WT/DS405/R 
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ANNEX C 
  
ORAL STATEMENTS, OR EXEC UTIVE SUMMARIES THEREOF, 
OF THE PARTIES AT TH E FIRST SUBSTANTIVE  
MEETING WITH THE PANEL 
 
 
Contents Page 
Annex C-1 Executive Summary of the Opening Statement of China  C-2 
Annex C-2 Opening Statement of the European Union  C-11 
Annex C-3 Closing Statement of China  C-16 
Annex C-4 Closing Statement of the European Union  C-18 
 WT/DS405/R 
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ANNEX C-1 
 
 
EXECUTIVE SUMMARY OF THE OPENING  
STATEMENT OF CHINA 
 
 I. THE REQUEST FOR PRELIMINARY RU LING OF THE EUROPEAN UNION 
 
1. With respect to Article 17.6(i) of the Anti-Dumping Agreement ("ADA") as it relates to 
investigating authorities, China would first like to  stress that the issue presents two completely 
separate questions.  One is whether or not the la nguage of the Article, introducing to the ADA the 
concepts of "bias" and "proper establishment of f acts," contains any substance beyond that already 
contained in, for example, the "positive evidence" and "objective examination"  language contained in 
Article 3.1.  The other concerns the relationship between the broad standards
1 set by Article 17.6(i) 
and those parts of an investigation not arising under a provision with some sort of fairness or due 
process language already built into it.  Notably th e resolution of the second question will ultimately 
determine, among others, the question of whether or  not an authority's conduct throughout certain key 
parts of an anti-dumping investigation is completely unreviewable. 
 2. With respect to the first question, China notes that the broad standards set by Article 17.6(i), 
namely those referring to a proper establishment a nd unbiased and objective evaluation of the facts, 
quite clearly apply to the entire matter  before the Panel, not only certa in stages of the investigation 
under review.  This is made clear by the chapeau of Article 17.6, referring to the matter before the 
DSB.     3. Next, China notes, with clear support from the Appellate Body ("AB") in US - Hot Rolled 
Steel , that even though the language of the provision only explicitly defines the Panel's discretion to 
overturn the decisions made by authorities w ith respect to issues of fact, the Article impliedly  and 
necessarily  defines the limits of the discretion of authorities,  as triers of fact.  Namely, that authorities' 
conclusions cannot  be overturned if they comply with the broad standards set by the Article, but in the 
event that they do not, then those conclusions must be overturned.
2    
 4. It is not entirely clear wh ether the EU denies that the limits of the Panel's discretion are 
inextricably linked to that of the authorities in spite  of the AB's clear pronouncement to that effect, or 
whether the EU considers that even with such link, without an explicit  obligation  on authorities to act 
in conformity with the standards set by Article 17.6(i), there can be no basis on which to claim a 
violation for the failure to conduct an investigat ion in conformity therewith.  Either position is 
untenable and renders the broad standards set by th e Article a nullity with respect to everything except 
the aspects of an investigation the related provisions of which already  have some built-in due process 
or fairness language, such as those relating to the determination of injury in Article 3.1.   
 5. China considers that when the AB in US - Hot Rolled Steel  said that the provision relates to 
the authorities' "establishment and evaluation of the facts under other provisions  of the [ADA],"
3 it 
was clearly referring to the "other provisions" pur suant to which facts could be established and 
evaluated.  The EU's argument, on the other hand,  seems to depend on the premise that the "other 
provisions" referred to are those which - before  the Uruguay Round-addition of Article 17.6(i) - 
already  contained some fairness or due-process re lated language, of wh ich the language in 
                                                      
1 Note that "broad standards" is the language of the AB.  See AB Report in US - Hot Rolled Steel , para. 56.  
2 Id. 
3 Id. Emphasis added.   WT/DS405/R 
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Article 17.6(i)  is meant to serve as a mere "reminder".4  In China's view, however, the chapeau of the 
Article, along with common sense, supports the conclu sion that the standards set by the Article were 
meant to set limits on both the authorities' conduct and the Panel's review thereof with respect to the 
entire dispute.   
 
II. CLAIMS CONCERNING THE ORIGINAL AND REVIEW REGULATIONS  II.1 CLAIMS CONCERNING DUMPING  
6. China first wishes to correct the EU's unf ounded assertion that since paragraph 151 of the 
Working Party Report was not included in the A ccession Protocol, the WTO members were indicating 
that they did not regard the statement as represen ting an existing legal obligation.  Such an assertion 
reduces to nullity the conclusions summarized in th e Working Party Report concerning the terms of 
China's accession negotiated in the 21 meetings between 1996 and 2001.  The express acceptance of 
the WTO Members in Paragraph 151 of the Working Pa rty Report to comply with the provisions of 
that paragraph in implementing su bparagraph (a)(ii) of section 15 of the Accession Protocol, is an 
integral part of Paragraph 15(a)(ii) of the Accessi on Protocol and China's agreement to the temporary 
derogation therein.    7. With respect to the analogue country selection,  the substance of China' s claim is that when 
WTO Members resort to the temporary derogation provided for in the second supplementary 
provision of Article VI:1 GATT 1994, it should not resu lt in a breach of Articles 2.1, 2.4 and 17.6(i) 
of the ADA and Article VI:1 GATT 1994.  8. The factors described by China in its FWS of necessity resulted in Brazilian prices not being 
'comparable prices' to the Chinese export prices fo r the purpose of Articles 2.1 of the ADA and VI:1 
GATT 1994.  Therefore, the inherently incomp arable Brazilian normal value precluded a fair 
comparison within the meaning of Article 2.4 of th e ADA.  The EU's view that it is enough for an 
investigating authority to just take a random anal ogue country and claim that it provides 'comparable' 
prices/costs for the purpose of the normal value estab lishment, is unacceptable.  This is because if the 
analogue country selection leads to the establishment of a normal value which is not comparable to 
the export price to begin with, Article 2.4, first sente nce, is automatically violated as there can be no 
fair comparison and the concept of 'price comparability' is overturned at its root. 
 9. Article 2 of the ADA aims to achieve price comparability based on a fair comparison.  The 
very reason for different methodologies in Artic le 2.2 and the special rule in the second 
supplementary provision of Article VI:1 GATT 1994 was to establish a comparable normal value 
appropriate for price comparability and thus suitab le for achieving fair comparison.  The fair 
comparison obligation would serve no purpose if, to  begin with, a normal value based on analogue 
country data is not appropriate and is unsu itable for the purpose of fair comparison.  
 10. Having explained the basis of its claim, China further submits that the issue of the degree of 
appropriateness of Brazil as the analogue country ( i.e. most appropriate or best) is not the subject of 
the claim and the EU's arguments in this regard are irrelevant to the dispute.  
 11. China considers that investigating authoriti es are obliged to follow certain criteria in the 
analogue country selection.  Based on the word s and the negotiating history of the second 
supplementary provision of Article VI:1 GATT 1994, the existence of fair and adequate competition 
in the analogue country is essential in determ ining whether the analogue country prices are 
appropriate for price comparability.  Moreover, th e WTO members in paragraph 151 of the Working 
Party Report accepted that an analogue country selected should have "significant producers of 
comparable merchandise"  and be either "at a level of economic development comparable to that of 
                                                      
4 Para. 13, EU's FWS. WT/DS405/R 
Page C-4  
 
China"  or otherwise be "an appropriate source for the prices or costs".  This acceptance reiterates in 
more explicit terms the need to establish a comparab le normal value.  Theref ore, the comparability of 
the socio-economic standards, production structures a nd costs are important criteria for ensuring that 
the analogue country selected leads to the establis hment of comparable prices.  Additionally, the 
absence of domestic sales by cooperating producer s of an important product type (e.g.  children's 
footwear as found in the present case) demonstr ates the clear absence of comparable prices. 
Therefore, China has rightly argued that Brazil wa s not an appropriate analogue country.  The EU's 
claim that it considered competitiven ess in the Brazilian market and 'var iety of footwear types' traded 
besides the 'volume of representative sales' is de feated by facts on record.  The facts show 
respectively that the EU had no data available for the period prior to the 35 per cent import duty rate 
increment, to make a comparative evaluation of the effect on domestic sales and competition 
afterwards.  Furthermore, children's footwear whic h was a significant part of the exports from China 
was not produced by any cooperating Brazilian pr oducer implying therefore that the claim of 
considering the variety of footwear traded was indeed a farce.  
12. Furthermore, compared to the Review Regulation
5, in its FWS, the EU has changed its 
reasoning for the disparity in sending the analogue country questionnaires to Indian and Indonesian producers, and even this ex-post rationalization is not supported by facts.  The EU's unsubstantiated 
statement that " in practice, Indian and Indonesian companies had more time to respond than those in 
Brazil "
6 is also contradicted by the factual in formation in the Note for the File dated 
6 February 2009.7  Finally, the collusion between the It alian and Brazilian footwear associations 
which the EU failed to investigate is not remedi ed by the assertion that the data of the Brazilian 
producers was not distorted.  The reason being that it cannot be excluded that the two footwear associations colluded to encourage carefully select ed Brazilian producers to cooperate, with the aim 
of ensuring the finding of high dumping margins.  
13. Similarly, in the context of the original inv estigation claims, in trying to justify what the EU 
recognizes in its FWS is a "considerable emphasis" on  the criterion of the representativity of domestic 
sales, the EU confuses the very distinct steps of (1) selecting an appropriate analogue country and (2) 
selecting the data to be used (prices or cost) fo r calculating normal value on the basis of the data 
collected in the previously selected analogue country.        
14. China has also provided evidence indicating that the procedure for the analogue country 
selection in the original investigation was biased.  Regr ettably, the EU attempts to distract the Panel's 
attention from the substance of China's claims, e. g., by claiming that China presented no evidence to 
indicate that any party to the investigation made a ny complaint regarding the EU's efforts to gather 
information from exporters in the analogue country.  However, Chinese exporting producers did in 
fact request the EU to undertake more extensive and diligent efforts to secure producer cooperation 
and better assess the appropriateness of India and Indonesia as analogue countries.
8   In response to 
China's claims, the EU makes a number of asser tions, but does not adduce any evidence to support 
them, despite the clear endorsement by the AB of th e rule that the party which asserts a fact, whether 
the complainant or respondent , is responsible for providing proof thereof.9 Thus, the burden of 
proving that there were fewer (known) producers in Indonesia lies with the EU, not China.  Similarly, 
China is being accused of having prov ided evidence which is "sketchy in  the extreme", but at the time 
of its FWS, the EU itself was unable to confirm the date of submission of the confidential version of 
the questionnaire of a Brazilian e xporter.  Furthermore, the record shows that the question - which 
deadline was granted to the Brazilian exporters to respond to the questionnaire - was just one out of 
the many questions and arguments raised by interested  parties to which the EU has failed to answer or 
                                                      
5 Recital 52, Review Regulation. 
6 Para. 188, EU's FWS. 
7 Exhibit CHN-8. 
8 Exhibit CHN-91, page 20.   
9 AB Report, US - Wool Shirts and Blouses , p. 14.  WT/DS405/R 
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which it has failed to consider, and therefore shows that the EU's establishment of the facts was not 
proper.     
II.2 CLAIMS CONCERNING INJURY AND CAUSATION 
 
15. In the context of the injury claims, the EU's  assertion that China's claims II.2-II.5 suffer from 
a legal error is incorrect.  In US - OCTG Sunset Reviews , the Panel based on the reasoning applied by 
the AB in US – Corrosion-Resistant Steel  (with regard to the determination of 'dumping' in expiry 
reviews), held that to the extent that an inves tigating authority relies on a determination of injury 
when conducting a sunset review, the obligations of  Article 3 would apply to that determination.
10  
 
16. China has submitted arguments in its FW S accompanied by excerpts from the Review 
Regulation which will be elaborated in the Second Written Submission, that the EU made a detailed 
injury determination.11  For instance, the EU an alyzed whether there was a significant increase in the 
allegedly dumped imports per Article 3.2 of the ADA.  It further evaluated the price effect of the 
allegedly dumped imports by making a new unde rcutting calculation based on a sample of the 
Chinese exporters and EU producers selected in the re view investigation.  The EU also conducted a 
cumulative injury assessment pursuant to Article 3. 3, evaluated the injury indicators pursuant to 
Article 3.4 and made a causal link analysis per Ar ticle 3.5.  Finally, the EU relied upon that injury 
determination entirely to the exclusion of any ad ditional analysis for concluding the likelihood of 
continuation of injury which was contained in a mere five recitals of the Review Regulation. 
Consequently, the violations of the Article 3 prov isions are claimed in the context of the injury 
determination and not the likelihood analysis under Article 11.3.  China is not "forcing the Panel to 
disregard Article 11.3 of the ADA in the considerati on of all the injury-related determinations in the 
Regulation"12, as claimed by the EU, but is just following the approach suggested by the Panel in US - 
OCTG Sunset Reviews .  
 
17. Having clarified the legal basis of its injury-re lated claims, China wishes to reiterate that there 
was a lack of fundamental fairness and objectivity in  the procedure for the injury determination of 
which the sampling of the domestic industry was the first step, because the complainant producers 
were not required to complete sampling forms which resulted in the fact that the relevant 'positive 
evidence' for sampling was not available at the time of sample selection.  The EU has deviated from 
China's fundamental argument that the production and sales data of the individual complainant 
producers for the Review Investigation Period which was claimed to be the key basis of the sample 
selection in the Notes for the File13 and the Review Regulation14 was not available in the complaint, in 
the standing forms or pre-10 October 2008 CEC submissions.  The EU's post-sample selection 
justification regarding the representativeness of the sa mple cannot rectify the failure to comply with 
Articles 3.1 and 17.6(i) at the time of sample selection.15  
 18. China notes that the EU has not provided  any evidence to support its assertion that the 
relevant sampling information was available to it a nd that there was no need or practical purpose for 
sending sampling forms to the complainants.  The EU 's contention that the information that would 
have been sought through the samp ling forms was already available,
16 is simply factually incorrect.  
                                                      
10 Panel Report, US - OCTG Sunset Reviews , paras. 7.273-7.275. 
11 See also recital 219, Review Regulation; para. 254  of EU's FWS.  In both these contexts the EU 
notes made an injury analysis and that it investigated the existence of injury. 
12 Para. 244, EU's FWS. 
13 See Note for the Files dated 29 Octobe r 2008, 9 December 2008, and 9 March 2009. 
14 Recital 21, Review Regulation. 
15 Para. 279, EU's FWS. 
16 Para. 263, EU's FWS. WT/DS405/R 
Page C-6  
 
As done on previous occasions for instance in EC - Salmon , China requests the Panel to ask the EU to 
demonstrate what information in the file of  this investigation supports its arguments.
17  
 
19. Concerning the representativity of the sample , China notes that it posits the application of 
Article 6.10 of the ADA  with regard to the sample of the dom estic industry on two grounds.  First, 
China's arguments are based on the ruling of the Panel in EC - Salmon  that a determination of injury 
is a collective assessment for the entire domestic industry as a whole and "a sample that is not 
sufficiently representative of the domestic industry as  a whole is not likely to allow for such an 
unbiased investigation, and therefore may well result in a determination on the question of injury that 
is not consistent with the requirements of Article 3.1 of the AD Agreement" .18  Second, China relies on 
that Panel's reasoning that whether any other fact or besides the production volume would be equally 
or more relevant to ensure that the sample ade quately represents the domestic industry has to be 
assessed on a case-specific basis.  Thus, the EC - Salmon  Panel's finding that it saw "no basis to 
impose the criteria of Article 6.10 on sampling in the context of injury"  cannot be read as a prohibition 
on the use of these criteria in the injury context.  Hence, China considers that if the volume of 
production or sales is the key factor taken into account  by the investigating authority as done by the 
EU, then it must comply with the sampling criteria in Article 6.10 which would ensure that the sample 
is representative of the entire domestic industr y as a whole and satisfies the requirements of 
Article 3.1.  The EU however failed to select a sa mple accounting for the 'largest percentage of 
volume' of production, sales and included in the sa mple one or more companies that had small 
production volumes.  China reiterates its request to  the Panel to use its investigatory powers under 
Article 13.1 of the DSU to request the EU to discl ose the number of employees per sampled company.  
China believes that such data is lik ely to further evidence that the EU in fact included some very small 
companies in the sample, contrary to its stated position in the Note for the File. 
 20. China reiterates that in the original investigation the EU by its own admission selected the 
domestic industry sample based on the production vol ume of the complainants.  Likewise, in the 
review investigation, through the various No tes for the File, the EU made clear that "the baseline for 
the [sample] selection was founded on a ranking of the producers with the highest production volume 
in the IP."
19  Therefore, the sample of the EU producer s selected should have accounted for the largest 
percentage of volume of production which was not the case as it include d even small producers in that 
sample and producers that outsourced production to non-EU countries. 
 
21. With regard to the definition of the domestic  industry in the review investigation, China 
submits that it is only in the FWS that the EU has explicitly mentioned, albeit in direct contradiction 
to the Note for the File20 issued during the investigation and on the basis of reference to one recital of 
the Review Regulation (which is certainly not sel f-explanatory), that the domestic industry consisted 
of complainants and non-complainants.  China requ ests the Panel not to accept the post-investigation 
definition of the domestic industry as claimed by th e EU.  The contrary would permit investigating 
authorities to maintain a safety valve by leaving th e text of the determina tion vague and switching the 
definition of the domestic industry depending on the s ituation to ensure that they are protected against 
any allegation of a breach of the ADA even though they expressly violated the provisions of that 
                                                      
17 In EC - Salmon , the Panel noted that: "[w]e consider it imperative that there be some indication in 
the published determination, or at least some information on the matter in the files of the investigating authority 
which can be identified for a reviewing panel, on the basis of which that panel can determine how the facts were 
established, beyond the undisputed good faith and hard work of the staff of the investigating authority ." 
para. 7.667. 
18 Ibid., at paras. 7.128 and 7.130. 
19 Note for the file dated 9 March 2009. Exhibit CHN-27.  Also Note for the File dated 
29 October 2008 mentions that 'eight large producers' were sent the anti-dumping questionnaire.  Exhibit CHN-
25. 
20 Note for the File dated 9 March 2009.  WT/DS405/R 
 Page C-7 
 
 
agreement in the course of the injury determina tion.  This would make the Article 3.1 and 3.4 
provisions practically ineffective.    22. China also notes that such a radical change in the definition of the domestic industry in the review investigation as compared to the origin al investigation would have required a detailed 
explanation in the Review Regulation.  This is because Article 11(9) of the EU's Basic AD Regulation 
requires that " [i]n all review…investigations…the Commission shall, provided that circumstances have 
not changed, apply the same methodology as in the investigation which led to the duty ."   
 23. However, in case the Panel were to accept the EU's new definition of the domestic industry, 
China submits that a sample representing 3.1 per cent of the total domestic industry production and 
consisting only of the complainants cannot possi bly be considered representative of the entire 
domestic industry which then included the non-comp lainant producers accounting for around 65 per 
cent of the EU production.  By selecting a sample of the domestic industry from the complainant 
producers' pool only, the EU violates Articles 3.1 and 17.6(i) of the ADA. 
 
24. Irrespective of the different domestic indus try definition now claimed by the EU, China 
emphasizes the breach of Article 3.4 in the EU's evaluation of the macro-economic indicators.  The EU has asserted that producers who imported over 25 per cent of their output from the countries concerned and had delocalized production were not part of the EU production.
21 However, in 
contradiction to this assertion, the EU evalua ted the injury indicator 'production' based on the 
Prodcom data, and the remaining indicators on the b asis of national associations' data which included 
the data of even those producers that are relate d to Chinese/Vietnamese producers and/or are major 
importers of Chinese or third country outsourced fo otwear.  Thus Prodcom and national associations' 
data did include the data of producers not part of the EU production and therefore the domestic 
industry.  
 
25. The EU's whole evaluation of 'production' based  on Prodcom data for EU-27 as being equal to 
the domestic industry production is based on the e rroneous assumption that out of 18,000 producers, 
only two non-complainant producers needed to be  excluded from the definition of the Union 
production and industry on account of  their relation to Chinese exporters and significant imports.  
This assumption is refuted by facts and the Review Re gulation.  The latter states that the EU made the 
evaluation only for the complainant producers, as to  whether or not they were related to exporting 
producers in the countries concerned, had delocaliz ed production, or were major importers of the 
product concerned from the countries concerned/third countries.22 
 26. Considering the EU's definition of the domestic  industry in its FWS, the breach of Article 3.4 
and lack of objective evaluation is in fact more  pronounced.  This is because 'production' was 
evaluated based on 100 per cent production in the EU as reported in Prodcom, whereas the indicators 
production capacity, sales, employment, growth were evaluated based on the data of eight national 
associations accounting for 80 per cent of the EU production.
23 
 27. Additionally, the lack of positive evidence for the injury evaluation is not remedied by the 
fact that the eight Member States' associations  were verified, when the data reported by them
24 was 
clearly stated as being based on 'estimates ' for the lack of official statistics25 and was not specific to 
the like product.  Moreover, concerning production, the Prodcom data clearly includes estimates and 
reports production on an yearly basis at the 8-digi t CN code level which includes the data for the 
                                                      
21 Recital 339 Review Regulation. 
22 Recital 195 Review Regulation. 
23 Para. 303, EU's FWS. 
24 For injury indicators such as production, sales volume, production capacity. 
25 Responses of ANCI, Polish Chamber of Shoe and Leather Industry. WT/DS405/R 
Page C-8  
 
products not under investigation as well.  Therefore,  one is left to guess how the EU evaluated the 
Review Investigation Period production figures for the like product.   28. Finally, with respect to the causation analysis  in the original inves tigation, China has argued 
that the EU's interpretation of the non-attribution la nguage effectively renders that provision null.  In 
spite of the EU's boilerplate proclamation that it " carefully analysed" other known factors, and they 
"in isolation or seen together would [not] be su ch as to break the causal link between the dumped 
imports and the injury suffered by Union produ cers," China considers that the Regulations 
demonstrate that for the "other known factors" that did have some acknowledged  injurious effect, the 
EU declined to consider those factors for non-attribution which did "not on its own  appear to be a 
factor that would break the causal link."  This causal link standard with respect to individual factors is 
unacceptable.  It would mean that even if, for exam ple, two variables each accounted for half of the 
injury caused to the domestic industry, in terms of  the depressive effects on prices, neither of those 
two variables would by themselves sever the causal link, as a result of which there would still be causation.  Under such interpretation, the non-a ttribution requirement would have no value.  
 
29. Furthermore, with respect to certain other f actors, such as the steep appreciation throughout 
the Investigation Period of the EURO generally and vis-à-vis the currency in which most competing 
imports are priced in particular, the EU pos its that such a factor would not even be eligible for 
consideration  or analysis because China cannot "shift res ponsibility for the injury suffered by the EU 
producers away from the exporters and onto an extraneous event
26".  China considers that the very 
purpose of the non-attribution analysis is to identify the extraneous events causing injury for which the 
exporters are not actually responsible.  The EU justifies its stance on these issues through its wide 
discretion on the methodology according to which othe r factors are analyzed, but China submits that 
the EU is confusing the selection of an analytical  methodology with the legal standard to which the 
results of that analysis are held in order to be given actual effect.   
 
II.3 CLAIMS CONCERNING PROCEDURAL ISSUES 
 
30. While there are numerous procedural and transp arency issues shrouding the EU's original and 
review determinations, at this stage China wishes to highlight a few key issues.  With reference to the 
review investigation, the EU blatan tly disregards the Panel's ruling in Guatemala - Cement II  in the 
context of Article 6.1.2 by asserting that "when a company supplies information, described as non-
confidential, which is of a type that would normally  be accorded confidenti ality, the European Union 
authorities will check that company's intentions on the point before making it available to other 
interested parties",  thereby justifying a one month delay in placing the information in the non-
confidential file.27  China submits that, first, it is not for the investigating authorities to judge 
confidentiality of information in the specific cont ext of a non-confidential document submitted by a 
party.  Second, in the absence of a duly substa ntiated request for confidentiality by the party 
submitting the information, 'the requirement to protect confidential information'  in Article 6.1.2 
cannot be invoked to justify the failure  to promptly make available that  information to other interested 
parties.28   The latter point also underlines the fallacy of  the EU's interpretation that the period for 
assessing the prompt availability of information ru ns from the moment the non-confidentiality status 
of the document/information is ascertained to the satisfaction of the inv estigating authority. 
 31. With respect to the express conditions for according confidentiality under Article 6.5, the EU 
erroneously claims in the context of the review inv estigation that for information that is 'by nature' 
confidential, good cause is shown by "simply placing data of this kind in the appropriate part of the 
submission."
29 Such an interpretation makes Article 6. 5 totally unnecessary and if accepted, would 
                                                      
26 Para. 476, EU's FWS. 
27 Paras. 358, 359, EU's FWS. 
28 Panel Report, Guatemala - Cement  II, paras. 8.142-8.143. 
29 Para. 447, EU's FWS.  WT/DS405/R 
 Page C-9 
 
 
permit parties to submit blank non-confidential questionnaire responses.  Moreover, the EU's 
contention that confidentiality requested in the expiry review request for the names of the 
complainants is enough to cover all other submissions  of the complainants and supporters and for all 
other sets of information for which neither c onfidentiality was requested nor good cause was 
demonstrated, completely belittles the provisions of Article 6.5.  It also discredits the Guatemala - 
Cement II  Panel's ruling that authorities may not grant confidential treatment to information on their 
own initiative in the absence of a good cause demonstration by the party concerned.30   
 32. Besides having failed to require the con cerned sampled EU producers in the review 
investigation to state reasons why non-confid ential summaries could not be provided for the 
information in the injury questionnaire r esponses submitted in confidence, based on a 
misunderstanding of Article 6.5.1, the EU explai ns in its FWS why non-confidential summarization 
was not possible, when it was actually incu mbent on the parties concerned to do so.  
 33. In the original investigation, by the EU 's own admission, certain information was never 
supplied to interested parties.31 In this respect, the EU stated that "(i)n addition to the protection 
normally provided to confiden tial business information the Eur opean Union was in this case 
motivated to extend confidential treatment in ord er to protect the identities of the Complainants …".  
China submits that such a "motivated extension" of confidential treatment, is contrary to Article 6.5.  
 34. As was already submitted duri ng the administrative procedure
32, the EU is not able to confirm 
why certain documents pertaining to the origin al investigation were not included in the non-
confidential file.  Interested parties were not gr anted access to the questi onnaire response of the EU 
producer "n.10" and the more than 500 missing declarations of support.  The EU seems to hold the peculiar view that it may select a "sample" of inform ation submitted by interested parties for inclusion 
in the file and that it may unilaterally decide to  withhold information duly submitted by interested 
parties on the ground that the interests of other in terested parties would not have been served by its 
disclosure.
33 
 
III.  CLAIMS CONCERNING ARTICLE 9(5) OF THE EU BASIC AD REGULATION 
 
35. China considers that the EU has violated  the basic MFN principle, which requires WTO 
Members to treat like products equally, irrespective of their origin.  China begins from the premise 
that Article 9(5) of the Basic AD Regulation co nstitutes a rule or formality in connection with 
importation since it effectively determines whethe r or not individual anti-dumping duties will be 
imposed upon the product concerned upon importation to the EU.  Furthermore, individual duties 
clearly constitute an "advantage" within the meani ng of the Article because receipt of an individual 
duty ensures that an exporter is not subjected to a duty higher than its own dumping margin. 
 36. The EU has not provided any legal basis fo r the proposition that the status of the Chinese 
economy may have an effect on the na ture of the imports originating in  China such that they could not 
be considered like products, as compared to impor ts from other countries, and therefore the EU's 
argument with respect to the GATT I.1 claim fails.  
 
37. Nor has the EU provided any legal basis fo r the proposition that the status of China's 
economy could affect whether an exporter is eligib le for the calculation of an individual dumping 
margin and/or subsequent imposition of an indivi dual duty.  This is nevertheless a fundamental 
premise on which the EU's defenses relating to China's Article 6.10 and 9.2, 9.3 and 9.4 claims rest.   
 
                                                      
30 Panel Report, Guatemala - Cement  II, paras. 8.220-8.221. 
31 Para. 762, EU's FWS. 
32 CHN-87, p. 8. 
33 Para. 781, EU's FWS. WT/DS405/R 
Page C-10  
 
38. With respect to the Article 6.10 claim, China c onsiders that Article 9(5) is inconsistent with 
the ADA because it provides that specific conditions  must be met before exporting producers from 
"non-market economy" countries can receive an individual dumping margin.  This is impermissible because the face of the text, as well the context of other provisions of the ADA, clearly indicate that 
sampling is the only exception to the rule that i ndividual exporters are to be granted individual 
dumping margins.  The EU argues, contrary to cons istent case law, that a departure from the rule 
contained in Article 6.10 is in theory permissible in  other situations as well.  In support of this view, 
the EU relies principally on the identification of what  it considers to be other "exceptions" to the rule. 
China considers these to not actually be exceptions at  all, but rather circumstances otherwise provided 
for in the ADA, and China will fully address them point by point in its Second Written Submission. 
 
39. In any case China notes that even  in the event that the Panel were actually willing to create a 
judicially-made exception to what the EU has con ceded is, at a minimum, a "clear preference"
34 for 
individual margins, the EU has not even begun to  adduce evidence demonstrating a need, compelling 
or otherwise, for what would be a unique derogation from the norm.   
 
40. Next, China will address the EU's alternative argument to the "exceptions" issue, that the 
reasoning of the Panel report in Korea - Paper  justifies the "IT regime" instituted by Article 9(5).   
China considers that any analogy between the two does not obtain for a multitude of reasons, a few of 
which China will identify here.  First, th e EU wrongly presumes that the aim of the Korea - Paper  test 
was to identify the "actual source of price discriminat ion," and justifies the IT regime on the basis that 
it shares that aim.  The EU uses  the phrase "actual source of price discrimination" 18 times throughout 
its FWS, but the Panel report did not frame it this  way even once because the relevant portion of the 
report is meant to address the risk of the circumvention of duties , and that only.  
 41. Even if the IT criteria were  limited to those relating directly to a high risk of circumvention of 
duties by WTO Members, the Panel in  Korea - Paper  was clear that the burden of proving this risk, as 
a factual matter, was on the authorities.  The authorities were explicitly not given the discretion to 
operate under a legal presumption th at exporters were related, whic h is precisely what the EU has 
done here.35    
 42. China will now address the Article 9.2 claim.  With respect to the parties' disagreement over 
the definition of the word "impractic able" within the text of the Articl e, China considers that the word 
clearly refers to situations in which there is a hi gh number of exporters.  This should be clear from the 
face of the Article itself, and even more so when read  in light of the similar structure of Article 6.10, 
which provides an exception to the principle that exporters should receive an individual dumping margin, only in the case of sampling.   
 
43. With respect to the EU's alternative argumen t that it may consider the State to be a single 
supplier within the meaning of Article 9.2, China c onsiders that Article 9(5) is inconsistent with 
Article 9.2 for many of the same reasons th at it cannot be considered analogous with the Korea - 
Paper  test.  Namely, the factual inquiry impermissibl y shifts the burden of proof as to relation with 
the State and most of the IT criteria go far beyond what would be necessary to identify whether the 
State were indeed the true single "supplier" of a good.  
 44. Mr. Chairman, Members of the Panel, the De legation of China thanks you very much for your 
attention and will be at your disposal for answering any questions you may have.     
 
                                                      
34 Id. at 82. 
35 Panel Report in Korea - Paper, para. 7.161.  WT/DS405/R 
 Page C-11 
 
 
 
ANNEX C-2 
 
 
OPENING STATEMENT OF THE EUROPEAN UNION  
 
 
I. INTRODUCTION 
 
1. Mr. Chairman, Members of the Panel, we w ould like to thank you for agreeing to serve on 
this Panel and thank the Secretariat for all the wo rk they have done and will do in facilitating your 
task.   
2. In this dispute China has launched a great numb er of claims in respect of a provision of the 
European Union's Basic Anti-Dumping Regulation a nd of two measures taken in respect of certain 
footwear originating in China.  We have responde d to these claims in our First Written Submission in 
great detail.  We do not intend to repeat today a ll the points we have made in that Submission, 
although we of course remain ready to explain a nd elaborate upon any of them should the Panel so 
require.  Rather, we will focus only on certain speci fic points and also on some general remarks about 
China's claims, and the way they are presented in its  Submission.  We will also address some of the 
matters raised in the submissions of the Third Parties.   
II. CHINA'S "AS SUCH" CLAIM AGAINST ARTICLE 9(5) OF THE BASIC AD 
REGULATION 
 
3. Regarding China's "as such" claims against Article 9(5) of the Basic AD Regulation, China 
blatantly ignores the actual scope of the measure at  issue and follows incorrect interpretations of the 
relevant provisions of the covered agreements.   
4. In view of Articles 6.2 and 7.1 of the DSU , the European Union considers that the Panel's 
mandate with respect to China's "as such" claim is to examine the conformity of the concrete aspects 
of the specific measure described by China in its Panel Request with the relevant provisions of the 
covered agreements invoked by China.   
5. The specific measure  in this case, as defined by China's Panel Request, is a very concrete 
legislative provision, i.e., Article 9(5) of the Basic AD Regulation.  The concrete aspects  provided for 
by Article 9(5) and that China described in its Panel Request are that, in case of imports from non-
market economy countries: (i) an individual anti-dumping duty shall be specified for suppliers that can demonstrate, on the basis of properly substantiated claims, that they fulfil the five criteria listed in 
that provision; and, otherwise, (ii) the anti-dumpi ng duty shall be specified for the supplying country 
concerned and not for each supplier.  The Panel is  thus not called upon to examine matters merely 
because they may be somehow "connected" to the Artic le 9(5) determination as to who the relevant 
supplier is.  Thus, it is not called upon to examine matters pertaining to the calculation or individual 
determination of dumping margins, or to the wa y in which the level of anti-dumping duties is 
established.  It is limited to the matters speci fically identified by China in its Panel Request. 
 
6. Moreover, the European Union has already la id out the reasons why the Panel should reject 
most of China's claims.  Firstly, contrary to the requirements under Article 6.2 of the DSU , China's 
Panel Request failed to present the problem clearly.  Secondly, on the substan ce, the specific measure 
described by China in its Panel Request does not fall within the scope of the obligations contained in WT/DS405/R 
Page C-12  
 
Articles 9.2
1, 6.10, 9.3 and 9.4 of the Anti-Dumping Agreement  and in Article X:3(a) of the GATT 
1994 .  
 7. In any event, like the vast majority of  third parties expressing a view on this issue
2, the 
European Union considers that China's claims against Article 9(5) are based on an erroneous 
understanding of the relevant provisions in the Anti-Dumping Agreement , the GATT 1994  and China's 
Protocol of Accession.   8. Article 6.10 of the Anti-Dumping Agreement  allows for a single dumping margin to be 
determined for the actual producer and the source of th e price discrimination, even if there are several 
exporters involved.  This is in essence the situa tion that prevails in non-market economy countries, 
and particularly in China
3, where State control over the means of production and State intervention in 
the economy including international trade and export activities imply that exports are best regarded as 
emanating from a single producer.  It follows that the imposition of anti-dumping duties on a single supplier, i.e., China, despite th e existence of several exporters which do not act independently from 
the State, in other words non-IT suppliers , is also permitted by Article 9.2 of the Anti-Dumping 
Agreement .  In this respect, the calculation of dumping margins and the imposition of anti-dumping 
duties on a country-wide basis in cases of impor ts from non-market economy countries do not differ 
significantly from the situation where the investigati ng authority is confronted with several exporters 
who are all dependent on a single producer, that producer being the actual source of the price 
discrimination.  
 
9. Even assuming that Article 9.2 of the Anti-Dumping Agreement  can be read as containing the 
principle to impose individual anti-dumping duties for each known exporter or producer, the imposition of country-wide anti-dumping duties is nevertheless permitted in cases where such 
imposition on an individual basis w ould result in the measure being ineffective .  This is precisely the 
situation that arises because of China's non-market  economy status.  Indeed, the objective of offsetting 
or preventing dumping (stated in Article VI:2 of GATT 1994 ) would be undermined if individual 
duties were to be imposed on suppliers whose expor t activities were not sufficiently independent of 
the State (i.e., the actual producer of the product concerned).   10. Article 9(5) of the Basic AD Regulation mirrors the language of Article 9.2 of the Anti-
Dumping Agreement  as far as possible, and establishes a mechanism for imposing anti-dumping 
duties in situations where market-economy c onditions are absent which accurately addresses the 
actual source of dumping in each case (i.e., either the independent MET/IT supplier, or the State and 
its export branches as one supplier).   
11. Thus, Article 9(5) is fully in conf ormity with Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement .  The European Union observes that China's cl aims under Articles 9.3, 9.4 and 18.4 of the 
Anti-Dumping Agreement , Articles I:1 and X:3(a) of the GATT 1994  and Article XVI:4 of the WTO 
Agreement  are entirely dependent on a finding that Article  9(5) "as such" infringes Article 9.2 of the 
Anti-Dumping Agreement  and, to some extent Article 6.10 of the Anti-Dumping Agreement .  Since 
this is not the case, the Panel does not need to examine those claims. 
 
III. ARTICLE 17.6(I) ADA 
 
12. We now turn our attention – very briefly – to  China's claims based on Article 17.6(i) of the 
Anti-Dumping Agreement .  As the European Unio n has already explained, China's claims based on 
                                                      
1 EU First Written Submission, footnote 123. 
2 U.S. Third Party Written Submission, paras. 3–17; Japan's Third Party Written Submission, 
paras. 12–13; Brazil's Third Party Written Submi ssion paras. 12–26; Colombia's Third Party Written 
Submission, paras. 7–12; Turkey's Third Party Written Submission, paras. 5–15.  
3 EU First Written Submission, paras. 71–73.  WT/DS405/R 
 Page C-13 
 
 
this provision are not suitable to be pursued in dispute settlement proceeding.  But rather than 
repeating our reasons for adopting this position, at  this juncture we would like to focus on the 
significance of China's claims for the present proceeding and the Europ ean Union's rights of defence.  
 13. In this respect, we also refer to the Third Party Written Submission of Brazil, specifically to 
Brazil's view that "Article 17.6(i) is a procedural  rule, relating to the WTO dispute settlement process, 
that does not impose self-standing obligations" upon investigating authorities.
4 While this statement 
supports the position that the European Union takes be fore the Panel, that is not why we mention it 
here.  Our present concern is that, should the Panel in deed consider that Article 17.6(i) imposes direct 
obligations on WTO Members, the European Un ion would consider it necessary to enter into a 
discussion before the Panel about the extent and scope of such obligations.  Should Article 17.6(i) be 
interpreted as entailing such direct obligations, thei r extent would have to be determined, taking due 
account of other relevant provisions5 establishing, to use Brazil's la nguage, other related "procedural 
rules" provided in the Anti-Dumping Agreement , including the second sentence of Article 17.6(i). 
China has never taken a stance on this issue.  And yet this was one of the reasons why the European 
Union raised this issue as a preliminary matter – namely to understand what case we have to answer 
on this issue.  
IV. GENERAL REMARKS 
 
14. Our next remarks are of a more general natu re.  The fact that China is challenging three 
distinct legal instruments, and that with regard to each of the two operative measures it is making a 
lengthy list of challenges, is a reason for paying special attention to the issue of whether those 
challenges are expressed clearly.  Unfortunately, a reading of China's Submission shows it to be 
characterised by confusion rather than clarity of expression.   
15. A minor but quite avoidable source of confusion becomes apparent right at the outset.  The 
two operative measures, the Definitive Regulation a nd the Review Regulation were adopted in 2006 
and 2009 respectively.  Put at its simplest, the first 'sets the scene' for the second.  Certain aspects of 
the second, such as the choice of PCNs or the deni al of market-economy treat ment, do not make sense 
unless one knows the details of the first.  Neverthele ss, for no apparent reason China has chosen to set 
out its case against the two measures in the opposite order, that of 2009 before that of 2006.   
 
16. More seriously, China creates confusion by making little distinction between the bases of its 
challenge on the two measures.  Instead of recogni sing the distinct legal context of the Review 
Regulation, specifically the fact that, as an expiry review, it is governed by Article 11.3 of the Anti-
Dumping Agreement ,
6 China approaches both measures as though they were initial investigations. 
Yet, as we explained at length in our Submission, it is Article 11.3 of the Anti-Dumping Agreement  
which governs the reviews and not, for instance, Ar ticle 3.  China's reliance on the latter provision 
constitutes a legal error which, on its own, invalidates China's claims.  17. The imprecise nature of many of China's clai ms creates additional confusion.  Thus, in many 
cases the European Union is accused of misbehaviour without any re ference to particular rules of the 
GATT 1994  or the Anti-Dumping Agreement .  Again, in claims regardi ng supposed procedural errors, 
for example regarding allegations of improper dela ys on the part of the investigating authorities, 
China repeatedly confuses the applicab le provisions of Article 6 of the Anti-Dumping Agreement .  
 18. Also in the context of its procedural claims , China treats the criteria for according confidential 
treatment as though they were self-standing rules ra ther than ones that only had meaning within the 
                                                      
4 Brazil's Third Party Submission, para. 9.  To the same effect, see also Japan's Third Party Submission, 
para. 22. 
5 See EU Request for a Preliminary Ruling, para. 80, third sentence, in particular. 
6 To the same effect, see also U.S. Thir d Party Written Submission, paras. 21-25. WT/DS405/R 
Page C-14  
 
particular obligations of transp arency that are created by the Anti-Dumping Agreement .  Here again it 
includes lists of items that it finds unsatisfactory w ithout indicating in which particular respects they 
are alleged to infringe WTO rules.  As the res pondent Member the European Union will defend itself 
against properly formulated claims.  It is the r esponsibility of China, as the complainant Member, to 
identify with precision the specific obligations that it alleges the European Union to have infringed. 
 
19. Finally, China adds to the confusion created  by its Submission through arguments that are at 
times opportunistic and inconsiste nt.  For example, the meaning that it proposes for the term 
'information' in Article 6 of the Anti-Dumping Agreement fluctuates throughout the Submission, 
according to what best suits  China's current purpose.  
 
20. The task of the Panel in adjudicating on this  dispute, and that of the European Union in 
upholding the legality and correctness of its acti ons, have been unnecessarily complicated by these 
aspects of China's submission.  We will nevert heless seek to set out our arguments in as 
straightforward a way as possible.  
 
21. There will, no doubt, be opportunities to ra ise these issues in the course of the panel 
proceedings.  For the remainder of this short stat ement we intend to discuss matters for which such 
opportunities are more limited.   
V. LEGAL INTERPRETATIONS ADVANCED BY THIRD PARTIES 
 
22. To be specific, at this point we would like to consider the submissions made by the Third 
Parties.   23. We are, of course, heartened to see that, for the most part, the comments and arguments 
presented in these submissions support or agree with  the positions taken by the European Union.  
 24. At this moment, we will therefore concentrate on a few points in the submissions where we take a somewhat different view to that presented by Th ird Parties, as we consider it useful to highlight 
this before the Panel.  
25. First, we would comment upon the Submission of the United States, and in particular on its 
observation (at paragraph 30) that:   
Article 4.1 of the AD Agreement requires that the domestic industry account for at least a "major proportion" of the producti on of the like product and does not permit 
an investigating authority to exclude a por tion of the domestic industry that is an 
"important, serious, or significant"  proportion of domestic production. 
26. Since the matter is not, as far as we can see, crucial to the present dispute, we will not devote 
much time to it.  Suffice it to say that the aut horitative source relied upon by the United States to 
uphold its observation (paragraph 7.341 of the Panel Report Argentina – Poultry Anti-Dumping 
Duties ) in fact supports the opposite contention, as it sp ecifically envisages that there may be more 
than one 'major proportion' of an industry. 
 27. The second point that we want to bring to the Panel's attention is more closely connected with 
the matters at issue in this dispute.  It concerns the interpretation that Japan maintains (at paragraph 50 
of its Submission) should be given to Article 6.4 of the Anti-Dumping Agreement .  The Panel will 
recall that this provision states that: 
 
The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that  is relevant to the presentation of their 
cases, that is not confidential as defined in  paragraph 5, and that is used by the  WT/DS405/R 
 Page C-15 
 
 
authorities in an anti-dumping investigation, and to prepare presentations on the basis 
of this information. 
28. At this point in its Subm ission Japan addresses the scope of this obligation and concludes 
that:   
information, on which an authority did not base its decision and thus was not required 
to disclose under Article 6.9, still falls w ithin Article 6.4's disclosure requirement.' 
29. The justification for this conc lusion is that Article 6.9 of the Anti-Dumping Agreement , which 
also contains a disclosure obligation, refers to fact s 'which form the basis for the decision whether to 
apply definitive measures'.  The implicit assumption is that if the Agreement intended the obligation 
in Article 6.4 to cover information that 'formed th e basis' for the authorities' decision, it would have 
employed that term and it would not  have spoken of information that was 'used' by them.  However, in 
adopting this argument Japan effectively interprets  the latter term to mean information that was 
'available' or 'known' to the authorities.  Applying the same logic that Japan adopts one could say that 
if that had been its intention the Agreement could have  used either of those terms.  However, it did not 
do so.  
 30. Japan quotes the Panel Report EC – Salmon (Norway)  in support of its interpretation, but the 
quotation that it gives does not explain how a matter that the authorities should  use in an investigation 
becomes one that they do use, which is what Article 6.4 addresses.  
 VI. CONCLUSION 
 
31. Mr. Chairman, members of the Panel, that concludes the opening remarks of the European 
Union.  While it is of course the responsibility of Ch ina, as the complainant, to establish a case against 
us, and not for us to disprove one , we will nevertheless actively engage  in demonstrating to the Panel 
the lawfulness of the European Union's anti-dumpi ng legislation, and of the anti-dumping action it has 
taken in respect of certain footwear from China.  In this regard, we look forward to the opportunities 
that will be presented by the further stages of thes e proceedings, and in particular to responding to 
your questions.  Thank you for your attention.   WT/DS405/R 
Page C-16  
 
  
ANNEX C-3 
 
 
CLOSING STATEMENT OF CHINA 
 
 
1. China wishes to extend its sincere gratitude to the panel and the secretariat for its attention 
during the past days.  In its opening statement y esterday, China addressed several aspects pertaining 
to this dispute.  Notably pertaining to Article 17. 6(i), certain claims raised in the context of the 
original and review investigations and the 'as such' claims.  In this closing statement China will not repeat its arguments and will remain brief.  Chin a will highlight certain key points which have been 
the subject of some debate in the last two days. 
 2. First, with respect to the 17.6(i) claims, Ch ina will not reiterate its arguments as to why it 
considers that the Article can form the basis of a claim, but would like to stress again the specific 
legal question presented in this case is one of absolu te first impression before the Panel.  In neither 
Thailand - H-Beams,  which at least appears to support the EU's view, nor US - Hot Rolled Steel,  
which China considers to support its view , nor any of the other cases presented by the parties in 
support of their arguments on this point was an actua l violation of Article 17.6(i) alleged in a Panel 
request.  It is significant that the cases dealt with  Article 17.6(i) in relation to Articles already 
containing embedded due process language, such as Article  3.1.  None of the pertinent dicta contained 
therein control or relate directly to the issue before the panel.  
 3. Ultimately it appears as though both China and the EU agree that if the authorities are not 
bound to evaluate facts throughout the entire  investigation in an objective and unbiased manner, then 
the efficacy of the system is at risk.  China sees Article 17.6(i) as providing an overarching due-
process requirement with respect to factual determ inations made pursuant to the ADA, whereas the 
EU has stated it that considers that each  individual provision has such a requirement "embedded" 
within, though without explaining how such a requi rement would be given practical effect.  China 
considers it clear which of these two is the lesser administrative evil and looks forward to clarifying its position on the issue.   
4. In the course of the discussion concerning China' s claims with regard to Article 9(5) of the 
Basic AD Regulation, the EU has argued that the "i ndividual treatment" regime is somehow justified 
by Paragraph 15 of China's Protocol of Accession.  When questioned, the EU was, however, unable to 
point to any specific wording in the Paragraph wh ich would confirm that a Member may treat China 
differently with respect to the imposition of individual dumping duties, the calculation of individual dumping margins, or even the factual determination of  whether state is effectively the parent company 
of two or more exporters.  Para graph 15 of the Protocol only deals with one very limited issue, 
namely the possibility, for a limited time, for WT O Members to determine normal value on the basis 
of data other than the domestic prices and cost s in China.  Nothing more, nothing less.   
 5. The EU raised a very specific issue dur ing the debate concerning the scope of the 
applicability of Paragraph 151 of the Working Part y Report on China's accession to the WTO.  The 
EU considers that Paragraph 151(a) expressed the acceptance of only certain WTO Members, notably 
those that had not established and published criteria at  the time of China's ac cession to the WTO, for 
determining whether market economy conditions prev ailed in the industry or with respect to a 
company producing the like product, and the methodology that they used in determining price comparability.  The words of Paragraph 151(a) ho wever make it very clear that the acceptance 
contained therein was with respect to all WTO Member s.  It explicitly requires all Members to apply a  WT/DS405/R 
 Page C-17 
 
 
methodology that includes inter ali a, "guidelines that the investigating authorities should normally 
utilize " the prices or costs in one or more market economy countries that are significant producers of 
comparable merchandise and that either are at a le vel of economic development comparable to that of 
China or are otherwise an appropriate source for the pr ices or costs to be utilized in light of the nature 
of the industry under investigation.   
 
6. Moving to the injury related issues, China woul d like to recall that in the review investigation 
the EU made an injury determination and entirel y relied upon that determin ation to conclude the 
likelihood of continuation of injury.  In particul ar, 153 recitals of the Re view Regulation covering 
almost 21 pages exclusively discuss the injury determ ination of the EU and the likelihood analysis is 
contained in a mere five recitals of that Regul ation that follow the 153 recitals discussing the EU's 
injury determination.  Based on the facts contained in the Review Regulation and in light of the panel 
ruling in US - OCTG Sunset Reviews , China has claimed a breach of Article 3 provisions of the ADA 
and in consequence thereof a breach of Article 11.3 of the ADA.   
7. The EU noted again yesterday that the domestic industry comprised of complainants and non-
complainants.  China does not agree with this new ex post  definition of the domestic industry.  In the 
event the Panel were to accept the definition of th e domestic industry now claimed by the EU, China 
considers that a sample of the domestic industry selected only from th e pool of complainants and thus 
comprising only of the complainants cannot possi bly be considered representative of the entire 
domestic industry as a whole and is inconsistent with Articles 3.1 and 17.6(i) of the ADA. 
 
8. In the specific context of the procedural cl aims concerning the review investigation, China 
notes that the EU has mentioned for the first time during the course of the first substantive meeting 
with this Panel that five of the eight producers sa mpled in the review investigation did not provide 
non-confidential versions of the Community interest questionnaire responses.  While clearly this fact 
was not made known during the investigation, it was not even noted by the EU in its FWS.  This 
shows yet again the lack of transparency of the EU's anti-dumping practice.  9. Moreover, China wishes to note that contra ry to the arguments of the EU, it has been 
established by the panels in Guatemala - Cement II  and Korea - Paper , that 'good cause' must be 
'shown' by the interested party submitting the confid ential information.  This requirement extends to 
both information that is confidential by nature a nd that which is submitted on a confidential basis.  
 10. China once again thanks the Panel and the S ecretariat for their attention and the pertinent 
questions asked during this first meeting.  China remains at your disposal to provide any further information and evidence that may be required.   
 WT/DS405/R 
Page C-18  
 
 
ANNEX C-4 
 
 
CLOSING STATEMENT OF THE EUROPEAN UNION  
 
 
 The EU would like to thank again for agreeing to serve on this Panel and also thanks the 
WTO Secretariat for their efforts and assistance in this case.  
 We have three brief points we want to raise in our closing statement.  First, as you have 
correctly identified in the course of this first h earing, China seems to try to expand the obligations 
contained in the ADA or create obligations where ther e are none.  In this respect, we could refer to 
our discussion on Article 17(6)(i), Article 2.4 (fair  comparison and its application to the analogue 
country selection), the requirements under Article 3. 1 and its "automatic" inclusion in the cumulative 
examination in Article 3.3 ADA, or China's recogn ition yesterday that there are no obligations in 
para. 151 of China's Working Party Report.  We are sure that you will identify these instances in your 
examination of the case.   Second, we also want to bring yo ur attention to the issue of burde n of proof.  It is for China to 
make a prima facie case of what its claims.  Also  in accordance with the Pa nel's working procedures, 
today was the last time for China to bring all th e evidence to support its claims.  We respectfully 
request the Panel to take its mandate very seriously and while making an objective assessment of this case, refrain from entering into issues that China simp ly has decided not to address by this stage of the 
procedure.  This is in particular the case of like lihood of injury analysis in the Review Regulation. 
Even if Article 3 ADA were applicable to expiry reviews and were the Panel to find that China has 
established a violation of it, China never explained how or on the basis of which evidence that alleged 
violation amounted to a violation of Article 11. 3.  This is both a legal ground and a factual 
misunderstanding of the Review Regulation.    Finally, in its closing statement we just h eard China referring to para. 15 of its Protocol, 
saying that we have been unable to point to any specific wording which could confirm our approach 
under Article 9(5).  This is also wrong and ignores pa ra. 128 of our FWS which, of course, we invite 
China to read and comment on.   Once more thanks again for your attention a nd we look forward to continue assisting you in 
this dispute. 
 
 
_______________