WORLD TRADE  
ORGANIZATION  WT/DS397/7 
29 March 2011 
 (11-1542) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES
1 – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA  
 
Notification of an Appeal by the European Union   
under Article 16.4 and Article 17 of the Understanding on Rules   
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 25 Marc h 2011, from the Delegation of the European 
Union, is being circulated to Members. 
 
_______________ 
 
  Pursuant to Article 16.4 and Article 17.1 of the DSU  the European Union hereby notifies to 
the Dispute Settlement Body its decision to appeal  to the Appellate Body certain issues of law 
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel in the dispute 
European Communities – Definitive Anti-Dumping Meas ures on Certain Iron or Steel Fasteners from 
China  (WT/DS397).  Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the 
European Union simultaneously files this Notice of  Appeal with the Appellate Body Secretariat. 
 
 For the reasons to be further elaborated in  its submissions to the Appellate Body, the 
European Union appeals, and requests the Appellate  Body to reverse and/or modify the findings, 
conclusions and recommendations of the Panel, with  respect to the following errors of law and legal 
interpretations containe d in the Panel Report. 
 I. C
OUNCIL REGULATION NO. 1225/2009  ("T HE BASIC AD REGULATION ") 
 
 The Panel erred in its interpretation and app lication of 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 WTO Agreement 
and failed to make an objective assessment pursuant to Article 11 of the DSU  when it concluded that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with those provisions.2  In particular: 
 
                                                      
1On 1 December 2009, the Treaty of Lisbon ame nding the Treaty on European Union and the Treaty 
establishing the European Community (done at Lisbon, 13 December 2007) entered into force.  On 29 November 2009, the WTO received a Verbal Note (WT /L/779) from the Council of the Eu ropean Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the "European Union" replaces and  succeeds the "European Commun ity".  On 13 July 2010, 
the World Trade Organization received a Verbal Note (WT/Let/6 79) from the Council of the European Union 
confirming that, with effect from 1 December 2009, th e European Union replaced th e European Community and 
assumed all the rights and obligations of the European Community in respect of all Agreements for which the Director-General of the World Trade Organization is the depositary and to which the European Community is a 
signatory or a contracting party. 
2Panel Report, para. 8(2)(a). WT/DS397/7 
Page 2  
 
  (a) the Panel erred in the application of Article 6.10 of the Anti-Dumping Agreement  
when finding that Article 9(5) of the Basic AD Regulation concerns not only the imposition of anti-dumping duties but also the calculation of margins of dumping.
3  
Based on its incorrect understanding of the scope of Article 9(5) of the Basic AD 
Regulation, the Panel wrongly concluded that Article 9(5) of the Basic AD 
Regulation, as such, is inconsis tent with Article 6.10 of the Anti-Dumping 
Agreement4; 
(b) the Panel erred in the interpretation a nd application of Article 6.10 of the 
Anti-Dumping Agreement and also violated Article 11 of the DSU  when finding that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with Article 6.10 of 
the Anti-Dumping Agreement in that it conditions the calculation of individual 
margins for producers from non-market economy countries on the fulfilment of the Individual Treatment (IT) test
5; 
(c) the Panel erred in the interpretation a nd application of Article 9.2 of the 
Anti-Dumping Agreement  and also violated Article 11 of the DSU  when finding that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with the obligation 
laid down in Article 9.2 of the Anti-Dumping Agreement , which does not allow the 
imposition of a single country-wide anti-dumping duty in an investigation involving a non-market economy country
6; 
(d) the Panel erred in the interpretation a nd application of Article I:1 of the GATT 1994  
and also violated Article 11 of the DSU when finding that Article 9(5) of the Basic 
AD Regulation violates the MFN obligation of Article I:1 of the GATT 1994 .7  
Moreover, the Panel erred when concluding that the Anti-Dumping Agreement  does 
not allow for the different treatment of  imports from non-market economy countries 
provided for in Article 9(5) of the Basic AD Regulation8;  and 
(e) the Panel erred when finding that the EU act ed inconsistently with Article XVI:4 of 
the WTO Agreement  and Article 18.4 of the Anti-Dumping Agreement  by failing to 
ensure the conformity of its laws, regula tions and administrative procedures with its 
obligations under the relevant agreements.9 
 
II. C OUNCIL REGULATION NO. 91/2009  (FASTENERS INVESTIGATION ) 
  The Panel erred in the interpre tation and application of Articles 6.2, 6.4, 6.5, 6.5.1, 6.10 
and 9.2 of the Anti-Dumping Agreement  and also violated Articles 6.2, 7.1 and 11 of the DSU  when it 
concluded that the EU acted inconsis tently with those provisions of the Anti-Dumping Agreement  in 
the fasteners investigation.
10  In particular: 
 
(a) the Panel erred in its interpretation and a pplication of Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement  when finding that, having found that Article 9(5) of the 
Basic AD Regulation is, as such, inconsistent with those provisions, its application in 
                                                      
3Panel Report, para. 7.77. 
4Panel Report, para. 7.98. 
5Panel Report, paras. 7.96 and 7.98. 
6Panel Report, para. 7.112 and footnote 278. 
7Panel Report, paras. 7.124, 7.126 and 7.127. 
8Panel Report, para. 7.125 and footnote 307. 
9Panel Report, para. 7.137. 
10Panel Report, paras. 8(2)(b), 8(2)(e) and 8(2)(f).  WT/DS397/7 
 Page 3 
 
 
  the fasteners investigation was, for the same reasons, inconsistent with these two 
provisions11; 
(b) the Panel erred in the interpretation and a pplication of Articles 6.2 and 6.4 of the 
Anti-Dumping Agreement  and violated Article 11 of the DSU  when finding that the 
EU violated these provisions by not providing a timely opportunity for Chinese 
producers to see information regarding the product types on the basis of which 
normal value was established, information relevant to the presentation of their case12; 
(c) the Panel erred in the interpretation a nd application of Article 6.5.1 of the 
Anti-Dumping Agreement  when finding that the Eur opean investigating authorities 
had violated that provision in that they fa iled to ensure Agrati's and Fontana Luigi's 
compliance with the requirements of Article 6.5.113; 
(d) the Panel acted inconsistently with  Articles 6.2, 7.1 and 11 of the DSU  when 
addressing in substance China's claim under Article 6.5 of the Anti-Dumping 
Agreement  in connection with Pooja Forge14; 
(e) the Panel erred in the interpretation a nd application of Article 6.5 of the 
Anti-Dumping Agreement  when it considered that, absent a showing of "good cause", 
the European investigating authorities were not entitled to grant confidential 
treatment to information submitted by P ooja Forge, the analogue country producer15;  
and 
(f) the Panel acted inconsistently with Article 6.2 of the DSU  when considering that the 
issue of "the identity of the complainants and supporters" was properly identified in 
China's Panel Request under its claims referring to Article 6.2 and 6.4 of the 
Anti-Dumping Agreement .16 
__________ 
 
                                                      
11Panel Report, para. 7.148. 
12Panel Report, paras. 7.494 and 7.495. 
13Panel Report, paras. 7.516 and 7.517. 
14Panel Report, paras. 7.518-7.526. 
15Panel Report, para. 7.525. 
16Panel Report, para. 7.458.