WORLD TRADE  
ORGANIZATION  WT/DS397/3 
13 October 2009 
 
 (09-5005) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
 
Request for the Establishment of a Panel by China
 
 
 
 The following communication, dated 12 October 2009, from the delegation of China to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________ 
 
  On 31 July 2009, The People's Republic of Ch ina ("China") requested consultations with the 
European Communities (the "EC") pur suant to Articles 1 and 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  (the "DSU"), Article XXIII:1 of the General 
Agreement on Tariffs and Trade 1994  (the "GATT 1994") and Article 17.3 of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994  (the "AD 
Agreement") with respect to, but not necessarily lim ited to, Article 9(5) of  Council Regulation (EC) 
No. 384/96 of 22 December 1995
1 on Protection against Dumped Imports from Countries not 
Members of the European Community, as amended,  and 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.2 
  The request for consultations was circulated in document WT/DS397/1 – G/L/891 – G/ADP/D79/1 dated 4 August 2009. The consultati ons were held on 14 Se ptember 2009 in Geneva, 
with a view to reaching a mutually satisfactory so lution. Unfortunately, those consultations failed to 
lead to a satisfactory resolution of the matter. 
 
 Therefore, China hereby requests, pursuant to Articles 4 and 6 of the DSU , Article XXIII:2 of 
the GATT 1994  and Article 17.4 of the AD Agreement , that the Dispute Settlement Body ("DSB") 
establish a Panel with regard to the following measures:  
− Article 9(5) of Council Regulation (E C) No. 384/96 of 22 December 1995
1 on 
protection against dumped imports from countries not members of the EC, as amended. 
− 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
2.  
                                                      
1 OJ L 56, 6.3.1996, pp. 1-20. 
2 OJ L 29, 31.1.2009, p.1. WT/DS397/3 
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   China requests that the Panel have standard term s of reference as set out in Article 7.1 of the 
DSU. China asks that this request be placed on th e agenda for the next meeting of the Dispute 
Settlement Body that will take place on 23 October 2009.  
I. ARTICLE 9(5) OF COUNCIL REGU LATION (EC) NO. 384/96 OF 
22 DECEMBER 1995 ON PROTECTION AGAINST DUMPED IMPORTS FROM 
COUNTRIES NOT MEMBERS OF THE EC, AS AMENDED 
 Article 9(5) of the Council Regulation (E C) No. 384/96 of 22 December 1995 on protection 
against dumped imports from countries not members of the EC, as amended, (the " Basic AD 
Regulation ") provides that, in case of imports from non-market economy countries including China, 
the anti-dumping duty shall be specified for the s upplying country concerned and not for each supplier 
and that an individual duty will only be specified  for the exporters which can demonstrate, on the 
basis of properly substantiated claims, that they  fulfil all the criteria listed in that provision. 
  China submits that Article 9(5) of the Basic AD Regulation  is inconsistent as such with, at 
least, the obligations under the following provisions of the AD Agreement , the GATT 1994 and the  
Marrakesh Agreement Es tablishing the World Trade Organisation : 
 
− Articles 6.10 of the AD Agreement since, in order to benefit from an individual 
dumping margin, an exporter from China must fulfil specific conditions that are not provided for in the AD Agreement; 
− Article 9.2 of the AD Agreement since, in  order to benefit from an individual anti-
dumping duty, an exporter from China must fulfil specific conditions that are not 
provided for in the AD Agreement; 
− Article 9.3 of the AD Agreement since for those producers/exporters who do not 
fulfil the conditions for individual treatment, the anti-dumping duty is determined on the basis of a dumping margin likely to exceed the dumping margin established in 
accordance with Article 2 of the AD Agreement;  
− Article 9.4 of the AD Agreement given that  the anti-dumping duty that is applied to 
imports from producers/exporters who are not included in the sample is calculated on 
the basis of the dumping margins of the sampled producers/exporters, including 
dumping margins of those who do not qualify for individual treatment in accordance with Article 9(5) of the Basic AD Regulation;  
− Article I of the GATT 1994 since, by layi ng down additional conditions for Chinese 
exporters/producers to benefit from an indi vidual dumping margin and an individual 
anti-dumping duty, the EC fails to accord to China advantages granted to market 
economies; 
− Article XVI:4 of the Marrakesh Ag reement establishing the World Trade 
Organisation and Article 18.4 of the AD Ag reement since the EC has not taken all 
necessary steps, of a general or particular character, to ensure the conformity of its 
laws, regulations and administrative pro cedures with the provisions of the GATT 
1994 and the AD Agreement. 
− Article X:3(a) of the GATT by not administering the provisions of Article 9(5) of the 
Basic AD Regulation in a uniform, impartial and reasonable manner.  WT/DS397/3 
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  II. 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 (THE "DEFINITIVE REGULATION") 
 Through the Definitive Regulation, the EC established for Chinese producers/exporters of 
certain iron or steel fasteners dumping margins ra nging from 0% to 115,4% and imposed a definitive 
anti-dumping duty on imports of certain iron or steel fasteners originating in China ranging from 0% to 85%.   China submits that this measure is inconsistent , at least, with the following provisions of the 
AD Agreement  and of the GATT 1994 : 
 
− Article 6.1.1 of the AD Agreement and Part  I, paragraph 15 of the Protocol on the 
Accession of the People's Republic of China ("China's Protocol of Accession") and paragraph 151 (d) and (e) of the Worki ng Party Report on the Accession of China 
because the EC granted to Chinese exporters/p roducers only 15 days as of the date of 
publication of the Notice of Initiation in the O fficial Journal of the European Union to 
submit their completed questionnaires for Market Economy Treatment and Individual 
Treatment; 
− Articles 6.10 of the AD Agreement because the EC required Chinese exporters to 
demonstrate, on the basis of substantiated claims, that they fulfil all the "individual treatment" criteria listed in Article 9(5) of the Basic AD Regulation as a pre-requisite to benefit from an individual dumping margin;  
− Article 9.2 of the AD Agreement because the EC required Chinese exporters to 
demonstrate, on the basis of substantiated claims, that they fulfil all the "individual treatment" criteria listed in Article 9(5) of the Basic AD Regulation as a pre-requisite to benefit from an individual anti-dumping duty;  
− Article I of the GATT 1994 because the EC does not impose the individual treatment 
conditions listed in Article 9(5) of the B asic AD Regulation to exporters/producers 
from market-economy countries; 
− Article 12.2.2 of the AD Agreement and paragraph 151 (f) of the Working Party 
Report on the Accession of China because the EC failed to substantiate the reasons 
for accepting and/or rejecting the request of individual exporters/producers to benefit 
from individual treatment; 
− Article 5.4 of the AD Agreement becau se the EC initiated the anti-dumping 
proceeding on the basis of a complain t by the Community producers allegedly 
representing 27% of the total dom estic production in the EC while (i) the EC failed to 
examine properly before the initiation whethe r the application has been made by or 
on behalf of the domestic industry and (ii)  the EC improperly concluded that the 
application had been made by or on behalf of the domestic industry; 
− Articles 2.1 and 2.6 of the AD Agreement by including in the scope of the product 
under consideration both standard and special fasteners as "like" products despite their readily apparent differences and uses; WT/DS397/3 
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  − Article 2.4 of the AD Agreement and Artic le VI:1 of the GATT 1994 by failing to 
make a fair comparison between the export pr ice and the normal value; in particular, 
by failing to make a product comparis on on the full product control number and 
without making the necessary adjustments for differences physical or otherwise, affecting price comparability; 
− Article 2.4.2 of the AD Agreement and Article VI:1 of the GATT 1994 by excluding 
certain export sales from the dumping margin calculation; 
− Articles 3.1 and 3.2 of the AD Agreement because the EC failed to make a product 
comparison on the full product control numbe r and did not make the appropriate 
adjustments for the differences affecting price comparability when determining the 
price undercutting margin;  
− Articles 4.1, 3.1, 3.4 and 3.5 of the AD Ag reement because the EC failed to make an 
injury determination with respect to th e relevant domestic industry as defined in 
Article 4.1 of the AD Agreement and/or is  not based on positive evidence or does not 
include an objective examination in ac cordance with Article 3.1 of the AD 
Agreement: 
• The EC improperly excluded from the " domestic industry" all producers that 
did not make themselves known within 15 days from the date of initiation of the investigation or that did not support the complaint ; 
• The EC failed to include in "the domestic industry" domestic producers 
accounting for a major proportion of the total EC production;  
• The EC failed to determine which pr oportion of the total domestic production 
was represented by the EC producers constituting the domestic industry throughout the investigation period; 
• The EC conducted the injury determin ation on the basis of a sample of 
producers accounting for only 17.5 per cent of the total EC production of the like product in 2006; 
• The EC failed to exclude from the definition of the domestic industry 
producers that are related to producers/exporters or importers or are 
themselves importers of the allegedly dumped product. 
− Article 3.1, 3.2, 3.4 and 3.5 of the AD Agreement  because the EC failed to exclude 
from the volume of dumped imports, imports from Chinese producers that were found not to be dumping and by including in the volume of dumped imports all imports 
from non-sampled producers; 
− Articles 3.1, 3.2 and 3.4 of the AD Agreement  because the EC failed to make an 
objective examination of the impact of the alleged dumped imports on the domestic 
industry (including all relevant economic factors and indices having a bearing on the 
state of the industry) that is based on positive evidence; 
− Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement  by failing to weigh properly and 
reasonably factors other than the alleged dum ped imports in its examination of injury 
and causation, including imports from third countries, increasing costs of raw  WT/DS397/3 
 Page 5 
 
 
  materials, competition by EC producers not  supporting the complaint, and export 
performance of the EC producers; 
− Articles 6.2 and 6.4 of the AD Agreement  and paragraph 151 (c)(e) of the Working 
Party Report on the Accession of China  because the EC failed to ensure throughout 
the investigation to Chinese producers/exporte rs the full opportunity for the defence 
of their interests and failed to provide timely opportunities for them to see all 
information that is relevant to the presentation of their cases, including, but not limited to the composition of the domestic  industry, data concerning normal value 
determination, information on the adjustments for differences affecting price comparability, Eurostat data on the basis of  which are based the total EC production 
and EC consumption figures; 
− Articles 6.2 and 6.9 of the AD Agreement  because the EC failed to inform the 
interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures, including, but not limited to the following elements: data concerning the nor mal value determination and information 
on how the price comparison was carried out, including data on the adjustments for differences affecting price comparability;  
− Articles 6.2, 6.4, 6.5 and 6.5.1 of the AD Agreement  because the EC failed to ensure 
that domestic producers provided non-conf idential summaries of confidential 
information they submitted or because the EC wrongly treated information as being confidential, thereby preventing Chinese pr oducers to have the full opportunity for 
the defence of their interests; 
− Article 6.5 of the AD Agreement  because the EC disclosed the document entitled 
"Assessment of Market Economy Treatment Cl aims by nine producers in the PRC" 
(DG TRADE/H3/D(2008) that contains conf idential information which pertains to 
different Chinese producers that claimed MET. 
 The EC's measures th erefore nullify and impair benef its accruing to China under the AD 
Agreement , the GATT 1994 , the Marrakech Agreement Establis hing the World Trade Organisation  
and China's Protocol of Accession . 
 
 China requests that the panel be established with the standard terms of reference, in 
accordance with Article 7 of the DSU.    China asks that this request fo r the establishment of a panel be placed in the agenda for the 
next meeting of the Dispute Settlement Body, wh ich is scheduled to take place on 23 October 2009. 
 
 
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