WORLD TRADE  
ORGANIZATION  WT/DS397/1 
G/L/891 
G/ADP/D79/1 
4 August 2009 
 (09-3790) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
 
Request for Consultations by China
 
 
 
 The following communication, dated 31 July 2009, from the delegation of China to the delegation of the European Communities and to th e Chairman of the Dispute Settlement Body, is 
circulated in accordance with  Article 4.4 of the DSU. 
 
_______________ 
 
  My authorities have instructed me to request  consultations with the European Communities 
(the "EC") pursuant 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 limited to, the following EC measures:  
(a) Article 9(5) of Council Regulation (EC) No. 384/96 of 22 December 1995
1, as 
amended, on protection against dumped im ports from countries not members of the 
European Community (the " Basic AD Regulation "); 
(b) 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; 
 These measures appear to be inconsistent with  the EC's obligations under the provisions of 
the GATT 1994, the AD Agreement and the Protocol of Accession of the People's Republic of China ("China") which is an integral part of the Marrakech Agreement Establishing the World Trade 
Organization . 
 
1. Article 9(5) of the Basic AD Regulation  provides that in case of imports from non-market 
economy countries, the duty shall be specified fo r the supplying country concerned and not for each 
supplier and that an individual duty will only be sp ecified for exporters that demonstrate that they 
fulfil the criteria listed in that provision.  China considers that Article 9(5) of the Basic AD Regulation  
is inconsistent, as such, with the EC's obligations under Article XVI:4 of the Marrakesh Agreement 
Establishing the World Trade Organization;  Articles VI:1 and X:3(a) of the GATT 1994; 
Articles 6.10, 9.2, 9.3, 9.4, 12.2.2 and 18.4 of th e AD Agreement, since these provisions require an 
individual margin and duty to be determined and specified for each known exporter or producer. 
                                                      
1 OJ L 56, 6.3.1996, pp. 1-20. 
2 OJ L 29, 31.1.2009, p. 1. WT/DS397/1 
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  Furthermore, the criteria listed in Article 9(5) to obtain an individual duty are unreasonable and not 
objective.  Moreover, by imposing these conditions only to imports from, allegedly, non-market 
economy countries, the EC's measure is also discriminatory and thus contrary to Article I:1 of the 
GATT 1994.  
 2. China considers that the EC's imposition of anti-dumping duties on imports of certain iron or 
steel fasteners originating in the People's Republic of China  is inconsistent with the EC's obligations 
under Articles VI and X:3(a) of the GATT 1994;  Articles 1, 2.1, 2.2. 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 
5.4, 6.1, 6.2, 6.4, 6.5, 6.10, 9.2, 9.4 and 17.6(i)  of the AD Agreement as well as Part I, paragraph 15 of 
China's Protocol of Accession.   (i) The EC imposed a countrywide duty on th e sole basis that Ch ina is a non-market 
economy country and exempted from this duty only those few Chinese exporters that 
were able to meet the so-called "Indiv idual Treatment" criteria, thereby acting 
inconsistently with Articles 2, 6.10, 9.2, 9.3, 9.4 and 12.2.2 of the AD Agreement; 
  (ii) The EC granted only 15 days to Chinese exporters to submit their written reply to the 
Market Economy Treatment and Individual Treatment questionnaires contrary to the obligation provided for in Article 6.1.1 of the AD Agreement and Part I, paragraph 15 
of China's Accession Protocol; 
  (iii) The EC initiated the AD investigation with the support of producers accounting for 
only 27 per cent of the total domestic pr oduction, rendering the said investigation 
inconsistent with Article 5.4 of the AD Agreement; 
 
 (iv) The EC wrongly included, in the scope  of the product under consideration, both 
standard and special fasteners as "like" products, despite their readily apparent 
differences and uses, thereby acting inconsis tently with the provision of Article 2.1, 
as interpreted by Article 2.6, of the AD Agreement; 
 
 (v) The EC did not take into considerati on all appropriate adjustments affecting price 
comparability, in particular, by failing to make a product comparison on the basis of the full product control number, thereby acti ng inconsistently with Article 2.4 of the 
AD Agreement and Article VI:1 of the GATT 1994; 
 
 (vi) The EC based its injury determina tion on data from EC producers accounting for only 
27 per cent of the estimated total EC pr oduction of the product concerned in 2006, 
thereby acting inconsistently with Ar ticles 3 and 4.1 of the AD Agreement; 
  (vii) The EC failed to determine which proportion of the total domestic production was 
represented by the EC producers in relation to which the injury determination was 
made throughout the investigation period,  thereby acting inconsistently with 
Articles 3 and  4.1 of the AD Agreement; 
  (viii) The EC conducted the injury determinat ion on the basis of a sample of EC producers 
accounting for only 17.5 per cent of the total EC production of the product at issue in 
2006, thereby acting inconsistently with Ar ticles 3 and 4.1 of the AD Agreement; 
  (ix) The EC failed to exclude from the scope  of the domestic industry EC producers that 
are related to the exporters or importers or  are themselves importers of the allegedly  WT/DS397/1 
 G/L/891 
 G/ADP/D79/1 
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  dumped product, thereby acting inconsiste ntly with Articles 3 and 4.1 of the 
AD Agreement; 
 
 (x) The EC failed to exclude from the vol ume of imports, for injury determination 
purposes, non-dumped imports, thereby acting in consistently with Article 3.1 and 3.2 
of the AD Agreement and Article VI:1 of the GATT 1994; 
   (xi) The injury determination failed to be  based on positive evidence and to involve an 
objective examination since, in analyzing the economic factors and indices, the EC 
disregarded the multiple positive trends and figures shown by most factors and 
focused its decision on the sole factor that showed a negative trend, i.e. market share, 
thereby acting inconsistently with Arti cle 3.1 and 3.4 of the AD Agreement and 
Article VI:1 of the GATT 1994; 
 
 (xii) The EC failed to weigh, properly and reasonably, factors other than the alleged 
dumped imports in its examination of inju ry and causation, in particular, imports 
from third countries, increasing costs of raw materials, and export performance of the EC community, thereby acting contrary to Article 3.5 of the AD Agreement; 
 
 (xiii) The EC disclosed the "Assessment of Market Economy Treatment Claims by nine 
producers in the PRC"(DG TRADE/H3/D(2008)), containing relevant confidential information which pertains to diffe rent Chinese producers, thereby acting 
inconsistently with Article 6.5 of the AD Agreement; 
 
 (xiv) The EC failed to provide the opportunity to the interested parties to see all relevant 
information including, but not limited to, the identity of the applicants, non-confidential summaries of the questionnaire responses of EC producers, data concerning the normal value in the analogue country and information on the adjustments for differences affecti ng price comparability, thereby acting 
inconsistently with Article 6.2, 6.4 a nd 6.5 of the AD Agreement and Part I, 
paragraph 15 of China's Protocol of Accession. 
 3. The EC's measures also appear to nullify or im pair the benefits accruing to China directly or 
indirectly under the cited agreements.  
4. China reserves its right to raise a dditional factual matters and legal claims  during the course 
of the consultations.  5. China looks forward to receiving your reply to  the present request and to fixing a mutually 
convenient date and venue  for consultations. 
 
__________