. 267. 
226 European Union's appellant's submission, para. 268. 
227 China's appellee's submission, para. 259 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 479, in turn referring to Appellate Body Report, EC – Tube or Pipe Fittings , para. 146). 
228 Appellate Body Report, EC – Fasteners (China) , para. 479 (quoting Appellate Body Report, EC – Tube 
or Pipe Fittings , para. 145). 
229 Appellate Body Report, EC – Tube or Pipe Fittings , para. 145. WT/DS397/AB/RW 
 
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 concept of what is "relevant". This would mean, ac cording to the European Union, that "irrelevant 
requests" for information by interested parties that are not answered by authorities would be 
considered as triggering a violation of Article 6.4.  In the European Union's view, this would not be 
a reasonable interpretation of Article 6.4.230 However, the scope of Article 6.4 is not determined 
solely  by reference to whether information is "relevant" to the presentation of an interested party's 
case. In order for information to be subject to the obligation under Article 6.4, such information must also "not be confidential within the meaning of [Article 6.5]", and must have been "used" by 
the investigating authority in the sense that it relates to "a required step in the anti-dumping 
investigation".
231 Information that is "relevant" from the perspective of the interested party 
requesting such information may not be subject to the obligation under Article 6.4 if such information was not "used" by the investigating authority – i.e. the information does not relate to 
a required step in the anti-dumping investigation. Similarly, although certain information may be 
relevant from the perspective of the interested party requesting it, such information may not fall within the scope of Article 6.4 if it has been accorded confidential treatment in accordance with the 
requirements of Article 6.5.  
5.109.  Thus, we do not consider that Article 6.4 requires an investigating authority to disclose 
information to an interested party merely because that party has requested such information in 
the belief that it is relevant to the presentation of its case. Certainly, a request from an interested 
party to see certain information should alert the authority that the party in question considers such information to be relevant to the presentation of its case. Bearing this in mind, the authority should then consider whether the information at issue should be disclosed to the party in the light 
of whether such information has been accorded confidential treatment in accordance with the 
requirements of Article 6.5, and whether such information was "used" within the meaning of 
Article 6.4, in the sense that the information relates to a required step in the anti-dumping 
investigation. For these reasons, we disagree with the European Union that the scope of Article 6.4 
would be determined unilaterally by any interested party if the relevance of that information for the presentation of its case is to be determined from the perspective of that interested party. 
5.110.  The European Union further takes issue with the Panel's finding that the nature of the 
information at issue underlines its relevance to the Chinese producers' cases because such information concerned the determination of normal values and dumping margins. The European Union contends that, in determining whether information is "relevant" for the purposes 
of Article 6.4, an analysis of the type and natu re of the requested information must be conducted 
thoroughly in order to determine compliance with the obligation under Article 6.4. According to the European Union, the information at issue did not concern the determination of normal values that 
would be compared with export prices to determine the dumping margins of the 
Chinese producers.
232 Hence, the European Union argues that the Panel erred in finding that the 
nature of the information at issue "underlined" that  it was "relevant" to the presentation of the 
Chinese producers' cases, within the meaning of Article 6.4.233 
5.111.  In our view, the European Union's argument  conflates the term "relevant" with the term 
"used" under Article 6.4 of the Anti-Dumping Ag reement. Each of these terms play a role in 
demarcating the information that falls within the scope of the obligation in that provision. The 
Appellate Body has interpreted these terms in a manner that gives distinct meaning to each. The 
"relevance" of information, for the purposes of Ar ticle 6.4, must be examined from the perspective 
of the interested party that has requested that information. By contrast, whether such information 
has been "used" by the authority is to be examin ed by assessing whether the information is of a 
nature and type that relates to "a required  step in the anti-dumping investigation".234  
5.112.  Nevertheless, we do not consider that the Panel erred in this case by examining the nature 
of the information at issue when determining whether such information was "relevant" within the 
meaning of Article 6.4. The Panel determined that information concerning the list and characteristics of Pooja Forge's products was relevant to the Chinese producers' cases by examining this issue from the perspective of these producers. Having found that these producers 
                                               
230 European Union's appellant's submission, para. 267. 
231 Appellate Body Report, EC – Fasteners (China) , para. 479 (quoting Appellate Body Report, EC – Tube 
or Pipe Fittings , para. 147). 
232 European Union's appellant's submission, para. 268. 
233 European Union's appellant's submission, para . 266 (referring to Panel Report, para. 7.89). 
234 Appellate Body Report, EC – Fasteners (China) , para. 479 (quoting Appellate Body Report, EC – Tube 
or Pipe Fittings , para. 147). WT/DS397/AB/RW 
 
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 had repeatedly requested this information, the Panel correctly concluded that, for the purposes of 
Article 6.4, such information was "relevan t for the presentation of their cases".235 That finding by 
the Panel is not called into question by the fact  that the Panel subsequently considered that the 
nature of the information "underlines" its relevance. 236 
5.113.  For the reasons expressed above, we do not consider that the Panel erred in finding that 
the information at issue was, for the purposes of Article 6.4 of the Anti-Dumping Agreement, "relevant" for the presentation of the Chinese producers' cases.  
5.3.2.4  Whether the Panel erred in finding th at the information at issue was "used" by 
the Commission in the review investigation 
5.114.  The European Union further claims that the Panel's finding that the European Union acted 
inconsistently with Article 6.4 of the Anti-Dumping Agreement is in error because the Panel 
incorrectly found that the information at issue was "used" by the Commission, within the meaning 
of Article 6.4. In particular, the European Union takes issue with the Panel's statement that the information at issue "had to do" with the determination of normal values in the calculation of 
dumping margins for the Chinese producers.
237 The European Union submits that the Panel erred 
by considering that the mere fact that information "relates" to a particular issue that is before the authority establishes that such information was "used" by that authority.
238  
5.115.  According to the European Union, the information at issue "as a whole" – 
i.e. "Pooja Forge's internal codes and product desc ription [text strings] as well as Pooja Forge's 
product range sold in India" – was proprietary and sensitive information that was by nature confidential as defined in Article 6.5 of the Anti-Dumping Agreement.
239 The European Union 
asserts that this information "as a whole" – "as opposed to more specific parts of it" – was not 
used by the Commission in the review investigation at issue.240 The European Union explains that, 
in the context of the review investigation, the Commission engaged in an active and constructive 
dialogue with the Chinese producers. This result ed in the Commission going through, in greater 
detail, the information originally provided by Pooja Forge in the DMSAL file, and extracting from such information "as much as possible" to arrive at the revised PCNs that were ultimately used for 
the Commission's dumping determinations.
241 The European Union further explains that the 
information extracted by the Commission was "grouped into the product types in accordance with the revised PCNs".
242 This information, asserts the European Union, is what the Commission 
actually "used" in the dumping calculations and what was provided to the Chinese producers in the 
company-specific disclosures.243 The European Union asserts that "[a]ny other information that 
was provided by the Indian producer was, thus, not 'used' by the European Commission."244  
5.116.  In response, China highlights that whether information was actually relied on by the 
authority is irrelevant to the question of whether such information was "used" by that authority 
within the meaning of Article 6.4. In this regard , China notes that, in the original proceedings, the 
Appellate Body confirmed that determining whet her information was "used" by the authority 
"depends on whether the information is relate d to a required step in the anti-dumping 
investigation".245 China contends that the European Union has itself acknowledged that the 
Commission "used" the information provided by Pooja Forge. In this regard, China points to the European Union's explanation that the Commission extracted from the DMSAL file as much 
information as possible in order to arrive at the revised PCNs, which were used in the 
                                               
235 Panel Report, para. 7.89. 
236 Panel Report, para. 7.89. 
237 European Union's appellant's submission, pa ra. 280 (quoting Panel Report, para. 7.90). 
238 European Union's appellant's submission, para. 281.  
239 European Union's appellant's submission, para. 282. 
240 European Union's appellant's submission, para. 282. 
241 European Union's appellant's submission, para. 283. 
242 European Union's appellant's submission, para. 286. 
243 European Union's appellant's submission, para. 286 (referring to Calculations for Biao Wu 
(Panel Exhibit CHN-44); Calc ulations for Ningbo Jinding (Panel Exhibi t CHN-45); and Calculations for Changshu 
(Panel Exhibit CHN-46)).  
244 European Union's appellant's submission, para. 283. 
245 China's appellee's submission, para. 287 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 479, in turn quoting Appellate Body Report, EC – Tube or Pipe Fittings , para. 147). WT/DS397/AB/RW 
 
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 determination of normal values and dumping margins.246 China emphasizes that the information 
concerning the list and characteristics of Pooja Forge's products thus necessarily concerns the required step of the comparison between normal values and export prices because it was on the basis of this information that the Commission determined the revised PCNs.
247 
5.117.  We recall that, in the original proceedin gs, the Appellate Body confirmed that whether 
information was "used" by the authority, within the meaning of Article 6.4, does not depend on 
whether the authority specifically relied on that information. Instead, "it depends on whether the 
information is related to 'a required step in the anti-dumping investigation'."248 Thus, Article 6.4 
concerns information relating to "issues which the investigating authority is required to consider under the [ Anti-Dumping Agreement ], or which it does, in fact, consider, in the exercise of its 
discretion, during the course of an anti-dumping investigation".
249 
5.118.   We consider that the European Union puts forward a very narrow reading of the term 
"used", within the meaning of Article 6.4, which does not comport with the Appellate Body's interpretation of that term in the original proceedin gs. Although all of the specific data provided by 
Pooja Forge concerning its products and their characteristics may not have been specifically relied 
on by the Commission in its determinations, the Commission extracted as much as possible from all of Pooja Forge's data in order to group the pr oducts at issue in accordance with the revised 
PCNs, and calculated dumping margins for the Chines e producers on this basis. As such, all of the 
information concerning the products sold by Pooja Forge and their characteristics was "used" by the Commission, within the meaning of Article 6.4, because it related to a "required step" in the investigation, i.e. the calculation of dumping margins.  
5.119.  In the light of the foregoing considerations, we consider that the Panel did not err in 
finding that the information at issue was "used" by the Commission in the review investigation at issue. 
5.3.2.5  Whether the Panel erred in finding that the Chinese producers were not 
provided with "timely opportunities" to see the information at issue 
5.120.  On appeal, the European Union argues that the Panel erred in finding that the provision of 
information to the Chinese producers at the time when the company-specific disclosures were 
issued was too late to comply with the obligation under Article 6.4 of the Anti-Dumping Agreement. In this regard, the European Union po ints out that the Chinese producers were given 
three weeks to make comments on the disclosur es, including the possibility of requesting 
adjustments.
250 Moreover, the European Union asserts that by contrast with the original 
proceedings where the Appellate Body  considered that providing one  day to make comments and 
request adjustments was not sufficient to comply with the obligation under Article 6.4, the Panel in 
these compliance proceedings did not determine whether three weeks were sufficient for the 
Chinese producers to have made requests for adjustments in the context of the review investigation. The European Union submits that the Panel erred in this regard.
251 
5.121.  As the Panel found in its analysis of China's claims under Article 2.4 of the Anti-Dumping 
Agreement252, and as discussed below in the context of the European Union's appeal of the Panel's 
findings under that provision, the company-specific disclosures relied on by the European Union did not disclose all of the data that the Chinese producers were requesting as regards 
Pooja Forge's products. Indeed, in its analysis of China's claim under Article 6.4, the Panel noted 
that "the European Union [did] not contest that the Chinese producers did request to see the information at issue and that it was not provided to them."
253 Thus, because the Commission did 
                                               
246 China's appellee's submission, para. 285 (referring  to European Union's appellant's submission, 
para. 283). 
247 China's appellee's submission, para. 289. 
248 Appellate Body Report, EC – Fasteners (China) , para. 479 (quoting Appellate Body Report, EC – Tube 
or Pipe Fittings , para. 147). 
249 Appellate Body Report, EC – Fasteners (China) , para. 479 (quoting Panel Report, EC – Salmon 
(Norway) , para. 7.769).  
250 European Union's appellant's submission, para. 287 (referring to Cover letter to the General 
Disclosure Document dated 31 July 2012 (Panel Exhibit EU-4)).  
251 European Union's appellant's submission, para. 287.  
252 Panel Report, para. 7.144. 
253 Panel Report, para. 7.89. WT/DS397/AB/RW 
 
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 not provide an opportunity for the Chinese producer s to see "all" information that was "relevant to 
the presentation of their cases", the question of whether "timely opportunities" were provided, 
within the meaning of Article 6.4, was, in our view, a moot point that did not arise for consideration.   
5.122.   We further consider that the issue of whether "timely opportunities", within the meaning 
of Article 6.4, have been provided to interested parties to see information that falls within the scope of that provision must be determined on  a case-by-case basis. Article 6.4 requires 
investigating authorities, "whenever practicable", to provide interested parties "timely 
opportunities" to see "all information" that is relevant to the presentation of their cases, that is not confidential for the purposes of Article 6.5, and th at is used by the authority in the sense that it 
relates to a required step in the anti-dumping investigation. Thus, the obligation in Article 6.4 
applies to a broad range of information that may relate to several required steps in an 
anti-dumping investigation. Hence, whether "timely opportunities" have been provided to see information for the purposes of Article 6.4 must be  considered in the light of the circumstances of 
each case, taking into account the specific information at issue, the step of the investigation to 
which such information relates, the practicability of disclosure at certain points of the investigation vis-a-vis other points, and the stage of the investigation at which interested parties have made a 
request to see the information at issue. Thus, we disagree with the proposition that providing 
three weeks to exporters to comment on information within the scope of the obligation under Article 6.4 is insufficient, in all cases, to sati sfy the requirement to provide "timely opportunities" 
to see such information. 
5.123.  In the light of the foregoing considerations, we uphold the Panel's finding, in 
paragraph 7.92 of its Report, that the European Union acted inconsistently with Article 6.4 of the 
Anti-Dumping Agreement because the Commission fa iled to provide the Chinese producers with 
information concerning the list and characteristics of Pooja Forge's products, which was not 
confidential within the meaning of Article 6.5 of the Anti-Dumping Agreement, was relevant to the 
presentation of the Chinese producers' cases, and was used by the Commission. 
5.124.  The European Union argues that the Panel's finding that the European Union acted 
inconsistently with Article 6.2 of the Anti-Dum ping Agreement is in error for similar reasons 
"mutatis mutandis " as those argued by the European Union in the context of its claim under 
Article 6.4 of the Anti-Dumping Agreement.254 We recall that, after finding that the 
European Union acted inconsistently with Article 6. 4 by failing to disclose to the Chinese producers 
the information concerning the list and characteristics of Pooja Forge's products, the Panel found, consequentially, that the European Union acted inconsistently with Article 6.2 by not providing a 
full opportunity for the Chinese producers to defend their interests on the basis of the information 
at issue.
255 We have found above that the Panel did not err in finding that the European Union 
acted inconsistently with Article 6.4 in the review investigation at issue. Accordingly, we do not 
consider that the Panel erred in finding that, by failing to disclose the information at issue to the 
Chinese producers in accordance with Article 6.4, the European Union denied these producers a "full opportunity for the defence of their interests", in contravention of Article 6.2.  
5.125.  For the reasons expressed above, we uphold the Panel's finding, in paragraph 8.1.ii of its 
Report, that the European Union acted inconsistently  with Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement in the review investigation at issue. 
5.4  Article 6.1.2 of the Anti-Dumping Agreement 
5.4.1  The Panel's terms of reference 
5.126.  Before the Panel, the European Union argued that China was precluded from raising its 
claim under Article 6.1.2 of the Anti-Dumping Agreement in these compliance proceedings because 
this was a claim that China could have raised but did not raise in the original proceedings, and that 
pertained to an unchanged aspect of the original measure that was incorporated in, but separable from, the measure taken to comply.
256 
                                               
254 European Union's appellant's submission, para. 292. 
255 Panel Report, para. 7.96. 
256 Panel Report, paras. 7.101 and 7.106. WT/DS397/AB/RW 
 
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 5.127.  As it did in respect of Articles 6.4 and 6.2 of the Anti-Dumping Agreement, the Panel found 
that, because the Chinese producers were not awar e of the information concerning the list and 
characteristics of Pooja Forge's products, China could not have brought a claim under Article 6.1.2 in the original proceedings to challenge the Commission's failure to make available that 
information promptly to the Chinese producers. The Panel also recalled that Pooja Forge provided 
information on coating only during the review investigation and, therefore, China could not have brought a claim under Article 6.1.2 in the original proceedings with respect to the disclosure of this 
information.
257 
5.128.  On appeal, the European Union states that its claim regarding the Panel's terms of 
reference in respect of Article 6.1.2 of the Anti-Dumping Agreement is based on the same arguments mutatis mutandis  as the claims it makes in respect of Articles 6.4 and 6.2.
258 
Article 6.1.2 and Article 6.4 require the disclosur e of information, and the information that, as 
China argues, the Commission failed to disclose under these two provisions is the same. While Article 6.4 requires the disclosure of all information that is relevant to the parties' presentation of 
their cases, Article 6.1.2, for its part, requires the disclosure to interested parties of evidence 
presented in writing by any other interested party.  
5.129.  In the light of the facts that: (i) the European Union makes the same arguments under 
Article 6.1.2 that it makes under Articles 6.4 and 6.2; (ii) the underlying factual circumstances 
relevant to China's claims under Articles 6.4, 6.2, and 6.1.2, are the same; and (iii) in respect of the circumstances at issue in this dispute, Articles 6.4 and 6.1.2 impose the same disclosure obligations; we reach the same conclusions under  Article 6.1.2 that we have reached under 
Articles 6.4 and 6.2. We thus consider that the claim China has raised under Article 6.1.2 in the 
compliance proceedings is not a claim that China could have raised in the original proceedings.  
5.130.  In addition, the European Union claims on appeal that, in concluding that China's claim 
under Article 6.1.2 fell within its terms of reference, the Panel acted inconsistently with Article 11 
of the DSU. According to the European Union, cont rary to the Panel's conclusion that Pooja Forge 
provided information on coating during the review investigation, what Pooja Forge actually did in 
the review investigation was merely to confirm information that the Commission had already 
obtained during the original investigation.
259 
5.131.  In the original proceedings, the Appellate Bo dy stated that "a participant claiming that a 
panel ignored certain evidence, and hence acted in consistently with Article 11, must explain why 
the evidence is so material to its case that the panel's failure to address such evidence has a 
bearing on the objectivity of the panel's factual assessment."260 In the present dispute, the 
European Union has not demonstrated that the Panel's alleged error in concluding that Pooja Forge 
provided information on coating during the review investigation, rather than simply confirming 
information that it had already provided in the original investigation, is material to its case that the Panel erred in finding that the claim under Arti cle 6.1.2 fell within its terms of reference. 
5.132.  As we have explained above in respect of Articles 6.4 and 6.2, the Panel's conclusion that 
China's claim under Article 6.1.2 fell within its terms of reference was not based on the fact that the information that the Commission declined to disclose in the review investigation was "new" as compared to the information that the Commission declined to disclose in the original investigation. 
Rather, the Panel based its findings on the fact that the Chinese producers became aware of this 
information only in the review investigation, so that China could not have brought the same claim under Article 6.1.2 in the original proceedings.  
5.133.  Thus, even assuming that, as the European Union contends, the information on coating 
had already been provided by Pooja Forge to the Commission in the original investigation, this fact alone has no bearing on the conclusion that the European Union has not demonstrated that the 
Chinese producers were aware, in the original investigation, of the existence and relevance of the 
information that is at the base of China's claim under Article 6.1.2 in the compliance proceedings. 
                                               
257 Panel Report, para. 7.114. 
258 European Union's appellant's submission, para. 154. 
259 European Union's appellant's  submission, paras. 156-157. 
260 Appellate Body Report, EC – Fasteners (China) , para. 499. WT/DS397/AB/RW 
 
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 5.134.  In the light of the above, we see no merit in the claim by the European Union that the 
Panel acted inconsistently with Article 11 of th e DSU in finding that Pooja Forge had provided 
information on coating in the review investigation, rather than simply confirming information it had already provided in the original investigation. 
5.135.  We, therefore, uphold the Panel's finding, in paragraph 7.115 of its Report, that China's 
claim under Article 6.1.2 was within the Panel's terms of reference. 
5.4.2  Whether the Panel erred in rejectin g China's claim under Article 6.1.2 of the 
Anti-Dumping Agreement 
5.136.  We turn now to consider China's appeal of the Panel's findings on the merits of its claim 
under Article 6.1.2 of the Anti-Dumping Agreement.  China claims that the Panel erred in rejecting 
its claim that the European Union acted inconsistently with Article 6.1.2 in the review 
investigation. China argues in this regard that the Panel erred in finding that Pooja Forge was not 
an "interested party" in the review investigation and that the obligation under Article 6.1.2 did not apply to information submitted by Pooja Forge.
261 China requests us to reverse this finding of the 
Panel and to find, instead, that the European Union acted inconsistently with Article 6.1.2 because 
the Commission failed to make the information concerning the list and characteristics of Pooja Forge's products available to the Chinese producers.
262 We begin our analysis by 
summarizing the Panel's findings under Article 6.1.2. 
5.4.2.1  The Panel's findings 5.137.  Before the Panel, China argued that the European Union acted inconsistently with 
Article 6.1.2 of the Anti-Dumping Agreement because the Commission failed to make the 
information concerning the list and characteristics of Pooja Forge's products available promptly to 
the Chinese producers. China argued that the obligation under Article 6.1.2 applied to this information because: (i) the information at issue was not confidential within the meaning of 
Article 6.5 of the Anti-Dumping Agreement; and (i i) Pooja Forge was an interested party in the 
review investigation at issue.
263  
5.138.  The Panel recalled that it had found that the Commission acted inconsistently with 
Article 6.5 of the Anti-Dumping Agreement by acco rding confidential treatment to the information 
concerning the list and characteristics of Pooja Forg e's products. In the light of this finding, the 
Panel stated that it would proceed with its analysis  under Article 6.1.2 on the basis that it had "not 
been established that this information had to be treated as confidential".264 Thus, the Panel 
considered that the only remaining issue for its consideration was whether Pooja Forge was an 
"interested party" in the review investigation. 
5.139.  The Panel noted that the first part of Article 6.11 of the Anti-Dumping Agreement sets 
forth a non-exhaustive list of entities that an authority is required to treat as "interested parties" 
in an anti-dumping investigation.265 The Panel explained that there was no dispute between the 
parties that Pooja Forge, an analogue country produc er, is not one of the entities listed in the first 
part of Article 6.11. Noting China's argument th at Pooja Forge was, nonetheless, an interested 
party in the light of its active participation in the investigation, and the significant amount of information that it had provided to the Commission, the Panel responded that the second part of Article 6.11 does not state that a party that submits significant information to the authority or that 
actively participates in an investigation automatically becomes an "interested party".
266 However, 
the Panel considered that, because the second pa rt of Article 6.11 states that Members are not 
precluded from allowing other domestic or foreign parties not mentioned in the first part of 
Article 6.11 to be included as interested parties in an investigation, this implies that an authority 
may allow an entity, such as an analogue country producer, to participate in an investigation as an interested party. The Panel added that it was logical to assume that such a decision would 
normally be made at the request of the party in question, and that, "[a]rguably", this party would 
                                               
261 China's other appellant's submission, para. 149. 
262 China's other appellant's submission, para. 183. 
263 Panel Report, para. 7.116. 
264 Panel Report, para. 7.116. 
265 Panel Report, para. 7.117. 
266 Panel Report, para. 7.118. WT/DS397/AB/RW 
 
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 make such a request if it expects to be affected by the outcome of the investigation.267 According 
to the Panel, this is because gaining "interested party" status creates obligations and rights for such parties.
268 For the Panel, this demonstrates that the decision to allow a party not specifically 
listed in Article 6.11 to be included as an interested party is an important one such that it is likely 
to appear on the investigation record. Noting that the record did not indicate that the Commission 
decided to include Pooja Forge as an "interested party" in the review investigation, the Panel found that Pooja Forge was, therefore, not an interested party in the investigation and, accordingly, that 
the obligation under Article 6.1.2 did not apply to evidence provided by Pooja Forge.
269 
5.140.  Before concluding its analysis of China' s claim under Article 6.1.2, the Panel turned to 
consider China's argument that, by finding, in th e original proceedings, that Articles 6.5 and 6.5.1 
of the Anti-Dumping Agreement applied to Pooja Fo rge, the Appellate Body considered Pooja Forge 
to be an "interested party" in the original investigation. Noting China's reliance on footnote 780 of 
the Appellate Body report in the original proceedings270, the Panel considered that "[a]ll that the 
Appellate Body says is that the Commission had to accord the protection provided for in 
Articles 6.5 and 6.5.1 of the [Anti-Dumping]  Agreement to the information provided by 
Pooja Forge."271 For the Panel, the statement of the Appellate Body in footnote 780 of its report in 
the original proceedings, alone, did not suffice to conclude that Pooja Forge was an interested 
party in the original investigation, "or that the Appellate Body considered that it was".272 
5.141.  In the light of the foregoing considerations, the Panel rejected China's claim under 
Article 6.1.2 of the Anti-Dumping Agreement. 
5.4.2.2  Whether the Panel erred in finding that Pooja Forge was not an interested party 
in the review investigation at issue 
5.142.  China appeals the Panel's findings under Article 6.1.2 of the Anti-Dumping Agreement on 
three main grounds. First, China contends that th e Panel erred in its interpretation of the term 
"interested parties" in Article 6.11 of the Anti-Dum ping Agreement. In particular, China faults the 
Panel for considering that whether an entity is an interested party depends on a decision of the investigating authority which must appear on the record of the investigation, and for stating that 
such a decision is made at the request of the part y concerned. According to China, such a decision 
may "implicitly flow" from an examination of the record of the investigation, and the Panel, therefore, erred by not examining whether the Co mmission, implicitly, decided to treat Pooja Forge 
as an interested party.
273 China submits that the fact that the Commission selected Pooja Forge as 
the analogue country producer and used its information to determine the normal values of the 
Chinese producers' products demonstrates that the Commission decided to treat Pooja Forge as an interested party.
274  
5.143.  Second, China contends that the Panel erred in its interpretation and application of 
Article 6.1.2 by finding that the obligation contained therein applies only to those parties that are "interested parties" within the meaning of Articl e 6.11. China submits that, in the light of the 
                                               
267 Panel Report, para. 7.119. 
268 Panel Report, para. 7.119. 
269 Panel Report, para. 7.119. 
270 Footnote 780 to paragraph 540 of the Appellate Body's report in the original proceedings reads as 
follows: 
We note, in this respect, the European Union's argument that the "good cause" requirement for 
confidential treatment of information in Article 6.5 does not apply to analogue country producers like Pooja Forge, because they do not fall within  the definition of "interested parties" under 
Article 6.11 of the Anti-Dumping Agreement  … In the fasteners investigation, the Commission did 
not determine normal value on the basis of  the information from Chinese producers and 
exporters, and decided to seek information from analogue country producers. The Indian 
company Pooja Forge participated in the investigation at the request of the Commission, and provided substantial amounts of information that  was used as the basis for determining normal 
value. In our view, the decision by the Commissi on to determine normal value based on 
information from an analogue co untry producer, and the participation of Pooja Forge in the 
investigation, require that Pooja Forge be afford ed the protection of sensitive information upon 
"good cause" shown and the obligations of both Articles 6.5 and 6.5.1 apply. (emphasis added) 
271 Panel Report, para. 7.122. 
272 Panel Report, para. 7.122. 
273 China's other appellant's submission, para. 162. 
274 China's other appellant's submission, para. 165.  WT/DS397/AB/RW 
 
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 "key role" played by Pooja Forge in the review investigation275 and the purpose of Article 6.1.2, 
Pooja Forge should be assimilated to an "intereste d party" presenting evidence under Article 6.1.2 
and, thus, the information provided by this compan y should fall within the scope of Article 6.1.2.276 
Accordingly, China faults the Panel for not examining whether Pooja Forge could be assimilated to 
an interested party presenting evidence for the purposes of Article 6.1.2.277 
5.144.  Third, China contends that the Panel erre d in its interpretation of the Appellate Body's 
findings in the original proceedings. In this regard, China submits that the Panel's finding that 
Pooja Forge was not an interested party for the purposes of Article 6.1.2 is not reconcilable with 
the Appellate Body's finding that the obligation under Article 6.5.1 applies to Pooja Forge, despite the fact that this provision expressly refers to confidential information provided by "interested 
parties".
278 Thus, in China's view, the Appellate Body's finding that Article 6.5.1 applied to 
Pooja Forge supports the conclusion that information submitted by Pooja Forge should also fall 
within the scope of the obligation under Article 6.1.2. 
5.145.  For its part, the European Union asserts that , contrary to a textual reading of Article 6.1.2, 
China is arguing that this provision does not apply only to "interested parties" within the meaning 
of Article 6.11, but also to all entities that China considers can be "assimilated to 'interested parties'".
279 Moreover, the European Union points out that  Article 6.11 states that a decision by a 
Member is required in order for an entity not listed in the first part of that provision to be included 
as an "interested party" in an anti-dumping inve stigation. According to the European Union, China 
did not point to any indications that the Commission had taken a decision to include Pooja Forge as an "interested party" in the review investigation. Thus, submits the European Union, the Panel 
correctly found that Pooja Forge was not an "interested party" for the purposes of Article 6.11 and 
that, accordingly, the obligation under Article 6.1.2 did not apply to information provided by Pooja Forge.
280 
5.146.  Turning to our analysis, we recall that  Article 6.1.2 of the Anti-Dumping Agreement 
provides as follows: 
Subject to the requirement to protect confid ential information, evidence presented in 
writing by one interested party shall be made available promptly to other interested 
parties participating in the investigation. 
5.147.  Article 6.1.2 makes clear that the obligation contained therein applies only to evidence 
presented in writing by "interested parties" in an anti-dumping investigation. The term "interested 
parties" for the purposes of the Anti-Dumping Agr eement is, in turn, defined in Article 6.11 of that 
Agreement. Article 6.11 provides: 
For the purposes of this Agreement, "interested parties" shall include: 
(i) an exporter or foreign producer or  the importer of a product subject to 
investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product; 
(ii) the government of the exporting Member; and 
(iii) a producer of the like product in the importing Member or a trade and business 
association a majority of the members of  which produce the like product in the 
territory of the importing Member. 
This list shall not preclude Members from allowing domestic or foreign parties other 
than those mentioned above to be included as interested parties. 
                                               
275 China's other appellant's submission, para. 172. 
276 China's other appellant's submission, para. 168. 
277 China's other appellant's submission, para. 168. 
278 China's other appellant's submission, para. 179 (referring to Appellate Body Report, EC – Fasteners 
(China) , fn 780 to para. 540). 
279 European Union's appellee's submission, para. 154  (quoting China's other appellant's submission, 
para. 166). 
280 European Union's appellee's submission, para. 152. WT/DS397/AB/RW 
 
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 5.148.  Article 6.11 consists of two parts. The first part contains a non-exhaustive list of entities 
that are ipso facto  "interested parties" for the purposes of  the Anti-Dumping Agreement. In this 
regard, the first part of Article 6.11 states that "interested parties" "shall include "281 the entities 
listed therein, indicating that the list is illustrative, rather than exhaustive. In addition, the residual 
clause of Article 6.11 states that Members shall not be precluded "from allowing … parties other 
than those mentioned" in the first part of Article 6.11 to be included as "interested parties". 
5.149.  In examining China's claim, the Panel considered that "the decision to allow a party not 
specifically listed in Article 6.11 to be included as an interested party is an important one such that 
it is likely to appear on the investigation record." The Panel then stated that "[n]owhere in the record is it indicated that the Commission decided to include Pooja Forge as an 'interested party' in [the review] investigation."
282 The Panel therefore concluded that Pooja Forge was not an 
"interested party" in the review investigation and, accordingly, that the obligation set forth under 
Article 6.1.2 of the Anti-Dumping Agreement "did not arise with respect to the evidence provided 
by this company".283 
5.150.  In considering whether the Commission allowed Pooja Forge to be an "interested party" in 
the investigation, we find the following factors to be pertinent. First, Pooja Forge participated in the investigation at the request of the Commission. Second, the Commission selected Pooja Forge 
as the analogue country producer for the purposes of the investigation and used its data to 
determine normal values and calculate dumping margins for the Chinese producers. Third, the Commission treated Pooja Forge like an investigating authority is required to treat an "interested party" in an investigation by, for example, requesting Pooja Forge to provide a non-confidential 
summary of information submitted in confidence , and verifying the information submitted by 
Pooja Forge. Hence, in the circumstances of this case, we do not agree with the Panel's statement that "[n]owhere in the record is it indicated that the Commission decided to include Pooja Forge as 
an 'interested party' in this investigation."
284 Although there was no evidence on the record of a 
formal declaration  of the Commission deeming Pooja Forge to be an "interested party" within the 
meaning of Article 6.11, the record of the investigation demonstrates that, by its actions in this 
particular case, the Commission treated Pooja Forge as an interested party in the review 
investigation at issue and, consequently, "allow[ed]" Pooja Forge "to be included as [an] interested part[y]", within the meaning of the residual clause of Article 6.11.  
5.151.  Our reasoning above is consistent with the findings of the Appellate Body in the original 
proceedings. In particular, the Appellate Body found that the obligations under Articles 6.5 
and 6.5.1 of the Anti-Dumping Agreement applied to information submitted by Pooja Forge in the 
original investigation, despite the fact that Article 6.5.1 applies explicitly to "interested parties". In 
reaching this finding, the Appellate Body recalled that, in the original investigation, the 
Commission did not determine normal values on the basis of the information submitted by the 
Chinese producers, and decided to seek information from analogue country producers. The 
Appellate Body further recalled that Pooja Forge participated in the investigation at the request of 
the Commission, and provided substantial amounts of information that were used as the basis for determining normal values. Thus, the Appellate Body considered that "the decision by the Commission to determine normal value[s] based on information from an analogue country 
producer, and the participation of Pooja Forge in the investigation, require that Pooja Forge be 
afforded the protection of sensitive information upon 'good cause' shown and the obligations of both Articles 6.5 and 6.5.1 apply."
285 
5.152.  In the light of the foregoing considerations, we reverse the Panel's finding, in 
paragraph 7.119 of its Report, that Pooja Forge was not an "interested party" in the investigation 
and that, therefore, the obligation set forth in Ar ticle 6.1.2 of the Anti-Dumping Agreement did not 
apply to evidence provided by Pooja Forge. Having reversed this finding of the Panel, we consider 
China's request that we find that the European Union acted inconsistently with Article 6.1.2 
                                               
281 Emphasis added. 
282 Panel Report, para. 7.119. 
283 Panel Report, para. 7.119. 
284 Panel Report, para. 7.119. 
285 Appellate Body Report, EC – Fasteners (China) , fn 780 to para. 540. WT/DS397/AB/RW 
 
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 because the Commission failed to make the information concerning the list and characteristics of 
Pooja Forge's products available to the Chinese producers.286  
5.153.  We recall that, subject to the requirement to  protect confidential information, Article 6.1.2 
requires that evidence presented in writing by one interested party be made available promptly to 
other interested parties participating in an investigation. We have found above that Pooja Forge 
was an interested party in the review investigation. Accordingly, evidence presented in writing by Pooja Forge falls within the scope of the obligation under Article 6.1.2, subject to the requirement 
to protect confidential information. Insofar as co nfidentiality is concerned, Article 6.1.2 must be 
read in the context of Article 6.5, which governs the treatment of confidential information. Thus, 
we read the term "[s]ubject to the requirement to protect confidential information" in Article 6.1.2 
as excluding from the scope of that provision information that has been accorded confidential 
treatment by the authority in accordance with the requirements under Article 6.5. The Panel 
concluded that the European Union acted inconsistently with Article 6.5 as regards the Commission's confidential treatment of the information concerning the list and characteristics of 
Pooja Forge's products. We have upheld this findin g of the Panel and further clarified that, in the 
absence of "good cause" being shown, there is no legal basis under Article 6.5 for according confidential treatment to information provided to authorities by parties to an investigation. 
Accordingly, we find that the information concer ning the list and characteristics of Pooja Forge's 
products is not excluded from the scope of the obligation under Article 6.1.2. Thus, by not making this information available to the Chinese producers in the review investigation, the Commission acted inconsistently with Article 6.1.2. Therefore, we conclude that, in the review investigation at 
issue, the European Union acted inconsistently with Article 6.1.2. 
5.154.  In the light of the foregoing considerations, we reverse the Panel's finding, in 
paragraph 8.2.i of its Report, that China had not established that the European Union acted 
inconsistently with Article 6.1.2 of the Anti-Dumping Agreement in the review investigation at 
issue, and find, instead, that the European Union acted inconsistently with that provision because 
the Commission failed to make available to the Chinese producers information concerning the list 
and characteristics of Pooja Forge's products. 
5.5  Article 2.4 of the Anti-Dumping Agreement 5.155.  The European Union challenges the Pa nel's interpretation and application of the 
last sentence of Article 2.4 of the Anti-Dumping Agreement. For its part, China claims that the 
Panel erred in its interpretation and application of Article 2.4 as regards the fair comparison 
requirement under this provision.  
5.5.1  The European Union's appeal under the last sentence of Article 2.4 of the 
Anti-Dumping Agreement 
5.156.  The Panel found that the European Union acted inconsistently with Article 2.4 of the 
Anti-Dumping Agreement because the Commission failed to provide the Chinese producers with 
information regarding the characteristics of Pooja Forge's products that were used in determining 
normal values in the review investigation at issue.
287 The European Union appeals this finding and 
argues that the last sentence of Article 2.4 merely requires that interested parties be informed of the "approach" adopted by an investigating author ity for ensuring a fair comparison and of the 
characteristics of the "product groupings" used in the dumping determination.
288  
5.5.1.1  The Panel's findings  5.157.  Before the Panel, China claimed that the European Union acted inconsistently with the 
last sentence of Article 2.4 of the Anti-Dum ping Agreement, which requires investigating 
authorities to indicate what information is necessary to ensure a fair comparison, because the Commission failed to provide the Chinese producers with information regarding the characteristics 
of Pooja Forge's products that was essentia l for them to make adequate requests for 
adjustments.
289 The European Union responded that the last  sentence of Article 2.4 only requires 
                                               
286 China's other appellant's submission, para. 183. 
287 Panel Report, paras. 7.148 and 8.1.iii.  
288 European Union's appellant's submission, para. 313.  
289 Panel Report, paras. 7.125-7.129 and 7.134.  WT/DS397/AB/RW 
 
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 that interested parties be informed of the "approach" adopted by an investigating authority for 
ensuring a fair comparison, but does not require the disclosure of "raw data" or confidential information
290, or that interested parties be in a position "to satisfy themselves of the accuracy of 
the information provided [to the investigating authority] by other interested parties or entities".291 
The European Union further contended that the requested information was eventually provided to 
the Chinese producers through the Commission's company-specific disclosures, where detailed dumping calculations indicated the characteristics of the products sold by Pooja Forge, as well as 
the export transactions that were matched with Pooja Forge's domestic transactions.
292  
5.158.  The Panel began its analysis by recalling the original proceedings, where the 
Appellate Body found that "Article 2.4 obliges investigating authorities … at a minimum, to inform the parties of the products or product groups used for purposes of the price comparison."
293 The 
Panel also noted the Appellate Body's conclusion that, "because the Commission did not clearly 
indicate the product types used for purposes of price comparisons until very late in the proceedings, the European Union acted inconsistently with its obligations under Article 2.4 by 
depriving the Chinese producers of the ability to request adjustments for differences that could 
have affected price comparability."
294  
5.159.  The Panel then turned to the review investigation at issue and stated that, "although the 
Chinese producers knew the basis on which the Commission grouped the products … they did not 
know the specific product types of Pooja Forge with which their own product types were being compared."
295 Having recalled its earlier finding that the European Union acted inconsistently with 
Article 6.4 of the Anti-Dumping Agreement because the Commission failed to provide the 
Chinese producers with timely opportunities to see information concerning the list and 
characteristics of Pooja Forge's products, the Panel found that the Chinese producers did not know "whether the product types were grouped consis tently with the revised PCNs" and "whether … 
there were factors other than those included in the revised PCNs which could have justified further 
adjustments".
296 Accordingly, the Panel concluded that the Chinese producers were deprived "of 
the opportunity to make informed decisions on whether to request adjustments" under 
Article 2.4.297 
5.160.  In addition, the Panel specifically addressed the company-specific disclosures containing 
the dumping calculations relied upon by the European Union. The Panel found that these calculations show how a particular product sold by Pooja Forge compares to each of the 
PCN characteristics but do not indicate what "particular model" sold by Pooja Forge was being 
compared with what "model" sold by the Chinese producers.
298 The Panel thus concluded that the 
Chinese producers did not have a meaningful opportunity to request adjustments.299 The Panel 
further found that the dumping calculations did not satisfy the requirements of Article 2.4 because 
they were provided as part of the final disclosure, which conveys the essential facts under consideration with respect to the decision to impose  definitive measures and is, therefore, sent to 
interested parties towards the end of an investigation.
300 Finally, the Panel rejected the 
European Union's argument that the relevant information was confidential, by relying on its earlier finding that the Commission's confidential treatment of Pooja Forge's information was inconsistent with Article 6.5 of the Anti-Dumping Agreement.
301 In a footnote, the Panel added that, even if the 
information were confidential, some disclosure woul d have been required under Article 2.4, subject 
to the obligations set forth in Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement regarding the 
                                               
290 Panel Report, para. 7.130.  
291 Panel Report, para. 7.131 (quoting European Union's first written submission to the Panel, 
para. 110). 
292 Panel Report, paras. 7.130 and 7.143 (referring to the European Union's second written submission 
to the Panel, para. 65).  
293 Panel Report, para. 7.138 (quoting Appellate Body Report, EC – Fasteners (China) , para. 512). 
294 Panel Report, para. 7.138 (quoting Appellate Body Report, EC – Fasteners (China) , para. 513).  
295 Panel Report, para. 7.139.  
296 Panel Report, para. 7.141.  
297 Panel Report, para. 7.142.  
298 Panel Report, para. 7.144. 
299 Panel Report, para. 7.144.  
300 Panel Report, para. 7.144. 
301 Panel Report, para. 7.145. WT/DS397/AB/RW 
 
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 treatment of confidential information and the preparation of non-confidential summaries of such 
information.302 
5.161.  Based on the foregoing, the Panel considered that the European Union acted inconsistently 
with Article 2.4 of the Anti-Dumping Agreemen t because the Commission failed to provide the 
Chinese producers with information regarding the characteristics of Pooja Forge's products that 
were used in determining normal values in the review investigation at issue.303 The Panel 
underlined that this finding was made in the context of an investigation where the analogue 
country methodology was used and where, consequently, the normal value was based on 
information obtained from a third source, rather than from the exporter under investigation.304 The 
Panel found, inter alia , that, in such an investigation, the investigating authority has "to endeavour 
to put the foreign producer on an equal footing with a producer in a normal investigation in terms 
of access to the information on the basis of which requests for adjustments may be formulated."305  
5.5.1.2  The procedural requirement of Ar ticle 2.4 of the Anti-Dumping Agreement 
5.162.  Article 2.4 of the Anti-Dumping Agreement provides, in relevant part:  
A fair comparison shall be made between th e export price and the normal value. This 
comparison shall be made at the same level of  trade, normally at the ex-factory level, 
and in respect of sales made at as nearly as possible the same time. Due allowance 
shall be made in each case, on its merits, for  differences which affect price 
comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. … The authorities shall indicate to the 
parties in question what information is nece ssary to ensure a fair comparison and shall 
not impose an unreasonable burden of proof on those parties.
306 
5.163.  Article 2.4 requires investigating authorities to ensure a fair comparison between the 
export price and the normal value and, to this end, to make due allowance, or adjustments, for 
differences affecting price comparability. The obligation to ensure a fair comparison "lies on the investigating authorities".
307 A s  p a r t  o f  t h e i r  i n v e s t i g a t i o n ,  t h e y  " a r e  c h a r g e d  w i t h  c o m p a r i n g  
normal value and export price and determining whether there is dumping of imports."308 However, 
as the Appellate Body has explained, this does not mean that interested parties do not have a role to play in the process of ensuring a fair comparison.
309 Rather, "exporters bear the burden of 
substantiating, 'as constructively as possible', th eir requests for adjustments reflecting the 'due 
allowance' within the meaning of Article 2.4."310 As such, "[i]f it is not demonstrated to the 
authorities that there is a difference affecting price comparability, there is no obligation to make an adjustment."
311 However, the authorities "must take steps to achieve clarity as to the 
adjustment claimed and then determine whether and to what extent that adjustment is 
merited."312 
5.164.  The last sentence of Article 2.4, in turn, imposes an obligation on investigating authorities 
to "indicate to the parties in question what information is necessary to ensure a fair comparison" 
                                               
302 Panel Report, fn 200 to para. 7.145. 
303 Panel Report, para. 7.148. 
304 Panel Report, para. 7.149.  
305 Panel Report, para. 7.149.  
306 Fn omitted.  
307 Appellate Body Report, EC – Fasteners (China) , para. 487 (quoting Appellate Body Report, 
US - Hot-Rolled Steel , para. 178).  
308 Appellate Body Report, EC – Fasteners (China) , para. 487 (quoting Appellate Body Report, 
US - Hot-Rolled Steel , para. 178). 
309 Appellate Body Report, EC – Fasteners (China) , para. 488.  
310 Appellate Body Report, EC – Fasteners (China) , para. 488 (quoting Panel Report, EC – Tube or Pipe 
Fittings , para. 7.158).  
311 Appellate Body Report, EC – Fasteners (China) , para. 488 (referring to Panel Report, Korea – Certain 
Paper , para. 7.147).  
312 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). WT/DS397/AB/RW 
 
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 and "not [to] impose an unreasonable burden of proof on those parties". This provision thus adds 
a "procedural requirement" to the general obligation to ensure a fair comparison.313  
5.165.  As the Appellate Body explained in the original proceedings:  
[W]hereas the exporters may be required to "substantiate their assertions concerning 
adjustments", the last sentence of Article 2.4 requires the investigating authorities to 
"indicate to the parties" what information these requests should contain, so that the interested parties will be in a position to make a request for adjustments. This process 
has been described as a "dialogue" between the authority and the interested 
parties.
314  
5.166.  The Appellate Body further found that, "as a starting point for the dialogue between the 
investigating authority and the interested parties to ensure a fair comparison, the authority must, 
at a minimum, inform the parties of the product groups with regard to which it will conduct the 
price comparisons."315   
5.167.  In addition, the Appellate Body explaine d the particular relevance of the procedural 
requirement under Article 2.4 in the context of an investigation where the normal value is 
established on the basis of data provided by an analogue country producer, rather than the 
exporter under investigation, by stating that:  
[W]here the normal value is not established on the basis of the foreign producers' 
domestic sales, but is established on the basis of the domestic sales in an analogue country, the investigating authority's obligation to inform the interested parties of the basis of the price comparison is even more pertinent for ensuring a fair comparison. 
This is because foreign producers are unlikely to have knowledge of the specific 
products and pricing practices of the producer in an analogue country. Unless the foreign producers under investigation are informed of the specific products with regard 
to which the normal value is determined, they will not be in a position to request 
adjustments they deem necessary.
316 
5.168.  With this understanding in mind, we examine below the European Union's claims of error 
in respect of the Panel's interpretation and applic ation of the last sentence of Article 2.4 of the 
Anti-Dumping Agreement.  
5.5.1.3  The European Union's claims under the last sentence of Article 2.4 of the 
Anti-Dumping Agreement  
5.169.  On appeal, the European Union raises severa l claims under the last sentence of Article 2.4 
of the Anti-Dumping Agreement. The European  Union submits that the Panel erred in the 
interpretation of the procedural obligation set out in Article 2.4 in suggesting that this obligation 
differs based on the methodology used to determine normal values317, and in finding that it 
                                               
313 Appellate Body Report, EC – Fasteners (China) , para. 489. 
314 Appellate Body Report, EC – Fasteners (China) , para. 489 (quoting, respectively, Panel Reports, 
EC - Tube or Pipe Fittings , para. 7.158; and Egypt – Steel Rebar , para. 7.352). As the panel in Egypt – Steel 
Rebar  explained:  
Finally, we note the affirmative information-gath ering burden on the investigating authority in 
this context, that it "shall indicate to the parties in question what information is necessary to 
ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties" 
(emphasis added). In short, where it is demonstr ated by one or another party in a particular 
case, or by the data itself that a given differenc e affects price comparabilit y, an adjustment must 
be made. In identifying to the parties the data that it considers would be necessary to make such a demonstration, the investigating authority is not to impose an unreasonab le burden of proof on 
the parties. Thus, the process of determining what kind or types of  adjustments need to be made 
to one or both sides of the dumping margin equati on to ensure a fair comp arison, is something of 
a dialogue between interested pa rties and the investigating author ity, and must be done on a 
case-by-case basis, grounded in factual evidence.  
(Panel Report, Egypt – Steel Rebar , para. 7.352) 
315 Appellate Body Report, EC – Fasteners (China) , para. 490. 
316 Appellate Body Report, EC – Fasteners (China) , para. 491.  
317 European Union's appellant's submission, para. 329. WT/DS397/AB/RW 
 
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 requires the disclosure of "raw data".318 In addition, the European Union claims that the Panel 
erred in finding that the Commission deprived the Chinese producers of the opportunity to make informed decisions on whether to request adjustme nts under this provision. In this context, the 
European Union argues that it complied with the Appellate Body's ruling in the original proceedings 
and with the procedural requirement of the last sentence of Article 2.4.
319 Finally, the 
European Union claims that the Panel erred when it found that the confidential nature of the information should not have prevented the Commission from disclosing a summary of the product 
information submitted by Pooja Forge.
320 We analyse each of these claims in turn below.   
5.5.1.3.1  Whether the Panel erred in suggest ing that the obligation under Article 2.4 of 
the Anti-Dumping Agreement differs based on the methodology used to determine 
normal values 
5.170.  The European Union claims on appeal that the Panel erred in the interpretation of the 
procedural obligation set out in Article 2.4 of the Anti-Dumping Agreement because it allegedly 
suggested that this obligation differs based on whether one or another permissible methodology is 
used to determine normal value.321 The European Union argues that there is no legal basis in the 
Anti-Dumping Agreement or in China's Accession Protocol322 for a finding that Article 2.4 imposes a 
"different and more far reaching disclosure obligat ion" when the analogue country methodology is 
used.323 We note that this claim is raised in relation to the Panel's statements in paragraph 7.149 
of its Report, where the Panel accorded particular weight to the fact that, in the investigation at issue, the Commission relied on normal value data provided by a third party, rather than by the 
exporters under investigation.
324 This paragraph of the Panel Report reads in relevant part:  
In a normal investigation where the normal value is based on the foreign producer's 
own prices, the latter can participate meaningfully in the dialogue envisaged under Article 2.4 aiming to ensure a fair comparison between the normal value and the 
export price. In such an investigation, the foreign producer is well positioned to make 
informed decisions about the adjustments that it deems necessary for a fair comparison. By contrast, in an investigation, such as the one before us, where the 
normal value information is obtained from a third source, an issue arises as to the 
foreign producer's access to that information. Fair comparison is to be carried out between two prices, namely the normal value and the export price. Where the 
[Investigating Authority] uses the analogue country methodology, the foreign exporter 
will be left in the dark to the extent it does not have access to the normal value 
information. The [Investigating Authority's] task in such an investigation is to find ways to disclose as much information on normal value as the foreign producer would 
need in order to meaningfully participate in the fair comparison process. In other 
words, the [Investigating Authority] has to endeavour to put the foreign producer on an equal footing with a producer in a normal investigation in terms of access to the 
information on the basis of which reques ts for adjustments may be formulated.
325 
5.171.  China responds that the European Union's reading of the Panel Report is erroneous. In 
China's view, the Panel found that the investigating authority needed to satisfy its obligation under the last sentence of Article 2.4 to the same extent as would be the case in an "ordinary" 
anti-dumping investigation.
326 China further explains that, irre spective of the methodology used, 
"the exporters must be in a position to meaningfully request relevant adjustments in order to ensure a fair comparison."
327 However, whereas, in an "ordinary" investigation, both the normal 
value and the export price are established on the basis of the data of the exporter under 
                                               
318 European Union's appellant's submission, paras. 296 and 314. 
319 European Union's appellant's submission, para. 317. 
320 European Union's appellant's submission, para. 332. 
321 European Union's appellant's submission, para. 329.  
322 Protocol on the Accession of the People's Republic of China, WT/L/432. 
323 European Union's appellant's submission, para. 329.  
324 Referring to the Appellate Body report in EC and certain member States – Large Civil Aircraft , the 
European Union requests that, should we consider this paragraph of the Pa nel Report to be a mere statement, 
we reverse this statement. (European Union's appella nt's submission, fn 234 to para. 329 (referring to 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 936)) 
325 Panel Report, para. 7.149. 
326 China's appellee's submission, para. 342.  
327 China's appellee's submission, para. 346. WT/DS397/AB/RW 
 
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 investigation and the exporter is , therefore, "well positioned" to make informed decisions about 
adjustments, in an investigation involving an analogue country producer, the exporter is "left in the dark" to the extent that it does not have access to the normal value information.
328 China 
concludes that the Panel was correct when looking at the procedural obligation under Article 2.4 in 
the light of the factual circumstance that the analogue country methodology was used.329 
5.172.  We agree that the fact that normal value is determined based on a methodology involving 
data of an analogue country producer does not affect the legal obligation imposed on investigating 
authorities under the last sentence of Article 2.4. In all anti-dumping investigations, "[t]he 
authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties."
330 As 
explained, this provision requires investigating authorities to indicate to the parties what 
information requests for adjustments should contain, so that the interested parties will be in a 
position to make such requests.331 Depending on the factual circumstances at hand, this provision 
may require investigating authorities to provide certain information to parties requesting 
adjustments, in particular where the exporter under investigation is missing information pertaining 
to the normal value determined by the investigating authority because it is based on the domestic sales of an analogue country producer, rather than  the exporter's own domestic sales. Therefore, 
as we have set out above, the procedural requirement under Article 2.4 is necessarily even more 
pertinent in the context of an investigation involving information from an analogue country producer. This, however, does not mean that the legal obligation under the last sentence of Article 2.4 is more far reaching when the analogue country methodology is used. Rather, this issue 
relates to the application of this provision to a particular factual background.  
5.173.  The Panel correctly underlined that its findings were made "in the context of a very 
particular factual situation" and it did not find that a different legal obligation applies under the 
last sentence of Article 2.4 where normal value is determined based on the data of analogue 
country producers
332, as the European Union suggests.333 In addition, we agree with the Panel's 
statement that, whereas in an "ordinary" investigation the exporter is well positioned to make 
informed decisions about necessary adjustments, the exporter may be missing information where 
the normal value is determined based on the domestic sales of an analogue country producer. As the Panel correctly found, in this case, "the foreign exporter will be left in the dark to the extent it does not have access to the normal value information."
334 This is because, as was set out in the 
Appellate Body report in the original proceedings, the foreign producer is "unlikely to have 
knowledge of the specific products and pricin g practices of the producer in an analogue 
country".335 We further agree with the Panel that investigating authorities have "to endeavour to 
put the foreign producer on an equal footing with a producer in a normal investigation in terms of 
access to the information on the basis of which requests for adjustments may be formulated".336 It 
is indeed essential that investigating authorities provide the information that is necessary "so that 
the interested parties will be in a position to make a request for adjustments".337 As the Appellate 
Body explained in the particular context of a norm al value being determined based on the data of 
an analogue country producer, "[u]nless the foreign producers under investigation are informed of the specific products with regard to which the normal value is determined, they will not be in a 
position to request adjustments they deem necessary."
338 
5.174.  In the light of the above, we reject the European Union's claim that the Panel erred in the 
interpretation of the procedural obligation set ou t in Article 2.4 of the Anti-Dumping Agreement 
because it allegedly suggested that this obligation differs based on whether one or another 
permissible normal value methodology is used.  
                                               
328 China's appellee's submission, para. 343 (quoting Panel Report, para. 7.149). 
329 China's appellee's submission, para. 345. 
330 Article 2.4, last sentence of  the Anti-Dumping Agreement.  
331 Appellate Body Report, EC – Fasteners (China) , para. 489. 
332 Panel Report, para. 7.149.  
333 European Union's appellant's submission, para. 329. 
334 Panel Report, para. 7.149.  
335 Appellate Body Report, EC – Fasteners (China) , para. 491. 
336 Panel Report, para. 7.149.  
337 Appellate Body Report, EC – Fasteners (China) , para. 489. 
338 Appellate Body Report, EC – Fasteners (China) , para. 491. WT/DS397/AB/RW 
 
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 5.5.1.3.2  Whether the Panel erred by turnin g the last sentence of Article 2.4 of the 
Anti-Dumping Agreement into a procedural ob ligation requiring the disclosure of "raw 
data" 
5.175.  We now turn to the European Union's conten tion that the Panel erred in its interpretation 
of the last sentence of Article 2.4 by turning th e "fair comparison" requirement into a procedural 
provision requiring investigating authorities to disclose "raw data" and evidence to interested parties.
339 In this context, the European Union argues that Article 2.4 does not impose specific 
obligations in terms of providing information to interested parties requesting adjustments and that 
Article 6 of Anti-Dumping Agreement is the relevant provision governing disclosure obligations.340 
5.176.   China responds that the European Unio n attempts to render the procedural obligation 
imposed under the last sentence of Article 2.4 meaningless when arguing that whether specific 
information should have been made available needs to be addressed exclusively under Article 6 of 
the Anti-Dumping Agreement.341 The United States notes that, whereas the "transparency 
obligation" is found in Article 6, it is "reinforced" by the last sentence of Article 2.4.342 
5.177.  Article 6 of the Anti-Dumping Agreement contains detailed rules concerning, inter alia , the 
collection, confidential treatment, and disclosure of evidence in an anti-dumping investigation. It nonetheless remains that the last sentence of Article 2.4 of the Anti-Dumping Agreement may 
equally require investigating authorities to share certain information with interested parties. In this 
regard, we recall that the procedural obligation under Article 2.4 is limited to ensuring that interested parties are in a position to make requests for adjustments. By contrast, Article 6.4, for example, relates to the parties' right to see all non-confidential information relevant to the 
presentation of their cases and used by the inve stigating authority. It, therefore, applies to a 
broad range of information that is used by an investigating authority for the purposes of carrying out a required step in an anti-dumping investigation. Therefore, in the light of its limited scope, we 
are of the view that the procedural obligation under Article 2.4 does not render any of the 
disclosure obligations under Article 6 "redundant", as the European Union suggests.
343  
5.178.  Moreover, we do not agree with the European Union that the Panel erred in finding that the 
last sentence of Article 2.4 requires the disclosure of "raw data".344 Whether or not a given piece of 
information should be shared with interested parties under the last sentence of Article 2.4 has to be made in the light of the specific circumstances of each investigation, not in the abstract. This is how the Panel proceeded when finding that, in the review investigation at issue, information on the 
characteristics of Pooja Forge's products needed to  be shared with the Chinese producers for them 
to be in a position to request adjustments.
345 We recall that, depending on the particular 
circumstances of the case, the last sentence of Article 2.4 may require an investigating authority 
to share certain information with interested partie s to the extent that these parties require this 
information in order to make requests for adjustments. 
5.179.  We also note that the European Union argues that the Panel erred in the interpretation of 
the last sentence of Article 2.4 of the Anti-Dumping Agreement "by accepting China's approach 
that a fair comparison can only be made if the producers can verify and confirm themselves if an adjustment is required based on all of the information available to the investigating authority."
346 
However, the Panel made no such finding that interested parties should be able to verify the 
information provided by other parties to the investigating authority. Rather, the Panel examined 
whether the Chinese producers were in a position to request adjustments based on the information 
made available to them, or if the Commission should have provided them with additional 
information on the characteristics of Pooja Forge's products.347  
                                               
339 European Union's appellant's submission, para. 296. 
340 European Union's appellant's submission, paras. 305, 314, and 322-323. 
341 China's appellee's submission, para. 333 (quoting European Union's appellant's submission, 
para. 322).  
342 United States' third participant's submission, para. 34. 
343 European Union's appellant's submission, para. 322. 
344 European Union's appellant's submission, para. 296. 
345 Panel Report, para. 7.141. 
346 European Union's appellant's submission, para. 326. 
347 See e.g. Panel Report, paras. 7.142, 7.144, and 7.149.  WT/DS397/AB/RW 
 
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 5.180.  In the light of the foregoing, we find th at the European Union has not established that the 
Panel erred in the interpretation of Article 2.4 of  the Anti-Dumping Agreement in finding that the 
European Union acted inconsistently with this provision because the Commission failed to provide the Chinese producers with information regarding the characteristics of Pooja Forge's products.  
5.5.1.3.3  Whether the Panel erred in findin g that the Commission deprived the Chinese 
producers of the opportunity to make in formed decisions on whether to request 
adjustments 
5.181.  The European Union claims that the Panel erred in finding that the Commission deprived 
the Chinese producers of the opportunity to make informed decisions on whether to request adjustments under Article 2.4 of the Anti-Dumping Agreement.
348 According to the 
European Union, the Panel should have concluded that the European Union complied with the 
Appellate Body's ruling in the original proceed ings and with the procedural requirement of 
Article 2.4 of the Anti-Dumping Agreement because, as the Panel acknowledged, the Chinese producers knew "the basis on which the Commission grouped the products" for the 
purposes of ensuring a fair comparison.
349 The European Union explains that, in the original 
proceedings, the Commission was faulted for not having informed the Chinese producers sufficiently in advance of the two "product type s" on the basis of which it had grouped the 
products, namely, the distinction between standard and special fasteners and the strength class.
350 
By contrast, in the review investigation, the Commission disclosed the product groups by informing the Chinese producers of the characteristics reflected in the revised PCNs.
351 The European Union 
adds that the company-specific disclosures, which were part of the final disclosure, showed how a 
particular product sold by Pooja Forge compared to  each of the PCN characteristics and that this 
also suffices for a finding that the European Union complied with the procedural requirement of Article 2.4.
352  
5.182.  China responds that, in the original proceedings, the Appellate Body referred to 
information on the product groups as the "starting point" of the dialogue under Article 2.4 of the Anti-Dumping Agreement.
353 Further, China submits that the Commission should also have 
provided information on the "specific products" with regard to which the normal values were 
determined in the review investigation at issue354, which the Commission failed to do. In 
particular, China explains that the company-specific disclosures merely identified how the Chinese producers' fasteners had been grouped ac cording to the revised PCNs and whether there 
existed an allegedly corresponding match in Pooja Forge's products, but did not provide the 
necessary information on the characteristics of Pooja Forge's products.
355  
5.183.  As set out above, the Appellate Body found  in the original proceedings that Article 2.4 
obliges investigating authorities, at a minimum, to inform the parties of the "product groups" used 
for the purposes of the price comparison.356 Furthermore, where the normal value is established 
on the basis of the domestic sales in an analogue country, interested parties need to be informed 
of "the specific products with regard to which the normal value is determined".357 This will allow 
them to decide whether requests for adjustments regarding any differences affecting price comparability should be made.   
5.184.  The Panel noted that, in the review investigation, the Commission initially intended to base 
its dumping determination on the same two "product types" used in the original investigation, 
namely, the distinction between special and standard fasteners and the strength class.
358 However, 
following the Chinese producers' comments and requests to see further information, the 
                                               
348 European Union's appellant's submission, para. 317. 
349 European Union's appellant's submission, para . 317 (quoting Panel Report, para. 7.139).  
350 European Union's appellant's submission, para. 319. 
351 European Union's appellant's submission, para. 320. 
352 European Union's appellant's submission, para. 318. 
353 China's appellee's submission, para. 323 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 490).  
354 China's appellee's submission, para. 325 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 491). 
355 China's appellee's submission, para. 334.  
356 Appellate Body Report, EC – Fasteners (China) , para. 490. 
357 Appellate Body Report, EC – Fasteners (China) , para. 491. 
358 Panel Report, para. 7.139.  WT/DS397/AB/RW 
 
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 Commission decided to use the revised PCNs, based on the following product characteristics: the 
distinction between standard and special fasteners; strength class; coating; diameter; and length.
359 The Commission disclosed the revised PCNs on the basis of which it grouped the 
products to conduct the comparison between th e export prices and normal values. The Panel 
further noted that "the Commission rejected the Chinese producers' repeated requests to see the 
information regarding the characteristics of Pooja Forge's products."360   
5.185.  In addition to the revised PCNs, the Commission provided company-specific disclosures as 
part of the final disclosure, consisting of individual dumping margin calculations prepared for 
three Chinese producers.361 The Panel found that the company-specific disclosures provided some 
but not all the information on Pooja Forge's products used to determine normal values. As the Panel explained:  
[The] disclosures indicate the PCN characteristics of the products that were matched 
on the normal value and export price side but do not indicate which models were being compared. To follow on the EU's example … the disclosure did indicate that 
Pooja Forge had sold e.g. a standard hexagon socket head screw, with chrome, with a 
strength class of 8.8 and small diameter and length. Contrary to what the European Union asserts, however, this does not show the characteristics of 
Pooja Forge's product with which the products of the Chinese producers were 
compared. It only shows how a particular product compares to each of the PCN characteristics taken into account in categorizing different product types. It does not show what particular model of Pooja Forge's products was being compared with 
what model sold by the Chinese producers.
362  
5.186.  The European Union alleges that "the Panel misunderstood what the Commission actually 
disclosed."363 We recall that "[a]llegations implicating a panel's appreciation of facts and evidence 
fall under Article 11 of the DSU."364 The European Union's claim relates to the Panel's appreciation 
of the evidence and, therefore, should have be en brought under Article 11 of the DSU. Yet, the 
European Union has not raised a claim under Article 11 of the DSU alleging that the Panel's review 
of the company-specific disclosures was inconsistent with its obligation to conduct an objective 
assessment of the facts. Thus, it is not for us to second-guess the Panel's conclusion resulting from its assessment of this evidence.   
5.187.  The European Union further contends that , since the Chinese producers had been informed 
of the revised PCNs, they knew the product characteristics used by the Commission and could 
have claimed the adjustments they deemed necessary.
365 The European Union is of the view that 
the Chinese producers could have requested adjustments on the basis of other relevant 
characteristics – for example, if their transactions reflected such other characteristics366 – or if 
they only sold products that had or did not have particular characteristics that were reflected in the revised PCNs.
367  
5.188.  Indicating which particular method is used to categorize the products for the purposes of 
price comparison is the starting point of the di alogue contemplated by the Appellate Body under 
Article 2.4 of the Anti-Dumping Agreement.368 In an anti-dumping investigation involving an 
analogue country producer, the exporters under investigation also need to be informed "of the 
specific products with regard to which the normal value is determined", or they will "not be in a 
position to request adjustments they deem necessary".369 We recall that, in an "ordinary" 
                                               
359 Panel Report, para. 7.139 (referring to Review Regulation (Panel Exhibit CHN-3), recital 43). See also 
Letter dated 5 July 2012 from the European Commission  to interested parties (Panel Exhibit CHN-15).  
360 Panel Report, para. 7.139.  
361 Calculations for Biao Wu (Panel Exhibit CHN-44); Calculations for Ningbo Jinding (Panel Exhibit 
CHN-45); Calculations for Changs hu (Panel Exhibit CHN-46).  
362 Panel Report, para. 7.144.  
363 European Union's appellant's submission, para. 324. 
364 Appellate Body Reports, China – Rare Earths , para. 5.173. (fn omitted) 
365 European Union's appellant's submission, paras. 320 and 324. 
366 European Union's appellant's submission, paras. 320 and 324. The European Un ion observes that the 
Chinese producers were successfully able to claim adjust ments regarding "quality co ntrol" without seeing the 
"raw data" submitted by Pooja Forge. (Ibid., para. 319) 
367 European Union's appellant's submission, para. 324. 
368 Appellate Body Report, EC – Fasteners (China) , para. 490. 
369 Appellate Body Report, EC – Fasteners (China) , para. 491. WT/DS397/AB/RW 
 
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 anti-dumping investigation, normal value is usually determined on the basis of the particular 
exporter's domestic sales. Therefore, the exporter under investigation would be expected to have the necessary knowledge of its own products used for establishing both the export price and the normal value. In such circumstances, once the ex porter knows on which basis the comparison will 
be made (for example, once the PCNs are discl osed), that exporter can ascertain whether the 
product groups used adequately capture all differences affecting price comparability or if adjustments are necessary to account for certain differences that affect price comparability. As the 
Panel correctly stated, in investigations involving an analogue country producer, the normal value 
information is obtained from a third source. To the extent the exporters under investigation do not have access to the normal value information, they are "left in the dark" as to the adjustments they could request for differences that affect price comparability between the exported products and the 
products sold domestically by the analogue country producer.
370  
5.189.  The factual circumstances mentioned above show that, in the investigation at issue, the 
Commission indicated to the Chinese producers the "product groups" that served as the basis for 
comparing the transactions by disclosing the revised PCNs. However, the Commission did not 
disclose all the information regarding the characteristics of Pooja Forge's products used for the purposes of the price comparison. In particular , the Commission did not indicate the "specific 
products" of Pooja Forge that were used to de termine normal values, which would have enabled 
the Chinese producers to request the adjustments they deemed necessary. The Chinese producers might have been in a position to speculate about which adjustments were warranted by looking at their own products – for example, if their products had characteristics not accounted for in the 
revised PCNs. However, they could not know if su ch differences were relevant for a comparison 
with the prices of Pooja Forge's products or if there were any other relevant characteristics that Pooja Forge's products had which would have required an adjustment to ensure price 
comparability. We, therefore, agree with the Panel's finding that, "[b]y failing to provide the 
Chinese producers with the information regarding the characteristics of Pooja Forge's products which were used in determining the normal value[s] and which were then compared with the 
products of the Chinese producers, the Commission deprived these producers of the opportunity to 
make informed decisions on whether to request adjustments under Article 2.4."
371  
5.190.  Moreover, the European Union claims that th e Panel erred insofar as it considered the final 
disclosure documents not to be a timely way of informing interested parties under Article 2.4 of 
the Anti-Dumping Agreement.372 The European Union recalls that the dialogue between the 
Commission and interested parties had started prior to the final disclosure and argues that, not only were interested parties fully informed of the "product types" used by the Commission at the 
time of the company-specific disclosures, but they were also provided with sufficient time to 
comment.
373 China, on the other hand, is of the view that the dialogue contemplated under 
Article 2.4 cannot appropriately take place "at the very end of the investigation", at a point in time 
where the dumping calculations have been made.374  
5.191.  As explained above, the Panel found that the company-specific disclosures do not indicate 
which "particular models" were being compared and correctly concluded that the Chinese producers thus could not have had a meaningful opportunity to request adjustments 
based on these disclosures.
375 Having found that the disclosures at issue did not contain sufficient 
information to meet the requirements of the last  sentence of Article 2.4 of the Anti-Dumping 
Agreement, the Panel was not required to address the question of whether such disclosures were 
made in a timely manner. Nonetheless, we recall that 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." This disclosure necessarily takes place towards the end of the 
investigation and at a time when the investigating authority has established and compared normal value and export price. By contrast, the dialogue  under Article 2.4 of the Anti-Dumping Agreement 
necessarily starts in the early stages of an investigation and thus precedes the disclosure of 
essential facts under Article 6.9. An investigating authority should indeed indicate to the parties in 
                                               
370 Panel Report, para. 7.149. 
371 Panel Report, para. 7.142.  
372 European Union's appellant's submission, para. 327. 
373 European Union's appellant's submission, para. 328. 
374 China's appellee's submission, para. 339.  
375 Panel Report, para. 7.144. WT/DS397/AB/RW 
 
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 question what information is necessary early enough in the investigation such that these parties 
can make requests for adjustments ensuring a fair comparison between normal value and export price before the dumping margin is determined. Therefore, in most cases, a disclosure under Article 6.9 of the Anti-Dumping Agreement will not fulfil the requirements of Article 2.4. However, 
whether information shared at the end of an on-going dialogue under Article 2.4 is timely enough 
to ensure a fair comparison between normal value and export price must be assessed on a case-by-case basis, by assessing whether interested parties had a meaningful opportunity to 
request adjustments in the light of the information shared by the investigating authority towards 
the end of that dialogue. Therefore, it cannot be excluded that, in some particular instances, a disclosure under Article 6.9 of the Anti-Dumping Agreement could fulfil the requirements of Article 2.4.  
5.5.1.3.4  Whether the Panel erred in find ing that the confidential nature of the 
information should not have prevented the Commission from disclosing a summary of 
the information at issue 
5.192.  The European Union claims that the Panel erred in finding that the confidential nature of 
the information should not have prevented the Commission from disclosing a summary of the information at issue.
376 The European Union contends that such a non-confidential summary was in 
fact provided through the "product type information" disclosed as part of the final disclosure, and 
that the Commission struck a balance between prot ecting confidential information provided by 
Pooja Forge and disclosing the necessary information to the Chinese interested parties.377  
5.193.  China responds that Article 2.4 of the Anti-Dumping Agreement does not provide for a 
carve-out with respect to confidential information and that, consequently, the confidential 
character of the information cannot be an excuse for failing to comply with the requirement of Article 2.4.
378 China also argues that, even if the information were confidential, quod non , 
the Commission could still meet its obligation under Article 2.4 through the use of non-confidential 
summaries.379  
5.194.  We have upheld above the Panel's finding that the European Union acted inconsistently 
with Article 6.5 of the Anti-Dumping Agreement because the Commission failed to conduct an 
objective assessment of whether Pooja Forge had shown "good cause" for the confidential treatment of the information at issue.
380 We therefore find that the Panel did not err in rejecting 
the European Union's argument that the informat ion at issue was protected from disclosure under 
Article 6.5 and, therefore, could not be disclosed  under Article 2.4 of the Anti-Dumping Agreement 
by relying on its earlier finding that the Commission's confidential treatment of Pooja Forge's information was inconsistent with Article 6.5.
381   
5.195.  Moreover, the Panel was correct in finding that, even if the information were to be treated 
as confidential under Article 6.5, the obligatio n under Article 2.4 would still have required the 
Commission to make some disclosure to interested parties in order to allow them to make 
informed decisions regarding possible adjustments.382 We recall that the fair comparison obligation 
under Article 2.4 lies on the investigating authority. As the Panel correctly found, where the normal value is determined on the basis of the domestic sales in an analogue country, the investigating authority has "to find ways to disclose as much information on normal value as the 
foreign producer would need in order to meaningfully participate in the fair comparison 
process."
383 Therefore, even if the information had re quired confidential treatment pursuant to 
                                               
376 European Union's appellant's submission, para . 332 (referring to Panel Report, fn 200 to 
para. 7.145). 
377 European Union's appellant's submission, paras. 333-334. 
378 China's appellee's submission, paras. 354-356. 
379 China's appellee's submission, para. 357. 
380 As we have further explained in paragraph 5.101,  if information has been accorded confidential 
treatment under Article 6.5 in a manner that does not co nform to the requirements of that provision, there is 
no legal basis for according confidential treatment to  that information under an other provision, such as 
Article 6.4 of the Anti-Dumping Agreement.  
381 Panel Report, para. 7.145. 
382 Panel Report, fn 200 to para. 7.145. The Panel noted that this disclosure would be subject to the 
obligations set forth in Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement regarding the treatment of 
confidential information and the preparation of no n-confidential summaries of such information. 
383 Panel Report, para. 7.149.  WT/DS397/AB/RW 
 
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 Article 6.5, the Commission would, under Article 2.4, have needed to make its best effort to 
disclose the information that was necessary for the Chinese producers to request adjustments. 
While such information could have been disclos ed with the permission of Pooja Forge under 
Article 6.5, or via a non-confidential summary prep ared by Pooja Forge pursuant to Article 6.5.1 of 
the Anti-Dumping Agreement384, it could also have been disclosed by other means for the 
purposes of Article 2.4, such as via a non-conf idential summary prepared by the investigating 
authority.  
5.196.  On the basis of the foregoing, we find that the European Union has not established that the 
Panel erred in its interpretation or application of the last sentence of Article 2.4 of the Anti-Dumping Agreement.  
5.197.  We, therefore, uphold the Panel's finding,  in paragraphs 7.148 and 8.1.iii of its Report, 
that the European Union acted inconsistently wi th Article 2.4 of the Anti-Dumping Agreement 
because the Commission failed to provide the Chinese producers with information regarding the characteristics of Pooja Forge's products that were used in determining normal values. 
5.5.2  China's appeal regarding the fair comp arison requirement under Article 2.4 of the 
Anti-Dumping Agreement 
5.198.  We turn now to consider China's appeal under Article 2.4 of the Anti-Dumping Agreement. 
China submits that the Panel erred in the interpretation and application of Article 2.4 in finding 
that the European Union did not act inconsistently with the fair comparison requirement under this provision in relation to the Commission's rejection of the Chinese producers' requests for adjustments based on: (i) differences in taxation; (ii) differences in certain costs; 
and (iii) differences in physical characteristics. In relation to its claim pertaining to differences in 
costs, China also submits that the Panel acted inco nsistently with Article 11 of the DSU by focusing 
exclusively on one of the differences put forward by the Chinese producers, and by considering the 
available evidence on a piecemeal basis. We begin our analysis with a brief overview of the Panel's 
findings in relation to the fair comparison re quirement under Article 2.4 of the Anti-Dumping 
Agreement. Thereafter, we set out our understanding of certain issues relating to the 
interpretation of this provision before examining, in turn, China's discrete claims on appeal with 
respect to differences in taxation, other costs, and physical characteristics.  
5.5.2.1  The Panel's findings 5.199.  Addressing first the alleged differences in taxation, the Panel noted that Pooja Forge 
imported most of its raw materials used to produce fasteners (i.e. wire rod), whereas the 
Chinese producers sourced their raw materials domestically.
385 The Panel observed that "[t]he 
Commission resorted to the analogue country methodology because it determined that the 
Chinese producers subject to the investigation di d not operate according to the principles of a 
market economy, including with respect to the price paid for domestic wire rod" and found that adjusting for differences in taxation "would undermine the Commission's right to have recourse to 
the analogue country methodology".
386 The Panel added that, "once the [investigating authority] 
starts making adjustments for such cost differences , it will effectively be moving towards the costs 
in the investigated country that, at the outset of the investigation, was not considered to be a market economy."
387 Moreover, the Panel found that, even if the Commission were under an 
obligation to consider making an adjustment for such differences in taxation, the 
Chinese producers did not come forward with a substantiated request for an adjustment.388  
                                               
384 Article 6.5.1 of the Anti-Dumping Agreement provides: 
The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summarie s shall be in sufficient detail to permit a 
reasonable understanding of the substance of the information submitted in confidence. In 
exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided. 
385 Panel Report, para. 7.216.  
386 Panel Report, para. 7.218. 
387 Panel Report, para. 7.219.  
388 Panel Report, paras. 7.220-7.221. WT/DS397/AB/RW 
 
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 5.200.  Turning to the alleged differences in physical characteristics, the Panel observed that China 
referred to two groups of characteristics: (i) those that were included in the original PCNs (i.e. coating, chrome, diameter and length, and ty pes of fasteners); and (ii) those that were not 
included in the original PCNs (i.e. traceability, standards, unit of defective rate, hardness, bending 
strength, impact toughness, and friction coefficient).
389 The Panel analysed China's claims with 
respect to each of the characteristics included in the original PCNs separately and rejected these claims on the basis that no showing had been made of differences affecting price comparability.
390 
As regards the characteristics not included in the original PCNs, the Panel rejected the 
European Union's contention that this claim did not fall within its terms of reference.391 The Panel, 
however, found that China had failed to show that the Chinese producers made substantiated requests for adjustments.
392 The Panel further observed that China mainly took issue with the 
Commission's failure to provide information on the characteristics of Pooja Forge's products.393 
According to the Panel, finding a violation of th e fair comparison requirement under Article 2.4 
because the Commission failed to provide information would have been speculative since it would 
have been based on the assumption that, had the Commission provided the necessary information, 
the Chinese producers would have made substantiated requests for adjustments.394  
5.201.  Finally, the Panel analysed China's claim pertaining to differences in other costs 
(i.e. differences relating to access to raw materials, use of self-generated electricity, efficiency in 
raw material consumption, efficiency in electricity consumption, and productivity per employee). After having found that this claim fell within its terms of reference
395, the Panel focused its analysis 
on the alleged difference in electricity consumption, and concluded that, based on the evidence on 
the record, the Chinese producers had failed to demonstrate that the claimed differences affected 
price comparability.396  
5.202.  Turning to China's argument that the Commission had not provided sufficient information 
to the Chinese producers for them to substantiate further their requests for adjustments, the Panel 
noted that this issue concerned the procedural aspects of the fair comparison obligation397, in 
respect of which it had already found a violation of Article 2.4 by the European Union. Moreover, 
the Panel found that, "in an investigation against an NME where the analogue country 
methodology is used, claiming adjustments for al leged differences in costs would undermine the 
[investigating authority]'s recourse to that methodology."398 In this context, the Panel recalled that 
the Commission determined normal values based on Pooja Forge's data because "it considered 
[the Chinese] producers' prices not to reflect the market dynamics."399 The Panel further rejected 
China's argument that the Commission made similar adjustments in the past on the basis that the European Union disputed the existence of any "past practice" and that it was, in any view, not a 
factor that could be taken into account under Article 2.4 of the Anti-Dumping Agreement.
400 The 
Panel also dismissed China's argument that because the Commission made an adjustment for differences in quality control in the original investigation, it should have accorded the same 
treatment to the cost differences at issue.
401 As the Panel found, the adjustment for quality control 
was made because, unlike the Chinese producers, Pooja Forge had quality control as an additional step in its production process. By contrast, the costs relied upon by China were incurred by both 
Pooja Forge and the Chinese producers.
402  
                                               
389 Panel Report, para. 7.224.  
390 Panel Report, paras. 7.225-7.228 and 7.230.  
391 Panel Report, para. 7.233. 
392 Panel Report, para. 7.235. 
393 Panel Report, para. 7.235. 
394 Panel Report, para. 7.235. 
395 Panel Report, para. 7.239. 
396 Panel Report, paras. 7.242-7.243. 
397 Panel Report, para. 7.244.  
398 Panel Report, para. 7.245. 
399 Panel Report, para. 7.245. 
400 Panel Report, para. 7.246.  
401 Panel Report, paras. 7.247-7.249. 
402 Panel Report, para. 7.249.  WT/DS397/AB/RW 
 
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 5.203.  Based on the foregoing, the Panel rejected China's claim that the European Union acted 
inconsistently with Article 2.4 of the Anti-Dum ping Agreement because the Commission failed to 
make adjustments for differences affecting price comparability.403 
5.5.2.2  The fair comparison requiremen t under Article 2.4 of the Anti-Dumping 
Agreement 
5.204.  As we have set out above, Article 2.4 of the Anti-Dumping Agreement requires 
investigating authorities to ensure a fair comparison between the export price and the normal 
value and, to this end, to make due allowance, or adjustments, for differences affecting price 
comparability. Whereas the obligation to ensure a fair comparison lies on the investigating authorities, "exporters bear the burden of subs tantiating, 'as constructively as possible', their 
requests for adjustments reflecting the 'due allowance' within the meaning of Article 2.4."
404 
Accordingly, "[i]f it is not demonstrated to the authorities that there is a difference affecting price 
comparability, there is no obligation to make an adjustment."405 However, the authorities "must 
take steps to achieve clarity as to the adjust ment claimed and then determine whether and to 
what extent that adjustment is merited".406  
5.205.  The fair comparison requirement of Articl e 2.4 applies in all anti-dumping investigations, 
irrespective of the methodology used to determine normal value. In this context, we recall that 
Article 2.7 of the Anti-Dumping Agreement incorporates the second Ad Note to Article VI:1 of the 
GATT 1994.407 This provision, read in conjunction with Article 2.2 of the Anti-Dumping Agreement, 
has been understood to allow investigating authorities to disregard domestic prices and costs of an NME producer in the determination of normal value on the ground that a strict comparison with 
such prices may not be appropriate. As the Appellate Body has explained, while the second 
Ad Note to Article VI:1 refers to difficulties in determining price comparability in general, "the text 
of this provision clarifies that these difficulties relate exclusively to the normal value side of the 
comparison."
408 As such, the second Ad Note offers flexibility only in respect of the determination 
of normal value. Section 15 of China's Accession Protocol, entitled "Price Comparability in Determining Subsidies and Dumping", contains a similar acknowledgment of the difficulties in 
determining price comparability in respect of imports from China.
409 The Appellate Body has noted 
                                               
403 Panel Report, para. 7.251. 
404 Appellate Body Report, EC – Fasteners (China) , para. 488 (quoting Panel Report, EC – Tube or Pipe 
Fittings , para. 7.158). 
405 Appellate Body Report, EC – Fasteners (China) , para. 488 (referring to Panel Report, Korea – Certain 
Paper , para. 7.147).  
406 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). 
407 The second Ad Note to Article VI:1 of the GATT 1994 reads:  
It is recognized that, in the ca se of imports from a country which has a complete or substantially 
complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparab ility for the purposes of paragraph 1, and in 
such cases importing Members may find it necessary  to take into account the possibility that a 
strict comparison with domestic prices in su ch a country may not always be appropriate. 
The Appellate Body has explained that this provision "appears to describe a certain type of NME, where the 
State monopolizes trade and sets all dome stic prices" and that it "would thus not on its face be applicable to 
lesser forms of NMEs that do not fulfil both conditions, that is, the complete or substantially complete monopoly of trade and the fixing of all pr ices by the State". (A ppellate Body Report, EC – Fasteners (China) , 
fn 460 to para. 285)  
408 Footnote 460 to paragraph 285 of the Appellate Body report in EC – Fasteners (China)  reads, in 
relevant part:  
[T]he reference in the second Ad Note to Article VI:1 to a st rict "comparison with domestic 
prices" not always being "appropriate" provides flex ibility only in respect of the determination of 
normal value. The recognition of special difficulties in determining price comparability in the second Ad Note to Article VI:1 does not mean th at importing Members may depart from the 
provisions regarding the determination of export prices and the calculation of dumping margins and anti-dumping duti es set forth in the Anti-Dumping  Agreement  and in the GATT 1994. While 
the second Ad Note to Article VI:1 refers to difficulties in determining price comparability in 
general, the text of this provision clarifies that these difficulties relate exclusively to the normal value side of the comparison. This is indicated by the operative part in the third sentence of this provision, which only allows importing Members to depart from a "strict comparison with domestic  prices". (emphasis original)  
409 Section 15(a) of China's Accession Protocol provides: 
In determining price comparability under Arti cle VI of the GATT 1994 and the Anti-Dumping 
Agreement, the importing WTO Member shall use ei ther Chinese prices or costs for the industry WT/DS397/AB/RW 
 
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 that, according to Section 15(a) of China's Accession Protocol, if Chinese producers are not able to 
"clearly show" that market-economy conditions prevail in the industry at issue, "the importing WTO Member may use an alternative methodology that is not based on a strict comparison with domestic prices or costs in China, such as using surrogate third country or constructed normal 
value."
410 As the Appellate Body has found, "while Section 15 of China's Accession Protocol 
establishes special rules regarding the domestic price aspect of price comparability, it does not contain an open-ended exception that allows WTO Members to treat China differently for other 
purposes under the Anti-Dumping Agreement  and the GATT 1994, such as the determination of 
export prices or individual versus country-wide margins and duties."
411  
5.206.  We understand that, in this appeal, China does not challenge the methodology used by the 
Commission to determine normal values, which was based on the domestic prices of an analogue 
country producer. Nor does it challenge the use of India as the analogue country or Pooja Forge as 
the analogue country producer. China, however, argues that there is no legal basis in the 
Anti-Dumping Agreement or in China's Accession Protocol for a finding that Article 2.4 of the 
Anti-Dumping Agreement imposes a different and less stringent fair comparison obligation in 
investigations involving NME producers.412 The European Union does not dispute that the fair 
comparison requirement of Article 2.4 applies in the context of an investigation involving an 
analogue country413, but argues that "the essence of the EU's analogue country methodology … is 
to replace the entire data set of the exporter in the non-market economy country by the data set of a producer in an analogue market economy country", not to replace the distorted costs by market costs.
414 Accordingly, in such a situation, the Commission "does not adjust the prices or 
costs of the analogue country producers to take into account the difference in production 
methodologies, production factors or efficiencies  between the analogue country producers and the 
producers of the exporting country".415  
5.207.  As explained, the fair comparison requir ement of Article 2.4 applies in all anti-dumping 
investigations, including where normal value is determined on the basis of a surrogate third country. However, Article 2.4 of the Anti-Dumping Agreement has to be read in the context 
of the second Ad Note to Article VI:1 of the GATT 1994 and Section 15(a) of China's Accession 
Protocol. We recall that the rationale for determining normal value on the basis of the domestic prices of Pooja Forge was that the Chinese producers had not clearly shown that market economy conditions prevail in the fasteners industry in China.
416 Costs and prices in the Chinese fasteners 
industry thus cannot, in this case, serve as reliable benchmarks to determine normal value. In our 
view, the investigating authority is not required to adjust for differences in costs between the NME producers under investigation and the analogue  country producer where this would lead the 
investigating authority to adjust back to the costs in the Chinese industry that were found to be 
distorted. Based on the foregoing, an investigating authority can reject a request for an adjustment if such adjustment would effectively reflect a cost or price that was found to be 
distorted in the exporting country in the normal value component of the comparison that is 
                                                                                                                                               
under investigation or a methodology that is no t based on a strict comparison with domestic 
prices or costs in China based on the following rules: 
(i) If the producers under investigation can cl early show that market  economy conditions 
prevail in the industry producing the like product with regard to the manufacture, 
production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability; (ii) The importing WTO Member may use a me thodology that is not based on a strict 
comparison with domestic prices or costs in  China if the producers under investigation 
cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, pr oduction and sale of that product.  
410 Appellate Body Report, EC – Fasteners (China) , para. 286.  
411 Appellate Body Report, EC – Fasteners (China) , para. 290. (fn omitted) The Appellate Body also 
stated that, "[l]ike the second Ad Note to Article VI:1 of the GATT 1994, Section 15(a) of China's Accession 
Protocol permits importing Members to derogate from a st rict comparison with domestic prices or costs in 
China, that is, in respect of the determination of the normal value." (Ibid., para. 287) 
412 China's other appellant' s submission, paras. 16 et seq. and 71.  
413 European Union's appell ee's submission, para. 22. 
414 European Union's appell ee's submission, para. 66. 
415 European Union's appellee's submission, para. 67.  However, according to  the European Union, 
adjustments can be made in the case of a natural comp arative advantage or for an additional step in the 
production process, for exam ple, quality control, which reflects an additional cost  element that results in 
quality differences. (European Union's respon se to questioning at the oral hearing) 
416 This is pursuant to China's Accession Protocol, Section 15(a)(ii).  WT/DS397/AB/RW 
 
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 contemplated under Article 2.4 of the Anti-Dumping Agreement. Accordingly, an investigating 
authority has to "take steps to achieve clarity as to the adjustment claimed"417 and determine 
whether, on its merits, the adjustment is warranted  because it reflects a difference affecting price 
comparability or whether it would lead to adjusting back to costs or prices that were found to be 
distorted in the exporting country.  
5.208.  With this interpretation in mind, we turn to China's claims on appeal in relation to each of 
the differences at issue, namely, differences in taxa tion, other costs, and physical characteristics.  
5.5.2.3  Differences in taxation 
5.209.  We recall that Article 2.4 of the Anti-Dumpi ng Agreement specifically refers to differences 
in taxation as differences for which adjustments may be required.418 In addition, Article VI:4 of the 
GATT 1994 provides that "[n]o product of the territo ry of any Member imported into the territory 
of any other Member shall be subject to anti-dum ping or countervailing duty by reason of the 
exemption of such product from duties or taxe s borne by the like product when destined for 
consumption in the country of origin or exportation,  or by reason of the refund of such duties or 
taxes."419  
5.210.  As the Panel observed, Pooja Forge imported most of the raw materials needed to produce 
its fasteners, i.e. wire rod, whereas the Chinese producers bought their wire rod domestically.420 
The Chinese producers' requests for an adjustment were based on the fact that Pooja Forge's 
domestic prices included import duties and other indirect taxes on the raw materials that were not included in the Chinese export prices. Thes e are the differences in taxation at issue.
421 The 
Chinese producers also argued that, had they imported their raw materials, they would have 
benefited from a duty drawback for import duties paid on such inputs.422 
5.211.  The Commission rejected the Chinese producers' requests on the basis that: (i) the 
Chinese producers did not show that they would benefit from a non-collection or refund of the 
import duties paid on the raw materials; and (ii) the prices of the raw materials were found to be 
distorted in China and therefore could not serv e as a basis for an adjustment. The Review 
Regulation reads, in relevant parts: 
The raw material imported by the Indian producer was subject to the basic customs 
duty (5 % of assessable value) and the Customs Education Cess (3 % of the basic customs duty value plus the CVD amount). However, according to Article 2(10)(b) of the basic Regulation, such an adjustment for indirect taxes is claimable if the import 
charges borne by the like product and by ma terial physically incorporated therein, 
when intended for consumption on the domestic market would not be collected or would be refunded when the like product is  exported to the European Union. In the 
absence of a claim and evidence that ex ports from the above-mentioned exporting 
producers to the EU would benefit from a non-collection or refund of import charges on imports of raw materials (wire rod), the claim must be rejected. Furthermore, such 
an adjustment is not normally available when  the exporting producer concerned, as is 
                                               
417 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). 
418 Article 2.4 of the Anti-Dumping Agre ement provides, in relevant part:  
Due allowance shall be made in each case, on its merits, for differenc es which affect price 
comparability, including differences in conditions  and terms of sale, taxation, levels of trade, 
quantities, physical char acteristics, and any othe r differences which are also demonstrated to 
affect price comparability.  
419 We see no derogation from these rules in Section 15 or elsewhere in China's Accession Protocol.  
420 Panel Report, para. 7.216.  
421 Panel Report, para. 7.210 (referring to Letter date d 13 June 2012 on behalf of Ningbo Jinding to the 
European Commission concerning the disclosure of 30 May 2012 (Panel Exhibit CHN-33), p. 5; Letter dated 13 June 2012 on behalf of Changshu to the European Commission concerning the disclosure of 30 May 2012 
(Panel Exhibit CHN-34), p. 5; and Letter dated 19 June 2012 on behalf of China's Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME) to the European Commission (Panel Exhibit 
CHN-7), p. 8). 
422 Panel Report, para. 7.213 (referring to Letter da ted 19 July 2012 on behalf of CCCME and Biao Wu to 
the European Commission (Panel  Exhibit CHN-21), p. 10).  WT/DS397/AB/RW 
 
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 the case in this review, sources all its raw materials from domestic suppliers incurring 
therefore no import charge.  
… [T]he cost of the major raw material — steel wire rod — did not substantially reflect 
market values. It was found that the prices of the steel wire rods charged on the 
domestic market were significantly lower than those charged on other markets. Therefore, these distorted prices cannot be used as a basis for adjustment as 
requested by the said parties. In these circumstances, the Commission fails to see 
which additional information, in the view  of the Chinese Chamber of Commerce and 
the exporting producer, could be provided to further substantiate [this request].
423 
5.212.  The Panel rejected China's claim on the grounds that such an adjustment would undermine 
the Commission's right to have recourse to the analogue country methodology424 and that the 
Chinese producers did not substantiate their requests for an adjustment.425 On appeal, 
China claims that both of these findings by the Panel are in error.426 We analyse each of China's 
claims in turn below.  
5.5.2.3.1  Whether the Panel erred in finding that adjusting for differences in taxation 
would undermine the Commission's right to have recourse to the analogue country 
methodology  
5.213.  China argues that the obligation that lies on investigating authorities to make necessary 
adjustments also applies in anti-dumping investigations involving NME producers.427 Moreover, 
China contends that, in the present case, making an adjustment for differences in taxation would 
not undermine the Commission's ability to resort  to the analogue country methodology, because 
differences in taxation on raw materials are unrelated to the issue of the actual cost of such raw materials.
428 Instead, according to China, the adjustment relates to the fact that import duties 
and other indirect taxes on raw materials are included in the domestic prices of Pooja Forge while 
they are not included in the Chinese export prices.429 China further explains that making an 
adjustment would only require the Commission to use Pooja Forge's data and not that of the 
Chinese producers.430  
5.214.  The European Union responds that the differences at issue are "directly related" to the 
reason for resorting to the analogue country methodology.431 At the oral hearing, the 
European Union argued that the Chinese producers would source their raw materials 
internationally if the prices in China were not distorted432, and that the market price for the raw 
materials in India includes import duties. Moreover, according to the European Union, whether the Chinese producers would have benefited from a duty drawback had they imported the 
raw materials, and whose cost data are being used to calculate the adjustment, are irrelevant to 
the issue of whether adjustments are warranted.
433  
5.215.  The Panel correctly found that "the fact that the analogue country methodology was used 
does not relieve the Commission from the obligation to conduct a fair comparison as required 
under Article 2.4."434 However, we disagree with the Pane l's approach, which was to find, in 
general terms and without more, that adjusting for differences in taxation "would undermine the Commission's right to have recourse to the analogue country methodology".
435 This finding by the 
Panel is not compatible with the fair comparison requirement in Article 2.4, which applies in all 
                                               
423 Review Regulation (Panel Exhibit CHN-3), recitals 80 and 100. 
424 Panel Report, para. 7.218.  
425 Panel Report, paras. 7.220-7.221. 
426 China's other appellant' s submission, para. 14. 
427 China's other appellant' s submission, para. 22. 
428 China's other appellant' s submission, para. 49. 
429 China's other appellant' s submission, para. 49. 
430 China's other appellant' s submission, para. 50. 
431 European Union's appell ee's submission, para. 28. 
432 See also European Union's a ppellee's submission, para. 28. 
433 European Union's appellee' s submission, paras. 34-35. 
434 Panel Report, para. 7.222. (fn omitted)  
435 Panel Report, para. 7.218.  WT/DS397/AB/RW 
 
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 anti-dumping investigations and requires that "[d]ue allowance … be made in each case, on its 
merits, for differences which affect price comparability". However, the investigating authority cannot be required to adjust for differences in costs between the NME producers under investigation and the analogue country producer where this would lead the investigating authority 
to adjust back to the costs that were found to be distorted.   
5.216.  The Panel did not review whether the Commission had established that the differences in 
taxation on raw materials were related to the issue of the price of domestic raw materials that was 
found to be distorted or whether an adjustment was merited because price comparability was 
affected under Article 2.4. In addition, the Panel found that, "once the [investigating authority] starts making adjustments for such cost differences , it will effectively be moving towards the costs 
in the investigated country that, at the outset of the investigation, was not considered to be a 
market economy".
436 However, the Panel did not review whether the Commission's determination 
reflected an examination of whether or why it would have moved towards the distorted costs of the relevant industry in the exporting country by adjusting for these differences in taxation. 
Therefore, the Panel did not properly review whether the Commission "[took] steps to achieve 
clarity as to the adjustment claimed and then determine[d] whether and to what extent that adjustment [was] merited" as required under Article 2.4.
437   
5.217.  The Commission found that the cost of steel wire rod did not reflect market values in China 
and, therefore, could not be used as a basis for the requested adjustment.438 The Commission's 
determination, however, does not reflect that the Commission analysed the relationship between the differences in taxation for which an adjustment was claimed by the Chinese producers and 
these distorted costs. In particular, the Commission's determination does not reflect a finding that, 
as the European Union suggests
439, the Chinese producers would have sourced their wire rod 
internationally but for the distortion on the Chinese market, or that the price of wire rod in India 
would not be a market price if the import duties were to be removed. We, therefore, consider that 
the Commission's determination does not reflect that it assessed whether the requested adjustment was warranted or whether it would have had the effect of reintroducing distorted costs 
or prices in the normal value component of the comparison. The Commission, hence, failed to 
"take steps to achieve clarity as to the adjust ment claimed and then determine whether and to 
what extent that adjustment [was] merited" as required under Article 2.4 of the Anti-Dumping 
Agreement.
440  
5.218.  Based on the foregoing, we find that the Panel erred in concluding that the Commission 
w a s  n o t  r e q u i r e d  t o  " c o n s i d e r  m a k i n g  a n  a d j u s t m e n t  d u e  t o  [ d i f f e r e n c e s  i n  t a x a t i o n ] "  s o l e l y  because the analogue country methodology was used in this investigation.
441 We further find that 
the Commission failed to assess properly whether the requested adjustment based on differences 
in taxation was warranted, or whether it would have had the effect of reintroducing distorted costs or prices in the normal value component of the comparison.  
5.5.2.3.2  Whether the Panel erred in findin g that the Chinese producers did not come 
forward with a substantiated request for an adjustment 
5.219.  China submits that the Panel erred in its application of Article 2.4 of the Anti-Dumping 
Agreement
442 in finding that, "[e]ven if the Commission were under an obligation to consider 
making an adjustment due to alleged differences in the taxation of wire rod in India, despite the 
fact that the analogue country methodology was used in the investigation, the facts on the record do not show that the Chinese producers showed to the Commission that this difference in taxation 
affected price comparability as prescribed under Article 2.4 of the [Anti-Dumping] Agreement."
443 
China recalls that Pooja Forge's domestic prices included an amount for import duties and other 
indirect taxes on wire rod that would not be included in its export prices, whereas Chinese export 
                                               
436 Panel Report, para. 7.219.  
437 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). 
438 Review Regulation (Panel Exhibit CHN-3), recital 100. 
439 See supra  para. 5.214.  
440 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). 
441 Panel Report, paras. 7.218-7.220.  
442 China's other appellant' s submission, para. 52. 
443 Panel Report, para. 7.220.  WT/DS397/AB/RW 
 
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 prices did not include any import duties and indirect taxes given that the Chinese producers 
sourced their wire rod domestically.444 China adds that, had the Chinese producers imported their 
wire rod, they would have been able  to obtain an import-duty drawback.445 Accordingly, China 
submits that the Chinese producers demonstrated the existence of a difference in taxation that 
affects price comparability.446  
5.220.  The European Union argues that China should have brought a claim under Article 11 of the 
DSU given that China relies on an alleged error in the factual finding of the Panel that the 
Chinese producers failed to adduce sufficient evidence to substantiate their requests for an 
adjustment.447 The European Union further submits that China's claim is, in any view, without 
merit because the Commission made a "reasoned and reasonable decision" when refusing to make the requested adjustment.
448 At the oral hearing, the European Union explained that the 
Chinese producers could not have provided any further information to substantiate their requests 
because they were requesting an adjustment that related to a distorted market.  
5.221.  First, we analyse whether China should have brought its claim under Article 11 of the DSU, 
as the European Union contends. We recall that, in most cases, the issue raised by a particular 
claim "will either  be one of application of the law to the facts or an issue of the objective 
assessment of facts, and not both".449 While allegations implicating a panel's appreciation of facts 
and evidence fall under Article 11 of the DSU450, by contrast, "'[t]he consistency or inconsistency 
of a given fact or set of facts with the requirements of a given treaty provision is … a legal characterization issue' and is therefore a legal question."
451 In our view, China takes issue with the 
Panel's assessment of whether the Chinese producers' requests for an adjustment were sufficiently 
substantiated to meet the requirements of Articl e 2.4 of the Anti-Dumping Agreement. In other 
words, the issue is whether the differences for which an adjustment was requested affected price comparability such that the adjustment would be warranted to ensure a fair comparison. 
Therefore, this claim should be treated as a cha llenge of the Panel's application of Article 2.4 to 
the facts of this case.  
5.222.  Turning to the issue of whether the Chin ese producers submitted a substantiated request 
for an adjustment, we recall that it is the producers under investigation that bear the burden of 
substantiating their requests "as constructively as possible".
452 The Commission rejected the 
Chinese producers' requests on the basis that they had not shown that their exports "would benefit from a non-collection or refund of import charges on imports of raw materials (wire rod)".
453 As 
the Panel observed, the Commission "found it normal that the Chinese producers did not come 
forward with such evidence because they bought their raw materials from the Chinese market and 
therefore incurred no import duties."454 In the light of the above, the Panel concluded that the 
Chinese producers did not come forward with a substantiated request for an adjustment.455  
5.223.  At the oral hearing, the European Union argued that the Chinese producers could not have 
submitted further information to substantiate their requests for an adjustment because these 
requests were based on an erroneous premise that  such an adjustment was permissible when the 
data of an analogue country producer is used to determine normal value.456 Indeed, in the Review 
Regulation, the Commission stated that it "fail[ed] to see which additional information, in the view 
                                               
444 China's other appellant' s submission, para. 54. 
445 China's other appellant' s submission, para. 54. 
446 China's other appellant' s submission, para. 55. 
447 European Union's appell ee's submission, para. 38. 
448 European Union's appellee' s submission, para. 41.  
449 Appellate Body Report, China – GOES , para. 183 (quoting Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 872 (emphasis original)). 
450 Appellate Body Report, China – GOES , para. 183 (referring to Appellate Body Reports, US – Upland 
Cotton , para. 399; US – Upland Cotton (Article 21.5 – Brazil) , para. 385; and EC and certain member States – 
Large Civil Aircraft , para. 1005). 
451 Appellate Body Report, China – GOES , para. 183 (quoting Appellate Body Report, EC – Hormones , 
para. 132). 
452 Appellate Body Report, EC – Fasteners (China) , para. 488 (quoting Panel Report, EC – Tube or Pipe 
Fittings , para. 7.158). 
453 Review Regulation (Panel Exhibit CHN-3), recital 80.  
454 Panel Report, para. 7.220 (referring to General Disclosure Document (Panel Exhibit CHN-22), 
recital 78). 
455 Panel Report, para. 7.221.  
456 European Union's response to qu estioning at the oral hearing.  WT/DS397/AB/RW 
 
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 of the Chinese Chamber of Commerce and the expo rting producer, could be provided to further 
substantiate" the request for an adjustment given that "the prices of the steel wire rods charged on the domestic market were significantly lower than those charged on other markets" and therefore "[could] not be used as a basis for adjustment".
457 Thus, the Commission's 
determination that the Chinese producers failed to substantiate their requests for an adjustment 
seems to have been based on the erroneous premise that this adjustment could not be made because certain prices were distorted in China and that, accordingly, it was not possible to 
substantiate the corresponding requests any further. For these reasons, we find that the Panel 
erred in the application of Article 2.4 of the Anti-Dumping Agreement when finding that the Chinese producers did not substantiate their reques ts for an adjustment. Co nsequently, we reverse 
the Panel's intermediate finding that "the Chinese producers did not come forward with a 
substantiated request for an adjustment for the alleged difference in taxation".
458 
5.224.  In the light of the above, we reverse the Panel's finding, in paragraphs 7.223, 7.251, 
and 8.2.iii of its Report, in respect of differences  in taxation, and find, instead, that, because the 
Commission's determination does not reflect an adequate assessment of the Chinese producers' 
requests for an adjustment for differences in ta xation, the European Union acted inconsistently 
with Article 2.4 of the Anti-Dumping Agreement. 
5.5.2.3.3  New documents referred to by China on appeal 
5.225.   The European Union requests us not to take into account documents referred to by China 
in its other appellant's submission that are not on the Panel record.459 In our analysis, we did not 
find it necessary to have recourse to the new do cuments referred to by China on appeal that did 
not form part of the Panel record. Therefore, we have not found it necessary to make any finding 
on the admissibility of these documents challenged by the European Union. 
5.5.2.4  Other cost differences 
5.226.  Two of the Chinese producers requested the Commission to make adjustments for 
differences relating to "efficiency of consumption of raw material", "wire rod used for production", 
"consumption of electricity", "self-generated electricity", and "productivity".460 The Commission 
rejected these requests for adjustments on the ba sis that (i) no evidence had been adduced that 
these differences in costs would translate into differences in prices; and (ii) where an analogue country is used, prices and costs in the NME that are not the result of market forces are not to be taken into account. The relevant recital of the Review Regulation, quoted by the Panel, 
reads as follows:  
Article 2(10) of the basic Regulation is referring to price and not cost. There was no 
evidence adduced by these parties that the al leged differences in cost translated into 
differences in prices. In investigations concerning economies in transition such as 
China, an analogue country is used when warranted to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of 
market forces. Thus, for the purpose of establishing the normal value, a surrogate of 
the costs and prices of producers in functi oning market economies is used. Therefore, 
these claims for adjustments taking into account the differences in cost of production are rejected.
 461 
5.227.  Elsewhere in the Review Regulation, it is also explained that:  
[N]one of the Chinese exporting producers received MET in the original investigation 
and their cost structure cannot be considered as reflecting market values that can be 
used as a basis for adjustments in particular with regard to access to raw materials. In 
                                               
457 Review Regulation (Panel Exhibit CHN-3), recital 100. 
458 Panel Report, para. 7.221.  
459 European Union's appellee's submission, fn 48 to para. 51 (referring to China's other appellant's 
submission, fn  23 to para. 43, fns 24 and 25 to para. 45, fn  49 to para. 80, and fn 107 to para. 161).  
460 Panel Report, para. 7.242 (quoting Letter dated 13 June 2012 on behalf of Ningbo Jinding to the 
Commission (Panel Exhibit CHN-33), pp. 5-6 and referri ng to Letter dated 13 June 2012 on behalf of Changshu 
to the Commission (Panel Ex hibit CHN-34), pp. 5-6).  
461 Panel Report, para. 7.241 (quoting Review Regulation (Panel Exhibit CHN-3), recital 41).  WT/DS397/AB/RW 
 
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 addition, it should be noted that the production processes existing in the PRC were 
found to be comparable to the Indian producer's and the alleged differences were found to be very minor. In this case, the Indian producer was found to be competing with many other producers on the Indian domestic market, it is considered that its 
prices were fully reflecting the situation in the domestic market. As mentioned in 
recital 41 above, a surrogate of the costs and prices of producers in functioning 
market economies had to be used for the purpose of establishing the normal value.
462 
5.228.  Having reviewed the evidence on the re cord, the Panel found that the Chinese producers 
failed to demonstrate that the alleged differences in costs affected price comparability463, and that 
"the [investigating authority] is not obligated to make adjustments to reflect such differences in costs in an investigation where the analogue country methodology is used."
464 On appeal, China 
submits that both findings are in error.465 China also claims that the Panel failed to make an 
objective assessment of the facts as required under Article 11 of the DSU.466 We analyse each of 
China's claims in turn below.  
5.5.2.4.1  Whether the Panel erred in findin g that adjusting for differences in costs 
would undermine the Commission's right to have recourse to the analogue country 
methodology 
5.229.  In support of its claim that the Panel erred in finding that adjusting for differences in costs 
would undermine the Commission's right to have re course to the analogue country methodology, 
China raises similar arguments to the ones already set out above regarding differences in taxation. In particular, China claims that the cost factors under consideration were unrelated to the alleged 
non-market conditions, and that making adjustments would have required the Commission to use 
data only from Pooja Forge.
467 Consequently, China submits that, "[a]bsent any link between these 
differences and non-market economy conditions, it must be concluded that they relate to 
undistorted factors which call for adjustments under Article 2.4."468 To support this conclusion, 
China relies on an alleged "past practice" by the Commission to accept requests for adjustments in 
the context of investigations involving NMEs.469 China also argues that the differences in costs 
should be accorded the same treatment as the differences in quality control, for which the 
Commission made an adjustment in the original investigation.470 
5.230.  The European Union responds that raw ma terial-related distortions and energy-related 
distortions are among the typical features of an NME.471 As the European Union further explains, 
whether the Indian producer "did not have the same easy access to raw materials as 
Chinese producers have in the distorted Chinese economy"; "was less efficient in terms of its 
electricity consumption as it had to use self-gen erated electricity whereas the Chinese producers 
could benefit from a distorted electricity market"; or "was more efficient and productive 
per employee because it was run like a competitive enterprise" is irrelevant because these are the reasons why Pooja Forge was used as the benchmark to determine the normal values in the 
first place.
472 The European Union adds that a number of the Chinese producers relied on the 
Chinese raw material consumption, the Chinese electricity consumption, and the 
                                               
462 Review Regulation (Panel Exhibit CHN-3), recital 103. With respect to differences relating to access 
to raw materials, the Review Regulation also state, at recital 100:  
[T]he cost of the major raw material – steel wi re rod – did not substantially reflect market 
values. It was found that the prices of the steel wire rods charged on the domestic market were 
significantly lower than those charged on other ma rkets. Therefore, these distorted prices cannot 
be used as a basis for adjustment  as requested by the said partie s. In these circumstances, the 
Commission fails to see which additional inform ation, in the view of the Chinese Chamber of 
Commerce and the exporting producer, could be pr ovided to further substa ntiate [this request] 
for adjustments. 
463 Panel Report, para. 7.243. 
464 Panel Report, para. 7.245.  
465 China's other appellant' s submission, para. 68.  
466 China's other appellant's submission, para. 106.  
467 China's other appellant's submission, paras. 83-84.  
468 China's other appellant' s submission, para. 83.  
469 China's other appellant' s submission, para. 88.  
470 China's other appellant' s submission, para. 89.  
471 European Union's appell ee's submission, para. 64. 
472 European Union's appell ee's submission, para. 65. WT/DS397/AB/RW 
 
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 Chinese productivity when claiming adjustments, which indicates that China is attempting to undo 
the analogue country methodology.473 
5.231.  For the same reasons set out above in re spect of China's claim regarding differences in 
taxation, we disagree with the Panel's approach, which was to find, in general terms and without 
more, that, "in an investigation against an NME where the analogue country methodology is used, 
claiming adjustments for alleged differences in costs would undermine the [investigating authority]'s recourse to that methodology" and that "the [investigating authority] is not obligated 
to make adjustments to reflect … differences in costs in an investigation where the analogue 
country methodology is used."
474 We recall that the investigating authority is required, under 
Article 2.4 of the Anti-Dumping Agreement, to make "[d]ue allowance … in each case, on its merits, for differences which affect price comparability". Where the adjustment would have been 
otherwise warranted, it is only where it would lead the investigating authority to adjust back to the 
costs that were found to be distorted that the investigating authority cannot be required to adjust for differences in costs between the NME producers under investigation and the analogue country 
producer. 
5.232.  The Panel did not review whether the Commission had established that the differences in 
costs were related to prices that were found to be distorted or whether adjustments were merited 
because price comparability was affected under Article 2.4 of the Anti-Dumping Agreement. We 
note that, while the Panel stated that it was "not convinced" by China's arguments that the cost factors at issue were unrelated to any distorted costs
475, it failed to assess whether the 
Commission had analysed each of the claimed adjustments to establish if they would reflect a 
distorted cost or price. Therefore, the Panel did not properly review whether the Commission 
"[took] steps to achieve clarity as to the adjustment claimed and then determine[d] whether and to what extent that adjustment [was] merited" as  required under Article 2.4 of the Anti-Dumping 
Agreement.
476   
5.233.  The Commission found that the "cost structure" of the Chinese producers could not "be 
considered as reflecting market values that can be used as a basis for adjustments in particular 
with regard to access to raw materials".477 The Commission's determination, however, does not 
reflect that it had analysed the relationship between each of the cost differences under consideration and the costs that were found to be distorted in China, and whether adjustments 
were merited on the basis that price comparability was affected under Article 2.4 of the 
Anti-Dumping Agreement. In particular, the Commission's determination does not reflect an 
assessment of whether energy prices were found to  be distorted in China, as the European Union 
suggests
478, and, for example, of whether making an adjustment on the basis that Pooja Forge 
used self-generated electricity rather than electr icity from the grid would have led to adjusting 
back to distorted energy prices in China. We, t hus, consider that the Commission's determination 
does not reflect that the Commission assessed whether the requested adjustments were warranted 
or whether they would have had the effect of reintroducing distorted costs or prices in the normal 
value component of the comparison. The Commission hence failed to take "steps to achieve clarity as to the adjustment claimed and then determine whether and to what extent that adjustment [was] merited" as required under Article 2.4 of the Anti-Dumping Agreement.
479   
5.234.  Moreover, we do not agree with the distinction introduced by the European Union, and 
accepted by the Panel, between the cost differences  at issue and the differences in quality control, 
                                               
473 European Union's appellee's submission, para. 66.  In relation to differences in costs, the 
European Union also requests us no t to take into account a document referred to by China in its other 
appellant's submission th at is not on the Panel record (Ibid., fn 48 to para. 51 (referring to, inter alia , China's 
other appellant's submission, fn 49 to para. 80)) We have  already dealt with this issue when addressing the 
European Union's claim that all of the new documents refe rred to by China for the firs t time on appeal should 
not be taken into account. As set out above, we have not found it necessary to make any finding on the admissibility of these documents. (See supra , para. 5.225) 
474 Panel Report, para. 7.245. 
475 Panel Report, para. 7.245.  
476 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). 
477 Review Regulation (Panel Exhibit CHN-3), recital 103. 
478 European Union's appell ee's submission, para. 64. 
479 Appellate Body Report, EC – Fasteners (China) , paras. 488 and 519 (quoting Panel Report, EC - Tube 
or Pipe Fittings , para. 7.158). WT/DS397/AB/RW 
 
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 for which an adjustment was made by the Commission in the original investigation. The Review 
Regulation mentions that "the Commission already made an adjustment to the normal value to take into account quality control steps applied by the Indian producer which were not found for Chinese sampled producers."
480 The Panel observed that "the reason why the Commission made 
an adjustment for differences regarding quality control was because Pooja Forge and the 
Chinese producers did not have the same step in their production processes", whereas "the cost 
factors for which adjustments were requested in the review investigation did not pertain to such a 
process" and "were incurred both by Pooja Forge and the Chinese producers".481 Having drawn this 
distinction, the Panel reiterated that "making adjustment for differences in cost factors would have defied logic and rendered the use of the analogue country methodology meaningless."
482 We recall 
that, under Article 2.4 of the Anti-Dumping Agreement, due allowance shall be made for 
differences affecting price comparability. Accordingly, adjustments are to be made for differences 
affecting price comparability irrespective of whether the difference pertains to an "additional step" in the production process or to a step found to be carried out both by the analogue country 
producer and the NME producer.  
5.235.  Finally, we recall the Panel's findings that the alleged "past practice" of the Commission to 
adjust for differences in costs in investigations involving NMEs was not established and that it is, in 
any view, not a relevant factor under Article 2.4 of the Anti-Dumping Agreement.
483 Irrespective of 
whether there is such an established "past practice", we note that the Commission has, in the past, made adjustments for certain differences in costs in the context of investigations involving NMEs.
484 
5.236.  On the basis of the foregoing, we find that the Panel erred in concluding that the 
Commission was not required "to look at the cost factors" relied upon by the Chinese producers solely because the analogue country methodology was used in this investigation.
485 We further find 
that the Commission failed to assess properly whether the requested adjustments based on 
differences relating to access to raw materials, use of self-generated electricity, efficiency in raw material consumption, efficiency in electricity consumption, and productivity per employee 
were warranted, or whether they would have had the effect of reintroducing distorted costs or 
prices in the normal value component of the comparison.  
5.5.2.4.2  Whether the Panel erred in findin g that the Chinese producers did not come 
forward with substantiated requests for adjustments 
5.237.  China submits that the Panel erred in the application of Article 2.4 of the Anti-Dumping 
Agreement when finding that the Chinese producers did not show that the cost differences at issue 
affected price comparability.
486 China argues that, using all the evidence that was reasonably 
available to them, the Chinese producers demonstrat ed that the differences in costs of production 
                                               
480 Review Regulation (Panel Exhibit CHN-3), recital 50. 
481 Panel Report, para. 7.249.  
482 Panel Report, para. 7.249. 
483 Panel Report, para. 7.246.  
484 Council Regulation (EC) No. 1331/2007 of 13 November 2007 imposing a definitive anti-dumping 
duty on imports of dicyandiamide originat ing in the People's Republic of China, Official Journal of the 
European Union , L Series, No. 296 (15 November 2007), pp. 1-17 (Panel Exhibit CHN-38), recitals 38 and 41; 
Council Regulation (EC) No. 1659/2005 of 6 October 2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain magnesia bricks originating in the People's Republic of China, Official Journal of the European Union  L Series, No. 267 (12 October 2005), 
pp. 1-14 (Panel Exhibit CHN-39), recital 24; Council Regulation (EC) No. 3386/1993 of 6 December 1993 imposing a definitive anti-dumping duty on imports of  dead-burned (sintered) magnesia originating in the 
People's Republic of China, Official Journal of the European Communities , L Series, No. 306 (11 December 
1993), pp. 16-21 (Panel Exhibit CHN-40), recital 9; Council Regulation (EC) No. 1347/96 of 2 July 1996 imposing definitive anti-dumping du ties on imports of unwrought pure magnesium originating in Russia and 
Ukraine and collecting definitively the provisional duty imposed, Official Journal of the European Communities , 
L Series, No. 174 (12 July 1996), pp. 1-10 (Panel Exhibit CHN-41), recital 27; Commission Regulation (EC) No 492/2008 of 3 June 2008 imposing a provisional anti-dumping duty on imports of monosodium glutamate originating in the People's Republic of China, Official Journal of the European Union , L Series, No. 144 (4 June 
2008), pp. 14-30, (Panel Exhibit CHN-42), recitals 35 and 39.
  
485 Panel Report, para. 7.245.  
486 China's other appellant' s submission, para. 92. WT/DS397/AB/RW 
 
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 affected price comparability by providing an overview of the cost differences and explaining that 
the cost of production occupied a constant proportion of the price of Pooja Forge's products.487  
5.238.  The European Union agrees with the Panel' s determination. It argues that China fails to 
point to any error of law under Article 2.4 of the Anti-Dumping Agreement488, and that it should 
have brought its claim under Article 11 of the DSU.489 The European Union also argues that the 
fact that the Chinese producers did not have more information to offer was immaterial to the Panel's determination.
490 At the meeting with the parties, th e Panel had asked the European Union 
what kind of evidence would have been required to show that the alleged differences in costs 
affect price comparability. The European Union re sponded that differences could be demonstrated 
to affect price comparability if evidence can be adduced that a natural comparative advantage exists.
491 The European Union also explained that "in this case the requests were not substantiated 
(and perhaps could not be substantiated based on any additional information) because they were 
based on the wrong premise that adjustments were required to reflect distorted prices."492  
5.239.  First, we analyse whether China should have brought its claim under Article 11 of the DSU, 
as the European Union contends. We have already explained that allegations implicating a panel's 
appreciation of facts and evidence fall under Article 11 of the DSU.493 By contrast, "'[t]he 
consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty 
provision is … a legal characterization issue' and is therefore a legal question."494 In the instant 
case, China takes issue with the Panel's assessment of whether the Chinese producers' requests for adjustments were sufficiently substantiated to  meet the requirements of Article 2.4 of the 
Anti-Dumping Agreement. In other words, the issue is whether the differences for which 
adjustments were requested affected price comparability such that the adjustments would be 
warranted to ensure a fair comparison. Therefore, this claim should be treated as a challenge of 
the Panel's application of Article 2.4 of the Anti -Dumping Agreement to the facts of this case.  
5.240.  Turning to the issue of whether the Chin ese producers submitted substantiated requests 
for adjustments, we recall that they provided a comparative account of Pooja Forge's and their 
own costs with respect to each of the five diffe rences upon which they relied on. They further 
explained "that Pooja Forge's cost of manufacturing  amounted to 80% of the price of its finished 
product 'and that therefore any difference in cost s would directly translate into the difference in 
price'."
495 The Commission found that "[t]here was no evidence adduced by these parties that the 
alleged differences in cost translated into differences in prices" and addressed, in this context, the 
fact that an analogue country methodology is us ed so as to avoid basing the determination of 
normal value on distorted prices and costs.496 The Panel in turn found that, "while highlighting the 
differences between Pooja Forge and the Chinese companies in terms of the amounts incurred for 
each of these cost factors", the Chinese producers did not show how such cost differences affected 
price comparability.497 The Panel also found that the fact that "a company's cost of manufacturing 
                                               
487 China's other appellant' s submission, para. 99. 
488 European Union's appellee' s submission, para. 79.  
489 European Union's appell ee's submission, para. 75. 
490 European Union's appell ee's submission, para. 79. 
491 European Union's response to Panel question No. 40, para. 115. 
492 European Union's response to Panel question No. 40, para. 116. Recitals 100 and 103 of the Review 
Regulation (Panel Exhibit CHN-3) read, in relevant parts:  
[T]hese distorted prices cannot be used as a basis for adjustment as requested by the said 
parties. In these circumst ances, the Commission fails to see wh ich additional information, in the 
view of the Chinese Chamber of Commerce and th e exporting producer, co uld be provided to 
further substantiate these two requests for adjustments.  
… [N]one of the Chinese exporting producers receiv ed MET in the original investigation and their 
cost structure cannot be considered as reflecting market values that can be used as a basis for 
adjustments in particul ar with regard to ac cess to raw materials. 
493 Appellate Body Report, China – GOES , para. 183 (referring to Appellate Body Reports, US – Upland 
Cotton , para. 399; US – Upland Cotton (Article 21.5 – Brazil) , para. 385; and EC and certain member States – 
Large Civil Aircraft , para. 1005).  
494 Appellate Body Report, China – GOES , para. 183 (quoting Appellate Body Report, EC – Hormones , 
para. 132). 
495 Panel Report, para. 7.243 (quoting China's second  written submission to the Panel, para. 253). 
(fn omitted) 
496 Review Regulation (Panel Exhibit CHN-3), recital 41. 
497 Panel Report, para. 7.242.  WT/DS397/AB/RW 
 
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 represents a certain percentage of the price of its final product does not, in itself, show a 
difference that affects price comparability."498 Furthermore, the Panel rejected China's argument 
that the Chinese producers were limited in what they could present given that they did not have access to Pooja Forge's data on the basis that China's claim "concerns the substantive aspects of 
the Commission's determination regarding fair comparison, and not whether the 
Chinese producers had the information that would have allowed them to make a substantiated request for an adjustment."
499  
5.241.  As set out above, under Article 2.4 of the Anti-Dumping Agreement, the Chinese producers 
had to substantiate their requests for adjustments "as constructively as possible".500 As we have 
explained above, the Commission's determination in  the Review Regulation seems to associate the 
absence of evidence that the differences in costs affected price comparability with the fact that 
certain costs were distorted in China.501 Stating that certain costs were distorted in China does not 
address the issue of whether the requests for adjustments were sufficiently substantiated. Moreover, the European Union acknowledged before the Panel that "the requests were not 
substantiated (and perhaps could not be substa ntiated based on any additional information) 
because they were based on the wrong premise that adjustments were required to reflect distorted prices."
502 As per the European Union's own submission, the Chinese producers failed to 
substantiate their requests for adjustments because such adjustments could not be made given 
that certain prices were distorted in China and that, accordingly, the corresponding requests could not be substantiated. For these reasons, we find that the Panel erred in finding that the Chinese producers did not substantiate their requ ests for adjustments. Co nsequently, we reverse 
the Panel's intermediate finding that "the Chinese producers failed to show that the alleged 
differences in costs affected price comparability" and, thus, failed to come forward with substantiated requests for adjustments.
503 
5.242.  In the light of the above, we reverse the Panel's finding, in paragraphs 7.250, 7.251, 
and 8.2.iii of its Report, in respect of the cost di fferences at issue, and find, instead, that, because 
the Commission's determination does not reflect an adequate assessment of the Chinese 
producers' requests for adjustments for differences relating to access to raw materials, use of 
self-generated electricity, efficiency in raw material consumption, efficiency in electricity consumption, and productivity per employee, th e European Union acted inconsistently with 
Article 2.4 of the Anti-Dumping Agreement. 
5.5.2.4.3  Whether the Panel failed to make  an objective assessment of the facts as 
required under Article 11 of the DSU 
5.243.  China submits that the Panel acted inconsis tently with Article 11 of the DSU by focusing 
exclusively on differences in terms of efficiency in electricity consumption when addressing China's 
claim that the Commission should have made adjust ments for differences relating to access to raw 
materials, use of self-generated electricity, efficiency in raw material consumption, efficiency in 
electricity consumption, and productivity per employee.
504 In addition, China claims that the Panel 
acted inconsistently with Article 11 of the DSU by considering pieces of evidence in isolation from 
each other in respect of these alleged differences.505 Having reversed the Panel's finding on the 
basis that the Panel erred in its interpretation an d application of Article 2.4 of the Anti-Dumping 
Agreement, we see no need to make a separate finding under Article 11 of the DSU as to whether 
the Panel, as argued by China, failed to make an objective assessment of the facts in reaching its findings.  
                                               
498 Panel Report, para. 7.243.  
499 Panel Report, para. 7.244.  
500 Appellate Body Report, EC – Fasteners (China) , para. 488 (quoting Panel Report, EC – Tube or Pipe 
Fittings , para. 7.158). 
501 Review Regulation (Panel Exhibit CHN-3), recitals 41 and 100.  
502 European Union's response to Panel question No. 40, para. 116 (quoting Review Regulation 
(Panel Exhibit CHN-3), recitals 100 and 103).  
503 Panel Report, para. 7.243.  
504 China's other appellant's submission, paras. 111-112.  
505 China's other appellant's submission, para. 115. WT/DS397/AB/RW 
 
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 5.5.2.5  Differences in physical characteristics 
5.244.  China conditionally appeals the Panel's finding that the European Union did not act 
inconsistently with the fair comparison requ irement under Article 2.4 of the Anti-Dumping 
Agreement by rejecting the Chinese producers' requests for adjustments due to differences in 
physical characteristics, both included and not included in the original PCNs.506 China submits that 
we need to consider this claim on appeal only in the event that we reverse the Panel's finding concerning the European Union's claim under the la st sentence of Article 2.4 of the Anti-Dumping 
Agreement.
507 Having upheld the Panel's finding that the European Union acted inconsistently with 
Article 2.4 of the Anti-Dumping Agreement because the Commission failed to provide the Chinese producers with information regarding the characteristics of Pooja Forge's products used in determining normal values, the condition upon which this appeal of China rests is not met and we 
need not address this claim raised by China. Ho wever, the European Union challenges the Panel's 
finding that China's claims with respect to physical characteristics not included in the original PCNs were within its terms of reference. We address th is claim raised on appeal by the European Union 
below.  
5.5.2.5.1  The Panel's terms of reference 5.245.  Before the Panel, the European Union argued that China was precluded from raising its 
claim under Article 2.4 of the Anti-Dumping Agreement in the compliance proceedings in respect of 
adjustments relating to physical characteristics not reflected in the original PCNs because this was a claim that China could have raised but did not raise in the original proceedings. The European Union did not raise this as a procedural objection but pointed out that, since jurisdiction 
is a matter that has to be examined on the Panel's own initiative, it would not object if the Panel 
found this aspect of the claim to be outside its terms of reference.
508 
5.246.  The Panel found that the claim was within its terms of reference as the issue could not 
have been raised in the original investigation. The Panel noted that the Chinese producers' 
requests to make adjustments based on physical characteristics not reflected in the original PCNs (such as traceability, standards, unit of defective rate, hardness, bending strength, impact 
toughness, and friction coefficient) were made on response to the new information disclosed by 
the Commission in the review investigation. Since nothing on the record of the original investigation showed, nor did the European Union ar gue, that these alleged cost differences were 
discussed in the original investigation, the Panel found that this aspect of China's claim was within 
its terms of reference.
509 
5.247.  On appeal, the European Union argues that  the Panel erred in finding that this claim by 
China fell within its terms of reference. The European Union contends that this is a claim that 
China could have raised but did not raise in the original proceedings. In the European Union's 
view, the Panel wrongly focused its analysis on wh ether the alleged differences were "discussed" in 
the original investigation.510 The European Union argues that, considering that the 
Chinese producers raised the special/standard distinction as an issue affecting price comparability 
in the original investigation and that this issue was outside the original PCNs, "[t]hey could have also raised the same requests for adjustment with respect to non-PCNs elements which affected price comparability", but did not do so.
511 
5.248.  China responds that the relevant issue is whether it could have raised the same claim in 
the original proceedings, rather than whether the Chinese producers could have made requests for adjustments during the original investigation.
512 Noting that the alleged differences in physical 
characteristics had not been discussed in the original investigation, and that no factual findings 
                                               
506 China's other appellant's submission, para. 131 et seq .   
507 China's other appellant's submission, para. 123.  
508 Panel Report, paras. 7.204 and 7.231 (referring to European Union's second written submission to 
the Panel, para. 156). 
509 Panel Report, para. 7.233. 
510 European Union's appellant's submission, para. 182. 
511 European Union's appellant's submission, para. 182. 
512 China's appellee's submission, para. 125. WT/DS397/AB/RW 
 
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 were made in that respect, China argues that raising this claim in the original proceedings was 
simply impossible.513  
5.249.  We observe that China raised claims concerning the special/standard distinction in the 
original proceedings under Articles 2.1 and 2.6 ("likeness") and under Articles 3.1 and 3.2 
("injury") of the Anti-Dumping Agreement.514 In our view, the fact that a party raised an issue in 
respect of the likeness and injury determinations in the original proceedings cannot be determinative of whether a party is entitled to raise an issue that concerns the dumping 
determination in the compliance proceedings. In this respect, the fact that China had the elements 
to raise claims regarding the special/standard distinction in respect of the likeness and injury determinations does not indicate that China was also in a position to raise claims regarding other differences in physical characteristics not included in the original PCNs in respect of the dumping 
determination.  
5.250.  We further note that, in the review investigation, following the Commission's disclosures 
that conveyed further information regarding the characteristics of Pooja Forge's products, the 
Commission rejected the Chinese producers' requests to make adjustments for differences that 
allegedly affected price comparability concerning certain physical characteristics not reflected in 
the original PCNs, such as traceability, standards, unit of defective rate, hardness, bending 
strength, impact toughness, and friction coefficient.
515 A s  w e  h a v e  c o n s i d e r e d  i n  r e s p e c t  of  t h e  
claims made under Articles 6.5, 6.5.1, 6.4, 6.2, and 6.1.2 of the Anti-Dumping Agreement, the exchanges between the Chinese producers and the Commission in the review investigation 
demonstrate that the Chinese producers became aware of the information underlying the claims 
made in the compliance proceedings only during the review investigation. This is so because 
the Commission never fully disclosed all the information regarding the characteristics of Pooja Forge's products that were relevant to th e dumping determination. We, thus, agree with the 
Panel that the absence in the record of the original investigation of any discussion on the impact 
on price comparability of physical characteristics not included in the original PCNs shows that this issue was unique to the review investigation and, therefore, could not have been raised in the 
original proceedings.
516 
5.251.  Moreover, we are of the view that the claim by China in these compliance proceedings 
under Article 2.4 of the Anti-Dumping Agreement not only could not have been raised in the 
original proceedings, but also challenges aspects that are intrinsically connected with, and form 
part of, the measure taken to comply, namely, the disclosures made by the Commission in the 
review investigation to comply with the DSB's recommendations and rulings under Article 2.4 in 
the original proceedings. Indeed, the Chinese producers requests for adjustments based on 
physical characteristics not reflected in the original PCNs were made in the review investigation 
and were based on the exchanges that they had with the Commission regarding Pooja Forge's product characteristics. The Commission's refusal to make such adjustments is connected with, 
and forms an integral part of, the measure taken to comply with the DSB's recommendations and 
rulings in the original proceedings, that is, the disclosures made by the Commission in the review investigation.  
5.252.  In the light of the above, we consider that the claim that China has raised in these 
compliance proceedings under Article 2.4 in respect of adjustments relating to differences in 
physical characteristics not reflected in the original PCNs is not a claim that China could have raised in the original proceedings. 
5.253.  We, therefore, uphold the Panel's finding, in paragraph 7.233 of its Report, that China's 
claim under Article 2.4 of the Anti-Dumping Agreement in respect of adjustments relating to 
differences in physical characteristics not reflected in the original PCNs fell within its terms of 
reference. 
                                               
513 China's appellee's submission, para. 126. 
514 Original Panel Report, paras. 7.279 and 7.324. 
515 Panel Report, paras. 7.199 and 7.233. 
516 Panel Report, para. 7.233. WT/DS397/AB/RW 
 
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 5.6  Article 2.4.2 of the Anti-Dumping Agreement 
5.254.  In the review investigation at issue, the Commission used the weighted average-to-
weighted average (WA-WA) methodology when comp aring normal values with export prices in 
calculating dumping margins for the Chinese producers. The Commission made these comparisons 
in two steps. In the first step, it divided the product under investigation into product "models" and 
made model-specific comparisons of normal valu e and export price. In the second step, it 
aggregated such model-specific results in order to determine the margins of dumping for the 
investigated product. In both the first and second steps, the Commission excluded from the scope 
of its calculations those models that did not match with any of the models sold by Pooja Forge. Thus, when the Commission aggregated the results of the model-specific calculations in the second step, it divided the total amount of dumping by the total value of exports pertaining to the models 
for which individual calculations had been made in the first step. Exports that were excluded in the 
first step were also excluded in the second step from the denominator of the formula used to calculate the overall dumping margins for the investigated product.
517 Chinese producers objected 
to this calculation method, requesting that the Commission divide the total amount of dumping by 
the total value of all exports in the second step of its calculations. The Commission rejected this objection, stating that its method provided the most reliable basis on which to establish the level 
of dumping.
518 
5.255.  Before the Panel, China claimed that the European Union acted inconsistently with 
Article 2.4.2 of the Anti-Dumping Agreement by leaving out of the dumping margin calculations 
the export transactions for which there was no match in the domestic sales of fasteners produced 
by Pooja Forge. According to China, since the Commission had found that "all models of fasteners 
exported from China to the European Union were  'like' the fasteners produced and sold by 
Pooja Forge in India", these products must be "c omparable" within the meaning of Article 2.4.2.519  
5.256.  The European Union disagreed, arguing that  Article 2.4.2 requires that only "comparable" 
export transactions be taken into consideration in calculating dumping margins. The European Union argued that the Commission complied with Article 2.4.2 in the review investigation 
because it took into consideration only those models that matched with one of the models sold by 
Pooja Forge.
520  
5.257.  The Panel found that the Commission's approach in calculating the dumping margins was 
inconsistent with Article 2.4.2. The Panel observed that dumping is defined in the Anti-Dumping 
Agreement as the situation where "a product" is introduced into the commerce of another country 
below normal value.521 According to the Panel, the term "product" implies that the margin of 
dumping has to be calculated for a particular product as a whole.522 Therefore, in the Panel's view, 
"a margin of dumping that excludes certain export transactions cannot be said to have been 
calculated for the investigated product as a whole."523 The Panel then stated that, since the 
Commission had determined that the fasteners produced by the Chinese producers and those 
produced by Pooja Forge were "like products", all transactions involving these fasteners 
necessarily had to be "comparable" within the meaning of Article 2.4.2.524 
5.258.   On appeal, the European Union argues that the Panel erred in its interpretation of the 
phrase "all comparable export transactions" contained in Article 2.4.2.525 The European Union 
                                               
517 Panel Report, para. 7.259.  
518 Panel Report, para. 7.260 (referring to Review Regulation (Panel Exhibit CHN-3), recitals 105 
and 108-109). 
519 Panel Report, para. 7.254 (referring to China's firs t written submission to the Panel, paras. 420-421). 
China further argued that, by failing to take into acco unt "all comparable export transactions" in its dumping 
margin calculations, the Commission also acted inconsistently with the obligation to conduct a fair comparison between the normal value and the export pric e, as required by Article 2.4. (Ibid.) 
520 Panel Report, paras. 7.255-7.257. The European Union also submitted that such a methodology is 
not inconsistent with the fair comparison obligati on set forth in Article 2.4. (Ibid., para. 7.261) 
521 Panel Report, para. 7.263 (quoting Article 2.1 of the Anti-Dumping Agreement). 
522 Panel Report, para. 7.264. 
523 Panel Report, para. 7.265. 
524 Panel Report, paras. 7.269-7.270. 
525 According to the European Union, transactions relati ng to a large, coated and strong screw cannot be 
"comparable" to transactions relating to a small, un coated and weak screw "jus t because they are 'like' 
products (i.e. fasteners)", since "that cannot be the meaning of the term 'comparable' in Article 2.4.2 of the [Anti-Dumping] Agreement." (European Union's appellant's submission, para. 355)  WT/DS397/AB/RW 
 
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 states that, if the drafters of the Anti-Dumpi ng Agreement had wanted to provide that the 
weighted average normal value should be compared with all export transactions , they could have 
said so.526 The European Union submits that the "Commission excluded some export transactions 
from its dumping calculation, because including them would have resulted in inaccurate findings 
based on non-comparable transactions" and that "[t]his situation cannot be compared with the 
zeroing situation that the Panel based its analysis on."527 According to the European Union, in the 
zeroing cases, the Appellate Body was addressing "an entirely different issue: if models are 
developed that can be matched and the matching leads to a negative dumping margin, can those 
models be left out of the averaging exercise or be given a zero for purposes of determining the 
margin of dumping".528  
5.259.  China responds that the Panel correctly  determined that the European Union acted 
inconsistently with Article 2.4.2. According to  China, the phrase "all comparable export 
transactions" requires that "no export transaction may be left out when determining margins of dumping"
529 and that "[a]ll types or models falling within the scope of a 'like product' must 
necessarily be 'comparable'".530 China also suggests that "the fact that all fasteners are like 
products does not necessarily mean that they are all identical. "531 However, according to China 
"[a]ll types of fasteners falling within the scope of 'like' product are able to be compared".532 In 
China's view, while not all exported product type s may be directly comparable to product types 
that are sold domestically, Article 2.4 of the An ti-Dumping Agreement requires an investigating 
authority to "take non-matching models into account by making the necessary adjustments to eliminate the effect of factors th at affect price comparability".
533  
5.6.1  "[A]ll comparable export transactions " under Article 2.4.2 of the Anti-Dumping 
Agreement 
5.260.  Article 2.4.2 of the Anti-Dumping Agreement provides:  
Subject to the provisions governing fair comparison in paragraph 4, the existence of 
margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted 
average of prices of all comparable export transactions or by a comparison of normal 
value and export prices on a transaction-to-transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ 
significantly among different purchasers, regions or time periods, and if an 
explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted av erage-to-weighted average or transaction-
to-transaction comparison. 
5.261.  In EC – Bed Linen , the Appellate Body stated that Article 2.4.2 explains "how domestic 
investigating authorities must proceed in establishing 'the existence of margins of dumping', that 
is, it explains how they must proceed in establishing that there is dumping."
534 Article 2.4.2 
explicitly requires that, where the WA-WA methodology is used, the existence of margins of dumping has to be established on the basis of a comparison of a weighted average normal value 
with a weighted average of prices of  "all comparable export transactions ".
535 With regard to the 
meaning of this phrase, the Appellate Body found that, once an investigating authority has defined 
the product at issue and the "like product" on the domestic market, it cannot "at a subsequent stage of the proceeding, take the position that some types or models of that product [have] 
physical characteristics that [are] so different from each other that these types or models [are] not 
                                               
526 The European Union's re sponse to questioning at the oral hearing. 
527 European Union's appellant's submission, para. 379.  
528 European Union's appellant's submission, para. 358.  
529 China's appellee's submission, para. 378 (quoting Appellate Body Report, US – Zeroing (Japan),  
para. 124). 
530 China's appellee's submission, para. 380 (quoting Appellate Body Report, EC – Bed Linen , para. 58).  
531 China's appellee's submission, para. 395. (emphasis original) 
532 China's appellee's submission, para. 395.  
533 China's appellee's submission, para. 394 (quoting Panel Report, para. 7.272). 
534 Appellate Body Report, EC – Bed Linen , para. 51. (emphasis original) 
535 Emphasis added. WT/DS397/AB/RW 
 
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 'comparable'."536 In that dispute, the Appellate Body considered that "[a]ll types or models falling 
within the scope of a 'like' product must necess arily be 'comparable', and export transactions 
involving those types or models must therefore be considered 'comparable export transactions' 
within the meaning of Article 2.4.2."537 The Anti-Dumping Agreement "concerns the dumping of a 
product , and … therefore, the margins of dumping to which Article 2.4.2 refers are the margins of 
dumping for a product ."538  
5.262.  The Appellate Body further explained that, "[t]his interpretation of the word 'comparable' 
in Article 2.4.2 is reinforced by the context of this provision."539 In particular, Article 2.4 sets forth 
a general obligation to make a "fair comparison" between export price and normal value and such a general obligation "applies, in particular, to Article 2.4.2 which is specifically made 'subject to the provisions governing fair comparison in [Article 2.4]'."
540  
5.263.  The Appellate Body clarified in US – Softwood Lumber V  that its findings in EC – Bed Linen  
should not be read to mean that an investigatin g authority may not use the practice of "multiple 
averaging", where the "like product" under consider ation is divided "into product types or models 
for purposes of calculating a weighted average normal value and a weighted average export price 
for the transactions involving each product type or model or sub-group of 'comparable' transactions".
541 At the same time, the Appellate Body emphasized that "the term 'all comparable 
export transactions' means that a Member 'may only compare those export transactions which are 
comparable, but [] it must compare all such transactions'"542, and that, where an investigating 
authority has chosen to undertake multiple comparisons, the results of all of those comparisons must be taken into account in order to establish margins of dumping for the product as a whole.
543 
The reference to the "product as a whole" also reinforces the understanding that, once an 
investigating authority has defined the "like product", it cannot then exclude, from the comparison of normal value and export price, the exports of  certain models or sub-groups in calculating 
dumping margins for the "like product" as a whole.  
5.264.  While certain models or sub-groups of the exported product may not be identical to models 
or sub-groups of the "like product" in the dome stic market of the exporting country or of a 
third country, the investigating authority cannot exclude from the dumping margin calculations any 
transactions of models that fall within the scope of the "like product" as defined by the investigating authority. In this respect, we note that Article 2.4 provides, inter alia , that "[d]ue 
allowance shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in … physical characteristics, and any other differences which 
are also demonstrated to affect price comparabil ity." Therefore, Article 2.4, which informs the 
interpretation of Article 2.4.2, requires that adju stments be made to provide for a fair comparison 
when an investigating authority compares models that present certain differences that affect price 
comparability. For example, in a case involving an analogue country, in which the analogue country producers make only certain sub-groups or models of the "like product", an investigating 
authority may have recourse to other methodologies, including using the price of the like product 
when exported to an appropriate third country or the cost of production in the country of origin 
plus a reasonable amount for administrative, selling and general costs and profits.  
5.265.  In any event, an investigating authority cannot first define the "like product" and then 
exclude from the comparison between normal valu e and export price certain models of the like 
product exported for which it determines that there are no matching models sold by the analogue country producer. By failing to include the export transactions for which the investigating authority 
could not identify matching models on the normal value side, the investigating authority is also 
failing to take into account and measure the impact that the export transactions involving such models would have on the calculation of the overall dumping margins. This is not consistent with 
the requirement in Article 2.4.2 to take "all comp arable export transactions" into account when 
calculating dumping margins for the like product as a whole. We also note that it is not possible to 
                                               
536 Appellate Body Report, EC – Bed Linen , para. 58. 
537 Appellate Body Report, EC – Bed Linen , para. 58. 
538 Appellate Body Report, EC – Bed Linen , para. 51. (emphasis original) 
539 Appellate Body Report, EC – Bed Linen , para. 59.  
540 Appellate Body Report, EC – Bed Linen , para. 59. 
541 Appellate Body Report, US – Softwood Lumber V , para. 80. (fns omitted) 
542 Appellate Body Report, US – Softwood Lumber V , para. 86 (quoting Panel Report, US – Softwood 
Lumber V,  para. 7.204 (emphasis original)). 
543 Appellate Body Report, US – Softwood Lumber V , para. 98.  WT/DS397/AB/RW 
 
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 reconcile such exclusion of export transactions with the notion of "fair comparison", in Article 2.4, 
which provides context for Article 2.4.2 of the Anti-Dumping Agreement.  
5.6.2   Whether the Commission's exclusion of non-matching models from the dumping 
margin calculations is consistent with Ar ticle 2.4.2 of the Anti-Dumping Agreement  
5.266.  We next consider whether the Commission's approach in establishing dumping margins for 
the Chinese producers in the review investigat ion was consistent with Article 2.4.2 of the 
Anti-Dumping Agreement. We begin by recalling certain factual aspects of the review investigation, 
which the Panel considered to be undispute d between the parties. The Panel observed: 
In the review investigation at issue, the Commission followed the WA-WA 
methodology to compare the normal value with the export price in calculating dumping margins for the Chinese producers. The Commission made these 
comparisons in two steps. In the first step, it made model-specific comparisons; in the 
second step, it combined such model-specific results in order to determine the margin of dumping for the investigated product. In the first step, the Commission excluded 
from the scope of its calculations exports of models which did not match with any of 
the models sold by Pooja Forge. Theref ore, such exports were not taken into 
consideration in the calculation of the amount of dumping. Nor were they taken into 
consideration in the second step of the Commission's calculations. When the 
Commission aggregated the results of model-specific calculations, it divided the total amount of dumping by the total value of ex ports pertaining to the models for which 
individual calculations were made in the first step. Exports that were excluded in the 
first step were also excluded from the denominator of the formula used to calculate 
the overall dumping margin for the investigated product.
544 
5.267.  The Commission determined that the fasten ers exported by the Chinese producers and the 
fasteners sold domestically by Pooja Forge (i.e. those used to determine the normal values) were 
"like products". In particular, the Definitive Regulation states:  
[T]he fasteners produced and sold by the Community industry in the Community, 
fasteners produced and sold on the domestic market in the PRC and those produced 
and sold on the domestic market in India, which served as an analogue country, and fasteners produced in the PRC and sold to the Community are alike within the meaning of Article 1(4) of the basic Regulation.
545 
5.268.  The Commission's approach of first determining that all fasteners are "like products"546, 
but then proceeding to exclude certain models sold by the Chinese producers on the basis that these models did not match with any of those sold by Pooja Forge, is not compatible with the 
requirement in Article 2.4.2 to establish margins of dumping by comparing the normal value with 
the price of "all comparable export transactions".
547 The European Union argues that it "did not 
violate the requirement to fairly base the ma rgins of dumping … on all comparable export 
transactions" because it "excluded from the dumping margin determination those export sales 
transactions for which there was no comparable normal value transaction".548 In other words, "the 
                                               
544 Panel Report, para. 7.259.  
545 Definitive Regulation (Panel Exhibit CHN-1), recital 57.  
546 We note that the Commission's definition of "like products" is not in dispute between the 
participants. 
547 We note certain discrepancies in the terminology used in this dispute, in particular, in the usage of 
the term "model(s)". In particular, as indicated above,  in making its findings under Article 2.4.2 of the 
Anti-Dumping Agreement, the Panel relied on, inter alia , the Appellate Body's finding in US – Softwood 
Lumber V , where the Appellate Body indicated that the "multi ple averaging" technique is performed by dividing 
the "like product … into product types or models". (Appellate Body Report, US – Softwood Lumber V , para. 80) 
This would mean that the term "mod els" refers to different grouping s of products determined by the 
investigating authority for the purpose of the WA-WA co mparison. The Panel, however, appears to have used 
the term "model(s)" to refer, at time s, to the groupings of products (see e.g. Panel Report, para. 7.270) and, 
at other times, to specific products (see e.g. Panel Report, para. 7.144). For the purposes of this Report, 
unless otherwise indicated, we use the term "model" to refer to the different product groupings that the 
Commission used in the "multiple averaging" technique. 
548 European appellant's submission, para. 347.  WT/DS397/AB/RW 
 
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 Commission excluded from the scope of its calculations exports of models which did not match 
with any of the models sold by Pooja Forge."549 
5.269.  At the same time, the Commission selected  Pooja Forge as the analogue country producer 
and determined that fasteners produced by the Chinese producers and those produced by 
Pooja Forge were "like products" for the purpos es of the investigation. Accordingly, when 
conducting a comparison between the weighted average normal value and the weighted average export price, Article 2.4.2 required the Commission to take into account all export transactions of 
all models of fasteners sold by the Chinese prod ucers regardless of whether all exported models 
matched with models sold by Pooja Forge. On ce the Commission had determined that these 
products fell within the scope of the "like product", it could not exclude from the comparison, based on alleged lack of "comparability", models for which no matching model sold by the 
analogue country producer could be identified.  
5.270.  Compliance with the requirements of Arti cle 2.4.2 does not mean that the Commission had 
no other option than determining dumping marg ins based on comparisons of export price and 
normal value of different models of fasteners without making any adjustments. As the Panel 
noted, using the method of multiple averaging "minimizes, or even eliminates, the need to make adjustments for individual differences that are shown to affect price comparability".
550 
Furthermore, as we have noted above, Article 2.4 of the Anti-Dumping Agreement contains a 
general obligation to ensure a "fair comparison" between export price and normal value. As indicated above, this obligation provides context for Article 2.4.2, which is explicitly made subject to the provisions governing fair comparison in Article 2.4.
551 As also indicated above, Article 2.4 
provides that due allowance shall be made, in each case, on its merits, for differences which affect 
price comparability, including differences in physical characteristics. 
5.271.  Thus, pursuant to Article 2.4, the Commi ssion could have made adjustments in order to 
account for the differences that affected price comparability, when it calculated dumping margins 
based on multiple averaging, by matching models exported by the Chinese producers with models sold by the analogue country producer. We therefore agree with the Panel that if, in an 
investigation such as the one at issue, "there are certain exported models which do not match any 
of the models on the normal value side of the comparison, the [investigating authority] cannot simply exclude exports of such models from its dumping calculations."
552 In such a situation, the 
investigating authority has to take non-matching models into account by making the necessary 
adjustments to eliminate the effect of factors that affect price comparability.553 
5.272.  As noted above, the Commission could also have determined normal value based on 
alternative methodologies, such as those referred to in Article 2.2 of the Anti-Dumping Agreement 
(that is, a comparable price of the like product when exported to an appropriate third country, or a 
constructed value). However, given that the Commi ssion determined "fasteners" to be the "like 
product", in order to respect the requirement in Article 2.4.2 to determine the dumping margins on 
the basis of a comparison of "all comparable export transactions", the Commission was required to 
take into account and compare normal value and export price for the like product, namely, "fasteners" as a whole, without excluding models exported by the Chinese producers from the calculation of the dumping margins, which could not be matched with those sold by Pooja Forge.
554  
5.273.  The European Union argues that there is nothing "inherently unfair" about the 
Commission's approach, which "did not exclude any comparable transactions or otherwise sought to skew the averaging that followed the model-to -model comparison as had been the issue in the 
zeroing disputes".
555 The European Union contends that the excluded models were left out of the 
equation entirely because "it considered this to be the most fair and reliable basis for establishing 
                                               
549 European appellant's submission, para. 348. 
550 Panel Report, para. 7.272. 
551 In EC – Bed Linen , the Appellate Body noted that "Article 2. 4 sets forth a general obligation to make 
a 'fair comparison' between export pr ice and normal value. This is a ge neral obligation that, in our view, 
informs all of Article 2, but applies, in particular, to Article 2.4.2 which is specifically made 'subject to the provisions governing fair comparison in [Article 2.4]'." (Appellate Body Report, EC – Bed Linen , para. 59)  
552 Panel Report, para. 7.272. 
553 Panel Report, para. 7.272. 
554 This conclusion is also supported by the requir ement in Article 2.4 to ensure a fair comparison 
between export price and normal value. 
555 European Union's appellant's submission, para. 371. WT/DS397/AB/RW 
 
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 the margins given the lack of complete matching."556 China, on the other hand, argues that "the 
Panel correctly found that Article 2.4.2 of the AD Agreement, read in the light of the 'fair comparison' obligation of Article 2.4, requires that all transactions related to like products are to be treated as 'comparable export transactions' and that due allowances should be made, where 
necessary, for differences a ffecting price comparability."
557 
5.274.  The Commission followed the practice of "mul tiple averaging" by dividing the "like product" 
into models, and, as a first step, calculating a weighted average normal value and weighted 
average export price for each model. In this first step of its calculations, the Commission excluded 
models exported by the Chinese producers that were not sold by Pooja Forge. These models 
exported by the Chinese producers were also not taken into account in the second step of the Commission's calculations, where the Commission aggregated the results of the first step of its 
calculations and determined dumping margins for the "like product" as a whole. Yet, having chosen 
to undertake "multiple averaging", the Commission, in our view, was required to take into account 
"all comparable export transactions", and thus could not exclude export transactions of models 
that fell within the scope of the "like product", as defined by the Commission. It is also not 
relevant that, as the European Union contends, export transactions that were excluded in the first step of the calculations were also excluded in the second step from the denominator of the formula 
used to calculate the dumping margins for the investigated product.
558 The result is the same – 
i.e. export transactions that fell within the scope of the "like product" that the Commission defined were excluded from the calculation of the dumpin g margins for the "like product" as a whole.  
5.275.  When an investigating authority elects to calculate a margin of dumping by comparing the 
weighted average normal value with the weighted av erage export price, Article 2.4.2 requires that 
"all comparable export transactions" be compared. In the light of the Commission's definition of the "like product" in the review investigation at issue, the Commission's approach does not 
comport with Article 2.4.2. Regardless of the impa ct of the Commission's approach to calculating 
dumping margins, excluding certain export transactions from the calculations is not consistent with the requirement in Article 2.4.2 to compare "all comparable export transactions" to the extent that 
this approach fails to ensure the comparison of models for the product as a whole. This approach 
is also difficult to reconcile with the notion of "fair comparison" in Article 2.4. 
5.276.  We further note that, having determined dumping margins while excluding the 
export transactions of non-matching models, the Commission nevertheless imposed anti-dumping 
duties on the Chinese producers for the product under consideration, namely, "fasteners" as a 
whole.
559 The Appellate Body has found that, in order to meet the "fair comparison" requirement of 
Article 2.4, an investigating authority must treat the product under consideration as a whole for 
the purposes of determining dumping margins.560 In the anti-dumping determination at issue, 
the Commission, on the one hand, failed to calcul ate dumping margins for the product as a whole, 
while, on the other hand, it imposed the dumping duties commensurate with the dumping margins 
on the product as a whole. In this respect, we do not consider that the Commission's approach to 
calculating dumping margins, while excluding ex ports of Chinese models that did not match 
models sold by Pooja Forge from the dumping margin calculations, can be reconciled with the context of "fair comparison" under Article 2.4, which informs Article 2.4.2.   
5.277.  The European Union further relies on Ar ticle 6.10 of the Anti-Dumping Agreement in 
support of its contention that the Commission could exclude export transactions of non-matching 
                                               
556 European Union's appellant's submission, para. 349.  
557 China's appellee's submission, para. 393. 
558 European Union's appellant's submission, para. 348. 
559 For instance, the Review Regulation provides:  
A comparison between export price and normal value was made on a weighted average basis 
only for those types exported by the Chinese ex porting producer for which a matching type was 
produced and sold by the Indian producer. This wa s considered to be the most reliable basis for 
establishing the level of dumping, if any, of this exporting producer; to attempt to match all other exported types to closely resembling types of the Indian producer would have resulted in 
inaccurate findings. On this basis, it is corre ct to express the amount of dumping found as a 
percentage of those export transactions used in calculating the amount of dumping – this finding 
is considered to be representa tive for all types exported. The same approach was used in 
calculating the dumping margins of  the other exporting producers. 
(Review Regulation (Panel Exhibit CHN-3), recital 109 (emphasis added)) 
560 Appellate Body Report, US – Softwood Lumber V , para. 99. WT/DS397/AB/RW 
 
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 models from the WA-WA comparison of normal value and export price. Article 6.10 stipulates the 
general rule that dumping margins must be calculated for each known producer or exporter of the product under consideration. However, where the number of exporters, producers, importers, or types of products involved is so large as to make such a determination impracticable, the 
investigating authority may limit its examination to a reasonable number of interested parties or 
products by using a statistically valid sample. According to the European Union, this provision demonstrates that the investigating authority is not obligated to include all export transactions 
involving the "like product" when calculating the dumping margins, even when no matching 
domestic sales exist.
561 China disagrees with the European Union and argues that Article 6.10 
"allows for sampling – including of types of products – only as an exception to the obligation to determine an individual margin of dumping for each known exporter or producer".
562 China also 
argues that, "contrary to the European Union's position, nothing in that provision suggests that 
because of sampling certain export transactions can be excluded from the comparison under Article 2.4.2".
563 
5.278.  We note that Article 6.10 deals with samp ling of exporters, producers, importers or types 
of products, while Article 2.4.2 sets out the me thodologies that an investigating authority may 
adopt in calculating dumping margins based on a co mparison of export price and normal value. In 
this regard, the European Union has not argued  that the Commission engaged in the sampling 
exercise contemplated in Article 6.10. The Eu ropean Union has in fact acknowledged that 
"Article 6.10 deals with an entirely different situation, as the Panel noted."564 Instead, the 
European Union relied on Article 6.10 as "evidence of the fact that it is not so that in any and all 
circumstances all export transactions must be taken into consideration" when calculating margins 
of dumping.565 We agree with the European Union that, if an investigating authority elects to use 
sampling in accordance with Article 6.10, not all transactions will be taken into consideration when 
calculating dumping margins, since it is the very essence of sampling to consider only a part of the 
whole. However, we disagree with the European Union that Article 6.10 can be construed to inform the dumping margin calculation methodology under Article 2.4.2. Articles 6.10 and 2.4.2 serve 
different purposes. We see nothing in the text of Article 6.10 that would allow derogating from the 
requirements of Article 2.4 to ensure a "fair co mparison" and of Article 2.4.2 to compare "all 
comparable export transactions".  
5.279.  The European Union finally argues that the approach taken by the Commission complies 
with the requirements of Article 2.4.2 because the export transactions of models for which a 
matching model could be found on the normal valu e side, and that were consequently included in 
the calculation of dumping margins, were both qualitatively and quantitatively representative of 
the product as a whole so as to ensure a fair comparison between comparable sales.
566 The 
European Union argues, for instance, that "[o]n average between 75% to 98% of all of the main 
types of fasteners exported were matched with domestic sales and included in the dumping margin 
calculation."567  
5.280.  China responds that "the percentage of the exports that are taken into consideration in 
calculating dumping margins, either quantitatively or qualitatively, is not pertinent to the legal obligation under Article 2.4.2" because "this provision requires that all comparable export 
transactions be taken into account in calculating dumping margins."568 Moreover, China points out 
that the figures presented by the European Union are incorrect and that "the amount of transactions that have been compared varies  between 54.03% and 62.39% of export sales in 
volume and between 52.9% and 62.59% of export sales in value."
569 
5.281.  We note, therefore, that it is disputed between the participants whether the transactions 
that were compared remained representative of the product as a whole, in spite of the exclusions 
of the non-matching models. We have observed above that the requirement of Article 2.4.2 to 
compare all comparable export transactions means that the WA-WA comparison of normal value 
                                               
561 European Union's appellant's submission, paras. 366-369.  
562 China's appellee's submission, para. 410. 
563 China's appellee's submission, para. 410. 
564 European Union's appellant's submission, para. 368. 
565 European Union's appellant's submission, para. 367. 
566 European Union's appellant's submission, paras. 377-378. 
567 European Union appellant's submission, para. 373.  
568 China's appellee's submission, para. 414. (emphasis original)  
569 China's appellee's submission, para. 417. (fn omitted) WT/DS397/AB/RW 
 
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 and export price for the purposes of calculating dumping margins should be made for the product 
under consideration as a whole, which in the present case includes all exported models of fasteners. We have indicated above that the re quirement of "fair comparison" in Article 2.4 
provides contextual support for this interpretation  of Article 2.4.2. It does not logically follow, 
however, that the European Union can satisfactorily demonstrate that the Commission's approach 
in calculating dumping margins is consistent with Article 2.4.2 by calling it a "fair comparison" because "the matching [was] made up of a number of main product types that were sold in very 
large quantities" such that "[o]n average betw een 75% to 98% of all of the main types of 
fasteners exported were matched with domestic sales and included in the dumping margin calculation."
570 While Article 2.4 provides context to Article 2.4.2, the use of the 
WA-WA methodology will comply with the "fair co mparison" requirement only to the extent that 
the investigating authority compares the export transactions relating to the product under 
consideration as a whole. However substantial the percentage of "matching" may have been, the Commission failed to take into consideration all export transactions involving all models exported 
by the Chinese producers in the dumping margin calculations.  
5.282.  In the light of the above, we uphold the Panel's finding, in paragraphs 7.276 and 8.1.iv of 
its Report, that the European Union acted inconsis tently with Article 2.4.2 of the Anti-Dumping 
Agreement by excluding, in its dumping de terminations, the models exported by the 
Chinese producers that did not match with any of the models sold by Pooja Forge. 
5.7  Articles 4.1 and 3.1 of the Anti-Dumping Agreement 5.7.1  The Panel's terms of reference 
5.283.  Before the Panel, the European Union argued that China was precluded from raising its 
claims under Articles 4.1 and 3.1 of the Anti-Dumping Agreement in the compliance proceedings because these were claims that China could have raised but did not raise in the original 
proceedings, and that the definition of the domestic industry was not an integral part of the 
measure taken to comply because the Commission treated this issue separately in the review investigation.
571 
5.284.  The Panel observed that China's claims und er Articles 4.1 and 3.1 required it to examine 
"whether the Commission implemented the DSB recommendations and rulings consistently with the findings in the Appellate Body report in the original proceedings".
572 In the Panel's view, the 
statement in the original Notice of Initiation that only those producers willing to be part of the 
sample for the purposes of the injury determinat ion would be considered as cooperating played a 
decisive role in the Commission's definition of the domestic industry in the review investigation. Such statement was an unchanged aspect of the original measure that became an integral part of 
the measure taken to comply.
573 
5.285.  On appeal, the European Union contends that the Panel erred in finding that China's claims 
under Articles 4.1 and 3.1 fell within its terms of reference. The European Union contends that 
these claims by China concern an unchanged aspect of the measure that is separable from the 
measure taken to comply and that China could have raised these claims in the original proceedings, but it did not.
574 
5.286.  The European Union argues that the Pane l should have followed the guidance of the 
Appellate Body to make the necessary findings on its terms of reference, without having to 
examine the substance of China's claims.575 The European Union also asserts that the Panel erred 
when finding that the contested statement in the original Notice of Initiation became an 
integral part of the measure taken to comply. The European Union contends that, contrary to the 
Panel's assertion, the statement in the original Noti ce of Initiation that only those producers willing 
to be part of the sample would be considered as cooperating did not play a "decisive role" in the 
Commission's determination of domestic industry in the review investigation, because the 
                                               
570 European Union's appellant's submission, para. 373. 
571 Panel Report, paras. 7.282 and 7.287. 
572 Panel Report, para. 7.289. 
573 Panel Report, para. 7.290. 
574 European Union's appellant's submission, para. 185. 
575 European Union's appellant's submission, para. 187. WT/DS397/AB/RW 
 
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 Commission employed the data already available from the original investigation and applied the 
method suggested by the Appellate Body to define domestic industry.576 
5.287.  China responds that, since there is a fundamental disagreement between the parties on 
what was required by the DSB's recommendations and rulings in the original proceedings, the 
Panel was correct in concluding that China's claims required it to examine whether the Commission 
implemented the DSB's recommendations and rulings consistently with the findings in the Appellate Body report in the original proceedings. China agrees with the Panel that its claims under 
Articles 4.1 and 3.1 go "to the very heart of a compliance panel's task … and [fell] within [its] 
terms of reference".
577 
5.288.  We disagree with the European Union that, in order to determine whether it had 
jurisdiction over China's claims under Articles 4. 1 and 3.1, the Panel examined the "substance" of 
China's claims.578 Rather, in addressing the question of whether it had jurisdiction under 
Article 21.5 of the DSU, the Panel correctly consid ered the focus of China's claims to be whether 
the European Union's measure taken to comply with the DSB's recommendations and rulings 
under Articles 4.1 and 3.1 regarding the definition of the domestic industry is consistent with the 
relevant covered agreement. 
5.289.  China's claims under Articles 4.1 and 3. 1 relate to a disagreement between the parties 
over the meaning and scope of the DSB's recommendations and rulings in the original 
proceedings. The European Union considers that all it had to do to comply was to re-define the domestic industry so as to include all the prod ucers that had come forward by the deadline set 
forth in the original Notice of Initiation.
579 By contrast, China considers that, by using the 
information provided by all the producers that had come forward in response to the original Notice 
of Initiation to re-define the domestic industry , the Commission failed to achieve compliance. In 
this respect, China observes that the Appellate Bo d y  f o u n d  t h e  s a m e  N o t i c e  o f  I n i t i a t i o n  t o  b e  
flawed in the original proceedings since it made inclusion in the domestic industry conditional upon 
the producers' willingness to be included in the injury sample.580 Such a disagreement on the 
scope of the DSB's recommendations and rulings in the original proceedings clearly could not have 
been addressed in the original proceedings. We agree with the Panel that this is exactly the type of 
disagreement that goes to the heart of a complia nce panel's task under Article 21.5 of the DSU, 
and which it is called upon to resolve.581 
5.290.  In these circumstances, it was not necessary for the Panel to engage in the exercise of 
determining whether China could have raised the same claims in the original proceedings and 
whether the aspect of the measure that was the focus of China's claims before the Panel was 
unchanged from the original proceedings and separable from the measure taken to comply. It is 
uncontested that the Commission did not issue a new notice of initiation in the review investigation 
and that China raised claims under Articles 4.1 and 3.1 in the original proceedings and obtained 
findings of inconsistency with these provisions. It was sufficient for the Panel to determine that the 
claims raised by China concern the consistency of the measure taken to comply with the 
DSB's recommendations and rulings and with the covered agreements. We thus see no merit in the argument by the European Union that the Panel erred because it did not determine its jurisdiction on these claims before examining the substance of the claims. 
5.291.  We, therefore, uphold the Panel's finding in paragraph 7.291 of its Report, that 
China's claims under Articles 4.1 and 3.1 of th e Anti-Dumping Agreement with respect to the 
definition of the domestic industry fell within its terms of reference. 
5.292.  Finally, we observe that a claim that a panel has exceeded its terms of reference, including 
under Article 21.5 of the DSU, cannot be regarded as a mere procedural objection. Indeed, a claim of this nature impugns a panel's assessment of its jurisdiction, and "[t]he vesting of jurisdiction in 
                                               
576 European Union's appellant's submission, para. 195. 
577 China's appellee's submission, para. 135 (quoting Panel Report, para. 7.289). 
578 European Union's appellant's submission, para. 187. 
579 European Union's appellant's submission, para. 405. 
580 China's appellee's submission, para. 462. 
581 Panel Report, para. 7.289. WT/DS397/AB/RW 
 
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 a panel is a fundamental prerequisite for lawful panel proceedings."582 Any decision to raise such a 
claim must be taken judiciously, in particular given the serious consequences that flow from a finding that a matter is beyond the scope of a panel's jurisdiction under Article 21.5, namely, that the complainant would be able to obtain a ruling on that matter only by initiating dispute 
settlement proceedings afresh. In this regard, we are mindful that complainants should exercise 
their judgement as to whether it is fruitful to raise such claims, as well as whether, on appeal, it is fruitful to claim that a panel erred in finding jurisdiction in circumstances where the panel itself has 
rejected the same challenge to its jurisdiction on a reasoned basis. We also recall that, even when 
the parties to a dispute remain silent on issues that touch on the proper scope of the proceedings, panels and the Appellate Body cannot ignore such issues, but must deal with such issues in order to satisfy themselves that they have authority to proceed.
583  
5.7.2  Whether the Panel erred in finding th at the European Union acted inconsistently 
with Articles 4.1 and 3.1 of the Anti-Dumping Agreement 
5.293.   The Panel found that the European Union acted inconsistently with Article 4.1 of the 
Anti-Dumping Agreement because the Commission de fined the domestic industry on the basis of 
the domestic producers that had come forward in response to the Notice of Initiation which stated that only those producers willing to be included  in the injury sample would be considered as 
cooperating.
584 
5.294.  The Panel first recalled the Appellate Body's findings in the original proceedings regarding 
the definition of the domestic industry. As the Panel recalled, the Appellate Body noted that the 
27% share in total production upon which the Commission relied was "'at the lower end of the 
spectrum' but that such a figure could suffice to establish 'major proportion' within the meaning of 
Article 4.1 provided [that this] definition '[did] not introduce material risks of distortion'".585 The 
Panel also referred to the Appellate Body's finding that "defining the domestic industry on the basis 
of willingness to be included in the sample … imposed a self-selection process among the domestic 
producers that introduced a material risk of distortion."586  
5.295.  The Panel noted that, while none of the domestic producers that had come forward in the 
original investigation had been excluded from the definition of the domestic industry in the review 
investigation, "[t]he fact remained … that the boundaries of the Commission's domestic industry definition were set by the notice of initiation of the original investigation."
587 In the Panel's view, 
"this show[ed] that the self-selection, or the mixing of the definition of domestic industry and the 
establishment of an injury sample that the Appellate Body identified in connection with the original 
investigation, continued to exist in the review investigation."588 
5.296.  The European Union appeals the Panel's findin gs that, by defining the domestic industry on 
the basis of the domestic producers that had come forward in response to a notice of initiation 
which stated that only those producers willing to be included in the injury sample would be considered as cooperating, the Commission acted inconsistently with Article 4.1. According to the 
European Union, the Panel misunderstood the finding by the Appellate Body in the original 
proceedings that it was "the exclusion of dome stic producers on the basis of their lack of 
willingness to be included in the sample [that] constituted a violation of Article 4.1".
589 
The European Union argues that "the problem identified in the original dispute where the universe 
of domestic producers was limited to those that could actually be examined for purposes of the 
injury determination was corrected in the Implementation Review"590, and that the Panel erred in 
failing to draw the "logical conclusion that the inclusion of such previously excluded producers thus 
brought the European Union into conformity with the Appellate Body's ruling".591   
                                               
582 Appellate Body Report, US – 1916 Act , para. 54. See also Appellate Body Report, Mexico  – Corn 
Syrup  (Article 21.5  – US), para. 36.  
583 Appellate Body Report, Mexico  – Corn Syrup (Article 21.5  – US), para. 36. 
584 Panel Report, para. 7.299. 
585 Panel Report, para. 7.293 (quoting Appellate Body Report, EC – Fasteners (China) , para. 422). 
586 Panel Report, para. 7.293 (quoting Appellate Body Report, EC – Fasteners (China) , para. 427).  
587 Panel report, para. 7.296. 
588 Panel report, para. 7.296. 
589 European Union's appellant's submission, para. 394.  
590 European Union's appellant's submission, para. 420.  
591 European Union's appellant's submission, para. 405. WT/DS397/AB/RW 
 
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 5.297.  China responds that an investigating auth ority has the obligation, under Article 4.1 of the 
Anti-Dumping Agreement, to define the domestic in dustry on the basis of a process that "does not 
give rise to a material risk of distortion".592 According to China, "what the Appellate Body found 
problematic [in the original proceedings] was not simply the actual exclusion of certain producers 
but rather the link between the producer's willi ngness to be included in the sample and the 
definition of the domestic industry".593 The actual exclusion of certain domestic producers was 
"only one of the consequences of the fundamentally problematic approach adopted by the 
Commission in defining its domestic industry".594 China argues that the Panel rightly determined 
that because the Commission defined the domestic industry on the basis of the domestic producers that had come forward in response to the Notice of Initiation which stated that only those producers willing to be included in the injury sample would be considered as cooperating, the 
European Union acted inconsistently with Article 4.1 of the Anti-Dumping Agreement.
595 By relying 
on the original Notice of Initiation, the Commission did not, according to China, "cure the inconsistency caused by the link between the producer's willingness to be included in the sample 
and the definition of the domestic industry" that existed in the original investigation.
596 
5.7.3  The definition of domestic industry in Article 4.1 of the Anti-Dumping Agreement 
5.298.  Article 4.1 of the Anti-Dumping Agreem ent 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 the total domestic production of those products.
597 In the original proceedings, the Appellate Body indicated: 
By using the term "a major proportion", the second method focuses on the question of 
how much  production must be represented by those producers making up the 
domestic industry when the domestic industry is defined as less than the domestic producers as a whole … [but] Article 4.1 does not stipulate a specific proportion for 
evaluating whether a certain percentage constitutes "a major proportion".
598 
5.299.  The Appellate Body indicated further:  
The absence of a specific proportion does not mean, however, that any percentage, no 
matter how low, could automatically qualify as "a major proportion". Rather, the 
context in which the term "a major proportion" is situated indicates that "a major proportion" should be properly understood as a relatively high proportion of the total domestic production. … "A major proportion" of such total production will standardly 
serve as a substantial reflection of the total domestic production. Indeed, the lower 
the proportion, the more sensitive an investigating authority will have to be to ensure that the proportion used substantially reflects the total production of the producers as 
a whole.
599  
5.300.  In the original proceedings, the Appellate Body read the definition of domestic industry in 
Article 4.1 together with the requirement in Article 3.1 of the Anti-Dumping Agreement that the 
determination of injury "be based on positive evidence and involve an objective examination" of, 
inter alia , the impact of the dumped imports on domest ic producers. An "objective examination" 
pursuant to Article 3.1 "'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 interested parties' in the investigation".
600 In this respect, "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, for example, by excluding a whole category of 
                                               
592 China's appellee's submission, para. 436 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 419).  
593 China's appellee's submission, para. 443. 
594 China's appellee's submission, para. 443. 
595 China's appellee's submission, para. 444. 
596 China's appellee's submission, para. 443.  
597 Appellate Body Report, EC – Fasteners (China) , para. 411.  
598 Appellate Body Report, EC – Fasteners (China) , para. 411. (emphasis original; fn omitted) 
599 Appellate Body Report, EC – Fasteners (China) , para. 412. (emphasis original) 
600 Appellate Body Report, EC – Fasteners (China) , para. 414 (quoting Appellate Body Report,  
US - Hot-Rolled Steel , para. 193). WT/DS397/AB/RW 
 
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 producers of the like product."601 Where a domestic industry is defined as a "major proportion" of 
the total domestic production, it follows that "the higher the proportion, the more producers will be included, and the less likely the injury determination conducted on this basis would be distorted."
602 
5.301.  The Appellate Body 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 "a  major proportion" in Article 4.1 provides an 
investigating authority with some flexibility to define the domestic industry. Nevertheless, while 
"what constitutes 'a major proportion' may be lower in the light of the practical constraints on obtaining information in a special market situation, an investigating authority bears the obligation to ensure that the way in which it defines the domestic industry does not introduce a material risk 
of skewing the economic data and, consequently, distorting its analysis of the state of the 
industry."
603 
5.302.  These findings by the Appellate Body su ggest that there is an inverse relationship 
between, on the one hand, the proportion of produc ers represented in the domestic industry and, 
on the other hand, the absence of a risk of material distortion in the definition of the domestic industry and in the assessment of injury. We t hus read the requirement in Article 4.1 that 
domestic producers' output constitute a "major proportion" as having both quantitative and 
qualitative connotations.  
5.303.  When the domestic industry is defined as  the domestic producers whose collective output 
constitutes a major proportion of total domest ic production, a very high proportion that 
"substantially reflects the total domestic production" will very likely satisfy both the quantitative 
and the qualitative aspect of the re quirements of Articles 4.1 and 3.1.
604 H o w e v e r ,  i f  t h e  
proportion of the domestic producers' collective output included in the domestic industry definition 
is not sufficiently high that it can be considered as substantially reflecting the totality of the 
domestic production, then the qualitative element becomes crucial in establishing whether the definition of the domestic industry is consistent with Articles 4.1 and 3.1. While, in the special case 
of a fragmented industry with numerous producers the practical constraints on an authority's 
ability to obtain information may mean that what constitutes "a major proportion" may be lower than what is ordinarily permissible, in such cases, the investigating authority bears the same 
obligation to ensure that the process of defining the domestic industry does not give rise to a 
material risk of distortion. An investigating authority would need to make a greater effort to 
ensure that the selected domestic producers are representative of the total domestic production by ascertaining that the process of the domestic industry definition, and ultimately the injury 
determination, does not give rise to a material risk of distortion. 
5.7.4  Whether the Commission's definition of the domestic industry in the review 
investigation is consistent with Article 4.1 of the Anti-Dumping Agreement 
5.304.  The Panel found that the European Union acted inconsistently with Article 4.1 of the 
Anti-Dumping Agreement because, in the review investigation, the Commission defined the domestic industry on the basis of the domestic producers that had come forward in response to 
the Notice of Initiation of the original investigation, which stated that only those producers willing 
to be included in the injury sample would be considered as cooperating.
605 
5.305.  The Panel noted that, while none of the European producers that had come forward by the 
deadline set in the original Notice of Initiation were excluded from the revised definition of the 
domestic industry in the review investigation, the boundaries of the Commission's domestic 
industry definition were still set by the original Notice of Initiation, which stated explicitly that only those producers that had agreed to be part of the injury sample would be considered as 
cooperating. For the Panel, this showed that the Commission's domestic industry definition in the 
                                               
601 Appellate Body Report, EC – Fasteners (China) , para. 414. 
602 Appellate Body Report, EC – Fasteners (China) , para. 414. 
603 Appellate Body Report, EC – Fasteners (China) , para. 416. 
604 Appellate Body Report, EC – Fasteners (China) , para. 419. 
605 Panel Report, para. 7.299. WT/DS397/AB/RW 
 
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 review investigation also continued to suffer from a self-selection process that introduced a 
material risk of distortion.606  
5.306.  On appeal, the European Union argues that the Appellate Body found in the original 
proceedings that it was the "exclusion from the de finition of the domestic industry of domestic 
producers that indicated that they would not be willi ng to be part of the sample and to be verified 
[that] constituted a violation of the EU's obligations under Article 4.1 and 3.1".607 According to the 
European Union, when, in the review investigation, the Commission re-defined the domestic 
industry to include all the domestic producers th at had come forward but had been excluded from 
the definition in the original proceedings, "the problem identified in the original dispute … was corrected."
608 
5.307.  China responds that the European Union' s reading of the Appellate Body report in the 
original proceedings is based on an incorrect assumption that "it was only the actual exclusion of 
certain domestic producers that indicated their unwillingness to be part of the sample from the definition of the domestic industry that constituted a violation of the European Union's obligations 
under Articles 4.1 and 3.1."
609 In China's view, it is the link between the producers' willingness to 
be included in the injury sample and the definition  of the domestic industry that was found by the 
Appellate Body to give rise to a material risk of distortion.610 The actual exclusion was only one of 
the consequences of the problematic approach adopted by the Commission in defining the 
domestic industry. The fact that the Commission did not issue a new notice of initiation, but instead maintained the original Notice of Initiation providing that only those producers willing to be included in the injury sample would be considered as cooperating, continued to give rise to a 
material risk of distortion in the review investigation.
611  
5.308.  We recall that, in the original proceed ings, the Appellate Body determined that the 
proportion, which the Commission originally relied upon to define the domestic industry, 
representing 27% of total domestic production , was at the "lower end of the spectrum" and 
"[could] hardly be considered a substantial reflection of the total".612 It further found that the 
Commission had failed to ensure that the domestic industry definition would not introduce a 
material risk of distortion to the injury analysis by relying on a minimum benchmark irrelevant to 
the issue of what constitutes "a major proportion ", and by excluding certain known producers on 
the basis of a self-selection process among the producers.613  
5.309.  The Appellate Body specifically rejected the Commission's reliance on the threshold of 25% 
in Article 5.4 of the Anti-Dumping Agreement in order to meet the requirement of "major 
proportion" in Article 4.1. It noted that the 25% benchmark in Article 5.4 "concerns the issue of standing" for the initiation of an investigation and "does not address the question of what 
constitutes 'a major proportion' in Article 4.1".
614 
5.310.  Moreover, the Appellate Body observed that  the process used by the Commission to define 
the domestic industry "limited the definition of th e domestic industry to those producers who 'fully 
cooperated in the investigation'".615 Thus, the Appellate Body concluded that, "by defining the 
domestic industry on the basis of willingness to be included in the sample, the Commission's approach imposed a self-selection process among the domestic producers that introduced a material risk of distortion."
616 In reaching this conclusion, the Appellate Body failed to see why "a 
producer's willingness to be included in the sample  should affect its eligibility to be included in the 
domestic industry , which is a universe of producers that is by definition wider than the sample."617 
                                               
606 Panel Report, para. 7.296. 
607 European Union's appellant's submission, para. 398.  
608 European Union's appellant's submission, para. 420. 
609 China's appellee's submission, paras. 442-443.  
610 China's appellee's submission, para. 443. 
611 China's appellee's submission, para. 443.  
612 Appellate Body Report, EC – Fasteners (China) , para. 422. 
613 Appellate Body Report, EC – Fasteners (China) , para. 422. 
614 Appellate Body Report, EC – Fasteners (China) , para. 425. 
615 Appellate Body Report, EC – Fasteners (China) , para. 426. 
616 Appellate Body Report, EC – Fasteners (China) , para. 427 (quoting Definitive Regulation, 
recital 114).  
617 Appellate Body Report, EC – Fasteners (China) , para. 427. (emphasis original) WT/DS397/AB/RW 
 
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 5.311.  The Appellate Body concluded that "[t]he fragmented nature of the fasteners industry, 
however, might have permitted such a low proporti on [27%] due to the impracticality of obtaining 
more information, provided that the process with which the Commission defined the industry did not give rise to a material risk of distortion."
618 It noted, however, that the Commission applied a 
minimum benchmark of 25% in defining what constituted "a major proportion of total domestic 
production", even though this benchmark does not address the standard of "a major proportion" or 
the practicality of achieving a higher proportion . Moreover, "by limiting the domestic industry 
definition to those producers willing to be part of the sample, the Commission excluded producers 
that provided relevant information."619 In so doing, the Commission "reduced the data coverage 
that could have served as a basis for its injury analysis and introduced a material risk of distorting the injury determination."
620  
5.312.   In the review investigation, the Commissi on defined the domestic industry on the basis of 
those domestic producers that had come forward in response to the Notice of Initiation in the  original investigation, which stated that only those producers willing to be included in the injury 
sample would be considered as cooperating. The Commission thus included in the definition of the 
domestic industry all of the producers that had come forward by the deadline, including those producers that had originally been excluded be cause they were deemed not to cooperate. The 
Commission did not issue a new notice of initiation but relied, for the purposes of the review 
investigation, on the original Notice of Initiation.
621 
5.313.  We observe that the inclusion in the revise d definition of the domestic industry of those 
producers that had come forward by the deadline bu t were excluded because they were not willing 
to be part of the sample increased the number of included producers from 45 to 70. We also note 
that the inclusion of these producers increased the proportion of total domestic production in the European Union from 27% in the original investigation to 36% in the review investigation.
622 While 
the proportion relied upon in the review investig ation is higher, a proportion of 36% of the total 
domestic production remains low, even in the context of the fragmented fasteners industry. Moreover, this low proportion could not be considered as a "major proportion" within the meaning 
of Article 4.1, especially where the investigating authority relies on a process of defining the 
domestic industry that introduces a material risk of distortion and fails to ensure that the proportion of domestic producers selected is representative of the whole.
623  
5.314.  In re-defining the domestic industry in the review investigation, the Commission did not 
issue a new notice of initiation but continued to rely on the Notice of Initiation issued in the 
original investigation, which stated that only those producers that agreed to be part of the injury sample would be considered as cooperating. As explained above, the Notice of Initiation in the 
original investigation conditioned the producers' eligibility to be included in the domestic industry 
on their willingness to be included in the injury sample and thus introduced a material risk of distortion in the process of the domestic industry definition. Therefore, by including in the revised 
definition of the domestic industry those produc ers that had come forward following the original 
Notice of Initiation, but were unwilling to be included in the injury sample, the Commission 
increased the proportion of domestic production from 27% to 36%. However, by relying on the same Notice of Initiation, the Commission did not eliminate the materially distortive effects on the 
composition of the group of domestic producer s that had come forward resulting from that 
Notice which conditioned the eligibility to be included in the domestic industry on the willingness to be included in the sample.  
5.315.  According to the European Union, in the original proceedings the Appellate Body 
considered that it was the exclusion of the deemed non-cooperating producers that created a material risk of distortion. The European Union finds support for its argument in a sentence in 
paragraph 430 of the Appellate Body report in the original proceedings, which states: 
[B]y limiting the domestic industry definition  to those producers willing to be part of 
the sample, the Commission excluded producers that provided relevant information. 
                                               
618 Appellate Body Report, EC – Fasteners (China) , para. 430. 
619 Appellate Body Report, EC – Fasteners (China) , para. 430. 
620 Appellate Body Report, EC – Fasteners (China) , para. 430. 
621 Panel Report, para. 7.296.  
622 Panel Report, para. 7.283. See also European  Union's appellant's submission, para. 419. 
623 Appellate Body Report, EC – Fasteners (China) , para. 422. WT/DS397/AB/RW 
 
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 In so doing, the Commission reduced the data coverage that could have served as a 
basis for its injury analysis and introduced a material risk of distorting the injury determination.
624  
5.316.  According to the European Union, the Appellate Body suggested that "the problematic 
approach in question was the exclusion of producers that provided relevant information."625 We 
disagree with the European Union's reading of this  passage in the Appellate Body report in the 
original proceedings. We note that the quoted passage, on which the European Union relies, is 
located in the concluding paragraph of the subs ection where the Appellate Body considered the 
relevance of the material risk of distortion in the definition of the domestic industry and the assessment of injury. First, we observe that the se ntence cited by the European Union begins with 
"[m]oreover", thus suggesting that the reference to the actual exclusion of the producers is a 
consideration that the Appellate Body made in addition to others. Indeed, in the preceding 
sentences of paragraph 430, the Appellate Body  cited the "low proportion" of 27% and the 
mistaken reliance under Article 4.1 on the 25% test applicable under Article 5.4 to standing as 
other elements in support of its reversal of the original panel's finding that the European Union's 
definition of the domestic industry was not inconsistent with Article 4.1. Second, while in paragraph 430 the Appellate Body summarizes certain key elements of its analysis, it developed 
its reasoning on what constitutes the material risk of distortion in the preceding paragraphs. It 
explained that a producer's willingness to be included in the injury sample should not affect its eligibility to be included in the domestic industry, which is a universe of producers that is by definition wider than the sample. By relying on this condition, the Notice of Initiation may have led 
to the exclusion of certain known producers on the basis of a self-selection process among those 
producers. As mentioned above, in those paragrap hs, the Appellate Body explained that it was the 
link between the producers' willingness to be included in the injury sample and in the definition of 
the domestic industry that created the material risk of distortion, which, together with the 
low proportion relied upon by the Commission, rendered the definition of the domestic industry inconsistent with Articles 4.1 and 3.1.  
5.317.  We, therefore, disagree with the European Union that the Appellate Body found in the 
original proceedings that it was the exclusion of producers not willing to be included in the sample that created a material risk or distortion. Rather , the Appellate Body stated  that, "by defining the 
domestic industry on the basis of willingness to be included in the sample, the Commission's 
approach imposed a self-selection process among the domestic producers that introduced a 
material risk of distortion."
626 In other words, what generates a material risk of distortion is not 
the exclusion per se  of the producers that had come forward and declined to be included in the 
sample; rather, it is the conditioning of inclusion in the domestic industry definition on the 
willingness to be included in the injury sample. Such  condition set forth in the Notice of Initiation 
distorted the pool of producers that had come forward, including those producers that were not 
willing to be part of the sample. As the Appellate Body explained in the original proceedings, the 
distortion is caused by the fact that the definition of the domestic industry and the selection of producers for the injury sample are distinct steps that should not be confused. The domestic industry is a universe of producers that is by definition wider than the sample, which may be 
selected from the producers included in the domestic industry.
627 
5.318.  The Notice of Initiation stating that only those producers willing to be included in the injury 
sample would be considered as cooperating did, in effect, create a distortion in the sense that 
domestic producers may not have come forward unless they considered themselves to be injured 
by the alleged dumping of the product under consideration. This Notice of Initiation, therefore, provided for a self-selection process that may have skewed the composition of the domestic 
industry in favour of injured producers that were  m o r e  l i k e l y  t o  c o m e  f o r w a r d .  A c c o r d i n g l y ,  i t  
introduced a material risk of distorting the domest ic industry definition used by the Commission for 
the purposes of the review investigation.  
5.319.  Defining the domestic industry by relying on producers' willingness to be included in the 
injury sample cannot be justified by the difficulty of obtaining information from a greater number 
of producers. In the original proceedings, the Appellate Body found that, in special market 
                                               
624 Appellate Body Report, EC – Fasteners (China),  para. 430.  
625 European Union's appellant's submission, para. 410. (emphasis omitted) 
626 Appellate Body Report, EC – Fasteners (China) , para. 427. 
627 Appellate Body Report, EC – Fasteners (China) , para. 427. WT/DS397/AB/RW 
 
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 situations such as a fragmented industry with num erous producers, the practical constraints on an 
investigating authority's ability to obtain information regarding domestic producers may justify defining the domestic industry on the basis of a lower proportion than would be permissible in a less fragmented market.
628 Nevertheless, even if it relies on a lower proportion, an investigating 
authority should not seek to rely exclusively or  predominantly on those domestic producers that 
consider themselves to be injured and may thus be willing to be part of the injury sample. We recall that "objective examination" under Article 3.1 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 interested parties, in the investigation".
629 Where an 
investigating authority relies on a lower proportion of domestic producers to define the domestic industry in the case of fragmented industries, it is particularly important that the process used to 
select domestic producers does not introduce a material risk of distortion and that, therefore, the 
proportion of total production included in the dome stic industry definition is representative of the 
total domestic industry.   
5.320.  The European Union also considers as "speculative" China's assertion that the language 
contained in the Notice of Initiation does not provide for sufficient incentive for producers to come forward.
630 The European Union suggests, in this regard, that "[t]he 25 producers that came 
forward within the deadline but indicated that they would not be willing to be part of the sample 
clearly had a sufficient incentive to provide information … notwithstanding the question on sampling."
631 We, however, find the European Union's argu ment in this regard to be unconvincing. 
The fact that 25 producers that were not willing to be included in the sample came forward in 
response to the original Notice of Initiation does not demonstrate that the language contained in 
the Notice was not a disincentive for other producers. 
5.321.  Furthermore, the Appellate Body in the original proceedings relied repeatedly on the 
concept of "material risk of distortion"632, which suggests that a process of the domestic industry 
definition may be inconsistent with Articles 4.1 and 3.1 not only when distortion actually occurs, 
but also when the process in question risks or is susceptible to lead to distortion. In referring to a 
self-selection process that introduces a material risk of distortion, the Appellate Body focused on 
the distortive nature of the self-selection process rath er than on its actual distortive results. In this 
respect, if a low proportion of domestic producers is selected for inclusion in the domestic industry based on a distortive self-selection process (i.e. a self-selection process that introduces a material 
risk of distortion), it cannot constitute a "maj or proportion" within the meaning of Article 4.1, 
regardless of whether the actual result of the process is distorted or not.  
5.322.  The European Union seeks to support its arguments by stating that, in defining the 
domestic industry, the Commission "applied a simple registration requirement not dissimilar from 
t h a t  o f  [ C h i n a ' s  M i n i s t r y  o f  C o m m e r c e ]  t h a t  t h e  p a n e l  i n  China  – Autos (US)  did not find 
problematic".
633 However, we do not agree with the European Union's contention that the language 
contained in the Notice of Initiation can be equated to a simple registration requirement since the 
Notice does not only require domestic producers to register, but also makes their participation in the investigation (and therefore their inclusion in the domestic industry definition) contingent upon their willingness to be included in the sample for the purposes of assessing injury. It is this 
contingency upon the willingness to be included in the injury sample, which is different from a 
mere registration requirement, that introduces the risk of material distortion, and which together 
                                               
628 Appellate Body Report, EC – Fasteners (China) , para. 415. 
629 Appellate Body Report, EC – Fasteners (China) , para. 414 (quoting Appellate Body Report, 
US - Hot-Rolled Steel , para. 193). 
630 European Union's appellant's submission, para. 419.  
631 European Union's appellant's submission, para. 419.  
632 Appellate Body Report, EC – Fasteners (China) , paras. 414, 419, 422, 427, and 430.  
633 European Union's appellant's submission, para. 413. In China – Autos (US), anti-dumping and 
countervailing duty investigations were initiated purs uant to notices of initiation, which stipulated that 
interested parties should register by  a certain deadline in order to part icipate in the investigations. (Panel 
Report, China – Autos (US) , para. 7.185) The United States had argu ed that this registration requirement 
distorted the domestic industry definition since it "condition[ed] the inclusion of domestic producers in the domestic industry definition on a willi ngness to participate in [t he Ministry of Commerce] injury investigations". 
(Ibid., para. 7.191) The panel in that dispute found that  the United States' conten tion in this regard was 
"unconvincing" since a "registration process … essentiall y requires interested parties to come forward by a 
deadline and make themselves known to the [investigating  authority] to be consider ed part of the domestic 
industry". (Ibid., para. 7.214) WT/DS397/AB/RW 
 
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 with the low proportion relied upon by the Commission, makes the definition of the domestic 
industry inconsistent with Articles 4.1 and 3.1.  
5.323.  The European Union also seeks reliance on the Appellate Body's findings in US – Offset Act 
(Byrd Amendment)  pertaining to the interpretation of Article 5.4 of the Anti-Dumping 
Agreement.634 We note, however, that Article 5.4 serves a different purpose than Articles 4.1 
and 3.1, since Article 5.4 is intended at ensuri ng that the application for initiation of an 
anti-dumping investigation is supported by a sufficiently large proportion of domestic producers 
such that an investigation is warranted. By contrast, the definition of the domestic industry in 
accordance with Articles 4.1 and 3.1 carries with it both quantitative and qualitative components, 
since the proportion relied upon should be repres entative of the domestic industry as a whole and 
be unbiased, without favouring the interests of any interested party, or group thereof. We 
therefore do not find it necessary to engage further with the European Union's arguments in this 
respect.635 
5.324.  In sum, in order to comply with the recommendations and rulings of the DSB in the 
original proceedings, the Commission re-defined the domestic industry in the review investigation 
on the basis of all the domestic producers that had come forward in response to the Notice of 
Initiation that it had issued in the original investigation. It, therefore, included those 25 producers 
that had been originally excluded from the defini tion of the domestic industry because they were 
not willing to be included in the injury sample.636 The proportion of domestic producers included in 
the domestic industry definition in the review investigation increased from 27% to 36% of the total domestic production but continues to represent a low proportion of total domestic production. 
Moreover, the Commission re-defined the domestic industry in the review investigation on the 
basis of the original Notice of Initiation, which indicated that only those producers that were willing to be included in the injury sample would be considered as cooperating (and therefore eligible for 
inclusion in the domestic industry definition). In so doing, the Commission continued to rely on a 
process linking the definition of the domestic indu stry to the producers' willingness to be included 
in the injury sample, and the original Notice of Initiation therefore continues to result in a 
self-selection process among domestic producers that hence introduces a material risk of distorting 
the domestic industry definition. 
5.325.  For these reasons, we uphold  the Panel's findings, in paragraphs 7.299 and 8.1.v of its 
Report, that the European Union acted inconsistently with Article 4.1 of the Anti-Dumping 
Agreement because the Commission defined the domestic industry on the basis of the domestic 
producers that had come forward in response to the original Notice of Initiation, which stated that only those producers willing to be included in the injury sample would be considered as 
cooperating; and that a domestic industry defi nition based on a self-selection process that 
introduces a material risk of distortion to the investigating authority's injury analysis would necessarily render the resulting injury determination inconsistent with the obligation to make an 
objective injury analysis based on positive evidence as laid down in Article 3.1 of the Anti-Dumping 
Agreement.  We, therefore, also conclude that the Commission's injury determination, based on the 
data obtained from a wrongly defined domestic in dustry, is inconsistent with Article 3.1 of the 
Anti-Dumping Agreement.  
6   FINDINGS AND CONCLUSIONS  
6.1.  For the reasons set out in this Report, the Appellate Body: 
a. with respect to Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement: 
i. upholds the Panel's finding, in paragraph 7.34 of the Panel Report, that 
China's claims under Articles 6.5 and 6.5.1 were within the Panel's terms of 
reference; 
                                               
634 European Union's appellant's submission, para. 417. 
635 We also recall that, in the original proceedings,  the Appellate Body found that the European Union 
incorrectly presumed that the 25% benchmark in Arti cle 5.4 could be applied to the "major proportion" 
requirement of Article 4.1.  (Appellate Body Report, EC – Fasteners (China) , para. 425) We believe that the 
European Union should not, once again,  rely on (albeit different) findings pertaining to Article 5.4 in order to 
interpret the obligations contained in Articles 4.1 and 3.1. 
636 Panel Report, para. 7.283. See also European  Union's appellant's submission, para. 419. WT/DS397/AB/RW 
 
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 ii. finds that the Panel did not disregard Pooja Forge's request for confidential treatment 
in its analysis of China's claim under Article 6.5; 
iii. finds that the Panel did not err in finding that Pooja Forge's request for confidential 
treatment contained no more than a "bald assertion" on the part of Pooja Forge; 
iv. finds that the Panel did not err in finding that the Commission did not conduct an 
objective assessment of whether good caus e had been shown by Pooja Forge for the 
confidential treatment of the information at issue; 
v. finds that, in the circumstances of this case, the Panel did not err by not conducting 
its own analysis of the nature of the information at issue for the purposes of its 
assessment of China's claim under Article 6.5; 
vi. upholds the Panel's finding, in paragraphs 7.50 and 8.1.i of the Panel Report, that 
the European Union acted inconsistently with Article 6.5 in the review investigation 
at issue; and 
vii. finds that the condition for addressing China's conditional appeal under Article 6.5.1 
has not been met and, accordingly, makes no findings under that provision; 
b. with respect to Articles 6.4 and 6.2 of the Anti-Dumping Agreement: 
i. upholds the Panel's finding, in paragraph 7.80 of the Panel Report, that 
China's claims under Articles 6.4 and 6.2 were within the Panel's terms of reference; 
ii. finds that the Panel did not err in finding that, for the purposes of its analysis under 
Article 6.4, the information at issue was not to be regarded as "confidential" because 
the Commission accorded confidential treatment to that information without 
assessing whether Pooja Forge had shown "good cause" for such treatment within 
the meaning of Article 6.5; 
iii. finds that the Panel did not err in finding that the information at issue was "relevant" 
to the presentation of the Chinese producers' cases within the meaning of 
Article 6.4; 
iv. finds that the Panel did not err in finding that the information at issue was "used" by 
the Commission in the review investigatio n within the meaning of Article 6.4; 
v. finds that the Panel did not err in finding that, as a consequence of the 
European Union's violation of Article 6.4, the European Union also acted 
inconsistently with Article 6.2; and 
vi. upholds the Panel's findings, in paragraphs 7.92, 7.96, and 8.1.ii of the Panel Report, 
that the European Union acted inconsistently with Articles 6.4 and 6.2 in the review 
investigation at issue; 
c. with respect to Article 6.1.2 of the Anti-Dumping Agreement: 
i. upholds the Panel's finding, in paragraph 7.115 of the Panel Report, that China's 
claim under Article 6.1.2 was within the Panel's terms of reference; 
ii. reverses the Panel's finding that Pooja Forge was not an "interested party" in the 
review investigation within the meaning of Article 6.11 of the Anti-Dumping 
Agreement, and finds, instead, that, in th e circumstances of this case, Pooja Forge 
was an "interested party" in the review investigation, and the obligation under 
Article 6.1.2, therefore, applied to in formation provided by Pooja Forge; and 
iii. finds that, because the Commission failed to disclose to the Chinese producers 
information provided by Pooja Forge concerning the list and characteristics of its WT/DS397/AB/RW 
 
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 products, the European Union acted inconsistently with Article 6.1.2 in the review 
investigation; 
d. with respect to Article 2.4 of the Anti-Dumping Agreement: 
i. upholds the Panel's finding, in paragraphs 7.148 and 8.1.iii of the Panel Report, that 
the European Union acted inconsistently with Article 2.4 because the Commission 
failed to provide the Chinese producers with certain information regarding the characteristics of Pooja Forge's products that were used in determining normal 
values;  
ii. reverses the Panel's findings, in paragraphs 7.223, 7.251, and 8.2.iii of the Panel 
Report, that the European Union did not act inconsistently with Article 2.4 because 
the Commission failed to make adjustme nts for differences in taxation, and 
finds, instead, that the European Union acted inconsistently with Article 2.4 with 
respect to differences in taxation;  
iii. reverses the Panel's findings, in paragraphs 7.250, 7.251, and 8.2.iii of the Panel 
Report, that the European Union did not act inconsistently with Article 2.4 because 
the Commission failed to make adjustments for differences relating to access to raw materials, use of self-generated electricity, efficiency in raw material consumption, 
efficiency in electricity consumption, and productivity per employee, and 
finds, instead, that the European Union acted inconsistently with Article 2.4 with 
respect to these differences;  
iv. upholds the Panel's finding, in paragraph 7.233 of the Panel Report, that China's 
claim under Article 2.4 in respect of adjustments relating to differences in physical 
characteristics not reflected in the original PCNs fell within its terms of reference; and 
v. finds that the condition for addressing China's conditional appeal under Article 2.4 
has not been met and, accordingly, makes no findings under that provision with 
respect to physical characteristics, both reflected and not reflected in the original 
PCNs; 
e. with respect to Article 2.4.2 of the Anti-Dumping Agreement: 
i. upholds the Panel's findings, in paragraphs 7.276 and 8.1.iv of the Panel Report, that 
the European Union acted inconsistently with Article 2.4.2 by excluding, in its 
dumping determinations, models exported by the Chinese producers that did not 
match any of the models sold by Pooja Forge in India; and 
f. with respect to Articles 4.1 and 3.1 of the Anti-Dumping Agreement: 
i. upholds the Panel's finding, in paragraph 7.291 of the Panel Report, that 
China's claims under Articles 4.1 and 3.1 with respect to the definition of domestic 
industry fell within its terms of reference; 
ii. upholds  the Panel's finding, in paragraphs 7.299 and 8.1.v of the Panel Report, that 
the European Union acted inconsistently with Article 4.1 because the Commission 
defined the domestic industry on the basis of domestic producers that came forward in response to the original Notice of Initiation, which stated that only those producers 
willing to be included in the injury sample  would be considered as cooperating; and 
iii. upholds  the Panel's consequential findings, in paragraphs 7.299 and 8.1.v of the 
Panel Report, that the Commission's injury determination, based on the data 
obtained from a wrongly defined domestic industry, was inconsistent with Article 3.1. WT/DS397/AB/RW 
-98 -
6.2. The Appellate Body recommends that the DSB request the European Union to bring its 
measures found in this Report, and in the Panel Report as modified by this Report, to be 
inconsistent with the Anti-Dumping Agreement into conformity with its obligations under that 
Agreement. 
Signed in the original in Geneva this 11th day of December 2015 by: 
r 
�� 
- -. d R ' H 'd" 
Rlcar 0 amlrez -ernan ez 
Presiding Member 
Shree B.C. Servansing 
Member