WORLD TRADE  
ORGANIZATION  WT/DS337/R 
16 November 2007 
 (07-4854) 
 Original:   English 
  
 
     
 
    
 
EUROPEAN COMMUNITIES – ANTI-DUMPING MEASURE 
ON FARMED SALMON FROM NORWAY 
 
 
Report of the Panel 
 
 
 
 
  
 WT/DS337/R 
Page i 
 
 
TABLE OF CONTENTS 
Page  
 
I. INTRODUCTION ................................................................................................................ ...................1  
A. COMPLAINT OF NORWAY ...........................................................................................................................1  
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL ..................................................................................1  
C. PANEL PROCEEDINGS ............................................................................................................................... ..2 
II. FACTUAL ASPECTS................................................................................................................ .............2  
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS .......................................4  
A. NORWAY ............................................................................................................................... .....................4  
B. EUROPEAN COMMUNITIES ..........................................................................................................................6  
IV. ARGUMENTS OF THE PART IES....................................................................................................... 8 
A. FIRST WRITTEN SUBMISSION OF NORWAY .................................................................................................8  
1. Introduc tion................................................................................................................... ........................8  
2. Summary of Norway's Claims ..................................................................................................... ........10  
(a) Improper definition of the product under considera tion, and improper initiation of the investigation 
(Section III of the brief) ..................................................................................................... .........................10  
(b) Flawed definition of domestic industry and incorrect use of sampling for injury purposes 
(Section IV of  the brief)...................................................................................................... ........................11  
(c) The EC's dumping determinations violate the Anti-Dumping Agreement in numerous respects 
(Sections V and XI  of the brief)............................................................................................... ...................12  
(d) The EC's injury determination viol ates the Anti-Dump ing Agreem ent ......................................................14  
(e) The EC's causation determination violates Article s 3.1 and 3.5 ................................................................. 15 
(f) The EC's use of minimum import prices and fixed duties violates the Anti-Dumping Agreement.............15  
(g) The EC violated its procedural obligations under Articles 6 and 12 of the Anti-Dumping Agreement ......16  
3. Conclusion ..................................................................................................................... .....................17  
B. FIRST WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES .............................................................17  
1. Introduc tion................................................................................................................... ......................17  
2. Standard of  Review ............................................................................................................. ................17  
3. Product Concerned .............................................................................................................. ...............17  
4. Domestic Industry .............................................................................................................. .................17  
5. Initiatio n..................................................................................................................... .........................18  
6. Dumping........................................................................................................................ ......................18  
(a) Limiting the examinati on under Artic le 6.10 .................................................................................... ..........18  
(b) Below cost sales and Ar ticles 2.2 and 2.2.1.................................................................................... ............18  
(c) SG&A and profits a nd Article 2.2.2............................................................................................. ...............18  
(d) Use of facts available and Article 6.8 a nd Annex II............................................................................ ........19  
(e) Treatment of non-investigated companies and Articles 6.8 and 9.4 and An nex II......................................19  
7. Injury......................................................................................................................... ..........................20  
8. Causation ...................................................................................................................... ......................21  
9. Minimum Impor t Prices .......................................................................................................... ............22  
10. Fixed Duties ................................................................................................................... .....................22  
11. Procedural Re quirements........................................................................................................ ............22  
12. Normal Value and Producers' Costs.............................................................................................. .....23  
13. Conclusion and Findings Requested .............................................................................................. .....24  
C. FIRST ORAL STATEMENT OF NORWAY .....................................................................................................25  
1. Introduc tion................................................................................................................... ......................25  
2. Inadmissible Evidence and Ex  Post Rationa lization ...........................................................................26  
3. The Product Under Consideration................................................................................................ ......26  
4. Domestic Industry .............................................................................................................. .................26  
5. Dumping Dete rmina tion.......................................................................................................... ............27  
6. Injury......................................................................................................................... ..........................28  
7. Causation ...................................................................................................................... ......................29  
8. MIPs........................................................................................................................... .........................29  
9. Fixed Duties ................................................................................................................... .....................29  
10. Procedural Re quirements........................................................................................................ ............29  WT/DS337/R  
Page ii  
 
11. Cost Adjustments............................................................................................................... ..................30  
D. FIRST ORAL STATEMENT OF THE EUROPEAN COMMUNITIES ....................................................................30  
1. Introduc tion................................................................................................................... ......................30  
2. Standard of  Review ............................................................................................................. ................31  
(a) Domestic industry.............................................................................................................. .........................31  
(b) Dumping issues................................................................................................................. ..........................32  
(c) Injury ......................................................................................................................... .................................32  
(d) Causation ...................................................................................................................... ..............................33  
(e) Producers' costs............................................................................................................... ............................33  
3. Conclusion ..................................................................................................................... .....................34  
E. SECOND WRITTEN SUBMISSION OF NORWAY ...........................................................................................34  
1. Introduc tion................................................................................................................... ......................34  
2. Seven of the EC's New Exhibits are Inadmissible and Support Improper Ex Post Rationalizations...35  
3. Standard of  Review ............................................................................................................. ................35  
4. The EC Incorrectly Defined the Product Under Consideration..........................................................36  
5. The EC Incorrectly Defined the Domestic Industry ............................................................................36  
6. The EC's Dumping Determ inations Ar e Flawed .................................................................................37  
(a) The EC's selection of the sample of Norwegian pr oducers violated Article 6.10 of the Anti-Dumping 
Agreement ...................................................................................................................... ............................37  
(b) The EC violated Articles 2.2 and 2.2.1 of the Anti- Dumping Agreement by failing to determine that 
 below cost sales were made at prices that did not pe rmit the recovery of costs within a reasonable 
 period of  time................................................................................................................ ..............................38  
(c) The EC violated Article 2.2.2 by improperly re jecting actual sales data because of the low 
 volume of sales .. ............................................................................................................ ............................38  
(d) The EC violated Article 6.8 and Annex II of the Anti-Dumping Agreement in its use of facts available 
 to determine norma l value for Grieg........................................................................................... ................39  
(e) The EC's treatment of non-sampled companies viol ates Articles 6.8 and 9.4 of the Anti-Dumping 
 Agreement ..................................................................................................................... .............................39  
7. The EC's Injury Determination Violated Ar ticle 3 of the Anti-Dumping Agreement ..........................40  
(a) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination of the 
 volume of dum ped im ports ...................................................................................................... ...................40  
(b) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination of price 
undercut ting................................................................................................................... .............................40  
(c) The EC violated Articles 3.1 and 3.4 of the Anti-Du mping Agreement because it failed to evaluate 
objectively price trends affecting EC  produc ers ................................................................................ .........40  
8. The EC Violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in Concluding that 
Dumped Imports Caused Material Inju ry to the EC Dome stic Industry .............................................40  
9. The MIPs Imposed by the EC Violate Article VI:2 of the GATT 1994 and Article 9 of the Anti-
Dumping Agreement.............................................................................................................. ..............41  
10. The EC's Fixed Duties Are in Violation of Articles 9.1, 9.2, and 9.3 of the Anti-Dumping 
 Agreement ... ................................................................................................................. ......................41  
11. The EC Violated the Procedural Requirements in Articles 6 and 12 of the Anti-Dumping 
 Agreement...... ............................................................................................................... ......................42  
12. The EC's Determination of Normal Value Violated Article 2 of the Anti-Dumping Agreement 
 because of Improper Adjustment s to Individually Examined Pr oducers' Cost Related Data .............42  
(a) Introduc tion ................................................................................................................... .............................42  
(b) The EC's improper inclusion of NRC and oper ating losses in the co sts of pr oduction ...............................43  
(c) Averaging of NRC over a three year period for severa l companies............................................................43  
(d) The EC's improper adjustments relating to finance costs and smolt cost....................................................44  
(e) The EC's improper adjustments rela ting to SG&A cost s for [[ XXX]] ........................................................44  
(f) The EC's improper adjustments relating to costs of purchased salmon for [[XXX]] ..................................44  
13. Conclusion ..................................................................................................................... .....................44  
F. SECOND WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES ..........................................................44  
1. Terms of Re ference............................................................................................................. .................45  
2. Product Concerned .............................................................................................................. ...............45  
3. Domestic Industry .............................................................................................................. .................46  
4. Dumping Dete rmina tion.......................................................................................................... ............46  
(a) Article 6.10 of the AD Agreement............................................................................................... ...............46  
(b) Article 2.2.1 .................................................................................................................. ..............................47  
(c) Disregardi ng sales............................................................................................................. ..........................47  
(d) Facts available ................................................................................................................ ............................47  
(e) Treatment of non-sa mpled companies ............................................................................................. ...........48  WT/DS337/R 
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5. Domestic Industry and Article  3 of the AD Agreement .......................................................................48  
(a) EC definition of domestic industry did not and coul d not violate the provisions of Article 3 of the 
 AD Agreement.................................................................................................................. ..........................48  
(b) The EC sampling of the domestic industry is in accordance with the AD Agr eement................................48  
6. Injury......................................................................................................................... ..........................49  
(a) EC correctly determined th e volume of dumped im ports........................................................................... .49 
(b) The EC properly examin ed price-unde rcutting.................................................................................... .......49  
(c) The EC Properly Eval uated Price Trends ......................................................................................... ..........49  
7. Causation ...................................................................................................................... ......................49  
(a) Effect of "smaller less efficient producers in  the EC and higher co st of produ ction" .................................49  
(b) Imports of wild salmon from Ca nada and the Un ited States....................................................................... 50 
8. MIPs........................................................................................................................... .........................50  
(a) MIPs and nor mal values......................................................................................................... .....................50  
(b) Limits on MIPs ................................................................................................................. ..........................50  
9. Fixed Duties ................................................................................................................... .....................50  
10. Cost Adjustments............................................................................................................... ..................50  
(a) 'Improper inclusion of all NRC in the costs of  production'..................................................................... ....50 
(b) 'The EC's defence is premised  on factual in accuracies'......................................................................... ......51  
11. Procedural Re quirements........................................................................................................ ............51  
(a) Access to information under Article  6.4 of the AD  Agreement..................................................................51  
(b) Disclosure of essential facts under Article 6.9 of th e AD Agreement.........................................................52  
(c) Obligation to provide a reasoned and adequate explanation under Article 12.2 of the AD Agreement ......53  
G. SECOND ORAL STATEMENT OF NORWAY .................................................................................................54  
1. Introduc tion................................................................................................................... ......................54  
2. The Panel Cannot Conduc t a de novo Review ....................................................................................54  
3. The Product Under Consideration................................................................................................ ......54  
4. Domestic Industry .............................................................................................................. .................55  
5. Dumping........................................................................................................................ ......................55  
(a) The EC Acted Inconsistently with Artic le 6.10 in Compos ing the Sample.................................................55  
(b) The EC's Failure to Perform the Cost Recovery Test under Article 2. 2.1...................................................56  
(c) The EC Improperly Excluded Domestic Sa les under Articles 2.2 and 2.2.2...............................................56  
(d) The EC Improperly Applied Fa cts Available to Grieg............................................................................. ...56 
(e) The EC Violated Articles 9.4 and 6.8 with  Respect to Non-Sa mpled Companies......................................56  
6. Injury......................................................................................................................... ..........................57  
(a) The EC Improperly Determined th e Volume of Du mped Im ports..............................................................57  
(b) The EC Improperly Examin ed Price U ndercutting .................................................................................. ...57 
(c) The EC Incorrectly An alyzed Price Trends ....................................................................................... .........57  
7. Causation ...................................................................................................................... ......................57  
8. The EC'S MIPs Exceed the Individua lly Determined Normal Values.................................................57  
9. The EC's Fixed Duties Exceed the Margin of Dumping......................................................................58  
10. Procedural Re quirements........................................................................................................ ............58  
11. The EC's Improper Cost Adjustments ............................................................................................. ....59 
(a) The EC's Inclusion of Non-Recurring Costs and Operating Losses in the Cost of Pr oduction ...................59  
(b) The EC Has No Justification for the Three-Year Averaging of Non-Recurring Costs (NRC) 
 and Financ e Costs ............................................................................................................. ..........................59  
12. Conclusion ..................................................................................................................... .....................60  
H. SECOND ORAL STATEMENT OF THE EUROPEAN COMMUNITIES ................................................................60  
1. Standard of  Review ............................................................................................................. ................60  
2. Product........................................................................................................................ ........................60  
3. Domestic Industry .............................................................................................................. .................60  
4. Dumping Issues................................................................................................................. ..................60  
(a) Selection of Norw egian pr oducers............................................................................................... ...............60  
(b) Articles 2.2 and 2.2.1......................................................................................................... .........................61  
(c) Rejection of data relating to  prices – Ar ticle 2.2.2........................................................................... ...........61  
(d) Article 6.8 and Annex II as regard s [BCI] ...................................................................................... ............62  
(e) Non-investigated  companies..................................................................................................... ..................62  
5. Injury......................................................................................................................... ..........................62  
6. Causation ...................................................................................................................... ......................62  
7. MIPs........................................................................................................................... .........................62  
8. Fixed Duties ................................................................................................................... .....................62  
9. Procedural Re quirements........................................................................................................ ............63  
(a) Record of the investigation .................................................................................................... .....................63  WT/DS337/R  
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(b) Information on e ssential facts ................................................................................................. ....................63  
10. Costs.......................................................................................................................... ..........................63  
(a) Introduc tion ................................................................................................................... .............................63  
(b) Inclusion of non-recurring cost s (NRC) and oper ating losses.................................................................... .63 
(c) Averaging of NRC over a three year period for severa l companies............................................................64  
(d) The EC's adjustments rela ting to finance costs ................................................................................. ..........64  
(e) The EC's adjustments re lating to smolt cost.................................................................................... ............64  
(f) The EC's adjustments relating to SG&A cost s for [BCI].......................................................................... ..65 
(g) The EC's improper adjustments relating to costs of purchased salmon for [BCI].......................................65  
(h) CNV Adjustme nt Claims .......................................................................................................... ..................65  
V. ARGUMENTS OF THE THIRD PARTIES.......................................................................................65  
A. CANADA ............................................................................................................................... ....................65  
1. Written Submission  of Canada................................................................................................... .........65  
2. Oral Statemen t of Ca nada....................................................................................................... ............65  
(a) Introduc tion ................................................................................................................... .............................65  
(b) Argument....................................................................................................................... .............................66  
(c) Conclu sion..................................................................................................................... .............................67  
B. CHINA ............................................................................................................................... .......................67  
1. Written Submission  of China.................................................................................................... ...........67  
2. Oral Statemen t of Ch ina........................................................................................................ ..............69  
(a) Sampling in injury  investigation............................................................................................... ..................69  
(b) The minimum import prices (M IPs) imposed by the EC ............................................................................7 0 
C. HONG KONG, CHINA ............................................................................................................................... .70 
1. Written Submission of Hong Kong, China ......................................................................................... .70 
(a) Introduc tion ................................................................................................................... .............................70  
(b) Sampling of domestic industry in injury de termination.......................................................................... ....70 
(c) Exclusion of (non-producing) expor ters in dumping de termination ...........................................................72  
(d) Conclu sion..................................................................................................................... .............................72  
2. Oral Statement of Hong Kong, China, China .....................................................................................7 3 
D. JAPAN ............................................................................................................................... ........................73  
1. Written Submission  of Japan.................................................................................................... ...........73  
(a) EC's definition of the domestic  industry and Article 4.1....................................................................... ......74  
(b) EC's sampling techniques rega rding the domes tic indus try ....................................................................... .74 
(c) EC's use of minimum import pric es (MIPs) and fixed dut ies...................................................................... 74 
(d) Residual dumping margin applie d to the unknown producer s ....................................................................75  
(e) The EC's consideration of othe r factors in cau sation analysis.................................................................. ...75 
2. Oral Statemen t of Japan........................................................................................................ ..............75  
(a) Introduc tion ................................................................................................................... .............................75  
(b) Arguments ...................................................................................................................... ............................75  
(c) Conclu sion..................................................................................................................... .............................78  
E. KOREA ............................................................................................................................... ......................78  
1. Written Submission  of Korea.................................................................................................... ...........78  
(a) Introduc tion ................................................................................................................... .............................78  
(b) Legal Ar guments ................................................................................................................ ........................78  
(c) Conclu sion..................................................................................................................... .............................80  
2. Oral Statement of Korea ........................................................................................................ .............80  
F. UNITED STATES ............................................................................................................................... .........80  
1. Written Submission of the United States ........................................................................................ .....80  
(a) Scope and definition of  domestic industry...................................................................................... ............80  
(b) Determination of dum ping....................................................................................................... ...................81  
(c) Determination of injury ........................................................................................................ ......................83  
2. Oral Statement of the United States ............................................................................................ ........84  
(a) Transparency................................................................................................................... ............................84  
(b) Product under cons ideration .................................................................................................... ...................85  
VI. INTERIM REVIEW ................................................................................................................. ............85  
A. REVIEW REQUESTED BY NORWAY ............................................................................................................86  
B. REVIEW REQUESTED BY THE EC ...............................................................................................................92  
VII. FINDINGS ....................................................................................................................... ....................100  
A. INTRODUCTION ............................................................................................................................... ........100  WT/DS337/R 
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B. RELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW , TREATY INTERPRETATION  
AND BURDEN OF  PROOF .........................................................................................................................101  
1. Standard of  Review ............................................................................................................. ..............101  
2. Relevant Principles of Treaty Inte rpretation................................................................................... ..102 
3. Burden of Proof................................................................................................................ .................103  
C. ALLEGED INCONSISTENCY OF THE EC 'S DETERMINATION OF THE "PRODUCT UNDER CONSIDERATION " 
WITH  ARTICLES  2.1  AND 2.6 OF THE AD  AGREEMENT .............................................................................103  
1. Arguments of the Parties....................................................................................................... ............103  
(a) Norway ......................................................................................................................... ............................103  
(b) European Co mmunities........................................................................................................... ..................106  
2. Arguments of the Third Parties ................................................................................................. ........109  
(a) Korea .......................................................................................................................... ..............................109  
(b) United States.................................................................................................................. ...........................110  
3. Evaluation by the Panel ........................................................................................................ ............111  
D. ALLEGED INCONSISTENCY OF THE EC'S DETERMINATION OF THE DOMESTIC INDUSTRY WITH 
ARTICLE  4.1  OF THE AD A GREEMENT ...................................................................................................120  
1. Arguments of the Parties....................................................................................................... ............120  
(a) Norway ......................................................................................................................... ............................120  
(b) European Co mmunities........................................................................................................... ..................123  
2. Arguments of the Third Parties ................................................................................................. ........125  
(a) China.......................................................................................................................... ...............................125  
(b) Hong Kong, China ............................................................................................................... .....................126  
(c) Japan.......................................................................................................................... ...............................126  
(d) United States.................................................................................................................. ...........................127  
3. Evaluation by the Panel ........................................................................................................ ............128  
E. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF DUMPING WITH 
THE AD A GREEMENT .............................................................................................................................13 7 
1. Alleged Inconsistency of the EC's Limited Examina tion with Article 6.10 of the AD Agreement .....137  
(a) Alleged insufficiency of Norway's  request for es tablishment ...................................................................1 37 
(b) Arguments of the parties....................................................................................................... ....................139  
(c) Arguments of the third parties ................................................................................................. .................141  
(d) Evaluation by the Panel ........................................................................................................ ....................141  
2. Alleged Inconsistency of the EC's Determination that Certain Below-Cost Sales Were Outside 
of the Ordinary Course of Trade with Artic les 2.2.1 and 2.2 of th e AD Agreement .........................156  
(a) Arguments of the parties....................................................................................................... ....................156  
(b) Arguments of the third parties ................................................................................................. .................158  
(c) Evaluation by the Panel ........................................................................................................ ....................159  
3. Alleged Inconsistency of the EC's Exclusion of Actual SG&A and Profit Data in the Calculation 
of Normal Value with Articles 2.2.2 and 2.2 of the AD  Agreement...................................................176  
(a) Arguments of the parties....................................................................................................... ....................176  
(b) Arguments of the third parties ................................................................................................. .................178  
(c) Evaluation by the Panel ........................................................................................................ ....................178  
4. Alleged Inconsistency of the EC's Reliance on "Facts Available" in the Calculation of Grieg 
Seafood's Normal Value with Article 6.8 and Paragraphs 3 and 6 of Annex II of the AD Agreement .... .............................................................................................................. ................188
 
(a) Arguments of the parties....................................................................................................... ....................188  
(b) Arguments of the third parties ................................................................................................. .................189  
(c) Evaluation by the Panel ........................................................................................................ ....................190  
5. Alleged Inconsistency of the EC's Determination of Margins of Dumping and Anti-Dumping 
Duties for Non-Investigated Companies with Articles 9.4(i) and 6.8, and Paragraph 1 
of Annex II, of the AD Agreement ............................................................................................... ......206  
(a) Arguments of the parties....................................................................................................... ....................206  
(b) Arguments of the third parties ................................................................................................. .................209  
(c) Evaluation by the Panel ........................................................................................................ ....................209  
F. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF CONSTRUCTED 
NORMAL VALUE WITH THE AD A GREEMENT ........................................................................................225  
1. Alleged Inconsistency of the EC's Treatment of  Non-Recurring Costs with Articles 2.1, 2.2 
and 2.2.1.1 of the AD Agreement ................................................................................................ ......225  
(a) Arguments of the Parties....................................................................................................... ....................225  
(b) Arguments of the Third Parties................................................................................................. ................228  
(c) Evaluation by the Panel ........................................................................................................ ....................228  WT/DS337/R  
Page vi  
 
2. Alleged Inconsistency of the EC's Treatment of Finance Costs With Article 2.2 of the 
 AD Agreement ... .............................................................................................................. .................241  
(a) Arguments of the Parties....................................................................................................... ....................241  
(b) Evaluation by the Panel ........................................................................................................ ....................242  
3. Alleged Inconsistency of the EC's Treatment of Smolt Costs With Articles 2.2 and 2.2.1.1 
of the AD Agreement ............................................................................................................ .............248  
(a) Arguments of the Parties....................................................................................................... ....................248  
(b) Evaluation by the Panel ........................................................................................................ ....................249  
4. Alleged Inconsistency of the EC's Treatment of Selling, General and Administrative Expenses 
with Article 2.2.2 of  the AD Agreement......................................................................................... ....255  
(a) Arguments of the Parties....................................................................................................... ....................255  
(b) Evaluation by the Panel ........................................................................................................ ....................256  
5. Alleged Inconsistency of the EC's Treatment of [[XXX]] Purchased Salmon Costs with 
Articles 2.2 and 2.2.1.1 of the AD Agreement................................................................................... 263 
(a) Arguments of the Parties....................................................................................................... ....................263  
(b) Evaluation by the Panel ........................................................................................................ ....................264  
G. ALLEGED INCONSISTENCY OF THE EC'S INJURY DETERMINATION WITH ARTICLES  3.1,  3.2,  3.4,  AND 
3.5 OF THE AD A GREEMENT ..................................................................................................................264  
1. Arguments of the Parties....................................................................................................... ............264  
(a) Norway ......................................................................................................................... ............................264  
(b) European Co mmunities........................................................................................................... ..................265  
2. Evaluation by the Panel ........................................................................................................ ............267  
(a) Volume of dum ped im ports ....................................................................................................... ...............267  
(b) Price undercutting a nd price trends............................................................................................ ...............272  
H. ALLEGED INCONSISTENCY OF THE EC'S CAUSATION DETERMINATION ..................................................275  
1. Arguments of the Parties....................................................................................................... ............275  
(a) Norway ......................................................................................................................... ............................275  
(b) European Co mmunities........................................................................................................... ..................276  
2. Evaluation by the Panel ........................................................................................................ ............277  
I. ALLEGED INCONSISTENCY OF THE EC'S DECISION TO APPLY MINIMUM IMPORT PRICES AND FIXED 
DUTIES WITH ARTICLE  VI:2  OF THE GATT  1994  AND ARTICLES  9.1,  9.2,  9.3 AND 9.4 OF THE 
AD A GREEMENT ............................................................................................................................... .....282  
1. Alleged Inconsistency of the Imposition of Minimum Import Prices with Articles 9.1, 9.2, 
9.3 and 9.4(ii) of the AD Agreement an d Article VI:2 of the GATT 1994 .........................................282  
(a) Arguments of the Parties....................................................................................................... ....................282  
(b) Arguments of the third parties ................................................................................................. .................285  
(c) Evaluation by the Panel ........................................................................................................ ....................286  
2. Alleged Inconsistency of the Imposition Of Fixed Duties with Articles 9.1, 9.2 and  9.3 of the 
AD Agreement................................................................................................................... ................304  
(a) Arguments of the Parties....................................................................................................... ....................304  
(b) Evaluation by the Panel ........................................................................................................ ....................305  
J. ALLEGED INCONSISTENCY OF THE EC'S CONDUCT OF THE PROCEEDINGS WITH ARTICLES  6.2, 
6.4,  6.9,  12.2  AND 12.2.  OF THE AD A GREEMENT ...................................................................................307  
1. Alleged Inconsistency with  Articles 6. 4 and 6.2................................................................................ 307 
(a) Arguments of the parties....................................................................................................... ....................307  
(b) Arguments of th ird par ties ..................................................................................................... ...................309  
(c) Evaluation by the Panel ........................................................................................................ ....................309  
2. Alleged Inconsistency with  Articles 6. 9 and 6.2................................................................................ 312 
(a) Arguments of the parties....................................................................................................... ....................312  
(b) Evaluation by the Panel ........................................................................................................ ....................315  
3. Alleged Inconsistency with Articles 12.2 an d 12.2.2.........................................................................320  
(a) Arguments of the parties....................................................................................................... ....................320  
(b) Evaluation by the Panel ........................................................................................................ ....................322  
4. Allegedly Inadmissible Exhibits  Submitted to th e Panel ...................................................................324  
VIII. CONCLUSIONS AND RE COMMENDATIO N...............................................................................332  
A. CONCLUSIONS ............................................................................................................................... .........332  
B. RECOMMENDATION ............................................................................................................................... .337 WT/DS337/R 
Page vii 
 
 
LIST OF ANNEXES 
 
              P a g e  
Annex A-1 Request for Consultati ons by Norway & Addendum A-1 
Annex A-2 Request for the Establis hment of a Panel by Norway A-6 
Annex A-3 Working Procedures for the Panel  A-10 
Annex A-4 Additional Working Procedures of the Panel Concerning 
Business Confidential Information A-13 WT/DS337/R  
Page viii  
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Ceramic 
Tiles  Panel Report, Argentina – Definitive Anti-Dum ping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 5 November 2001, 
DSR 2001:XII, 6241 
Argentina – Poultry Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Australia – Salmon  Appellate Body Report, Australia – Measures Af fecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998: DSRIII, 
3327 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 
25 September 1997, DSR 1 997:II, 591 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049 
EC – Bed Linen  Panel Report, European Communities – Anti-Du mping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, 
modified by Appellat e Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recour se to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 
2003:III, 965  
EC – Bed Linen  
(Article 21.5 – India)  Panel Report, European Communities – Anti-Du mping Duties on Imports of 
Cotton-Type Bed Linen from India – R ecourse to Article 21.5 of the DSU  by 
India , WT/DS141/RW, adopted 24 April 2003, modified by Appellate Body 
Report, WT/DS141/AB/RW, DSR 2003:IV, 1269  
EC – Computer 
Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998; DSR 1998:V, 1851 
EC – Countervailing Measures on DRAM 
Chips Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R, 
adopted 3 August 2005 
European Communities – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on 
Sugar, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 
19 May 2005 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 
18 August 2003, modified by Appe llate Body Report, WT/DS219/AB/R, 
DSR 2003:VII, 2701 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar 
from Turkey , WT/DS211/R, adopted 1 Oc tober 2002, DSR 2002:VII, 2667 WT/DS337/R 
Page ix 
 
 
Short Title Full Case Title and Citation 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti-D umping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, 5295 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277. 
Japan – Alcoholic Beverages II
  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1998:I, 97  
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper 
from Indonesia , WT/DS312/R, adopted 28 November 2005 
Korea – Dairy  Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products , WT/DS98/R and Corr.1, adopted 12 January 2000, 
modified by Appellat e Body Report, WT/DS98/AB/R, DSR 2000:I, 49 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on 
Beef and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005 
Mexico – Anti-Dumping Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/R, adopted 
20 December 2005, modified by Appellate Body Report, WT/DS295/AB/R 
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R and Corr.1, adopted 
24 February 2000, DSR 2000:III, 1345 
Mexico – Corn Syrup  (Article 21.5 – US)
  Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 
21 November 2001 
Mexico – Steel Pipes and Tubes Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from 
Guatemala ("Mexico – Steel Pipes and Tubes") , WT/DS331/R, adopted 
24 July 2007 
US – Anti-Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted 
28 November 2005  
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
3779 WT/DS337/R  
Page x  
 
Short Title Full Case Title and Citation 
US – Corrosion-Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3  
US – Cotton Yarn  Appellate Body Report, United States – Transitional  Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R, adopted 
5 November 2001, DSR 2001:XII, 6027 
US – Countervailing Duty Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation 
on Dynamic Random Access Memory Semiconductors (DRAMS) from 
Korea , WT/DS296/AB/R, adopted 20 July 2005 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, 4697 
US – Hot-Rolled Steel Panel Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 
modified by Appellat e Body Report, WT/DS184/AB/R, DSR 2001:X, 4769 
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, ad opted 16 May 2001, DSR 2001:IX, 
4051 
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403 
US – Offset Act  
(Byrd Amendment ) Appellate Body Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 
27 January 2003, DSR 2003:I, 375 
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubul ar Goods from Argentina , 
WT/DS268/AB/R, adopted 17 Decem ber 2004,  DSR 2004:VII, 3257 
US – Oil Country Tubular 
Goods Sunset Reviews (Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina  – Recourse to 
Article 21.5 of the DSU by Argentina , WT/DS268/AB/RW, adopted 
11 May 2007 
US – Softwood Lumber V  Panel Report, United States – Final Dump ing Determination on Softwood 
Lumber from Canada , WT/DS264/R, adopted 31 August 2004, modified by 
Appellate Body Report, WT /DS264/AB/R, DSR 2004:V, 1937 
US – Softwood Lumber V  
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW, adop ted 1 September 2006  
US – Softwood Lumber VI Panel Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada , WT/DS277/R, adopted 
26 April 2004, DSR 2004:VI, 2485 
US – Softwood Lumber VI (Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumb er from Canada – Recourse to 
Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 
9 May 2006  WT/DS337/R 
Page xi 
 
 
Short Title Full Case Title and Citation 
US – Steel Plate  Panel Report, United States – Anti-Dumpi ng and Countervailing Measures 
on Steel Plate from India , WT/DS206/R and Corr.1, adopted 29 July 2002, 
DSR 2002:VI, 2073 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 
10 December 2003, DSR 2003:VII, 3117  
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , 
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, 
adopted 23 May 1997, DSR 1997:I, 323 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, modified by Appella te Body Report, WT/DS294/AB/R 
US – Zeroing (Japan) Panel Report, United States – Measures Relati ng to Zeroing and Sunset 
Reviews  ("US – Zeroing (Japan) "), WT/DS322/R, adopted 
23 January 2007, as modified by Appellate Body Report, 
WT/DS322/AB/R. 
 
 
GATT DISPUTE SETTLEMENT AND WORKING PARTY 
REPORTS CITED IN THIS REPORT 
 
Short Title  Full Case Title and Citation  
Canada – Manufacturing 
Beef CVD  GATT Panel Report, Canada – Imposition of Countervailing Duties on 
Imports of Manufacturing Beef from the EEC , SCM/85, 13 October 1987, 
unadopted 
US – Wine and Grape Products  GATT Panel Report, Panel on United States Definition of Industry 
Concerning Wine and Grape Products , adopted 28 April 1992, BISD 
39S/436  
 
    
 
  
 WT/DS337/R 
Page 1 
  
 
  I. INTRODUCTION 
A. COMPLAINT OF NORWAY  
1.1 At issue in this dispute is Council Regul ation (EC) No. 85/2006 of 17 January 2006 
("Definitive Regulation") imposing a definitive anti -dumping duty and collecting definitively the 
provisional duty imposed on imports of farmed sa lmon originating in Norway.  Norway challenges 
the WTO-consistency of several aspects of this Regula tion, in particular: (i) the identification of the 
product under consideration; (ii) the definition of the domestic industry; (iii) the calculation of the 
margin of dumping (including certain adjustments ma de to the cost of production when calculating 
constructed normal value); (iv) th e findings of injury and causation; (v) the remedies imposed on 
dumped imports; and (vi) certain procedural aspects of the investigation.   
1.2 On 17 March 2006, Norway requested consultati ons with the European Communities ("EC") 
with respect to the Definitive Regulation.1  On 27 March 2006, Norway submitted an addendum to its 
request for consultations2. Consultations were held on 12 May 2006, but failed to resolve the dispute.   
1.3 Norway requested the establishment of this Panel on 29 May 2006.3   
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL  
1.4 At its meeting on 22 June 2006, the Dispute Se ttlement Body established a Panel pursuant to 
the request by Norway in document WT/DS337/2,  in accordance with Article 6 of the Dispute 
Settlement Understanding (DSU).4 
1.5 At that meeting, the parties to the dispute al so agreed that the Panel should have standard 
terms of reference.  The terms of reference are, therefore, the following: 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Norway in document WT/DS337/2, the matter referred to the DSB by Norway in 
that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."  
1.6 On 27 July 2006, Norway requested the Directo r-General to determine the composition of the 
Panel, pursuant to paragraph 7 of Article 8 of the DSU.  This paragraph provides: 
"If there is no agreement on the panelists within 20 days after the date of the 
establishment of a panel, at the request of  either party, the Director-General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council 
or Committee, shall determine the com position of the panel by appointing the 
panelists whom the Director-General consid ers most appropriate in accordance with 
any relevant special or additional rules or  procedures of the covered agreement or 
covered agreements which are at issue in th e dispute after consulting with the parties 
to the dispute.  The Chairman of th e DSB shall inform the Members of the 
composition of the panel thus formed no later than 10 days after the date the 
Chairman receives such a request." 
1.7 On 2 August 2006, the Director-General accord ingly composed the Panel as follows:   
                                                     
 
1 WT/DS337/1. 
2 WT/DS337/1/Add.1. 
3 WT/DS337/2. 
4 WT/DS337/3. WT/DS337/R 
Page 2  
 
  Chairman: Mr.  José Graça Lima 
Members: Ms.  Luz Elena Reyes de la Torre 
   Mr.  Donald Greenfield 
 
1.8 Canada;  China;  Hong Kong, China;  Japan;  Korea;  and the United States reserved their 
third-party rights. 
C. P
ANEL PROCEEDINGS  
1.9 The Panel met with the parties on 12-13 Decemb er 2006 and 6-7 February 2007.  The Panel 
met with third parties on 13 December 2006. 
1.10 On 4 August 2006, Norway submitted a letter to the Panel requesting it to establish special 
procedures to protect business confidential informatio n ("BCI") and to use its powers under Article 13 
of the DSU to seek certain information on the record  of the EC's anti-dumping proceeding.  In this 
latter regard, Norway requested that the Panel seek  confirmation from the EC regarding the contents 
of the non-confidential record of the investigatio n, and a copy of any non-confidential record 
documents that Norway did not possess, as well as discl osure of the entire confidential record or at 
least that part of the confidential record relevant  to Norway's claims described in the letter of 
4 August 2006.   
1.11 The Panel rejected Norway's request for it to seek information on 1 September 2006, 
deciding, after careful consideration, that, for th e time being, it was not "necessary and appropriate" to 
seek the information requested by Norway.  The Pa nel indicated it would consider any such requests 
in the future, to the extent expressly made by Norw ay, after it had at least reviewed the first written 
submissions of the parties.  No such request to  seek information pursuant to Article 13 of the DSU 
was subsequently received by the Panel.  Th e Panel adopted additional working procedures 
concerning business confidential information on 20 September 2006.   
1.12 By fax of 25 October 2006, the Panel received an unsolicited submission from 
Dr. Martin Jaffa of Callander McDowell, a UK c onsulting group involved in "Strategic Planning and 
Marketing for the Acquaculture Industry".  A prev ious unsolicited submission from Dr.  Jaffa had 
been received on 6 July 2006, before this Panel was composed, and a third unsolicited submission was 
received on 12 February 2007, after the second m eeting of the Panel with the parties.   
1.13 On 4 December 2006, the Panel transmitted copies of the first two unsolicited submissions to 
the parties and third parties, and provided them w ith an opportunity to comment, during the course of 
the first meeting of the Panel with the parties and third party session, on how the Panel should deal 
with these submissions.  Having considered the views expressed by the parties and third parties, the 
Panel concluded that it would cons ider views expressed in the unsolicited submissions to the extent 
that parties decided to adopt the views expressed th erein in their own submissions and arguments to 
the Panel.   
II. FACTUAL ASPECTS 
2.1 The anti-dumping investigation underlying this  dispute was initiated on 23 October 2004 on 
the basis of a complaint lodged by the EU Salmon Producers' Group.  The investigation of dumping 
and injury covered the period from 1 October 2003 to 30 September 2004 ("investigation period").5  
With respect to trends relevant for the injury assessment, data for the period from 1 January 2001 to 
                                                      
5 Commission Regulation (EC) No. 628/2005 of 22 April 2005 imposing a provisional anti-dumping 
duty on imports of farmed salmon originating in Norway (Official Journal, L104/5, published 23 April 2005) 
(hereinafter "Provisional Regulation"), Exhibit NOR-9, para.5.  WT/DS337/R 
 Page 3 
 
 
  30 September 2004 was analyzed ("period considered").6  The product concerned was defined as 
"farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen.  The definition 
excludes other similar farmed fish products such as large (salmon) trout, biomass (live salmon) as 
well as wild salmon and further processed types such as smoked salmon".7  Farmed salmon produced 
and sold on the domestic market of Norway, as well as farmed salmon produced and sold in the EC by 
the EC industry, were concluded to have the sa me basic physical characteristics and uses and 
therefore considered to be alike.8 
2.2 The Commission, the investigating authority in  the EC, based its analysis of dumping on a 
sample of companies stated to comprise the te n largest Norwegian exporting producers, and to 
represent almost 80 per cent of the export volume to the EC of all co-operating exporting producers.9  
The complaining EC producers, whose production was stated to represent around 90 per cent of total 
EC production of the product c oncerned, constituting a major pr oportion of EC production, were 
deemed to constitute the domestic industry.10  A sample of domestic producers was selected, based on 
the largest representative volume of production that c ould reasonably be investigated within the time 
available, and the analysis of injury was based on da ta verified for the sample with respect to some 
indicators, and data collected for the EC industry as a whole for other indicators.11 
2.3 Following preliminary affirmative determina tions of dumping, injury, and causal link, 
provisional anti-dumping measures, in the form of ad valorem  duties based on a non-injurious price, 
ranging from 6.8 per cent to 24.5 per cent, were im posed on imports of farmed salmon from Norway 
on 22 April 2005.12   These measures were modified by an amendment dated 30 June 2005, which 
replaced the ad valorem  duties with minimum import prices ("MIPs") for five presentations of farmed 
salmon.13 
2.4 Following the Provisional Regulation and the amendment, disclosures were made to 
interested parties, comments were submitted, and pa rties so requesting were given opportunity to be 
heard.  Further information was sought, and verifi cation was undertaken of certain information.  
Following affirmative determinations of dumping, injury and causal link, definitive anti-dumping 
measures were imposed on 17 January 2006.  Th e conclusions in the Provisional Regulation 
concerning product concerned and like product were confirmed.14  Other findings in the Provisional 
Regulation were further examined and either modi fied or confirmed based on the information and 
arguments considered.  The definitive measures took th e form of a system of MIPs and fixed duties, 
both calculated based on non-injurious prices,  for six presentations of farmed salmon.15   
                                                      
6 Id. 
7 Id. at para. 10. 
8 Id. at para. 14. 
9 Id. at para. 17. 
10 Id. at para. 45. 
11 Id. at para. 49. 
12 Id. at para. 139 and Article 1. 
13 The five presentations were: "Whole fish, fresh, ch illed or frozen"; "Gutted, head-on, fresh chilled or 
frozen"; "Other (including gutted, head -off,) fresh, chilled or frozen"; "Whole fish fillets and fillets cut in pieces, 
weighing more than 300 g per fillet, fresh, chilled or frozen"; and "Other whole fish fillets and fillets cut in pieces, weighing 300 g or less per fillet, fresh, chilled or  frozen."  Commission Regu lation (EC) No. 1010/2005 
of 1 July 2005 (Official Journal, L170/32, published 1 July 2005), amending Provisional Regulation, Exhibit 
NOR-10, para. 7 and Article 1. 
14 Council Regulation (EC) No. 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty 
and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway 
(Official Journal of the European Union, L15/1, published 20 January 2006) (hereinafter "Definitive 
Regulation"), Exhibit NOR-11, para. 8  
15 Id., paras. 128, 129, 136, and Article 1. WT/DS337/R 
Page 4  
 
  III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
A. N
ORWAY  
3.1 In its first written submission, Norway requested the Panel to find that: 
 (i) in its definition of the product under consideration, the EC violated: 
 
(a) Articles 2.1 and 2.6 of the Anti-Dumping Agreement , because it defined the product 
under consideration to include a range of products that are not all "like"; in 
consequence, the EC also violated: 
• Articles 5.1 and 5.4 of the Anti-Dumping Agreement by initiating an 
investigation on the basis of a flawed "product" determination; 
 
• Article 2.1 of the Anti-Dumping Agreement by making dumping 
determinations on the basis of a fl awed product determination; and, 
 
• Articles 3.1, 3.2, 3.4, 3.5 and 3.6 of the Anti-Dumping Agreement, 
because it examined injury to a domestic industry defined on the basis of a flawed product determination; 
 
 (ii) in its definition of the domestic industry, the EC violated:  
(a) Article 4.1 of the Anti-Dumping Agreement , because it impermissibly excluded 
several categories of domestic producers from the definition of the domestic industry; 
in consequence, the EC also violated: 
• Article 5.4 of the Anti-Dumping Agreement because it initiated an 
investigation without establishing that an application for initiation was made by or on behalf of a prope rly defined domestic industry; and  
 
• Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement because it 
failed to make an objective examination of injury with respect to a properly defined domestic industry and because it improperly engaged 
in sampling of the domestic industry; 
 
 (iii) in its dumping determination, the EC violated:  
 
(a) Article 6.10 of the Anti-Dumping Agreement , because it failed to include in the 
sample the Norwegian producers and exporters  with the largest percentage volume of 
exports to the EC; 
(b) Articles 2.2 and 2.2.1 of the Anti-Dumping Agreement , because it failed to determine 
that below cost sales were made at prices that did not permit the recovery of costs within a reasonable period of time; 
(c) Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement , because it made a number of 
improper adjustments to the costs of pr oduction and SG&A costs of a number of 
investigated producers;  WT/DS337/R 
 Page 5 
 
 
  (d) Article 2.2.2 of the Anti-Dumping Agreement , because it failed to base the amounts 
for SG&A costs and for profits on actual data pertaining to sales in the ordinary course of trade because of the low volume of the sales; 
(e) Article 6.8 and Annex II(3) and II(6) of the Anti-Dumping Agreement , because it 
improperly used facts available to determine normal value for one sampled company; 
and, 
(f) Articles 6.8 and 9.4, an d Annex II(1), of the Anti-Dumping Agreement , because it 
failed correctly to determine margins of dumping for non-sampled companies; in particular: 
• Article 9.4, because, for "cooperating"  non-sampled companies, it failed 
to base its determination of the weighted average dumping margin on 
the definitive dumping margins determ ined for the sampled producers; 
 
• Article 9.4, because, for "cooperating"  non-sampled companies, it failed 
to exclude a margin established using facts available in its determination of the weighted average dumping margin; 
 
• Article 9.4, because it incorrectly assigned to non-sampled companies 
that allegedly "did not cooperate or did not make themselves known" 
the highest dumping margin established for a sampled producer; 
 
• Article 6.8 and Annex II(1) because it had inappropriate recourse to 
"facts available" in establishing the dumping margin for non-sampled companies that "did not cooperate or did not make themselves known"; 
 
 (iv) in its injury determination, the EC violated: 
 
(a) Articles 3.1, 3.2 and, in consequence, 3.5 of the Anti-Dumping Agreement in its 
examination of the volume of dumped imports; 
(b) Articles 3.1, 3.2 and, in consequence, 3.5 of the Anti-Dumping Agreement  in its 
examination of price undercutting; and, 
(c) Articles 3.1 and 3.4 of the Anti-Dumping Agreement , in its evaluation of price trends 
affecting EC producers; 
 (v) in its causation determination, the EC violated: 
 
(a) Articles 3.1 and 3.5 of the Anti-Dumping Agreement , because it failed properly to 
assess the injurious effects of the EC indus try's increased cost of production; and, 
(b) Articles 3.1 and 3.5 of the Anti-Dumping Agreement , because it failed properly to 
assess the injurious effects of imports of salmon from Canada and the United States; 
 (vi) in its determination of the form of  the anti-dumping measures, the EC violated: 
 
(a) Article VI:2 of the GATT 1994, and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-
Dumping Agreement , by imposing minimum import prices that exceed normal value 
and that are not limited to the margin of dumping; and, WT/DS337/R 
Page 6  
 
  (b) Article VI:2 of the GATT 1994, and Articles 9.1, 9.2 and 9.3 of the Anti-Dumping 
Agreement  by imposing  fixed duties that exceed the margin of dumping for certain 
producers; 
 (vii) in its conduct of the anti-dumping investigation, the EC violated: 
 
(a) Articles 6.4 and 6.2 of the Anti-Dumping Agreement , because it failed to ensure an 
adequate opportunity for interested parti es to see all non-confidential information in 
the record of the investigation; 
(b) Articles 6.9 and 6.2 of the Anti-Dumping Agreement , because it failed to inform the 
interested parties of the essential facts that  formed the basis for the decision to impose 
definitive anti-dumping measures; and, 
(c) Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement , because it failed to provide 
a reasoned and adequate explanation in support of its findings and conclusions. 
3.2 Norway requested that the Panel recommend that  the Dispute Settlement Body request the EC 
to bring the contested measure into conf ormity with its obligations under the Anti-Dumping 
Agreement  and the GATT 1994. 
3.3 In addition, Norway requested the Panel to make use of its discretion under the second 
sentence of Article 19.1 of the DSU by suggestin g ways in which the EC could implement the 
recommendations and rulings of the DSB.  Given the nature and scope of the EC's violations of the 
Anti-Dumping Agreement  and of the GATT 1994, Norway believes that the EC's initiation of the 
investigation, and the measures resulting from it,  are vitiated and deprived of legal basis.  
Consequently, Norway requested the Panel to sugg est that the EC implement the recommendations 
and rulings of the DSB by withdrawing the contested measures. 
B. E
UROPEAN COMMUNITIES  
3.4 In its first written submission, the Europ ean Communities requested the Panel to:  
(a) reject all of Norway's claims and arguments,  finding instead that, with respect to each 
of them, the EC acted consistently with  all its obligations under the Anti-Dumping 
Agreement, the GATT 1994 and the c overed agreements, including (non-
exhaustively) as set out in the following paragraphs.   
(b) reject Norway's claims that the EC acted inconsistently with Articles 2.1, 2.6 and 
(consequently) Articles 2.1, 3 and 5 of th e Anti-Dumping Agreement when selecting 
the product concerned.   
(c) reject Norway's claims that the EC act ed inconsistently with Article 4.1 and 
(consequently) Articles 3 and 5 of the An ti-Dumping Agreement when determining 
the domestic industry.   
(d) reject Norway's claims that the EC acted inconsistently with Articles 5.1 and 5.4 of 
the Anti-Dumping Agreement when initia ting the original investigation.   
(e) reject Norway's claims that the EC acted inconsistently with the following provisions 
of the Anti-Dumping Agreement:   WT/DS337/R 
 Page 7 
 
 
  • Article 6.10 in its selection of No rwegian producers and exporters for 
examination;  
 
• Articles 2.2 and 2.2.1 in regard to the determination of below-cost sales;  
 
• Article 2.2.2 in its determination of SG&A and profits in regard to sales 
made in low volumes;  
 
• Article 6.8 and Annex II, paragrap hs 3 and 6 in regard to the 
determination of normal value of one investigated company; and  
 
• Articles 6.8 and 9.4, and Annex II, para graph 1, in regard to the margins 
of dumping calculated for non-sampled companies.   
 
(f) reject Norway's claims that, in its injury determination, the EC acted inconsistently 
with :  
• Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping 
Agreement in its examination of the volume of dumped imports;  
 
• Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping 
Agreement in its examination of price undercutting; and  
 
• Articles 3.1 and 3.4 of the Anti-Dumping Agreement in its evaluation of 
price trends affecting EC producers.   
 
(g) reject Norway's claims that, in its causation determination, the EC acted 
inconsistently with :  
• Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC 
did not fail to properly assess the injurious effects of the EC industry's 
increased cost of production; and  
 
• Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC 
did not fail to properly assess the injurious effects of imports of salmon from Canada and the United States.   
 
(h) reject Norway's claims that its anti-dumping measures violated Article VI:2 of 
GATT 1994 and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-Dumping Agreement by imposing minimum import prices exceeding the normal value and not limited to the dumping margin.   
(i) reject Norway's claims that its anti-dumping measures violated Article VI:2 of 
GATT 1994 and Articles 9.1, 9.2, and 9.3 of the Anti-Dumping Agreement by 
imposing fixed duties that exceeded the dumping margin.   
(j) reject Norway's claims that the EC acted inconsistently with Articles 6 and 12 of the 
Anti-Dumping Agreement.   
(k) reject Norway's claims that it infringed Article  2, and in particular Article 2.2.1.1 of 
the Anti-Dumping Agreement when calcula ting the costs of the investigated 
companies for the purpose of determining their normal values.   WT/DS337/R 
Page 8  
 
  IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set out in thei r written and oral submissions to the Panel, and 
in their answers to questions.  The parties'  arguments, as summarised by them pursuant to 
paragraph 12 of the Panel's working procedures, are set forth in this section.  The full non-confidential 
text of Norway's submissions can be dow nloaded from the Government's web site.
16 The full non-
confidential text of the submissions of the Eur opean Communities can be downloaded from the EC's 
web site.17 
A. FIRST WRITTEN SUBMISSION OF NORWAY  
4.2 The following summarizes Norway's argu ments in its first written submission. 
1. Introduction 
4.3 Adjusting to increased international competition is part of the day-to-day challenges faced by 
enterprises throughout the world in a system of liber alised international trade.  However, it has long 
been evident that a small part of Irish and UK producers of salmon has been unwilling or unable to 
adapt to the competitive environment of salmon fa rming, and has not responded to the need for 
structural changes.  Instead, these producers have pr eferred to hide behind trade remedy measures that 
unjustly penalize imports from more efficient foreign producers.  The contested anti-dumping 
measures have been imposed on the basis of an inves tigation by the EC authorities that falls far short 
of the standards set out in WTO law.   
4.4 What the EC mistakenly calls "the domestic industry" supporting and cooperating in the anti-
dumping investigation in this case produced as little as 18 000 tonnes of salmon during the IP, less than 3 per cent of annual consumption on the EC mark et.  By contrast, the entire salmon industry in 
UK and Ireland produced 190 903 tonnes in 2003
18.  In essence, the "domestic industry" as defined by 
the EC for this particular case represents, in real terms, around 10 per cent of the total production in 
the UK and Ireland.  The share of these producers h as been steadily declining, as most other EC 
producers have adapted to market realities and have become more competitive.  Rather than adapt to 
competition, a minority of EC producers has preferred to clamour for restrictions on trade. 
4.5 The European Communities have repeatedly im posed restrictions on imports of Norwegian 
Salmon in one form or another (including anti-dum ping and countervailing duty measures, as well as 
safeguards).  For the past 17 years, hardly a year has gone by without some kind of restriction in place.   
4.6 The previous anti-dumping and counterva iling measures were revoked in May 2003.
19  For 
the first time since 1989, Norway's trade with the EC in salmon products was free of all forms of trade 
protection or threats of protection.  However, free tr ade was short-lived.  Only a few months later, in 
February of 2004, the Governments of Ireland and the United Kingdom petiti oned the EC to introduce 
safeguard measures against imports of salmon.  In August 2004, the EC imposed provisional 
                                                      
16 See, http://www.regjeringen.no/nb/dep/ud/tema/Ha ndelspolotikk/WTO/WTO---Laksesaken/Norges-
innleg-i-laksesaken-mot-EU-i-WTO.html?id=457526&epslanguage=NO. 
17 See, http://trade.ec.europa.eu/wtodispute/search.cfm?code=2. 
18 In the Definitive Safeguard Regulation, para. 51, the EC gives total EC production of 190,903 tonnes 
in 2003.  In contrast, the Definitive Regulation, para. 40, gives the total production by the EC domestic industry, as defined by the EC in this dispute, as just 18,000 tonnes during the IP. 
19 Council Regulation (EC) No.  930/2003 of 26 May 2003 terminating the anti-dumping and anti-
subsidy proceeding on imports of farmed Atlantic salmon originating in Norway and the anti-dumping proceeding concerning imports of farmed Atlantic salmon originating in Chile and the Faeroe Islands 
("Termination Regulation").  Exhibit NOR-5  WT/DS337/R 
 Page 9 
 
 
  safeguard measures20 that were confirmed by definitive measures in February 2005.21  Chile and 
Norway immediately sought consultations with th e EC regarding the definitive safeguard measures.22  
These unjustifiable measures were withdrawn by the EC on 23 April 2005 – just 2 months after their 
adoption.23  However, on the very same day, the EC  seamlessly transitioned from safeguard to 
provisional anti-dumping measures, which were im posed only on imports from Norway with an 
average rate of 22.5 per cent.24 A leading official in the Commission had on 19 November 2004, prior 
to the reception of the questionnaires from No rwegian producers, predicted this finding.25  T h i s  
dispute concerns the definitive version of tho se measures, which were imposed on 17 January 2006.26 
4.7 Thus, constant protection for domestic producers,  and constant restric tions on international 
trade, has been the norm.  Norwegian producers have had to face those restrictions, and have adapted 
to them by becoming increasingly more efficient producers over the years: today, the Norwegian 
industry produces five times more per employee than  the Scottish complainants, and has cost of 
production levels far below those of the sampled Scottish companies in this case. 
4.8 To be able to justify the imposition of anti-dumping measures in this case, the EC has 
disregarded, misrepresented or refused to take into account the facts an d resorted to flawed 
constructed values, and it has failed to provid e reasoned and adequate explanations of its 
determinations.  The EC has thereby published a regulation that is so thin on facts that a reader has no 
basis to understand how the EC arrive d at the determinations therein. 
4.9 Virtually every aspect of the Definitive Regul ation involves an inconsistency with WTO 
rules.  To begin, the EC did not even properly estab lish a right to initiate the investigation consistently 
with the Anti-Dumping Agreement.  The investigati on should, therefore, never have been opened.  
Further, two of the fundamental building blocks fo r the entire investigation – the "product" and the 
"domestic industry" – are flawed, and defined in mutually inconsistent terms.  Moreover, the 
determinations of dumping, injury and causation ar e tainted by numerous WT O-inconsistencies.  The 
EC, therefore, failed to establish a right to impose the contested anti-dumping measures.  Additionally, the anti-dumping measures it imposed  do not respect the WTO rules regarding the 
maximum level of duties.   
4.10 On top of these substantive violations, the EC also paid scant regard to the requirements of 
transparency set out in the Anti-Dumping Agreement.   The EC provided Norw ay with an incomplete 
copy of the non-confidential record of the investig ation.  It also failed to disclose the essential facts 
                                                     
 
20 Commission Regulation (EC) No 1447/2004 of 13 August 2004 imposing provisional safeguard 
measures against imports of farmed salmon and Corrigendum to Commission Regulation (EC) No 1447/2004.  Exhibit NOR-6. 
21 Commission Regulation (EC) No 206/2005 imposing definitive safeguard measures against imports 
of farmed salmon and Commission Regulation (EC) No 580/2005 of 14 April 2005 amending Regulation EC No 206/2005 ("Definitive Safeguard Regulation").  Exhibit NOR-7. 
22 WT/DS326/1 (Chile) and WT/DS328/1 (Norway). 
23 Commission Regulation (EC) No 627/2005 of 22 April 2005 revoking Regulation (EC) No 206/2005 
imposing definitive safeguards measures against imports of farmed salmon.  Exhibit NOR-8. 
24 Commission Regulation (EC) No.  628/2005 of 22 April 2005 imposing a provisional anti-dumping 
duty on imports of farmed salmon originating in Norway  ("Provisional Regulation") (Official Journal, L104/5, 
published 23 April 2005), as amended by Commission Regulation (EC) No.  1010/2005 of 1 July 2005 (Official 
Journal, L170/32, published 1 July 2005).  Exhibits NOR-9 and NOR-10. 
25 Intrafish News, "EC to decide on Norwegian salmon dumping case", 19 November 2004. Exhibit 
NOR-12. 
26 Council Regulation (EC) No.  85/2006 of 17 January 2006 imposing a definitive anti-dumping duty 
and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway.  ("Definitive Regulation") (Official Journal of the European  Union, L15/1, published 20 January 2006).  Exhibit 
NOR-11.  The Definitive Regulation confirms, and incorporates reasoning from, the Provisional Regulation. WT/DS337/R 
Page 10  
 
  that formed the basis for its deci sion to impose definitive measures.  In essence, the EC's disclosure of 
the essential facts involved the provision of a prepar atory draft of the Definitive Regulation.  In 
principle, that draft should have disclosed the es sential facts because these must be addressed and 
explained in published determinati ons.  However, contrary to the requirements of the Anti-Dumping 
Agreement, the Definitive Regulation is characte rized by a complete failure to explain "the 
evidentiary path" that led the EC  to its findings and conclusions.
27  In short, the EC does not explain 
how the evidence in the record supports its determin ations.  As a result, it is extremely difficult – 
often impossible – for Norway to understand on wh at basis the EC reached its conclusions.   
4.11 Norway regrets that it has been compelled to bri ng so many claims in this dispute.  However, 
although many in number, each of Norway's claims is  an important stepping-stone to ensure that the 
EC affords WTO-consistent treatment to Norway 's trade in salmon products.  Given the chronic 
character of the EC's protection of its salmon industry, Norway wishes to avoid a situation where issues are left unresolved prior to implementation of the Panel's findings a nd recommendations.  Were 
the Panel to exercise judicial economy with respec t to certain claims, this could have important 
repercussions for the course of  EC's implementati on.  Norway, therefore, respectfully requests the 
Panel to make findings on each and every claim ma de.  Norway believes that the nature and number 
of the EC's violations vitiate the entire investiga tion and the measures resulting from it.  As a result, 
Norway believes that the EC must withdraw the measure. 
2. Summary of Norway's Claims 
4.12 Broadly speaking, Norway's claims can be groupe d under the headings below.  However, for 
the full extent of claims and arguments we refer to the brief: 
(a) Improper definition of the pr oduct under consideration, a nd improper initiation of the 
investigation (Section III of the brief) 
4.13 The EC improperly defined the scope of the pr oduct under consideration.  The EC determined 
that a group of different salmon products – includi ng everything from whole fish to small skinned 
fillets – constitute a single product.  However, the EC 's determination fails to demonstrate, in view of 
the differences between these products, that they constitu te a single product.  There are no facts in the 
regulation supporting any of the assertions therein, just as there are no facts in the record in support of EC's determinations. 
4.14 The EC, concluded, quite correctly, that these different products are produced by two 
different industries, namely, on the one hand, the "salmon growers" and, on the other hand, the "downstream processing industry" producing fillets for which the product of the salmon growers is 
the input product.  Importantly, the EC found that the EC fish farming industry and the EC processing 
industry have conflicting interests.
28  Two GATT panel reports, the panels in US – Wine and Grapes29 
and Canada – Beef30, dealt with the distinction between raw and processed agricultural products, and 
both concluded that the different  production processes meant that they were different products.  
Furthermore, in US – Lamb , the Appellate Body confirmed that , in determining whether "two 
Articles are separate products", the authorities should examine the production process used to 
manufacture the two articles.31  Thus, the fact that two produc ts result from separate production 
                                                      
27 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 97. 
28 Definitive Regulation, para. 114.  This statement identifies the EC salmon processing industry as a 
"users industry", which is distinguished from the EC domestic industry. 
29 GATT panel report, US – Wine and Grapes , para. 4.2. 
30 GATT panel report, Canada – Beef , para. 5.3. 
31 Appellate Body Report, US – Lamb , footnote 55.  WT/DS337/R 
 Page 11 
 
 
  processes indicates that those products are not produced by a single industry and are not a single 
product.32 
4.15 The product scope is of fundamental importanc e to the investigation because it determines: 
which domestic industry must support the initiation of an investigation; which products are compared 
in making a dumping determination; and which domest ic industry must be examined in an injury 
determination.  Improper determin ation of the product scope, ther efore, has profound consequences 
for an investigation. 
4.16 By improperly defining the "product", the EC violated Articles 2.1 and 2.6 of the Anti-
Dumping Agreement , because it defined the product under c onsideration to include a range of 
products that are not all "like".  In consequence, the EC also violated Articles 5.1 and 5.4 of the Anti-
Dumping Agreement  by initiating an investigation on the basi s of a flawed "product" determination; 
Article 2.1 of the Anti-Dumping Agreement  by making dumping determinations on the basis of a 
flawed product determination; and Articl es 3.1, 3.2, 3.4, 3.5 and 3.6 of the Anti-Dumping Agreement , 
because it examined injury to a domestic industr y defined on the basis of a flawed product 
determination – with a mismatch between the pro duct produced by the domestic industry (as defined 
by the EC) and the "product under consideration". 
(b) Flawed definition of domestic industry and in correct use of sampling for injury purposes 
(Section IV of the brief) 
4.17 Having defined the "product" – albeit improperly – to include a range of products from whole 
fish to small filleted products, the EC was obliged to include the producers of all these products in the 
domestic industry.  The EC did not do so.  Instead, it defined the industry to include the growers  of 
farmed salmon that produce whole/gutted fish.  It  excluded the entire EC processing industry that 
produces filleted products, but does not grow salmon.  There is, therefore, a fatal mismatch between 
the determinations of the "product" and the "domestic industry".   
4.18 The EC has a large processing industry that transforms " several hundred thousand tonnes " of 
farmed salmon annually.33  This industry has been excluded from the domestic industry, even though 
the filleted products it produces are part of the inves tigated product.  In addition, the EC improperly 
excluded several other entire categories of salmon gr owers.  The EC excluded entirely the following 
categories of producer from the industry: 
• related producers; 
• producers of filleted products that do not grow salmon; 
• producers that did not expressly supp ort the Complaint (i.e. silents); 
• producers that exclusively produced certain types of salmon;34 
• producers that fell into receivership during the IP;35 
• producers/production of organic salmon;36 and, 
• producers that did not provide data in the fo rmat requested or were otherwise deemed 
not to have cooperated fully.37  
 
                                                      
32 See, in particular, paragraphs 148 – 155 of Norway's First Written Submission. 
33 Letter from Syndicat Saumon et Truite Fumés to the EC, 26 May 2005.  Exhibit NOR-17.  Unofficial 
translation from Fr ench original. 
34 Definitive Regulation, para. 39. 
35 Definitive Regulation, para. 39. 
36 Definitive Regulation, para. 43. 
37 Definitive Regulation, para. 39. WT/DS337/R 
Page 12  
 
  4.19 After all these exclusions, the entire EC i ndustry comprised just 15 small salmon growers 
(employing 221 persons), all of which petitioned fo r the initiation of an investigation.  The EC 
thereby defined the domestic industry incorrectly and in a manner that skewed the investigation.  In 
consequence, the EC failed to establish that the pr oper domestic industry supported the initiation of 
the investigation; and it failed to make an injury determination for the proper industry. 
4.20 Assuming that the "product" scope of th e investigation is properly defined ( quod non ), the EC 
has violated Article 4.1 in its definition of the "domestic industry".   
4.21 The comprehensive character of an injury determin ation is consistent with the fact that it is 
one of  the pre-conditions for the imposition of  anti-dumping duties, which protect all domestic 
producers.  An authority cannot impose duties unless th at is warranted by the need to protect these 
producers, as a whole, and not just a select group of them.   
4.22 The Appellate Body reached the same conclusion in US – Hot-Rolled Steel .  In that dispute, 
the USITC divided the domestic industry into two parts: production for the merchant market and production that is captively consumed.  The USITC examined aggregate data for both parts of the 
industry.  It also conducted a "selective examination"  of the merchant market, but made no equivalent 
examination of the captive market.
38  The Appellate Body held that, under Article 3, "[t]he 
investigation and examination must focus on the totality  of the 'domestic industry' and not simply on 
one part, sector or segment of the domestic industry ."39  It found that the " selective " examination of 
just "one part" of an industry is not "objec tive" because the authorit y could choose the worst 
performing part of the industry for examination,  thereby making an injury determination "more 
likely".40  Thus, an investigating authority cannot singl e out particular parts of the domestic industry 
for investigation, to the exclusion of other parts.  However, this is precisely what the EC did. 
4.23 The EC moreover did not even conduct an injury analysis of its improperly defined domestic 
industry.  Instead, it selected a very small,  non-representative sample.  Article 3 of the Anti-Dumping 
Agreement  does not allow an investigating authority to use sampling for injury analysis purposes.  In 
any event, even if sampling were permitted – quod non -- an authority cannot, purposefully, structure 
its sample of the domestic industry in such a way th at it fails to examine the situation of identifiable 
categories of producers and segments of the industry. 
4.24 The EC thus violated Article 4.1 of the Anti-Dumping Agreement , because it impermissibly 
excluded several categories of domestic producers fr om the definition of the domestic industry.  In 
consequence, the EC also violated: Article 5.4 of the Anti-Dumping Agreement  because it initiated an 
investigation without establishing that an applica tion for initiation was made by or on behalf of a 
properly defined domestic industry; a nd Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement  
because it failed to make an objective examination of injury with respect to a properly defined 
domestic industry and because it improperly enga ged in sampling of the domestic industry. 
(c) The EC's dumping determinations violate the Anti-Dumping Agreement in numerous respects 
(Sections V and XI of the brief) 
4.25 First,  the EC's sample of ten Norwegian producer s does not cover the largest percentage of 
the volume of exports to the EC, because the EC excluded from the sample all non-producing exporters as well as two large producers.  The samp le, therefore, covers a far smaller volume of 
exports than it should have pursuant to Article 6.10 of the Anti-Dumping Agreement . 
                                                     
 
38 Appellate Body Report, US – Hot-Rolled Steel , para. 214. 
39 Appellate Body Report, US – Hot-Rolled Steel , para. 190.  Emphasis added. 
40 Appellate Body Report, US – Hot-Rolled Steel , para. 196.  WT/DS337/R 
 Page 13 
 
 
  4.26 Second , in deciding that normal value should be co nstructed, the EC failed to determine that 
below-cost sales were made at prices that did not permit the recovery of all costs within a reasonable 
period of time, as required by Article 2.2.1 of the Anti-Dumping Agreement.  
4.27 Third , in constructing normal value, the EC faile d to calculate amounts for SG&A costs and 
for profits on the basis of actual data pertaining to sales in the ordinary course of trade.  The Appellate 
Body in EC – Tube or Pipe Fittings  addressed squarely whether actual data can be rejected under 
Article 2.2.2 because it pertains to a low volume of  domestic sales.  It ruled that an investigating 
authority must use "actual SG&A a nd profit data for sales in the ordinary course of trade" if such 
sales exist, irrespective of the volume of the sales .41   In other words, it rejected the view that actual 
data from a low volume of domestic sales is not a reliable basis for calculating SG&A costs and 
profits, provided, of course, that the low volume i nvolves sales in the ordinary course of trade.  
Contrary to the Appellate Body's interpretation of Article 2.2.2 in EC – Tube or Pipe Fittings , and the 
EC's own arguments in that dispute, the EC wr ongly rejected actual sales data because of the low 
volume of those sales. 
4.28 Fourth , the EC acted inconsistently with Article 6.8 and Annex II of the Anti-Dumping 
Agreement  because it had recourse to facts available in constructing normal value for one of the 
sampled producers, without respecting the conditions in those provisions. 
4.29 Fifth,  the EC incorrectly determined both a wei ghted average, and a "residual", margin of 
dumping for non-sampled producers and exporters in a manner that violates Article 9.4 of the Anti-
Dumping Agreement .   
4.30 In determining the weighted average margin, th e EC failed to base its determination on the 
definitive dumping margins determined for the sampled producers.  In the General Definitive 
Disclosure document42, the EC determined a margin of dumping of 14.8 per cent for "cooperative 
non-sampled companies".  After the Definitive Discl osure, the EC made downward revisions to the 
individual margins of dumping for three sampled producers.43  These revisions logically imply a 
decrease in the weighted average margin, given th at the other seven individual margins remained 
unchanged.  However, the EC did not alter the weig hted average margin, leaving it at 14.8 per cent in 
the Definitive Regulation.  The EC also included a margin calculated with "Facts Available"  in the 
calculation of the weighted average, although expressl y prohibited by Article 9.4.  This margin is, 
therefore, higher than it should be. 
4.31 In determining the "residual" margin for so -called "non-cooperative or unknown companies", 
the EC improperly had recourse to facts ava ilable under Article 6.8 and Annex II of the Anti-Dumping 
Agreement .  The EC also, incorrectly, assigned to non- sampled companies that allegedly "did not 
cooperate or did not make themselves known" the highest dumping margin established for a sampled 
producer instead of the weighted average dumping ma rgin.  Instead, the EC should have assigned to 
those producers also the (correct) weighted average dumping margin. 
4.32 Sixth, the EC improperly constructed normal value for six producers.  In virtually all cases, 
the EC constructed normal value on the basis of co sts of production plus an amount for SG&A costs 
and for profits.  However, in determining nor mal value, the EC made  numerous improper and 
unexplained adjustments to the sampled producers' re ported costs, thereby artificially inflating them.  
These adjustments have a significant effect on the individual margins of dumping; in one case, 
removing the unjustified cost adjustment elim inates the margin of dumping entirely.   
                                                      
41 Appellate Body Report, EC – Tube or Pipe Fittings , para. 97. 
42 General disclosure document cont aining Definitive findings in the AD proceeding concerning farmed 
salmon from Norway.  Investigation AD-487.  Dated 28 October 2005.  Exhibit NOR-67. 
43 See para. 461 of Norway's First Written Submission. WT/DS337/R 
Page 14  
 
  4.33 Taken together, these inconsistenc ies amount to numerous violati ons of Articles 2.2, 2.2.1.1, 
2.2.2, 6.8, 6.10, 9.4 and Annex II of the Anti-Dumping Agreement . 
(d) The EC's injury determination violates the Anti-Dumping Agreement 
4.34 First , the EC treated all imports from Norway as dumped, even though it had found that one 
of the sampled producers was not dumping.  More over, the EC's sample consisted exclusively of 
producers  of salmon, to the deliberate exclusion of independent exporters  of salmon.  The EC itself 
acknowledged that the sample consisted of six pr oducers that do not themselves export salmon and 
four integrated producer-exporters.
44  On the basis of a sample that included only producers , the EC 
assumed that imports from all non-producing exporter s were dumped.  However, the EC's dumping 
determinations regarding sampled producers  do not provide "positive evidence" that imports from 
non-sampled exporters  are also dumped, as required by Article 3 and also emphasized by the 
Appellate Body.    
4.35 As explained in Section V.A of Norway's first written submission, the Norwegian salmon 
industry includes, besides producers and integrat ed producer-exporters, a third major category of 
companies: independent traders that do not pr oduce salmon but purchase it for sale on domestic and 
export markets.45  Independent exporters are a key constituen t of the Norwegian salmon industry, with 
considerable exports from Norway to the EC.  Pr oducers and exporters are engaged in different 
activities and have different cost structures.  Even  if some producers were dumping.  that does not 
necessarily mean that exporters were also dumping.   
4.36 Second , the EC concluded that dumped imports were  undercutting the EC industry's prices by 
12 per cent.  However, in reaching this conclusion,  the EC ignored the fact that EC salmon products 
generally enjoy a price premium in the marketplace of 12 per cent – a price premium recognized by 
the EC on numerous occasions46 and evidenced by documents on the record.  The EC itself even 
acknowledged this fact in its draft definitive determin ation, but then deleted the relevant finding at the 
last moment without any explanation.  Taking acc ount of this price premium, there was no price 
undercutting.   
4.37 Third , the EC examined the prices of a sample of five Scottish producers in euros, and 
concluded that prices had dropped by 9 per cent.  However, this price "decrease" is a mathematical 
construct and stems entirely from an appreciation in  the value of the euro in comparison to the pound 
sterling over the period considered.  Measur ed in pound sterling, prices remained constant  and did not 
fall.  For these Scottish producers, the evaluation of prices must be made in pounds sterling because 
their costs are incurred in that cu rrency, as are the vast majority of  their sales.  The use of euros, 
therefore, distorted the injury determination. 
4.38 In consequence,  the EC violated Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping 
Agreement.  
                                                      
44 See letter from the EC to FHL and NSL, 22 November 2004.  Exhibit NOR-39. 
45 See para. 297 of Norway's First Written Submission  and the references therein, for instance, 
Regulation (EC) No.  1890/1997, para. 12 and Termination Regulation, para. 35.  Exhibits NOR-2 and NOR-5. 
46 This fact was expressly acknowledged by the EC in its General Disclosure document, which stated 
that the usual price premium for domestic salmon products is 12 per cent.  (General Disclosure, para. 122.  
Exhibit NOR-67.)  WT/DS337/R 
 Page 15 
 
 
  (e) The EC's causation determination violates Articles 3.1 and 3.5 
4.39 The EC failed to ensure that injury caused by  two other known factors – (1) the EC producers' 
increased costs of production, and (2) surging imports  from Canada and the United States – were not 
improperly attributed to dumped imports.   
4.40 First , the EC's analysis masked the fact that the domestic industry's costs of production rose 
significantly during the period considered.  The EC m asked this fact by examining price trends in 
euros, instead of pounds sterling, the relevant cu rrency for the sampled Sc ottish salmon growers.  
Because unit sales prices were constant in pounds sterling47 and because sales volumes increased by 
7 per cent, the sampled producers' revenues must ha ve increased during the period considered.  But 
during that same period, the profitability of the EC  producers turned from positive to negative.  This 
suggests that losses sustained by the EC industry duri ng the IP were caused by an increase in costs of 
production that outstripped the industry's increased revenues.  Since three of the five Scottish 
companies were engaged in, or in transition to, orga nic farming during the IP, it seems likely that their 
increased costs are partly due to organic farming.48  In pounds sterling, their costs increased with an 
average for all five producers of 14.9 per cent.  In essence, the producers' increased costs more than 
eliminated their higher sales revenues.  The complete absence of analysis by the EC on this point 
violates Articles 3.1 and 3.5 of the Anti-Dumping Agreement.  
4.41 Second , the EC dismissed the significance of a 560 per cent increase in imports from Canada 
and the United States on the grounds that these imports  consisted mostly of wild salmon, which, the 
EC found, did not compete with farmed salmon.  Un fortunately, the EC offers no facts in support of 
these conclusions and even admits that its import statistics do not separate farmed and wild salmon.  
There was, therefore, no basis for the EC to concl ude that the surge in imports consisted of wild 
salmon.  The evidence in the record also directly contradicts the EC's unsubs tantiated conclusion that 
farmed and wild salmon do not compete. 
(f) The EC's use of minimum import prices and fixed duties violates the Anti-Dumping 
Agreement 
4.42 The EC imposed the definitive anti-dumping measure in the form of minimum import prices 
(MIPs).  MIPs are a form of variable anti-dumping duty imposed on the basis of a reference price.   In establishing these MIPs the EC violated Article VI:2  of the GATT 1994, and Articles 9.1, 9.2, 9.3 and 
9.4(ii) of the Anti-Dumping Agreement . 
4.43 First,  under WTO rules, the reference price may not exceed normal value.  Normal value 
constitutes the dividing line between fair and unfair trade, delineating when duties can and cannot be 
imposed.  Accordingly, if variable anti-dumping duti es are imposed on the basis of a reference price, 
the reference price cannot exceed normal value.   This was recognized by the panel in US – Zeroing 
(Japan) , which stated that "[in a prospective normal value system] an importer who imports a product 
the export price of which is equal to or higher th an the prospective normal value cannot incur liability 
for payment of anti-dumping duties".
49  The EC itself recognized as much in its Definitive Regulation, 
                                                      
47 The price in 2001 and in the IP was constant at GBP 1,88 per kilo.  The assertion by the EC of a 
9 per cent drop is due to the appreciation of the Euro in comparison to the GBP, which is unrelated to the prices 
in Scotland. 
48 It appears from the companies' public statements  that Loch Duart, West Minch and Wester Ross 
Salmon were exclusively or almost exclusively produci ng organic salmon during the Investigation Period  (See 
paras. 248-252 of Norway's First Written Submission.) 
49 Panel report, US – Zeroing (Japan) , para. 7.201.  See also para. 7.205 of that panel report. WT/DS337/R 
Page 16  
 
  when it emphasized that their so-called "non-injurious" MIPs were lower  than "non-dumped" MIPs, 
which it said were "calculated on the basis of normal value".
50   
4.44 However, for many investigated producers, for some or all of the MIP product categories, the 
MIPs do exceed the individually determined nor mal values, as shown in Norway's First Written 
Submission, table 9 (page 183).  
4.45 Second,  the MIPs, consequently, also exceed the we ighted average normal value, applied to 
the non-sampled producers and exporters, for all MIP product categories.  
4.46 Third , any anti-dumping duty, in whichever form, cannot exceed the margin of dumping.  The 
Appellate Body in US – Zeroing (EC)  found that: 
… the margin of dumping  established for an exporter or foreign producer operates as 
a  ceiling  for the total amount of anti-dumping duties that can be levied on the entries 
of the subject product (from that exporter) … .51   
4.47 The Appellate Body has also stated that, under Article 9.3, the amount of the anti-dumping 
duty must "correspond to" or be "less than" th e individually determined dumping margin.52 
4.48 In this case, the amount of duties imposed by re ference to the MIPs is not limited to the 
margin of dumping for individual producers.  This is because, in the case of the contested MIPs, the 
duty imposed is the full amount by which the net free-at-Community-frontier price is below the MIP.  This duty can also be expressed as an ad valorem  equivalent - namely, as the ratio of the amount of 
duty collected on a shipment to the price of th e imported product.  Where the actual price of a 
shipment decreases, the ad valorem  equivalent of the duty increases and may well go above the 
margin of dumping (per cent rate) determined for th e examined producers.  Contrary to Article VI:2, 
and Articles 9.1 and 9.3, there is no mechanism in th e EC measure to ensure that the amount of duties 
imposed does not exceed the margins of dumping determined for the examined producers.   
4.49 Furthermore , the EC additionally imposes fixed duties – which are distinct from the MIPs – 
as a punitive tariff in cases of alleged "circumvention" .  The fixed duties do in certain circumstances 
elevate the entry price above  the relevant MIP.  These situations arise where the amount of the fixed 
duty exceeds the difference between actual price and the MIP.  As is the case for the MIPs, the EC has 
failed to adopt a "ceiling" or "cap" to en sure that the fixed duties, expressed as an ad valorem  
equivalent of the export price, do not exceed a produ cer's margin of dumping.  As a result, in the case 
of five producers (see Table 10 in Norway's Firs t Written Submission), the fixed duty for each of the 
six products exceeds the dumping margin for some or all export prices. 
(g) The EC violated its procedural obligations  under Articles 6 and 12 of the Anti-Dumping 
Agreement 
4.50 The EC's investigation and its published dete rminations are characterized by a lack of 
transparency.  First , the EC acted inconsistently with Article 6.4 because it failed to disclose non-
confidential information contained in the record of the investigation.  Norway has already submitted a 
list of document that it knows, or has good reas on to believe, were missing from the non-confidential 
record when Norway inspected it.
53  Second , the EC failed to disclose the essential facts that formed 
the basis for the EC's decision to impose duties, as required by Article 6.9.  The EC's purported 
                                                      
50 Definitive Regulation, para. 129. 
51 Appellate Body Report, US – Zeroing (EC) , para. 130.  Original emphasis. 
52 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , footnote 156 to para. 125. 
53 Letter from Norway to the Panel, 4 August 2006, Annex 3-A.  Exhibit NOR-13.  WT/DS337/R 
 Page 17 
 
 
  disclosure of essential facts amounted to a draft of the Definitive Regulation that, very largely, fails to 
refer to any facts forming the basi s for the EC's determination.  Third , the EC violated Article 12 
because it failed to provide a reasoned and adequate  explanation for a number of its findings and 
conclusions. 
3. Conclusion 
4.51 Norway respectfully requests that the Pane l recommend that the Dispute Settlement Body 
request the EC to bring the contested measures in to conformity with its obligations under the Anti-
Dumping Agreement  and the GATT 1994. 
4.52 In addition, Norway respectfully requests the Pa nel to make use of its discretion under the 
second sentence of Article 19.1 of the DSU by sugges ting ways in which the EC could implement the 
recommendations and rulings of the DSB.  Given the nature and scope of the EC's violations of the 
Anti-Dumping Agreement  and of the GATT 1994, Norway believes that the EC's initiation of the 
investigation, and the measures resulting from it,  are vitiated and deprived of legal basis.  
Consequently, Norway respectfully requests the Panel to suggest that the EC implement the 
recommendations and rulings of the DSB by withdrawing the contested measures. 
B. FIRST WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES  
4.53 The following summarizes the Eu ropean Communities' arguments in its first written 
submission. 
1. Introduction 
2. Standard of Review 
4.54 The Panel must not conduct a de novo  review.   
3. Product Concerned 
4.55 Article 2.6 contains a definition, not obliga tions.  Article 2.1 contains no obligations 
regarding the selection of the product concerned.  The EC's selection of the product concerned cannot 
therefore be found inconsistent with those provisi ons.  Norway's consequential claims must also 
therefore fail. 
4.56 Norway confuses the concepts of product c oncerned and "like product".  Furthermore, 
Norway fails to demonstrate, on the basis of admi ssible facts and evidence or otherwise, that the 
product concerned could not include farmed salmon,  presented as fillets.  In any event, farmed 
salmon, however presented, is a like product. 
4. Domestic Industry 
4.57 Article 4.1 contains a definition, not an obligatio n.  Norway's consequential claims must also 
fail.  According to Norway, because of the situ ation of EC filleting-onl y undertakings, an anti-
dumping proceeding was by definition impossible.  No rway considers that all change is production, 
which would result in double countin g.  The position of industrial u sers is expressly provided for in 
Article 6.12, with which the EC complied.  "Produce" includes : "Bring (a thing) into existence; …".  The EC filleting-only undertakings are not concer ned with bringing the product concerned (farmed 
salmon) into existence, or producing  it.  Rather, they are concerned with the process of consuming  it.  
In a fisheries context the term "produce" particular ly has this meaning.  This is confirmed by the 
preparatory work and past GATT and WTO reports. WT/DS337/R 
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  4.58 In this case the measure at issue states clea rly that during the investigation period the 
estimated total EC production was 22,000 tonnes; that the 15 cooperating EC producers produced around 18,000 tonnes; and that they therefore represent around 82 per cent (i.e.  a major proportion) of EC production.  Norway does not contest the f actual accuracy of either of the numbers used to 
make this calculation.  The measure is thus c onsistent with the requirements of Article 4.1. 
4.59 The EC sample of EC producers complied with the requirements of the Anti-Dumping 
Agreement .  The EC did not conduct an injury analysis for only part of the EC industry.  It correctly 
defined that industry, and then analysed it as a whole, on the basis of permissible sampling 
techniques. 
5. Initiation 
4.60 Norway's consequential claims should be rej ected for the reasons already given above.   
6. Dumping  
(a) Limiting the examination under Article 6.10 
4.61 The EC has always preferred to base dumpi ng margins on producers rather than exporters, 
and in the salmon case it reverted to this traditional practice.  This was possible because of structural 
changes in the Norwegian industry. 
4.62 The same preference is reflected in the text of the Anti-Dumping Agreement , which assumes 
that normal values are determined for parties that 'produce'.  This interpretation also follows from 
Article 2.5, and has the advantage of discouraging producers from evading duties by selling to traders. 
4.63 The choice of companies made by the EC satisfies the criterion in Article 6.10 of the 'largest 
percentage by volume of exports from the country in  question that can reasonably be investigated.' 
Furthermore, by consulting and seeking agreement with the Norwegian fish producers association the 
EC sought to meet the goal set in Article 6.10.1, and to satisfy the criterion of reasonableness.  The 
ten companies selected by the EC constituted a satis factory choice, bearing in mind the information 
available to the EC at the time.   
(b) Below cost sales and Articles 2.2 and 2.2.1 
4.64 In calculating normal value the EC correctly applied Articles 2.2 and 2.2.1 of the Anti-
Dumping Agreement .  In particular, in applying the notion of sales below cost 'made within an 
extended period of time in substantial quantities and … at prices which do not provide for the 
recovery of all costs within a reasonable period of  time' the EC was entirely justified in using the 
investigation period as both the 'extended period of time' and the 'reasonable period of time'. 
4.65 The EC's practice of disregarding all domestic sales prices where less than 10 per cent are 
sold below cost is based on the general 'not in the ordinary course of trade' criterion, and not on the 
specific rule in Article 2.2.1.  The inclusion of such sales would risk distorting the result of the 
calculation. 
(c) SG&A and profits and Article 2.2.2 
4.66 Norway attacks the EC under Article 2.2.2 in regard to its calculation of the 'reasonable 
amount for administrative, selling and general costs and for profits' when constructing normal values 
because it excluded data regarding sales whose pric es were disregarded on grounds of low volume.   WT/DS337/R 
 Page 19 
 
 
  Norway argues that the sole ground for excluding such data is that the sales were not in the ordinary 
course of trade. 
4.67 In part Norway's claim is misplaced because it does not appreciate that the disregard of sales 
under the 'less than 10 per cent profitable rule' (above) is based on the ordinary course of trade principle.   
4.68 Norway is mistaken in assuming that the scope  of the phrase 'ordinary course of trade' in 
Article 2.2.2 is intended to exclude low volume sales .  As is shown by the example of the option of 
using sales prices to third countries, the phrase is not used in a uniform manner in Article 2.   
4.69 Furthermore, if data from low volume sales is not excluded when constructing prices the 
result will be precisely to cancel out the effect of excluding such sales from the calculation of normal 
values in accordance with Article 2. 2.  Such a pointless procedure cannot have been intended by the 
drafters, and would result in a comparison being b ased on data from sales that are declared by the 
Agreement to 'not permit a proper comparison'. 
(d) Use of facts available and Article 6.8 and Annex II 
4.70 Norway criticizes the EC for failing to observe the rules on 'facts available' regarding its 
treatment of filleting costs of the Norwegian producer Grieg. 
4.71 Although the information made available on this  matter before and during the verification 
visit was unsatisfactory, the EC did not resort to th e use of 'facts available', but used information from 
another company that was being investigated.  Co nsequently the EC cannot be criticized for not 
following the rules relevant to 'facts available'. 
4.72 The additional information sent to the EC by Gr ieg some months after the verification visit 
was unsatisfactory, and could not have been used without further verification, which was not possible 
at that stage.  For this reason, co ntrary to Norway's contention, the EC's treatment of this information 
was not in breach of paragr aph 3 of Annex II of the Anti-Dumping Agreement .  Furthermore, the EC 
did not infringe paragraph 6 of Annex II since the co mpany had given no 'further explanations' as that 
provision envisages. 
4.73 Finally, the EC's treatment of Grieg's financing costs involved no element of 'facts available'.  
There was no rejection of factual data by the EC, rath er the issue concerned the class of data that was 
required.  The EC insisted on the use of a commercial rate of interest in determining Grieg's costs.  
Grieg disputed this principle, but did not challenge the accuracy of th e rate used by the EC for this 
purpose.  The use of a three-year average rate refl ected the three-year basis that the EC used for 
assessing costs of salmon production (see Section XII, below). 
(e) Treatment of non-investigated companie s and Articles 6.8 and 9.4 and Annex II 
4.74 The minimum import prices (MIPs) used by the EC as an anti-dumping measure on 
Norwegian salmon were calculated at a level that  would prevent injury being caused to the EC 
domestic industry.  They were in all cases below the 'non-dumped MIPs', that is the MIPs that 
corresponded to the examined producers' normal values (after adding transport costs, etc.), and to the 
weighted average of such values.  They represented the application of the lesser-duty rule to a system 
where the 'liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value' (Article 9.4(ii)).   WT/DS337/R 
Page 20  
 
  4.75 Contrary to Norway's complaint, there was no need to disregard Grieg's normal value in 
making the calculation since it was not calculated on th e basis of 'facts available'.  In any event, the 
exclusion rule does not apply to margins determined under Article 9.4(ii) 
4.76 As regards the treatment of non-cooperating producers and exporters the EC has complied 
with the provisions in Article 6.8 and Annex II.  The EC made elaborate efforts to bring information 
of the investigation to the notice of Norwegian fi rms, and Norway has given no instance of any firm 
that was unaware of the investigation or of the potential consequences of not cooperating with it. 
7. Injury 
4.77 Norway challenged three distinct aspects of th e EC injury determination (determination of 
volume of dumped imports, price undercutting and the evaluation of price trends). 
4.78 First, as regards the volume of dumped imports, it was determined by extrapolation from a 
sample in accordance with the Anti-Dumping Agreement .  It follows from the Anti-Dumping 
Agreement  that it is more than appropriate to focu s the dumping determination on producers, rather 
than exporters.   
4.79 When Norway cites to the EC – Bed Linen (21.5)  case, it apparently ignores the fact that the 
legal conclusions in that case were based on the ve ry specific facts and circumstances of that case, 
considerably different from the present dispute.  The result which arose in EC – Bed Linen (21.5)  was 
statistically impossible in the present case.   
4.80 In any event, among the imports from the samp led companies, the EC also examined and 
included imports from those companies that exported to the Community via traders.  These imports 
were found to be dumped.   
4.81 Moreover, in the present case, the EC also had at its disposal other sources of information 
(besides sampling) to conclude that imports from the non-sampled companies were dumped.  On the 
basis of Eurostat data, it has been found – and ne ver challenged by Norway – that the imports from 
non-cooperating companies, accounting for approxi mately 20 per cent of all the imports, were 
dumped.   
4.82 The fact that one of the companies included in the sample had a de minimis  dumping margin 
does not change the correctness of the EC analysis.  A de minimis  dumping margin does not mean that 
a company is not dumping (quite to the contrary).  Even if de minimis  imports were excluded from the 
calculation of import volume, it would not have ma de any (significant) difference in the injury 
analysis.   
4.83 Second, as regards price undercutting, the pr ice premium enjoyed by EC salmon products 
does not play a role in a price undercutting analysis .  Price undercutting is a "snapshot" of the market 
situation and reflects nothing else but the real price differential.  The price premium (the amount a customer is willing to pay extra) only materialises  under normal market conditions, in an undistorted 
market (that the MIPs tried to restore).  In a mark et distorted by dumping the whole mechanics of the 
market no longer functions as normal (for instance, th ere is price manipulation, etc.).  Hence, the 
producer of the salmon can no longer confidently re ly on the price premium but will do anything to 
survive (depress prices, etc.).  Th is is evidenced by the findings of the investigation.  The EC took 
account of the price premium in the context of the determination of the level of MIP.   
4.84 Third, Norway argues that the EC vi olated Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement because  the EC examined the prices of the EC domestic industry in Euros and not in the 
alleged "operating currency" of the EC industry – in  pounds sterling (GBP).  Norway's legal test of  WT/DS337/R 
 Page 21 
 
 
  "operating currency" is entirely fabricated and does not have support in the Anti-Dumping Agreement  
or case law.  As acknowledged by Norway, the EC i nvestigating authority could have theoretically 
chosen any other currency, as long as that currency would have been used in  a consistent manner for 
all purposes throughout the investigation.  Currency is  just a common denominator, which, as long as 
it is used consistently throughout the proceeding, serves the Appellate Body requirement of unbiased, 
even-handed and fair examination.  The use of Eu ro by the EC investigating authority has been 
consistent throughout the examination.  Even if  the EC had used GBP, instead of Euro, as the 
common denominator, the results of the evaluation analysis under Article 3.4 if the Anti-Dumping 
Agreement  would be exactly the same.   
4.85 Even if Norway's argument were correct, ther e would be an overall price decline, since a 
significant part of the transactions of the Community  industry indeed takes place directly in Euro.  
Finally, even if there were no price decline – and Norway actually never seems to suggest that there 
was no overall price decline – it would not mean that the assessment of the EC investigating authority 
violated Articles 3.1 and 3.4 of the Anti-Dumping Agreement .   
8. Causation  
4.86 Norway argues that the EC failed to conduct a pr oper assessment of the injury caused to the 
EC industry by a couple of factors other than dumped imports (cost of production in the EC and 
imports of wild salmon from Canada and the United States). 
4.87 The methods by which WTO Members choose to carry out the process of separating and 
distinguishing the injurious effects of dumped im ports from the injurious effects of the other known 
causal factors are not prescribed by the Anti-Dumping Agreement .  What matters in the present case is 
whether the EC made a proper assessment and eval uation of very specific factual issues by proper 
methods and approaches not specifically prescribed by the Anti-Dumping Agreement  in accordance 
with that agreement.   
4.88 With regard to the cost of production of EC  producers, Norway grossly misquoted the EC 
Provisional Regulation.  The EC never stated that th ere were two separate factors relating to the cost 
of production: one related to the cost of productio n of the Norwegian producers (which Norway is not 
challenging) and another factor related to the cost of production of the EC producers.  Rather, what 
Norway portrays as separate factors were two separate arguments related to the same factor.  Moreover, Norway has not made any prima facie  case that the costs of production of the EC, and their 
"increase" over the years, have actually caused or contributed to the injury of the EC industry. 
4.89 Second, with regard to imports of wild sal mon from the Canada and United States, Norway 
actually does not adduce any evidence to make a prima facie  case.  Norway does not challenge the 
factual finding of the EC.  Instead, Norway attacks th e EC for the lack of explanation as to the source 
of evidence showing that the "majority" of impor ts from Canada and the United States are wild 
salmon.  Norway argues that the absence of such explanation means that the EC finding "must be 
disregarded as a mere speculation".  This legal th eory is erroneous and is supported by neither 
Articles 3.5 and 3.1 of the Anti-Dumping Agreement  nor by the case law.   
4.90 On the inter-changeability betw een wild salmon and farmed salmon, Norway, being short of 
factual evidence, refers to WTO case law on like pro ducts (regarding factors such as taste and prices).  
Besides a dubious relevance of that case law for the present case, this reference clearly does not 
replace factual evidence.   
4.91 Moreover, Norway discusses the in ter-changeability of wild and fa rmed salmon when sold to 
a customer as a fresh product.  This, however, is i rrelevant to the case at hand.  The US and Canadian 
wild salmon "is practically not offered in the market  for sale as a fresh product".  Only a small part is WT/DS337/R 
Page 22  
 
  sold as a fresh product to niche customers at high prices.  The market for the product concerned and 
imports from the Canada and US is different and th e wild and farmed salmon are not interchangeable. 
9. Minimum Import Prices 
4.92 The nature of the Minimum Import Prices (MIPs) imposed on imports of Norwegian salmon 
is described in Section VI.E, above.  As mentioned there, the MIPs were in all cases at a level below 
the corresponding non-dumped MIPs.  The use of thr ee-year average exchange rates follows logically 
from the use of a three-year basis in calculating costs for the purpose of constructing normal values 
(see Section I).   
4.93 Under the Anti-Dumping Agreement  the imposition of anti-dumping duties by means of MIPs 
(involving 'prospective normal values' as envisaged in Article 9.4(ii)) is distinct from that based on a 
predetermined dumping margin, and such a margin does not act as a cap on the duty that may be 
imposed by means of a MIP. 
10. Fixed Duties 
4.94 The EC's system of fixed duties for Norwegian salmon imports is a system of customs 
enforcement that is justified under Article XX(d) of  GATT 1994.  It is designed to deter evasion of 
lawfully imposed anti-dumping duties through misdeclaration of the customs value of the goods.  
Such action is envisaged in footnote 24 of the Anti-Dumping Agreement . 
4.95 The 'laws or regulations which are not inconsiste nt with the provisions of this Agreement' are 
the EC's anti-dumping measures against salmon as we ll as the obligations under ordinary customs law 
for importers to make truthful declarations regardi ng the value of goods that they are entering into the 
EC.  The fixed level duty is necessary to  secure compliance with such laws.   
4.96 As regards the obligations in the opening para graph of Article XX, the fixed duty can neither 
in its substance nor its application be characterized as amounting to an abuse or misuse of an exception, or to amount or lead to arbitrary or unjustifiable activity. 
11. Procedural Requirements 
4.97 Under Article 6.2 and 6.4 of the Anti-Dumping  Agreement  there is no obligation to operate a 
"record".  Norway itself shared this interpretati on when submitting proposals in the Doha Round to 
amend the agreement.  Rather, these provisions pr ovide for full access to all relevant non-confidential 
information during the investigation.  The EC has fully complied with that obligation by providing 
Norway with ample opportunities to see all relevant information.   
4.98 The duty of disclosure under Article 6.9 of the Anti-Dumping Agreement relates to facts.  
There is no duty to specifically identify in the disclosure document the source on which the assembled 
facts are based.  Rather, the agreement requires the authority to provide information about the 
essential facts by a simple reference to them.  The EC fully complied with this standard by having 
handed over to Norway on 28 October 2005 a draft regul ation containing refere nces to all relevant 
facts.  Accordingly, there is no ancillary breach of Article 6.2 of the Anti-Dumping Agreement.  
4.99 Under Article 12.2 of the Anti-Dumping Agreement  an investigating authority is required to 
provide "in sufficient detail the findings and conclusi ons reached on all issues of fact and law".  This 
"chapeau" is then further specified as regards findings in Article 12.2.2 of the 
Anti-Dumping 
Agreement.  An investigating authority must provide the information that it considers relevant, and the 
reasons that it held to be decisive for its findings, paying due regard to the requirements for the 
protection of confidential information.  Agains t that yardstick, the EC provided sufficient  WT/DS337/R 
 Page 23 
 
 
  explanations about its selection of the subject pr oduct, its domestic indus try determination, its 
dumping determination, its causation determination and the minimum import price. 
12. Normal Value and Producers' Costs 
4.100  Norway makes a number of claims regarding the EC's allocation of costs vis-à-vis the 
Norwegian producers.  Article 2.2.1.1 lays down th e basic rules.  These refe r to 'generally accepted 
accounting principles' and the EC makes reference to a number of IASB standards and principles. 
4.101  In keeping with the practice of the major Norw egian producers, the EC applied a system of 
three-year project accounting to the allocation of salmon production costs. 
4.102  Norway misinterprets the Agreement to pret end that, as regards non-recurring costs, only 
those costs that benefit production need be taken in to account.  Such an interpretation is mistaken, and 
would lead to a major distortion in the appearance of a company's financial position. 
4.103  Even as regards those costs that benefit production the Norwegian companies took an 
excessively narrow view of what should be included.   
4.104  In order to present a true picture of the co mpanies' financial situation the EC found it 
necessary to include costs falling into a number of important categories, such as discontinued 
operations (unless a whole business segment was invol ved), extraordinary charges, and accounting 
changes. 
4.105  A number of specific issues arose with individual  companies.  In one instance the EC found it 
appropriate to allow a write-down for a loss in va lue of biomass caused by unfavourable expected 
market price evolution, but not that resulting from defo rmity of the biomass, which is an inherent risk 
of the business. 
4.106  Contrary to Norway's allegation, the EC aut horities applied the same standards to the ten 
investigated companies.   
4.107  In applying the basic principles the EC reje cted a series of demands from the companies 
regarding, for example, facility closures, restructur ing costs, severance paymen ts, costs of destruction 
of salmon fry, and bad debts.  Overall, the EC rejects Norway's attempts to disregard any adverse 
event or a bad business decision that affects activity in a negative way. 
4.108  In keeping with its overall strategy the EC i nvestigated the salmon business of one firm as a 
business segment, regardless of whether the costs we re a consequence of direct business transactions 
or alternatively of financial participations, or of whether the company in which it participated 
discontinued its activities.  All these costs were cons idered non-recurring but being an integral part of 
the salmon activity were taken into account a nd depreciated over a three years period.   
4.109  Norway attempts to create confusion between the use of a three-year basis for determining 
production costs, and the spreading of costs over the life-time of an asset.  The latter process will lead 
to a costs being allocated to particular years.  In the case of non-recurring costs it is these annual 
allocations that the EC averaged over three years be cause of the special nature of salmon production.  
However, normal accounting valuation rules do not  apply when an asset is no longer used for its 
original purpose.   
4.110  The EC applied the same three year period to the collection of finance costs.  In several cases 
companies had wrongly attributed such costs to parent or group companies.   WT/DS337/R 
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  4.111  Regarding smolt costs, the EC agrees that for the purpose of determining the cost of 
production, quantities of smolt should be aligned to  quantities of harvested salmon, taking into 
account mortality.   
4.112  In the case of one company, although it had operated a project-accounting system, the 
relevant data could not be rec onciled with the audited annual acc ounts.  The latter were therefore 
used, and adjustments made as appropriate to simulate the three-year basis.   
4.113  In the case of a company for whic h records were inadequate, but  which was part of a group 
with audited accounts, the amount for selling, genera l and administrative costs was based on the 'other 
operating expenses' category at th e consolidated group level. 
4.114  Finally, the claims regarding the cost of purchased salmon in respect of another company 
were never verified, and coul d not be accepted by the EC. 
13. Conclusion and Findings Requested 
4.115  For the reasons set out in this First Written Subm ission, the EC requests the Panel to reject all 
of Norway's claims and arguments, finding instead th at, with respect to each of them, the EC acted 
consistently with all its obligations under the Anti-Dumping Agreement , the GATT 1994 and the 
covered agreements, including (non-exhaustively) as set out in the following paragraphs. 
4.116  For the reasons set out in Section III of this First Written Submission, the EC requests the 
Panel to reject Norway's claims that the EC acted inconsistently with Articles 2.1, 2.6 and 
(consequently) Articles 2.1, 3 and 5 of the Anti-Dumping Agreement  when selecting the product 
concerned. 
4.117  For the reasons set out in Section IV of this First Written Submission, the EC requests the 
Panel to reject Norway's claims that the EC acted  inconsistently with Artic le 4.1 and (consequently) 
Articles 3 and 5 of the Anti-Dumping Agreement  when determining the domestic industry. 
4.118  For the reasons set out in Section V of this  First Written Submission, the EC requests the 
Panel to reject Norway's claims that the EC acted  inconsistently with Articles 5.1 and 5.4 of the Anti-
Dumping Agreement  when initiating the original investigation. 
4.119  For the reasons set out in Section VI of this First Written Submission the EC requests the 
Panel to reject Norway's claims that the EC acted inconsistently with the following provisions of the Anti-Dumping Agreement : 
- Article 6.10 in its selection of No rwegian producers and exporters for 
examination; 
 
- Articles 2.2 and 2.2.1 in regard to the determination of below-cost sales; 
 
- Article 2.2.2 in its determination of SG&A  and profits in regard to sales made in 
low volumes; 
 
- Article 6.8 and Annex II, paragraphs 3 a nd 6 in regard to the determination of 
normal value of one investigated company; and 
 
- Articles 6.8 and 9.4, and Annex II, paragraph 1, in regard to the margins of 
dumping calculated for non-sampled companies. 
  WT/DS337/R 
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  4.120  For the reasons set out in Section VII of this First Written Submission the EC requests the 
Panel to reject Norway's claims that, in its injury  determination, the EC acted inconsistently with : 
- Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping 
Agreement in its examination of the volume of dumped imports;  
 
- Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping 
Agreement in its examination of price undercutting; and 
 
- Articles 3.1 and 3.4 of the Anti-Dumping Agreement in its evaluation of price 
trends affecting EC producers.   
 
4.121  For the reasons set out in Section VIII of this First Written Submission the EC requests the 
Panel to reject the Norway's claims that, in its causation determination, the EC acted inconsistently 
with :  
- Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC did not fail 
to properly assess the injurious effects of the EC industry's increased cost of 
production; and 
 
- Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC did not fail 
to properly assess the injurious effects of imports of salmon from Canada and the United States. 
 
4.122  For the reasons set out in Section IX of this First Written Submission the EC requests the 
Panel to reject the Norway's claims that its anti-dumping measures violated Article VI:2 of GATT 1994 and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-Dumping Agreement  by imposing 
minimum import prices exceeding the normal value and not limited to the dumping margin. 
4.123  For the reasons set out in Section X of this First Written Submission the EC requests the 
Panel to reject the Norway's claims that its anti-dumping measures violated Article VI:2 of GATT 1994 and Articles 9.1, 9.2, and 9.3 of the Anti-Dumping Agreement  by imposing fixed duties 
that exceeded the dumping margin. 
4.124  For the reasons set out in Section XI of this First Written Submission the EC requests the 
Panel to reject Norway's claims that the EC act ed inconsistently with Articles 6 and 12 of the Anti-
Dumping Agreement . 
4.125  For the reasons set out in Section XII of this First Written Submission the EC requests the 
Panel to reject Norway's claims that it infringed Ar ticle 2, and in particular Article 2.2.1.1 of the Anti-
Dumping Agreement  when calculating the costs of the inv estigated companies for the purpose of 
determining their normal values. 
C. F
IRST ORAL STATEMENT OF NORWAY  
4.126  The following summarizes Norway's argu ments in its first oral statement. 
1. Introduction 
4.127  The EC has failed to respect many of the substantive and procedural requirements of the 
GATT 1994 and the Anti-Dumping Agreement.  Rather than addressing the substance of Norway's 
claims, the EC claims a very wide discretion for its  authority to do as it wished, often in interpretive 
matters.  The EC also tries to fill in the many hol es in its determination by offering new evidence and WT/DS337/R 
Page 26  
 
  new reasons to justify its measure.  This is inadmi ssible, and only serves to hi ghlight the shortcomings 
in the EC's determination.   
2. Inadmissible Evidence and Ex Post  Rationalization 
4.128  Norway states two objections to the EC's First Written Submission.  First , Norway objects to 
seven exhibits submitted by the EC.  Norway requests that the Panel reject Exhibits EC-2, EC-10, EC-
12, EC-13, EC-14, EC-15 and 16 as inadmissible b ecause they contain new information that is not 
part of the record of investigation.     
4.129  Second , Norway also objects to numerous new explanations the EC now provides for the 
investigating authority's determinations that were not provided by the investigating authority itself in 
its published determination.  In many instances,  the EC: provides a new explanation where the 
authority provided no explanation; provides new reasons to supplement  an inadequate explanation 
given by the authority; or provides an explanation that is different  from the explanation given by the 
authority.   
4.130  This litigation technique has been  referred to by panels as " ex post  rationalization".
54  A WTO 
Member may not justify an authority's determinations  by providing reasons that the authority itself did 
not provide.55  A panel's task is to establish whether the investigating authority  provided a reasoned 
and adequate explanation in its published determination , and not whether the defending Member  did 
so in a subsequent dispute .  Examination of new evidence and explanations requires a panel "to 
perform a de novo  review" of what the investigating authority should have done.56  That is not the 
Panel's task.   
3. The Product Under Consideration 
4.131  Norway argues that Articles 2.1 and 2.6 of the Anti-Dumping Agreement  require that all 
models of the "product under consider ation" be "like", that is "iden tical" or "closely resembling" each 
other.  Under Article 2.1, a "dumping" determination involves a single  aggregate comparison  of 
export price and normal value for the investigated pr oduct.  Models are just a helpful, but temporary, 
tool that authorities may use to minimize the need for adjustments under Article 2.4.57   
4.132  Furthermore, Norway argues that the inves tigating authorities must present a reasoned and 
adequate explanation of its dete rmination of the product under cons ideration.  The EC failed to 
determine the scope of the "product under considerati on" consistently with Articles 2.1, read together 
with  2.6 of the Anti-Dumping Agreement .  By so doing the EC initiated an investigation into the 
wrong product, in violation of Article 5.4; made a single "dumping" determination, under Article 2.1, 
for an improperly defined single product, without es tablishing that the different products subject to 
that determination were, in fact, dumped; and, finally made an inju ry determination under Article 3 
premised on an incorrect product determination. 
4. Domestic Industry  
4.133  Although the EC defined the "product under consider ation" in very broad terms, it defined the 
EC domestic industry in extremely narrow terms.   In particular, whereas the "product under 
                                                      
54 Panel Report, Argentina - Poultry , paras. 7.284, 7.306 and 7.321.   Panel Report, Guatemala – 
Cement II , para. 8.48.   
55 Appellate Body Report, US – Wheat Gluten , para. 162.  Panel Report, Argentina - Poultry , 
paras. 7.284, 7.306 and 7.321.   Panel Report, Guatemala – Cement II , para. 8.48; see also Appellate Body 
Report, US – CVD on DRAMS , para. 165. 
56 Panel Report, US – Softwood Lumber V , para. 7.40. 
57 Panel Report, US – Softwood Lumber V , para. 7.207.  WT/DS337/R 
 Page 27 
 
 
  consideration" includes fillets, the producers of  these like products are excluded from the "domestic 
industry".  The EC also improperly excluded numerous other categories of producer.  As a result, there is a fatal mismatch between the scope of the product and the domestic industry.   
4.134  In this dispute, the selection of the complainan ts as the sole group of producers in the industry 
involves an egregious lack of objec tivity because these producers are the mo st likely to be injured, in 
violation of Article 3.  The EC also violated  Article 5.4 because it failed to assess whether the 
complaint was made "by or on behalf" of the proper do mestic industry.  In particular, the EC failed to 
include the producers of filleted products in its asse ssment under Article 5.4.  The EC, therefore, had 
no legal basis to initiate an anti-dumping investigation. 
4.135  Furthermore, Norway contends that the EC acted  inconsistently with Articles 3.1, 3.4 and 3.5 
of the Anti-Dumping Agreement  because it conducted an examinati on of certain injury factors on the 
basis of a sample.  Although footnote 13 of the Anti-Dumping Agreement  authorizes sampling of the 
domestic industry during initiation, and Article 6.10 authorizes sampling in a dumping determination, 
the Agreement  does not authorize sampling in an injury determination.   
5. Dumping Determination 
4.136  First, the EC chose to compose a sample on the basi s of the "largest percentage of the volume 
of the exports … which can reasonably be investigated".
58  However, the EC included only exporting 
producers  in the sample, and excluded all independent exporters that did not themselves produce .  
The EC thereby failed to examine the largest possibl e volume of exports from Norway that could have 
been examined, in violation of Article 6.10.  Even assuming the EC could limit its sample only to 
producers, quod non,  the EC still failed to sample the ten pr oducers with the largest export volumes, 
as it excluded Salmar and Bremnes, again violating Article 6.10.   
4.137  Second, Article 2.2.1 states that sales may be rejected by reason of price solely if the 
investigating authorities "determine" that the conditions  in that provision – including the cost recovery 
test – have been met.  The EC's rejection of sal es by reason of price does not even mention the term 
"cost recovery", far less make a determination that the prices do not provide for cost recovery in a 
reasonable period.  Before the Panel, the EC does not  even assert that it made a determination on cost 
recovery.  For this reason alone, the EC has violated Article 2.2.1. 
4.138  Third, the EC rejected actual sales data to cal culate profit margins for investigated 
producers.59  This approach contradicts the approach of the panel, the Appellate Body as well as of the 
EC itself, in EC – Tube or Pipe , which required that "actual SG&A  and profit data for sales in the 
ordinary course of trade" be used if such sales exist, irrespective of the low volume of the sales .60   
The EC thereby violated Article 2.2.2.   
4.139  Fourth, in calculating Grieg's filleting and financing costs, the EC rejected valid and usable 
data supplied by Grieg and, instead, resorted to "f acts available".  Although the EC used information 
from a secondary source, it argues that it did not use facts available, and that it can thus bypass the 
obligations of Article 6.8 and Annex II of the Anti-Dumping Agreement .  Norway disagrees.  
                                                      
58 EC's FWS, para. 126. 
59 Provisional Regulation, para. 29 ("Five companie s had overall representative sales but it was found 
that for only one company were certain types of the product concerned, which were also exported, sold on the 
domestic market in the ordinary course of trade").  Although not clear, the EC may have used actual sales data to calculate a profit margin for certain  models for one particular producer. 
60 Appellate Body Report, EC – Tube or Pipe Fittings , para. 97. WT/DS337/R 
Page 28  
 
  Article 6.8 and Annex II appli es whenever an authority uses " best information available" "from a 
secondary source".
61   
4.140  Fifth, the EC violated Article 9.4 of the Anti-Dumping Agreement in its treatment of non-
sampled companies because the EC: (a) incorrectly calculated that margin – something the EC now 
acknowledges62 – and (b) failed to exclude from the calcu lation Grieg's margin, which was based on 
facts available.63  Separately, Norway also claims that the "residual margin" of 20.9 per cent assigned 
to non-cooperating non-sampled producers violates the maximum weighted average margin under 
Article 9.4 and includes Grieg's normal value.64  
4.141  Sixth,  the EC violated Article 6.8 and Annex II in fixing a residual margin in respect of so-
called "non-cooperative" non-sampled companies.  The EC argues that it complied with Article 6.8 
because it provided a notice of initiation to known co mpanies and to industry associations.  The EC's 
arguments must be rejected.  Similar to Mexico – Rice , the companies that are subject to the residual 
margin received no notifications, at all, from the EC (Annex II(1)).65 Also, having concluded that 
certain companies had not provided necessary informati on, the EC did not inform any of them of the 
information that was missing (Annex II(6)); it did not give them a chance to provide further 
explanations in a reasonable period (Annex II(6 )); and, it did not state how the alleged non-
cooperation hindered the inves tigation (Article 6.8).   
6. Injury 
4.142  The EC simply assumed that a sample containing exclusively producers  permitted it to draw 
conclusions regarding dumping by exporters .  The EC composed a sample that was not statistically 
valid. In such a situation, the Appellate Body h as cautioned that evidence from the sample could be 
used as one " part of the positive evidence" regarding th e volume of dumped imports from non-
sampled companies.66  There must, therefore, be other  "positive evidence" to ju stify the determination 
made regarding dumped imports from non-examined companies.  The EC provided none.  The EC 
also improperly included Nordlaks' imports  in the volume of dumped imports.   
4.143  Norway challenges the EC's dete rmination on price undercutting  because the EC failed to take 
into account a fundamental fact:  namely, that EC  producers enjoy a considerable price premium over 
the prices of imported Norwegian salmon.  The EC was fully aware of this factor67, but gave no 
reasons in the Definitive Regulation to explain why the price premium was not relevant to the price 
undercutting analysis and now only presents irrelevant ex post  rationalization. 
4.144  In the injury determination, the EC examined cer tain financial indicators for a sample of just 
five Scottish companies and found that the companies' sales prices declined by 9 per cent  when 
measured in euros.  Norway claims that th e material currency for examining price trends  for these 
companies is pounds sterling, and not euros.  Du ring the period considered, the euro appreciated 
against the pound by almost exactly 9 per cent .  Thus, from the perspective of the examined 
companies, no price decline affected their financial performance because of the movement in 
currencies. 
                                                      
61 Title of Annex II of the Anti-Dumping Agreement  and Annex II(7). 
62 EC's FWS, para. 312. 
63 Norway's FWS, paras. 470 to 477. 
64 Norway's FWS, paras. 478 to 481. 
65 Norway submits a list of those companies in Exhibit NOR-152; this list was submitted to the EC in 
Annex 2 to a letter from FHL of 4 May 2005. 
66 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 138. 
67 Norway's FWS, paras. 528 and 531 to 538.  WT/DS337/R 
 Page 29 
 
 
  7. Causation 
4.145  The EC recognizes that "it h as been established that the production costs  did increase ."68   If 
costs had not increased, the domestic indus try would have remained profitable.69  In the investigation, 
the EC failed to examine this factor and, therefore,  failed to ensure that th e injury caused by cost 
increases was not improperly attributed to dumped impor ts.  Furthermore, the EC's determination fails 
to provide an explanation disclosing how the eviden ce of record supports the EC's determination that 
salmon imports from Canada and the United States cau sed no injury to the domestic industry.  Its new 
evidence is both inadmissible and irrelevant.   
8. MIPs 
4.146  Norway has made a prima facie  case that the EC's MIPs exceed individual and weighted 
average normal values and are, therefore, in violatio n of Articles 9.2, 9.4 and VI:2.  The EC has not 
even attempted to rebut Norway's calculations.  Norway also claims that the EC's variable anti-
dumping duties may not exceed the individual dumping margins  determined for sampled companies.  
The EC measure does so, in violation of Articles 9.1, 9.2, 9.3 and Article VI:2 of the GATT 1994, 
because there is no cap in the EC's measure that lim its the duty to the dumping margin.  This ceiling is 
dictated by the overarching principle  expressed in Article VI:2 and Article 11.1 that an anti-dumping 
duty is applied only " to the extent necessary to counteract dumping  which is causing injury ."70   
9. Fixed Duties 
4.147  The EC does not contest that the ad valorem  equivalent of the fixed duty exceeds the 
dumping margin for a number of the investigated co mpanies.  Instead, the EC argues that its fixed 
anti-dumping duties are not actually anti-dumping duties, but "a very specialized [duty] designed to 
deter evasion of lawfully imposed anti-dumping dut ies" through fraudulent customs declarations.71  
Therefore, according to the EC, the fixed duties do not represent "specific action against dumping".72  
Although creative, this argument is wrong.  The proper characterization of the fixed duty as and anti-
dumping measure is evident inter alia  in the legal basis that the EC used to adopt the Definitive 
Regulation.   
10. Procedural Requirements 
4.148  The EC failed to provide Norway with access to  all the information in the record of the 
investigation that was relevant to Norway's case.  The EC does not argue that it was not " practicable " 
to show the 68 missing documents to Norway; nor that any of the missing documents was not "relevant " to Norway's case; nor that any of the documents was not " used" by the authority.  In 
principle, therefore, the EC accepts that it was obl iged to show the 68 missing documents to Norway 
under Article 6.4.   
4.149  The EC failed to "inform all interested par ties of the essential facts under consideration", 
pursuant to Article 6.9.  Norway makes particular  arguments relating to the dumping determination, 
the definition of the domestic industry, causation, and the remedy determination. 
4.150  Norway also claims that the EC viol ated Articles 12.2 and 12.2.2 of the Anti-Dumping 
Agreement  by failing to provide a reasoned and adequate explanation for a number of its findings.  
                                                     
 
68 EC's FWS, para. 413.  Original emphasis. 
69 Norway's FWS, para. 586. 
70 Appellate Body Report, US – OCTG Sunset Reviews (Mexico) , para. 115.  Emphasis added.   
71 EC's FWS, para. 501. 
72 EC's FWS, para. 508. WT/DS337/R 
Page 30  
 
  The EC's counter-argument is that "Article 12.2 is satisfied when an investigating authority provides 
the information that it considers relevant, and the reasons that it held to be decisive."
73  However, it is 
absurd to suggest that an authority can decide for itself whether its conduct meets a WTO standard.  
That is the task of panels and the Appellate Body. 
11. Cost Adjustments 
4.151  Norway focuses in this opening statement on two important cross-cutting issues arising from 
the EC's submission: (1) the EC's arguments for including all non-recurring costs ("NRC") in the cost 
of production and (2) the pervasive factual inaccuracies in the EC's statements.   
4.152  Norway argues that the term "costs of production" in Article 2.2.1.1 of the Anti-Dumping 
Agreement  measures the value of the resources that  are used to produce a good .74  Thus, for a cost to 
be a cost of production, there must be a relations hip between the cost and production.  The EC adopts 
an impermissibly expansive defi nition of cost of production.  First , the EC considers that any cost 
item that benefits "future profitability " of a company or group is a "cost of production" for salmon.75  
Second , the EC also claims that any reduction  in the equity or "wealth" of a company is a cost that 
benefits production.76  The EC tries to rewrite Article 2.2.1.1 as referring to NRC that " benefit  future 
and/or current [ profitability ]".  However, the drafters of the Anti-Dumping Agreement  used the word 
"profit" in other provisions of the Anti-Dumping Agreement  when they saw fit.77  The relationship 
required by the Agreement  is between costs  and production , not costs  and profitability .   
4.153  Norway has presented a number of company-sp ecific challenges related to "Non-recurring 
costs" (e.g.  cost of restructuring and closing fac ilities) and costs unrelated to salmon production (e.g.  
costs related to losses on investments in other ac tivities), as well as challenges to what seems basic 
factual inaccuracies. 
4.154  Norway also challenges the approach of the EC   whereby the EC simply totalled up NRC for 
a three-year period and divided the total by three.  There is no legal basis for using such a three-year 
period.  The EC has also presented an ex post  rationalization of its three-year averaging based on the 
"project accounting" methodology allegedly used by the authority.  However, the EC did not use 
project accounting in its cost calculations.  The EC 's arguments also contain several other factual 
inaccuracies.   
D. FIRST ORAL STATEMENT OF THE EUROPEAN COMMUNITIES  
4.155  The following summarizes the Eur opean Communities' arguments in its first oral statement. 
1. Introduction 
4.156  Mr Chairman, Members of the Panel, good morning.  On behalf of the European 
Communities (EC) I would like to thank you for agreeing to serve on this Panel and to thank the 
Secretariat for all the work they have done, and will do in facilitating your task. 
4.157  In this dispute Norway has launched a great many claims in respect of the EC's decision in the 
salmon anti-dumping proceedings, covering practically every aspect of the measure.  The EC has 
responded fully and decisively to these claims in  its First Written Submission.  I do not intend to 
                                                      
73 EC's FWS, para. 564. 
74 Norway's FWS, para. 798. 
75 EC's FWS, paras. 642, 658, 668 and 672. 
76 EC's FWS, para. 642. 
77 Article 2.2, 2.2.2 and 2.2.2(iii).  WT/DS337/R 
 Page 31 
 
 
  repeat today the points we have made in that Submission, although we of course remain ready to 
explain and elaborate any of those points.  Rather  in this Statement I intend to address the overall 
question of the proper role of the Panel in review ing a national decision of this kind, as regards the 
establishment and evaluation of issues of fact.   
4.158  However, in light of the scattergun style adopted by Norway in its First Written Submission 
[and in its First Oral Statement] I think it wort h taking an early opportunity to emphasize a basic 
characteristic of the EC's investigation on sal mon dumping and imposition of anti-dumping measures 
which are now challenged by Norway.  This was an investigation based on, and carried out in 
accordance with, rules.  In the firs t instance the rules are those of the EC's Anti-Dumping Regulation.  
But this Regulation is merely the applicati on of the rules contained in GATT 1994 and the Anti-
Dumping Agreement .  In so far as Norway bases its claims on these rules the EC is ready and able to 
answer them, and demonstrate the complete consiste ncy of its actions with those rules.  But when 
Norway engages in loose criticisms of the EC's actions, without reference to WTO obligations, we 
will not be replying.  And we trust that the panel will treat such statements with similar indifference.   
4.159  As the Panel is well aware, unique ly among the WTO agreements, the Anti-Dumping 
Agreement  contains a specific provision governing the sta ndard of review to be  adopted by Panels.  
Article 17.6(i) states that: 
"in its assessment of the facts of the matte r, the panel shall determine whether the 
authorities' establishment of the facts w as proper and whether their evaluation of 
those facts was unbiased and objective.  If the establishment of the facts was proper 
and the evaluation was unbiased and objectiv e, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned …." 
4.160  In the salmon investigation the EC authorities were frequently faced with the task of 
establishing and evaluating facts, and many such issues have been raised by Norway in its complaints.  
The EC believes that there is a particular need in  the present case to emphasize this part of the Panel's 
responsibilities.  Norway's contentions frequently a ppear to be encouraging the Panel to take upon 
itself the role of rehearing the matter – a de novo investigation.   
4.161  I will devote the rest of this statement to examining how the proper standard should be 
applied to the various aspects of this case.  For co nvenience I will continue our practice of following 
the order in which Norway has presented its clai ms, however illogical that might seem at times. 
2. Standard of Review 
(a) Domestic industry 
4.162  The legal criterion to be applied regarding the identification of the 'domestic industry' to 
which injury is caused by dumping is set out clearly in Article 4 of the Anti-Dumping Agreement : 'the 
domestic producers as a whole of the like products or  to those of them whose collective output of the 
products constitutes a major proportion of the tota l domestic production of those products.' In the 
salmon investigation the EC authority was faced w ith a complicated situation in which the product 
goes through one or more of a series of processes and,  in some instances, operators, before it is sold.  
The facts relating to the various 'presentations' of salmon are not in doubt, but the way in which those 
facts should be evaluated in order to identify the 'producer' of the salmon has proved to be 
contentious.   
4.163  The EC does not suggest that there is no law in the application of the notion of 'producer'.  
Thus, it may be apparent that the firms in question,  although they are producers, are not producers of 
the like products, just as, for example, the cattle producers in the Manufacturing Beef case were not WT/DS337/R 
Page 32  
 
  producers of beef.  However, once the legal rul es have been applied and have not excluded the 
situation as one in which the firms in question qua lify as producers of the like product, the authorities 
have the task of evaluating the facts to see whether this criterion is met.  This evaluation is not a 
simple yes/no issue.  Particularly in a complex s ituation such as that of salmon production, it involves 
weighing factors some of which may be positive and others negative.   
4.164  It was following such a process of evaluation that  the EC investigating authority arrived at the 
conclusion that filleting-only entities should not be in cluded in the notion of the EC 'producers' of 
salmon.  It's decisions should therefore be assessed  in accordance with the criteria of Article 17.6(i). 
4.165  The need to evaluate facts also arises in the u se of sampling in the analysis of the condition of 
the domestic industry.  That sampling is a satisfactor y method of factual examination is reflected in its 
explicit endorsement by the Anti-Dumping Agreement  as regards the determination of the degree of 
support for complaints and the level of dumping margin s.  Thus, the use of sampling is not inherently 
biased or unobjective.  In fact, in some circumst ances it may be the only method reasonably available 
to an investigating authority.  Furthermore, it should not be overlooked that in the present case, the 
data established at the level of the sample have b een verified, to the extent possible, with data 
generated from other sources.   
(b) Dumping issues 
4.166  The application of the correct standard of review  is also an important consideration as regards 
several of the dumping issues raised by Norway in section V of its First Written Submission.   
4.167  Firstly, the EC's decision (substantially in ag reement with Norway) to examine dumping by 
focusing on those firms that produced the salmon whic h was exported to the EC involved elements of 
factual evaluation on the part of the investigating au thority in deciding how best to achieve the goals 
of the Anti-Dumping Agreement .  More especially, in the choice of firms as regards the criterion in 
Article 6.10 of the Anti-Dumping Agreement  of the "largest percentage of the volume of the exports 
from the country in question that can reasonably be  investigated" the EC authority had to make a 
difficult evaluation of the facts that it had available.  Another investigating authority, or the Panel had 
it been in that position, might have chosen a sligh tly different list of companies for examination, but 
this is not a ground for condemning the EC decisi on, which was made objectively and without bias. 
4.168  Secondly, in its handling of certain costs of the Norwegian producer Grieg, the EC was faced 
with particular problems regarding the establishment of the facts.  Norway has attempted to present 
the situation as one where the EC authority invoked th e rules on 'facts available'.  The fallacies in 
Norway's arguments are explained in the EC's First Written Submission.  The special rules of 
Annex II of the Anti-Dumping Agreement  therefore do not apply.  However, the actions of the EC 
authority continue to be subject to the standard laid down in Article 17.6(i) – the establishment of 
facts must be proper.  The detailed account of the EC authority's dealings with Grieg that is given in 
the Submission show that the requirements of this standard were more than satisfied.  The Panel 
should therefore not interfere with the authority's findings. 
(c) Injury 
4.169  The issue of the standard of review also arises in regard to Norway's attack on the EC for its 
conclusion that all Norwegian salmon exports were  being dumped and were causing injury to the 
domestic industry.  In its First Written Submission  the EC gives the justification for treating all 
imports from Norway as being dumped.  For pr esent purposes the EC wish es only to identify the 
standard of review that the Panel should exercise in this regard.  WT/DS337/R 
 Page 33 
 
 
  4.170  The process in which the EC authority was e ngaged in reaching its conclusion was one of 
evaluation of facts.  It had the unequivocal fact ual information gathered from the investigated 
companies.  Additionally, it also had,   for exampl e, Eurostat data.  The only question to be addressed 
by the Panel is whether Norway has establishe d that the EC's evaluation was biased and/or 
unobjective.  The EC contends that Norway has pr esented no evidence to support such a claim.   
4.171  An even more straightforward situation for the operation of the basic standard of review is 
that concerning the evaluation of price premium and th e price trends.  The EC is not here concerned to 
repeat the justifications that it supplied in its First Written Submission for adopting this approach.  
Rather, it wants to emphasize that the issue is not one  on which the Panel is expected to make its own 
decision.  It is for Norway to establish that the decision made by the EC investigating authority was 
biased and unobjective.   
(d) Causation 
4.172  Norway has also made claims (under Article 3.5 of the Anti-Dumping Agreement ) regarding 
the EC's analysis of causation in the salmon investig ation.  Here again the proper application of the 
standard of review is crucial for the correct exercise  of the Panel's jurisdiction.  The need to 'separate 
and distinguish' the injurious effects of the vari ous factors has been firmly emphasized by the 
Appellate Body.  The steps that the EC took in  this respect must be assessed according to the 
'unbiased and objective' criterion of Article 17.6(i).  It is not for the Panel, still less for Norway, to reach alternative conclusions and claim that the EC  was therefore wrong and in breach of Article 3.5. 
4.173  Norway focuses on one particular aspect of causation – the effect of imports of salmon from 
Canada and the US – and criticizes the EC for failing to provide an e xplanation for its finding that 'on 
the basis of information gathered during the investiga tion, it appears that the vast part of imports from 
USA and Canada consists mostly of wild salmon, so that it is unlikely that imports from these two countries could have a significant impact on the situation of the Community industry.'
78 Here the issue 
is one of establishment of the facts, and Norway has provided no basis for concluding that the EC has 
fallen short of the 'proper' standa rd required by Article 17.6(i).   
(e) Producers' costs 
4.174  A series of complaints are made by Norway in Section XI of its First Written Submission 
regarding the determination of producing companies' costs.  Such determinations were of crucial 
importance because the EC had in all cases to construct normal values from companies' costs and profits rather than rely on their sales prices.  Rules governing allocation of costs are contained in 
Article 2.2.1.1 of the Anti-Dumping Agreement , but they are largely confined to broad statements of 
principle, whereas many of the ques tions that arose during the investig ation, or that are now posed by 
Norway, are markedly factual in character.   
4.175  Most of these questions concerned the evaluation  of facts.  In this investigation factual 
evaluations had to be carried out at various levels .  On the one hand, the EC was faced with detailed 
issues regarding particular cost items, such as how  in a particular company to account for severance 
pay or destruction of salmon fry.  On the other ha nd, it had to make evaluations of a strategic 
character that would have implications in a whole range of individual circumstances.   
4.176  Two such strategic issues can be identified.  Firstly, because of the peculiar characteristic of 
the salmon industry that production takes several year s, the EC (in line with the leading producers) 
decided to apply a system of project accounting, i.e.   one that takes account of all the costs incurred 
                                                     
 
78 Provisional Regulation, Recital 96.  Also Definitive Regulation, para. 85. WT/DS337/R 
Page 34  
 
  over the whole period of time (three years) that it takes to produce salmon.  The justification for 
adopting this approach is given in the EC's First Wr itten Submission, and need not be repeated here.   
4.177  Secondly, the EC found itself in disagreement with the companies regarding the treatment of 
'non-recurring' costs.  To some extent this disagreem ent is legal in character, and concerns the correct 
interpretation of Article 2.2.1.1.  Thus, Norway's a ttempt to read this provision in order to prevent 
allocation of costs that do not benefit production is  answered and refuted in the EC's First Written 
Submission.  However, once this legal issue is de termined there remain important decisions to be 
made regarding the allocation of non-benefiting, non-recurring costs.  The EC explains in its 
Submission how it made these decisions.   
4.178  For the present purposes it is not the substance of these issues that is important but their 
character as evaluations of fact.  In accordance with  Article 17.6(i) the decisions that the EC reached 
in regard to the use of project accounting and th e allocation of non-recurring costs must be accepted 
by the Panel unless Norway can show them to have been biased or not objective.  The EC contends 
that the explanations which it has given for these decisions amply satisfy these standards.  In some 
respects it has the benefit not merely of the force of its own arguments, but also of the expert and 
objective guidance provided by standards of th e International Accounting Standards Board. 
4.179  In addition to these strategic decisions the EC investigating authority made numerous 
individual decisions about costs, often relating to the allocation of non-recurring costs.  Norway has 
challenged many of these decisions in these proceedi ngs.  They are explained in various parts of 
Section XII of the EC's First Written Submission, and must also be assessed  in accordance with the 
criteria of Article 17.6(i) of the Anti-Dumping Agreement .  The Panel must not take on itself the task 
of deciding what would be the 'correct' rulings in su ch cases.  Rather it is for Norway to prove that the 
steps taken by the EC failed to meet the criteria of objectivity and avoidance of bias. 
3. Conclusion 
4.180  Mr Chairman, Members of the Panel, I began this  Statement by pointing to a particular risk 
that I believe accompanies these proceedings.  This risk  is that Panel would start to act as an appeal 
rather than as a review body.  Of course, I do not suggest that it would deliberately take on itself such 
an improper role.  Rather the danger is that with th e kind of issues that have to be examined the most 
natural response of the Panel would be to express it s own view as to how they should be, or should 
have been, decided.  Frankly, given the manner in  which it has presented the issues, that is an 
approach which the Complaining pa rty would apparently like to enc ourage.  The EC urges the Panel 
to resist this temptation.  In particular, wherever  the EC authority was called on to evaluate a factual 
situation, we should bear in mind that the issue is not whether it arrived at the 'correct' solution, but 
whether it behaved objectively and without bias.  Furt hermore, it is for Norway to prove that the EC 
did not meet these standards. 
4.181  We remain confident that the Panel will respect  this principle.  I thank the Panel for its 
attention and look forward to answeri ng any questions that you may have. 
E. S
ECOND WRITTEN SUBMISSION OF NORWAY  
4.182  The following summarizes Norway's arguments in its second written submission. 
1. Introduction 
4.183  This submission addresses arguments from the EC's First Written Submission that were not 
addressed in Norway's Opening Statement, and al so counters arguments made by the EC in its 
Opening Statement, and Closing Statement of 13 December 2006 at the First Substantive Meeting  WT/DS337/R 
 Page 35 
 
 
  with the Parties ("Closing Statement").  To avoid repetition, Norway provides extensive cross-
references to the arguments made in its earlier s ubmissions and in today's responses to the Panel's 
questions. 
2. Seven of the EC's New Exhibits are Inadmissible and Support Improper Ex Post  
Rationalizations 
4.184  The Panel declined Norway's request, in its lett er of 4 August 2006, to request from the EC a 
list of documents that form part of the record of th e EC's investigation.  Norway now finds itself in the 
same position that Brazil did in EC – Tube or Pipe , confronted by seven new exhibits that it has never 
seen before.  In Norway's view, all seven of the contested Exhibits – EC-2, EC-10, EC-12, EC-13, 
EC-14, EC-15, and EC-16 – must be rejected as inadmissible because they contain information that 
the EC has been unable to demonstrate was before th e investigating authority; that was not shown to 
interested parties under Article 6.4; that was not disclosed as essential fact s under Article 6.9; and, 
that is nowhere identified or mentioned in the pub lished determinations.  Moreover, the new reasons 
that the EC advances on the basis of this new information are also inadmissible as ex post  
rationalizations not contained in  the published determination. 
3. Standard of Review 
4.185  In the absence of substantive arguments to de fend its flawed measure, the EC appears to 
believe that its best chance of prevailing in this di spute is to persuade the Panel not to undertake the 
"critical and searching" review that the Appellate Body requires.79  However, in making these 
arguments80, the EC misrepresents the standard of  review in two important respects. 
4.186  First, the EC misrepresents the scope of Article 17.6(i) of the Anti-Dumping Agreement .  
Although Article 17.6(i) confers discretion on an authority in the establishment of the facts and in 
their evaluation , a panel cannot simply to defer to the conc lusions of the national authority, and must 
provide critical oversight of the authority.81     
4.187  More importantly, the EC fails to recognize that, although an authority enjoys a certain 
discretion in its treatment of the facts, it must always  provide a reasoned and adequate explanation  to 
demonstrate that it has complied with the substantive requirements of the Anti-Dumping Agreement  
and Article VI of the GATT 1994.82 
4.188  Second, the EC's Opening Statement misrepresents legal issues as factual issues.  There are 
six examples of this: who are "producers" for purposes of Article 4.1; the interpretation of 
Article 6.1083; the interpretation of Article 6.8 and Annex II84, whether Article 3 permits certain 
factors affecting price  comparisons to be ignored; th e legal requirement in Article 3.5 for an authority 
to demonstrate that it properly performed the non -attribution analysis; and legal interpretation of 
Articles 2.2 and 2.2.1.1 in deciding that certain  costs were "costs of production" in the IP 85. 
                                                      
79 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93, citing 
Appellate Body Report, US – Lamb , para. 106.   
80 See, for instance,  the EC's Opening Statement at the First Substantive Meeting with the Panel 
("Opening Statement"), paras. 8 – 9, 12 – 13, 16, and 17. 
81 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93.   
82 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 99.   
83 EC's Opening Statement, para. 12. 
84 Surprisingly, the EC's Opening Statement contradicts the argument in its FWS, para. 307, that the 
dispute regarding finance costs is not one of evidence or fact, but concerns a point of law. 
85 EC's Opening Statement, para. 23. WT/DS337/R 
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  4. The EC Incorrectly Defined the Product Under Consideration 
4.189  The interpretive issue that faces the Panel is whether the EC is correct that a "dumping" 
determination requires solely that likeness be establis hed for models of the product.  According to the 
EC, an authority can bundle any pr oducts together for purposes of a dumping determination, even if 
they do not "resemble" each other at all,
86 so long as likeness is established at the level of " models " of 
the product.   
4.190  Norway's claim is that the references to " a product ", "the product  under consideration" and 
"the product  under investigation" in Article 2.1, 2.6 and 6.10 of the Anti-Dumping Agreement , and " a 
product ", "the product ", and " any dumped product " in Article VI of the GATT 1994 must be 
interpreted as referring to a produc t whose sub-parts or models are all "like" each other.  This 
interpretation stems also from the definition of "dum ping" in Article 2.1 and Article VI:1, in terms of 
which "dumping" involves a determination that the export price of " a product " is less than " its" 
normal value.  Thus, even though an authority ma y conduct intermediate comparisons for models, the 
model-specific comparison results must be aggr egated into a single, overall determination.  87  
4.191  Because the EC determined the product scope of the investigation inconsistently with 
Article 2.1, it violated: (1) Articles 5.1 and 5.4 in  initiating an investigation into an incorrectly 
determined product; (2) Article 2.1, read together wi th 2.6, in making its dumping determinations into 
an incorrectly determined product; and (3) Articles 3. 1, 3.2, 3.4, 3.5 and 3.6, in making its injury 
determination for a domestic industry that prod uces an incorrectly determined product.   
5. The EC Incorrectly Defined the Domestic Industry 
4.192  WTO case-law demonstrates that Article 4.1 imposes an obligation on the investigating 
authority to determine the "domestic industry" cons istently with the definition in that provision.88  The 
EC did not do so. 
4.193  The EC included only 15 complainants  in the domestic industry.  The EC excluded EC fillet 
producers  from the scope of the domestic industry.  In contrast to the salmon growing industry, which 
has a minuscule production of 18,000 tons, the fille ting industry produces "several hundred thousand 
tons".  There is, therefore , a profound mismatch between the product scope and the scope of the 
domestic industry  that is contrary to Article 4.1.  The EC 's suggestion that whole/HOG fish and fillets 
are the same product is also nonsense.  The two products are produced by different  industries using 
different  production methods; they have different  physical characteristics and different  end uses; 
consumers perceive them differently ; they command very different  prices in the marketplace ( see the 
EC's MIPs); and they are subject to different  regulatory treatment (e.g.  tariff classification). 
4.194  Without adequate explanation, the EC also excluded six other categories of EC salmon 
producer  from the scope of the domestic industry.89  However, under Article 4.1, the domestic 
industry cannot be confined to producers from a particular sector or segment of the industry, especially the complainants. 
                                                     
 
86 EC's FWS, para. 37. 
87 Appellate Body Report, US – Zeroing (Japan) , para. 151, quoting Appellate Body Report, US – 
Softwood Lumber V (Article 21.5 – Canada) , para. 104;  Appellate Body Report, US – Zeroing (EC) , para. 126;  
and Appellate Body Report, US – Softwood Lumber V , para. 93. 
88 Norway's Opening Statement, paras. 45 – 47. 
89 See Norway's FWS, para. 225.  WT/DS337/R 
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  4.195  The EC also violated Article 5.4 in initiating the investigation, and Article 3.1 in making an 
injury determination, on the basis of a domestic indu stry that is determined inconsistently with the 
definition in Article 4.1. 
4.196  Furthermore, Article 3 does not permit sampling of the domestic industry for purposes of the 
injury determination.  Even assuming  that sampling were permitted under Article 3 ( quod non ), such 
sampling must follow the rules under footnote 13.90  This is the sole provision in the Agreement  that 
addresses sampling of the domestic industry.  The EC did not respect the rules in footnote 13 
governing when  and how sampling of the domestic industry can be undertaken.  Furthermore, any 
sample must permit the authority to conduct an " objective examination" based on "positive evidence".  
The EC failed to respect those requirements because th e EC's sample comprises solely a subset of the 
complainants, which are the producers most likely to  be in an unhealthy economic condition.  Thus, 
the EC's sample makes an injury finding more lik ely, thereby "favour[ing] the interests of [a 
particular] interested party or group of interested parties".91   
4.197  Finally, in its Closing Statement, the EC cont ended that it must exclude EC fillet producers 
from the investigation because otherwise "the Sco ttish salmon growers in this case [would have] had 
no effective remedy, since the EC filleting-only firms c ould forever block any anti-dumping 
proceeding ."92  This astonishing statement is an admission that the EC deliberately tailored the scope 
of the industry to suit the needs of Scottish growers.   
6. The EC's Dumping Determinations Are Flawed 
(a) The EC's selection of the sample of Norwegian producers violated Article 6.10 of the Anti-
Dumping Agreement 
4.198  To recall, Norway argues that the EC  violated Article 6.10 because it: 
• Included only 3 out of the 10 largest exporte rs and producers in its sample.  The 
sample therefore does not account for the "largest percentage of the volume of 
exports that can reasonably be investigated". 
• Excluded from the scope of investigation a ll independent exporters, even though they 
account for the majority of exports from Norway. 
• Excluded from its producers-only sample two pr oducers, Salmar and Bremnes, that 
accounted for the 3rd and 7th largest export volumes to the EC during the IP. 
 4.199  The EC argues that the "or" in the firs t sentence of Article 6.10 is disjunctive,
93 and that an 
authority can choose to exclude all exporters from an  investigation, instead calculating margins for 
producers only.  Norway continues to a ssert that the "or" in Article 6.10 is conjunctive  and refers the 
Panel to its answer to Question 76.  Norway ar gues that there is no preference for producers in 
Article 6.10, and that exporters and producers are on an equal footing.  The Appellate Body confirmed 
in US – Zeroing (Japan)  that the focus of the Agreement  is on export  pricing behaviour. 94  
Furthermore, existing case law contradicts the EC's  interpretation of Article 6.10.  The Panel in Korea 
– Paper  clarified that:  
                                                      
90 See also  Norway's Opening Statement, para. 280. 
91 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
92 EC's Closing Statement, p.  1. 
93 EC's FWS, paras. 142 to 143. 
94 Appellate Body Report, US – Zeroing (Japan) , para. 165. WT/DS337/R 
Page 38  
 
  … Article 6.10 mentions "exporters" and "producers" of the subject product and 
requires that an individual margin be calculated  for each of them .
95 
4.200  Norway disagrees with EC's contention that practical problems arise from its interpretation, 
and refers the Panel to its respon se to Question 77.  With respect to the non-inclusion of Salmar and 
Bremnes in the sample, the EC argues that FHL did not bring relevant facts about Salmar to the EC's 
attention96 and that Bremnes was left out of the sample because FHL had not proposed Bremnes.97  
This is both factually incorrect, and substantivel y wrong.  A merely facultative consultation process, 
in which the authority holds the power of decision,  cannot relieve the  authority of its substantive 
obligation to include the largest percenta ge of volume of exports in the sample. 
(b) The EC violated Articles 2.2 and 2.2.1 of  the Anti-Dumping Agreement by failing to 
determine that below cost sales were made at prices that did not permit the recovery of costs 
within a reasonable period of time 
4.201  The essence of Norway's argument is, first, that the EC did not make the "determination" 
required by Article 2.2.1 to the effect that below-co st sales were made at prices that did not provide 
for cost recovery within a reasonable period of time.  A "determination" must be set forth explicitly.  
However, the EC nowhere even mentioned a cost-recovery test.  Second , even assuming the EC could 
make an implicit determination for cost recovery, the EC did not apply a test that would correctly test 
for cost recovery. 
4.202  Norway refers the Panel to its response to Qu estions 82 and 83, where Norway explains why 
the "reasonable period of time" cannot be equated with the IP.  Further, the last sentence of 
Article 2.2.1 does not establish an exhaustive  test for determining whether below-cost prices provide 
for the recovery of costs within a r easonable period.  It merely describes one situation  in which an 
authority must conclude that prices allow for cost recovery in a reasonable period.   
(c) The EC violated Article 2.2.2 by improperly rejecting actual sales data because of the low 
volume of sales 
4.203  In determining amounts for SG&A costs and for pr ofits, Article 2.2.2 allows the authority to 
disregard data solely from sales that are not in th e ordinary course of trade.  As the panel and 
Appellate Body held in EC – Tube or Pipe Fittings , the text of Article 2.2.2 does not permit data to be 
rejected on the basis of the low sales volume. 
4.204  The EC improperly rejected actual profits and selling, general, and administrative ("SG&A") 
data when constructing normal value on the basis th at the volume of the sales at issue was too low.  
First , the EC rejected domestic sales data if the domestic sales volume was less than 5 per cent of 
export sales either for the product as a whole or for a particular model.  Second , the EC rejected 
domestic sales data if the volume of profitable sales  was less than 10 per cen t of total domestic sales 
by product model. 
4.205  By applying the 10 per cent test, the EC imprope rly excluded domestic sales data by reason of 
the price and volume of the loss-making sales.  In  so doing, the EC acted inconsistently with 
Article 2.2 because, for the companies affected by this test, the EC was not  permitted to construct 
                                                      
95 Panel Report, Korea –Paper, para. 7.157.  See, also, Appellate Body Report, US – Hot-Rolled Steel, 
para. 118; Appellate Body Report,  US – Corrosion-Resistant Steel Sunset Review, footnote 186; Appellate Body 
Report,  US – Zeroing (EC), para. 129; Appellate Body Report  Mexico -  Rice, para. 216; Appellate Body 
Report,  US – Softwood Lumber V , footnote 158; and Panel Report, Mexico –Rice , paras. 7.182 and 7.183. 
96 EC's FWS, paras. 189 - 190. 
97 EC's FWS, para. 191.  WT/DS337/R 
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  normal value for the models concerned.  The EC also violated Article 2.2.2 because, once it had 
decided to construct normal value, it used the 10 per cent test again to discard actual profit data.  
Norway, therefore, requests that the Panel find that the EC acted inconsistently with Articles 2.2 and 
2.2.2. 
(d) The EC violated Article 6.8 and Annex II of th e Anti-Dumping Agreement in its use of facts 
available to determine normal value for Grieg 
4.206  For Grieg's filleting and finance costs, the EC  used information from a secondary source, 
rejecting information submitted by the company.  The EC's defence rests mainly on the contention 
that, in using information from a secondary source it  did not actually use "facts available" within the 
meaning of Article 6.8 of the Anti-Dumping Agreement .98  However, there is no third category  of 
information under the Anti-Dumping Agreement.  If secondary source information is used, Article 6.8 
and Annex II apply.  The EC rejected information that it was not entitled to reject under paragraph 3 
of Annex II; and failed to take the procedural steps required by paragraph 6 of Annex II before 
resorting to facts available.   
4.207  The EC also expressly states that it would only have accepted Grieg's information if it had 
been presented during the on-the-spot verification,  and that it would never have contemplated a 
second verification visit.99  The EC thereby deprives Grieg of  its rights under Annex II because no 
deficiency letter was sent out prior to the verificati on visits, but only in March.  Grieg then provided 
the necessary information in one week.  By in sisting on immediate production of documents as 
verification, the EC failed to give Grieg a "reasonable period" to submit information. 
(e) The EC's treatment of non-sampled companies violates Articles 6.8 and 9.4 of the Anti-
Dumping Agreement 
4.208  The EC violated Article 9.4 because it (i) incorr ectly calculated the "all others" rate; (ii) failed 
to exclude Grieg's margin from the calculation of the "all others" rate, even though it was based on 
facts available; and (iii) assigned to the allege dly non-cooperating, non-sampled producers a "residual 
margin" of 20.9 per cent, which exceeds the maximu m weighted average margin under Article 9.4.   
4.209  The EC expressly acknowledged that it incorrectly calculated the weighted average dumping 
margin,100 but claims that it is without practical or legal effect due to the imposition of MIPs, is 
without merit.  Norway has shown that the EC se t the level of the fixed duty for all companies, 
including non-examined companies, by reference to  the weighted average margin of dumping referred 
to in Article 9.4(i).  The EC also originally imposed ad valorem  duties and could revert to these duties 
at any time. 
4.210  Norway rejects the EC's argument that it co mplied with Article 6.8 because it published a 
notice of initiation in the Official Journal and sent that notice to known companies and to industry associations.
101  Neither the publication of the Notice of Initiation in the Official Journal nor the 
provision of that Notice to industry associations  constitutes the notice required by Article 6.8 and 
Annex II.  In this respect, Norway respectfully refers  the Panel to its detailed response to Question 88.   
4.211  Similar to Mexico – Rice , sixty-seven of the companies that are subject to the residual rate 
received no notification, at all, from the EC, contrary to Annex II(1).102  The EC not only failed to 
                                                      
98 EC's FWS, paras. 290 and 307 – 308.   
99 EC's FWS, paras. 295 and 296. 
100 EC's FWS, para. 312. 
101 Norway's Opening Statem ent, paras. 105 – 106. 
102 See Exhibit NOR-152.  This list was provided by FHL to the Commission on 9 May 2005. WT/DS337/R 
Page 40  
 
  provide any notice of initiation to those companies, it also failed to inform them of the information 
that was missing (Annex II(6)); it did not give them a chance to provide further explanations in a 
reasonable period (Annex II(6); and, it did not st ate how the alleged non-c ooperation hindered the 
investigation (Article 6.8).  The EC, therefore,  did not comply with Article 6.8 and Annex II. 
7. The EC's Injury Determination Violated Article 3 of the Anti-Dumping Agreement 
(a) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination 
of the volume of dumped imports 
4.212  Where the second sampling option is used, the Appellate Body has cautioned that evidence 
from the sample can be used as just one " part
 of the positive evidence" regarding the volume of 
dumped imports from non-sampled companies.103  Thus, in this investigation, the scope for 
extrapolation was limited by the need for additiona l "positive" evidence.  None was provided by the 
EC in its determination.  Furthermore, the EC was not entitled to include Nordlaks' imports in the 
volume of dumped imports because this company was dumping at de minimis  levels. 
(b) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination 
of price undercutting 
4.213  The EC ignored the fact that EC salmon pro ducts generally enjoy a price premium in the 
marketplace of 12 per cent – a price premium rec ognized by the EC on numerous occasions including 
in its Definitive Disclosure and First Written Submission104, and taken into account for the 
establishment of its injury margin (and the level of the MIP).  If this price premium is taken into 
account, there was no price undercutting. 
(c) The EC violated Articles 3.1 and 3.4 of th e Anti-Dumping Agreement because it failed to 
evaluate objectively price trends affecting EC producers 
4.214  In the injury determination, the EC examined  certain financial indicators, including price 
trends, for a sample of just five Scottish companies.   In so doing, the EC found that the companies' 
sales prices declined by 9 per cent  when measured in euros.   
4.215  Norway claims that the material currency fo r examining the financial performance of these 
Scottish companies is pounds sterling, and not euro s.  During the period considered, the euro 
appreciated against the pound by almost exactly 9 per cent .  Thus, from the perspective of the 
examined companies, no price decline affected their financial perfor mance because of the movement 
in the value of the currencies.  Norway submitted graphs to depict the misleading impression created 
by using euros. 
8. The EC Violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in Concluding 
that Dumped Imports Caused Material Injury to the EC Domestic Industry 
4.216  The EC failed to ensure that injury caused by factors other than dumped imports was not 
improperly attributed to dumped imports.  It is an established fact that the costs of the sampled 
Scottish companies rose sharply  from 2001 to 2002, and remained at a higher level throughout the 
period considered.  In violation of Article 3.5, the EC  failed to undertake any evaluation of this factor.  
Further, the EC concluded that salmon imports from Canada and the United States  consist mostly of 
wild salmon that, it found, does not compete with fa rmed salmon.  However, the EC failed to disclose 
any facts in support of these conclusions, far less set forth "an evidentiary path" leading from the 
                                                      
103 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 138. 
104 EC's FWS, paras. 358 – 359.  WT/DS337/R 
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  evidence in the record to its determinations.  As stated by the Appellate Body, a reasoned and 
adequate explanation "is not one where the conclu sion does not even refer to the facts that may 
support that conclusion".105 
9. The MIPs Imposed by the EC Violate Arti cle VI:2 of the GATT 1994 and Article 9 of 
the Anti-Dumping Agreement 
4.217  Norway and the EC agree106 that any MIPs imposed may not exceed the individually 
determined normal values for the sampled compan ies, or the weighted average normal value in 
respect of non-sampled companies.  Norway has made a prima facie  case that the EC's MIPs exceed 
individual and weighted average normal values, in viol ation of Articles 9.2, 9.4 and VI:2.  The EC has 
made no attempt to refute Norway's calculations. 
4.218  Norway also claims that the EC may not impos e variable anti-dumping duties, using MIPs, in 
excess of the individual  dumping margins  determined for sampled companies.  The EC's measure 
violates these requirement because it contains no me chanism to limit the amount of duties initially 
imposed to the dumping margin.  By so doing, the EC violates Articles 9.1, 9.2, 9.3 and Article VI:2 of the GATT 1994.   
4.219  Moreover, Norway also claims that the EC acted inc onsistently with Article 9.2 by calculating 
the MIPs using a three year aver age exchange rate to convert the constructed normal values from 
Norwegian kroner to euros.  Norway has addressed th is claim in reply to Question 69.  By relying on 
historical exchange rates, the EC  has overstated by 5.2 per cent the normal value that was determined 
during the investigation.   
10. The EC's Fixed Duties Are in Violation of Arti cles 9.1, 9.2, and 9.3 of the Anti-Dumping 
Agreement 
4.220  The EC violated Articles 9.1, 9.2 and 9.3 of the  Anti-Dumping Agreement  because, in certain 
circumstances, it imposes fixed duties on examined  producers that exceed the margins of dumping 
determined for these producers.  For a num ber of the investigated companies, the ad valorem  
equivalent of that duty exceeds the dumping margin.  Norway has demonstrated this in Table 10 of its 
First Written Submission.
107   
4.221  The EC does not contest the correctness of Norway 's calculations.  Instead, the EC argues that 
its fixed anti-dumping duties are not actually anti-dumping duties, but instead "a very specialized 
[duty] designed to deter evasion of lawfully imposed anti-dumping duties" through fraudulent customs declarations.
108  Therefore, according to the EC, the fixed duties do not represent "specific 
action against dumping".109  Although creative, this argument is wrong.  As set forth in Norway's 
Opening Statement, the EC regulation characterizes the fixed duties as a "fixed anti-dumping duty"; it 
adopted the fixed duty under the EC Basic Regula tion that permits action against dumping; and the 
                                                      
105 Appellate Body Report, US – Steel Safeguards , para. 326. 
106 The EC refers to a normal value "adjusted … to a CIF Community frontier level".  (EC's FWS 
para. 463)  To the extent that the EC is suggesting that the limit of MIPs is normal value plus some additional 
amount , Norway disagrees.  The EC is unable to point to any text that authorizes a Member to increase the 
prospective reference price beyond normal value, which provides the threshold of fair pricing in Article 2.1 and 
Article VI:1. 
107 Norway's FWS, para. 679. 
108 EC's FWS, para. 501. 
109 EC's FWS, para. 508. WT/DS337/R 
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  EC has no legal authority to impose penalties for customs fraud because the EC member States enjoy 
this competence.
110  
11. The EC Violated the Procedural Requirements in Articles 6 and 12 of the Anti-Dumping 
Agreement 
4.222  First , the EC violated Articles 6.4 and 6.2 by failing to disclose non-confidential information 
contained in the record of the investigation.  Norway has pointed to 68 missing documents, for which 
the EC has provided no answer or merely incorr ect and unsubstantiated assertions.  The EC does not 
argue that it was not " practicable " to show the 68 missing documents to Norway during the visits to 
the authority in November and December; nor that any of the missing documents was not " relevant " 
to Norway's case; nor that any were not " used" by the authority.  In principle, therefore, the EC 
accepts that it was obliged to show  the 68 (or more) missing documents to Norway under Article 6.4. 
4.223  Furthermore, the EC also failed to show Norw ay the information contained in the contested 
Exhibits EC-2, EC-10, EC-12, EC-13, EC-14, EC-15 and EC-16.  If the Panel declines to reject them, 
and accepts that this information was before the aut hority, the EC violated Article 6.4 by failing to 
show Norway that information during the investigation. 
4.224  Second , the EC violated Articles 6.9 and 6.2 by fa iling to disclose the essential facts that 
formed the basis for its decision to  impose duties.  Norway makes particular arguments relating to the 
disclosure regarding the dumping determination, the definition of the domestic industry, causation, 
and the remedy determination. 
4.225  Third , the EC violated Articles 12.2 and 12.2.2 by failing to provide a reasoned and adequate 
explanation for its findings and conclusions.  Norway  considers that the EC's published determination 
– the Definitive Regulation – is characterized by a general failure to explain how the facts in the 
record support the factual and legal determinations.  Typically, the EC presents bald conclusions that 
make no reference to the facts in the record th at support the conclusion.  Bald, unsubstantiated 
assertion is, however, simply not good enough to meet the requirements of the Anti-Dumping 
Agreement .  As the Appellate Body held, "a  'reasoned conclusion' is not one where the conclusion 
does not even refer to the facts that may support that conclusion ."111  Moreover, a "reasoned and 
adequate explanation … must be clear and unambiguous .  It must not merely imply or suggest  an 
explanation.  It must be a straightforward explanation  in express terms."112  Norway requests the 
Panel to follow the earlier case-law and find that  the EC violated Article 12.2 and 12.2.2. 
12. The EC's Determination of Normal Value Violated Article 2 of the Anti-Dumping 
Agreement because of Improper Adjustments to Individually Examined Producers' Cost 
Related Data 
(a) Introduction 
4.226  In constructing normal value for the sampled pr oducers, the EC systematically revised the 
reported costs of production ("COP") and SG&A cost s upwards by significant amounts – on average 
by 22 per cent.113  As a result of the improper adjustments, the margin of dumping for seven of the 
producers was significantly elevated and, for one producer, dumping was found where there was 
none.  Norway maintains that, in making these adjustments, the EC violated Articles 2.1, 2.2 and 
                                                      
110 Norway's Opening Statem ent, paras. 157 - 163. 
111 Appellate Body Report, US – Steel Safeguards , para. 326.  Emphasis added. 
112 Appellate Body Report, US – Line Pipe , para. 217. 
113 See Summary Table of the EC's Cost Adjustments.  Exhibit NOR-99.  WT/DS337/R 
 Page 43 
 
 
  2.2.1.1 of the Anti-Dumping Agreement  because it failed to determin e the company's respective COP 
correctly and, as a result, improperly determined normal value.   
(b) The EC's improper inclusion of NRC and operating losses in the costs of production 
4.227  For the EC, any cost of running a business is a co st of producing salmon, as is any cost that 
either impacts profits or decreases the wealth of  an enterprise that produces salmon as part of its 
business.  Thus, for the EC, there is no enquiry as to whether a cost contributed to the production and 
sale of the like product during the IP.   
4.228  The EC interpretation of the Anti-Dumping Agreement is wrong.  Norway argues that the term 
"costs of production" in Article 2.2.1.1 of the Anti-Dumping Agreement  measures the value of the 
resources that are used to produce a good .114  For a cost to be a "cost of production", there must, 
therefore, be a relationship between the cost and pr oduction.  The first sentence of Article 2.2.1.1.  
confirms this relationship, by providing that the relevant costs are those " associated with  the 
production".  Article 2.2.2 also speaks of costs "incurred" " in respect of  production and sale".  And, 
finally, Article 2.2.1.1 refers to costs that " benefit " production. 
4.229  The authority's duty under Article 2.2.1.1 to consider evidence on cost allocation is also 
premised on the view that only those costs contributing to production during the IP can be included in 
normal value.  Cost relating to ot her periods cannot be included.   
4.230  In its First Written Submission, Norway explai ned in considerable detail why certain NRC 
and operating losses do not benefit production in the IP .  To give but two examples:  Regarding the 
costs [[XXX]] incurred on the closure of sales operations in [[XXX]]115,   the EC now admits that it 
was incorrect to include these costs.116  Furthermore, the EC was well aware that [[XXX]] investment 
loss on the fishing boat company, [[XXX]], was to tally unrelated to salmon production.  In its 
Opening Statement, the EC actually concedes that th e disputed costs do not have a relationship with 
production because it refers to them as: " non-benefiting , non-recurring costs".117 The Panel should, 
therefore, find that the EC violated Article 2.2.1. 1 and in consequence also violated Articles 2.1 and 
2.2. 
(c) Averaging of NRC over a three year period for several companies 
4.231  The EC has attempted to justify its use of a three year period for averaging NRC (which had 
the effect of increasing the COP for the companies), on the grounds that it calculated all costs for all 
sampled companies on the basis of project accounting (PA).  Norway explained to the Panel at the 
first meeting that this is incorrect as a matter of f act and that the EC reliance on a PA approach could 
not in any case justify its recourse to three year av eraging which was based on different reasons in the 
published determination .   Finally, Norway also submits that  the NRC concerne d do not benefit 
current or future production.  Accordingly, none of the costs subject to the three-year averaging 
approach may be included in the COP under Article 2.2 and 2.2.1.1 because they are not "costs of 
production". 
                                                      
114 Norway's FWS, para. 798. 
115 This is explained in detail in Norway's First Written Submission, paras. 890 – 893. 
116 EC's FWS, para. 676. 
117 EC's Opening Statement, para. 22. WT/DS337/R 
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  (d) The EC's improper adjustments relating to finance costs and smolt cost 
4.232  Norway also contests the EC's use of a three-y ear average period to calculate the finance costs 
of [[XXX, XXX and XXX]].  The EC readily admits th at its approach led to finance costs that were 
higher than would have been the case using the IP.
118   
4.233  The EC also made improper adjustments for smolt costs incurred by [[XXX]], [[XXX]] and 
[[XXX]].  The EC now asserts that it remedied the situation for [[XXX]] and for [[XXX]]119 between 
definitive disclosure and the Definitive Regulation.   Although this assertion may be correct, Norway 
has no basis for confirming its correctness.  The EC's  did not disclose the "essential facts" underlying 
the revised dumping determinations for the two companies, implying a breach of Article 6.9.  Nor did the EC's published determination pr ovide any explanation, as required by Article 12.2.2, regarding 
"the acceptance or rejection of relevant arguments or claims made by the exporters" on this issue.   
(e) The EC's improper adjustments relating to SG&A costs for [[XXX]] 
4.234  First, the EC violated Article 2.2.2 of the Anti-Dumping Agreement  because it failed to 
determine [[XXX]] SG&A costs based on amounts act ually incurred by the company during the IP 
and reported to the EC.  Second, the EC did not establish an adequate reason for its rejection of 
[[XXX]] actual SG&A costs and therefore failed to  properly establish that it was entitled to have 
recourse to the alternative calculation method under Article 2.2.2.  Third, the EC further violated 
Article 2.2.2 because it failed to adopt a "reas onable method" when recalculating [[XXX]] SG&A 
costs.  As Norway has demonstrated, the SG &A calculation methodology relied upon by the EC 
resulted in a substantial double counting of [[XXX ]] costs.  As a result, under its unreasonable 
methodology, the EC increased the company's costs by nearly 20 per cent . 
(f) The EC's improper adjustments relating to  costs of purchased salmon for [[XXX]] 
4.235  The EC overstated the costs of the purchased salmon to [[XXX]] by [[XXX]] NOK.  Without 
the overstatement of these costs, [[XXX]] margin  of [[XXX]] per cent disappears below zero.  The 
EC's defense is that the [[XXX]] NOK is an " entirely new figure , not mentioned in any reply or 
submission before, not substantiate d during the investigation and impossible to have been verified 
(sic)."
120  However, there is no doubt that the EC was thoroughly familiar with the figure and had 
ample opportunity to verify it.  The Panel should therefore find that the EC violated Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement.  
13. Conclusion  
4.236  Norway maintains all its claims and respectfully  reiterates the requests that are set forth in 
Section XII of its First Written Submission. 
F. S
ECOND WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES  
4.237  The following summarizes the European Communities' arguments in its second written 
submission. 
                                                      
118 EC's FWS, para. 697. 
119 EC's FWS, para. 705. 
120 EC's FWS, para. 715.  WT/DS337/R 
 Page 45 
 
 
  1. Terms of Reference 
4.238  The EC requests the Panel to dismiss that part  of Norway's claim that accuses the EC of 
wrongly excluding mere exporters from the calculation of the dumping margin on the ground that it is outside the Panel's terms of reference.  The matter was not raised in Norway's panel request.  Norway 
did not respect the requirements of Article 6.2 of the DSU in that it failed to "identify the specific 
measures at issue and provide a brief summary of th e legal basis of the complaint sufficient to present 
the problem clearly".  Norway's failure on this poi nt has caused significant prejudice to the EC in 
terms of the time and effort that has been  devoted to countering Norway's claim. 
2. Product Concerned 
4.239  As preliminary points, the EC notes that Norway should refer to "the product under 
investigation" not the "the product u nder consideration".  Also, Norway's claim is that fish and fillets 
cannot be included within the scope of a single original proceeding .   
4.240  The EC's position is simply that Articles 2.1 and 2.6 (as opposed to the entire AD Agreement ) 
do not contain relevant obligations.  The EC states  only that an investigating authority has very 
considerable latitude when it comes to selecting the product concerned.  Norway's reading of 
Article 2.6 does not respect the text, context or object  and purpose.  In any event, the point has already 
been confirmed by the case law. 
4.241  Bicycles and cars are irrelevant to this case and a false analogy.  The EC agrees that an anti-
dumping proceeding does result in a single dumping determination for each exporter/producer, as in this case; and that the results of multiple interm ediate comparisons are not themselves margins of 
dumping.  The use of models may permit an investig ating authority to avoid complicated adjustments 
for differences affecting price comparability.  What  is contained in recitals 10 and 11 of the 
Provisional Regulation to which neither Norway nor the Norwegian companies objected during the 
anti-dumping proceedings  is perfectly adequate and does not disclose anything inconsistent with 
Articles 2.1 and/or 2.6.  The Appellate Body h as recently expressly confirmed that it is for an 
investigating authority to select or define the product concerned. 
4.242  The investigating authority reasonably took the view that the transfor mation from head-off 
gutted fish to large skin on fillets was not so  great as to render separate anti-dumping proceedings 
essential; preferring instead to draw the line at furthe r processed types, such as smoked salmon.  Some 
undertakings, particularly in the EC, engage in both salmon farming and filleting, and as such may 
have a filleting facility, albeit not a "dedicated" one ; may not always have their fish filleted far from 
where they are harvested; and may use the same labour force for different activities.  It is self-evident 
that it costs something to cut a fish up.  Norw ay is simply wrong to assert that an anti-dumping 
proceeding can only ever have as the product concerned one tariff classification. 
4.243  The EC disagrees with Norway that it is possible to extrapolate from nebulous assertions 
about alleged object and purpose precise obligations re garding the selection of the product concerned.  
The EC makes a sharp distinction between the select ion of the product con cerned; and the proposition 
that, having selected the product concerned, the i nvestigating authority must apply a rigorously 
consistent approach to that aspect of the investiga tion throughout the proceeding.  This is not a matter 
that the Members expect to be decided through disput e settlement.  Panels "cannot add to or diminish 
the rights and obligations provided in the covered agr eements." This view is confirmed by a review of 
the preparatory work.   WT/DS337/R 
Page 46  
 
  3. Domestic Industry 
4.244  The EC disagrees with Norway's submissions regarding the nature of any obligation in 
Article 4.1 of the AD Agreement .  The panel report in Argentina – Poultry  did not benefit from 
Appellate Review.  The defin itional point was not argued in EC-CVDs on DRAMs , which 
consequently contains no re levant findings on the issue, and in an y event that panel report also did not 
benefit from Appellate Review.  With respect to the US-Hot-Rolled Steel  case, contrary to what 
Norway asserts, the Appellate Body has recently stat ed clearly that Article 2.1 of the AD Agreement 
does not contain independent obligations, and the same  must be true of Article 4.1.  Finally, the US-
Lamb  case, apart from relating to a different agreemen t, does not contain a finding of inconsistency 
with Article 4.1(c) of the Agreement on Safeguards , but rather a finding of inconsistency with 
Articles 2.1 and 4.1(c) of the Agreement on Safeguards.   
4.245  Norway and the EC agree that double counting is  a "problem", to which the investigating 
authority had to find a "solution".  Norway and the EC also agree that there is an indissociable link 
between the selection of the product concerned a nd the question of "double counting" or more 
precisely which undertakings to include as producers.  Thus, Norway and the EC agree that this 
question flows from the selection of the product concerned.  And Norway and the EC agree that, 
because Norway rejects the "no double counting" appro ach adopted by the investigating authority, the 
only alternative, as far as Norway is concerned, is to  "re-visit" the selection of the product concerned.  
This means that once the Panel has found in favour  of the EC with respect  to Norway's claims 
regarding the selection of the product concerned, as the EC respectfully believes the Panel must, then 
the Parties agree that this necessar ily means that Norway's claim regarding the domestic industry must 
also fail, at least as regards the EC filleting only undertakings. 
4.246  The Definitive Regulation states clearly that th e detailed analysis of the data received from 
the salmon industry indicated that some companies did not produce salmon any longer.  The EC does 
not agree that the elimination of such compani es can reasonably be described as "self-serving" or 
"biased".  On the contrary, the EC would rather te nd towards the view that a problem might arise if 
companies that no longer produce the product concerned were nevertheless included in the 
investigation.  With respect to this issue, th e EC simply cannot understand on what basis Norway 
makes the bare assertion that there is something "sel f-serving" or "biased" in the measure at issue.  
And precisely the same is true if a company did not produce the product concerned during the investigation period; or fell into receivers hip; or failed to provide the necessary data. 
4.247  Norway's submissions regarding organic salmon are simply irrelevant, because producers of 
organic salmon were not excluded from the domestic industry. 
4. Dumping Determination 
(a) Article 6.10 of the AD Agreement 
4.248  Norway's further arguments against the EC's concentration on producers rather than mere 
exporters of salmon have added nothing.  The occasions on which the AD Agreement refers to 
exporters and not to producers are easily explicab le.  For example, in some instances, such as 
Article 10.6, only an exporter is referred to b ecause in the circumstances reference to a producer 
would serve no function.  Likewise, as regards Ar ticles 4.2 and 8, only the person involved in 
exporting a product can give undertakings about the pri ce of that export.  The role of production costs 
as a basis for normal value cannot be dismissed as 'only an exception'.  The notion of sales 'in the ordinary course of trade' is of central importance. 
4.249  Finally, there is nothing in Article 6.10 that fa vours an investigation based on exporters rather 
than exporters.  Contrary to Norway's assertion, the EC's reasons for excluding two producers, Salmar  WT/DS337/R 
 Page 47 
 
 
  and Bremnes, from the list of companies examined is  perfectly justifiable.  Here as elsewhere Norway 
resorts to misquotation.  The former was not include d because of lack of relevant information, and the 
latter because of the Norwegian industry's representations. 
(b) Article 2.2.1 
4.250  Norway's comments in the Oral Statement do not  add anything substantive to its previous 
arguments.   
(c) Disregarding sales 
(i) Article 2.2.2, opening paragraph 
4.251  Examination of the internal logic of Articles 2. 2, 2.2.1 and 2.2.2 shows that the meaning of 
the phrase 'ordinary course of trade' in the first para graph of Article 2.2.2 must  be independent of its 
meaning earlier in the Article.  Any other view lead s to a circular definition of the concept.  If, as 
claimed by Norway, data from sales disregarded fo r reasons of low volume is included in constructing 
normal values the result would be to calculate dum ping margins on the basis of comparisons of sales 
which the Agreement  itself defines as non-comparable.   
(ii) The less-than-10 per cent profitable sales rule 
4.252  Norway's comments do not appear to raise an y issue regarding the less-than-10 per cent 
profitable sales rule that the EC has not already r esponded to in its answers or in its First Written 
Submission. 
(d) Facts available 
4.253  Norway's approach to the issue of 'f acts available' is not consistent.   
(i) Filleting costs 
4.254  The EC authorities did not knowingly choose a prejudicial solution for calculating filleting 
costs.  As regards the need for on the spot verifications, Norway does not understand their importance 
in getting at the truth.  Although Norway has attemp ted to reconfigure the facts, the situation was in 
fact one of the unavailability of evidence and not  one of non-acceptance on the part of the EC 
authorities.  Norway's criticisms of the EC for not communicating in writing with the company do not 
conceal the truth which is that the EC authorities e xplained the situation regarding filleting costs fully 
during the verification.   
(ii) Financing costs 
4.255  As regards financing costs, faced with c onflicting information from the company the EC 
authorities chose to rely on the annual accounts, whic h being audited were more persuasive.  The loan 
rates were found to be well below prevailing commerc ial rates so the EC authorities referred to the 
Norwegian Central Bank rate as a benchmark. WT/DS337/R 
Page 48  
 
  (e) Treatment of non-sampled companies 
(i) Article 9.4 
4.256  Once again Norway has misrepresented the EC's argument.  The EC has already demonstrated 
that in substance the fixed duty is not, as far as th e WTO legal regime is concerned, an anti-dumping 
duty.  Norway provides no WTO basis for its  arguments about supposed chilling effect. 
(ii) Non-cooperating, non-examined companies 
4.257  This issue is addressed in the EC's answers to  the Panel's Questions 88 and 89.  Norway 
wrongly invokes paragraph 6 of Annex II in a case wh ere information was not supplied (rather than 
refused).  It also invokes a non-existent duty to state how the alleged non-cooperation impeded the 
investigation.  Finally, by the time that the non-r esponding companies complained of their treatment it 
was far too late to consider including them in the investigation. 
5. Domestic Industry and Article 3 of the AD Agreement  
(a) EC definition of domestic industry did not and co uld not violate the provisions of Article 3 of 
the AD Agreement  
4.258  Norway's argument that as a consequence of  defining the domestic industry in the present 
case, the EC violated the provisions of Article 3 of the AD Agreement is non sequitur .  The main 
thrust of the provisions of Article 3 of the AD Agreement , and in particular Articles 3.1, 3.4 and 3.5 
thereof (which Norway claims have been violated), is to ensure the consistency  of injury analysis.  
Once the domestic industry has been defined, the i nvestigating authority is obliged to conduct an 
injury analysis with respect to the domestic industr y so defined.  Norway's proposal to modify the 
detailed and clear terms of Article 4.1 of the AD Agreement , which contains a definition , by importing 
the concept of objective examination into the an alysis under Article 4.1, goes against the express 
intention of the drafters as well as the WTO case law. 
(b) The EC sampling of the domestic industr y is in accordance with the AD Agreement 
4.259  The EC notes that Norway has never  argued that the composition  of the sample by the EC 
investigating authority in the present case actually violated Article 3.1 of the AD Agreement .  Rather, 
Norway argued that that the use of sampling in an in jury analysis is impermissible as such or, at most, 
that a sampling exercise has to comply with the terms of footnote 13 to Article 5.4 of the AD Agreement and never provided any evidence speci fic to the present case.  The EC understands 
that the Panel would not make a case for Norway .  If the Panel finds that sampling of domestic 
industry is allowed and that footnot e 13 is not determinative of the method by which sampling must in 
such cases be conducted, in the EC view, the Pane l has to stop there and abstain from any factual 
findings with regard to the present case.   
4.260  As regards the issue of the compatibility of sampling of the domestic industry with the 
AD Agreement in general, by arguing that the AD Agreement authorizes sampling only in expressly 
described circumstances, Norway e ffectively ignores the text of the agreement and reads into it a new 
rule: whatever is not expressly allowed, is prohibited by the AD Agreement .  Yet, the AD Agreement 
contains an effective rule for the injury analysis: Article 3 and, in particular, Article 3.1.  This 
provision requires an objective  examination, but does not prescribe the methods by which it should be 
conducted.  To read into this provision a prohibition  of sampling would be, in the EC view, a direct 
misreading of the text.  This approach would imply that the use of sampling techniques is inherently unable to produce objective results.  It also woul d be absurd to accept that the AD Agreement 
purposely creates a looser standard for the determin ation of support of a complaint under Article 5.4  WT/DS337/R 
 Page 49 
 
 
  of the AD Agreement (where sampling is allowed)  than for the determination of injury under 
Article 3.  Footnote 13 shows that sampling of th e domestic industry is, conceptually, accepted by the 
AD Agreement .  Norway also ignores the accepta nce of sampling by the panel in EC – Bed Linen .  
Finally, Sampling naturally is not ab out segmentation addressed in the in US – Hot-Rolled Steel  case.   
4.261  As regards the methods by which sampling shou ld be conducted, the EC considers that the 
appropriate legal standard is that of Article 3.1 of the AD Agreement : "objective examination" on the 
basis of "positive evidence".  Article 6.10 of the AD Agreement may serve as a very good guidance 
for the determination of whether sampling of dom estic industry was conducted in compliance with 
Article 3.1.  However, there also may be other met hods which satisfy the requirements of Article 3.1.   
6. Injury  
(a) EC correctly determined the volume of dumped imports 
4.262  Norway "recycles" its claim under Article 6.10 of the AD Agreement and brings it again, 
relying on the same "evidence" and arguments, under Article 3 (3.1) of the AD Agreement .  In the EC 
view, if a sampling exercise complies with the terms of Article 6.10, it has to be considered as being 
objective and complying with Article 3.1.  Otherwi se it would have to be implied that the sampling 
methods described in Article 6.10 are not sufficient a nd are not objective.  It would thus mean that a 
sampling exercise under Article 6.10 is not enough fo r the purposes of Article 3.1 and, that an 
investigating authority has to conduct a separate analysis of dumping for the non-sampled parties under that provision.  Further, there was other add itional evidence before the investigating authority 
on dumped imports besides that generated by sampl ing: this regards the imports from non-cooperating 
companies, which also included imports via traders.   
(b) The EC properly examined price-undercutting  
4.263  Norway fundamentally misunderstands the func tioning of a price premium.  In a dumped 
market, the issue is not a question of whether a c onsumer is willing to pay a premium.  Rather, the 
question is whether a producer can ask for or is likely to obtain a premium he would normally get under normal market conditions.  A producer facing a surge of low-priced products will do anything 
to survive, and first of all depress prices to keep its  share of the market.  The facts demonstrate that at 
the moment the domestic industry increased its average unit sales prices (even by mere 4.9 per cent), it started to lose sales volume (by 7.3 per cent) and thus lose market share. 
(c) The EC Properly Evaluated Price Trends 
4.264  For the purposes of the analysis of the financial performance of the EC industry, it does not 
matter whether one conducts the analysis in Euro or in GBP.  If the analysis is conducted in Euro, one 
will be able to establish a decline (-9 per cent) in sales prices and a minor increase in the costs of 
production (4 per cent) from 2001 to IP.  In contrast , if the same analysis is made in GBP, one 
establishes relatively stable prices but an increase in the cost of production (14 per cent) over the same 
period.  The ultimate result of the analysis, na mely the profit and loss ratio, is the same.   
7. Causation 
(a) Effect of "smaller less efficient producers in  the EC and higher cost of production" 
4.265  
It is normal that an industry which has suffered cost increases would try to recuperate them by 
raising sales prices.  The EC domestic industry was prevented from a such increase in sales prices 
because of the dumped imports from Norway (which  undercut the prices of the EC domestic 
industry).  At the same time, as explained in the Provisional Regulation (recital 108), Norwegian WT/DS337/R 
Page 50  
 
  industry did not have any overall cost advantage in comparison with the EC domestic industry and 
suffered itself losses at the prices at which it was selling.  It was the dumped imports that have caused the injury. 
(b) Imports of wild salmon from Canada and the United States 
4.266  There was considerable information concerning the imports of wild salmon from the US and 
Canada and the non-interchangeability of wild salm on with farmed salmon before the investigating 
authority (and referred to in the Definitive Regulation)  and some of it, in fact, originated directly with 
the government of Norway.  Norway makes its cl aim not to convince the Panel that the EC was 
deciding on the basis of incorrect facts.  Instead, Norway argues that establishment of facts that are 
not footnoted automatically violate Article 3.5 of the AD Agreement .  That is an unacceptable legal 
standard. 
8. MIPs 
(a) MIPs and normal values 
4.267  Norway again misstates the EC's arguments.  As regards the results of calculation of the 
maximum level of MIPs the EC strongly criticises Norway's methodology, but it has no view as to 
whether, using this methodology, Norway's calcula tion is correct.  The EC's adjustment of normal 
values to a CIF basis when calculating 'dumping' MIPs is a consequence of its use of this basis for all 
customs duties.  If it did not make this adjustment  the exporter would be able to claim that it had 
raised prices when in reality th e increase was merely due to tran sport and insurance costs.   
(b) Limits on MIPs  
4.268  Norway's argument for the use of a cap on MI Ps is based on a misunderstanding of the WTO 
rules that limit anti-dumping duties to the level of the 'margin of dumping'.  As recently emphasized 
by the Appellate Body, these rules, notably Article 9.3 of the AD Agreement , apply to the final stage 
of the assessment of duty.  In the case of MIPs this is when an importer claims a refund in respect of a 
particular exporter's sales on which duties have been  charged.  Norway misguidedly proposes that the 
rule applies at the point when the goods are imported. 
9. Fixed Duties 
4.269  The EC has addressed Norway's latest arguments on the issue of fixed duties in its answers to 
the Panel's Questions numbers 41 to 44 and sees nothing useful that it can add to those answers. 
10. Cost Adjustments 
4.270  In looking at the EC authorities' assessment s of the Norwegian exporters' costs the Panel 
should keep in mind the well-established principle th at the WTO agreements should not be interpreted 
in ways that would enable Members to evade or circumvent WTO disciplines.  Consequently, 
exporting companies should not be allowed manipulate their accounts in order escape the application 
of WTO rules on dumping.   
(a)  'Improper inclusion of all NRC in the costs of production' 
4.271  The approach used by the EC authorities is based on the 'matching' principle.  This refers to 
aligning revenues and costs to the items sold.  If this  principle is not adopted the reported profitability 
would be distorted.  It is the principle that best en shrines the rules in Article 2.2.1.1.  The use of the  WT/DS337/R 
 Page 51 
 
 
  matching principle in accounting by no means restricts th e costs to those that are directly related to the 
production process.   
4.272  The EC does not say that any reduction in the equity or wealth of company is a cost that 
benefits production in the investig ation period or in the future.  However, costs provoked by disease 
or mortality of the salmon biomass, for example, must be incorporated into the costs of farming 
salmon and influence the bottom line.   
4.273  Norway's approach would even exclude costs th at appear in the exporting companies' annual 
accounts.  Costs such as those due to restructuri ng or deformed fish cannot be dismissed as 'non-
recurring costs'.  They are a constant feature of th e Norwegian industry.  On the other hand, the EC 
authorities did not treat all costs in this way.  Only  those non-recurring costs that were attributable to 
salmon sales were included, and an average of three y ears of such costs was made to ensure fairness.   
(b)  'The EC's defence is premised on factual inaccuracies' 
4.274  Although project accounting is the best system for salmon production the EC authorities 
accepted whatever methodology was used by the comp anies under investigation, provided the results 
were in line with the (audited) annual accounts.  The types of accounting used by the companies are 
much more varied than Norway pretends.  Averag ing over three years was used by the EC in only a 
limited number of cases and only where the cla ssic accounting methodology applied by the company 
gave a false picture of its expenses.  Norway's  argument that the appropriate period for salmon 
production is less than three years is refuted by contemporary evidence, including their producers' own statements.   
11. Procedural Requirements 
(a) Access to information under Article 6.4 of the AD Agreement 
4.275  Norway's statements in the first substantive m eeting have again referred to the concept of a 
record.  It could, however, not point to any provision in the AD Agreement obligating members of the WTO to operate a record, let alone any jurisprudenc e.  The EC also notes that Norway kept silent 
about its own proposals in the Doha-round to introd uce its concept into a revision of the text. 
4.276  Norway made certain assertions about the visit of one of its legal advisors to Brussels to 
inspect the investigation files.  Norway complained that the files were "very disorganized", "not in 
chronological order" and that "68 missing documents " were not among the files seen.  The EC is not 
impressed by this subjective account, which appears to have been organised as a preparation for this 
dispute.   
4.277  First, Norway confirms that it was granted access to all the information that was used by the 
Commission in its investigation .  Second, questions of "organization" and "chronological order" are 
not regulated by the Agreement.  These are house-keeping issues where each WTO member may 
decide on its own how to store rele vant information used in the investigation.  Some members may 
file information relating to certain subject-matters, others on the basis of the date of submission.  The 
EC notes in passing that the submission practice of Norwegian exporters was – at best – not 
conducive to a certain filing order.  Rather than submitting – as requested – files in hard copy to a 
central point, Norwegian exporters simply sent e-mail s to individual persons as they deemed fit.   
4.278  Third, the issue of the so-called 68 "missing" documents is a misnomer.  The EC disagrees 
with Norway's contention that the EC had accepted an obligation to show the "68 missing documents" 
to Norway.  Norway assumes that these documents were relevant, non-confidential and used by the 
investigating authority within the meaning of Article 6.4 of the AD Agreement simply because WT/DS337/R 
Page 52  
 
  Norway knows that they have been submitted.  However, the frustration of a WTO member not to 
find documents, that it knows to have been submitted, al so in the investigation file of an investigating 
authority is not protected by the AD Agreement . 
4.279  In the present case there were various grounds for not including the 68 documents into the 
investigation files.  A substantial number of doc uments were submitted by exporters.  Although they 
contained confidential information, the exporters  did not provide a non-confidential version in 
contravention of Article 6.5.1 of the AD Agreement .  In that situation the document was not included 
in the files, but reference to it could be regularly found in the non-confidential summaries in the files.  
Other documents related to the question of Communit y interest.  Document No.  34 of Norway's list 
of 68 "missing documents" (letter from Dr.  Jaffa) wa s not included in the file for the reasons given in 
response to Question No.  45 of the Panel.  Finally, 15 documents from the Norwegian list are Notes 
Verbales  of the Norwegian government.  These are treated as government-to-government 
correspondence, not to be included in the file. 
(b) Disclosure of essential facts under Article 6.9 of the AD Agreement 
4.280  Norway's interpretative remarks on the duty unde r Article 6.9 of the AD Agreement give a 
wrong impression of the EC's position.  Norway c onstrues a difference between "factual findings" and 
"underlying facts" that the EC has never made.  Therefore, Norway's observations about the 
expressions "facts under consideration"  in Article 6.9 and the term "findings reached on issues of fact" 
in Article 12.2 of the AD Agreement are interesting, but without merit.  The EC agrees with Norway 
that Article 12.2 applies in a situation when a fina l determination is already made, whereas Article 6.9 
contains an obligation to inform about essentia l facts under consideration before the final 
determination.  The EC's point is a different one.  Under Article 6.9 of the AD Agreement the 
investigating authority shall inform  the parties of the essential facts  under consideration.  When the 
EC used the term "factual findings" in that contex t, it meant the "information" that the investigating 
authority provided to the parties on the facts that are used by it.   
4.281  The EC has therefore not contended that it w as only obliged to offer its "reasoning", but not 
the underlying facts to the interested parties under Article 6.9 of the AD Agreement .  What the EC has 
said is that to "inform of the essential facts" does not  mean to produce a list with citations of each and 
every single piece of evidence for a fact.   
4.282  That is supported by the due process ends of Article 6.9 of the AD Agreement .  The interested 
parties shall know the facts on which the investigati ng authority will base its final determination.  In 
case these facts are considered to be inaccurate, the interested parties can challenge the factual basis 
of the legal findings, serving their due process right s.  Due process rights do, however, not require 
knowing exactly which piece or pieces of evidence ha ve led the investigating authority to accept a 
certain fact.  What counts is to be informed a bout the acceptance of a fact by the investigating 
authority, not the source or reasons why the investigating authority did so. 
4.283  Contrary to Norway's assertion, the finding of the Argentina – Ceramic Tiles  panel does not 
suggest otherwise.  In that case, exporters ha d been given access to the complete file, but the 
investigating authority had not furnished any further explanation to them.  The EC met this standard 
by providing Norway with a comprehensive disclosure document.  The Argentina - Ceramic Tiles 
panel then turned to the question whether – in the absence of a specifically prepared disclosure 
document  - the documents contained in the file had su fficient informative value for the exporters to 
know which were the essential facts "under considerati on" of the investigating authority.  In light of 
the facts before it the Panel found that the reporters  could not be aware that the evidence submitted by 
the petitioners and derived from secondary so urces would form the primary basis for the 
determination of dumping.    WT/DS337/R 
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  4.284  However, this citation does not support Norway's  legal interpretation that the obligation under 
Article 6.9 of the AD Agreement is violated if a specifically prepared document does not contain 
references to all the evidence.  Rather, as the Argentina – Ceramic Tiles  panel held, such a 
specifically prepared doc ument has simply to summarize  the essential facts.   
4.285  Turning to the four specific examples, the EC continues opposing Norway's allegation that it 
was not informed about the essential facts relating to domestic industry and causation  – Norway's 
First Opening Oral Statement is entirely redundant  so that the EC refers to its First Written 
Submission in this regard.  With re gard to the dumping determination , Norway asserts that the EC had 
"changed essential facts" after the disclosure and insists that the three concerned producers should 
have been informed about this in writing.  Th e EC does not understand what Norway means when 
referring to the "change of essential facts".  In th e EC's view the "re-assessment" does not change the 
underlying facts.  Rather it is part of the investig ating authority's task to asses all the relevant facts 
before it to make a final determination in good time. 
4.286  In addition, the investigating authority's duty to inform all interested parties about the 
essential facts under consideration triggers important pr actical consequences.  Interested parties have 
a right to defend their interests throughout the whole process under Article 6.2 of the AD Agreement .  
If the investigating authority were obliged to disclo se all "re-assessments" it could never be able to 
finalize the investigation within the time available.  One cannot have one's cake and eat it.  Even if 
there was a repeated duty under Article 6.9 of the AD  Agreement to inform the three importers about 
the re-assessment of their dumping margin ( quod non est ), there is no legal basis for Norway's 
contention that information about th is must be given in writing.  As  is apparent from the above quoted 
finding of the Argentina – Ceramic Tiles  panel, the disclosure obligation may be fulfilled in many 
ways.  There is no reason why oral information should fall short of this  standard.  Any uncertainty can 
be removed by writing down an executive summary immediately after the oral information.  The EC fails to see why the possible negligence of an exporte r to do so would defeat its due process rights. 
4.287  Finally, a similar reasoning is valid with  respect to the remedy determination
.  "Re-
calculation" of the MIPs is not a change of essential facts that could trigger another information round 
after the definitive disclosure.  Any other interp retation of Article 6.9 of the AD Agreement would 
seriously hamper the investigating authority's duty to  finalise an investigation speedily within strictly 
prescribed time-limits.   
(c) Obligation to provide a reasoned and adequa te explanation under Article 12.2 of the 
AD Agreement 
4.288  In its First Written Submission, the EC explaine d at length that the dut y to provide a reasoned 
and adequate explanation relates to the information and reasons that the investigating authority found 
decisive.  Norway finds this approach "absurd", claiming that no WTO member can decide for itself 
whether it meets a WTO standard, that being the task of panels and the Appellate Body.   
4.289  The EC respectfully disagrees with Norway's proposition which seems to be based on a 
fundamental misunderstanding of interna tional law.  Under Article 26 of the Vienna Convention on 
the Law of Treaties  it is the duty of each party to an interna tional treaty to implement in good faith its 
treaty obligations.  In order to do so each party must necessarily decide for itself how it interprets and 
applies the relevant treaty in the first place.  In  most of the cases its unilateral interpretation and 
application of the commitments are to the satisfacti on of the other parties to the treaty.  If, however, 
another party doubts that the treaty is properly app lied, it can bring a dispute about the interpretation 
and application before the relevant  dispute settlement body.  With re gard to the AD Agreement this is 
of course this Panel.  However, the existence of this supervisory machinery does in no way prohibit 
the party to adopt its own interpretation and to enga ge in its way of implementation of the agreement 
in the first place.   WT/DS337/R 
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  4.290  Nothing else can be drawn from Article 12.2 of the AD Agreement .  The text does not indicate 
that a party should give a public notice about all matter s of fact and law and reasons that a third party, 
let alone a dispute settlement bod y considers to be relevant.  That would be far-fetched.  Rather, the 
whole purpose of this provision is that the inte rested parties get sufficient knowledge about the 
investigating authority's decision, taking due account of the need to protect confidential information. 
4.291  As the EC stays firm on the applicable standard, there is no merit in discussing again 
Norway's examples about allegedly lacking explanati ons.  As these allegations rest on an erroneous 
interpretation of Article 12.2 of the AD Agreement th ey are without any merit.  The EC is therefore 
confident that the detailed and careful reasoning set out in the Definitive Regulation fully satisfies the 
requirements as set out in that provision. 
G. S
ECOND ORAL STATEMENT OF NORWAY  
4.292  The following summarizes Norway's arguments in its second oral statement. 
1. Introduction 
4.293  In this statement, Norway responds to issues ra ised by the EC in its answers to the Panel's 
questions ("Answers") and in its Second Written Su bmission ("SWS").  The EC's latest submissions 
provide the Panel with a mixed bag: on some issues , it makes admissions that substantiate Norway's 
claims; on others, it offers a new defense that di ffers from both the publishe d determination and its 
First Written Submission; and, on yet others, the EC still presents an inaccurate picture of the investigation. 
2. The Panel Cannot Conduct a de novo Review 
4.294  Because this dispute concerns an anti-dumping measure, the Panel's task is to review the 
investigating authority's factual and legal determinations as set forth in the published determination.  
However, on almost every issue, the EC provides new explanations that the authority never gave in an 
attempt to justify its authority's determinations.  Panels and the A ppellate Body have consistently 
refused to allow such ex post rationalization.  The Panel cannot make new determinations, on the 
basis of new facts and reasons that replace those originally made by the authority. 
4.295  Further , the EC argues that publicly available information is automatically part of the 
authority's record.  However, the EC cannot show that the contested public information was gathered 
during the investigation; nor that it was shown to in terested parties under Article 6.4; nor that it was 
disclosed under Article 6.9; nor that it was mentioned in the published determination.  In short, the EC 
cannot show any procedural connection between the public information it now presents and the 
investigation.  As a result, Article 17.5(ii) requir es the Panel to disregard this information.  This 
applies likewise to other exhibits th at Norway argues are inadmissible. 
3. The Product Under Consideration 
4.296  Norway believes that Articles 2.1 and 2.6,  and Article VI:1 of the GATT 1994, impose 
obligations on the authority's determination of the product.  Although the EC accepts that these 
provisions require that likeness be ensured at the leve l of models, Norway has explained that this is 
not sufficient.  As the EC accepts, Article 2.1 a nd Article VI:1 require that the authority make a single 
determination of price discrimination for the investigated product as a whole .  In making that 
determination, the authority necessarily compares the prices of all models in a single, overall comparison.  As a result, likeness must be established for the product as a whole.  WT/DS337/R 
 Page 55 
 
 
  4.297  Contrary to the EC's views, the Appellate B ody has already found that Article 2.1 imposes 
independent obligations.121 In any event, Norway does not read Article 2.1 "in isolation" because it 
always combines Article 2.1 with claims under other provisions .  Norway's claims are that the 
improper product determination vitiates: (1) the EC's  initiation of the investigation under Articles 5.1, 
5.2, 5.3 and 5.4; (2) the EC's dumping determina tion under Articles 2.1 and 2.6; and (3) the EC's 
injury determination under Articles 3.1, 3.2, 3.4, 3.5 and 3.6.   
4.298  The EC now appears to accept that: there ar e physical differences between the products it 
bundled together; they are produced from different productions processes; are not fully substitutable; 
have different end uses; and have different tariff cl assifications.  The lack of a reasoned and adequate 
explanation for its product determin ation makes it WTO inconsistent.   
4. Domestic Industry 
4.299  The domestic industry examined for purposes of both initiation under Artic le 5.4, and injury 
under Articles 3.1, 3.4 and 3.5, must be defined in accordance with Article 4.1.  By failing to examine 
the correctly defined industry, the EC violat ed the obligations in these provisions.   
4.300  The EC defined the domestic industry as 15 compla ining producers to the exclusion of several 
other categories of producer.  The EC tries to excu se its exclusion of fillet producers by referring to an 
alleged problem of double-counting.   However, no problem of double-counting arises if the product is 
properly defined pursuant to Articles 2.1 and 2. 6, without combining upstream and downstream 
products.  Moreover, even where double-counting ari ses under the EC's flawed product definition, the 
scale of the problem is much overstated by the EC and there are various ways to deal with it.  Further, 
the EC has not explained, with evidence, how it separated out data for organic and conventional 
production for all injury factors, including costs, pr ices and profits.  The data presented by the EC is 
contradictory122.  Also the EC treated at least one producer as conventional, even though it presented 
itself as a non-conventional producer. 
4.301  The EC violated Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement by examining 
certain injury factors for a sample of five complain ing producers.  Norway argues that sampling in an 
injury determination is not permitted but, even if it were, the EC's sample was not properly 
constituted.  These are not separate claims, as the EC suggests, but two arguments supporting a single claim under the provisions of Article 3. 
4.302  If sampling were permitted under Article 3, the rules governing sampling must be derived by 
analogy from footnote 13 because it is the only provision dealing with sampling of the domestic 
industry.  The EC resorted to sampling without respecting the criteria in footnote 13, and is still 
unable to explain why and how it sampled the domes tic industry.  Moreover, a sample comprising a 
sub-set of the complainants does not permit an obj ective examination.  Also, three of the sampled 
producers are non-conventional producers with a different cost structure.  All of  this makes clear that 
the EC did not perform an objective examination of the domestic industry. 
5. Dumping 
(a) The EC Acted Inconsistently with Ar ticle 6.10 in Composing the Sample 
4.303  Contrary to the EC's argument, the Anti-Dumping Agreement expresses no preference for 
determining dumping for producers, to the exclusion of exporters.  Indeed, it would be perverse to 
exclude exporters under Article 6.10 because "dumpi ng", by definition, "relates to the pricing 
                                                     
 
121 Appellate Body Report, US – Hot-Rolled Steel , paras. 131 to 158, and 240(d). 
122 See Norway's Second Openin g Statement, paras. 30-31. WT/DS337/R 
Page 56  
 
  behavior of the exporter ".
123 For this reason panels and the A ppellate Body have ruled that, in 
principle, Article 6.10 requires an authority to determine dumping for known producers and exporters.  
In keeping with this requirement, the second sa mpling option focuses neutrally on the "volume of 
exports from the country in question ".  In fact, as recently as 2003, the EC conducted an investigation 
in which it constructed normal value for Norway's non-producing exporters.124 
4.304  Rather than defending the improper exclusi on of exporters, and of two large exporting 
producers, which it cannot, the EC makes an utte rly baseless claim that Norway's claim under 
Article 6.10 is outside the Panel's terms of reference.  Paragraph 4 of Norway's panel request plainly 
identifies Article 6.10 as within the Panel's terms of  reference.  The EC's view that Article 6.10 
permits these exclusions raises an interpretive question that does not alte r the Panel's terms of 
reference.  The Panel must therefore address Norway's claims. 
(b) The EC's Failure to Perform the Cost Recovery Test under Article 2.2.1 
4.305  The EC's latest submissions contain important admissions regarding its approach to the cost 
recovery test under Article 2.2.1.  The EC expressly acknowledges that it did not conduct the cost 
recovery test in the second sentence of Article 2.2. 1.  Consequently, the EC cannot be found to have 
made a determination under that sentence, explicitly or implicitly. 
4.306  The EC seeks to equate the duration of the "reas onable period" and the IP.  This is untenable 
under the Vienna Convention .  If the drafters had intended to equa te the reasonable period with the IP, 
they could easily have said so.  Yet, they chose to  distinguish between the two periods.  The drafters' 
use of different words to refer to different pe riods in Article 2.2.1 must be given meaning. 
(c) The EC Improperly Excluded Domestic Sales under Articles 2.2 and 2.2.2 
4.307  First, in constructing normal value, the EC im properly excluded data on profits, and selling, 
general and administrative ("SG&A") costs relati ng to low volume domestic sales under its 5 per cent 
representative sales test.  Second, in deciding to construct normal value, a nd in constructing normal 
value, the EC improperly rejected  data relating to low volume, pr ofitable domestic sales under its 
10 per cent test.  The EC thereby violated Articl es 2.2 and 2.2.2 of the Anti-Dumping Agreement. 
(d) The EC Improperly Applied Facts Available to Grieg 
4.308  The EC rejected information on filleting and fi nance costs provided in a timely fashion by the 
company and, instead, used secondary source informa tion that was less favorable to the company.  
However, in so doing, the EC failed to respect the rules in Article 6.8 and Annex II.  The EC's defense 
is premised on the view that it did not use "facts available".  However, the EC has been unable to 
explain how an authority can use secondary source in formation without resorting to "facts available". 
(e) The EC Violated Articles 9.4 and 6.8 with Respect to Non-Sampled Companies 
4.309  The EC admits that it incorrectly calculated a weighted average dumping rate for nonsampled 
companies.  The EC used that rate in determini ng the fixed anti-dumping duty.  As a result, the EC 
acted inconsistently with Article 9.4. 
4.310  The EC accepts that it used facts availabl e with respect to allegedly non-cooperating, 
nonsampled companies, to determine the residua l dumping margin for these companies.  Norway 
contests the right of a Member to apply adverse facts to non-sampled companies because the 
                                                      
123 Appellate Body Report, US – Zeroing (Japan) , para. 165. 
124 Exhibit NOR-5.  WT/DS337/R 
 Page 57 
 
 
  maximum "all others" rate is set forth in Article 9.4.   In any event, in applying adverse facts to these 
companies, the EC did not even comply with the requirements of Article 6.8 and Annex II. 
6. Injury 
(a) The EC Improperly Determined the Volume of Dumped Imports 
4.311  In its injury determination, the EC assumed that all imports from Norway were dumped, even 
though the EC examined a sample that comprise d solely producers, and even though the EC's 
dumping determination covered a me re 25.5 per cent of Norwegian exports to the EC.  The EC now 
accepts that the evidence from the samp led companies "could" qualify as just " part of the 'positive 
evidence'".  The Parties thus agree that there is a need to present "other positive evidence".  Norway 
has shown that no such evidence can be found in th e published determination.  The inclusion of the 
volumes of Nordlaks also vitiates the analysis. 
(b) The EC Improperly Examined Price Undercutting 
4.312  The price premium enjoyed by EC producers was documented in the record, and described in 
the Definitive Disclosure.  The alleged price underc utting of 12 per cent equaled the price premium of 
12 per cent disclosed in the Definitive Disclosure.  This should have been taken into account by the 
authority. 
(c) The EC Incorrectly Analyzed Price Trends 
4.313  The authority's determination relied on a decline in prices, which did not occur in the 
"material" currency.  The EC now accepts that no pr ice decline occurred in pounds sterling, and all of 
its arguments in its Second Written Submission are in tended to show that the analysis would have led 
to a finding of injury even if conducted in pounds st erling.  The EC cannot now reinvent its authority's 
reasoning by arguing that the price decline was irrelevant. 
7. Causation 
4.314  First, the EC was obliged to address the signifi cant increase in costs to the EC domestic 
industry in the published determination, but did not. 
4.315  Second, the EC has not been able to show th at it provided a re asoned and adequate 
explanation for imports from Canada and the Unite d States.  Also, it cannot demonstrate that the 
record contained positive evidence supporting its fi ndings that: (1) imports from Canada and the 
United States consist mostly of wild salmon; a nd (2) wild and farmed salmon do not compete.   
4.316  The EC now contends that its authority relied on data submitted by Norway in a safeguard 
investigation.  However, if the authority wishes to  use information from other investigations, it must 
formally make it part of the record, and disclose it to in terested parties.  In this investigation, the data 
in question was not made available under Article 6.4; was not disclosed as essential facts under 
Article 6.9; and was not mentione d in the published determination. 
8. The EC'S MIPs Exceed the Individually Determined Normal Values 
4.317  The EC has repeatedly refused to provide the calculations for its MIPs.  The EC incorrectly 
states that Norway's MIPs table is based on "interpretations of the Anti-Dumping Agreement that are 
different from those of the EC." In fact, Norway stated in its First Written Submission that: "… the 
normal values are those that the EC determined on the basis of the examined  producer's costs, as WT/DS337/R 
Page 58  
 
  determined by the EC.  They, therefore, include the substantial adjustments that  the EC made to these 
costs, which are contested …".
125  
9. The EC's Fixed Duties Exceed the Margin of Dumping 
4.318  By design, architecture, and declared purpose,  the fixed duties are anti-dumping duties.  The 
EC's argument that they are not anti-dumping duties, but set to deter and sanction customs fraud, is 
without merit. 
4.319  Even by the standards described in the EC's  Answers, the fixed duties are specific action 
against dumping.  For example, the fixed duties r esult in the imposition of higher anti-dumping duties 
than the variable duties system; th is is so whenever the amount of the fixed duty is greater than the 
difference between the actual import price and the MIP. 
10. Procedural Requirements 
4.320  The EC now acknowledges that it did not grant Norway access to the 68 documents listed in 
Exhibit NOR-31.  There were no "practical" impe diments that prevented the EC from providing 
timely opportunities for Norway to see the documents in November and December 2005.  Further, all 
of the documents were "relevant" to Norwegian inte rested parties and "used" by the authority.  The 
EC arguments for not including the documents into the files are flawed.  Article 6.4 applies to any 
information that is "relevant" to interested parties,  and that is "used" by an authority.  The source of 
the information, and the reasons why it is submitted, are not important under Article 6.4. 
4.321  Norway has explained that the word " basis " in Article 6.9 shows that the authority must 
disclose the essential facts in the record that provide the " foundation " for the authority's findings and 
conclusions.  If the authority merely discloses its  own findings and factual conclusions, without 
disclosing the facts in the file that support its findi ngs, interested parties are simply not aware of the 
"basis" in fact for the authority's determination, a nd they cannot point out that the facts are unreliable 
or have been incorrectly interpreted by the authority. 
4.322  By way of example, on dumping, Norway fails to see how the same set of essential facts can 
simultaneously support dumping dete rminations of 17.7 per cent a nd 24.5 per cent for Pan Fish 
Norway ("PFN").  Either the authority's assessment of export price or normal value, or both, must 
have changed significantly in order for the dumping ma rgin to decrease by 6.8 per cent.  With respect 
to the MIPs, the EC explicitly acknowledged that new "information", requested by the EC after the 
Definitive Disclosure, formed the "b asis" for a change in MIPs.  The authority was obliged to disclose 
the essential facts underlying these changes.  Yet, it pr ovided no disclosure.  The EC alleges that there 
were "oral disclosures".  Norway contests the right of an authority to provide oral disclosure, and 
provides evidence disputing such disclosures were made. 
4.323  The EC argues that Articles 12.2 and 12.2.2 ar e satisfied when the authority provides the 
information that the authority itself considers relevant, and until such time as its conduct is challenged 
in a WTO proceeding.  This is not a response to Norway's claims.  Norway  has challenged the EC's 
published notice and explained why it is insufficient.   The Panel must now decide whether the EC's 
notice is reasoned and adequate. 
                                                      
125 Norway's First Written Submission, para. 638.  WT/DS337/R 
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  11. The EC's Improper Cost Adjustments 
(a) The EC's Inclusion of Non-Recurring Costs and Operating Losses in the Cost of Production 
4.324  The major difference between the Parties regard ing many of the contested cost adjustments 
boils down to the meaning of the term "cost of production" in the Anti-Dumping Agreement .  Norway 
argues that the treaty requires a demonstrable relati onship between costs and production.  The relevant 
costs are those incurred to pay for resources used  in the production process to produce the like product 
sold in the IP.  In contrast, the EC continues to argue that all costs that affect a company's profitability 
are costs of production.  Contrary to the wording of the treaty, the EC makes no attempt to establish 
the existence of the required relati onship between costs and production. 
(b) The EC Has No Justification for the Three- Year Averaging of Non-Recurring Costs (NRC) 
and Finance Costs 
4.325  The EC's justification for using a three-year averaging period for these costs has continuously 
shifted and, for this reason alone, lacks credibility.    
4.326  For NRC, in the Definitive Regulation, the EC claimed to use three years as a substitute for 
allocating what it then called "extraordinary costs" over the lifetime of the fixed asset.126 It wrongly 
claimed that it had no information on the lifetime of the assets concerned, whereas the record included 
evidence on depreciation periods.  The EC stated th at three years was an "appropriate" alternative 
period because it was the average time to grow "a smolt to a harvestable salmon".127 
4.327  As for finance costs, the EC gave no separate e xplanation for the use of a three-year period to 
calculate finance costs for five companies.  This a pproach significantly inflated  costs because interest 
rates fell markedly during the period concerned.  Ex hibit EC-37 also shows that the EC used different 
three-year periods for different companies.  For some, 2001 to 2003 was used and, for others, 2002 to 
2004 was used.  The EC asserts that this is because  it used the audited accounts for the three most 
recent years.  For some companies, it contends th at the 2004 statements were available, while for 
others they were not.  However, this is in correct as all 2004 statements were available. 
4.328  In these proceedings, the EC no longer argues that it used a three-year period as a proxy for 
the useful life of fixed assets, and it has not address ed the fact that the record included evidence on 
depreciation periods.  Also, it no longer contends that  three years is the period from smolt to harvest, 
and instead argues that three years is the period from egg to harvest.128 This difference is important 
because the period from eggs to smolt, which is an on-shore activity in hatcheries and fresh-water 
cages, can last nine to 15 months. 
4.329  More importantly, the EC has introduced a new justification for three-year averaging based 
on project accounting ("PA").  Besides constituting ex post rationalization, the EC's reliance on a PA 
approach is riddled with inconsistencies, and is  factually wrong.  Furthe r, this reason was never 
mentioned either in the published determina tion or the disclosures.  This argument is ex post 
rationalization.  For that reason alone, the Panel can reject this justification.  The Panel need not 
decide, therefore, whether a PA or IP approach is "correct" or "preferable", or even whether the EC 
used a PA approach. 
                                                      
126 Definitive Regulation, para. 18. 
127 Definitive Regulation, para. 18. 
128 EC's FWS, paras. 617 and 692. WT/DS337/R 
Page 60  
 
  4.330  For one company, the EC simply counted tw ice the costs of slaughtering and packing 
services; without such double-counting, the EC woul d have had to find that this company was not 
dumping.   
12. Conclusion 
4.331  Norway, also submits 10 new exhibits, from E xhibit NOR-176 to Exhibit NOR-185, together 
with this Opening Statement.  Pursuant to para. 11 of the BCI procedures, Norway requests that the 
Panel apply the BCI procedures to protect the in formation in Exhibits NOR-177, NOR-183 and NOR-
185.   
H. S
ECOND ORAL STATEMENT OF THE EUROPEAN COMMUNITIES  
4.332  The following summarizes the Eu ropean Communities' arguments in its second oral 
statement. 
1. Standard of Review 
4.333  Norway's response to the EC's Opening Statement as regards the notion of standard of review 
serves only to confuse what are actually quite distin ct issues.  No one doubts that the investigating 
authorities must provide an explanation for their c onclusions, and the EC is familiar with the rulings 
of the Appellate Body on the nature of that explan ation.  Nevertheless, the Appellate Body has said 
that a panel must give 'due regard to the approach  taken by the investigating authority, or it risks 
constructing a case different from the one put forward by that authority.' We have no doubt that the Panel will bear this warning in mind when considerin g how to apply the rules in Article 17.6(i) of the 
Anti-Dumping Agreement . 
2. Product 
4.334  Norway persists in referring to the product that  is examined in an anti-dumping investigation 
as the 'product under consideration', which is incorrect.   
3. Domestic Industry 
4.335  As regards Norway's assertion that the sampling of domestic industry is not permitted by the 
AD Agreement , the EC notes that Norway does not even a ddress the legal arguments set forth by the 
EC and instead limits itself to what it said before. 
4. Dumping Issues 
(a) Selection of Norwegian producers 
(i) Exclusion of exporters 
4.336  In its First Written Submission, in answer to No rway's complaint that 'mere exporters' should 
not have been excluded from the investigation, th e EC pointed out the problems that would arise if 
dumping duties were imposed on both exporters and pr oducers.  A batch of fish, originating with a 
producer and passing through the hands of an exporter would arrive in the EC and apparently be liable 
for two possible levels of duty depending on whethe r that for the producer or the exporter was 
invoked.    WT/DS337/R 
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  (ii) Composition of list 
4.337  The issue is not whether Article 6.10.1 places th e investigating authority under a duty to take 
exporters views into account.  Rather it is whether it is legally entitled  to do so.  In other words, in the 
EC's view whether or not the authority is obliged to deal with exporters or producers, it cannot be 
faulted for attempting to consult and reach agreement with them.   
(b) Articles 2.2 and 2.2.1 
4.338  Norway's claims regarding th e EC's obligations under the 'reasonable period' rule in 
Article 2.2.1 are undermined by its failure to un derstand the structure of this provision.  The 
paragraph starts by identifying a particular categor y of domestic sales: those 'at prices below per unit 
… costs of production plus administrative, selling and general costs'.  It then apparently proceeds to 
identify what appears to be a subcategory of such sales, those 'made within an extended period of time 
in substantial quantities and are at prices which do not provide for the recovery of all costs within a 
reasonable period of time.' However, as the EC has no ted in its answer to th e Panel Question 80, the 
third of these points, that of recovery of costs within  a time period, is intrinsic to the notion of sales 
below cost, and is not an additional criterion.  In  other words, no determination of whether sales may 
be made below cost is possible without having set a period over which costs those costs are 
determined.   
(c) Rejection of data relating to prices – Article 2.2.2 
(i) Low volume sales 
4.339  Norway keeps referring to the EC's arguments in the Fittings  case.  If these arguments are 
examined it will be seen that the very situation wh ich the EC distinguished as not relevant in the 
circumstances of that case is the one that has arisen in this dispute.  Specifically, in this dispute the 
result of taking into account data from non-representativ e sales is to construct normal values that are 
the same as the normal values that would have resu lted from using the prices of the sales that have 
been disregarded as being non-representative.   That was not the situation in the Fittings  case.  In that 
case the Appellate Body adverted to this problem in a footnote.  Referring to Brazil's argument that an 
interpretation that allowed the inclusion of data  from low volume sales (that had previously been 
disregarded) would render the provision 'ineffective' , the Appellate Body said 'the example posited by 
Brazil is premised on certain factual assumptions.  … We are not convinced that these factual assumptions necessarily hold true for most anti-dumping investigations.  We are of the view that the possibility  of the outcome suggested by Brazil, based  on a certain set of circumstances, cannot 
overcome the specific text of the chapeau of Article 2.2.2.' 
(ii) 10 per cent rule 
4.340  The EC has already given substantial explanati ons of its justification for operating a 10 per 
cent rule in regard to profitable sales.  Norway  has responded by citing the phrase 'normal commercial 
practice' used by the Appellate Body in US – Hot-Rolled Steel.  However, Norway misinterprets the 
ruling.  It is true that Appellate Body said 'W here a sales transaction is concluded on terms and 
conditions that are incompatible with "normal" co mmercial practice for sales of the like product, in 
the market in question, at the relevant time, the tr ansaction is not an appropriate basis for calculating 
"normal" value.' However, it is clear that the Appellate Body was not attempting a comprehensive 
definition of the concept of sales that are not in the ordinary course of trade.  Rather, it was presenting 
one category of such sales.  Most obviously missi ng are the type of sales which the AD Agreement 
most clearly identifies as not in the ordinary co urse of trade, which are those made at a loss. WT/DS337/R 
Page 62  
 
  (d) Article 6.8 and Annex II as regards [BCI] 
4.341  In its latest contributions Norway says little if anything that is new on the subject of the 
investigation of [BCI].  Regarding what took pl ace during the verification visit, Norway, although it 
has access to [BCI], still does not contradict  the EC's account but merely describes it as 
'unsubstantiated'.   
(e) Non-investigated companies 
4.342  As regards the status of companies found by the EC to be non-cooperating, the EC has 
already analysed the notification obligations of the in vestigating authority.  The list of obligations that 
Norway claims have been infringed by the EC ser ves to emphasise the bizarre nature of Norway's 
claim.  Regarding companies that had made no effo rt to respond to its requests for information and 
had not even acknowledged their existence to the inv estigators, the EC is accused of not supplying 
information regarding information that they should  have supplied; of failing to allow them make 
further explanations; and of not telling th em how their non-cooperation was hindering the 
investigation. 
5. Injury 
4.343  Nothing that Norway has said ser ves to answer the EC's argument that the methods defined in 
Article 6.10 must be regarded as acceptable ways  of limiting the scope of investigations and are 
therefore valid for application in the circumstance s of Article 3.  In addition, the EC authorities 
combined the information from the sample of comp anies with data from other sources.  Norway has 
likewise nothing substantially new to say about unde rcutting, no doubt because of its failure to 
understand the functioning of a price premium.  Re garding price trends Norway has still not shown 
why the analysis must be carried out in pounds as opposed to Euro. 
6. Causation 
4.344  The EC does not find in Norway's most recent cont ributions anything that adds to its previous 
comments and arguments.  Instead, Norway merely repeats its untenable position that a factual 
finding which is explained but not footnoted to a source violates any determination under Articles 3.1 
and 3.5 of the AD Agreement . 
7. MIPs 
4.345  Normal values are calculated at a factory gate level.   In other words, the price is set at point at 
which the goods leave the factory gate, removing any element corresponding to the cost of shipping the product to the EC.  Export prices are calculated at  the same basis.  However, the EC traditionally 
charges duties on a CIF basis, that is on the price of the goods including costs of shipment to the EC.  
The MIPs are adjusted upwards to take account of th is.  An alternative approach would be to set the 
MIPs at the actual normal value, and reduce th e invoice price of imported salmon by an amount 
corresponding to transport and insurance costs.  The result in terms of the duty imposed under the 
MIP would be the same, but the process would consid erably add to the cost and bother of passing 
goods through customs control.  The EC can hardly  imagine that this is something that Norway 
wishes its salmon exports to face.   
8. Fixed Duties 
4.346  The EC has no further observations to make on the topic of fixed duties at this stage.  WT/DS337/R 
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  9. Procedural Requirements 
(a) Record of the investigation 
4.347  The various points made by Norway in its Rebuttal Submission and Answers to Panel 
Questions as regards the record of the investiga tion have already been addressed by the EC in its 
presentations to the Panel. 
(b) Information on essential facts 
4.348  The Panel will be well aware of the rule in  Article 6.14 of the AD Agreement that anti-
dumping procedures 'are not intended to prevent the authorities of a Member from proceeding expeditiously' and reaching final determinations.  This principle necessarily acts as a limit to the kind of right being claimed by Norway as regards 'essential  facts'.  In other words, the rights that Norway 
invokes are not without limits.  The investigatin g authority must balance the various interests 
involved, and inevitably there will be occasions when it has to limit parties' interest in disclosures in 
order not to prejudice expeditiousness.   
10. Costs 
(a) Introduction 
4.349  The principle of equal treatment is important  because the imposition of anti-dumping duties 
reflects a conflict of interests not just between fore ign producers that are alleged to be dumping and a 
domestic industry that claims it is being caused injury, but also between the individual foreign 
producers who are the subject of the investiga tion and the eventual anti-dumping measures.   
(b) Inclusion of non-recurring costs (NRC) and operating losses 
(i) Costs of production pay for resources used in production 
4.350  Limiting the cost of production to those costs that pertain to production is equivalent to 
establishing the manufacturing cost of a product.  Th is is in any case too narrow in the light of the 
definition of Article 2.2.2 – 'costs incurred in resp ect of production and sale' –  highlighting the costs 
that are made to commercialise the produced goods. 
(ii) [BCI]'s closure of smolt facilities 
4.351  On the basis of the findings of the on-site verification, the depreciation costs of 67 million 
NOK did not cover any write-down on the closure of  smolt facilities.  Moreover, on the basis of 
GAAP such a write-down would not even be expect ed to figure under the regular depreciations. 
(iii) Closure of selling operations in Denmark 
4.352  The investigating authorities fail to see why the admission that the costs of closure of selling 
operations in Denmark were included incorrectly would alter the conclusi ons and invalidate the 
investigation, nor why this should be considered by  the Panel as a violation of Articles 2.2.1.1, 2.1 
and 2.2.  Norway does not explain its position in this  respect.  The EC has made makes clear that the 
adjustment does not represent 2.4 per cent of the cost  of production but 2.4 per cent of Norway's total 
claim on other non-recurring costs as presented in Table 12 in its First Written Submission.  In reality 
the incidence on the cost of production is a mere 0.27 per cent, and can be regarded as de minimis . WT/DS337/R 
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  (iv) Write-down of salmon farming licences 
4.353  The EC has already replied to Norway's clai m regarding the write-down of salmon farming 
licences.  Without the licences, [BCI] would not have been allowed to produce salmon at the 
production facilities in question.  Given the fact th at salmon is farmed over a three year period, 
salmon harvested in the IP would have been grown during a period in which the licences were still in 
use.  Norway appears to say that the relevant pe riod is further narrowed down to that part of the 
growth cycle of the salmon generation that is situated  in the IP.  That is clearly a distortion of the 
reality of the salmon business. 
(v) Operating losses 
4.354  Norway has admitted that it mislabelled a write -down of financial par ticipations as operating 
losses.  The EC has already explained its treatment of write-downs.   
(vi) Investment losses  
4.355  The EC has confirmed that all salmon related investment losses were indeed treated as NRC 
to be included in the cost of production of salm on.  Such an approach was based on the business 
segment approach. 
(c) Averaging of NRC over a three year period for several companies 
4.356  The EC has addressed this issue in its reply to  the Panel's Question 31.   From Exhibit EC-37 
it can be seen that the accounting method most frequen tly used by the investig ating authorities in the 
determination of cost of production was that of pr oject accounting, and this was in line with the 
companies' own methodologies.  It was based on an average three year salmon generation.  Moreover, the so-called NRC were an integral part of ru nning the salmon business and were therefore properly 
counted as cost of production, in line with the a udited results communicated by the companies in their 
financial reports to third parties, such as investig ating authorities, shareholders and the general public. 
(d) The EC's adjustments relating to finance costs 
4.357  The three year approach is criticised again by Norway on the basis of the alleged limitation of 
the use of project accounting to one company and th e use of different three year periods.  Norway 
does not reply to the argument that the finance costs of [BCI], [BCI] and [BCI] were not fully 
included in the companies' reported cost of production and does not comment on the investigating authorities' decision to use group accounts to remedy this situation.  Nor does Norway clarify its inconsistent claim regarding the limitation of finan ce costs to the IP, or explain how the costs reported 
by [BCI] by virtue of its use of project acc ounting can be reconciled with its position.   
4.358  Consequently it seems that the Norway's repeat ed efforts to cast doubt on the use of project 
accounting and the three year approach are merely m eans by which to avoid the fundamental issue of 
costs in this dispute, i.e. the failure of the Norwegian companies to fully report their costs of 
production.  Finally, it should be said that as regard s [BCI] the investigating authorities did not agree 
that the revised accounts for 2002 contained th e losses on the investment in Pan Marine.   
(e) The EC's adjustments relating to smolt cost 
4.359  As concerns the changes regarding smolt cost s between definitive disclosure and definitive 
regulation, Norway should already possess all the in formation necessary to verify the correctness of 
the investigating authorities' statem ent, because the relevant data were disclosed to the companies.    WT/DS337/R 
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  (f) The EC's adjustments relating to SG&A costs for [BCI] 
4.360  The statements in the information note on cost of production, and in the provisional 
disclosure, are superseded by the reasoning given in  the final determination.  Moreover, the SG&A 
costs of [BCI] were technically not rejected becau se they were part of the consolidated accounts.  
Since consolidation eliminates intra-company transac tions, the issue of transfer pricing could be 
resolved.  Finally, because such an  exercise does not yield any conclusive results, the investigating 
authorities never undertake to evaluate transfer pri ces between companies base d on those companies' 
individual accounting records, but prefer to have  recourse to consolidated accounts when these are 
available, or to external market information. 
(g) The EC's improper adjustments relating to costs of purchased salmon for [BCI] 
4.361  The figure of 8.8 million NOK was not substan tiated during the on-site investigation, a 
fundamental issue that Norway tries to obscure.   
(h) CNV Adjustment Claims 
4.362  In Question 62 the Panel raised with Norway the crucial issue of non-recurring costs and the 
of notion benefit to current and future production.   Norway's answer makes serious misstatements 
about fundamental accounting principles. 
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties are set out in their written and oral submissions to the 
Panel, and in their answers to questions.  The third parties' arguments, as summarised by them 
pursuant to paragraph 12 of the Panel's working procedures, are set forth in this section.     
A. CANADA  
1. Written Submission of Canada 
5.2 Canada did not present a written submission to the Panel. 
2. Oral Statement of Canada 
(a) Introduction 
5.3 Mr Chairman, Members of the Panel, we appreci ate this opportunity to provide our views to 
the Panel.  Canada's submission today addresses Norway's claim that under the Antidumping 
Agreement, the EC may not impose anti-dumping du ties based on "minimum import prices" that are 
higher than the dumping margin established in the origin al investigation.  Canada disagrees with this 
claim. 
5.4 In our respectful submission, under the Antidumping Agreement, the assessment of anti-
dumping duties based on "minimum import prices" and using a prospective normal value is distinct 
from the determination of dumping margins in the investigation phase.  The Antidumping Agreement 
does not require that the dumping margins in the investigation phase  act as a cap on the duty that may 
be imposed based on a minimum import price.  Let me explain. WT/DS337/R 
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  (b) Argument 
5.5 What does Norway argue?  Norway does not ch allenge the right of Members to impose anti-
dumping duties on the basis of minimum import prices in the context of a prospective duty assessment system.  Rather, it alleges that the Antidumping Agreement imposes a "cap" on anti-dumping duties imposed on the basis of such fixed reference prices.  According to Norway, this cap is the margin of 
dumping determined in the original investigation.
129 
5.6 Norway does not rely on any authority for th is proposition, and there is none.  In fact, a 
previous panel has already addressed this issue and rejected the argument advanced by Norway.130  In 
Argentina – Poultry Anti-Dumping Duties  the panel found that Argentina had not violated Article 9 of 
the AD Agreement by imposing variable anti-dumping duties on the basis of margins of dumping 
established at the time of collection. 
5.7 The Argentina – Poultry panel did not expressly address Norway's allegation of a cap.  
However, we agree with the EC that the findings of the panel in that dispute are relevant to the facts 
of this case.131  The reasoning of that panel establishes that, consistent with Article 9 of the 
Antidumping Agreement, a Member may impose anti-dumping duties on the basis of the difference 
between the minimum import price and actual export prices established at the time of collection. 
5.8 In this respect, let me highlight three points in the findings of the Argentina – Poultry panel 
that Canada finds particularly relevant. 
5.9 First , the panel saw nothing in the Antidumping Agreement that "explicitly identifies the 
form that anti-dumping duties must take." Specifically, the panel held that the Antidumping Agreement does not prohibit the use of variable anti-dumping duties.  We agree with this point and 
urge you to follow this finding. 
5.10 Second , Article 9.3 does not refer to the establishment of the margin of dumping during the 
investigation phase .  Rather, as the Argentina – Poultry panel found, Article 9.3 simply refers to the 
margin of dumping established "under Article 2."  A ccording to that panel, this meant "simply that, 
when ensuring that the amount of  the duty does not exceed the margin of dumping, a Member should 
have reference to the methodology set out in Article 2, " that is, the various elements of Article 2 such 
as normal value, fair comparison, and so on.
132 
5.11 In the context of these two points, the panel went on to state that Article 9.3 is primarily 
concerned with "duty assessment." The panel also e xplained that "neither the ordinary meaning of 
Article 9.3, nor its context supports  [the] view that Article 9.3 prohi bits variable anti-dumping duties." 
To impose a prohibition on variable anti-dumping duti es, Article 9.3 would have had to require that 
anti-dumping duties do not exceed the dumping margin  established during the investigation phase of 
Article 2.4.2.133  Article 9.3 does not do this. 
5.12 Third , the panel noted that the immediate c ontext of Article 9.3 contradicted the 
interpretation of that Article as prohibiting the collection of anti-dumping duties in excess of the 
margin of dumping established during the initial inves tigation.  The panel observed that Article 9.4(ii) 
                                                      
129 Norway's First Written Submission, Section VIII, para. 666. 
130 Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, Report of the Panel, 
WT/DS241/R, adopted May 19, 2003. 
131 EC's First Written Submission, para. 493. 
132 Report of the Panel, WT/DS241/R, adopted 19 May 2003., para. 7.357. 
133 Ibid., paras. 7.354-355.  WT/DS337/R 
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  expressly envisaged a prospective normal value system  and concluded on that basis that the use of 
such a system should be consistent with Article 9.3 of the AD Agreement.134 
5.13 In Canada's respectful submission, the panel's findings in Argentina – Poultry  establish that a 
Member has the right, under the Antidumping Agr eement, to assess antidumping duties on the basis 
of minimum import prices.  The panel's findings are based on the fact that there is a distinction 
between the conditions that prevail during the inves tigation period and the conditions relevant to the 
assessment of anti-dumping duties for each importation of subject goods during the life of the measure.  Normal values and export prices can, a nd often do, vary over the life of an anti-dumping 
duty measure; accordingly, duties are assessed in appropriate amounts so long as they do not exceed 
the margin of dumping determined for each importation of subject goods.  That such amount could 
exceed the margin of dumping established during the or iginal investigation is of no legal consequence 
under the Antidumping Agreement. 
(c) Conclusion 
5.14 In conclusion, let me make the following observation about the consequences of accepting 
Norway's arguments.  If you accept Norway's "ca pping" argument, this w ould provide a strong 
incentive for foreign producers and/or exporters to  seek to evade antidumping measures by simply 
pricing at even higher margins of dumping than those established during the investigation.  This is 
because those producers and/or exporters would be secure in the knowledge that an increase in the 
dumping margin would not result in correspondingly higher rates of anti-dumping duties.  Such an outcome would not only be counterintuitive, it w ould be inconsistent with the scheme of the 
Antidumping Agreement as a whole. 
5.15 Aside from Article 9.3, there is no rule in the Antidumping Agreement requiring a cap of the 
kind claimed by Norway. 
5.16 Canada respectfully requests that the panel find that there is nothing that prohibits duty 
enforcement systems based on variable anti-dumpi ng duties that may exceed the margin of dumping 
found during the original investigation. 
5.17 Mr. Chairman and members of the Panel, I thank you again for allowing Canada an 
opportunity to address the Panel on this issue. 
B. C
HINA  
1. Written Submission of China 
5.18 China welcomes this opportunity to present its views in this proceeding before the Panel 
involving Norway's complaint regarding the Eu ropean Communities' antidumping measures on 
farmed salmon products.   
5.19 In this third party submission, China woul d like to contribute its understanding on the 
following aspects of the dispute: (1) The Domestic Industry; (2) Sampling in Injury Determination; and (3) The Minimum Import Prices ("MIPs") imposed by the EC. 
5.20 With respect to the issues of domestic industry, the EC argues that Article 4.1 is a definition, 
not an obligation.  China points out that previous Panel decisions in both Argentina – Poultry  and 
                                                     
 
134 Ibid., para. 7.359.  Canada agrees with EC's argument that the panel in Argentina – Poultry Anti-
Dumping Duties , para. 7.359, explicitly approves the extension of the lesser duty principle to include 
prospective reference prices set below the level of the normal value.  EC's First Written Submission, para. 481. WT/DS337/R 
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  Mexico - Corn Syrup  supports China's opinion that Article 4.1 imposes an obligation that the 
Members need to fulfil.   
5.21 Besides, the EC considers that Article 4.1 simply provides two options for defining the 
domestic industry, and the investiga tion authority has the discretion to select either option.  However, 
China believes that the AD Agreement establishes a direct correlation between the product under 
consideration, the like product and the domestic i ndustry.  There is inherent connection among those 
definitions which should match with each other st rictly.  China considers that the EC's such 
interpretation of Article 4.1 will eventually cause a mismatch between the industry and the product. 
5.22 Further, if Article 4.1 allows the investiga tion authority, when defining  domestic industry 
subject to investigation, to have the discretion to simply select a part of the domestic producers which 
may be injured to a higher extent than the other pa rts so as to find injury eas ily, the injury evaluation 
will not be objective under such discretion allowed.  Also, it is against the original intention of the 
drafters to nullify any of the options  clearly stated in the agreement. 
5.23 Concerning the sampling issue, in China's view, Article 3.1 and Article 3.4 of the 
AD Agreement set the obligation for the investiga ting authorities to conduct an objective examination 
of all relevant economic factors and indices having a bearing on the state of the injury to the domestic 
industry.  And China considers that it is within the discretion of the investigation authority to decide 
what methodology it would use in an injury examination.   
5.24 In both Footnote 13 and Article 6.10, the drafters set forth expressly the specific 
circumstances and conditions under which an authorit y can resort to sampling; however, in China's 
view, this does not automatically demonstrate that  the drafters of the AD Agreement intended to 
permit only two circumstances where sampling c ould be used and that sampling in other 
circumstances would violate the AD Agreement by de fault.  The requirement in the AD Agreement is 
that the investigation be conducted "objectively" an d include an evaluation of all relevant economic 
factors and indices that affect the state of the injury to the domestic industry.   
5.25 Moreover, Although Article 6.10 applies to sampling for the purpose of dumping margin 
determination only, it sets out the rationales that the drafters may have had in mind, and China 
considers that the same rationales support sampling for the purpose of injury determination when it is 
"impracticable" for the authority to evaluate al l relevant economic factor s of "all producers as a 
whole" in the domestic industry within the time-l imits.  Meanwhile, sampling shall not compromise 
the "objectiveness" of the examination. 
5.26 China notes that the Appellate Body in US – Lamb  rules that the "data evaluated by the 
competent authorities must be sufficiently representative of the 'domestic industry'.  Accordingly, 
China considers that as long as the investigation au thority can demonstrate that the specifics of the 
case create an exceptional circumstance where sampling of the domestic industry is required and that 
the sampling allows the authority to evaluate the data that's sufficiently representative  of the 
"domestic industry", the investigation authorit y has the discretion to choose the evaluation 
methodologies it uses in its injury determinati on, and sampling shall be one of the options. 
5.27 China considers that the MIPs imposed by the EC against farmed salmon in this case are 
inconsistent with the AD Agreement because, with  six different MIPs, the EC did not impose "a 
single anti-dumping duty" against "a single product" in a single investigation.   
5.28 China considers that there should be only on e duty for a product investigated against each 
exporter/producer concerned.  In China's view, the wording of the AD Agreement shows that the 
drafters intended a strict corresponding relationshi p between a product (singular form), a margin of 
dumping (singular form), an exporter/producer (singular form), and an antidumping duty (singular  WT/DS337/R 
 Page 69 
 
 
  form).  Once the investigation authority has defi ned "a product", i.e., the product under consideration, 
it shall determine "an individual margin of dumpi ng" for "a known exporter or producer" and impose 
"an anti-dumping duty" against such pro duct and such exporter/producer.   
5.29 In the EC investigation in this case, the EC d ecided that all farmed salmon constitutes a single 
product.  For this single product, however, the EC determined six different minimum import prices for 
the six different presentations of the "single product" .  In the end, the EC imposed plural antidumping 
duties on a single product it defined at the beginning of the investigation.  Therefore, China considers the MIPs the EC imposed in this investig ation inconsistent with the AD Agreement. 
5.30 In conclusion, China is of the view that the MIPs imposed by the EC in this case are not 
WTO-consistent.  However, China considers that the AD Agreement does not prohibit sampling to be 
used in injury determination provided that it  shall not compromise the "objectiveness" of the 
examination.  In addition, China hereby requests th is Panel to clarify on the definition of the domestic 
industry under Article 4.1 of the AD Agreement. 
2. Oral Statement of China 
5.31 Thank you, Mr. Chairman, and members of the Panel.  China welcomes this opportunity to 
appear before you today to present its view on two legal issues raised in this proceeding.  One is 
sampling in injury determination; another one is  the minimum import prices (MIPs) imposed by the 
EC.   
(a) Sampling in injury investigation 
5.32 Regarding the issue of using sampling in injury in vestigations, China's view is that Article 3.1 
and Article 3.4 of the AD Agreement obligates the investigating authorities to conduct an objective 
examination of all relevant economic factors and i ndices having a bearing on the state of the injury to 
the domestic industry.  As long as these requireme nts are satisfied, it is the discretion of the 
investigating authority to decide what met hodology it will use to conduct an objective injury 
examination. 
5.33 Footnote 13 and Article 6.10 of the AD Agreem ent set forth the specific circumstances and 
conditions under which an authority may resort to sampling.  However, in China's view, this should 
NOT be interpreted to mean that the AD Agre ement permits only two circumstances where sampling 
can be used.  Rather, the requirement in the AD Agr eement is that the inves tigation shall be conducted 
"objectively" and shall include an evaluation of a ll relevant economic factors and indices that affect 
the state of the injury to the domestic industry.   
5.34 In addition, although Article 6.10 applies to sampling for the purpose of dumping margin 
determination only, China considers that the same ra tionale in this Article supports sampling for the 
purpose of injury determination when it is "imprac ticable" for the authority to evaluate all relevant 
economic factors of "all producers as a whole" in the domestic industry within the time-limits.  
However, sampling should only be used in exceptio nal circumstances, and it should not compromise 
the "objectiveness" of the examination. 
5.35 As long as the investigating authority can dem onstrate that the specifi cs of the case create 
exceptional circumstances where the sampling of th e domestic industry is necessary, and that the 
sampling allows the authority to evaluate the data that is sufficiently representative  of the "domestic 
industry", the investigating authority has the discretion to choose the evaluation methodologies it uses in its injury determination, and sa mpling should be one of the options. WT/DS337/R 
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  (b) The minimum import prices (MIPs) imposed by the EC 
5.36 In China's opinion, once the investigating author ity has defined "a product" (i.e. - the product 
under consideration), it should dete rmine "an individual margin of dumping" for "a known exporter or 
producer" and impose "an anti-dumping duty" against such product and such exporter. 
5.37 In this case, the EC claims that all farmed salmon constitutes one single product.  For this 
single product, however, the EC determined six di fferent minimum import prices for the six different 
presentations of the "single product", and finally imposed several antidumping duties on a single product.   
5.38 Therefore, China considers that the MIPs impo sed by the EC against farmed salmon in this 
case are inconsistent with the AD Agreement.  With  six different MIPs, the EC did not impose "a 
single anti-dumping duty" on "the product" under investigation.   
5.39 Thank you again for this opport unity to express our views. 
C. H
ONG KONG, CHINA  
1. Written Submission of Hong Kong, China 
(a) Introduction 
5.40 Hong Kong, China welcomes the opportunity to  take part as a third party in these 
proceedings.  Hong Kong, China has substantial interest  in certain matters raised before the Panel and 
would like to present its views in the present writte n submission on some specific issues concerning 
the interpretation and application of the Agreemen t on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (the "AD Agreement"). 
5.41 It appears that in its investigation to dete rmine injury in this case, the EC limited its 
examination to only some domestic producers.  This raises the question as to whether the 
AD Agreement permits a Member to select a sample  with respect to the domestic industry for the 
purposes of the injury determination.  In additio n, regarding the dumping determination, the EC 
appears to have excluded from the sample all non -producing exporters.  This gives rise to the 
question as to what extent a Member has discretion in selecting interested parties or categories thereof 
in the framework of a sample for the purposes of determining dumping margins.  These issues are of 
systemic importance to anti-dumping investigations , and Hong Kong, China would like to provide its 
comments thereon in the following paragraphs for consideration by the Panel. 
(b) Sampling of domestic industry in injury determination 
5.42 Article 3 of the AD Agreement governs the determination of injury by investigating 
authorities.  Injury is defined in footnote 9 of the AD Agreement as "material injury to a domestic 
industry , threat of material injury to a domestic industry  or material retardation of the establishment of 
such an industry " (emphasis added).  Article 4.1 of the AD Agreement defines the term "domestic 
industry" as referring to " the domestic producers as a whole of the like products or to those of them 
whose collective output of the products constitu tes a major proportion of the total domestic 
production of those products ." 
5.43 Article 4.1 read in conjunction with footnote 9 thus requires that the domestic industry with 
respect to which injury is considered and dete rmined must be the domestic industry defined in  WT/DS337/R 
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  accordance with Article 4.1135, that is, the domestic producers of the like product as a whole, or those 
of them whose collective output of the like pr oduct constitutes a major portion of the domestic 
production of the like product.  Once the domestic industry has been defined for the purposes of the 
investigation, it is not permissible to pick and choose among the producers, or to limit the injury analysis to the few selected. 
5.44 Hong Kong, China submits that the adoption of a selective approach, be it sampling or 
otherwise, in investigating producers of a defi ned domestic industry in injury determination is 
inconsistent with the above-menti oned Articles of the AD Agreement. 
5.45 This position is reinforced by the fact that, unlike dumping determination or the establishment 
of standing where sampling is expressly permitte d in certain precisely defined circumstances 
(Article 6.10 and Footnote 13), Article 3 does not  contain any provision that permits the use of 
sampling or other selective approaches to limit the examination to only some of the domestic producers.  Neither does the context of the Article, as revealed in the various paragraphs thereof, 
support an implied permission. 
5.46 The possibilities of excluding certain specific producers in defined "domestic industry", as 
allowed under Article 4.1(i) and (ii), are only releva nt to the specific scenarios of "related" producers 
and "isolated" markets respectively.  The provi sions are not and should not be read as general 
enabling clauses in support of sampling or other selective approaches. 
5.47 Likewise, the alternate interpretation of the te rm "domestic industry" as constituting "a major 
proportion of the total domestic production" in th e chapeau of Article 4.1 neither stipulates nor 
implies a right to sample or pick selectively domestic producers among the pre-determined "major 
proportion" of the industry for the purposes of injury determination. 
5.48 In the present case, the EC defined the Commun ity industry as referring to 15 producers.  By 
making the injury analysis with respect to only 5 of  them, the EC did not act in compliance with the 
AD Agreement. 
5.49 In its first submission, the EC argues that WTO case-law confirms that WTO Members can 
resort to sampling in an inju ry analysis, referring to the EC – Bed Linen case .  However, in that case, 
the Panel was only dealing with the issue as to wh ether investigating authorities, having defined the 
domestic industry as a group of 35 producers and resorted to a sample of those producers, were precluded from considering information relating to produ cers not within that sample, or not within the 
Community industry (para. 6.175).  As underlined by the Panel, India's claim in that case rested "on 
premises concerning the correct definition of dome stic industry and sampling which are outside the 
scope of our terms of reference" (para. 6.177).  In other words, the Panel, in that case, was not 
requested to deal with the definition of domestic indu stry or the legality of using sampling.  This case 
is therefore not relevant. 
5.50 Instead, Hong Kong, China finds support to its view in the findings of the Appellate Body 
which held in US – Hot-Rolled Steel  that "[t]he investigation and examination must focus on the 
totality of the 'domestic industry' and not simply on one part, sector or segment of the domestic 
industry" (para.190).  Indeed, these findings, even though made in the specific context of that case and not necessarily relating to sampling as such, support th e view that the injury analysis must focus on 
the "totality of the domestic industry" as defined in accordance with Article 4 of the AD Agreement.   
                                                     
 
135 See Panel Report, Mexico – Corn  Syrup  (DS132), para.7.147. WT/DS337/R 
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  (c) Exclusion of (non-producing) expor ters in dumping determination 
5.51 Under specific circumstances, Article 6.10 of the AD Agreement allows a limited 
examination of interested parties in the determina tion of dumping margins.  This is the case where the 
"number of exporters, producers, importers or types of  products involved is so large as to make such a 
determination impracticable." Examinations in the circumstances are limited to either a reasonable 
number of interested parties by using statistically valid sampling method or to the largest percentage 
of the volume of the exports that can reasonably be investigated.   
5.52 Yet, neither this provision nor any other provision of the AD Agreement allows the exclusion 
from the examination an entire category of interested  parties, such as that in the present case, the non-
producing exporters. 
5.53 Since limited examination is an exception to th e general rule of Article 6.10 which requires 
investigating authorities to determine an individual dumping margin for each known exporter or 
producer , it must be strictly  interpreted.  It should also be mindful that the use of that exception 
actually deprives interested parties of their usual due process rights.  In addition, the composition of 
the investigated parties has a significant impact  on selected as well as non-selected parties since 
Article 9.4 authorizes the imposition of anti-dumping duties on non-selected parties on the basis of the 
dumping margins determined for selected parties.  Th is requires that the criteria used to select the 
parties must guarantee that the selected ones are representative  of all exporters and producers of the 
country of export.   
5.54 Article 6.10 and other provisions of the AD Agreem ent (e.g.  Articles 2 and 9) clearly provide 
for equal or evenhanded treatment to  exporters and producers.  As stated above, they are entitled to an 
individual margin of dumping whenever circumstances allow.  An en bloc  exclusion of a specific 
category of interested parties, i.e.  exporters w ho are not producers themselves in the present case, in 
the calculation of the dumping margins which will eventu ally be imposed on them is inconsistent with 
Article 6.10 of the AD Agreement. 
5.55 As a matter of fact, exporters and producers may have different export prices or normal 
values in respect of the products concerned.  Ad ministrative, selling and general costs as well as 
profits, which are key factors in constructing normal value, differ among exporters and producers, and 
among producing and non-producing exporters.  Exclusion of exporters, or other categories of 
interested parties, may lead to biased results in dum ping determination; and this also runs contrary to 
the requirement of providing to all interested par ties full opportunity for the defence of their interests 
in accordance with Article 6.2. 
(d) Conclusion 
5.56 While Hong Kong, China respects the rights of WTO Members to apply anti-dumping 
measures in accordance wi th the rules of the WTO, Hong Kong, China considers it highly important 
that Members comply with the requirements laid down by WTO rules in taking anti-dumping measures, not least those pertaining to dumping and injury determinations in anti-dumping 
investigations.  In the light of the reasons set out  in this submission, Hong Kong, China submits that 
the practice of Members to engage in sampling of the domestic industry for the purposes of an injury 
determination, or to exclude a category of interest ed parties, for instance all exporters who are not 
producers, in the determination of dumping margin s are inconsistent with the requirements of the 
AD Agreement.  Hong Kong, China respectfully requ ests the Panel to take into account its comments 
and views in its deliberations. 
5.57 
Hong Kong, China reserves its rights to submit further comments on these issues or on other 
matters of this case on other appropriate occasions of the proceedings.  WT/DS337/R 
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  2. Oral Statement of Hong Kong, China  
5.58 Hong Kong, China welcomes this opportunity to present its views as a third party to the 
Panel.   
5.59 Hong Kong, China recalls the two systemic issues raised in its earlier written submission, 
namely, (a) sampling of the domestic industry in injury determination, and (b) exclusion of non-
producing exporters in dump ing determination.  Hong Kong, China submits that both practices are of 
questionable WTO-consistency.  De tailed arguments have been set out in the written submission, and 
suffice it to highlight a few of them today.   
5.60 While sampling is not novel in the Agreement on Anti-dumping, wherever its use is 
envisaged and permitted, there are express enabling clauses, with rules and standards accompanying.  
As far as injury determination is concerned, the word  "sample" or "sampling" is simply non-existent 
in the Agreement, and neither are the relevant rul es or standards.  In the circumstances, the only 
logical conclusion is that drafters of the Anti-dum ping Agreement did not intend to allow the use of 
sampling in injury determination.  This reading is also in line with AB jurisprudence on the 
importance of focusing on "the totality of the domestic industry"136 in the injury determination.   
5.61 We note that some parties have put forward practical difficulty as an argument in support of 
the use of sampling.  We note that first of all this is not a legal argument.  Secondly, the definition of 
"domestic industry" in Article 4.1, which applies to the entire Agreement, already provides some flexibility.   
5.62 On the exclusion of non-producing exporters in  dumping determination,  Article 6.10 of the 
Agreement requires investigating authorities to de termine an individual dumping margin for each 
known exporter or producer.  In the event of a limited examination where a dumping margin is 
calculated for and applied to a non-selected party, it is of profound importance that selected parties, 
whose data will be used as a basis for the calculation of the dumping margin, must be representative.  
Given the vast differences, in terms of cost  and profits, between pr oducing and non-producing 
exporters, an en bloc exclusion of the latter will lead  to biased dumping margins, and it is inconsistent 
with Article 6.10.  This also flies in the face of Article 6.2 which requires that "[t]hroughout the anti-
dumping investigation all interested parties shall have a full opportunity for the defence of their 
interests". 
5.63 Hong Kong, China respectfully requests the Pane l to take full account of Hong Kong, China's 
views and arguments as set out in its written submissi on and highlighted in this oral statement in the 
Panel's deliberation. 
5.64 Thank you for your attention. 
D. J
APAN  
1. Written Submission of Japan 
5.65 The following comments arise from Japan's system ic interest in ensuring fair and objective 
interpretation of the AD Agreement.   
                                                      
136 See AB Report, US-Hot-Rolled Steel  (DS184), para. 190. WT/DS337/R 
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  (a) EC's definition of the domestic  industry and Article 4.1  
5.66 Japan has a systemic concern with regard to the definition of the domestic industry, on the 
premise that the definition of the domestic i ndustry has broad implications for anti-dumping 
investigations, including determina tions of injury and causation. 
5.67 In this case, both parties to the dispute rec ognize that the EC authorities limited the definition 
of the domestic industry to a group of 15 producer s, and that all of these producers were either 
complainants or explicit supporters to the complaint.   
5.68 Japan has grave concern about the EC's interpretation that authorities may exclude domestic 
producers of the like product from the "domestic indus try" for any reason (or for no reason), so long 
as the remaining producers constitute "a major proporti on" of domestic production of the like product.   
5.69 Under Article 4.1 of the AD Agreemen t, as the Appellate Body has found in US – Hot-Rolled , 
the investigation and examination must focus on the totality  of the domestic industry and not simply 
on one part, sector or segment of the domestic indus try.  An interpretation of Article 4.1 of the 
AD Agreement which would allow an authority to pick and choose domestic producers such as to 
make a positive injury finding more likely, w ould be inconsistent with this obligation. 
5.70 In addition, Japan recalls that if an authorit y defines the "domestic industry" narrowly, to 
include only one segment of domestic production of the like product, then the authority might be 
unable to conduct an "objective examination" of th e consequent impact of the dumped imports on 
"domestic producers of [like] products" unde r Article 3.1 of the AD Agreement.   
(b) EC's sampling techniques regarding the domestic industry 
5.71 From those 15 producers noted in paragraph 5.67 above, the EC chose a sample of only five, 
effectively excluding the remaining ten producers from the inquiry.  The EC justified this by reason of 
"the large number of producers of farmed salmon in the Community." 
5.72 Japan has a systemic interest in ensuring that , if the AD Agreement allows authorities to 
conduct sampling on the domestic industry, that the sa mpling be subject to clear standards.  For the 
Panel's consideration, Japan therefore makes the following observations.   
5.73 First, there are no clear provisions in the AD Agreement which is applicable to the post-
initiation phase of the investigation that permit the au thorities to engage in sampling of the domestic 
industry.  Secondly, active participation of the do mestic industry may be expected in the present case, 
where the domestic industry consists of a relativel y small number of companies, and the burden on 
authorities of obtaining data from all producers should not be excessive.  Third and lastly, Japan thinks that even if the sampling of the domestic  industry is permitted for the purposes of an injury 
determination, the samples have to represent the comprehensive picture of the domestic industry. 
(c) EC's use of minimum import prices (MIPs) and fixed duties  
5.74 Japan considers that the lack of transparency in calculating the MIPs and fixed duties is more 
than simply a problem of procedure.  In the absen ce of a reasoned and adequate explanation of the 
determination made, the conclusion of the EC that  the non-injurious MIP did not exceed the level of 
the non-dumped MIP, and that it therefore complied with its obligation under the AD Agreement, 
becomes a mere assertion.  In the absence of an adequate and reasoned expl anation, no meaningful 
review by a Panel is possible.  WT/DS337/R 
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  5.75 Japan notes that Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of GATT 1994 
make clear that an authority is not allowed to im pose a duty in excess of the margin of dumping found 
to exist.  In light of this obligation, Japan be lieves it is incumbent upon the authorities to demonstrate 
through a reasoned and adequate e xplanation that the level of th e duty imposed did not exceed the 
level of the margin.   
(d) Residual dumping margin applied to the unknown producers 
5.76 Japan requests the Panel to consider whether facts available may be applied to companies 
which were not identified in the course of the investig ation.  Japan's concern relates to the application 
of facts available to such companies without respect for the necessary notification requirements 
provided for by the AD Agreement, for example in paragraphs 1 and 6 of Annex II to the 
AD Agreement.   
5.77 The Appellate Body in Mexico – Antidumping Measures on Rice  found that putting exporters 
or producers on notice that facts available will be used  is a precondition for the use of facts available.  
The need to notify exporters as set forth inter alia  in paragraphs 1 and 6 of Annex II to the 
AD Agreement, applies whenever facts available are used, whether based on information from the 
applicant or otherwise.  In this case, the EC assi gned to the unidentified exporters or producers a 
margin of dumping equal to the highest margin  of an exporter individually calculated.   
(e) The EC's consideration of other factors in causation analysis 
5.78 Japan recalls that the Appellate Body in US – Hot-Rolled  found that investigating authorities 
must separate and distinguish  the injurious effects of the dumped imports from the injurious effects of 
those other factors in terms of the applic ation of Article 3.5 of the AD Agreement. 
5.79 In this respect, Japan queries the sufficiency of the EC' analysis of  such factors as (i) the EC 
industry's increased cost of production, (ii) imports of salmon from the United States and Canada, (iii) the price premium enjoyed by the EC products and (iv)  the consistent trend of appreciation of the euro 
against the Norwegian kroner.   
2. Oral Statement of Japan 
(a) Introduction 
5.80 Mr.  Chairman and distinguished Members of the Panel, it is a pleasure to appear before you 
today to present views of Japan as a third party in this proceeding.  The purpose of this statement is 
not repeating the arguments shown in our written submission.  Instead, we would like to cast light on certain additional issues relating to (1) the inte rpretation of Article 6. 10 of the AD Agreement 
concerning the sampling methodology; (2) the inte rpretation of Article 2.2 and 2.2.1 of the 
AD Agreement concerning the term "reasonable peri od of time"; (3) the interpretation of Article 3.5 
of the AD Agreement concerning other known factors;  and (4) the interpretation of the proviso of 
Article 9.4 concerning the applicability of the te rm "margins established under the paragraph 8 of 
Article 6". 
(b) Arguments 
(i) The interpretation of Article 6.10 of the AD  Agreement concerning th e sampling methodology 
5.81 Japan has a systemic concern about an interp retation of Article 6.10 of the AD Agreement 
that would allow the authorities to pick and choose respondents without constraints. WT/DS337/R 
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  5.82 More specifically, our concern arises from the Un ited States' argument in paragraph 16 of its 
third party submission, that is, "Article 6.10 does not specify how the investigating authority is to 
arrive at the largest percentage or which co mpanies must be included in the result."  
5.83 We would like to note that Article 6.10 sets forth that the "authorities shall, as a rule, 
determine an individual margin of dumping for each known exporter or producer concerned of the 
product under investigation."  It is conditional to use two sampling techniques under the second 
sentence of Article 6.10 only in cases "where the num ber of exporters, producers, importers or types 
of products involved is so large as to make such a de termination impracticable."  In this case at issue, 
the EC used the second option under the second sentence of Article 6.10: the authorities may limit their examination to "the largest percentage of  the volume of the exports from the country in 
question which can reasonably be investigated."   
5.84 It is true, as the United States argues, that Article 6.10 does not prescribe the specific manner 
in which the authorities are to comply with the require ment with arriving at "the largest percentage"; it 
does not specify which companies must be included in  the result, either.  However, it does not mean 
that Article 6.10 allows the authorities to pick and choose the exporters or producers freely as they 
want.   
5.85 It would be natural to suppose that the worklo ad required to investigate one company does not 
significantly differ depending on the volume of the exports.  Then, the authorities can normally 
maximize the volume of the exports investigated if  they choose companies with larger volume of the 
export.  In other words, you may say the authorities cannot make the most of their resources if they 
choose the same number  of companies with smaller volume  of the exports as samples.  You may say 
at least that the authorities would not satisfy the re quirements set forth in Article 6.10 if they chose 
companies with smaller volume of th e exports without sufficient reasons. 
5.86 Thus, Japan asks the Panel to consider Norway 's claims in accordance with an appropriate 
interpretation of Article 6.10 indicated above. 
(ii) The interpretation of Article 2.2 and 2.2.1 of the AD Agreement concerning the term 
"reasonable period of time" 
5.87 It seems to be undisputed between parties to th is dispute that the EC authorities determine the 
"reasonable period of time" on a case specific basis, although the EC's "normal practice" is to determine the "reasonable period of time" the same as th e period of investigation.  It is the third party 
submission of the United States that raised our concern, which argues that Article 2.2.1 does not preclude an investigating authority from using the pe riod of investigation as the "reasonable period of 
time." Japan has a concern if the argument of the Un ited States indicates that Article 2.2.1 allows the 
authorities to use the period of investigation as the "reasonable period of time" in every case without examination of the specific situation of the case. 
5.88 First of all , in accordance with the principle of eff ective treaty interpretation, different terms 
should be interpreted having differe nt meanings.  Therefore, it will be meaningless to use the term 
"reasonable period of time" if the AD Agreement refers  to the "period of investigation" by it.   
5.89 Secondly , as Norway mentioned in its first wr itten submission, the appellate body in US – 
Hot-rolled Steel  already found that the word "reasonable" implies a degree of flexibility that involves 
consideration of all of the circumstances of a particular case. 
5.90 Thirdly , the second sentence of Article 2.2.1 which the United States referred to is only an 
example of situations in which the authorities must consider the price as above cost.  It does not lead  WT/DS337/R 
 Page 77 
 
 
  to the interpretation that the term "period of inv estigation" equals to the term "reasonable period of 
time" in every case.   
5.91 In any case, Japan would like to note that both the EC and Norway recognized that the length 
of the "reasonable period of time" depends on sp ecific circumstances of the investigation, which 
would make the United States' reference less relevant .  Therefore, Japan asks the Panel to consider 
whether the EC's determination of  the "reasonable period of time" is  appropriate in light of the 
specific circumstances of the case at hand. 
(iii) The interpretation of Article 3.5 of the AD  Agreement concerning other known factors  
5.92 It is Japan's concern that the argument ma de by the United States may lead to an 
interpretation of Article 3.5 of the AD Agreement that the decision as to the types and amount of 
information concerning "other factors," including  non-subject imports, that will be collected and 
examined by the investigating authorities is left to their discretion.  Japan disagrees with this 
argument. 
5.93 Article 3.5 of the AD Agreement states that: 
It must be demonstrated  that the dumped imports are, through the effects of dumping, 
as set forth in paragraphs 2 and 4, causing injury within the meaning of this 
Agreement.  The demonstration of a causal  relationship between the dumped imports 
and the injury to the domestic industry shall be based on an examination of all 
relevant evidence  before authorities.  The authorities shall also examine  any known 
factors other than the dumped imports which are at the same time are injuring the 
domestic industry, and the injuries caused by these other factors must not be 
attributed to the dumped imports.  (Emphases added.) 
5.94 By requiring the authorities to "demonstrate" the causal relationship on the basis of an 
examination of "any" known factors other than dum ped imports, Article 3.5 requires the authority to 
examine whether any other known factor is causing injury to the domestic industry or not as a prerequisite for separating and distinguishing the injurious effects of the dumped imports from the 
injurious effects of such other factor.  Article 12. 2.2 also requires that the notice or report "shall 
contain the reasons for the acceptance or rejection of relevant arguments or claims made by the 
exporters and importers."  Under the circumstances where the parties to the case do not dispute between each other that "other factors" at issue are "known" to the authorities during the course of the 
investigation, Japan believes that the authorities mu st explain reasons why the authorities denied the 
injury caused by those other factors. 
5.95 Thus, Japan requests the Panel to examine ca refully whether the EC complied with its 
obligation under Article 3.5. 
(iv) The interpretation of the proviso of Article  9.4 concerning the applicability of the term 
"margins established under the paragraph 8 of Article 6."  
5.96 In its first written submission, the EC contends  that the proviso in Article 9.4 which deals 
with the treatment of dumping "margins" applies only to cases in subparagraph (i), and not to cases in 
subparagraph (ii), including cases of the MIPs as in this case.  Thus, according to the EC's argument, 
regardless of the fact whether or not Grieg's margin was determined on the basis of the facts available, 
its normal value must be taken into account in  calculating the weighted average normal value 
applicable to "all others."   WT/DS337/R 
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  5.97 However, Japan notes that the proviso including the phrase "for the purpose of this 
paragraph" indicates that the proviso covers both subparagraphs (i) and (ii). 
5.98 Furthermore, Japan doubts the consistency of the EC's argument.  Japan does not reiterate its 
comment, as was shown in Japan's third party submis sion, that the EC's calculation methodologies of 
the MIPs are not disclosed.  However, Japan believes that the EC's interpretation of Article 9.4 would 
not be consistent if the EC, when it calculated MI P in accordance with the proviso of Article 9.4, 
disregarded normal values of exporters for which zero and de minimis  margins were determined, 
while using the normal values of exporters for whic h margins were established under Article 6.8.   
5.99 Therefore, Japan asks the Panel to confirm th at the proviso of Article 9.4 applies in a 
consistent manner between s ubparagraphs (i) and (ii). 
(c) Conclusion 
5.100  To conclude, Japan would like the Panel to caref ully examine these issues mentioned in this 
statement, in addition to the arguments advanced in  its written submission.  Thank you again, for your 
attention. 
E. K
OREA  
1. Written Submission of Korea 
(a) Introduction 
5.101  Korea believes that the anti-dumping investig ation conducted by the European Communities 
("EC") against farmed salmon from Norway constitutes serious violation of Articles 2, 3, 5 and 6 of 
the Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994 
("AD Agreement").  In particular, Korea notes  that the EC determination on "product under 
consideration," its determ ination on "domestic industry," and its a pplication of "facts available" were 
not based on adequate factual information gathered  in the course of the anti-dumping investigation, 
thus constituting legal errors.   
(b) Legal Arguments 
(i) The EC determination of "product under considera tion" constitutes violation of Articles 2, 3, 
and 5 of the AD Agreement  
5.102  Articles 2.1 and 2.6 of the AD Agreement require an investigating authority to ensure that 
different products considered in an anti-dumping inv estigation are all "like" in all relevant respects.  
In the underlying investigation of the current di spute, however, the EC failed to implement this 
important obligation.   
5.103  Here, the EC simply ignored widely different characteristics of various salmon products sold 
in the EC market.  The EC determined that ever ything from whole fish to small, skinned fillets 
constitute "a single product."137  In fact, the breadth of the EC determination can be evidenced by the 
                                                      
137 The EC product under consideration includes (i) whole fish, (ii) head-on- gutted ("HOG") fish, (iii) 
"other" (including in particular gutted, head off), (iv) w hole fish fillets and fillets cut into pieces of any size, 
weighing more than 300 grams per fillet, skin on, (v) wh ole fish fillets and fillets cut into pieces of any size, 
weighing more than 300 grams per fille t, skin off, and (vi) fillets weighi ng less than 300 grams, cut into pieces 
of any size, with skin on or off.  See Article 1(5) of the EC Definitive Regulation.  WT/DS337/R 
 Page 79 
 
 
  fact that the "product" covers 6 different cu stoms nomenclature codes and 33 different control 
numbers in the Taric system.138   
5.104  The EC attempted to justify this broadly define d definition by simply stating that "they are 
considered to constitute a single product for the purpo se of the proceeding," but it fails to provide any 
meaningful factual discussion to support this conc lusory statement.  Without adequate explanation 
and discussion, Korea believes, the EC determinati on that six actually separate products constitute a 
single product under consideration cannot be sustaine d and constitutes violation of Articles 2.1 and 
2.6 of the AD Agreement. 
5.105  In Korea's view, the combination of non-like products in an anti-dumping investigation 
undermines the fundamental accuracy and reasonableness of  the investigation.  In other words, this 
erroneous determination leads to finding an anti- dumping margin when there is actually no dumping 
and material injury when there is not.   
5.106  Such being the case, by relying on an erroneous  "product under consider ation" determination 
throughout its anti-dumping investigation, the EC also violated Articles 3.1,3.2, 3.4, 3.5 and 3.6 of the AD Agreement to the extent that th e EC reached a material injury de termination based on this faulty 
"product under consideration" finding.  In additi on, the EC violated Articles 5.1 and 5.4 of the 
AD Agreement since it initiated an anti-dumping inv estigation on the basis of legally and factually 
flawed "product under consideration" determination. 
(ii) By failing to ensure that the petition was made by or on behalf of the EC domestic industry, 
the EC violated Article 5.4 of the AD Agreement 
5.107  Furthermore, Article 5.4 of the AD Agreement s tipulates a so-called "standing" threshold that 
an investigating authority must satisfy in initia ting an anti-dumping investigation.  This provision 
requires the investigating authority to confirm that  a petition for an anti-dumping investigation is not 
made by a certain group of the domestic industry, but  made "by the domestic industry or on behalf of 
the domestic industry." 
5.108  In the underlying investigation, the EC noted that fifteen domestic producers who made the 
petition satisfied the standing requirement as set out in Article 5.4 of the AD Agreement.  The EC, 
however, did not support its finding with adequate factual informa tion.  There exists conflicting 
factual information and industry data  that were not adequately accounted for by the EC.  The EC also 
failed to provide an explanation as to how it examin ed the degree of support for, or opposition to, the 
application expressed by domestic salmon producers.   
5.109  Korea therefore believes that unless the EC presen ts adequate factual information to support 
its initiation decision, the Panel should determine th at the EC initiation violates Article 5.4 of the 
AD Agreement. 
(iii) The EC application of "facts available" is  not warranted under the circumstances and thus 
violates Article 6.8 and Annex II of the AD Agreement  
5.110  Article 6.8 and Paragraphs 3 and 6 of Annex II of the AD Agreement do not provide a carte 
blanche to an investigating authority conducting an  anti-dumping investigation whenever it 
encounters a less than optimal information from a foreign respondent.  Instead, these provisions 
unequivocally provide conditions that need to be sa tisfied before the investigating authority applies 
the facts available standard.   
                                                     
 
138 See id . WT/DS337/R 
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  5.111  Paragraph 3 of Annex II stipulates that all veri fiable information that can be used in the 
investigation without undue difficulties should be take n into account by the investigating authority.  
Paragraph 6 of Annex II, in turn, stipulates that if  the investigating authority plans to apply facts 
available, it must inform the foreign respondent of  the reason and offer another opportunity to provide 
the requested information within a reasonable period of time.   
5.112  In the underlying investigation, however, the EC applied facts available standard in a manner 
inconsistent with these provisions and rejected th e information submitted by a Norwegian company.  
Under the circumstances surrounding the company and the communication between the EC investigating authority and the company, Korea believes that the Norwegian company cooperated 
with the EC investigation in a reasonable manner. 
5.113  Korea believes that the EC's rejection of th e company's information was unreasonable and 
unwarranted.  The EC's recourse to facts available, therefore, constitutes violation of Article 6.8 and 
Paragraphs 3 and 6 of Annex II of the AD Agreement.   
(c) Conclusion 
5.114  For the foregoing reasons, Korea respectfully subm its that the Panel finds that the EC's anti-
dumping investigation against farmed salmons from No rway constitutes violation of Articles 2, 3, 5 
and 6 of the AD Agreement, respectively, and r ecommends that the EC bring the measure into 
conformity with its obligation under the AD Agre ement.  Korea appreciates this opportunity to 
present its view to the Panel. 
2. Oral Statement of Korea 
5.115  Korea did not submit an oral statement to the Panel. 
F. U
NITED STATES  
1. Written Submission of the United States 
(a) Scope and definition of domestic industry 
5.116  "Product Under Consideration" .  Norway argues that the Eu ropean Communities ("EC") 
acted inconsistently with Articles 2.1 and 2.6 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 ("AD Agreement") in identifying the product under 
consideration, and as a consequence issued a ffirmative dumping and injury determinations 
inconsistent with Articles 2.1, 3.1, 3.2, 3.4, 3.5,  3.6, 5.1 and 5.4 of the AD Agreement.  Norway's 
argument, however, rests upon an incorrect reading of Article 2.6, which contains a definition of the 
like product (i.e., the product to which the product under consideration is compared) not an obligation  
with respect to the product under consideration .  Article 2.1, in turn, provides that "a product is to be 
considered as being dumped . . .  if the export price of the product exported from one country to 
another is less than the comparable price, in the ordinary course of trade, for the like product when 
destined for consumption in the exporting country."  This general statement regarding the comparison 
between the product under consideration and the like product likewise does not provide guidance on 
how the product under consider ation is to be defined.139  Thus, as previous panels have found, these 
                                                      
139 First Written Submission of the EC, paras. 19-21; cf.  First Written Submission of Norway, para. 85.  WT/DS337/R 
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  provisions leave to the investigating authority's di scretion how a product under consideration is to be 
established.140 
5.117  Definition of the Domestic Industry .  If the EC's definition meets the "major proportion" of 
domestic production standard of Article 4.1, the Panel still should assess whether the EC's exclusion 
of certain categories of salmon producer from the indust ry was biased or designed to favor the interest 
of any group of interested parties in the inv estigation, including the producers who filed the 
petition.141  An investigating authority's definition of the domestic industry under Article 4.1 must be 
based on "positive evidence and invo lve an objective examination" of the evidence relating to 
injury.142  According to the Appellate Body, "an 'objec tive examination' [under Article 3.1] requires 
that the domestic industry, and the effects of dumpe d imports, be investigated in an unbiased manner, 
without favoring the interests of any interested party, or group of interested parties, in the 
investigation."143  With regard to Norway's argument that the EC's definition of its domestic industry 
was inconsistent with the requirements of th e AD Agreement because the EC analyzed only a 
sampling of the domestic industry,144 while the Agreement does not e xplicitly permit an investigating 
authority to rely on a small sample of domestic producers when performing its injury analysis in 
antidumping investigations, it does make clear that  sampling is an appropriate methodology when 
used in other contexts.  The EC could reasonably deci de to rely on a sample of the domestic industry, 
as long as its decision was based on a reasonable set of  assumptions or inferences as to the validity of 
the sample.   
(b) Determination of dumping 
5.118  Selection of Interested Parties When Limiti ng Examination to the Largest Percentage of 
Exports .  The United States disagrees with Norway's  view that, as a general rule, Article 6.10 
precludes an investigating authority from limiting the selection of investigated parties to particular 
categories, as circumstances may exist in which an investigating authority may appropriately limit its 
examination to certain categories in accordance with Article 6.10.  Furthermore, Article 6.10 does not 
oblige investigating authorities using the second me thodology to generate a "statistically valid" 
sample, a requirement that applies only when the fi rst methodology is used.  Norway's assertion that 
the companies selected by the EC were unrepresentativ e is therefore not relevant to an assessment of 
whether the EC complied with Article 6.10.145 
5.119  Determination of Sales in Ordinary Course of Trade .  Norway incorrectly argues that the 
EC's use of the investigation period as a reasonable period of time, without "determining" that such period was in fact reasonable based on the particular facts of the investigation, was inconsistent with 
Article 2.2.1.
146  Article 2.2.1 does not preclude an investigating authority from using the period of 
investigation as "a reasonable period of time" or oblige the investigating authority to define the 
reasonable period of time differently from case to case.   Indeed, the cost recovery test described in 
Article 2.2.1, second sentence, deems the period of i nvestigation to be the reasonable period of time.  
                                                      
140 Certain determinations of the US Department of Commerce ("Commerce") and the US International 
Trade Commission ("USITC") cited by Norway simply demonstrate that Commerce and the USITC define the 
"product under consideration" on a case- by-case basis, taking into considera tion the particular facts available to 
them.  The investigations cited by Norway do not suppo rt the claim that the AD Ag reement contains rules for 
defining the "product under consideration." 
141 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel 
Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, para. 193 (hereinafter US – Hot-Rolled Steel  
(AB)); see also First Written Submission of Norway, para. 243. 
142 AD Agreement, Article 3.1. 
143 US – Hot-Rolled Steel (AB) , para. 193. 
144 First Written Submission of Norway, paras. 272-281. 
145 Id., paras. 300-307. 
146 Id., paras. 362-63. WT/DS337/R 
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  Furthermore, Norway is incorrect in ass erting that unless three conditions exist ( i.e., below-cost sales 
are made within an extended period of time, in s ubstantial quantities, and at prices that do not provide 
for the recovery of all costs within a reasonable period of time), "below-cost sales must be treated as made in the ordinary course of trade."
147 As the Appellate Body has observed, "Article 2.2.1 .  .  .  
does not purport to exhaust the range of methods fo r determining whether sales are 'in the ordinary 
course of trade', nor even the range of possible me thods for determining whether low-priced sales are 
'in the ordinary course of trade.'"148  Thus, the fact that the EC identified sales as outside the ordinary 
course of trade based on criteria other than those identified in Article 2.2.1 would not alone support 
the conclusion that it acted inconsistently with that provision.149 
5.120  Application of Antidumping Duty .  Consistent with Articles 9.1 and 9.3, the amount of any 
antidumping duty may not exceed the margin of dump ing.  Article VI:2 of the GATT 1994, read in 
conjunction with Article VI:1, provides that the ma rgin of dumping is the price difference when a 
product is being introduced into the commerce of the importing country at a price less than normal value.  Article 9.4 of the AD Agreement recogni zes that a Member may utilize a prospective normal 
value system of assessing antidumping duties.  Assu ming Norway's description of the EC's minimum 
import price ("MIP") system is accurate, and based on  the EC's description in its own submission, the 
system appears to operate in a similar fashion to a prospective normal value system.  To the extent 
that the EC used MIPs that exceed properly established normal values, the antidumping duties 
calculated on the basis of such MIPs would exceed th e margin of dumping.  If this is the case, such 
action would be inconsistent  with Article VI:2 of the GATT 1994, a nd Articles 9.1, 9.2, 9.3 and 9.4 of 
the AD Agreement. 
5.121  Profit Calculation
.  The United States agrees with Norw ay that an investigating authority 
may not exclude actual data from the calculation of  the profit and selling, general and administrative 
("SG&A") ratios solely because sales were made in  low volumes.  As the Appellate Body explained 
in EC – Cast Iron Fittings , Article 2.2.2 "excludes actual data outsi de the ordinary course of trade, but 
does not exclude data from low-volume sales."150  The United States disagrees, however, with 
Norway's assertion that because the EC accepted act ual SG&A cost data, it must also have accepted 
the actual profit data.151  An investigating authority may u se actual SG&A data even when actual 
profit data is rejected because SG&A costs relate  to the actual selling and general operations of a 
company.   
5.122  Transparency .  In response to Norway's assertion th at the EC acted inconsistently with 
Article 6.4, and in turn, Article 6.2, because certain  documents filed by interested parties during the 
investigation were missing from the non-confiden tial record accessible at the EC Commission's 
premises, the EC incorrectly argues that, under Article  6.2 and 6.4, "the investigating authority may 
not disclose information it has received from one inte rested party to another interested party, unless it 
is relevant for the preparation of the latter's case."152  The United States agrees with Norway that 
transparency and procedural fairness are key princi ples of the AD Agreement.  Article 6.4 operates as 
an affirmative obligation to disclose certain informat ion to interested parti es "whenever practicable," 
and requires disclosure of all non-confidential informa tion "relevant to the presentation" of a party's 
case that is used by the authorities in the antidumping investigation.153  "Relevant" information 
                                                      
147 Id., para. 338. 
148 US – Hot-Rolled Steel (AB) , para. 141. 
149 First Written Submission of the EC, paras. 218-19 (discussing ordinary course of trade test for 
profitable sales). 
150 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron 
Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, para. 101 (hereinafter EC – Cast 
Iron Fittings (AB) ).   
151 First Written Submission of Norway, para. 383. 
152 First Written Submission of the EC, para. 531.   
153 EC – Cast Iron Fittings , para. 146.  WT/DS337/R 
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  includes all information relevant from the perspective of  the interested party, and is not limited to that 
which the investigating authority deems relevant.   
5.123  Cost Adjustments .  With regard to Norway's claim that the EC made several cost 
adjustments in a manner inconsistent with the AD Agreement, as the EC notes, Article 2.2.1.1 
provides that costs shall be adjusted as provided " unless already reflected in the cost allocations under 
this subparagraph."  Many of the costs Norw ay discusses in its submission may be captured 
appropriately under the first sentences of Article 2.2. 1.1 without the requirement of the last sentence 
that they "benefit future and/or current production." 
5.124  Facts Available .  In response to Norway's assertion that the EC failed to contact "non-
cooperating companies" before assigning them a hi gher rate, inconsistent with Article 6.8 and 
Annex II,154 the EC incorrectly suggests that it is ex cused from complying with Article 6.8 and 
Annex II merely because it used the MIP as the basis for imposing antidumping duties on these 
companies.  The obligation contained in Article 6.8 is  not by its terms limited to determinations that 
are "determinative of the duty imposed," as the EC claims; rather, Article 6.8 provides that it applies 
to the use of facts available in "preliminary and fi nal determinations, affirma tive or negative."  To the 
extent that the EC failed to give proper notice of the investigation before applying facts available to 
the alleged "non-cooperating" companies, its appli cation of a higher margin would be inconsistent 
with Article 6.8 and Annex II.   
(c) Determination of injury 
5.125  Norway also claims that the EC violated Ar ticles 3.1 and 3.5 of the Agreement because it 
failed to ensure that injury allegedly caused by  two other factors was not attributed to dumped 
imports.  According to Norway, the EC failed r easonably to explain why increases in the EC salmon 
industry's costs and an increase in non-subject im ports from the United States and Canada were not 
the causes of injury to the EC's salmon industry.155  Although Article 3.5 of the Agreement sets out 
several factors that "may" be cons idered by investigating authorities in ascertaining whether there is a 
"causal relationship" between dumped imports and inju ry to the domestic industry, it does not specify 
the type of information that an authority must co llect and examine for this purpose, or identify the 
detail in which the authority must explain its analysis  of the information.  Rather, Article 3.5 simply 
provides that the investigating authority must determ ine, on the basis of "all relevant evidence" before 
it, whether such a causal relationship exists.   
5.126  Similarly, Article 3.5 provides that the inv estigating authorities must examine any known 
factors other than the dumped imports which at th e same time are injuring the domestic industry to 
ensure that injury caused by th ese other factors is not attributed to the dumped imports.  As the 
Appellate Body has recognized, however, the AD Agreement does not prescribe the particular 
methods to be used by investigating authorities to  separate and distinguish the injurious effects of 
unfair imports from the injurious effects of the other known causal factors.156  Further, the decision as 
to the types and amount of information concerning "o ther factors," including non-subject imports, that 
will be collected and examined by the investig ating authorities is left to their discretion. 
                                                      
154 First Written Submission of Norway, para. 490. 
155 Id., paras. 574-624. 
156 EC – Cast Iron Fittings (AB) , para. 189 (stating that "provided that the investigating authority does 
not attribute the injuries of other causal factors to dumped imports, it is free to choose the methodology it will 
use in examining the 'causal relationship' between dumped imports and injury.") WT/DS337/R 
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  2. Oral Statement of the United States 
5.127  It is a pleasure to appear before you to present the views of the United States concerning 
certain issues in this dispute.  Today, we w ould like to make a few brief points on two issues 
discussed in our written submission: (1) transparen cy and (2) the definition of the product under 
consideration. 
(a) Transparency 
5.128  First, regarding Norway's claim relating to the proper interpretation and application of 
Articles 6.2 and 6.4 of the AD Agreement, the Unit ed States agrees with Norw ay that transparency 
and procedural fairness are key principles reflected in the AD Agreement.
157  Consistent with these 
principles, Article 6.2 provides that "all interested parties shall have a full opportunity for defence of 
their interests," and Article 6.4 provides in relevant  part that "authorities shall whenever practicable 
provide timely opportunities to see all information that  is relevant to the presentation of their cases, 
that is not confidential .  .  ., and that is used  by the authorities in an anti-dumping investigation." 
5.129  In connection with Article 6.4, referring to th e language on "relevance" contained in that 
provision, the EC makes two assertions on which the United States would like to comment.  First the 
EC asserts that "the investigating authority may decide on which information access should be granted 
or not."158  With respect to this statement, as the EC  concedes, relevance must be assessed from the 
perspective of the interested party presenting its case.159  As the panel observed in EC-Cast Iron 
Fittings , "whether or not the investigating authorities regarded...information...to be relevant does not 
determine whether the information would in f act have been 'relevant' for the purposes of 
Article 6.4."160  
5.130  The EC further asserts that "the investigati ng authority may not disclose information it has 
received from one interested party to another interest ed party, unless it is relevant for the preparation 
of the latter's case."161  With respect to this assertion, the EC's statement is unsupported by the text of 
Article 6.4, which contains an affirmative obligatio n to disclose information in certain circumstances, 
not a prohibition against such disclosure.   
5.131  Like Article 6.4, other provisions of Article 6 contain affirmative obligations to provide 
opportunities to interested parties to see certain  non-confidential information.  For example, 
Article 6.1.2 requires that non-confidential "eviden ce presented in writing by one interested party 
shall be made available promptly to other interest ed parties participating in the investigation."  
Article 6.9 requires that investigating authorities "i nform all interested parties of the essential facts 
under consideration that form the basis for the decisi on whether to apply definitive measures" and that 
such disclosure should take place "in sufficient time  for the parties to defend their interests."  
5.132  These provisions of Article 6 promote the ability of interested parties to be fully in control of 
their own defense.  They do not contain prohibitions  on the types of information that may be provided 
to interested parties.  The very language of Article  6.4 makes clear that it est ablishes a rule regarding 
when an authority must disclose information, and not when it must withhold information. 
                                                      
157 First Written Submission of Norway, paras. 687, 698. 
158 First Written Submission of the EC, para. 531. 
159 First Written Submission of the EC, para. 531. 
160 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron 
Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, para. 145. 
161 First Written Submission of the EC, para. 531.  WT/DS337/R 
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  (b) Product under consideration 
5.133  We turn next to Norway's claim that the EC's  definition of the "product under consideration" 
was inconsistent with Articles 2.1 and 2.6 of the AD Agreement.  On this issue, Norway, as well as 
Korea in its third party submission, reasons backwa rds from the definition of "like product" contained 
in Article 2.6 in an attempt to create an obligati on on Members regarding how to define the product 
under consideration.  No such obligation exists in the AD Agreement.162  The United States agrees 
with the EC and the panel in US - Softwood Lumber V  that the product under consideration is the 
starting point for defining the "like product," and not the reverse.163  Neither Article 2.1 nor 
Article 2.6 contain rules on how the product under consideration should be determined.  Norway's 
assertion otherwise does not accord with the text a nd would be unworkable, given that the "like 
product" cannot be determined until the product under consideration has been specified by the 
investigating authority.164   
5.134  Finally, the determinations by US investiga ting authorities cited by Norway and Korea do not 
support the conclusion that Articles 2.1 and 2.6 impose obligations with respect to how an 
investigating authority defines the product under cons ideration.  As an initial matter, Norway as the 
complaining party must demonstrate that the actions of the EC are inconsistent with specific 
obligations contained in the AD Agreement.  The f act that one WTO Member's investigating authority 
made particular determinations in certain cases does not support the conclusion that such actions are 
required by the AD Agreement.  The AD Agreement does not prescribe rules for  all aspects of an 
antidumping determination; where no such rules exist,  those aspects of the determination may be left 
to the investigating authority's discretion or otherwi se governed solely by a Member's domestic law.   
Insofar as it is relevant, US investigating authoriti es determine the product under consideration on a 
case-by-case basis, taking into consideration the partic ular facts of each case.  The two cases cited by 
Norway and Korea do not stand for the proposition that the EC was required to conduct two separate 
investigations, as Korea and Norway claim, or that the US investigating authorities would necessarily have done so had the facts of this case been before them.   
VI. INTERIM REVIEW 
6.1 On 2 July 2007, we submitted our Interim Report to the parties.  On 16 July 2007, Norway 
and the European Communities submitted written request s for review of precise aspects of the Interim 
Report.  On 30 July 2007, Norway and the European Communities submitted written comments on 
each other's request for interim review.  Neither part y requested an additional meeting with the Panel. 
6.2 Due to changes as a result of interim review , the numbering of paragraphs and footnotes in 
the final report has changed from the Interim Report .  The text below refers to the paragraph and 
footnote numbers in the Interim Report.  Where we have made changes, a reference to the 
corresponding paragraph or footnote number in the final report is included (in parentheses) for ease of reference.  We have also corrected a number of typographical and other non-substantive errors 
thorughout the report.  
                                                     
 
162 First Written Submission of Norway, paras. 84-9 8; Third Party Submission of the Republic of 
Korea, paras. 5-12. 
163 First Written Submission of the EC, paras. 19-21;  United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/R, adopted 31 August 2004, modified by Appellate Body Report, 
adopted 19 May 2003, paras. 7.153, 7.156-7.158 (" US – Softwood Lumber V (Panel) "). 
164 US – Softwood Lumber V ( Panel ), paras. 7.153, 7.156-7.158; Panel Report, Korea – Anti-Dumping 
Duties on Imports of Certain Paper from Indonesia , WT/DS312/R, adopted 28 November 2005, paras. 7.219-
7.221. WT/DS337/R 
Page 86  
 
  A. 
REVIEW REQUESTED BY NORWAY  
6.3 Norway requested review of paragraphs 4.138, 7.157, 7.158, 7.160, 7.192,  7.195, 7.197, 
7.233, 7.240, 7.287, 7.382, 7.447, 7.455, 7.460, 7.485, 7.491, 7.668, 7.670, 7.720, 7.779, 7.796, 8.1, 8.6 – 8.9, and footnotes 278 and 338 of the Interim Report, and requested that we insert a new section 
following paragraph 7.513. 
6.4 In the absence of any objections from the Eu ropean Communities, we made the changes 
requested by Norway to paragraphs 4.138 and 8. 1(xi) and footnotes 278 (now 307) and 338 (now 367) 
of the Interim Report, albeit not always in the exact terms proposed by Norway. 
6.5 Norway asks the Panel to make certain modificati ons to the text of paragraphs 7.157, 7.158, 
7.160 and 7.195, in order to reflect what, in its  view, was the fact that the Norwegian Seafood 
Federation ("FHL"), interested parties and the Norwegian government were all under the impression 
that the investigating authority intended to make the selection of parties to investigate on the basis of a 
"statistically valid" sample, in the same way it had al legedly done so in previous investigations.  The 
EC asks the Panel to reject Norway's request be cause it argues that it tries to introduce factual 
findings that were not argued before the Panel. 
6.6 We decline to make the changes requested by Norway.  In its comments on the Interim 
Report, Norway recalled that it referred to the Norwegian government's impression of the investigating authority's intention to select the i nvestigated parties on the basis of a "statistically 
valid" sample in its comments on the EC's answers to  the Panel's second set of questions.  Thus, it was 
not until a late stage in this dispute that Norway advanced the factual assertions  that are the basis for 
the requested modifications.  The EC has contested  Norway's factual assertions, and noted that it did 
not have an opportunity to respond to Norway's asser tions during the dispute.  We confirm that the EC 
did not have an opportunity during the proceedings in  this dispute to respond to the factual assertions 
that Norway now asks the Panel to treat as findings of  fact.  In this light, we believe that we cannot 
simply accept Norway's factual assertions.  In any case, we have closely reviewed the two pieces of evidence that Norway argues support its assertions, and believe that they do not unambiguously 
substantiate Norway's position. 
6.7 Norway asks the Panel to add text to paragraph 7.197 to reflect part of the argument it made 
to explain why Salmar reported zero export sales in its reply to the EC's "sampling questionnaire".  
The EC contends that the requested changes sugg est that the questionnaire excluded information on 
exports made by unrelated traders.  We have  added footnote 377 to pa ragraph 7.197 recalling 
Norway's argument and added some of our own observations in order to clarify the facts. 
6.8 Norway requests that the Panel amend the characterisation of its arguments at paragraph 
7.233 in respect of the meaning of the verb "deter mine" in Article 2.2.1 of the AD Agreement.  In 
particular, Norway asks the Panel to "correctly fo rmulate its contentions" as set out in response to 
Panel Question 80.
165  The EC did not respond to Norway's comments.  We have made an appropriate 
amendment to paragraph 7.233 (now 7.235) and adde d paragraph 7.236 in order to address what we 
understand to be Norway's concerns. 
6.9 Norway asks the Panel to delete from paragra ph 7.240 the reference to its answer to Panel 
Question 137 because it contends that it wrongly ch aracterizes Norway's position on the meaning of 
the expression "the time of sale" in the last sentence of Article 2.2.1.  In particular, Norway argues 
that it did not intend that its response to Panel Ques tion 137 should be interpreted as indicating that 
"the time of sale" could be equated with "the particular day of sale, or an average including that day, 
                                                      
165 Norway, Comments on the Interim Report, para. 15.  WT/DS337/R 
 Page 87 
 
 
  over a week, month or the period of investigation".166  The EC did not respond to Norway's 
comments.   
6.10 We have reviewed Norway's response to Pane l Question 137 and consider that the Panel's 
initial understanding of Norway's answer was not un reasonable.  However, we recognize that it might 
also be interpreted in the manner that Norway no w contends was intended.  Therefore, we have 
decided to grant Norway's request, and modified th e text of paragraph 7.240 (now 7.243) accordingly. 
6.11 Norway asks the Panel to modify paragraph 7.287 to reflect what it asser ts was the fact that 
the investigating authority constructed normal valu e for all investigated pa rties, including [[XXX]] 
and [[XXX]].  The EC did not respond to Norway's comments.  We believe that the facts surrounding 
the treatment of [[XXX]] and [[XXX]] in the investigation are appropriately addressed in 
paragraph 7.290.  Therefore we see no need to make the changes requested by Norway. 
6.12 Norway requests that the Panel provide a more detailed explanation of the rationale for the 
findings made in paragraph 7.382 in respect of Gr ieg's filleting costs.  The EC considers that the 
present text of this paragraph "cl early states the Panel's conclusions".167  We believe that the current 
text of paragraph 7.382 adequate ly explains the Panel's findings, inter alia , by cross-reference to the 
Panel's previous observations on the disciplines of pa ragraph 3 of Annex II.  Accordingly, we decline 
Norway's request. 
6.13 Norway asks the Panel to amend the description of the meeting that took place on 2 June 2005 
between the FHL and the investigating authority to re flect the fact that a number of companies also 
attended the same meeting and made  statements before the investigating authority.  The EC submits 
that Norway's request is irrele vant because the EC's justifica tion for treating unknown producers as 
non-cooperators arose from their failure to participat e in the process for selecting a sample, at the 
outset of the investigation.  We have made a nu mber of modifications to  paragraphs 7.447 (now 
7.450) and 7.457 (now 7.460) to more accurately reflect the facts surrounding the meeting of 
2 June 2005. 
6.14 Norway asks the Panel to replace the word "all"  in paragraph 7.455 with the word "those", in 
order to clarify that the FHL did not undertake to contact "all" Norwegian salmon producers, but only 
"those" producers that FHL considered to be of relevance for the anti-dumping proceeding.  The EC 
argues that any change to the wording must not co nceal what it argues was the distinction drawn by 
the Panel between what the FHL had presented itself as doing (act as a channel to all the industry associations) and what it actually decided to do (cont act some of them only).  We consider that the 
language of paragraph 7.455 states the Panel's view s on this issue sufficiently clearly, and accordingly 
we reject Norway's request. 
6.15 Norway requests that the Panel insert several pa ssages of additional text into paragraph 7.460 
in order to fully reflect all of the arguments Norway  made in respect of the meaning of the term "cost 
of production".  The EC did not respond to Norway's  comments.  In our view, the text of paragraph 
7.460, and the following paragraphs in section F.1 of our findings, provide a sufficiently clear 
summary of Norway's arguments for the purpose of resolving the particular claims at issue.  
Therefore, we do not consider that it is n ecessary to make the requested modifications. 
6.16 Norway argues that the Panel's findings in resp ect of its complaint against the investigating 
authority's NRC adjustments (paragraph 7.485) fail to properly address Norway's claims and, therefore, did not resolve the dispute between the pa rties.  Specifically, Norway submits that once the 
Panel had dismissed Norway's arguments on the co rrect interpretation of the last sentence of 
                                                     
 
166 Norway, Answer to Panel Question 137. 
167 EC, Comments on Norway's Comments on the Interim Report. WT/DS337/R 
Page 88  
 
  Article 2.2.1.1, it should have app lied its own interpretation of Article 2.2.1.1 to the facts.  Norway 
now asks the Panel to do so.  The EC states that it agrees with the Appellate Body that it is not the 
role of a panel to "make the case for a complaining party".
168   
6.17 As our evaluation in section F.1(c)(i) reveals, th e claims against the investigating authority's 
treatment of NRCs, that are the subject of Norway's interim review comments, were premised on the 
legal argument that the last sentence of Article 2.2. 1.1 requires that solely NRCs which benefit current 
and/or future production can be included in the co st of production.  In dismissing Norway's legal 
argument, we have therefore found that Norway has failed to establish a prima facie  case against the 
investigating authority's NRC adjustments.  Having made this finding, we consider that we have 
satisfied our obligation of making an objective asse ssment of the matter that is before us, and have 
properly resolved the dispute between the parties.  In this regard, we recall that the Appellate Body 
has observed that a "panel errs when it rules on a claim for which the complaining party has failed to 
make a prima facie case".169  We therefore reject Norway's request. 
6.18 Norway asks the Panel to insert a new section in  the report to address a claim it alleges was 
made in its FWS against the investigating authorit y's treatment of certain NRCs incurred by [[XXX]] 
on the closure of four smolt production facilities, that was not addressed by the Panel in the Interim 
Report.  Norway submits that it made two separate a nd distinct claims on this issue: First, that the 
investigating authority was not entitled to treat the NRCs as costs of production within the meaning of 
Article 2.2.1.1; and secondly, "in the alternative"170, that even if the NRCs were costs of production, 
the investigating authority nevertheless acted incons istently with Article 2.2.1.1 because it failed to 
properly allocate those NRCs to [[XXX]] cost of production.  In its comments on Norway's request, 
the EC does not express an opinion on whether the Panel should accept Norway's proposal, but 
repeats certain factual assertions already made during the proceedings. 
6.19 After  closely reviewing the parties' submissions  regarding the investigating authority's 
treatment of [[XXX]] NRCs, we do not understand Norw ay to have made a separate and "alternative" 
claim that the investigating authority acted incons istently with Article 2.2.1.1 because it failed to 
properly allocate NRCs to [[XXX]] cost of producti on.  Norway asserts that its "alternative" claim 
was expressed in two paragraphs of its FWS.  Ho wever, even when read in isolation, we do not 
understand these two paragraphs to unequivocally st ate the claim that Norway alleges was being 
made.  For instance, there is no reference to Ar ticle 2.2.1.1, nor does it appear to us that the 
paragraphs are drafted using lang uage suggesting that an "alternative" argument or claim was being 
made.  The existence of any such claim is even le ss apparent when the two paragraphs are reviewed 
together with the remainder of the section of Norway's FWS addressing [[XXX]] NRCs.  In this 
regard, we find it telling that in the last paragraph of this section, Norway summarises its claim in the 
following terms: 
"By including  the NRC incurred by [[XXX]] on the closure of four smolt production 
facilities, the EC, therefore, violated Articles 2.2 and 2.2.1.1 of the Anti-Dumping 
Agreement ."171 
This paragraph reveals that Norway was concerned with the consistency of the inclusion  of [[XXX]] 
NRCs in its cost of production with Articles 2.2 and 2.2.1.1.  There is no mention of any "alternative" 
claim or argument.  The same formulation of word s is used in the concluding paragraphs of other 
sections of Norway's FWS where it challenges the inv estigating authority's "inclusion" of the NRCs of 
                                                      
168 Appellate Body Report, Japan – Agricultural Products II , para. 129. 
169 Appellate Body Report, US – Gambling , para. 139. 
170 Norway, Comments on the Interim Report, para. 40. 
171 Norway, FWS, para. 939. (Underline added).  WT/DS337/R 
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  two other companies, [[XXX]] and [[XXX]], on the basis of the same legal argument.172  I t  i s  
noteworthy that although Norway challenged the investigating authority's allocation  of these two 
companies' NRCs, it did so in a separate and distinct section of its FWS,173 where it explained its 
claims as follows: 
"Norway submits that these costs are non -recurring costs that do not benefit current 
or future production.  As such, Article 2.2.1.1 does not permit the EC to include them 
in the cost of producing salmon during the IP.  Accordingly, none of the costs subject to the three-year averaging approach  may be included in the COP.   
Additionally, in this section, Norway cha llenges the approach that the EC took to 
allocating these costs across time .  Assuming that the Panel upholds the primary 
claim that the NRC are excluded from the COP, Norway nonetheless requests the 
Panel to address this allocation issue as it is an important part of the contested measure and involves a methodology that could, for example, be used on implementation."
174   
6.20 By contrast, the language that Norway suggests indicates that it made a two-tiered claim in 
respect of [[XXX]] NRCs is much less precise and significantly more ambiguous.  Given the very 
detailed nature of Norway's argumen ts on this (and other matters raised in this dispute), it could be 
expected that such an alternative claim, if in fact intended, would have been more clearly expressed.  
Indeed, in other parts of Norway's FWS, where it wa nted to make an alternative argument or claim, 
Norway explicitly said so.175 
6.21 Finally, we note that in responding to Norway 's claim in respect of [[XXX]] NRCs, the EC 
did not specifically address the element of allocation as if it were a separate and alternative claim or 
argument.  In our view, this also supports the reasonableness of the Panel's reading of Norway's 
submissions.  Thus, for all of these reasons, we decline Norway's request. 
6.22 Norway asks the Panel to amend the description of  the investigating authority's rationale for 
using the three-year averaging allocation methodology in paragraph 7.491 to reflect the fact that, in 
the Definitive Regulation and the General Definitive Disclosure Document, the investigating authority 
stated that it applied a three-year average because th ree years is the average length of time to grow a 
salmon from a smolt to a harvestable salmon .  The EC considers that Norway's proposal is "factually 
                                                      
172 For example, "The EC was not entitled to include  in [[XXX]] costs of production the company's 
losses on its investment operations." Norway, FWS, para. 923; "In sum, the EC has not provided an adequate and reasoned explanation that supports its inclusion
 of the costs incurred by [[XXX]] ..."  Norway, FWS, para. 
894.  For both companies, as with [[XXX]], Norway's claims were based on  the argument that the last sentence 
of Article 2.2.1.1 permits the inclusion of NRCs in a co mpany's cost of production solely when they "benefit 
future and/or current production". 
173 Section XI.C(iv), setting out Norway's claims in  respect of the three-year average allocation 
methodology. 
174 Norway, FWS, paras. 945-946. (Underline added). 
175 For example: "Norway claims that the EC violated  Article 6.10 by excluding all exporters from the 
investigation.  In the alternative , assuming that the EC was entitled to exclude all exporters from the sample, the 
EC violated Article 6.10 by failing to include two of th e largest producers in the sample (Salmar and Bremnes)." 
Norway, FWS, para. 296, (underline added); "The EC violated Article 2.2.2 of the  Anti-Dumping Agreement , 
because it failed to determine [[XXX]] SG&A costs on the basis of actual sales data submitted by the company 
and because, in the alternative , it did not use a “reasonable method” to compute [[XXX]] SG&A costs." 
Norway, FWS, para. 1061, (underline added). WT/DS337/R 
Page 90  
 
  defective", noting that the Definitive Disclosure to [[XXX]] describes that NRC were treated "[i]n line 
with the 3 year salmon generation approach".
176 
6.23 While the EC is correct to point out that th e Definitive Disclosure to  [[XXX]] describes that 
its NRCs were treated "[i]n line with the 3 year sal mon generation approach", it is also the case that 
the Definitive Regulation states that three years was c onsidered to be the "average length of time that 
it takes to grow a salmon from a smolt to a harv estable salmon".  We have therefore made an 
appropriate amendment to the text at what is now paragraph 7.494, taking into account the fact that 
the EC has, during these proceedings, admitted that the statement made in the Definitive Regulation 
was erroneous. 
6.24 Norway asks the Panel to reflect, in the summary of Norway's arguments contained in 
paragraph 7.668, the fact that it was unaware of the precise methodology used by the investigating 
authority to calculate the MIPs until after the EC  response to the Panel Question 130, following the 
second substantive meeting of the Panel with the pa rties.  The EC comments that any modifications 
accepted by the Panel should be limited to Norway 's arguments and should not describe the EC's 
actions in regard to the disclosure of the calcu lations.  We have modifi ed paragraph 7.668 (now 
7.671) in order to more accurately reflects Norway's arguments. 
6.25 Norway asks the Panel to amend the summary of  its arguments contained in paragraph 7.670 
to capture the full range of views it expressed in resp ect of the investigating authority's use of "weight 
conversion factors" when determining the MIPs.  The EC does not explicitly object to Norway's 
proposal, but reminds the Panel that it has not had the opportunity to respond to the assertions made 
by Norway in its proposed amendments.  We have modified paragraph 7.670 (now 7.673) with a view 
to summarizing all arguments that are relevant to the Panel's evaluation of Norway's claims. 
6.26 Norway asks the Panel revise paragraph 7.720 so  as to address two arguments it alleges it 
made in respect of the investigating authority's us e of "weight conversion factors", and thereby find a 
violation of Article 9.2.  The two arguments Norw ay alleges the Panel has not addressed are: (i) the 
argument that the investigating authority "failed to  provide a reasoned and adequate explanation for 
its MIPs, including identifying which 'weight convers ion factors'"; and (ii) that the "'weight 
conversion factors' used by the EC were  not 'standard'", and inflated the MIPs.177  The EC does not 
explicitly object to Norway's proposal, but reminds the Panel that it did not have an opportunity to 
respond to Norway's assertions. 
6.27 We note that Norway's argument that the investigating authority failed to provide a reasoned 
and adequate explanation for its MIP calculations  is addressed in the context of its claim under 
Articles 12.2 and 12.2.2 of the AD Agreement.  As  regards Norway's second argument, we have now 
explicitly addressed Norway's concerns by inserting new paragraph 7.724, and amending 
paragraph 7.720 (now 7.725). 
6.28 Norway requests that the Panel make certain a dditions to the text of paragraphs 7.779 and 
7.796.  Norway considers that the text as originally  drafted gives the impression that in recalculating 
the MIPs, the EC simply reviewed and took into account comments made by interested parties in 
response to the definitive disclosure.  Norway asserts , however, that after the definitive disclosure of 
28 October 2005, and after  receiving the parties’ comments  on that disclosure on 8 November 2005, 
the investigating authority "initiated a new step in th e investigation" by "deepen ing" the investigation, 
referring in this regard to a letter from the inv estigating authority transmitting the recalculated 
MIPs.178  Norway considers it important that th e Panel Report fully reflect these "additional 
                                                      
176 EC, Comments on Norway's Comments on the Interim Report. 
177 Norway, Comments on the Interim Report, paras. 51-52. 
178 Norway, Comments on the Interim Report, para 56, citing, inter alia , Exhibit NOR-19.  WT/DS337/R 
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  investigative steps undertaken by the investig ating authority with respect to the MIPs".179  The EC did 
not respond to Norway's comments. 
6.29 Norway is asking us to include, as a fact, a ch aracterization of the steps the investigating 
authority took following the definitive disclosure, a nd which resulted in the changes to the MIPs.   It 
is true that this characterization is one that the i nvestigating authority itself used in referring to the 
actions it took following the definitive disclosur e.  However, Norway did not rely upon this 
characterization in making its arguments to the Pane l.  Although it cited the passage of the letter from 
the investigating authority containing the reference to "deepened … investigation" in its first written 
submission180 and in its answer to a question from the Panel,181 and emphasized certain aspects of the 
passage in its submission, it did not emphasize this phrase, and did not refer to "deepening" of the 
investigation as pertinent in any of its arguments,  written or oral.  Thus, to include this in the 
summary of Norway's argument at paragraph 7.779 would introduce a new element to its arguments at 
the Interim Review stage that was not argued as such to the Panel during the course of the proceedings, which we do not cons ider to be appropriate.   
6.30 With respect to paragraph 7.796, this paragraph forms part of our  findings.  We did not, in our 
analysis, consider the characterization of the acti ons taken by the investigating authority after the 
definitive disclosure that resulted in the recalculation of the MIPs in its analysis.  The characterization 
of those actions is not, in our view, a fact.  The actions themselves are accurately described in 
paragraph 7.796, which states that the investiga ting authority "verified and cross-checked the 
information available, including information provi ded by parties in response to the definitive 
disclosure".  The characterization of that pro cess of "verify[cation] and cross-check[ing]" as a 
"deepened … investigation" was not relevant to our de termination.   We therefore decline to make the 
requested additions to para graphs 7.779 and 7.796. 
6.31 Norway requests that the Panel reconsider its d ecision not to suggest that the EC repeal the 
contested measure, set forth in paragraphs 8.6-8.9 of the interim report.  Norway notes that panels 
have made suggestions under the second sentence of  Article 19.1 in at least 16 cases, including the 
recent Mexico – Steel Pipes and Tubes  dispute.
182 Norway argues that panels in anti-dumping cases 
have exercised their discretion to suggest ways for implementation when two el ements existed:  there 
was a violation of the provisions on initiation, and th ere were violations of ma ny or various provisions 
of the AD Agreement, including provisions on dumping,  injury and causation.  Norway asserts that 
those same circumstances are present in this dis pute – a finding of inconsistency with Article 5.4 
based on the wrongly-defined domestic industry, and 20  findings of violation covering all aspects of 
the investigation.  The EC does not accept the vi ew that the number of violations necessitates 
withdrawal of the measure in question.  The EC asserts that the WTO operates on the principle that a 
Member found to have violated its obligations is free to find whatever means it wishes to bring itself 
into compliance.  The EC considers this to be a sound principle, as only the Member in question will 
know the full range of options available to it unde r domestic law and procedur es, and the implications 
of various possible means of implementation.  The EC points out that it has commenced a review of 
the issue of dumping of Norwegian salmon,183 which investigation will in evitably have consequences 
for the measure at issue in this dispute, which illustrates the wisdom of leaving Members free to 
decide how they will respond to adverse panel findings. 
                                                      
179 Norway, Comments on the Interim Report, para. 57. 
180 Norway, FWS, para. 748. 
181 Norway, Answer to Panel Question 71, para. 246. 
182 Panel Report, Mexico – Anti-Dumping Duties on Steel  Pipes and Tubes from Guatemala  ("Mexico – 
Steel Pipes and Tubes "), WT/DS331/R, adopted 24 July 2007. 
183 Notice of initiation of a partial interim review of the anti-dumping measures applicable to imports of 
farmed salmon originating in Norway, Official Journal of the European Union , C88/26, 21 April 2007. WT/DS337/R 
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  6.32 Pursuant to the second sentence of Article 19.1 of the DSU, a panel is free to suggest ways in 
which a Member found to be in violation coul d implement a panel recommendation to bring its 
measure into conformity.  That discretion applies e qually to allow a panel to decline to make such a 
suggestion.  There is no guidance in the text of  the DSU, or in any other covered agreement, 
concerning relevant criteria for the exercise of that discretion in the context of a dispute involving an 
anti-dumping measure.  The fact that previous  panels reviewing anti-dumping measures which 
exercised their discretion to make a suggestion on implementation have referenced the circumstances 
which informed that exercise of discretion does not m ean that, if those circumstances exist, a different  
panel reviewing a different anti-dumping measure must , or even should, exercise its discretion in the 
same way.  Moreover, while the Appellate Body h as indicated that "it would [be] advisable" for a 
panel to articulate the reasons why it declined to make  a suggestion, it has made clear that a failure to 
do so "does not mean that Panel's exercise of its discretion was improper".
184 
6.33 We recognize that withdrawal of the measure is one means by which our recommendation in 
this dispute might be implemented.  However, we consider that a suggestion to withdraw the measure 
would imply that, in our opinion, no other action would be sufficient to comply with the underlying 
recommendation, and thus could have significant implications in the event of any subsequent 
proceedings under Article 21.5 of the DSU concerni ng the "existence or consistency with a covered 
agreement of measures taken to comply with the recommendations".  Neither Norway nor the EC has 
addressed the question whether any means other than revocation of the measure may be available to 
the EC to implement the recommendation in this disput e.  Nor do we believe that we are well situated 
to assess that question, even if a factual basis for it were presented.  As we cannot conclude that 
withdrawal of the measure is the only means of im plementation available to the EC to implement the 
recommendation in this dispute, a nd we are unwilling to prejudge, or  appear to prejudge, the issue 
which may arise under Article 21.5 of the DSU, we therefore exercise our discretion to decline to 
make any suggestion as to implementation.     
B. REVIEW REQUESTED BY THE EC 
6.34 The EC requested review of paragraphs 7.11, 7.26, 7.28  7.44, 7.54, 7.57, 7.61, 7.91, 7.92, 
7.94, 7.95, 7.96, 7.107, 7.112, 7.113, 7.115, 7.117, 7.119, 7.120, 7.122, 7.123, 7.200, 7.201, 7.202, 7.203, 7.497, 7.499, 7.503, 7.633, 7.643, 7.740 and 8.1(xv), and footnotes 201, 204, 260, 268, 773 
(incorrectly referenced as 733) and 919 of the Interim Report.  
6.35 In the absence of any objections from Norway, we made changes requested by the EC to 
paragraphs 7.11, 7.26, 7.28, 7.44, 7.54, 7.57, 7.91, 7.92, 7.95, 7.96, 7.113 (final sentence), 7.503 (now 
7.506), 7.740 (now 7.745) and 7.754 (now 7.759) and footnotes 201 (now 228) and 773 (now 810) of 
the interim report, albeit not always in the exact terms proposed by the EC.   
6.36 The EC requests that the Panel revise the text of footnote 204 in two respects.  Norway did 
not object to the first requested change, which we  have made to what is now footnote 231.   
6.37 With respect to the second requested changed, th e EC argued that the reasoning in prior panel 
and Appellate Body decisions indicates that ever ything within "the product" is by definition 
comparable (necessary adjustments having been made),  and that it is not just within an averaging 
group that transactions are "comparable", and therefor e requested that the Panel delete that word.  
Norway objected to the EC's request in this respect, asserting that, if the Panel were to delete the word 
"comparable" as requested by the EC, this would i ndicate that Norway was correct in arguing that all 
                                                     
 
184 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina – Recourse to Article 21. 5 of the DSU by Argentina ("US – Oil Country Tubular 
Goods Sunset Reviews (Article 21.5 – Argentina)"), WT/DS268/AB/RW, adopted 11 May 2007 ,  para. 183. 
  WT/DS337/R 
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  models must be "like" to ensure comparability, and accordingly, asked for additional explanation from 
the Panel if it made the requested change.    
6.38 We did not make the second requested change, because the text as drafted fully reflects our 
understanding of the practice of multiple averaging.   
6.39 The EC requests a corresponding change to the fourth sentence of paragraph 7.61, to which 
Norway objected for the same reasons as its objec tion to the requested change to footnote 204. 
6.40 We have amended the text of the fourth sentence of paragraph 7.61 to more clearly reflect our 
understanding of the practice of multiple averaging,  corresponding with the text of footnote 204 (now 
231), but have not made the change requested by the EC.  
6.41 The EC requests that the Panel make an addition to the text of paragraph 7.94.  The EC 
argued that the text should make clear that th e production of silent producers was estimated and 
included in Community production.  Norway objected to  this request, pointing out that the referenced 
Definitive Regulation does not disclose whether s ilent producers were included in total EC 
production, although the EC did explain that they we re during the course of the proceeding.  Norway 
suggested that if the Panel were to make the requ ested change, it should add a new sentence to clarify 
that the inclusion of silent producers in the volume of Community production was explained during 
the dispute proceedings, to properly reflect the chronology of the EC's explanation. 
6.42  We have not made the requested addition to th e text of paragraph 7.94.  Norway is correct 
that the inclusion of silent producers is not appa rent on the face of the referenced recitals of the 
Definitive Regulation, and that their inclusion w as explained by the EC during the course of the 
proceedings.  One aspect of Norway's claims was an  alleged failure to ade quately explain the volume 
of EC production referenced in the Definitive Regulati on.  It would in our view be inappropriate to 
imply that the Definitive Regulation clearly sets out the inclusion of silent producers. 
6.43 The EC requests that the Panel modify the first sentence of paragraph 7.107 to avoid 
prejudging the question of whether or not certain activities constitute production of the like product.  
Norway objects to the EC proposal, arguing that the sentence summarizes Norway's claims and 
arguments, and correctly reflects them.  Norway ma de an additional request, to change the phrase 
"filleting-only undertakings" in the first sentence to "p roducers of fillets only", or in the alternative to 
more fully describe the term to identify the economic activity of these enterprises. 
6.44 We do not agree with Norway that the first sentence of this paragraph summarizes Norway's 
claims – rather, it is our introduction of the issues we will address in the subsequent paragraphs.  We 
do agree with the EC that it is better to use term inology that does not imply any prejudgement, and 
have therefore amended the text to a more neutral formulation, which we consider more appropriate in 
an introductory paragraph.  We have not granted Norway's additiona l request to change the reference 
to "filleting-only undertakings".  As noted, this sentence is not a description of Norway's arguments, 
but rather our statement of the issues before us.  Moreover, this is the phrase we have used in 
discussing the issue, and therefore we consider its use appropriate here.  We  have, however, added a 
new footnote 276 explaining what we mean by the term, for clarification.    
6.45 The EC requests a series of changes to the Panel's discussion of the domestic industry issue 
that all rest on largely the same argument.  Specifically, the EC proposes:  
(i) changing the phrase "domestic industry" to " domestic producers" in paragraphs 7.112 
(first sentence) and 7.120 (line 12),  WT/DS337/R 
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  (ii) changing the phrase "domestic industry" to  "domestic production" in paragraphs 
7.115 (second sentence) and 7.120 (first sentence) and in footnote 268,  
(iii) changing the term "production" to  "econom ic activity" in paragraphs 7.113 (first 
sentence) and 7.123 (fourth sentence), 
(iv) changing the term "producers of the like pr oduct" in paragraph 7.112 (first sentence) 
to "undertakings whose input and output falls  within the scope of the like product", 
(v) changing the phrase "any enterprise that produ ced any form of the like product" in 
paragraph 7.115 (second sentence) to "any en terprise that has as an output and thus, in 
the Panel's view, "produced" any form of the like product", and  
(vi) adding text to paragraph 7.120 (first sentence). 
6.46 The EC stated its understanding that the issu e before the Panel was whether or not it was 
impermissible for the European Communities to cons ider that the filleting-only undertakings were not 
"producers" of the like product, but rather "industrial users" of whole salmon, and argued that it excluded filleting-only undertakings fro m the "domestic producers" as a first step, before determining 
what was the "domestic industry".  The EC stated its view that "the key finding by the Panel is that 
because the output of these undertakings was fillets (that is, something within the scope of the like 
product), they were necessarily "producers" of the like product, notwithstanding that their input was 
whole salmon (which is already part of the like product).
185  Norway did not comment on all of the 
EC's requested changes, but specifically objected to the proposed changes in (i) and (iv) above, and 
the proposed changes to paragraphs 7.115 (fi rst sentence) and 7.123 (fourth sentence) and 
footnote 268.  Norway argued that the proposed chan ges reformulate Norway's claims, and the Panel's 
findings, to a focus on "domestic production" and "domestic producers" rather than on Norway's 
claims concerning the proper definition of the "domestic industry". 
6.47 Taken as a whole, we consider that the chang es proposed by the EC would recast this section 
of our Report from an analysis of what enterprises co mprise the "domestic industry" to an analysis of 
what enterprises comprise "domestic production" or "domestic producers".  This was neither the focus 
of Norway's claim, nor the focus of our analysis  and findings.  Norway's claim was that the EC 
improperly excluded filleting-only undertakings from th e domestic industry.  Our analysis focused on 
this question.  We concluded th at filleting-only enterprises were engaged in production of the like 
product, and therefore could not be excluded, as a group or category, from the domestic industry.   
6.48 We first addressed the interpretation of Article 4.1 of the AD Agreement, and concluded that 
Article 4.1 was properly understood as not allowing the exclusion, as a category or group, of any 
enterprises that produced the like product (parag raph 7.112).  We went on to address the EC's 
argument that filleting-only undertakings did not prod uce the like product, and rejected this argument 
as a matter of fact, concluding that the activities enga ged in by filleting-only undertakings constituted 
"production" of the like product, based on the ordina ry meaning of the verb "to produce" (paragraph 
7.114).  We noted that filleted salmon was within  the scope of the like product, and concluded that 
any enterprise producing any form of the like prod uct should be considered, at least in the first 
instance, a producer of the like product, and as such, pa rt of the domestic industry (paragraph 7.115).    
6.49 We have not made the changes requested by the EC.  The focus of our analysis in this section 
of our Report is Article 4.1 of the AD Agreemen t, which defines "domestic industry".  The EC's 
argument that it excluded filleting-only undertakings  from the "domestic producers" as a first step, 
before determining what was the "domestic industry" as a second step, is irrelevant to our analysis and 
                                                      
185 EC Comments on Interim Report, para. 20.  WT/DS337/R 
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  conclusions.  Whether the error occurred in the first step, or the second step, does not change our 
conclusion in this case, that the EC's approach  to defining the domestic industry resulted in the 
investigation of a domestic industry that did not co mport with the definition in Article 4.1 of the AD 
Agreement.   
6.50 However, having considering this section of th e Report in light of the comments made by 
both parties, and taking into consideration the EC's  concerns with the rendering of its arguments, we 
have made changes to paragraphs  7.112, 7.113 (including new footnote 284) and 7.114, to avoid 
misrepresenting the parties' arguments or giving th e appearance of having pre-judged matters, and to 
clarify our reasoning.   
6.51 The EC requests that the Panel address, in paragraph 7.119, what the EC refers to as "the one 
authoritative statement by the Appellate Body that confirms that a definitional provision does not 
impose obligations,"186 referring to the decision of the Appellate Body in US - Zeroing (Japan).187  
The EC asserts that, as part of an objective assessment under Article 11 of the DSU, the Panel must either agree with this statement and dismiss Norway 's claim, or distinguish it.  Norway sees no need 
for the Panel to alter its views, noting that the Panel cites extensive relevant case-law, including 
Appellate Body reports, that address the sa me question, in reaching its conclusion. 
6.52 We have not granted the EC's request.  Contra ry to the view stated by the EC, we do not 
consider the Appellate Body's statement in US – Zeroing (Japan)  constitutes an "authoritative" 
statement that precludes our finding that the EC's approach to defining domestic industry in this case resulted in an investigation concerning a domestic i ndustry that did not comport with the definition set 
forth in Article 4.1.  In that decision, the A ppellate Body had already found that the challenged 
"zeroing" practice violated Article 2.4.2.  It we nt on to decline to address Japan's additional claim 
asserting a violation of Article 2.1 and Articles VI:1 and VI:2 of the GATT 1994, stating:  
"Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 are 
definitional provisions.  They set out a definition of "dumping" for the purposes of the Anti-Dumping Agreement  and the GATT 1994.  The definitions in Article 2.1 and 
Article VI:1 are no doubt central to the interpretation of other provisions of the 
Anti-Dumping Agreement , such as the obligations relating to, inter alia , the 
calculation of margins of dumping, volume of dumped imports, and levy of anti-dumping duties to counteract injurious dumping.   But, Article 2.1 and Article VI:1, 
read in isolation, do not impose independent obligations."
188 
We do not consider that this statement has the significance imputed to it by the EC, and do not 
consider that it requires the dismissal of Norway's  claim.  The Appellate Body was not addressing 
Article 4.1 of the AD Agreement, while several panels, cited in paragr aph 7.119, which were 
considering that provision reached conclusions similar to ours.   
6.53 We did not conclude, in this case, that the EC 's definition of domestic industry violated an 
"independent obligation" established in Article 4.1 of the AD Agreement.  As we noted in 
paragraph 7.118, regardless of whether Article 4.1 itself imposed obligations on Members, we 
considered it necessary and appropriate to address Norw ay's claims.  As we noted in paragraph 7.117, 
whether or not the EC defined the domestic industr y in a manner consistent with the definition in 
Article 4.1 could be central to consideration of ot her claims – as indeed, we subsequently found it 
                                                      
186 EC, Comments on Interim Report at para. 23 (footnote omitted). 
187 Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews  ("US – 
Zeroing (Japan) "), WT/DS322/AB/R, adopted 23 January 2007, para. 140. 
188 Appellate Body Report, US – Zeroing (Japan) , para. 140. 
 WT/DS337/R 
Page 96  
 
  was.  To accept the EC's view on this matter would effectively mean that an investigating authority's 
definition of the domestic industry in an anti-dum ping investigation could not be challenged.   
6.54 The EC requests that the Panel reconsider foot note 260.  The EC asserts that the Panel found 
that the burden of demonstrating that the level of ec onomic activity of an enterprise is so low that it 
does not constitute "production" of the like pro duct, a principle with which the EC expresses 
agreement, is on the EC.  The EC requests reconsid eration of this latter aspect, arguing that to the 
contrary, the burden  should be on the party maki ng that assertion, in this case Norway.  Norway 
disagrees with the principle stated in this footno te, and suggests that the Panel delete it, and the 
statement on the same principle in paragraph 7.12 0.  Norway considers that the footnote raises a 
complex interpretive question, not addressed by the in vestigating authority or the parties, and suggests 
it would be best left for consideration in a disput e where it is relevant on the facts and argued by the 
parties.  In the alternative, Norway asserts that the level of economic activity by filleting-only undertakings was significant, pointing to information before the investigating authority in support of 
its assertion.  Finally, Norway disagrees with the EC's  view that the burden of demonstrating that the 
level of economic activity of an enterprise is so lo w that it does not constitute "production" of the like 
product rests with Norway, and asserts that the bur den lies with the investigating authority, which 
must make a determination in this regard based  on the evidence and provide a reasoned explanation 
for it. 
6.55 Footnote 260 relates to the statement in the pr evious footnote that whether an enterprise is a 
domestic producer is a question of fact, and rec ognizes that there may be circumstances where the 
facts justify finding that an enterprise did not "p roduce" the like product, in the sense the Panel used 
that term, i.e., bring it into existence.  We did not address this factual issue, which was not addressed 
in the underlying investigation.  In the absence of any consideration by the investigating authority, a 
panel would be making a de novo decision were it to address such a factual question in dispute 
settlement, which of course it may not do.  We consider  that the point made in this footnote, while not 
necessitated by the facts of this case, is important to a full understanding of our views on the issues 
that were before us, and we ther efore have clarified the text of footnote 260 (now 289) to avoid any 
implications as to the burden of proof on this issue, should it arise on the facts of another dispute.   
6.56 The EC requests that the Panel reconsider the u se of the term "subsidiary" in paragraph 7.117, 
referring to Norway's claims regarding initiation, in jury and causation, arguing that the Panel should 
refer to them as "consequential" claims.  The EC  argues that the Panel is not entitled to convert 
"consequential" claims into "subsidiary" claims, an d that the Panel found, as a matter of fact, that 
Norway's claims were "as a consequence", and ca nnot now change that factual finding, set out at 
paragraph 7.124, and reitera ted at paragraph 8.1(i).  Norway disagrees with the EC's view that its 
claims of inconsistency on initiation, injury, a nd causation are merely consequential, arguing that 
these claims were independent claims with in the Panel's terms of reference.   
6.57 In paragraph 7.117, we identified Norway's claims  under Articles 5.4, and 3.1, 3.4, and  3.5 as 
"subsidiary" claims in view of the fact that Norway presented no independent arguments on those 
claims, relying on its principal argument that th e EC wrongly-defined the domestic industry under 
Article 4.1.  We did not, as the EC asserts, find as a matter of fact that Norway's claims under Articles 5.4, and 3.1, 3.4, and  3.5 were "as a c onsequence" – rather, we f ound violations of those 
claims "as a consequence" of our findings with respect to Norway's principal claim concerning 
Article 4.1.  There is no inconsis tency between describing claims as subsidiary to a principal claim, 
and describing the findings on those subsidiary clai ms as being a consequence of the finding on the 
principal claim.  We therefore reject the EC's request. 
6.58 The EC requests that the Panel reconsider pa ragraph 7.122.  The EC argues that it did not 
exclude organic producers from either domestic pr oduction or the domestic industry, but only from 
the price under-cutting analysis, and that it did not exclude silent producers from domestic production,  WT/DS337/R 
 Page 97 
 
 
  including their volume of production on the basis of an estimate, although it did exclude them from 
the domestic industry.  The EC asserts that there is  no basis on which "similar considerations" to those 
underlying the Panel's decision regarding filleti ng-only undertakings could apply to these two 
categories of producer.  The EC suggests that this para graph be deleted, in light of the fact that the 
Panel exercised judicial economy with respect to the question of whether the EC was entitled to not 
include in the domestic industry, inter alia , producers of organic salmon and silent producers, since 
the producers it did include accounted for a major proportion of domestic production of the like product.  Norway objects to the EC request, arguing that this paragraph properly responds to its claims that the EC wrongly excluded these producers from the domestic industry, albeit the exclusion 
of organic producers was in the in jury assessment and not at the tim e of initiation.  Norway asserts 
that the Panel's exercise of judicial economy has no bearing on the discussion in this paragraph, which 
adds clarity for purposes of implementation, and th at to delete it would therefore reduce the EC's 
obligations regarding implementation. 
6.59  It is clear that the EC did not include silent producers in the domestic industry, and it does 
not argue otherwise.  As there is no dispute that th ey produced the like product, the considerations  we 
outlined regarding filleting-only unde rtakings apply equally to them.  With respect to organic 
producers, the situation is more difficult to understa nd.  However, referring to Exhibit EC-32, it is 
clear that at least one domestic enterprise was excl uded from the domestic industry on the basis that 
its production was "exclusively organic."  Two re lated enterprises apparently were not excluded per 
se, but their information not considered in the pri ce undercutting analysis.  In its FWS, the EC had 
argued, with respect to silent producers, that if they were excluded, but a major proportion of 
domestic production is included,  Article 4.1 is satisfied.
189  The EC went on to assert that the same 
analysis applied with respect to organic salmon.190  Thus, it seems that the EC did not exclude from 
the domestic industry enterprises only a portion of whose production was organic, but did exclude at least one producer whose production was exclusively or ganic.  Norway argued that the exclusion of 
organic and silent producers was inc onsistent with Article 4.1.  As discussed above, whether domestic 
producers are excluded from "domestic production" (t he EC's "first step"), or from the domestic 
industry (the EC's "second step"), the end result is the same – the domestic industry is wrongly 
defined because domestic producers of the like produc t are excluded.  Thus, the considerations 
regarding filleting-only undertakings apply equally to organic producers.   We therefore reject the EC's 
request to delete this paragraph. 
6.60 The EC requsts that the Panel modify paragra ph 7.200.  We understand the EC to be of the 
view that the text of paragraph 7.200 could be in terpreted as suggesting that the EC does not accept 
that the investigating authority knew of the re lative size of the Norwegian market and of the 
proportion of Norway's exports that went to the EC.  The EC recalls that it does not contest that the investigating authority had knowledge  of these two facts.  However, what it does not accept is that the 
investigating authority knew of the destination of Salmar's production, as alleged by Norway.  
Norway submits that the EC's objection misses the poi nt and that its arguments do not fully reflect the 
Panel's findings.  In order to avoid any doubt, we have added one sente nce to paragraph 7.200 
reaffirming that the EC does not contest that the i nvestigating authority knew of the relative size of 
the Norwegian market and of the proportion of Norway's exports that went to the EC. 
6.61 The EC submits that the Panel's evaluation of the investigating authority's decision not to 
investigate Salmar fails to report and take account of  certain significant elements.  In particular, the 
EC considers that the Panel's assessment does not report that: (i) the FHL presented the investigating 
authority with separate lists of salmon exporters a nd producers, which classified Salmar as a producer; 
(ii) Salmar was absent from the FHL's list of the 15 largest Norwegian exporters; and (iii) Salmar 
failed to reply to the investigating authority's sec ond sampling questionnaire.  The EC suggests that all 
                                                     
 
189 EC, FWS, para. 77. 
190 EC, FWS, para. 83. WT/DS337/R 
Page 98  
 
  of these facts should be taken into account in ev aluating whether the investigating authority's 
exclusion of Salmar was justified.  Norway does not object to the EC's suggestion, but requests the 
Panel to take into account its own submissions on the relevance of the facts identified by the EC, 
should it consider modification of the Interim Report to be appropriate. 
6.62 Although we consider that the facts the EC refers  to were already noted in the Interim Report, 
we have taken the parties' comments into account and decided to more directly address the facts 
identified by the EC in the body of our findings rela ting to Salmar.  We have therefore made changes 
to paragraphs 7.196, 7.201 (now 7.201 and 7. 203) and have inserted a new paragraph 7.202. 
6.63 The EC asks the Panel to review paragraph 7. 202, stating that it does not understand the 
relevance of the discussion contained in this paragr aph to the question of whether Salmar's exclusion 
from the investigation could be justified.  No rway disagrees with the EC, observing the evidence 
discussed therein is highly relevant to the Panel's ta sk.  We agree with Norway that the explanation 
provided by the investigating authority, in the written communication to the FHL, for not having 
selected Salmar for investigation is evidence that is relevant to the Pa nel's assessment of the merits of 
Norway's claims.  We believe the text of this para graph articulates the Panel's views on this issue with 
sufficient clarity, and have therefore left it unchanged. 
6.64 The EC asks the Panel to amend the text of paragraph 7.203 because it considers that the 
language used in the Interim Report might be interp reted as expressing a view about whether or not 
Salmar should be selected for investigation in any fu ture investigation or re -investigation, regardless 
of factual circumstances.  Norway opposes the EC's  requested change because it considers it to be 
both unnecessary and ambiguous.  We agree with No rway that the EC's proposed change is 
unnecessary.  We believe the text of this paragra ph articulates the Panel's views on this issue with 
sufficient clarity, and have therefore left it unchanged. 
6.65 The EC requests the Panel to re-consider the r easoning set out in paragraphs 7.497 and 7.499 
relating to the question of whether [[XXX]] reporte d its cost of production on the basis of project 
accounting.  The EC considers that the Panel's reas oning suggests that it was of the view that because 
[[XXX]] stated that the cost extracts from its project  accounting system used to calculate the cost of 
production reported to the investig ating authority covered two years, and not three, it necessarily 
follows that [[XXX]] did not report on a project acc ounting basis.  The EC argues that the fact that 
[[XXX]] reported costs of production over two year s simply reflects the fact that the period of 
investigation straddled two accounting years.  Th erefore, it does not necessar ily follow that [[XXX]] 
did not report on a (three year) project accounting b asis.  Norway states that it is uncertain as to 
whether the EC has interpreted the Panel's reasoning correctly.  It notes that the key characteristic of 
reporting on a project accounting basis is that the cumulative costs incurred during the growth cycle 
of salmon generations harvested in the period of inv estigation is reported.  In calculating such costs, 
the cumulative cost is divided by the total harvested volume.   
6.66 The Panel's assessment of whether [[XXX]] re ported costs of production on the basis of 
project accounting was guided by the EC's own d escription of what this would involve, namely, 
reporting of the "weighted average cost of productio n for all salmon generations that were harvested 
during the investigation period".
191  The Panel's reasoning was intended to reflect this understanding 
of what it means to report costs of production on the basis of project accounting.  In order to avoid any confusion, we have theref ore amended paragraphs 7.497 (n ow 7.500), 7.499 (now 7.502) and 
7.501 (now 7.504) to more accurately  reflect the Panel's reasoning.   
6.67 The EC also asks the Panel to replace the wo rd "incurred" with the word "booked" in 
paragraph 7.499.  The EC argues that the word " booked" would more accurately reflect the term used 
                                                     
 
191 See, para. 7.493 (now 7.496).  WT/DS337/R 
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  in the diagram that is discussed in this paragraph.   Norway considers that the words "incurred" and 
"booked" are synonymous in this context, but expresses a preference for the use of the word 
"incurred". It is true that the word "incurred" is not used in the diagram that is the subject of the 
discussion in paragraph 7.499.  We have therefore made a change to paragr aph 7.499 (now 7.502) to 
reflect the precise content of the relevant diagram.  However, in doing so, we note that this change is 
not intended to impact or modify the findings set out in this section of the report, as we consider the 
words "incurred" and "booked" to be synonymous in this context. 
6.68 The EC requests that the Panel delete the fina l sentence of paragraph 7.503 because, in its 
view, it raises an example that is irrelevant to the factual circumstances that were before the 
investigating authority.  In particular, while the example describes a situation requiring the allocation 
of NRCs associated with acquiring fixed assets,  the EC contends that the NRCs before the 
investigating authority were of a different nature.  Norway did not comment on the EC's request.  As 
we understand it, the EC is concerned that the last sentence of paragraph 7.503 could be interpreted as 
indicating that the investigating authority treated NR Cs associated with the acquisition of fixed assets 
in the manner described in the example during the inv estigation.  We recognize that in the absence of 
a complete description of each and every NRC that is the subject of Norway's claim, the last sentence 
of this paragraph could be per ceived to have the meaning the EC  is concerned about.  We have 
therefore removed the example from paragraph 7.503 (now 7.506). 
6.69 The EC requests that the Panel rephrase the firs t sentence of paragraph 7.633 to clarify that 
the second error identified in that sentence, tr eating all imports from unexamined producers and 
exporters as dumped, was a consequence of the first e rror identified, treatment of imports attributable 
to a company for which a de minimis  margin was calculated as dumped.  The EC also requests a 
corresponding change in paragraph 8.1(xv).  Norway objects to this request, considering that the Panel 
separately relied on the error it had found in the selection of the sample of Norwegian producers and 
exporters in making the second finding. 
6.70 We did consider the fact that the EC erred in selecting the sample of Norwegian producers 
and exporters in finding that the EC erred in  treating all imports from unexamined producers and 
exporters as dumped.  Therefore, that finding w as not solely as a consequence of our findings 
regarding Nordlaks, and the text as currently drafted reflects this.  We therefore reject the EC's request 
regarding paragraph 7.633 and the correspondi ng request regarding paragraph 8.1(xv). 
6.71 The EC requests that the Panel rephrase paragr aph 7.643 (first sentence) to reflect the 
different legal bases for Norway's claims regarding price undercutting (Articles 3.1, 3.2, and 3.5) and 
price trends (Articles 3.1, 3.4, and 3.5).  Norway does not object. 
6.72 Paragraph 7.643 does contain incorrect referenc es to the specific Articles alleged and found to 
be violated with respect to the EC's analysis of  the volume of dumped imports, price undercutting, and 
price trends.  We have redrafted paragraph 7.643 (now 7.646) to correct these and to set forth a more 
detailed summary of the Panel's findings, rather th an the original more summary text, and made 
conforming changes in paragraphs 7.633 (now 7.6 36) and 7.642 (now 7.645) to correctly reflect 
Norway's claims. 
6.73 The EC asks the Panel to amend paragraphs 7. 740 and 7.754 by removing language that it 
considers could be interpreted to suggest that the Panel believes that duty collection and assessment 
proceedings can be described as the duty collection and assessment phase  of an anti-dumping 
proceeding.  Norway did not comment on the EC's request.  The language used in the two paragraphs 
was not intended to express a view on the matter raised by the EC.  To avoid any possible confusion, 
we have therefore modified the text of pa ragraphs 7.740 (now 7.745) and 7.754 (now 7.759) 
accordingly. WT/DS337/R 
Page 100  
 
  6.74 The EC requests that the Panel amend footnote 919 to delete the reference to paragraph 7.643.  
Norway does have strong views on this request, bu t considers it would be more appropriate to 
maintain the reference. 
6.75 As redrafted, pursuant to our decision in pa ragraph 6.72 above, para graph 7.643 (now 7.646) 
summarizes the Panel's findings on Norway's claims  regarding the volume of dumped imports, price 
undercutting, and price trends.  Therefore, the refere nce to that paragraph in footnote 919 (now 960) is 
correct, and we therefore have made no change.   
6.76 The EC requests that the Panel separate paragr aph 8.1(xv) into three separate paragraphs 
setting out the Panel's conclusions on Norway's clai ms regarding the volume of dumped imports, price 
undercutting, and price trends, as well as incorporati ng other changes requested separately.  Norway 
does not object. 
6.77 There are no strict rules concerning the form of the Panel's conclusions, and therefore we 
have modified paragraph 8.1(xv) to  separately reflect our findings on Norway's claims regarding the 
volume of dumped imports, price undercutting, and pr ice trends in paragraphs 8.1(xvi), (xvii) and 
(xviii), but without the additional change we have rejected in paragraph 6.75 above. 
VII. FINDINGS 
A. I
NTRODUCTION  
7.1 This dispute concerns the anti-dumping i nvestigation of, and definitive anti-dumping 
measures imposed on, imports of farmed salmon fro m Norway.  The investigation was initiated on 
23 October 2004 on the basis of a complaint lodged by the EU Salmon Producers' Group.  The investigation of dumping and injury covered th e period from 1 October 2003 to 30 September 2004, 
and data for the period from 1 January 2001 to 30 September 2004 was analyzed with respect to 
trends relevant for the injury assessment.  The pr oduct concerned was defined as "farmed (other than 
wild) salmon, whether or not filleted, fresh, chille d or frozen.  The definition excludes other similar 
farmed fish products such as large (salmon) tr out, biomass (live salmon) as well as wild salmon and 
further processed types such as smoked salmon".
192   
7.2 The Commission, the investigating authority in the EC, made preliminary determinations of 
dumping for ten Norwegian exporting producers and mate rial injury to the EC industry producing the 
like product caused by dumped imports.  Provisional anti-dumping measures, in the form of ad 
valorem  duties based on a non-injurious price were imposed on imports of farmed salmon from 
Norway on 22 April 2005.193   These measures were modified by an amendment dated 30 June 2005, 
which replaced the ad valorem  duties with minimum import prices ("MIPs") for five presentations of 
farmed salmon.194  Following affirmative determinations of dumping, injury and causal link, 
definitive anti-dumping measures were imposed on 17  January 2006.  The definitive measures took 
the form of a system of MIPs and fixed duties, both calculated based on non-injurious prices, for six 
presentations of farmed salmon.195   
7.3 On 17 March 2006, Norway requested consultati ons with the European Communities ("EC") 
with respect to the Definitive Regulation.  Norw ay requested the establishment of this panel on 
                                                      
192 Provisional Regulation, para. 10. 
193 Id. at para. 139 and Article 1. 
194 Commission Regulation (EC) No. 1010/2005 of 1 July 2005 (Official Journal, L170/32, published 
1 July 2005), amending Provisional Regulation, Exhibit NOR-10, para. 7 and Article 1. 
195 Definitive Regulation, paras. 128, 129, 136, and Article 1.  WT/DS337/R 
 Page 101 
 
 
  29 May 2006.196  Norway challenges the WTO-consistency of  several aspects of the investigation and 
Definitive Regulation, in particular: (i) the identifi cation of the product under consideration; (ii) the 
definition of the domestic industry; (iii) the calculation of the margin of dumping (including certain adjustments made to the cost of production when  calculating constructed normal value); (iv) the 
findings of injury and causation; (v) the remedi es imposed on dumped imports; and (vi) certain 
procedural aspects of the investigation.   
B. R
ELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW , TREATY INTERPRETATION AND 
BURDEN OF PROOF  
1. Standard of Review 
7.4 Article 11 of the DSU provides the standard of re view for WTO panels in general.  Article 11 
requires panels to make an objective assessment of  both the factual and the legal aspects of the case. 
7.5 Article 17.6 of the AD Agreement sets forth a special standard of review that applies 
specifically to panel proceedings dealing with th e application of this agreement.  Article 17.6 
provides: 
"(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and whether their evaluation of 
those facts was unbiased and objective.  If the establishment of the facts was proper 
and the evaluation was unbiased and objectiv e, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned; 
(ii) the panel shall interpret the rele vant provisions of the Agreement in 
accordance with customary rules of interpreta tion of public international law.  Where 
the panel finds that a relevant provision of  the Agreement admits of more than one 
permissible interpretation, the panel sha ll find the authorities' measure to be in 
conformity with the Agreement if it rests upon one of those permissible interpretations." 
7.6 Taken together, Article 11 of the DSU and Ar ticle 17.6 of the AD Agreement establish the 
standard of review we must apply with respect to  both the factual and the legal aspects of the present 
dispute.  Thus, we may find the challenged anti-du mping determination to be  consistent with the 
WTO Agreements if we find that the EC investig ating authorities established the facts properly and 
evaluated them in an unbiased and objective manner, and that the determinations in question were 
based on a permissible interpretation of the releva nt treaty provisions.  In our assessment of the 
matter, we must limit our review to the "facts made  available in conformity with appropriate domestic 
procedures to the authorities of the importing Memb er", in accordance with Article 17.5(ii) of the 
AD Agreement.  We may not undertake a de novo  review of the evidence before the investigating 
authority during the proceeding, and may not substitute our ju dgement for that of the EC investigating 
authorities even though we might have made a di fferent determination we re we examining the 
evidence that was before the inves tigating authority ourselves.   
7.7 Recently, the Appellate Body clarified a panel's st andard of review of the facts pursuant to the 
above provisions in the following terms: 
"It is well established that a panel must neither conduct a de novo review nor simply 
defer to the conclusions of the national au thority.  A panel's examination of those 
conclusions must be critical and searching, and be based on the information contained 
                                                     
 
196 WT/DS337/2. WT/DS337/R 
Page 102  
 
  in the record and the explanations given by  the authority in its published report.  A 
panel must examine whether, in the li ght of the evidence on the record, the 
conclusions reached by the investigating au thority are reasoned and adequate.  What 
is 'adequate' will inevitably depend on the f acts and circumstances of the case and the 
particular claims made, but several general lines of inquiry are likely to be relevant.  
The panel's scrutiny should test whether the reasoning of the author ity is coherent and 
internally consistent.  The panel must unde rtake an in-depth examination of whether 
the explanations given disclose how the inv estigating authority treated the facts and 
evidence in the record and whether there was positive ev idence before it to support 
the inferences made and conclusions reached  by it.  The panel must examine whether 
the explanations provided demonstrate that  the investigating authority took proper 
account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and in terpretations of the record evidence.  A 
panel must be open to the possibility that th e explanations given by the authority are 
not reasoned or adequate in the light of ot her plausible alternative explanations, and 
must take care not to assume itself the role of initial trier of facts, nor to be passive by 
'simply accept[ing]  the conclusions of the competent authorities.'"
197 (Footnote 
omitted.) 
2. Relevant Principles of Treaty Interpretation 
7.8 With respect to the question of legal interpre tation, Article 3.2 of the DSU provides that 
Members recognise that the dispute settlement system serves to clarify the provisions of the covered 
agreements "in accordance with customary rules of  interpretation of publi c international law".  
Article 31.1 of the Vienna Convention on th e Law of Treaties ('Vienna Convention')",198 which is 
generally accepted as such a customary rule, provides: 
"A treaty shall be interpreted in good faith  in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its object and 
purpose." 
7.9 There is a considerable body of WTO case la w dealing with the application of these 
provisions on treaty interpretation in  dispute settlement in the WTO.  It is clear that interpretation 
must be based above all on the text of the treaty,199 but that the context of the treaty also plays a role.  
It is also well-established that these principles of  interpretation "neither require nor condone the 
imputation into a treaty of words that are not there or the importation into a treaty of concepts that 
were not intended."200  Furthermore, panels "must be guided by the rules of treaty interpretation set 
out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the 
WTO Agreement ."201  
7.10 In the context of WTO disputes under the AD Ag reement, the Appellate Body has made it 
clear that: 
                                                      
197 Appellate Body Report, United States – Investigation of the International Trade Commission in 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada  ("US – Softwood Lumber VI 
(Article 21.5 – Canada)  "), WT/DS277/AB/RW, adopted 9 May 2006, para. 93. 
198 (1969) 8 International Legal Materials 679. 
199 Appellate Body Report, Japan – Taxes on Alcoholic Beverages ("Japan – Alcoholic Beverages II "), 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, p. 11. 
200 Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical 
Products ("India – Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9, para. 45. 
201 Appellate Body Report, India – Patents (US) , para. 46.  WT/DS337/R 
 Page 103 
 
 
  "The  first  sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states 
that  panels  'shall' interpret the provisions of the  Anti-Dumping Agreement   'in 
accordance with customary rul es of interpretation of public international law.'  Such 
customary rules are embodied in Articles 31 and 32 of the Vienna  Convention on the 
Law of Treaties   ('Vienna Convention ').  Clearly, this aspect of Article 17.6(ii) 
involves no 'conflict' with the DSU but, rather, confirms that the usual rules of treaty 
interpretation under the DSU also apply to the  Anti-Dumping Agreement . … 
The  second   sentence of Article 17.6(ii) … presupposes   that application of the rules 
of treaty interpretation in Articles 31 and 32 of the  Vienna Convention   could give 
rise to, at least, two interpretations of some provisions of the  Anti-Dumping 
Agreement ,  which, under that Convention, would both be ' permissible   
interpretations'.  In that event, a measure is deemed to be in conformity with the  Anti-
Dumping Agreement   'if it rests upon one of those permissible interpretations.'"202 
7.11 Thus, it is clear that under the AD Agreement,  we are to follow the same rules of treaty 
interpretation as a panel in any other dispute.  The di fference is that if, after following those rules, we 
find more than one permissible interpretation of a provision of the AD Agreement, we may uphold a 
measure that rests on one of those interpretations.      
3. Burden of Proof 
7.12 While the parties have not raised burden of pr oof as an issue, we have kept in mind the 
general principles applicable to burden of proof in  WTO dispute settlement, which require that a party 
claiming a violation of a provision of a WTO Agreement by another Member must assert and prove 
its claim.203  In this dispute, Norway, which has cha llenged the consistency of the EC's anti-dumping 
measure, thus bears the burden of demonstrating that the EC's determination is not consistent with the 
relevant provisions of the releva nt Agreements.  It is generally for each party asserting a fact to 
provide proof thereof.204  Therefore, it is also for the EC to provide evidence for the facts which it 
asserts. We have also kept in mind that a prima facie  case is one which, in the absence of effective 
refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party 
presenting the prima facie  case.   
C. ALLEGED INCONSISTENCY OF THE EC 'S DETERMINATION OF THE "PRODUCT UNDER 
CONSIDERATION " WITH ARTICLES  2.1 AND 2.6 OF THE AD  AGREEMENT  
1. Arguments of the Parties  
(a) Norway 
7.13 Norway claims that the EC's determinati on of the "product under consideration" was 
inconsistent with Articles 2.1 and 2.6 of the AD Agreement, and that as a consequence, the EC 
initiated the investigation, and de termined the existence of dumping and injury, on the basis of a 
flawed determination of the pr oduct under consideration, resulting in consequent violations of 
Articles 2.1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 5.1 and 5.4 of the AD Agreement. 
                                                      
202 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel 
Products from Japan ("US – Hot-Rolled Steel") , WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 
4697, paras. 57 & 59. 
203 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and 
Blouses from India ("US – Wool  Shirts and Blouses") , WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, 
DSR 1997:I, 323, p. 337. 
204 US – Wool  Shirts and Blouses , p. 337. WT/DS337/R 
Page 104  
 
  7.14 Norway argues that the text of Article VI:1 of the GATT 1994 indicates that dumping occurs 
when the export price of a product is lower than the normal value of the "very same product".  Norway notes that Article 2.1 of the AD Agr eement likewise defines dumping in terms of a 
comparison between the prices of the export product ( i.e., the "product under consideration") and the 
"like product".  Norway recalls that Article 2.6 defines the "like product" as a product that is 
"identical" or has "characteristics closely resembli ng" those of the "product under consideration".  
Accordingly, Norway argues that the pricing co mparison necessary to establish the existence of 
dumping must be made between "identical" products or products that have "closely resembling" characteristics. 
7.15 Norway contends that this obligation implies that where an authority wishes to group multiple 
products together in a single investigation, any gi ven product forming part of "like product" must be 
"like" each and every product forming part of the pr oduct under consideration.  In this regard, Norway 
argues that the assessment of the conditions of  whether likeness exists between the product under 
consideration and the allegedly "like product" must  be made for each product "as a whole", and not 
just for individual sub-product categories.
  Norway asserts that this view is in consonance with that 
expressed by the Appellate Body in US – Softwood Lumber V, which Norway  contends confirms that 
a product must always be treated "as a whole" throughout an anti-dumping investigation.205 
7.16 Norway has diagrammed what it describes as the "vectors" of likeness that must be respected 
under Article 2.6.206 
 
 
 
    
 
     
 
  Norway contends that because the assessment of th e "like product" under Article 2.6 must be made in 
respect of the product under consideration "as a whole", all sub-product categories making up the 
product under consideration must be matched with (i.e., be "like") all sub-product categories making 
up the "like product".  In the above example provided by Norway, the product under consideration and the "like product" are each made up of the same  two categories of products – whole/HOG fish and 
fish fillets.  According to Norway, the oblig ation to make an assessment of "likeness" under 
Article 2.6 in terms of the product "as a whole" me ans that the whole/HOG fish forming part of the 
"like product" must be "like" both the whole/HOG fish and the fish fillets making up the product 
under consideration.  Similarly, fish fillets forming part of the "like product" must be "like" both the 
whole/HOG fish and the fish fillets making up the product under consideration.   
 
                                                     
 
205 Norway, First Written Submission, (hereina fter "Norway, FWS" ), paras. 88-89. 
206 Norway, FWS, para. 89. Whole/HOG fish Whole/HOG fish
Filleted Products Filleted Products Like 
ProductProduct under 
consideration
SINGLE  
DETERMINATION WT/DS337/R 
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  7.17 Finally, Norway argues that "a logical consequence" of the "horizontal" and "diagonal" 
"vectors" of likeness is that each of the sub- product categories making up the product under 
consideration (and the "like product") must also be  "like" each other – i.e., the whole/HOG fish 
forming part of the product under consideration must be "like" the fish fillets that are also part of the 
product under consideration.  
7.18 Norway presents a number of contextual arguments  in support of its pos ition.  First, Norway 
argues that the first method of comparison set out in  Article 2.4.2 (weighted average normal value to  
weighted average export price) confirms that a ll products under investigation must be alike.207  
Norway contends that the language in Article 2. 4.2 envisages "a" single comparison between a single 
normal value and a single export price for the product as a whole, implying that investigating 
authorities are not entitled to define the product under  consideration to include different products.  
Norway recognises that the product under considera tion and the "like product" may be sub-divided 
into different models for the purpose of comparison,  however, it argues that ev en in this event, the 
different models making up the product under consider ation must all be sub-categories of a group of 
products that meet the definition of likeness.  No rway cites the following passage of the Appellate 
Body Report in EC – Bed Linen  in support of this contention: 
"Having defined the product at issue and the 'like product' on the Community market 
as it did, the European Communities could not, at a subsequent stage of the proceeding, take the position that some typ es or models of that product had physical 
characteristics that were so different from each other that these types or models were not 'comparable'.  All types or models falli ng within the scope of a 'like' product must 
necessarily be 'comparable', and export tran sactions involving those types or models 
must therefore be considered 'comparable export transactions' within the meaning of Article 2.4.2."
208 
7.19 The second contextual argument made by Norway  relates to the obligation on investigating 
authorities under Article 3.6 of the AD Agreement to  focus their injury an alysis, to the extent 
possible, on the production resources directly engaged in the making of the "like product".209  Norway 
contends that this obligation implies that different products made in different industries using different 
production processes cannot be combined into a si ngle product for the purpose of determining 
injury.210  According to Norway, the result of any such combination would be a distorted injury 
determination because it would amount to an investiga tion into the health of two or more different 
industries - a result contrary to the object and pur pose of the AD Agreement, which Norway submits 
is to permit the imposition of duties solely when they are justified to afford protection to a domestic 
industry. 
7.20 Finally, Norway submits that its interpreta tion of the AD Agreement in this respect is 
consistent with the practice of the United States ' investigating authorities (USDOC and USITC).  
7.21 Norway notes that the EC combined into a si ngle product under consideration whole salmon, 
HOG salmon and processed filleted salmon products.  Norway argues that neither the facts on the 
record of the investigation, nor the EC's ow n explanation for this choice of product under 
                                                      
207 Norway, FWS, paras. 99-102. 
208 Appellate Body Report,  European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India ("EC – Bed Linen") , WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049, 
para. 58. 
209 Norway, FWS, paras. 103-117. 
210 Norway also cites two GATT 1947 dispute settlement cases and one Appellate Body Report to 
support its view that differences in production processes will typically imply different products. WT/DS337/R 
Page 106  
 
  consideration, supports the conc lusion that all of these different product types are "like products" 
within the meaning of Article 2.6. 
7.22 Although Norway agrees with the criteria adopted  by the EC to determine the product under 
consideration, it argues that the EC wholly failed to  demonstrate that the facts in the record supported 
its conclusion in respect of the criteria.  Norw ay contends that the "EC's entire three sentence 
'explanation' of the product determination does not refer to a single fact in support of that 
determination".
211  Moreover, according to Norway, the f acts on the record of the investigation 
showed that there were important differences in th e physical characteristics, substitutability, end-uses 
and tariff classifications of the salmon products at issue, as well as the processes used in their 
production.  Norway devotes several pages of its first written submission to explaining exactly what 
these facts were and how they were not pr operly taken into account by the EC.   
(b) European Communities 
7.23 The EC begins its argument by observing that Article 2.6 of the Anti-Dumping Agreement 
does not, in itself, impose any obligation on the EC or any other WTO Member. It merely contains a 
definition. Therefore, the EC considers that it ca nnot be found to have acted inconsistently with 
Article 2.6, since it contains no obligation at all.212   
7.24 The EC goes on to argue that Article 2.1 contai ns no obligations regarding the selection of the 
product under consideration (which the EC refers to  as the "product concerned").  This provision, in 
the EC's view, establishes obligations concerning the determination of dumping and calculation of 
dumping margins, during a later stage of the proceed ing, and does not relate to question of selection 
of the product under consideration, which happens at the very beginning, at all.213   Moreover, the EC 
argues that even reading Articles 2.1 and 2.6 together, no obligation concerning the selection of the 
product under consideration exists.  Thus, the EC considers that No rway's claims under Articles 2.1 
and 2.6, as well as consequential claims under Articles 3. 1, 3.2, 3.4, 3.5, and 3.5, are without merit. 
7.25 The EC argues that there is distinction between  the product under consideration, and the like 
product as defined in Article 2.6 of the AD Agreem ent.  The product under consideration is the 
product exported, while the like product is either the good produced in the country of export, in this 
case Norway, (in the context of the dumping calcu lation); or the good produced in the country of 
import, in this case the EC (in the context of th e injury determination). The EC notes that this 
distinction is apparent from Article VI:1 of the GA TT 1994, which refers three times in its first two 
sentences to the product; and then, in sub-paragraphs  (a) and (b) to the term "like product", and is 
maintained in the AD Agreement.   
7.26 The EC considers non-controversial the view th at the concept of the product concerned may 
be an abstract category  that can encompass hundreds or thousands of individual instances of export of 
a good.214  The EC considers that Norway's view, that each instance of the goods within the category 
of the exported "product concerned" must be "ident ical, i.e. alike in all r espects" within the meaning 
of Article 2.6 of the Anti-Dumping Agreement, is legally erroneous.  The EC argues that Norway's 
argument imports concepts concerning the lik e product into the concept of product under 
consideration without legal basis, as Article 2.6 does not concern the product under consideration, 
citing in support the Panel Report in Korea – Paper :  
                                                      
211 Norway, FWS, para. 163. 
212 European Communities, First Written Submission,  (hereinafter "EC, FWS"), paras. 17-18. 
213 EC, FWS, paras. 19-20. 
214 EC, FWS, para. 29.  WT/DS337/R 
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  "Indonesia argues that the KTC had to determine that PPC and WF were like 
products.  We note that these two, together, constituted "the product under consideration" in the investigation at issue.  We see no basis in Article 2.6 for the proposition that the like product definition also applies to the definition of "the product under consideration".  We are aware of no provision in Article 2.6, or any 
other Article in the Agreement, that c ontains a definition of "the product under 
consideration" itself.
242 
____________________  
242 In this regard, we note the finding by the panel in Softwood Lumber V , Ibid." 215 
7.27 Thus, in the EC's view, Norway's arguments ar e not based on the text of the AD Agreement, 
but are purely contextual, and even so, are without basis.  The EC argues that definitions, such as 
Article 2.6, have special signifi cance in the AD Agreement, and that  Members took care to define like 
product, but did not take the trouble to define produc t under consideration.  Thus, the use of the term 
"like product" must be understood as defined in Ar ticle 2.6 in each instance where it is used. The 
concept of "product under consideration" is referre d to in several parts of the AD Agreement, but 
always using some terminology other than "like pro duct" – for instance, Article 2.1, first sentence, 
uses the different term "a product" to refer to the pr oduct concerned, which is to be compared with the 
"like product", referred to in the very same sentenc e.  To the EC, this makes it clear that the two 
concepts are different, and that Norway errs in  importing notions of "like product" as defined in 
Article 2.6 into the reference in Article 2.1 to "a product".   
7.28 For the EC, Article 2.6 is simply irrelevant to the question of what is the product under 
consideration.  Moreover, the EC asserts that Norw ay's position ignores that Article 2.6 provides for a 
comparison of products, in assessing likeness.  Howe ver, at the stage of a proceeding where the 
product under consideration is at issue, there has not yet been a product identified which can serve as 
a point of comparison.  Thus, for the EC, it is clear that Article 2.6 does not speak to the selection of the product under consideration, but to a later st age of the process at which a "like product" is 
identified by comparison to a previously selected product under consideration. 
7.29 The EC also maintains that Article 2.4 of the AD Agreement undermines Norway's position.  
The EC points out that Article 2.4 relates to the question of comparison of export price and normal value, and provides that due allowance must be made  for difference in physical characteristics.  For 
the EC, this demonstrates that there is no obliga tion for identity of products either within the product 
under consideration, or between the product under c onsideration and the like product, since if there 
were such an obligation, there would never be a need for adjustments for differences in physical 
characteristics.  Such an interpretation would re nder this element of Article 2.4 meaningless and 
redundant, and is therefore not proper.
216  Moreover, the EC notes that even Norway admits that there 
may be multiple models or sub-categories of th e product under consideration in the context of 
comparison of normal value and export price,217 which undermines Norway's arguments concerning 
an obligation of identity within the product under consideration.218   
                                                      
215 Panel Report,  Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia ("Korea – 
Certain Paper") , WT/DS312/R, adopted 28 November 2005, para. 7.221 
216 EC, FWS, para. 32. 
217 Referring to Norway, FWS, para. 100.   
218 The EC also points to Article 6.10, which refers to a large number of  "types of products" covered 
by a single investigation as a justification for use of samp ling, as context in support of its position.  EC, FWS, 
para. 33. WT/DS337/R 
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  7.30 The EC considers that while it is true that anyt hing that is part of the product concerned must 
be "comparable", after making due adjustments for differences in physical characteristics affecting 
price comparability if necessary, and that anything that is defined as part of a "like product", as that term is used in Article 2.6 of the Anti-Dumping Ag reement, must necessarily be comparable, that says 
nothing about the selection of the product under cons ideration itself.  For the EC, it simply does not 
follow from these obligations to co mpare that each instance of goods within the category of the 
product concerned must necessarily be "identical, i.e.  alike in all respects" within the meaning of 
Article 2.6.  
7.31 The EC also asserts that there is nothing in  the object and purpose of the Anti-Dumping 
Agreement, which has no preamble, which can override  the textual and contextual considerations it 
relies on in support of its position.  Indeed, the EC considers that, insofar as the Anti-Dumping 
Agreement addresses unfair international price discr imination, the object and purpose of the Anti-
Dumping Agreement would support the view that th e "like product" requirement in Article 2.6 is 
central to ensuring that such discrimination has actually been identified: the same product category 
being priced differently in the exporting and im porting countries. However, for the EC, this says 
nothing about how the product under consideration itself should be se lected, and in the EC's view, 
there is no reason why the AD Agreement should establish restraints in that regard.   
7.32 For the EC, the AD Agreement foresees consider able latitude in the selection of the product 
under consideration, allowing the investigatin g authorities to focus on international price 
discrimination, without being required to initiate  multiple investigations in cases where multiple 
models or sub-products are allege dly being dumped.  In this regard, the EC notes that there is no 
provision of the AD Agreement which imposes an obligation to "determine", "evaluate", 
"demonstrate", "establish", "find", etc. with respect  to the product under consideration.  The absence 
of such terms with respect to the selection of th e product under consideration cannot be construed as 
accidental, but must be taken to indicate an inte ntion on the part of Members that investigating 
authorities should have a particular la titude in that respect.  The EC also  points to Article 5.2(ii) of the 
AD Agreement, which requires the applicant for an anti-dumping investigation to describe the 
allegedly dumped product, but does not impose a ny obligations on the investigating authorities 
regarding the selection of the pr oduct under consideration.   
7.33 With respect to the facts of this case, the EC argues that it described the product under 
consideration in terms of physical characteristics,  thus excluding trout and live salmon (biomass), 
production processes, thus excluding wild salmon, and focused on the product under consideration 
described as  farmed salmon, presented in a number  of forms, including whole fish, gutted head-on, 
gutted head-off, fresh, chilled or frozen.  The EC points out that Norway has no objections to the 
exclusion of trout and biomass, or the inclusion in the product under consideration of whole fish and 
"gutted head-on" fish.  The EC also notes that No rway does not object to the inclusion of farmed 
salmon in other forms, including "gutted head-off", and the inclusion of th ese in fresh, chilled, or 
frozen states.  The EC thus maintain s that there are at least nine sub-categories that Norway considers 
are properly within the product under consideration.   Norway does, however, object to the inclusion 
of fillets (skin on or off, fresh, chilled, or frozen, of any weight) in the produc t under consideration, on 
the basis that these categories constitute a single product which must be considered separately from 
whole fish categories, thus obliging the EC to in itiate two separate investig ations.  The EC asserts 
that, according to Norway, in one of  these, the EC was obliged to select as the product concerned the 
first nine (plus) sub-categories of whole fish descr ibed above, and in the second the EC was obliged to 
select as the product concerned the second nine sub- categories of fillets described above.  The EC 
maintains that Norway has failed to demonstrate that the Anti-Dumping Agreement imposes any such 
obligation on the EC. Article 2.6 is irrelevant  to the selection of the product concerned; and 
Article 2.1 does not impose any obligations on the in vestigating authority concerning the selection of 
the product concerned.  This is not a case in wh ich different goods or products (perhaps such as 
salmon and trout) have been grouped together.  No r is it a case in which, out of a large number of  WT/DS337/R 
 Page 109 
 
 
  contiguous models or types of a product, a few non-contiguous models or types have been selected as 
together constituting the product concerned.  Rather , the product concerned has been selected in a 
straightforward, simple and non-contentious manner:  farmed salmon, however presented.  
7.34 Finally, the EC argues that even if the Panel we re to consider that there must be internal 
likeness in the product under consideration, that cr iterion would be met in this case, as the product 
concerned is not salmon "fish", but "farmed salmon" , essentially, the flesh of the fish, in whatever 
form it is presented for export, whether or not it is  cut up into small or large pieces, and whether or 
not it has attached to it skin, head, tail, fins, bone or guts.219   
7.35 The EC points out that there were poten tially hundreds of different "models" or 
"presentations" of farmed salmon, and that the re levant question is where the parameters of the 
product under consideration can reas onably be drawn.  The investigating authority in this case took 
the view that the transformation from a head-off gutted fish to large skin-on fill ets was not so great as 
to render separate anti-dumping proceedings essential,  while further processing, such as smoking, was 
a different matter.  For the EC, while opinions may differ as to this decision, Norway has failed to 
demonstrate that it was inconsistent w ith Article 2.1 of the AD Agreement.  
2. Arguments of the Third Parties 
(a) Korea 
7.36 Korea shares Norway's views concerning the importance of the determination of product 
under consideration" in an anti-dumping investigatio n, including Norway's position that an erroneous 
"product under consideration" de termination will entail violation of various provisions of the 
AD Agreement, inter alia , Articles 2.1, 2.6, 3.1, 3.2, 3.4, 3.5, 5.1, and 5.4.  Korea argues that 
Articles 2.1 and 2.6 of the AD Agreement establish a standard for product under consideration which 
together require an investigating authority to ensu re that different products considered in an anti-
dumping investigation are all "like" in all relevant respects.   
7.37 In Korea's view, in this case th e EC simply ignored widely different characteristics of various 
salmon products sold in the EC market.  Korea cons iders that the EC failed to explain how and with 
what factual evidence it examined the four crite ria on which it based its selection of product under 
consideration.  Korea believes that the EC determin ation that six separate products constitute a single 
product under consideration cannot be  sustained and constitutes violation of Articles 2.1 and 2.6 of 
the AD Agreement.  Moreover, Korea considers that the determination may have helped the EC find 
an anti-dumping margin in the investigation, but does not reflect the reality in the EC salmon market.  
For instance, whole/HOG fish products are not identical to filleted products; nor do they closely 
resemble filleted products.  In fact, Korea does not be lieve that there is any basis for combining them 
in a single anti-dumping investigation.  If the EC had wanted to conduct anti-dumping investigations 
into these products, it should have conducted two separate investigations, as Korea asserts the US 
Department of Commerce has done in similar situations. 
7.38 Korea also notes that the EC's determination in this regard sets up an inconsistency with the 
EC's domestic industry determina tion, by including fillets in th e product under consideration, but 
excluding EC producers of filleted product fro m the determination on domestic industry.  
                                                      
219 EC, FWS, paras. 53-54. WT/DS337/R 
Page 110  
 
  (b)  United States 
7.39  The United States considers that Norway's ar gument concerning product under consideration 
rests upon an incorrect reading of Article 2.6.  In the US view, Norway's argument implies obligations 
that cannot be found in the text of the AD Agreement.   
7.40 The US notes that Article 2.6 contains a definition  of the like product ( i.e., the product to 
which the product under consideration is compared),  not obligations with respect to the product under 
consideration.  Moreover, the US argues that th e general statement in Article 2.1 regarding the 
comparison between the product under considerati on and the like product does not provide guidance 
on how the product under considerat ion is to be defined.  Thus, these provisions leave to the 
investigating authority's discretion how a product under consideration is to be es tablished.  Therefore, 
no inconsistency with either provi sion would arise based on the approach an investigating authority 
selects.   
7.41 The US notes that previous Panels have reached  the same conclusion, citing in this regard US 
– Softwood Lumber V , where the Panel rejected Canada's claim that Article 2.6 requires "that there 
must be 'likeness' within both the product under co nsideration and within the like product," stating 
that: 
"As the definition of 'like product' imp lies a comparison with another product it 
seems clear to us that the starting point can only be the 'other product', being the allegedly dumped product.   Therefore,  once the product under consideration is 
defined, the 'like product' to the product unde r consideration has to be determined on 
the basis of Article 2.6.  However, in our analysis of the AD Agreement, we could not 
find any guidance on the way in which the 'product under consideration' should be 
determined. . . . It is not our role as a pa nel to create obligations which cannot clearly 
be found in the AD Agreement itself."
220   
7.42 The US considers that Norway's reliance on determinations of the US Department of 
Commerce ("Commerce") and the US Internationa l Trade Commission ("USITC") in anti-dumping 
investigations of antifriction bearings and magnesi um to support its argument that an investigating 
authority must establish that products are like or "c losely resembling" one another in order to consider 
them collectively the product under consideration is misplaced.  The US notes that a complaining 
party must demonstrate the existence of an ob ligation in the text of the AD Agreement:  an 
investigating authority's practice with regard to  the examination of product coverage in an 
investigation does not lead to the conclusion that such practice is required  by the AD Agreement.  To 
the extent they are relevant at all, the investig ations cited by Norway simply demonstrate that 
Commerce and the USITC define the "product under consideration" on a case-by-case basis, taking 
into consideration the particular facts available to them, including the product coverage proposed by 
the petitioning domestic parties.  Moreover, the US notes that the US authorities apply US statutes 
and regulations, as well as legal principles devel oped by US domestic courts interpreting these 
statutes and regulations, and thus their determ inations do not support the claim that the 
AD Agreement contains rules for defining the "product under consideration."221 
                                                      
220 Panel Report, United States – Final Dumping Determination on Softwood Lumber from Canada 
("US – Softwood Lumber V "), WT/DS264/R, adopted 31 August 2004, as modified by Appellate Body Report, 
WT/DS264/AB/R, DSR 2004:V, 1937, paras. 7. 153, 7.156-7.158; the US also points to Korea – Certain Paper , 
also relied upon by the EC. 
221 The United States does not express a view as to whether the EC's explanation adequately addressed 
the facts on the record in th is case.  However, the US asserts that to the extent the EC did not, such action would 
properly be analyzed under AD Agreement Article 12, with due regard for the standard of review set forth in 
Article 17.6(i), but would not support a claim under Article 2.1 and 2.6.  WT/DS337/R 
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  3. Evaluation by the Panel 
7.43 In considering Norway's claims c oncerning product under consideration,222 we begin by 
observing that there is no specific provision in the AD Agreement concerning the selection, description, or determination, of a product under co nsideration.  While Norway relies on Articles 2.1 
and 2.6 in conjunction, it does not  contend that the text of these provisions directly addresses the 
question. Thus, Norway has constructed an argument  in support of its claim that is based largely on 
contextual considerations.  
 
7.44 In essence, Norway's claims unde r Articles 2.1 and 2.6 of the AD Agreement are premised on 
two contentions:  First, that these provisions estab lish an obligation on investigating authorities to 
ensure that where the goods bein g investigated comprise groups or categories of goods, all such 
groups or categories must individually be "like" each other, thereby cons tituting a single homogenous 
"product under consideration";223 and second, that the facts that were before the investigating 
authority during the investigation in dispute show that the "product under consideration" investigated 
by the EC was made up of a broad range of go ods that do not constitute a single homogenous 
"product" because they were not all "like" each other.224 
7.45 According to Norway, the obligation to ensure  that all categories making up the product under 
consideration are "like" each other follows "as a logical consequence" from what it argues is a 
requirement under Articles 2.1 and 2.6 for invest igating authorities to ensure that any product 
category making up the "like product" must be individually "like" each and every separate product category making up the product under consideration.  Thus, a threshold question for us is whether 
Norway's premise, that Articles 2.1 and 2.6 require all product categories making up the "like 
product" to be each individually "like" each  and every separate product category making up the 
product under consideration, is correct.  If it is not, then Norway's legal argument is incorrect, and we 
need not consider its contentions regarding the facts of this case. 
7.46 Article 2.1 reads: 
"For the purpose of this Agreement, a produc t is to be considered as being dumped, 
i.e.  introduced into the commerce of anothe r country at less than its normal value, if 
the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of  trade, for the like product when destined 
for consumption in the exporting country." 
7.47 Beyond stating that the language of Article 2. 1 reveals that a determination of dumping can 
only be made through a comparison of "the prices of an exported product – referred to as the 'product 
under consideration' – and a 'like product'"
225, Norway provides no analysis of the text of this 
provision.  Moreover, Norway identifies no explicit ob ligation in the text of Article 2.1 to support its 
claim that the "product under consideration" must  consist of a single, internally homogeneous, 
                                                      
222 The parties use different terminology in describing what is at issue in this claim, but as the EC 
noted, "there is no doubt that conceptu ally what Norway seeks to challenge is ... the overall product scope of the 
proceeding."  European Communities, Second Written Su bmission, (hereinafter "EC, SWS"), para. 19.  We 
express no views on the position expressed by the EC that the term "product under consideration" may, in some 
contexts, refer to some category of product narrower than  the entire category that is subject to the anti-dumping 
proceeding, which the EC refers to as the "product under investigation."  EC, SWS, para. 18.  Article 2.6, which 
is at the core of Norway's arguments, refers to "product  under consideration", and we will use that term in our 
analysis. 
223 Norway, FWS, paras. 45, 88-90. 
224 Norway, FWS, paras. 138-165. 
225 Norway, FWS, para. 85. WT/DS337/R 
Page 112  
 
  product or, alternatively, categories that are each i ndividually "like" each other so as to constitute a 
single homogenous product.
226   
7.48 We agree that Article 2.1 refers to "a product"  as being dumped, but cannot agree that there is 
any obligation concerning the scope of that product in that provision.  There is simply nothing in the text of Article 2.1 that provides any guidance what soever as to what the parameters of that product 
should be.  The mere fact that a dumping determinat ion is ultimately made with respect to "a product" 
says nothing about the scope of the relevant produc t.  There is certainly nothing in the text of 
Article 2.1 that can be understood to require the type  of internal consistency posited by Norway.   
7.49 At the same time, other provisions of the AD Ag reement, relevant as context, suggest that 
whatever the parameters of "a product" in Article 2.1 may be, the concept is not so limited as Norway 
argues.  For instance, Article 6.10 provides for limited examination in cases where the number of 
"types of products involved" is so large as to make  it impracticable to determine an individual margin 
of dumping.  Similarly, the Appellate Body has rec ognized that an investigating authority may divide 
a product into groups or categories of comparab le goods for purposes of comparison of normal value 
and export price – the practice of "multiple aver aging".  Neither of these would be necessary if 
Norway's view of the meaning of "a product" in Ar ticle 2.1 were the only permissible interpretation.  
There would be no possibility of investigating more  than one "type of product" as mentioned in 
Article 6.10, and no reason to group comparable  goods for purposes of making price comparisons for 
each group in the process of calculating a single du mping margin for the product as a whole.  These 
considerations lead us to conclude that, while Ar ticle 2.1 establishes that a dumping determination is 
to be made for a single product under considera tion, there is no guidance for determining the 
parameters of that product, and certainly no requi rement of internal homogeneity of that product, in 
that Article. 
7.50 In essence, Norway's claim seems to be grounded in Article 2.6.  Article 2.6 reads: 
"Throughout this Agreement the term "like product" ("produit similaire") shall be 
interpreted to mean a product which is iden tical, i.e. alike in all respects to the 
product under consideration, or in the absence of such a product, another product 
which, although not alike in all respects, has characteristics closely resembling those of the product under consideration." 
7.51 It is clear that the subject of Article 2.6 is not the scope of the product that is the subject of an 
anti-dumping investigation at all.  Rather, the purpose of Article 2.6, apparent  from its plain language, 
is to define the "like product".
227  Norway does not appear to contest  this view.  The plain language of 
Article 2.6 calls for an assessment of  "likeness" between some group of goods228 and "the product 
under consideration" in order to identify a "like pr oduct".  Thus, logically, the scope of the "product 
under consideration" referred to in Article 2.6 mu st already be known before the provisions of 
Article 2.6 come into play.  That is, it must be known what the comparator is, before any assessment 
can be made as to whether another product is "ident ical" to or, in the absence of an identical product, 
"has characteristics closely resembling those of" the imported "product under consideration".   
                                                      
226 See, e.g., Norway, FWS, paras. 45 and 129. 
227 See, Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or 
Pipe Fittings from Brazil  ("EC – Tube or Pipe Fittings "), WT/DS219/R, adopted 18 August 2003, as modified 
by Appellate Body Report, WT/DS219/AB/R, DSR 2003:VII, 2701, para. 7.149; and Panel Report, US – 
Softwood Lumber V , para. 7.148. 
228 In an anti-dumping investigation, the question of "like product"  arises in two contexts – identifying 
domestically produced goods that are "like" the product under consideration, and identifying goods sold in the market of the investigated foreign producers/exporter that are "like" the product under consideration.  The 
identification of "like product" in these two contexts is for different purposes in the investigation.    WT/DS337/R 
 Page 113 
 
 
  7.52 It is important to note that the assessment of whether goods are "like" in the sense of 
Article 2.6 entails first, a consideration of whet her goods are identical.  Only if there are no goods 
which are identical to the product under consider ation does Article 2.6 allow an investigating 
authority to consider whether there is some ot her good which "has characteristics closely resembling 
those of the product under consideration".  Norway argues that in defining the "like product", 
Article 2.6 requires an assessment of "likeness" in  respect of the product under consideration "as a 
whole", and that this requires a comparison of  all product categories comprising the product under 
consideration, with each other and with all pr oduct categories considered as potentially "like 
product".229  Norway provides no analysis of the text of Article 2.6 in support of this contention.   
7.53 In our view, even assuming Article 2.6 requir es an assessment of likeness with respect to the 
product under consideration "as a whole" in determini ng like product, an issue which is not before us 
and which we do not address, this would not mean that an assessment of "likeness" between categories of goods comprising the product under cons ideration is required to delineate the scope of 
the product under consideration.  Merely to say th at the product under consideration must be treated 
"as a whole" in addressing the question of like prod uct does not entail the conclusion that the product 
under consideration must itself be an internally  homogenous product.  We can see nothing in the 
paragraph from the Appellate Body Report in US – Softwood Lumber V , relied upon by Norway, 
which would indicate otherwise.
230  Treating the product under consideration "as a whole" means that 
a single dumping margin is calculated for that pr oduct, however defined, but says nothing about the 
scope of that product. 
7.54 The Appellate Body's decision in US – Softwood Lumber V  indicates that the product under 
consideration must be treated as a whole throughout  an anti-dumping investigation, including at the 
stage of identifying the "like product".  It does not, however, say anything about determining the scope of the product under consideration per se .  Moreover, the Appellate  Body was considering a 
claim under Article 2.4.2 of the AD Agreement c oncerning the permissibility of a methodology for 
calculating dumping margins which entails calculations  in respect of defined sub-categories of the 
product under consideration as an intermediate step in  the determination of the margin of dumping for 
the "product as a whole" ("multiple averaging"
231).  We see no basis for the conclusion that the 
treatment of the product under consideration "as a w hole" means anything more than that where an 
investigating authority splits the product under cons ideration into different sub-categories in the 
                                                      
229 In its Second Written Submission, Norway argued that, in the US-Steel Safeguards  dispute, 
(United States – Definitive Safeguard Measures on Imports of Certain Steel Products ("US – Steel Safeguards" ), 
WT/DS248/R, WT/DS249/R, WT/DS251/R, WT/DS2 52/R, WT/DS253/R, WT/DS254/R, WT/DS258/R, 
WT/DS259/R and Corr.1, adopted 10 December 2 003, as modified by Appellate Body Report, 
WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251 /AB/R, WT/DS252/AB/ R, WT/DS253/AB/R, 
WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, DSR 2003:VIII, 3273), the EC advanced arguments 
similar to those put forward by Norway in this case.  Norway, SWS, paras. 99-105.  While we recognize that the 
EC's position in this case is diametrically opposed to the position it took as complainant in the US - Steel 
Safeguards  case, this says nothing relevant about the issue we must resolve in this case.  We note that the Panel 
and Appellate Body did not rule on this issue in the US - Steel Safeguards  case.   We also recognize that the 
position Korea takes as a third party here is contrary to the position it took as defendant in Korea - Certain 
Paper , but as with the differing position taken by the EC, we accord no weight to this fact.  
230 Norway, FWS, para. 88-89, citing Appellate Body Report, US – Softwood Lumber V , para. 99. 
231 The term "multiple averaging" refers to a me thod of comparing export price and normal value 
whereby an authority divides a product under investigation into product types or models, calculates a weighted 
average normal value and a weighted average export price for each product ty pe or model and then aggregates 
the results of these comparisons to derive an overall margin of dumping.  See, Appellate Body Report, US – 
Softwood Lumber V , para. 80; and Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews  ("US – Zeroing (Japan) "), WT/DS322/R, adopted 23 January 2 007, as modified by Appellate Body 
Report, WT/DS322/AB/R, para. 7.92.    In effect, "multiple averaging" results in the separation of the product under consideration into groups of comparable goods in order to facilitate the process of comparing export price 
and normal value to determine the existence and extent of dumping. WT/DS337/R 
Page 114  
 
  course of its "determination of the volume of dumped  imports, injury determination, causal link 
between dumped imports and injury to domestic i ndustry, and calculation of the margin of dumping", 
it is not entitled to discount any of these sub- categories when performing the ensuing analysis.
232   
7.55 In the context of Article 2.6, this logic c ould be understood to mean that where the product 
under consideration consists  of different sub-categories, the investigating authority, in assessing the 
question of like product, must take into account each and every sub-category, and may not ignore any.  
It cannot, however, be stretched to require th at an investigating authority assess whether each 
category or group of goods within  the product under consideration is  "like" each other category or 
group of goods.   
7.56 Norway's position would, in our view, require th at any difference between sub-categories, or 
even individual goods, within a product under consideration would mean that each must be treated 
individually.  As noted, Article 2.6 first refers to whether goods are identical in assessing likeness.  
Since every article is identical to itself, each such article would have  to be considered separately.  
There would never be occasion to move on to c onsideration of whether another article has 
"characteristics closely resembling" it.  Thus, a pr oduct under consideration could not consist of any 
grouping of non-identical product categories.  This would, in our view, be an absurd result.  Norway 
ignores the concept of "identical" products, arguing th at an investigating authority should determine, 
based on a series of criteria, whether products "rese mble one another physically" in determining an 
appropriate product under consider ation.  Such an assessment of whether products resemble one 
another is only permitted, however, in the absen ce of identity under Article 2.6.  Moreover, the 
possibility of treating non-identical goods as like produc ts to an imported prod uct under consideration 
makes sense, as it is entirely possi ble that, for instance, the produ cts manufactured in the importing 
country are not identical to the imported product under consideration.  In such a case, if the AD Agreement did not allow the possibility of treating another, non-identical product, as the like product, there would be no basis for investigati on and imposition of anti-dumping duties.  But this 
consideration simply does not arise in the cont ext of delineating the product under consideration, 
which is necessarily identical to itself.   
7.57 We note that, on its face, Article 2.6 does not a pply to the question of "determining" a product 
under consideration at all.  Norway asserts that, in order to make a determination of dumping, an 
investigating authority must make a determination with respect to each  of the constituent elements of 
dumping, including, inter alia , product under consideration.  Norway does not argue that there is a 
specific direction to "determine" product under cons ideration in the AD Agreement, but asserts that 
there must be an active step of making a finding.
233  Norway further asserts that specific criteria 
govern this determination, although, ag ain, there is no specific identifi cation of any relevant criteria in 
the AD Agreement.234   While it seems self-evident to us that an investigating authority must, at the 
time it initiates an anti-dumping investigation, make a decision as to the scope of that investigation, 
and give notice of the "product involved"235, we are not persuaded that either Article 2.1 or Article 2.6 
                                                      
232 This view is consistent with th e views of the Appellate Body in US – Hot-Rolled Steel that an 
investigating authority may, in its analysis of injury, look at different sectors of the domestic industry, but it 
must make its determination after an analysis of each of those sectors, so that the decision relates to the entire 
domestic industry, and not just some sector or sectors.  Appellate Body Report, US – Hot-Rolled Steel , 
para. 204. 
233 Norway, Answer to Panel Question 46, para. 2. 
234 Norway, Answer to Panel Question  47, para.7. 
235 Article 12.1.1(i), AD Agreement.  WT/DS337/R 
 Page 115 
 
 
  of the AD Agreement establish a requirement for making an elaborated determination in that 
regard.236 
7.58 Essentially, Norway's argument raises an issue of  policy, suggesting that the absence of limits 
on the scope of the product under consideration migh t result in erroneous dumping determinations by 
investigating authorities.  Norway argues that, if pro ducts that are not "like" are treated as the product 
under consideration in a single investigation, a dum ping determination cannot reveal whether some or 
all of those products are dumped.237  Norway gives, as an example, in  investigation in which cars and 
bicycles are treated as one product under investigation.238  We are not persuaded by Norway's extreme 
example.  Any grouping of products into a singl e product under considerati on will have repercussions 
throughout the investigation, and the broader such a grouping is, the more serious those repercussions 
might be, complicating the investigating authorit y's task of collecting and evaluating relevant 
information and making determinations  consistent with the AD Agreement.  Thus, it seems to us that 
the possibility of an erroneous determination of  dumping based on an overly broad product under 
consideration is remote.  That possibility is certain ly not enough to persuade us to read obligations 
into the AD Agreement for which we can find no basis in the text of the Agreement.    
7.59 Moreover, Norway's position would result in th e absurd situation of requiring fragmentation 
of the product under consideration,  and a consequent fragmentation of  the like product, and ultimately 
the domestic industry, which would render the possi bility of imposing dumping duties consistent with 
the AD Agreement a nullity.  We see nothing in  Article 2.6, which as discussed, defines "like 
product", which would support this view.  In th is regard, it is noteworthy that, while the 
AD Agreement specifically defines "like product" by requiring a comparison between domestically-
produced (or foreign) goods and the imported products  that are the subject of the investigation, there 
is no specific definition of "product under consideration".239   In our view, the very fact that there is a 
definition of like product in the AD Agreement indicat es that Members were well able to define terms 
carefully and precisely when cons idered necessary.  The absence of a definition of product under 
consideration indicates that no effort was undertaken in  that regard.  In our view, this consideration 
supports the conclusion that it would be absurd  to impose the definition of like product from 
Article 2.6 onto the undefined term  product under consideration.  We simply see no basis in the text 
of Articles 2.1 and 2.6 for the obligations Norway seeks to impose on investigating authorities with respect to product under consideration. 
7.60 Norway makes a number of additional contextual  arguments in support of its interpretation of 
Article 2.6, none of which persuade  us to change our views based on the text.  Norway argues that the 
first comparison methodology for calculating the margin of dumping set out in Article 2.4.2 (weighted 
average normal value to weighted average export pr ice) confirms that "the group of products under 
investigation must all be alike".
240  According to Norway, while it is possible under this methodology 
to sub-divide the product under c onsideration into segments for the purpose of making the comparison 
                                                      
236 The criteria identified by Norway may well be re levant in the decision of the an investigating 
authority in this regard, but that does not establish that  consideration and determination based on those criteria is 
a legal requirement, as Norway argues. 
237 Norway, Answer to Panel Question 46, para.4. 
238 Norway, Oral Statement at the first substan tive meeting (hereinafter "Norway First Oral 
Statement"), paras. 26-27. 
239 We note that proposals regarding definition of "product under investigation" have been made in the 
context of the negotiations on anti-dumping pursuant to the Doha Development Agenda, which supports our 
view that the existing text cannot be understood to contain such a definition. See, e.g., document TN/RL/W/143 at page 11, paragraph 17. 
240 Norway, FWS, para. 99. WT/DS337/R 
Page 116  
 
  (i.e., "multiple averaging"), all such segments  must belong to a group of products meeting the 
definition of likeness, citing in this resp ect, a statement by the Appellate Body in EC – Bed Linen .
241 
7.61 Again, as with Norway's reliance on the p assage from the Appellate Body's ruling in US – 
Softwood Lumber V , the Appellate Body's statement in EC – Bed Linen  was made in the context of a 
claim relating to "multiple averag ing" under Article 2.4.2, not Article 2.6.  Neither like product nor 
product under consideration were issues under consid eration.  Moreover, the Appellate Body has 
since clarified that its reasoning in EC-Bed Linen should not be read as prohibiting multiple 
averaging.242  As the practice of multiple averaging is based on the premise that the product for which 
a dumping duty is determined may not be inte rnally homogeneous, making price comparisons for 
groups of comparable goods within the product under consideration a practical analytical tool in 
determining a single margin of dumping, it is im possible to reconcile multiple averaging with 
Norway's position on product under consideration.  In our view, there would be an inherent 
inconsistency in concluding that multiple averag ing is permitted, which th e Appellate Body has found 
and Norway acknowledges to be the case, and at the same time concluding that  there must be identity 
within the product under consideration.  If the latte r were true, there would be no need for multiple 
averaging. 
7.62 Norway also relies on Article 3, and in partic ular, Article 3.6, as contextual support for its 
claim.  Article 3.6 provides:  
"The effect of the dumped imports shall be assessed in relation to the domestic 
production of the like product when availabl e data permit the separate identification 
of that production on the basis of such criteria as the production process, producers' 
sales and profits.  If such separate identifi cation of that production is not possible, the 
effects of the dumped imports shall be as sessed by the examination of the production 
of the narrowest group or range of produc ts, which includes the like product, for 
which the necessary information can be provided." 
7.63 Norway argues that Article 3.6 supports the proposition that under the AD Agreement, the 
results of separate production processes cannot be c onsidered a single product under investigation and 
thus cannot be the subject of a single investigation.243  Norway contends that the GATT 1947 panel 
reports in the US – Wine and Grapes  and Canada – Beef cases, as well as the Appellate Body Report 
in US –Lamb , support this understanding of Article 3.6. 
7.64 Article 3.6 is a provision about what informati on an investigating authority may evaluate in 
considering the effects of dumped imports for th e purpose of determining injury to a domestic 
industry.244  It simply has no bearing on the question of product under consideration.  Article 3.6 
                                                      
241 Norway, FWS, para. 101, citing Appellate Body Report, EC – Bed Linen , para. 58. 
242 Appellate Body Report, US - Softwood Lumber V , para. 81. 
243 Norway, FWS, paras. 103-115. 
244 The general rule set out in the first sentence of Article 3.6 is that an investigating authority's focus 
must be on information relating to domestic production of the "like product", provided that it is possible to 
separately identify such domestic production of the "like product" "on the basis of such criteria as the production 
process, producers' sales and profits".  Where this is not possible, the second sentence of Article 3.6 requires 
investigating authorities to focus their analysis on the na rrowest group of products, in cluding the "like product", 
for which data may be available.  Thus, the second sentence of Article 3.6 establishes a rule for how investigating authorities should behave when data pertaini ng to domestic production of the "like product" either 
does not exist or is so intertwined with data pertaining to a product other than the "like product" that a separate 
analysis of the state of the domestic production of the "like product" cannot be made.  See, Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States ("Mexico – 
Corn Syrup "), WT/DS132/R and Corr.1, adopted 24 February 2000, DSR 2000:III, 1345, para. 7.157.  Clearly,  WT/DS337/R 
 Page 117 
 
 
  addresses a particular question about the data to be considered in an investigating authority's inquiry 
into the effects of dumping.  This happens, in every investigation, after  the product under 
consideration has been defined, the domestic like pr oduct has been determined pursuant to Article 2.6, 
and the relevant domestic industry has been dete rmined pursuant to Article 4.1, which defines 
"domestic industry" for the purposes of the AD Agreem ent.  Article 4.1 makes clear that the starting 
point for the identification of the domestic industry is the "like product".  Norway's argument, on the 
other hand, would entail a consideration of the pr oduction activities of the domestic industry in the 
definition of the like product, and of the product under consideration, introducing a circularity into the 
analysis which is untenable.  Thus, we consider, Norway's reliance on Article 3.6 to be misplaced and 
unpersuasive.   
7.65 Norway's reliance on the two GATT 1947 reports  and one Appellate B ody report in support 
of its position is also misplaced.  First, the statements  cited by Norway were all made in the context of 
claims relating to the definition of the domestic i ndustry, not the "like product".  Indeed, in none of 
the three cases did the parties raise the definition of the appropriate product.  Rather, the issue in those 
cases was whether certain enterprises could be consid ered part of the domestic industry producing the 
relevant domestic product.245  In all three cases, it was held that producers that were not in the 
business of producing the relevant product could not be considered part of the domestic industry 
based on their production of an input to that product.246   
7.66 In the two GATT 1947 cases, the Panels referred to the provision in the Subsidies Code that is 
reflected in Article 3.6 of the AD Agreement merely to confirm their views in this respect.  In other 
words, although the Panels' inquiries into what  constituted the domestic industry involved 
consideration of different production processes, the purpose of this consideration was to evaluate 
whether enterprises engaged in one production pro cess could be considered producers of a product 
resulting from a subsequent production process.  Thus , these cases do not require the conclusion that 
different production processes necessarily result in di fferent "like products".  Rather, they indicate 
that the fact that enterprises engage in diffe rent production processes may be determinative in 
deciding whether they are "producers" of an iden tified like product and therefore may be considered 
part of the domestic industry producing that product.   The Panels concluded that grape growers and 
cattlemen and feedlot operators were not producers of, respectively, wine and fresh or frozen beef.   
7.67 There is no provision comparable to Article 3.6 in the Safeguards Agreement.   However, the 
Appellate Body in US – Lamb did consider a similar question, stating: 
                                                                                                                                                                     
any of these considerations can only be addressed after a domestic industry is defined, which comes after a like 
product is defined, by reference to a product under consideration whose scope has been established. 
245 In US - Wine and Grape Products , the issue was whether, the relevant domestic product having 
been defined as wine, growers of grapes could be considered part of the US industry producing that product.  
GATT Panel Report, Panel on United States Definition of Industry Concerning Wine and Grape Products , 
SCM/71, adopted 28 April 1992, BISD 39S/436, paras. 4.2-4.6.  Likewise, in Canada – Manufacturing  Beef  
CVD , the issue was whether, the relevant domestic product having been defined as fresh or frozen beef, 
cattlemen and feedlot operators who raised and fattened live cattle could be considered part of the Canadian 
industry producing that product.  GATT Panel Report, Canada – Imposition of Countervailing Duties on 
Imports of Manufacturing Beef from the EEC , SCM/85, 13 October 1987, unadopted, para. 5.1.  Finally, in US – 
Lamb , the issue was whether, the relevant domestic product having been defined as lamb meat, US growers and 
feeders of live lambs could be considered part of the US lamb meat industry. Appellate Body Report, United 
States – Safeguard Measures on Imports of Fresh, Ch illed or Frozen Lamb Meat from New Zealand and 
Australia ("US – Lamb "), WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 4051, 
paras. 77-96. 
246 US – Wine and Grape Products, para. 4.2; Canada – Manufacturing  Beef  CVD , para. 5.1; and 
Appellate Body Report, US – Lamb , para. 90. WT/DS337/R 
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  "As we have indicated, under the  Agreement on Safeguards ,  the determination of the 
"domestic industry" is based on the "producers … of the like or directly competitive products".  The focus must, therefore, be on the identification of the products , and 
their "like or directly competitive" relationship, and not on the processes  by which 
those products are produced."
247 
In making this statement, the Appellate Body noted:  "We can, however, envisage that in certain cases 
a question may arise as to whether two articles are separate products .  In that event it may be relevant 
to inquire into the production processes for those pro ducts."  Thus, the Appellate Body did not say, as 
Norway argues, that in determining whether two articles are separate produc ts the authorities should 
examine the production processes used to manufacture th e two articles.  The Appellate Body indicated 
only that under the Safeguards Agreement, an i nquiry into production processes is not appropriate for 
determination of domestic industry, but that it may be necessary to identify separate products.  This 
does not, in our view, support Norway's position.  7.68 Thus, we conclude that, contrary to Norw ay's claim, Articles 2.1 and 2.6 of the 
AD Agreement do not establish an obligation on inv estigating authorities to ensure that where the 
product under consideration is made  up of categories of products, all such categories of products must 
individually be "like" each other, thereby cons tituting a single "product".  We therefore do not 
consider it necessary to address Norway's argument s concerning the facts.  Whether the range of 
goods  comprising the product "farmed salmon" that w as investigated by the EC are or are not all 
"like" each other within the meaning of Article 2.6 is not a relevant question in light of our decision 
on the interpretation of Articles 2.1 and 2.6. 
7.69 Finally, this very issue, and many of the argu ments raised by Norway, have been previously 
addressed by other Panels.  Norway has not attempte d to distinguish the views of those Panels from 
the circumstances of this case.  While we are not bound by the decisions of other Panels, we nonetheless consider it appropriate to review those decisions to assess the similarities and differences 
in the underlying facts, and determine whether the analysis of those Panels is helpful in our 
assessment of the arguments in this case.   
7.70 The most significant discussion of the issue of product under consideration was in the US – 
Softwood Lumber V  dispute, which involved facts and argumen ts very similar to those in the case at 
hand.  In the underlying investigation, the US Department of Commerce (USDOC) had identified the 
"product under consideration" as all "softwood lumber, flooring and siding (softwood lumber 
products)", comprising numerous types of softwood lu mber products, including certain products (bed 
frame components, finger-jointed flangestock, E astern White Pine and W estern Red Cedar) that 
Canada argued should have been excluded from the i nvestigation.  The "like product" identified by 
the USDOC for purposes of the dumping determination was described in exactly the same terms as 
the "product under consideration" - all "softw ood lumber, flooring and siding (softwood lumber 
products)".
248  Thus, the product under consideration and the "like product" both included a variety of 
product types, but exactly the same product types in each case, as is true in the case at hand.  There is 
no dispute in this case that the lik e products (Norwegian farmed sa lmon and EC farmed salmon) are 
coextensive with the product identified by the EC as the product under consideration, farmed salmon. 
7.71 Canada argued, similarly to Norway here, th at Article 2.6 requires that each individual 
product making up the "like product" must be "lik e" each individual produc t making up the "product 
                                                      
247 Appellate Body Report, US – Lamb , para. 94. 
248 The comparisons for purposes of determining the dumping margin were carried out on the basis of 
categories of products in the original investigation.  While Canada challenged the "zeroing" aspect of this 
analysis, it did not dispute the "model matching".    WT/DS337/R 
 Page 119 
 
 
  under consideration".249  Canada asserted that the USDOC had not defined the characteristics of the 
product under consideration, and did not compare the characteristics of each potential like product 
with those of the product under consideration as a whole.  According to Canada, the facts on the 
record of the US - Softwood Lumber V  investigation showed that the range of products included by the 
USDOC in the product under consideration was so broad that all the individual products, constituting 
collectively the "like product", were not alike each  and every one of the products collectively forming 
the product under consideration as they did not have characteristics closely resembling those of each 
and every one of the individual products constitu ting collectively the product under consideration.250  
Thus, Canada argued that the United States had acted inconsistently with Article 2.6.  
7.72 The Panel in US – Softwood Lumber V  found that Article 2.6 addresses the definition of the 
product that is to be considered "like" the product under consideration.  According to the Panel, the 
starting point for the application of Article 2.6 was the product under consideration.  However, the 
Panel could find no guidance in the AD Agreement on the way in which the "product under consideration" itself should be determined.   The Pa nel stated that "[w]hile there might be room for 
discussion as to whether [the approach advocated by Canada] might be an appropriate one from a 
policy perspective, whether to require such an approach is a matter for the Members to address 
through negotiations.  It is not our role as a panel to create obligations which cannot clearly be found 
in the AD Agreement itself."
251  This aspect of the Panel's report was not appealed, and was thus 
adopted by the DSB without modification   
7.73 In another case, Korea – Certain Paper , the Panel referred to the product under consideration 
in the context of its consideration  of a clai m concerning the determination of like product under 
Article 2.6.  In that case, the Korean Trade Commission (KTC) had init iated an investigation 
concerning dumped imports of "p lain paper copier" ("PPC") and "wood-free printing paper" ("WF") 
from Indonesia.  Indonesia made no claims conc erning the product under consideration, which 
included both categories pf paper, but did dispute the KTC's decision that there was one domestic industry producing the two categories of paper, and the determination of injury to that industry, 
despite having made separate dump ing determinations for the two categories of paper.  Indonesia 
argued that PPC and WF are not like products, a nd that under Article 2.6, the KTC should have 
analyzed the effects of imports of PPC on produ cers of PPC, and the effects of imports of WF on 
producers of WF.   Korea argued that under Article 2. 6, like product is defined by reference to the 
imported product, and that Indonesia's reference to the differences among the products produced by 
the domestic industry had no legal basis under the Agreement.   
7.74 In its analysis, the Panel noted that the inv estigation initiated by the KTC concerned dumped 
imports of PPC and WF, that the KTC determined  that Korean PPC and WF were identical to 
imported PPC and WF, and made a single injury determ ination.  The Panel considered that the issue 
before it was whether Article 2.6 of the AD Agreement required the KTC to determine that PPC and WF were like products before proceeding to carry out a single injury determination.  The Panel 
concluded that it did not, stating "once the product under consideration is defi ned, the investigating 
authority has to make sure that the product it is us ing in its injury determination is like the product 
under consideration.  As long as that determination is made consistently with th e parameters set out in 
Article 2.6, the investigating authority' s like product definition will be WTO-consistent."
252  T h e  
Panel went on to state that it saw "no basis in Article 2.6 for the proposition that the like product definition also applies to the definition of "the  product under consideration".  We are aware of no 
provision in Article 2.6, or any other Article in th e Agreement, that contains a definition of "the 
product under consideration" itsel f," citing in this regard US - Softwood Lumber V .  
                                                     
 
249 Panel Report, US – Softwood Lumber V , para. 7.157. 
250 Panel Report, US – Softwood Lumber V , para. 7.155. 
251 Panel Report, US – Softwood Lumber V , para. 7.157. 
252 Panel Report, Korea – Certain Paper , para. 7.219. WT/DS337/R 
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  7.75 We agree with the views expressed by these two Panels, and consider that they support our 
conclusions on Norway's claim under Articles 2.1 and 2.6. 
7.76 Based on the foregoing, and in the light of st andard set out in Article 17.6(i) of the 
AD Agreement, we do not accept Norway's view that  Articles 2.1 and 2.6 must be interpreted to 
require the EC to have defined the product under c onsideration to include only products that are all 
"like".  As a consequence, we dismiss Norway's claim that the product under consideration identified 
by the EC was inconsistent with the requirement s of Articles 2.1 and 2. 6. We further dismiss 
Norway's consequential claims under Articles 5.1 and 5.4 (initiation); Article 2.1 (dumping 
determination); and Articles 3.1, 3.2, 3.4, 3.5, and 3.6 (injury determina tion), which depended upon 
its claims regarding the product under consideration.   While Norway is correct that the product under 
consideration has repercussions for an investigati ng authority's further considerations in an anti-
dumping investigation, in the absence of any violation with respect to the product under consideration, there can be no violation, on that b asis, in subsequent aspects of the investigation and 
determination. 
D. A
LLEGED INCONSISTENCY OF THE EC'S DETERMINATION OF THE DOMESTIC INDUSTRY WITH 
ARTICLE  4.1 OF THE AD A GREEMENT  
1. Arguments of the Parties 
(a) Norway 
7.77 Norway claims that the EC's determination of  domestic industry was inconsistent with the 
requirements of the AD Agreement.  Norway argues that, since the product under consideration, as 
defined by the EC, included farmed salmon ranging from whole head-on gutted (HOG) fish to fillets, 
the domestic industry must include producers of any one  or more of these.  Norway contends that the 
EC improperly excluded from the do mestic industry several categori es of domestic producer that it 
was required to include, pursuant to Article 4.1 of  the AD Agreement.  Norway points out that the 
domestic industry as defined by the EC comprise s 15 fish farmers that grow salmon, and sell 
predominantly whole/HOG fish, but does not include any processors that produce filleted products 
without also growing salmon.  Norway asserts that  assuming that the product under consideration was 
properly defined, which Norway disputes, there is a fatal mismatch between th e determinations of the 
"product" and the "domestic industry", and the latter is  in violation of Article  4.1.  Norway further 
asserts that the EC improperly excluded six other categories of domestic producer that it was required to include.    As a result, Norway asserts that  th e EC failed to define the domestic industry to include 
domestic producers of the like product whose collec tive output of the products constitutes a major 
proportion of the total domestic production of t hose products, as required by Article 4.1.   
7.78 Norway further claims that, as a consequence of these violations, the EC failed to establish 
that the application for initiation of the investiga tion was made by or on beha lf of the proper domestic 
industry, as required by Article 5.4 of the AD Agre ement, and failed to determine that the proper 
domestic industry was injured, pursuant to Articl es 3.1, 3.4 and 3.5 of the AD Agreement.   
7.79 Norway also claims that the EC's determination of injury violated Articles 3.1, 3.4 and 3.5 of 
the AD Agreement because the EC engaged in sampli ng of the domestic industry, which it claims is 
not permitted under the AD Agreement.  
7.80 Norway's claim is based on Article 4.1 of the AD Agreement, which provides, in pertinent 
part that: 
 "[f]or purposes of this Agreement the term  "domestic industry" shall be interpreted 
as referring to the domestic producers as a whole of the like product  or to those of  WT/DS337/R 
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  them whose collective output of the products constitutes a major proportion of the 
total domestic production of those products …" 
In Norway's view, the plain meaning of this provision defines the domestic industry on the basis of 
two elements: "producers" and the "products" that they produce.  Norway points to discussions of 
industry in cases under other WTO Agreements to support its view that the focus of the domestic 
industry definition is on the producers of, in th e case of the AD Agreement, the like product.   
 7.81 Norway refers to the decision of the Appellate Body in US – Lamb , interpreting the term 
"domestic industry" in the Agreement on Safeguards , where the Appellate Body held that "'producers' 
are those who grow or manufacture an article; 'producers' are those who bring a thing into 
existence."
253  Similarly, Norway relies on the decision of the Appellate Body in US – Cotton Yarn , 
interpreting the term "domestic industry" in the now defunct Agreement on Textiles and Clothing , 
where the Appellate Body noted that the definition of  the "domestic industry" is "product-oriented and 
not producer-oriented".254   
7.82 Norway acknowledges that, in principle, some  producers may be excluded from the domestic 
industry, given that Article 4.1 provides that the "domestic industry" includes, in principle, the 
domestic producers of the like product "as a whole"  or those whose collective output constitutes "a 
major proportion of the total domestic production", wh ich latter implies that not all producers need be 
included.  However, Norway asserts that Article 4.1 allows for the wholesale exclusion of producers 
of the like product from the domestic industry only if they are found to be "related" to exporters or 
importers, or are themselves im porters of the allegedly dumped product, as provided for in 
Article 4.1(i).   
7.83 Thus, in Norway's view, the EC violated Article 4.1 by excluding producers which 
exclusively filleted salmon sourced from elsewhere, producers that did not express an opinion regarding the investigation ("silents"), producers of organic salmon, producers that did not provide 
information to the investigating authority, and producers of "certain unspecified types".
255  Moreover, 
Norway considers it impermissible for an investiga ting authority to limit the domestic industry to only 
the complaining producers, as the EC did in this case., even if they represent a "major proportion" of 
domestic producers.256  In Norway's view, the definition in Article 4.1 ensures that the domestic 
industry includes producers from all segments of the industry, except, possibly, related producers.  
Norway also refers to Articles 3 and 5 as contextu al support for the view that the domestic industry 
must be defined in a manner that reflects the totality of the industry, noting for instance the 
requirement for an "objective examination" of the state of the "domestic industry" on the basis of 
"positive evidence" of the whole industry, and the obl igation in Article 5.4 to determine the degree of 
support for the application based on consideration of the volume of production attributable to 
supporting producers, and the volume of production of opposing producers, as well as the total 
volume of production by the domestic industry, including those expressing no opinion.   
7.84 Turning to the facts of this case, Norway maintains that the EC improperly excluded defined 
categories of producer from the domestic industry.  No rway asserts that any party that produces any of 
the like product is necessarily a member of the domestic industry.257  With respect to producers of 
                                                      
253 Appellate Body Report, US – Lamb , para. 84. 
254 Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn 
from Pakistan ("US – Cotton Yarn "), WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, 6027, 
para. 86.   
255 Norway does not contest the exclusion of related parties, or , it appears, the exclusion of companies 
which fell into receivership during the period of investigation.   
256 Norway, SWS, para. 109. 
257 Norway, SWS, para. 112. WT/DS337/R 
Page 122  
 
  salmon fillets who did not themselves grow salmon fish, Norway argues that, having defined the 
product as it did, to include salmon fillets, the EC co uld not exclude the producers of fillets from the 
domestic industry.  Under Article 4.1, Norway considers that these producers are part of the domestic industry, whether they also grow salmon or not.  With respect to "silent" producers, Norway maintains that there is no legal basis for the exclus ion of producers on the basis of their silence, and 
that the EC's explanation is in any event inadequate, as it failed to state the number and identity of the 
silent producers and the volume of production thereb y excluded from the domestic industry, making it 
impossible for Norway to appreciate the significance of this exclusion for the investigation.  With 
respect to producers of "certain types" of salmon, Norway asserts that the fact that producers produced 
some, but not all, types of the like pr oduct, is inadequate, as a matter of law, to justify their exclusion, 
and in any event, the EC's explanation of this b asis for exclusion is inadequate.  With respect to 
producers of organic salmon, Norway asserts that the product scope of th e investigation included 
organic salmon
258, and that producers of organic salmon must, therefore, be included in the domestic 
industry.  Moreover, Norway considers that th e EC's explanation of why, and how, it excluded 
organic producers from the domestic industry is entirely  inadequate, particularly in light of the fact 
that it appears from the Definitive Regulation that th e EC concluded that none of the five sampled 
companies produced exclusively  organic salmon.   Finally, Norway  considers that the exclusion of 
producers that did not provide data in the format requested or were otherw ise deemed not to have 
cooperated fully is without legal basi s, and is insufficiently explained.  Norway asserts that Article 4.1 
does not authorize the exclusion of domestic produ cers that do not cooperate fully.  Rather, these 
producers must be retained within the domestic indus try and, where there are gaps in the information 
provided by a domestic producer, Article 6.8 and Annex II of the Anti-Dumping Agreement  provide a 
mechanism to overcome deficienci es in the information provided. 
7.85 Norway also asserts that, in any event, after excluding categories of producers, the EC failed 
to demonstrate that the remaining group of domestic  producers constitute a "major proportion" of total 
domestic production.  Norway notes that the EC found that total domestic production of salmon was 
22,000 tons; the 15 producers in the EC's industr y produced 18,000 tons; and the five sampled 
produced 8,640 tons.  However, Norway argues that  since the EC failed to specify the volume of 
production of the excluded producers, the EC failed to substantiate its finding that the 15 producers 
included in the domestic industry accounted for a "m ajor proportion" of total production by reference 
to sufficient facts.   
7.86 Norway's last claim concerning the domestic industry is that the EC violated the 
AD Agreement by relying on a sample of five producers in conducting an important part of its injury 
analysis.  Norway maintains that the AD Agreement does not permit a Member to engage in sampling 
of the domestic industry for purposes of an injury dete rmination.  Norway points to the absence of any 
provision specifically allowing for sampling in the in jury part of anti-dumping investigations, such as 
is set out in Article 6.10 of the AD Agreement for the dumping part.  Norway also relies on the 
decision of the Appellate Body held in US – Hot-Rolled Steel , which stated that Article 3 of the 
AD Agreement requires "[t]he investigation and ex amination must focus on the totality of the 
'domestic industry' and not simply on one part, sector or segment of the domestic industry."259     
7.87 Norway also relies on Footnote 13 of the AD Agreement as contextual support for its 
position.  That footnote provides for sampling to dete rmine the degree of support for an application in 
the case of fragmented industries.   Norway argues th at it demonstrates that when the drafters intended 
to permit the use of sampling in the examination of the domestic industry, they did so expressly, and 
                                                      
258 Definitive Regulation, Recital 10.   
259 Appellate Body Report, US – Hot-Rolled Steel , para. 190.  In that dispute, the USITC had conducted 
an aggregate injury examination for all producers as well as an in-depth examination in relation to the production for the merchant market, but did not conduct an equivalent examination of captive production.  The 
Appellate Body found that failure to do so violated Article 3 of the AD Agreement.  WT/DS337/R 
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  only for the limited purposes set out in the footnote .  Moreover, Norway considers that footnote 13 
establishes more limited conditions in which sampling may be used, as well as stricter requirements 
for how sampling may be undertaken.  Thus, Norway c ontends,  even if Article 3 could be interpreted 
to confer an implied right to sample in an inju ry determination, the conditions governing sampling 
should be based on footnote 13 as the sole provision in the AD Agreement that authorizes sampling of 
the domestic industry in the importing country.  Norw ay considers that even  in that case, the EC 
would not have justified the use sampling, or of  the particular sample relied upon in this case.  
(b) European Communities 
7.88 The EC argues that Article 4.1 merely sets out a definition of domestic industry, and therefore 
does not, in itself, impose any obligation on the EC or any other WTO Member.  As a result, the EC 
considers that it cannot be found to have acted inc onsistently with Article 4.1, and that Norway's 
consequential claims under Articles 3 and 5 also fail.   
7.89 Turning to Norway's argument, the EC asserts , with respect to "filleting-only" undertakings, 
Norway's arguments appear premised on the notion that this case involved different goods grouped in 
one investigation.  However, the EC recalls that  the product concerned is defined as farmed salmon, 
however presented.  The EC does not dispute Norw ay's statements that filleting-only undertakings 
essentially benefit from dumped imports, which lower th eir costs, and would not have supported the 
application in this case.  The EC argues that th e inclusion of such undertakings in the domestic 
industry would have rendered impossible any anti-dumping remedy for EC salmon producers faced with dumped Norwegian salmon.
  
7.90 The EC maintains that in these circumstances, the investigating authority was called upon to 
take a reasonable and balanced approach that  fairly addressed the underlying economic issues, 
consistent with the Anti-Dumping Agreement.  In the EC's view, this is what the investigating 
authority did in this case.  The EC asserts that Norway's position is based on the view that whenever 
something is changed in some way, a first thing is consumed, and a second thing is produced. Thus, 
when a whole fresh salmon fish is harvested, a whole fresh salmon fish  is produced. When it is gutted, 
a whole fresh fish is consumed, and a head-on-gutte d fish is produced. When the head is removed, a 
head-on-gutted fish is consumed, and a head-off gutted fish is produced. When it is filleted, a head-off 
gutted fish is consumed, and fillets are produced, an d so on.  Thus, for the EC, Norway's approach, 
that every change involves the production of pro duct, and everyone involved is a producer, would 
result in double counting of production.  The EC does not consider this positi on either convincing or 
legally correct.  
7.91 The EC posits that different undertakings i nvolved in activities descr ibed in the preceding 
paragraph are not all necessarily  properly characteris ed as "producers".  Thus, to the EC, filleting-
only undertakings are in the nature of intermediari es between the original producer of salmon fish and 
the final consumer.  The EC asserts that Article 6.12 of the AD Agreement recognizes the category of "industrial users" and provides for their interests to  be taken into account in the consideration of 
dumping, injury and causality.  Thus, the EC maintain s that in this case, the investigating authority 
had to make a choice whether to categorize filleti ng-only undertakings as "producers" or take their 
interests into account pursuant to Article 6.12 of the Anti-Dumping Agreement.  The EC submits that 
there can be no doubt that the investigating authorit y was entitled to take the latter course of action.  
7.92 The EC points to the text of Article 4.1 in support of its view.  The EC notes that the 
definition of the verb "to produce"  includes : "Bring (a thing) into existence; …".
260  The EC asserts 
that filleting-only undertakings are not really con cerned with bringing the product concerned (farmed 
salmon) into existence, or producing it. Rather, if  anything, they are concerned with the process of 
                                                      
260 Citing Shorter Oxford English Dictionary (fifth edition, 2002). WT/DS337/R 
Page 124  
 
  consuming it.  The EC further supports this view by  reference to the dictionary meaning of "produce" 
in an agricultural (or fisheries) context as havi ng a particular connotation, indicating a "natural" 
process (such as growing salmon), as distinct from a more "industrial" process (such as chopping it up 
as a prelude to consumption).  In addition, the EC points to the inclusion of Article 6.12 in the WTO Agreement, arguing that this new provision, with out equivalent in the Tokyo Round Code, supports 
the view that the negotiators specifically sought to address the particular matter at issue here in 
Article 6.12, and this intention and provision must be respected and given meaning. The EC asserts 
that Article 6.12 began as a proposal by Nordic countries in the Uruguay Round negotiations,
261 and 
that Norway is thus asking the Panel to ignore a provision that Norway itself put forward during the negotiations, and to interpret the AD Agreement as if  the original proposal, which might have enabled 
industrial users to block the initiation of anti-dumpi ng proceedings indefinitely, had been accepted in 
the negotiations.  The EC considers that its positi on is based on a reasonable interpretation of the 
AD Agreement, and must therefore be sustained by the Panel.   
7.93 The EC also asserts that the Appellate Body decision in US - Lamb  concerns a safeguard 
measure, which has a different underlying logic, a nd that the Safeguards Agreement has no equivalent 
to Article 6.12 of the AD Agreement.  The EC argu es that the issue in that  dispute was whether the 
domestic industry in a safeguards case could include la mb growers despite the fact that whole lambs 
were not part of the product.  The EC considers that similar arguments demonstrate that the GATT 
and WTO Panel reports referred to by Norway ar e also inapposite, as they concern questions of 
definition of the industry to include producers of a product not included in the product concerned, and 
different textual provisions.   
7.94 With respect to the exclusion of "silent" producers,  the EC asserts that Article 4.1 refers to the 
domestic producers as a whole or to those of them whose collective output constitutes "a major 
proportion" of the total domestic production. Thus, if  "silents" are excluded, but nevertheless "a major 
proportion" of total domestic production is included, the EC maintains that the terms of Article 4.1 are 
satisfied.  In this case, the EC asserts that during the investigation period the estimated total EC 
production of farmed salmon was 22,000 tonnes; that the 15 cooperating EC producers produced 
around 18,000 tonnes; and that they therefore represent around 82 per cent of EC production, which is clearly a major proportion of the total.
262  The EC notes that Norway does not contest the accuracy of 
this calculation, although it does argue that it is not adequately explained.   
7.95 With respect to the exclusion of other categor ies of producers – producers of "certain types" 
of salmon, producers of organic salmon, and producer s that did not provide the data in the format 
requested, the EC considers that the same argume nt supports the same conclusion.  The EC argues 
that Norway misses the point that if the domestic industry as defined by the investigating authority 
comprises producers whose output constitutes a "maj or proportion" of total domestic production, 
Article 4.1 is satisfied.   
7.96 Turning to Norway's claims concerning sampling of the domestic industry, the EC considers 
that Norway's claim is strictly legal, and not of a factual nature.  The EC maintains that Articles 3.1, 
3.4 and 3.5 of the AD Agreement do not impose an y additional requirements with regard to the 
definition of domestic industry set forth in Article 4.1 of the AD Agreement.  While they do require 
                                                      
261 MTN.GNG/NG8/W/76 of 11 April 1990, Negotiating Group on MTN Agreements and 
Arrangements, Drafting Proposals of the Nordic Countri es Regarding Amendments of the Anti-Dumping Code, 
page 4, third para, and footnote : " Public interest clause : In deciding on the initiation of an anti-dumping 
investigation, on whether or not to apply provisional or definitive anti-dumping measures and on the extent and level of such measures the investigating authority shou ld consider whether an investigation or anti-dumping 
measures would be in the public interest . Footnote : Consideration of the public interest could cover such 
questions as the competitive situation, the interests of consumers and industrial users of the product subject to 
the complaint and other relevant economic circumstances." 
262 Definitive Regulation, Section 4.1,  particularly Recitals 38 and 40.  WT/DS337/R 
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  that the determination of injury be made with re spect to the industry that is the subject of the 
investigation, the EC maintains that it satisfied this  requirement in this case.  The EC considers that 
Norway's reliance on the US – Hot-Rolled Steel  case is inapposite, since the EC did not undertake 
analysis of only a segment or part of the domestic industry defined in the investigation.  The EC notes 
that Norway has not cited a single provision of  the Anti-Dumping Agreement which would prohibit 
sampling in an injury analysis.  The EC also argue d that it would be absurd to conclude that the 
negotiators of the AD  Agreement agreed to estab lish a lower standard for the determination under 
Article 5.4 of the AD Agreement, for which sampling is allowed, than for the determination of injury 
under Article 3.   
7.97 The EC asserts that the use of sampling for injury analysis is well accepted among WTO 
Members and established in WTO case law, citing the Panel's report in EC – Bed Linen .263  The EC 
further notes that the US – Hot-Rolled Steel  case involved an entirely different issue from sampling, 
and gives no support to Norway's view that sampling in an injury analysis is prohibited. The EC considers that footnote 13 is irrelevant to the ob ligations concerning injury determinations, in part 
because it relates to the question of initiation under Article 5, and not injury under Article 3.   
2. Arguments of the Third Parties 
(a) China 
7.98 China, referring to Panel decisions in Argentina – Poultry Anti-Dumping Duties
264 and 
Mexico - Corn Syrup265, argues that Article 4.1 imposes an ob ligation that Members are obligated to 
fulfil.  China disputes the EC's view that Article  4.1 provides two equally valid options for defining 
the domestic industry – domestic producers "as a whole" or "those of them whose collective output of 
the products constitutes a major proportion of the domestic production of those products".  China 
considers this interpretation would allow investig ating authorities to simply identify "a major 
proportion" of the total production and ignore the rest of the producers in the domestic market.  In China's view, this would not allow for the necessar y match between the product and the industry.  
Moreover, it opens the possibility that an inves tigating authority might pick and choose from all 
domestic producers and include those that may be in jured to a higher extent than the others, thus 
making it easier to find injury, and twisting the injury evaluation.  
7.99 Regarding Norway's sampling claims, China tak es no position regarding the factual details of 
the EC's decision to sample, nor on the selection of  the sample actually chosen.  China notes that 
Articles 3.1 and 3.4 establish an obligation for th e investigating authorities to conduct an objective  
examination and evaluation of all relevant economic factors and indices having a bearing on the state 
of the injury to the domestic industry, but neither these two Articles nor any other Articles in the 
AD Agreement specify what methodology may be used  to conduct such an objective examination.  
China agrees with Norway that Footnote 13 a nd Article 6.10 set out specific circumstances and 
conditions for resort to sampling, but in China's vi ew, this does not automatically demonstrate that the 
drafters of the AD Agreement intended to permit only two circumstances where sampling could be 
used and that sampling in other circumstances woul d violate the AD Agreement.  Thus, China argues 
that that it is within the discretion of the inves tigating authority to decide what methodology it will 
use in an injury examination as lo ng as the investigation is conducted "objectively" and includes an 
                                                     
 
263 EC, FWS, para. 93, referring to Panel Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India ("EC – Bed Linen") , WT/DS141/R, adopted 12 March 2001, 
paras. 6.175 to 6.183.   
264 Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil ("Argentina – 
Poultry Anti-Dumping Duties") , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727, para. 7.338. 
265 Panel Report, Mexico- Corn Syrup , para.7.147. WT/DS337/R 
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  evaluation of all relevant economic factors and indices that affects the state of the injury to the 
domestic industry.   
7.100  Moreover, China considers that the rationale underlying Article 6.10 of the AD Agreement, 
allowing sampling where a complete evaluation is "impracticable" supports the use of sampling in 
injury analysis when it is "impr acticable" for the authority to evaluate all relevant economic factors 
for all producers in the domestic industry within the time-limits, so long as the evaluation is objective.  
China points to the Appellate Body's decision in US – Lamb , where, despite the fact that no provision 
in the Safeguards Agreement addresses specifically th e question of the extent of data collection, the 
Appellate Body concluded that "authorities must have a sufficient factual basis  to allow them to draw 
reasoned and adequate conclusions concerning the si tuation of the 'domestic industry,'" which means 
"that the data examined, concerning the relevant factors, must be representative  of the 'domestic 
industry.'" (emphasis added) .
266  China considers that this reas oning applies in the case of the 
AD Agreement to support the view that as long as the investigating authority can demonstrate that the 
sampling allows the authority to evaluate data that is sufficiently  representative of the "domestic 
industry", the investigating authority may use sampling.   
(b) Hong Kong, China 
7.101  Hong Kong, China submits that the adoption of a selective approach, be it sampling or 
otherwise, in investigating producers of a defi ned domestic industry in injury determination is 
inconsistent with Articles 3 and 4.1 of the AD Agreement.  Hong Kong, China considers that 
Article 4.1, read in conjunction with footnote 9 (defining injury) requires that the domestic industry 
with respect to which injury is considered and de termined must be the domestic industry defined in 
accordance with Article 4.1, that is, the domestic pr oducers of the like product as a whole, or those of 
them whose collective output of the like pr oduct constitutes a major portion of the domestic 
production of the like product. Once the domestic i ndustry has been defined for the purposes of the 
investigation, it is not permissible to pick and choose among the producers, or to limit the injury analysis to the few selected.  Hong Kong, China considers that the absence of a sampling provision 
for injury analysis reinforces its view in this regard.  Hong Kong, China asserts that neither the 
possibility of excluding "related" producers, nor the possibility of defining the domestic industry as producers whose output constitutes "a major proporti on of the total domestic production" implies a 
right to sample or pick selectively domestic pr oducers among the pre-determined "major proportion" 
of the industry for the purposes of injury determin ation.  Thus, in Hong Kong, China's view, having 
defined the industry as 15 producers, the EC vi olated the AD Agreement by making its injury 
determination with reference to only 5 producers. 
(c) Japan 
7.102  Japan does not agree with the EC's argument th at Article 4.1 of the AD Agreement contains a 
definition rather than an obligation.  The Appella te Body has found violations of such definitional 
provisions in a number of cases, generally in combin ation with violations of what might be called 
"operative" provisions.
267  In this case, if the EC authorities' limitation of the scope of the "domestic 
                                                      
266 Appellate Body Report, US – Lamb , paras. 128-132 
267 See, e.g., Appellate Body Report, US – Lamb,  paras. 95-96. Therein, the Appellate Body found that 
the USITC had included in the "domestic industry" producers of products other than the product concerned 
(namely,  live lambs ).  The Appellate Body found this inconsistent  with definition of "domestic industry" set 
forth in Article 4.1(c) of the Agreement on Safeguards .  Thus, the Appellate Body co nsidered that an authority 
acts in a manner inconsistent with the AD Agreement if it defines the domestic industry in a way inconsistent 
with Article 4.1(c) of that Agreement.  The Panel in Argentina – Poultry Anti-Dumping Duties  considered that 
Article 4.1 of the AD Agreement "im poses an express obligation on Members to interpret the term "domestic 
industry" in that specified manner.  Thus, if a Member were  to interpret the term differently in the context of an  WT/DS337/R 
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  industry" is not consistent with the requirements of Article 4.1 of the AD Agreement, then the EC 
cannot make a determination about injury to the "dom estic industry" consistent with Article 3.1 of the 
AD Agreement.  This is because th e injury determination would pertain to an industry other than the 
relevant "domestic industry," correctly defined.  Th us, failure to comply with the definition of the 
"domestic industry" in Article 4.1 of the AD Agre ement would lead to a consequent violation of 
Article 3.1 of the AD Agreement.268    
7.103  Japan considers that the EC's interpretation of "domestic industry" essentially means that 
authorities may exclude domestic producers of the like product from the "domestic industry" for any reason (or for no reason), so long as the remainin g producers constitute "a major proportion" of 
domestic production of the like product.  Japan considers that this coul d allow authorities to define the 
domestic industry in a results-oriented way, for exam ple, by choosing only unprofitable producers and 
excluding profitable ones, which would be inconsiste nt with the obligation of Article 3.1 of the 
AD Agreement to conduct an "objective examination" of  injury.  In Japan's view, an interpretation of 
Article 4.1 of the AD Agreement which would al low an authority to pick and choose domestic 
producers such as to make a positive injury finding mo re likely, would be inconsistent with this 
obligation.  
7.104  With regard to sampling, Japan does not deny th e theoretical possibility to apply Article 6.10 
of the AD Agreement to the domestic industry on its face.  Indeed,  Japan agrees with the EC that there 
would be cases where there are so many domestic indust ry members that individual examination of all 
of them would be impracticable.  On the other hand,  Japan notes that the parties agree that there are 
no clear provisions in the AD Agreement that perm it the authorities to engage in sampling of the 
domestic industry, except for footnote 13, which does not relate to the post-initiation phase of the 
investigation, according to the EC.
269  Japan also notes that active participation of the domestic 
industry might be expected in the present case, wher e the domestic industry consists of a relatively 
small number of companies, and that where th ere are relatively few producers, the burden on 
authorities of obtaining data from all producers should not be excessive.  Finally, even if sampling of 
the domestic industry is permitted for the purposes of an injury determination, the samples have to 
represent the comprehensive picture of the domestic  industry.  Japan suggests that it is unclear 
whether the sampling techniques applicable under Article  6.10 may be applied in the injury context.  
(d) United States 
7.105  The United States takes no position with respect to the issue of whether the EC reasonably 
excluded, as a factual matter, certain categories of salmon producers from its domestic salmon 
industry.  The United States does not, however, agree with Norway's argument that an investigating 
authority may only exclude "related" producers from the definition of the domestic industry under Article 4.1 when performing its injury analysis.  In the US view, Article 4.1 is satisfied if and 
investigating authority includes in the industry t hose domestic "producers whose collective output of 
the products constitutes a major proportion of th e total domestic production of those products."
270  The 
United States notes that the definition of domestic  industry must be based on "positive evidence and 
involve an objective examination" of the evidence relating to injury,271  and that "an 'objective 
examination' [under Article 3.1] requires that the domestic industry, and the effects of dumped 
imports, be investigated in an unbiased manner, without  favoring the interests of any interested party, 
                                                                                                                                                                     
anti-dumping investigation, that Member would violate the obligation set forth in Article 4.1."   Panel Report, 
Argentina – Poultry Anti-Dumping Duties , para. 7.338. 
268 See ibid. 
269 EC, FWS, para.99. 
270 AD Agreement, Article 4.1. 
271 AD Agreement, Article 3.1. WT/DS337/R 
Page 128  
 
  or group of interested parties, in the investigation."
272  Accordingly, the US suggests that if the EC's 
definition meets the "major proportion" of domestic production standard of Article 4.1, the Panel still should assess whether the EC's exclusion of certain  categories of salmon producer from the industry 
was biased or designed to favor the interest of any group of interested parties in the investigation, 
including the producers who filed the petition.   
7.106  The United States takes no position concerning th e EC's method for selecting the sample of 
companies it analyzed.  The US recognizes that th ere is no explicit permission in the AD Agreement 
allowing an investigating authority to rely on a small sample of domestic producers when performing 
its injury analysis in antidumping investigations .  However, the United States considers that the 
AD Agreement does make clear that sampling is an appropriate methodology when used in other 
contexts.  For example, the Agreement permits the "us[e of] samples which are statistically valid" for 
the purpose of calculating dumping margins,
273 and it permits the use of "statistically valid sampling 
techniques" to determine an industry's support fo r an antidumping petition when the industry is a 
fragmented one.274  The US points to the decision of the Appellate Body in Mexico – Anti-Dumping 
Measures on Rice , which recognized that: 
"Articles 3.1 and 3.2 [of the Agreement] do not prescribe a methodology that must be 
followed by an investigating authority in conducting an injury analysis. Consequently, an investigating authority enjoys a certain discretion in adopting a methodology to guide its injury analysis.  Within the bounds of this discretion, it may 
be expected that an investigating aut hority might have to rely on reasonable 
assumptions or draw inferences."
275  
Thus, the US considers that the EC could reasonabl y decide to rely on a sample of the domestic 
industry, as long as its decision was based on a reasonable set of assumptions or inferences as to the validity of the sample.   
3. Evaluation by the Panel 
7.107  There are three basic questions raised by Norway's domestic industry claims – first, whether 
the EC erred in not including certain categories of enterprises in the domestic industry based on the nature of their specific activities (filleting-only undertakings,
276 organic producers, and producers of 
"certain kinds" of salmon), their silence concerni ng the investigation, or their failure to provide 
information in the format requested.  The second question is whether the EC's interpretation of 
Article 4.1 as allowing the investigating authority to  conclude that, so long as the producers included 
in the domestic industry accounted for a major propor tion of total domestic production, it was entitled 
to ignore other producers, is permissible.  The thir d question is whether the EC was entitled to engage 
in sampling of the domestic industry in the context of  its injury analysis.  We will begin our analysis 
by considering the text of the relevant provision, Article 4.1.   
7.108  Article 4.1 of the AD Agreement provides, in pertinent part:  
"For the purposes of this Agreement, the term  "domestic industry" shall be interpreted 
as referring to the domestic producers as a whole of the like products or to those of 
                                                      
272 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
273 AD Agreement, Article 6.10. 
274 Id., Article 5.4, note 13. 
275 Appellate Body Report, Mexico – Definitive Anti-Dumping Measur es on Beef and Rice, Complaint 
with Respect to Rice ("Mexico – Anti-Dumping Measures on Rice") , WT/DS295/AB/R, adopted 
20 December 2005, para. 204. 
276 A "filleting-only undertaking" as used in this report is an undertaking which transforms acquired 
farmed (other than wild) salmon that is not fillete d, into farmed (other than wild) salmon fillets.   WT/DS337/R 
 Page 129 
 
 
  them whose collective output of the products constitutes a major proportion of the 
total domestic production of those products..." 
Thus, domestic producers of the "like product" are the starting point for the determination of the 
domestic industry.  "Like product" is define d in Article 2.6 of the AD Agreement as: 
 
"a product which is identical, i.e. alike in all respects to the product under 
consideration, or in the absence of such a product, another product which, although 
not alike in all respects, has characteristics closely resembling those of the product 
under consideration." 
As discussed above, the EC defined the product under consideration in this case as "farmed (other 
than wild) salmon, whether or not filleted, fresh, chilled or frozen,"277 finding in addition that "all 
farmed salmon constitutes a single product.  The di fferent presentations all ser ve the same end use and 
are readily capable of being substituted between each  other.  Therefore, they are considered to 
constitute a single product for the purposes of the proceeding."278  The EC specifically excluded from 
the product under consideration "other similar farmed  fish products such as large (salmon) trout, 
biomass (live salmon) as well as wild salmon and further processed types such as smoked salmon."279   
 7.109  With respect to like product, the EC found "t he basic physical characteristics of farmed 
salmon produced and sold by the Community indus try in the Community, farmed salmon produced 
and sold on the domestic Norwegian market, and farmed salmon imported into the Community from 
Norway are the same and [] they have the same use."
280  The EC therefore provisionally concluded 
that "the product concerned and the farmed salmo n produced and sold on the domestic market of 
Norway, as well as the farmed salmon produced and sold in the Community by the Community 
industry have the same basic physical characterist ics and uses and are theref ore considered to be 
alike...."281  It confirmed this conclusi on in its Definitive Regulation.282 
7.110  Thus, it is clear that the EC like product was found to be coextensive with the product under 
consideration.  Therefore, the like product perforce included the specified "farmed (other than wild) 
salmon, whether or not filleted, fresh, chilled or frozen".  In our view, the plain language of 
Article 4.1 establishes that the domestic industry in this case was therefore to be defined as producers 
"as a whole" of this product, or those producers whose output of this product constitutes a major 
proportion of total EC production of this product.    
7.111  Putting aside for the moment the question of whether producers of the like product "as a 
whole" or producers of a "major proportion of tota l domestic production" of the like product are to be 
considered the domestic industry, it is clear that Ar ticle 4.1 is unqualified in providing that the term 
"domestic industry" is to be interp reted by reference to "producers" of the like product.  The text 
subsequently sets out circumstances in which some producers of the like product may be left out of 
the domestic industry.  Thus, Article 4.1(i) provides for exclusion of producers related to the exporters 
or importers, or producers who are themselves importers of the allegedly dumped product.  
Article 4.1(ii) provides that, in the exceptional ci rcumstances of two or more competitive markets 
within the territory of a Member, producers with in each market may be regarded as a separate 
industry if certain conditions are satisfied. 
                                                      
277 Provisional Regulation, Recital 10 
278 Provisional Regulation, Recitals 10-11. 
279 Provisional Regulation, Recital 10. 
280 Provisional Regulation, Recital 12.   
281 Provisional Regulation, Recital 14. 
282 Definitive Regulation, Recital 8.  Although Norway does not address the EC's determination of like 
product, there is no dispute that the like product was coextensive with the product under consideration. WT/DS337/R 
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  7.112   However, nothing in the text of Article 4.1 gives any support to the notion that there is any 
other circumstance in which the domestic industry can  be interpreted, from the outset, as not including 
certain categories of producers of the like product, other than those set out in that provision.
283  Thus, 
we see no basis in the text of Article 4.1 whic h would allow for the exclusion from the domestic 
industry, as a category or group, of producers of any form of the like product – in this case, producers 
of any of the "presentations" identified by the EC  as the like product – "farmed (other than wild) 
salmon, whether or not filleted, fresh, chilled or frozen".   
7.113  The EC asserts, however, that en terprises engaged in filleting are not "producers" as "fillets 
do not result from a process of "production", but mere ly transformation of one presentation to another 
presentation."284  Thus, the EC argues that filleting-only undertakings are "not really concerned with 
bringing the product concerned (farmed salmon) into existence, or producing  it.  Rather, if anything, 
they are concerned with the process of consuming  it."285  The EC considers that the interests of 
filleting-only undertakings are properly taken into  account under Article 6.12 of the AD Agreement 
and focuses on the analytical problems that it consid ers would arise if filleting-only undertakings were 
considered "producers" in this case and treated as part of the domestic industry.   
7.114  The EC's assertion is difficult to square with the ordinary meaning of the term "produce".  
The verb "to produce" is defined, inter alia , as "[b]ring (a thing) into existence" and ""bring into 
existence by mental or physical labour (a material object)".286  There can be no doubt, in our view, 
that an enterprise engaged in, as the EC puts it, " gutting, beheading, and fi lleting" is engaged in 
"producing", that is, bringing into exis tence, by physical labour, salmon fillets.287  We do not dispute 
that undertakings that only engage in filleting operations, as  opposed to operations engaged in 
growing live salmon, and selling them whole, and/or beheaded, and/or gutted, and/or filleted, and/or 
fresh, and/or frozen, or any combination thereof, ma y have different economic interests.  Thus, an 
investigation concerning a domestic industry compri sing enterprises with more than one of these 
various economic interests may well involve compli cated questions regarding data collection and 
analysis.  Such complications cannot, however, override the plain meaning of the text of 
Article 4.1.288  
7.115  There is no dispute that filleted salmon is within  the scope of the like product identified by the 
EC in this case.  Thus, based on our interpretation of  the plain language of Article 4.1, we consider 
that any enterprise that produced any form of the lik e product should be considered, at least in the first 
instance, a "producer" of the like product, and as such, part of the domestic industry.289    
                                                      
283 By this, we do not mean to suggest that a determination based on information from fewer than all 
domestic producers of the like product will necessarily be insufficient as an element of a decision to impose 
anti-dumping duties.  However, we do see a clear distinc tion between the definition of the domestic industry as 
set out in Article 4.1, and whether the information obtained during the investigation concerning the domestic 
industry, as defined, is sufficient to form the basis of a determination of injury and causation.   
284 EC, Answer to Panel Question 2, para. 6. 
285 EC, FWS, para. 71. 
286 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
287 EC, FWS, para. 71.  
288 The EC argues that its view that filleting-only undertakings are not "producers" of farmed salmon 
represents a "permissible interpretation" of the AD Agre ement.  EC, FWS, para. 74.  It is not clear which 
provision of the AD Agreement the EC is referring to here, Article 4.1 or Article 6.12.  However, we consider 
that whether a particular undertaking "produces" the like product may present an issue of fact in a particular 
investigation (see footnote 289, below) but it does not pr esent an issue of interpreta tion of the AD Agreement. 
289 There may be circumstances in which an enterprise whose product is within the scope of the like 
product may be found to have engaged in a level of activity so low as to justify the conclusion that it did not, in 
fact, "produce" the like product.  However, there was no consideration of the degree of  activity of filleting-only  WT/DS337/R 
 Page 131 
 
 
  7.116  It is clear that the investigating authority neve r considered EC producers of salmon fillets who 
did not also farm salmon fish to be part of the domes tic industry.  This is apparent from the fact that 
the volume of production cited by the EC as "total  domestic production", 22,000 tonnes, is, as we 
understand it, the EC's estimate of the volume of salmon fish farmed by EC salmon growers.290  It 
certainly does not include the volume of salmon fille ts produced by enterprises that produced salmon 
fillets from purchased salmon fish.291  In our view, this wholesale exclusion of an entire category of 
producers from the domestic industry is not compatible  with the definition of domestic industry as set 
out in Article 4.1.   
7.117  The EC, however, argues that since Article 4.1 is a definitional provision, it imposes no 
obligation, and therefore cannot be the basis of a finding of violation.  In our view, merely that 
Article 4.1 sets out a definition does not preclude a panel finding that the decision of the investigating 
authority concerning the appropriate domestic industr y is inconsistent with the AD Agreement.  The 
question whether the EC defined the domestic industr y in a proper manner may well be decisive in the 
consideration of other claims in dispute, i.e., subsidiary claims regarding initiation, as well as claims 
regarding injury and causation.  In our view, it is  necessary to address Norway's claims concerning the 
definition of the domestic industry in order to estab lish whether other determinations were made in 
relation to a domestic industry defined consistently with Article 4.1.   
7.118  In our view, regardless of whether Article 4.1, as a definitional article, itself imposes 
obligations on Members which can be the basis of a finding of violation, it is necessary and 
appropriate to address Norway's claims under Article 4.1 in this dispute.  If the EC's approach to 
defining domestic industry in this case resulted in an  investigation concerning a domestic industry that 
did not comport with the definition set forth in Article  4.1, then it seems clear to us the EC analyzed 
the wrong industry in determining the adequacy of support for the initiation of the investigation under 
Article 5.4 of the AD Agreement, and in consider ing injury and causation under Article 3, committing 
an error which is potentially fatal to the WTO- consistency of the investigating authority's 
determinations on those issues.  
7.119  We note that the question of whether definitional provisions can be the basis of a finding of a 
violation under a covered agreement has been addr essed by several panels, whose decisions support 
our views on the matter.  Thus, the Panel in United States – Softwood Lumber V  noted with respect to 
Article 2.6, which defines like product,  
"Article 2.6 is a definitional article, and as su ch it is not clear to us that it contains in 
itself  obligations on Members, or in any event that it could be the basis for an 
independent  violation.  On the other hand, it appears to us that Canada's claim is 
predicated on the proposition that DOC took an approach to the definition of like product which deviated from that in Article 2.6.  Thus, a threshold and potentially 
dispositive issue is whether DOC in fact took an approach to like product which 
deviated from that of Article 2.6."
292   
The Panel in Argentina – Poultry , considering the same provision as is at issue here, concluded that 
Article 4.1 "imposes an express obligation on Member s to interpret the term "domestic industry" in 
that specified manner" and stated that "if a Member  were to interpret the term differently in the 
                                                                                                                                                                     
undertakings in defining the domestic industry during the investigation.  Therefore, the question is not before us 
on the facts of this case. 
290 EC,  Answer to Panel Question 5, para. 29 . Also, Definitive Regulation,  Recital 38. 
291 See, e.g., Norway, FWS, para. 55 and Exhibit NOR-17. 
292 Panel Report, United States – Softwood Lumber V , para. 7.146.  The Panel went on to conclude that 
"the DOC's approach to "like product" was not inconsistent  with the definition of "like product" in Article 2.6 of 
the AD Agreement ".  Panel Report, United States – Softwood Lumber V , para. 7.158. WT/DS337/R 
Page 132  
 
  context of an anti-dumping investigation, that Member would violate the obligation set forth in 
Article 4.1".
293  In US – Lamb , the Appellate Body found that the United States violated the definition 
of "domestic industry" in Article 4. 1(c) of the Agreement on Safeguards.294  In US – Hot-Rolled Steel , 
the Panel and Appellate Body both found that the United States had violated Article 2.1 of the Anti-
Dumping Agreement, which defines the term "dumping".295  In EC – CVDs on DRAMS , the Panel 
found that the EC violated Article 1.1 of th e SCM Agreement, which defines a "subsidy".296    
 7.120  The only textual basis the EC proposes in support of its view that filleting-only enterprises 
were properly not considered part of the domestic i ndustry is Article 6.12.  However, that provision 
deals with an entirely different i ssue than the definition of the domestic industry.  Article 6, as a 
whole, deals with various issues pertaining to eviden ce in an anti-dumping investigation.  Article 6.12 
specifically requires an investigating authority to provide opportunities for information to be provided 
by certain entities that are not "interested parties" – inter alia , industrial users of the product under 
investigation.  In our view, even granting that  filleting-only undertakings might be considered 
"industrial users" of imported salmon, in that they  "use" one presentation of the like product (salmon 
fish, in some form), they cannot properly be considered to be exclusively industrial users, as they 
themselves are engaged  in producing another presenta tion of the like product (fillets).  As producers 
of salmon fillets, which is within the scope of the like product, such enterprises should, at least 
initially, be considered as part of the domestic industry.
297  As we noted above, there may be 
circumstances in which an investigating authorit y might conclude that certain enterprises whose 
output is part of the like product should not be consid ered "producers", as their level of activity is so 
low as to suggest that they do not actually brin g the like product into existence.  There was no 
consideration of any such possibility in the investig ation at issue here, however, and thus we need not 
resolve this question, either as a matter of law or on the facts of this case.  
7.121  We recognize that, as argued by the EC, this c onclusion has certain implications which may 
need to be addressed by an investigating authority,  particularly with respect to the collection and 
analysis of data for different presentations of th e like product.  However, we do not see how problems 
of data collection and evaluation could possibly trump the plain meaning of the text of Article 4.1.  
Moreover, there is no prohibition in the AD Agreemen t on the examination of different sectors of a 
domestic industry, so long as all sectors are included in the analysis and determination on an even-
handed basis, without favoring any one sector.298  Thus, we see no bar to gathering and analysing 
information for different categories of producer in th e course of an investigation.  That this might 
result in a more complicated investigation and more complex analysis does not undermine our 
conclusion based on the text of Article 4.1.   
7.122  Similar considerations apply to our consider ation of the EC's treatment of producers of 
organic salmon, which again is within the like prod uct as defined by the EC, and "silent" producers.  
The EC has not argued that these enterprises are not producers of the like product, and has not made 
any argument concerning the different nature of these producers, as it did for filleting-only 
                                                      
293 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.338.  
294 Appellate Body Report, US – Lamb , para. 96. 
295 Appellate Body Report, US – Hot-Rolled Steel , para. 240(d), upholding the panel's finding in 
para. 8.1(c). 
296 Panel Report, European Communities – Countervailing Measures on Dynamic Random Access 
Memory Chips from Korea ("EC – Countervailing Measures on DRAM Chips") , WT/DS299/R, adopted 
3 August 2005, paras. 8.1(a), 8.1(b) and 8.1(c). 
297 To the extent filleting-only undertakings in a domestic industry were related to exporters or 
importers of the allegedly dumped product. or were themselves importers of the allegedly dumped goods, 
Article 4.1(i) would allow for their exclusion.  Of course , such exclusion, and the reasons for it, would have to 
be apparent on the face of the determination.  In this cas e, the EC not having included them in the industry in the 
first place, they could not be ex cluded under Article 4.1(i).   
298 Appellate Body Report, US-Hot-Rolled Steel, paras. 195-196.  WT/DS337/R 
 Page 133 
 
 
  undertakings.  Thus, in our view, there is no suppor t for the exclusion of these producers, as a group, 
from the domestic industry. 
7.123  With respect to producers of "certain types" of  salmon, producers of or ganic salmon, "silent" 
producers of salmon, and producers of salmon that  did not provide information in the format 
requested, the EC argues that since the producers it did include in the domestic industry accounted for 
a major proportion of domestic production of the lik e product, it was entitled to not include producers 
of these types.  These arguments raise the second question which we identified above, whether once 
producers of the like product accounting for a major proportion of domestic production of that product 
are included in the domestic industry, other producers need not even be considered.  While this is a 
very interesting issue, of some import, it is not necessary for us to decide it in the context of this 
dispute.  We have concluded that the EC erre d in excluding certain enterprises from the domestic 
industry.  Thus, it is clear that the EC's assessme nt of whether the producers it did include accounted 
for a "major proportion" of domestic production of th e like product is based on incorrect information 
concerning the volume of total domestic production of  the domestic like product.  The EC not having 
even obtained information on, insofar as we can de termine, much less made a determination of the 
proportion of total production of the domestic lik e product accounted for by individual producers, any 
assessment by us would be entirely de novo , which is, of course, an exercise we are prohibited from 
undertaking.  Therefore, we exercise judicial economy in not addressing this aspect of Norway's 
claims. 
7.124  We therefore conclude that the EC's approach to defining the domestic industry in this case 
resulted in an investigation concerning a domestic i ndustry that did not comport with the definition set 
forth in Article 4.1 of the AD Agreement.  As a co nsequence, the EC's determination of support for 
the application under Article 5.4 was based on inform ation relating to a wrongl y-defined industry, and 
is therefore not consistent with the requirements of  that Article.  Furthermore, the EC's analyses of 
injury and causation were based on information relating to a wrongly-defi ned industry, and are 
therefore necessarily not consistent with the re quirements of Articles 3.1, 3.4, and 3.5.   
7.125  Having concluded that the EC's approach to defining domestic industry was erroneous, we 
also consider that the sample of that industry relie d upon by the EC necessarily is itself erroneous, as 
it relates to a wrongly-defined domestic industry.  Nonetheless, we consider it appropriate to address 
Norway's claims on the issue of sampling in more deta il, as they fall within the range of issues which 
we believe it appropriate to address despite our exer cise of judicial economy.  This is because this 
issue may well arise in the context of any actions taken by the EC in implementing our decision. 299  
We therefore go on to consider it. 
7.126  It is clear that there is no specific provision prov iding for sampling in the context of the injury 
aspect of an anti-dumping investigation.  Norway's argument that sampling is prohibited in the injury 
context is thus based on the silence of the Agreemen t on this issue.  In our view, however, the mere 
absence of a specific provision allowing for sampling is not a sufficient basis for finding sampling to 
be prohibited in injury determinations.  In our  view, the mere absence of a provision permitting a 
particular investigative or analytical method in an anti-dumping investigation cannot mean that it is, 
for that reason alone, prohibited.  The AD Agreem ent does not specify all the different methodologies 
of investigation and analysis that might be useful  or appropriate in particular circumstances, and 
cannot be expected to do so.  If applied as a gene ral interpretive principle, Norway's position would 
                                                      
299 Appellate Body Report, Australia – Measures Affecting Importation of Salmon ("Australia – 
Salmon "), WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327, para. 223: "A panel has to 
address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise 
recommendations and rulings so as to allow for prompt  compliance by a Member with those recommendations 
and rulings "in order to ensure effective resolution of disputes to the benefit of all Members". WT/DS337/R 
Page 134  
 
  render the AD Agreement potentially null in numerous situations where it simply does not specifically 
address a question that may arise in an investigation.    
7.127  The silence of the AD Agreement on the questi on of sampling in the context of injury 
determinations is in contrast to the situation re garding dumping determinations.  With respect to the 
dumping aspect of an anti-dumping investigation, Article 6.10 of the AD Agreement specifically 
authorizes, and sets out criteria and methodological guidelines for, the use of limited examination.  
Norway argues that since there is a specific pr ovision allowing for sampling in the context of 
determinations of dumping, the absence of a simi lar provision in the context of determinations of 
injury must be given effect by concluding that sampl ing is prohibited in the latter case.  We do not 
agree, as in our view, there is a distinct differen ce between the determination of injury in an anti-
dumping investigation, and the dete rmination of dumping which provides a logical explanation for the 
lack of a sampling provision in the context of injury determinations. 
7.128  The AD Agreement makes clear that a determination of dumping is individual .  Article 2, 
together with Article 6.10, make it clear that the preferred method for determining dumping is to 
calculate a margin of dumping for each foreign prod ucer or exporter on the basis of that producer's 
own data.  In addition, there are specific rules in the AD Agreement concerning the collection and 
verification of that information.
300  By contrast, only a single injury determination is made in each 
investigation, for the entire domestic industry in quest ion.  Article 3, and the decision of the Appellate 
Body in US - Hot-Rolled Steel , make it clear that a determination of injury is a collective assessment 
for the entire domestic industry as defined by th e investigating authority in the investigation.301  
Moreover,  there is little if any methodological guidan ce for the determination of injury, although it is 
clear that the relevant factors mu st be assessed with respect to the industry, and not individual 
domestic producers.302  Thus, the starting point for injury analysis is aggregate or collective 
information, rather than inform ation for individual enterprises.303  Thus, the calculation of dumping 
margins and the assessment of injury are different t ypes of analytical exercises, leading to different 
types of conclusions. 
7.129  In our view, this implies that, in the absence of a provision specifically allowing for a limited 
examination, as an exception to the general rule of  individual determinations , it would be impossible 
for investigating authorities to make dumping determ inations in certain cases  involving more than 
some relatively limited number of foreign producer s or exporters, given the complexities of the 
investigation and the applicable time limits.  Thus, a specific provision authorizing limited 
                                                      
300 For instance, Article 2.2 sets out detailed rules co ncerning what information may be used and what 
sources may be used to obtain that information for individual enterprises.  Article 2.4 specifies, inter alia , what 
adjustments, and in what circumstances, may be made to the information obtained from individual enterprises.  
Article 6.1, and particularly Article 6.1.1 sets out rules governing the collection and handling of information.  
Article 6.7 and Annex I set out rules for the verification of information obtained from individual foreign firms.   
301 Appellate Body Report, US – Hot-Rolled Steel, paras. 204-206.  See also, Panel Report, EC – Bed 
Linen , para. 6.182 (injury information and determination limited by definition of industry – investigating 
authority may not look at facts concerning companies not within the defined domestic industry.) 
302 We note that Article 4.1(ii) provides that "inj ury may be found to exist even where a major portion 
of the total domestic industry is not injured, provided ...that the dumped imports are causing injury to the 
producers of all or almost all of the production within" the regional market considered.  This specific standard applicable in the case of regional industry lends further support to our view that injury in non-regional industry 
cases is a question to be answered with reference to the entire domestic industry, and certainly not with 
reference to individual producers.  This is not to say that individual producers, or groups of producers, may not be examined and analysed separately in the course of an injury investigation and analysis, but merely that the 
final conclusion concerning the existence of  injury must encompass the entire industry. 
303 Of course, much of the necessary information may well be obtained from individual enterprises, but 
this is not the only relevant source – information from industry groups and associations may also be gathered 
and evaluated.  WT/DS337/R 
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  examination is necessary in order to ensure th at the anti-dumping mechanism can function.  By 
contrast, since the injury determination is an aggregate one, based on a collective assessment of 
information, there is no similar need for a specific provision for sampling.  There is certainly nothing 
in the AD Agreement that would necessitate obtai ning information from each domestic producer in 
the industry on each element of an injury analysis.304  There is no guidance in the AD Agreement on 
the sources, collection or verification of information concerning injury.  In light of this absence of 
methodological guidance, and the aggregate nature of  the injury determination, we are unsurprised 
that the specific question of sampling in this c ontext is not addressed in the AD Agreement, and 
cannot conclude that this absence requires the conc lusion that sampling in the context of injury 
determinations is prohibited.  Such a conclu sion would make it impossible for investigating 
authorities to make injury determinations in certa in cases involving more than some relatively limited 
number of domestic producers.305  We therefore dismiss Norway's claim that the use of sampling by 
the EC investigating authority was in violation of Articles 3.1, 3.4 and 3.5 
7.130  We do consider that the AD Agreement establish es some general parameters for the use of 
sampling in the injury context.  Thus, in our view, the obligation in Article 3.1 that a determination of 
injury be based on "positive evidence" and involve an "objective examination" of the volume, price 
effects, and impact of dumped imports, limits an in vestigating authority's discretion both in choosing 
a sample to be examined in the context of in jury, and in collecting and evaluating information 
obtained from the sampled producers.  The Appellate Body stated, in US – Hot-Rolled Steel , that "an 
'objective examination' [under Article 3.1] require s that the domestic industry, and the effects of 
dumped imports, be investigated in an unbiased manner, without favoring the interests of any 
interested party, or group of interested parties, in the investigation."306  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.307   
                                                      
304 We note in this regard that Article 3.4 specifies th at the list of relevant factors to be considered in 
examining the impact of dumped imports on a domestic industry is not exhaustive, and no one or several of 
those factors can necessarily give decisive guidance.  Article 3.2 contains a similar provision concerning the 
impact of dumped imports on prices.  These  provisions support our view that a determination of injury to a domestic industry may be made even in a case in wh ich there is not complete information concerning all 
relevant factors for all domestic producers in the industry.    
305 Norway recognized this consequence of its position,  when it replied to a Question by the Panel, 
stating that:  
"The authority must seek information from each  and every producer comprising the domestic 
industry, as defined by the investigating authority. ...  The degree and quality of the 
information that an authority s ecures for each of the producer s may differ from producer to 
producer.  However, an authority must make an effort to secure relevant information from all domestic producers – which are, afte r all, within its jurisdiction.  Where an authority is unable 
to obtain information, it can, if necessary, obtain the "best information" available from 
secondary sources under Article 6.8 of the Anti-Dumping Agreement ."   
In our view, this would impose an excessive burden on investigating authorities that is eliminated by 
recognition of the permissibility of sampling.   
306 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
307 In response to a question from the Panel, No rway stated its disagr eement with the premise 
underlying the question, that is, the assumption that sampling for purposes of injury determinations is not 
prohibited.  Norway went on to state that, assuming it were not, the conditions governing sampling would be drawn from footnote 13, and that, further "the obligation in Article 3.1 to conduct an "objective examination" 
based on "positive evidence" requires that a sample be "unbiased", "conform to the dictates of the basic 
principles of good faith and fundamental fairness", and not "favour[] the interests of any interested party or group of interested parties".  Norway, Answer to Panel Question 51, para. 44, citing Appellate Body Report, US 
– Hot-Rolled Steel , para. 193. WT/DS337/R 
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  7.131  Norway, however, relies on the decision of the Appellate Body held in US – Hot-Rolled Steel  
in support of its view that sampling is prohibited in  the injury context.  Th at case did not involve the 
question of sampling at all.  Rather, in that case, the Panel was faced with a situation where the investigating authority found that the domestic industry comprised production for the merchant 
market, and captive production for internal consumpti on, and considered information for the merchant 
market segment of the industry separately, with out a commensurate separate consideration of the 
captive production segment.  Thus, the conclusion of  the Appellate Body, that Article 3 of the 
AD Agreement requires "[t]he investigation and ex amination must focus on the totality of the 
'domestic industry' and not simply on one part , sector or segment of the domestic industry"
308 says 
nothing, in our view, relevant to the questi on of whether sampling is permitted in injury 
determinations. 
7.132  Norway also argues that assuming sampling is permitted in injury determinations, it is 
permitted only in the circumstances provided for in  footnote 13 of the AD Agreement, which it argues 
is the only provision authorizing sampling of th e domestic industry in the importing country.  
Footnote 13 is appended to Article  5.4 of the AD Agreement, which requires investigating authorities 
to determine the degree of support for an appli cation for anti-dumping duties expressed by domestic 
producers.  Thus, not only is footnote 13 not, on its fa ce, applicable to the determination of injury 
under Article 3, but it is in the context of a requi red determination that involves assessments of the 
individual positions of domestic producers to determin e whether there is, in the aggregate, adequate 
support for the application.  Thus, as is the case w ith dumping determinations, there would seem to be 
a logical rationale for an explicit authorization of  sampling in this context as an exception to what 
might otherwise be impossible, that  is, determining the views of an "exceptionally large" number of 
domestic producers in a "fragmented industr[y]" with  respect to the application.  However, as 
discussed above, the situation with respect to injury determinations is different, and we see no basis to 
impose the conditions set out in footnote  13 on sampling for injury assessments.309            
7.133  Given that we have determined that the EC's de finition of the domestic industry in this case is 
not consistent with Article 4.1 of the AD Agreemen t, we do not go on to consider whether the sample 
it selected satisfies these considerations, as we have no relevant determination to review in this regard, 
and will not undertake an independent  analysis of this question.  
                                                      
308 Appellate Body Report, US – Hot-Rolled Steel , para. 190.   
309 In addition, we see no basis to impose the criteri a of Article 6.10 on sampling in the context of 
injury.  It is not clear that the "lar gest volume that can reasonably be i nvestigated" criterion of Article 6.10 
would an appropriate basis for the selection of a sample in the context of an injury investigation.  On the dumping side, ensuring that an adequate portion of total exports is investigated might be sufficient to justify 
imposition of an anti-dumping duty, particularly given that  there is a possibility for subsequent refunds if an 
individual producer is not actual dumping.  In the investigation of injury, factors other than the volume of production would seem at least equally, if not more, relevant to ensuring that a sample adequately represents the 
domestic industry as a whole, sufficient to justify a finding of injury to the domestic industry.  Thus, while the 
volume of production covered by a sample may be rele vant in assessing whether a determination based on 
information from sampled domestic producers satisfies the requirements of Article 3.1, other considerations may 
also be as relevant, or potentially more relevant.  WT/DS337/R 
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  E. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF DUMPING 
WITH THE AD A GREEMENT  
1. Alleged Inconsistency of the EC's Limite d Examination with Article 6.10 of the 
AD Agreement  
(a) Alleged insufficiency of Norway's request for establishment 
7.134  Before turning to Norway's substantive cl aims, we address the European Communities' 
argument that Norway's claim under Article 6.10 is out side the Panel's terms of reference.  The EC 
raised this objection in its second written submission.310 
7.135  The European Communities argues that Norway's claim that it acted inconsistently with 
Article 6.10 of the AD Agreement by excluding "mere exporters" from the scope of its examination of 
dumping, is outside of the Panel's terms of re ference because it was not properly identified in 
Norway's panel request, as required by Article 6.2 of the DSU.  In particular, the European Communities alleges that part of the Article 6.10 claim presented by Norway in its written submissions in this dispute is different from the claim presented in its panel request, which according 
to the European Communities, concerned the selection of interested parties investigated, not the 
exclusion of "mere exporters" from the scope of the i nvestigating authority's investigation.  
Furthermore, the European Communities contends  that the question whether an investigating 
authority is permitted to exclude "mere exporters" from the scope of  its investigation does not fall 
within the subject matter of the obligations contained in Article 6.10, but rather Article 2.  Thus, the 
European Communities argues that Norway's claim is founded on the wrong legal basis and asks the 
Panel to dismiss Norway's complaint.
311 
7.136  Norway argues that paragraph 4 of its panel requ est plainly identified Article 6.10 as the legal 
basis for its claim.  Furthermore, according to  Norway, the European Communities' view that 
Article 6.10 permits the exclusion of  "mere exporters" is an interpre tative question that does not alter 
the Panel's terms of reference.312 
7.137  It is well established that a panel's terms of reference are governed by a complainant's panel 
request, and that a panel request must be consistent with Article 6.2 of the DSU.  Article 6.2 reads: 
"The request for the establishment of a pane l shall be made in writing.  It shall 
indicate whether consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly.  In case the applicant re quests the establishment of a panel with 
other than standard terms of reference, th e written request shall include the proposed 
text of special terms of reference." 
7.138  In general, when faced with a question relating to  the scope of its terms of reference, "a panel 
must scrutinize very carefully the request for estab lishment of a panel to ensure its compliance with 
both the letter and the spirit of Article 6.2 of the DSU".313  To this end, below we begin our analysis of 
the European Communities' objection by closely ex amining the relevant text of Norway's panel 
request, which reads: 
                                                      
310 EC, SWS, para. 3. 
311 EC, SWS, paras. 3-16. 
312 Norway, Oral Statement at the second substa ntive meeting (hereinaft er "Norway Second Oral 
Statement"), para. 45. 
313 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution 
of Bananas ("EC – Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 142. WT/DS337/R 
Page 138  
 
  "Norway considers that the measure is incons istent with, at least, the obligations of 
the European Communities under the following provisions of the Anti-Dumping 
Agreement  and, where specified, the GATT 1994: 
... 
 4. Article 6.10 because the European Communities determined an 
individual margin of dumping for a selection of producers that neither 
constituted a statistically valid sample nor represented the largest percentage 
of the volume of exports from Norway that could reasonably be investigated; 
and because the European Communities failed to determine an individual 
margin of dumping for one of the producers included by the European 
Communities in the defective sample."
314 
7.139  The European Communities' objection is centred on the first part of item 4 of the panel 
request, where Norway explicitly contests the ma rgin of dumping calculated for a "selection of 
producers" on the grounds that they allegedly did not constitute a statistically valid sample nor have 
exports representing the largest percentage of the volume of exports from Norway that could 
reasonably be investigated.  The Panel understands  that the European Co mmunities' concerns are 
twofold:  First, it contends that nothing in the te xt of the panel request indicates that Norway is 
making a claim under Article 6.10 of the AD Agreem ent in respect of the exclusion of "mere 
exporters" from the scope of its investigation.  In ot her words, to the extent that Norway contests the 
exclusion of "mere exporters" from the scope of th e investigation, the European Communities argues 
that Norway is now making a new claim that cannot  be found in the panel request.  Second, the 
European Communities is of the view that Article 6.10 cannot be the correct legal basis for bringing 
such a claim, because the exclusion of "mere expor ters" from a dumping investigation is, according to 
the European Communities, a matter th at falls within the scope of Article 2 of the AD Agreement, not 
Article 6.10. 
7.140  Norway's panel request identifies a concern with the "selection of producers" actually 
investigated by the European Co mmunities and the extent to which they "represented the largest 
percentage of the volume of exports from Norway that could reasonably be investigated".  This 
concern is repeated in Norway's First Written Su bmission, which explicitly identifies the "European 
Communities' selection of the sample" and the allege d failure to "examine the largest percentage 
volume of Norway's exports to the European Co mmunities" as the focus of the claim that the 
European Communities acted inconsistently with Article 6.10.315  The exclusion of "mere exporters" 
from the scope of the investigation is raised  in several passages of Norway's First Written 
Submission.316  However, it is clear from reading Norway's First Written Submission that this 
assertion is made not for the purpose of making a new claim under Article 6.10, but rather to substantiate the Article 6.10 claim that is already set out in Norway's panel request.  In particular, 
Norway argues that the European Communities' ex clusion of all non-producin g exporters from even 
being considered for inclusion in the EC's inves tigation of dumping meant that the exports of the 
producers actually investigated did not represent the la rgest percentage of the volume of exports that 
could reasonably be investigated.  According to Norway, six of the non-producing exporters excluded 
from the investigation had greater volumes of exports than eight of the ten producers actually investigated.
317  Thus, Norway's First Written Submission reveals that one of the arguments made to 
substantiate its claim that the Eu ropean Communities' "selection of producers" was inconsistent with 
Article 6.10 was that non-producing exporters were excluded per se  from the investigation.  In this 
                                                      
314 WT/DS337/2, page 2. 
315 Norway, FWS, headings V.A, V.A(iii) and paras.  284, 287 and 319.   
316 Norway, FWS, paras. 294, 297-319. 
317 Norway, FWS, paras. 293.  WT/DS337/R 
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  light, we reject the European Communities' contention that Norway claims that the exclusion of "mere 
exporters" from the dumping investigation was inconsistent with Article 6.10. 
7.141  Next, we turn to the European Communities' submission that Article 6.10 is the incorrect 
legal basis for a claim that the exclusion of "mere exporters" from a dumping investigation is 
impermissible.  First, we note that because we have  found that Norway is not bringing such a claim, 
there is no basis to support the European Communiti es' objection.  In any event, the EC's argument 
here relates to the substance of Norway's case, rath er than to the sufficiency  of Norway's request for 
establishment of a panel.  Accordingly, we will a ddress it, to the extent required, as part of our 
analysis of the substance of Norway's Article 6.10 claim.   
7.142  For the above reasons, we therefore dismi ss the European Communities' objection to 
Norway's claim in respect of Article 6.10 of the AD Agreement. 
(b) Arguments of the parties 
(i) Norway 
7.143  Norway claims that, by excluding all non-producing exporters  from its examination of 
dumping, and limiting its examination to ten Norwegian exporting producers , the European 
Communities acted inconsistently with Article 6.10.   According to Norway, having made the decision 
to examine ten interested parties, the Europ ean Communities was obliged under Article 6.10 to 
investigate the ten interested par ties with the largest possible volume of exports from Norway to the 
European Communities, irrespective of whether th ese interested parties were producers, producer-
exporters or non-producing exporters.  Norway asser ts that the facts show that the European 
Communities failed to comply with this alleged re quirement, because it examined only three of the 
ten interested parties with the largest e xport volumes to the European Communities. 
7.144  Norway submits that nothing in Article 6.10 of the AD Agreement supports the view that one 
category of interested parties can simply be ex cluded from the investigation of dumping.  Under 
Article 6.10, an investigating authority must, as a rule, determine an individual margin of dumping 
"for each  known producer or exporter " (emphasis added by Norway).  This general rule places 
producers and exporters on an equal footing in an inv estigation.  In Norway's view, the word "or" in 
the text of the first sentence of Article 6.10 has a conjunctive meaning, implying that investigating authorities are required to calculate a margin of  dumping for both producers and exporters.  This, 
according to Norway, is supported by the text of several other provisions of the AD Agreement, as 
well as certain statements of the Appellate Body in the Mexico – Rice case,
318 and the Panel in the 
Korea – Paper case.319  Thus, although the investigating authority is entitled to depart from the 
general rule by engaging in a lim ited examination, nothing in the text of Article 6.10 permits an 
investigating authority to exclude one or other category from the investigation.   
7.145  Norway further contends that the exclusion of non-producing exporters  from an examination 
of dumping could give rise to distortions that make  affirmative dumping determinations more likely 
because the excluded category of interested parties might have had higher export prices, lower 
domestic prices or lower costs of production.  Referr ing to certain Appellate Body statements made in 
the US – Softwood Lumber V (Article 21.5 – Canada)  and US – Hot-Rolled Steel  case,320 Norway 
                                                      
318 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 216, citing Appellate 
Body Report, US – Hot-Rolled Steel , para. 118. 
319 Panel Report, Korea – Certain Paper , para. 7.157. 
320 Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from 
Canada – Recourse to Article 21.5 of the DSU by Canada ("US – Softwood Lumber V (Article 21.5 – Canada)") , 
WT/DS264/AB/RW, adopted 1 September 2006, para. 142; Appellate Body Report, US – Hot-Rolled Steel , 
para. 196. WT/DS337/R 
Page 140  
 
  argues that such a result is impermissible because it would not be even-handed and fair.  Moreover, 
Norway submits that investigating authorities must  consider all categories of interested parties 
because pursuant to Article 9.4 of the AD Agreemen t, the anti-dumping duty that may be imposed on 
non-investigated parties is based on the determinations  of dumping made in respect of the investigated 
parties. 
7.146  Finally, Norway argues that even assuming that the European Communities was entitled to 
exclude all non-producing exporters  from its examination of dumping, the European Communities 
nevertheless acted inconsistently with Article 6. 10 by failing to investigate the ten producers or 
producer/exporters with the largest volume of sa lmon exports to the European Communities.  In 
particular, Norway asserts that th e European Communities left two producers (Salmar and Bremnes) 
out of its investigation despite the fact that their exports were greater than other producers included in 
the European Communities' investigation. 
(ii) European Communities 
7.147  The EC acknowledges that it chose to investigate only producers and exporting producers , 
and that it excluded all non-producing exporters  from its examination of dumping.  However, 
according to the EC, the AD Agreement not only perm its IAs to focus an examination of dumping on 
producers and exporting producers rather than non -producing exporters, but it also identifies a 
preference for doing so.  The EC presents a number of arguments in support of this position.  First, the European Communities argues that the language of Article 6.10 does not compel IAs to examine non-
producing exporters.  In this regard, the EC argues that the reference to "exporter or producer" in 
Article 6.10 (as well as in other provisions of th e AD Agreement) could be read in "a disjunctive 
manner so that if a margin is calculated for [a ] producer then no corresponding margin need be 
calculated for the exporter of the goods in question".
321  In this regard, the EC argues that, under 
certain circumstances, to calculate a margin of dumping for both exporters a nd producers would result 
in double-counting and risk applying two sets of anti-dumping duties to a single consignment of imports. 
7.148  Secondly, the EC finds support for its position that a focus on producers is preferable under 
the AD Agreement in the language of Article 2 of the AD Agreement, which it argues shows that the 
notion of normal value is closely connected to the calculation of production costs, i.e., a producer's 
pricing behaviour, rather than an exporter.  Moreover, the EC argues that a preference for 
investigating producers over exporters can also be found in Article 2.5 of the AD Agreement.  In 
particular, the EC points to the fact that pursuan t to this provision, IAs are entitled to compare the 
export price from an exporter in an intermediate count ry with the price of a domestic sale made by a 
producer in the country of origin, notwithstanding the fact that the exporter may have made sales in the intermediate country at issue.  The EC also  argues that a preference for assessing margins of 
dumping for producers and not exporters would increase the effectiveness of anti-dumping measures, a consideration that the EC argues must be regarded as part of the object and purpose of the 
AD Agreement. 
7.149  The EC responds to Norway's allegation that  the exclusion of non-producing exporters 
rendered its determination biased by arguing that the Appellate Body reports relied upon by Norway 
give no support to the proposition that the mere possibility of different dumping margin outcomes 
makes a particular methodology bi ased and illegal.  In any case, th e EC argues that Norway has 
provided no factual basis for its claim that the Eu ropean Communities should have concluded that the 
exclusion of exporters from the sample would necessarily have distorted the outcome of the 
investigation. 
                                                     
 
321 EC, FWS, para. 142.  WT/DS337/R 
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  7.150  The EC submits that the identification of what level of exports can "reasonably be 
investigated" may be determined in the light of the consultation procedure that is envisaged under 
Article 6.10.1 of the AD Agreement.  According to  the EC, this is exactly what happened in the 
present case: it chose, on the basis of the facts before it, the 10 producers and producing exporters that 
made the largest volume of exports to the EC, in  the light of the representations made by the 
Norwegian Seafood Federation ("FHL") during the course of its consultations.  In this regard, the EC 
asserts that Bremnes was not included in its investig ation, because it was not identified by FHL in the 
list of companies it requested the EC to use for lim ited investigation purposes.  As regards Salmar, a 
company that the EC acknowledges was included in FHL's list, the EC argues that it had no 
information on the level of exports made by that company and no reason to suspect that these would 
be large. 
(c) Arguments of the third parties 
(i) Hong Kong, China 
7.151  Hong Kong, China argues that the use of samp ling techniques for the purpose of selecting the 
parties examined in an AD investigation cannot result in the exclusion of an entire category of 
interested parties.  Hong Kong, China argues that such a result finds no support in Article 6.10 nor 
any other provision of the AD Agreement.  Accordin g to Hong Kong, China, sampling is an exception 
to the general rule of Article 6.10 which requires investigating authorities to determine an individual 
dumping margin for each known exporter or producer.  Th erefore, it must be strictly interpreted.  In 
the view of Hong Kong, China, sampling deprives interested parties of their usual due process rights, and to the extent that the composition of the inves tigated parties has a significant impact on the final 
margins of dumping imposed on selected as well as non-selected parties through the application of 
Article 9.4, the criteria used to select the parties investigated must guarantee that the selected parties 
are representative of all exporters and producers fro m the country of export.  Finally, Hong Kong, 
China also contends that the exclusion of exporters, or other categories of interested parties, may lead 
to biased results in dumping determination, which ru ns contrary to the obligation under Articles 2 and 
9 to treat exporters and producers evenhandedly as we ll as the requirement of providing all interested 
parties a full opportunity for the defence of th eir interests in accordance with Article 6.2. 
(ii) United States 
7.152  The United States argues that Article 6.10 does not  specify how an investigating authority is 
to arrive at the largest percentage or which comp anies must be included in a sample of interested 
parties selected in accordance with the second sampling method possible under Article 6.10.  
According to the United States, circumstances may exist in which an investigating authority may 
appropriately limit its examination to certain categor ies in accordance with Article 6.10.  Therefore, 
the United States disagrees with Norway's view that, as a general rule, Article 6.10 precludes an 
investigating authority from limiting the selection of investigated parties to particular categories.  
Finally, the United States contends that the extent  to which the companies se lected by the European 
Communities were representative of the industry as a whole, such as through th eir cost structure and 
pricing behavior, is immaterial to evaluating th e WTO-consistency of the European Communities' 
sampling decision, because Article 6.10 does not oblige investigating au thorities usi ng the second 
sampling methodology to generate a "statistically valid" sample, a requirement that applies only when 
the first sampling methodology is used. 
(d) 
Evaluation by the Panel 
7.153  Norway contends that the limitation of the EC 's dumping investigation to ten interested 
parties that were either producers or integrated producer-exporters of salm on was inconsistent with 
Article 6.10 of the AD Agreement because it did not resu lt in an examination of the largest percentage WT/DS337/R 
Page 142  
 
  of the volume of salmon exports to the European Co mmunities that could reasona bly be investigated.  
Norway argues that the EC failed to comply with  Article 6.10 because: (i) six of the non-producing 
exporters not investigated made gr eater export sales to the EC than eight of the companies that were 
investigated; and (ii) two producers ([[XXX]] an d [[XXX]]) not included in the ten companies 
investigated made greater export sales to the EC th an several of the producer and integrated producer-
exporter companies that were investigated.  Th ese two factual assertions (which the EC does not 
contest), form the basis of the two separate lines of argument that Norway uses to substantiate its 
claim.  We will address the merits of each of these arguments in turn.  However, before doing so, we 
briefly set out some of the pertinent facts surroundi ng the investigating authority's decision to conduct 
a limited investigation and its selection of the interested parties to investigate. 
(i) Facts 
7.154  The possibility that the investigating authority would conduct its investig ation into imports of 
farmed salmon from Norway on the basis of a limited number of interested parties was first publicly communicated in the Notice of Initiation publishe d in the Official Journal on 23 October 2004.  
Shortly thereafter, on 26 October 2004, the investiga ting authority met with a representative of the 
Norwegian Seafood Federation ("FHL"), who also  acted on behalf of the Norwegian Seafood 
Association,
322 to discuss the initiation of the investigation.   
7.155  In response to the request for information made  in the Notice of Initiation, the investigating 
authority received information from 102 companies by the 8 November 2004 deadline.323  These 
included the responses of 89 companies to the "sampling questionnaire", coordinated through the FHL.
324  Of the 102 companies that provided informat ion, 38 were producers of farmed salmon that 
also exported farmed salmon to the European Communities either directly or via unrelated 
exporters.325 
7.156  On 16 November 2004, the investigating authority asked a number of companies a series of 
follow-up questions focused on clarifying the rela tionships between companies operating in the 
Norwegian salmon industry.326  One further meeting between the investigating authority and the FHL 
was held on 17 November 2004 to discuss the identity  of the companies that would be selected for 
examination.327  At this meeting, the FHL was apparently  informed that the investigating authority 
intended to focus its examination at the producer level, and exclude all non-producing exporters from 
its investigation.328  On 18 November 2004, the FHL sent an e-mail to the investigating authority 
referring to the meeting of 17 November 2004 and proposing ten companies for inclusion in the 
investigating authority's limited investigation.329 
7.157  On 22 November 2004, the investigating authority informed the FHL of the ten companies 
that would form part of its limited investigation.330  On 24 November 2004, the FHL submitted a letter 
to the investigating authority requesting that three of the companies selected for the investigation be 
replaced with two non-producing exporters and one producer.331  By letter of the same date, the 
investigating authority responded to the FHL indica ting that it intended to pursue its "normal anti-
                                                      
322 See, Note for the File , 28 October 2004, Exhibit EC-55; NSL Power of Attorney , 
22 November 2004, Exhibit EC-56. 
323 Provisional Regulation, Recital 16  
324 Exhibit NOR-38. 
325 Provisional Regulation, Recital 15  
326 Exhibit NOR-51. 
327 EC, FWS, para. 176. 
328 See, Letter of the European Communities to the FHL , dated 24 November 2004, Exhibit EC-6.   
329 Exhibits EC-4 and EC-52. 
330 Exhibit NOR-39. 
331 Exhibit NOR-47.  WT/DS337/R 
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  dumping policy" of "performing dumping calculati ons and identify dumping margins on producers 
rather than exporters" and confirming the compan ies originally selected for the investigation.332  This 
letter also explained that the selected companies wo uld receive a copy of the questionnaire by e-mail 
to be sent on the same day. 
7.158  On 2 December 2004, the Norwegian Government delivered a Note Verbale  to the EC, in 
which it argued that the investigating authority's sel ection of companies for the limited investigation 
was not "representative".  It urged the EC to recons ider the selected companies, in the light of the 
representations made by the FHL.  In th is regard, the Norwegian Government's Note Verbale  
identified the same ten companies listed in the FHL's final proposal to the investigating authority, as a 
selection of companies that would achieve a "representative" outcome.333  The FHL submitted another 
letter to the investigating authority on 3 December 2004, in which it stated that it did not regard the 
companies finally selected for the limited investig ation to be "representative for the Norwegian 
salmon industry", and that it considered the investigating authority's selection unilateral.334   
7.159  The investigating authority's decision to carry out its investigation at the level of producers 
and producer exporters was confirmed in the Provisi onal Regulation, which in pertinent part, reads: 
"In view of the large number of companies involved, it was decided to make use of 
the provisions for sampling and, for this pur pose, a sample of companies, with the 
largest export volumes to the European Communities was chosen, in consultation 
with the Norwegian authorities. There were some issues that could not be resolved 
with the Norwegian authorities, in particular concerning the exclusion from the sample of certain exporters with relati vely low export volumes to the European 
Communities of the product concerned. The requests made by the Norwegian 
authorities would have meant that the princi ple for selection of the sample, i.e. to 
include as many companies that could reas onably be investigated within the time 
available with the largest possible represen tative volume of exports, would not have 
been respected. Therefore those claims coul d not be accepted. The sample comprises 
the ten largest Norwegian exporting producer s, representing almost 80 per cent of the 
export volume to the Communities of all co-operating exporting producers."
335 
7.160  Thus, the investigating authority decided to i nvestigate ten companies chosen from a pool of 
interested parties that was made up of 38 producer s and integrated producer-exporters.  This pool of 
interested parties excluded all non-producing exporters. 
(ii) The exclusion of non-producing exporters of farmed salmon from the investigation 
7.161  The first argument made by Norway in support of  its Article 6.10 complaint is centred on the 
investigating authority's exclusion of all non-producing exporters from the investigation.  In particular, Norway argues that the investigating au thority's selection of the ten interested parties 
investigated was inconsistent with the second limite d investigation technique described in the second 
sentence of Article 6.10 because the investigating authority excluded, ab initio , all non-producing 
exporters from even being considered for selection.  Article 6.10 reads: 
                                                     
 
332 Exhibit EC-6.  This exhibit notes that the inves tigating authority's intention to follow "normal anti-
dumping policy" was also made known to FHL at the meeting of 17 November 2004.  Moreover, the 
investigating authority communicated its intention to " carry out a normal investigation in line with normal 
policy applied in AD cases" and make "dumping calculations for each producer in the sample" in a letter to the 
FHL dated 23 November 2004, Exhibit EC-5. 
333 Exhibit EC-59. 
334 Exhibit EC-53. 
335 Provisional Regulation, Recital 17. WT/DS337/R 
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  "The authorities shall, as a rule, determine an individual margin of dumping for each 
known exporter or producer concerned of th e product under investigation.  In cases 
where the number of exporters, producers, im porters or types of products involved is 
so large as to make such a determination impracticable, the authorities may limit their 
examination either to a reasonable number of  interested parties or products by using 
samples which are statistically valid on the basis of information available to the 
authorities at the time of the selection, or to  the largest percentage of the volume of 
the exports from the country in question which can reasonably be investigated." 
7.162  Article 6.10 first sentence requires that, as a ru le, an individual margin of dumping must be 
determined for "each known exporter or producer concerned".  The second sentence provides that 
when "such a determination" – that is, when a de termination of an indivi dual margin of dumping for 
"each known exporter or producer concerned" – woul d be impracticable because of the large number 
of, e.g., exporters and/or producers, one of two fo rms of limited examination may be possible.  In 
other words, when there is a large number of "known exporter[s] or producer[s] concerned", an 
investigation may be limited to a smaller number of the "known exporter[s] or producer[s] concerned" 
through the application of one of two limited examin ation techniques.  In our view, it follows that the 
starting point for the application of the limited examination techniques set out in the second sentence 
of Article 6.10 is the pool of interested parties making up all of the "known exporter[s] or producer[s] 
concerned" for whom, because of their large number, it is "impracticable" to calculate an individual 
margin of dumping.  Thus, the "statistically va lid" sample referred to in the second sentence of 
Article 6.10 is a "statistically valid " sample of all of the "known exporter[s] or producer[s] concerned" 
for whom it is "impracticable" to calculate an indi vidual margin of dumping.  Likewise, the "largest 
percentage of the volume of the exports ... which can be reasonably investig ated" is the "largest 
percentage of the volume of the exports ... which can be reasonably investigated" in respect of all of 
the "known exporter[s] or producer[s] concerned" fo r whom it is "impracti cable" to calculate an 
individual margin of dumping. 
7.163  All this implies that the identification of the pool of "known exporter[s] or producer[s] 
concerned" will be central to the selection of inte rested parties that is envisaged in the second 
sentence of Article 6.10.  It follows that an assessme nt of whether a selection of interested parties has 
been made consistently with the second sentence of Article 6.10 may involve checking whether the 
starting pool of interested parties from which that sel ection was made is permissi ble.  If there has been 
an error in the identification of the starting pool of "known exporter[s] or producer[s] concerned", this 
would, in our view, invalidate the selection of inte rested parties carried out under the terms of the 
second sentence of Article 6.10, at least to the exte nt that it resulted in a lower percentage of the 
volume of exports being investigated than could ot herwise have reasonably been achieved.  To this 
extent, we find that the exclusion of a particular  category of interested parties from even being 
considered for selection in the group of interested parties investigated is an issue that falls squarely 
within the scope of Article 6.10 of the AD Agreement. 
7.164  Thus, the threshold question that is  before us under this part of Norway's claim is whether it is 
permissible under Article 6.10 of the AD Agreement for an investigating authority to exclude non-
producing exporters from the "known exporter[s] or producer[s]" that serve as the starting point for 
the selection of the interested parties investig ated pursuant to the second limited investigation 
technique described in the second sentence of Article 6.10. 
7.165  We recall that the first sentence of Article 6.10 requires investigating authorities to determine 
an individual margin of dumping for "each known exporter or  producer concerned" (underline 
added).336  The word "or" has multiple grammatic al functions, the most common being the 
                                                      
336 The full text of Article 6.10 is reproduced above at para. 7.161.  WT/DS337/R 
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  introduction of two or more alternatives into a phrase or sentence.337  This suggests that the obligation 
set out in the first sentence of Article 6.10 to "d etermine an individual margin of dumping" could be 
understood as leaving open the possibility to determ ine an individual margin of dumping for only 
"each known exporter" or, alternatively, only "each known ... producer".  In practice, the choice of 
alternatives (where the exporters and producers are dis tinct) may be dictated by the particular facts of 
the proceeding at issue.  For in stance, when there are only known exporters or only known producers, 
it may be possible to investigate, and hence determ ine an individual margin of dumping, for only one 
of these categories of interested parties.  However, on its face, nothing in the text of the first sentence 
of Article 6.10 indicates that a choice of alternativ es may not also be possible when there are both 
known exporters and known producers.  Indeed, such a possib ility follows naturally from the ordinary 
meaning of this provision's language.  A second usag e of the word "or" is to connect two words 
denoting the same thing.338  Thus, the obligation to determine an individual margin of dumping for 
each known exporter or producer may also be understood as an obligation to determine an individual margin of dumping for one and the same entity, a result that would obtain whenever a known exporter 
was also a producer. 
7.166  In our view, neither of these two grammatical f unctions of the word "or" supports Norway's 
interpretation of Article 6.10.  In this regard, we find it particularly  telling that the drafters of the 
AD Agreement chose to use the word "or" and not the word "and" in agreeing on the text of this 
provision.  This choice of language suggests the drafte rs intended that Members be left with discretion 
to choose the focus of their investigations.  I ndeed, though it is clear that the AD Agreement 
envisages that the pricing behaviour of both export ers and producers may be examined for the purpose 
of determining the existence of dumping, there is no  preference to investigate one or the other.  The 
provisions of the AD Agreement relating to the cal culation of normal value and export price apply 
equally to investigations in respect of  both types of interested parties.  
7.167  Thus, the ordinary meaning of the text in Article 6.10 suggests that Members may choose to 
focus their investigations on either all known expor ters, all known producers, or all known exporters 
and producers.  We see that there may well be important reasons for making such a choice.  For 
instance, in certain circumstances, a focus on bot h known exporters and know n producers may result 
in the calculation of two margins of dumping in re spect of the same export transactions.  This may 
arise whenever a producer makes indirect export sal es through a non-related exporter (or trader) that 
sells part of the products purchased from the producer on the domestic market.
339  By including both 
the exporter and the producer in the investigation, Article 6.10 would dictate that an individual margin 
of dumping would have to be calculated for each entity .  Thus, two determinations of the existence of 
dumping would have to be made fo r the same export transactions.   
7.168  We do not believe that the first sentence of Artic le 6.10 was intended to be interpreted in a 
manner that would require two, potentially very diff erent, determinations of the existence of dumping 
in respect of the same export transactions.  Thus, in our view, the ordinary meaning of the first 
sentence of Article 6.10 suggests that the "known expo rter[s] or producer[s]" that serve as the starting 
                                                      
337 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
338 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
339 In its response to Panel Question 77, Norway ar gues that a sale by a producer to an unrelated 
exporter (or a trader) is a domestic sale, which is "not relevant in assessing a producer's export pricing behaviour for the purpose of a dumping determination".  However, Article 2.1 makes clear that it is only sales that are 
"destined for consumption in the exporting country" that may qualify as domestic sales.  Thus, where a producer 
sells to an unrelated exporter (or a trader) knowing that  the product will be exported, that sale cannot, in our 
view, qualify as a sale intended for domestic consumption.  Such a sale could more properly be characterised as 
a producer's indirect export sale.  In respect of the pr oceeding in dispute, we note  that Norway states that, 
"Norway's producers sell the vast majority [70%] of pr oduction to the EC, and just a tiny fraction is sold 
domestically".  Norway, Comments on the European Co mmunities' Answers to Panel Questions 104, 105 
and 106. WT/DS337/R 
Page 146  
 
  point for the selection of the interested parti es investigated under either of the two limited 
investigation techniques described in the second sentence of Article 6.10, do not always
 have to be all 
known exporters and all known producers.  We see no provision in the AD Agreement that would 
explicitly prohibit such interpretation of Article 6.10. 
7.169  Norway contends that certain statements of the Panel in Korea – Certain Paper , and the 
Appellate Body in Mexico – Anti-Dumping Measures on Rice , indicate that the word "or" should have 
a conjunctive meaning, implyi ng that all known exporters and all known producers must always serve 
as the starting point for the selection of a limited num ber of interested parties to investigate pursuant 
to Article 6.10.340  The statements that Norway relies upon are the following: 
"We note that Article 6.10 mentions 'exporte rs' and 'producers' of the subject product 
and requires that an individual margin be calculated for each of them."341  
"'[M]argins' means the individual margin of dumping determined for each of the 
investigated exporters and producers of the product under investigation, for that 
particular product."342 
7.170  We do not agree with Norway's characterisation of  the relevance of the above statements.  In 
both cases, the question of whether investigating authorities may be entitled to exclude  known 
exporters or known producers from an investigation in to the existence of dumping was not at issue.  
Indeed, in both cases, the statements in question were  made in the context of claims relating to the 
treatment of interested parties that had already been included in the relevant investigations.  Thus, in 
Korea – Certain Paper , the Panel's statement was made when deciding whether Article 6.10 of the 
AD Agreement permits an investigating authority to  treat two or more separate legal entities under 
investigation as a single exporter and to determine an individual margin of dumping for that 
exporter.343  In Mexico – Anti-Dumping Measures on Rice , the Appellate Body's statement was made 
in the context of a claim that the Mexican investiga ting authority acted inconsistently with Article 5.8 
of the AD Agreement when it failed to terminate the anti-dumping investigation in respect of two 
companies that it had found were not dumping. 
7.171  Norway also argues that the word "or" shoul d have a conjunctive meaning because, in its 
view, the same word has a conjunctive meaning when it appears in Articles 2.2.1.1, 2.2.2, 2.2.2(i), 
2.2.2(ii), 2.2.2(iii), 4.1(i), 5.2( ii), 6.1.1, 6.10. 1, 6.10.2, 6.11, 9.4, 9.5 and 12.2.2 of the 
AD Agreement.344  We do not share Norway's opinion.  Becau se of the nature of the functions of the 
word "or", its meaning in different provisions of the AD Agreement will very much depend upon the 
obligations at issue and the specific c ontext in which it appears.  In th is regard, we note that several of 
the provisions cited by Norway establish obligations on Members in respect of the treatment of 
exporters and/or producers that may already be s ubject to investigation.  Thus, for instance, the 
obligations described in Articles 2.2.1.1, 2.2.2, 2. 2.2(i), 2.2.2(ii) and 6.1.1 apply in respect of the 
"exporter or producer under investigation", the "expor ter or producer in question", the "exporters or 
producers subject to investigation" of the "[e] xporters or foreign producers receiving questionnaires 
used in an anti-dumping investigation".  We fail to see how these references relating to the treatment 
of exporters or producers that have already been included in an investigation assist in understanding 
whether investigating authorities may be entitled to exclude  known exporters or known producers 
from an investigation of dumping, and hence the calculation of individual margins, under Article 6.10. 
                                                      
340 Norway, Answers to Panel Questions 75 and 76. 
341 Panel Report, Korea – Certain Paper , para. 7.157. 
342 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 216, citing Appellate 
Body Report, US – Hot-Rolled Steel , para. 118. 
343 Panel Report, Korea –  Certain Paper , para. 7.157. 
344 Norway, Answers to Panel Questions 75 and 76.  WT/DS337/R 
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  7.172  In addition, if the word "or" in Article 4.1(i)  was given the conjunctive meaning that is argued 
by Norway, it would only be domestic producers related to both exporters and importers that could be 
disregarded for the purpose of identifying the "domestic  industry".  In other words, producers related 
only to exporters or only to importers could not be  excluded from the "domestic industry".  However, 
such a outcome is not supported by the ordina ry meaning of the language of this provision.345 
7.173  Likewise, the ordinary meaning of the word "or" does not imply that it must have a 
conjunctive meaning, in all circumstances, in the cont ext of Articles 5.2(ii) and 9.5.  In the case of 
Article 5.2(ii), we see no reason why an applicant mu st be compelled to provide information on the 
identity of both known exporters and  producers, especially if it considers that it would be appropriate 
to focus the investigation only on one or the other interested parties.  Likewise, we see no reason why 
an investigating authority that focused its original  investigation on only producers in accordance with 
Article 6.10, could not also permissibly focus on producers for the purpose of any newcomer review 
conducted pursuant to Article 9.5.346 
7.174  Norway also relies upon Article 12.2.2, where the wo rd "or" is used five times in the context 
of the obligation to publicly notify the "conclusion or  suspension" of an investigation whenever there 
are findings providing for the imposition of a "d efinitive duty or the acceptance of a price 
undertaking".  Given that the "conclusion" of an inv estigation and the "suspensi on" of an investigation 
are mutually exclusive actions, and that an investigation cannot result in both the imposition of a 
"definitive duty" and the "acceptance of a price undertaking" for any individually investigated 
company, we cannot see how the word "or" used  in these circumstances has the "conjunctive" 
meaning that Norway contends.  Furthermore, we note that the term "exporter or producer" is not 
found in Article 12.2.2.  However, Article 12.2. 2 does contains a reference to "exporters and  
importers".  This would seem to imply that when th e drafters of the AD Agreement wanted to use the 
word "and" and not the word "or", they did so.  
7.175  We also find contextual support for our reading of the text of the first sentence of Article 6.10 
in Article 2.5 of the AD Agreement. We consider signi ficant that the drafters of this provision of the 
AD Agreement made explicit allowance for the possib ility that Members may, in certain situations, 
focus their investigation into the existence of  dumping on the pricing behaviour of producers, 
notwithstanding the existence of known exporters  responsible for making the export sales under 
investigation.  Article 2.5 reads: 
"In the case where products are not imported directly from the country of origin but 
are exported to the importing Member from an intermediate country, the price at 
which the products are sold from the country of export to the importing Member shall 
normally be compared with the comparable pr ice in the country of export.  However, 
comparison may be made with the price in th e country of origin, if, for example, the 
products are merely transshipped through the country of export, or such products are 
not produced in the country of export, or th ere is no comparable price for them in the 
country of export." 
7.176  This provision describes how investigating au thorities may perform a comparison between 
export price and normal value to determine whethe r sales made by an exporter, operating out of a 
country that is different from the country of origin of the products sold, are made at dumped prices.  
                                                      
345 Norway's view of the meaning of the word "or" would mean that the conditions set out in 
footnote 11 for determining whether producers shall be deemed to be related to exporters or importers under 
Article 4.1(i) must be cumulative, even though a plain reading of the language of this footnote indicates 
otherwise. 
346 Similar considerations would apply in respect of the usage of the word "or" in Articles 6.10.1 
and 6.10.2. WT/DS337/R 
Page 148  
 
  In other words, Article 2.5 provides guidance on how to determine the existence of dumping in 
respect of sales made by an exporter located in a different country to the country of production of the exported products. 
7.177  The first sentence prescribes that where products  are exported to an importing country from a 
country that is not the country of origin (an interm ediate country), the price at which the products are 
sold from the country of export shall normally be compared with the comparable price in the country 
of export.  Thus, the first sentence of Article 2.5 es tablishes a general rule th at the pricing behaviour 
of an exporter operating from an intermediate country will normally  be the basis for determining the 
existence of dumping in respect of products e xported from the same intermediate country.   
7.178  However, the second sentence of Article 2.5 stipulates that the normal  methodology described 
in the first sentence may be replac ed with one that compares the pr ice at which the products are sold 
from the country of export with the price in the count ry of origin, whenever any one of at least three 
circumstances arise: the products at  issue are merely transshipped through the country of export; the 
products are not produced in the c ountry of export; or, there is no comp arable price for the products in 
the country of export.  In effect, the methodolo gy described in the second sentence of Article 2.5 
could result in the determination of the existen ce of dumping through a comparison of the price of a 
producer's indirect export sales made through an exporter in an intermediate country with the price of the same producer's domestic sales.  To this extent , Article 2.5 envisages that investigating authorities 
may be entitled to focus their determination of the existence of dumping on a producer's pricing 
behaviour, notwithstanding the exis tence of a known exporter that is responsible for the export sales 
under investigation.  
7.179  Norway also argues that its interpretation of Ar ticle 6.10 is supported by the fact that the 
exclusion of all non-producing exporters from an inves tigation could give rise to distortions that make 
an affirmative dumping determination more likely.   According to Norway, because investigating 
authorities must act in an even-handed and fair ma nner, an interpretation of Article 6.10 that could 
make a determination of dumping more likely is impermissible.
347  Norway asserts that in the present 
case, the investigating authority was aware of this  possibility because it had been informed by the 
FHL during the course of the proceeding that Norw egian "independent exporters (traders)" were 
"known for low trading costs".348  We first note that Norway has provided no basis to conclude that in 
general a decision to focus on producers rather th an exporters would likely result in higher dumping 
margins, nor can we see any reason to so conclude; this would depend entirely upon the facts.349  Nor, 
in our view, is the FHL's unsubstantiated assertion as  to Norwegian exporters' "trading costs" in this 
                                                      
347 Norway, FWS, para. 316, citing Appellate Body Report, US – Softwood Lumber V (Article 21.5 – 
Canada) , para. 142; and Appellate Body Report, US – Hot-Rolled Steel , para. 196. 
348 Exhibit NOR-48.  Norway also argues (Norway, FWS, para. 317) that the European Commission 
recognised that "exporters have lowe r costs than producers because they ha ve different business activities" in a 
previous anti-dumping investigation into farmed salmon from Norway that was conducted in 1997.  However, 
the passages from the EC's findings in this investigation that Norway cites as support for its proposition reveal 
only that the European Commission recognised that farmers and traders of farmed salmon in Norway "often defend divergent business interests".  See, Norway, FWS, paras. 301-304.   
349 To the extent that Norway may be arguing that  the normal value of salm on exporter's domestic sales 
will invariably be lower than the normal value of a salmon  producer, it is not entirely clear to us that this would 
always be the case.  While recognisin g that the resolution of Norway's claim does not requires us to make any 
specific findings about how to calculate a non-producing exporter's normal value, we note that one of the 
options available to investigating authorities under Article  2.2 of the AD Agreement is  to construct normal value 
on the basis of "the cost of production  in the country of origin plus a reasonable amount for administrative, 
selling and general costs and for profits".  In addition, Article 2.2.1 of the AD Agreement explicitly envisages 
that domestic sales (of an exporter or a producer) that are below "(fixed and variable) costs of production  plus 
administrative, selling and general costs" may be treated as being outside of the ordinary course of trade by 
reason of price.  WT/DS337/R 
 Page 149 
 
 
  particular case enough to demonstrate that the investigating authority's exclusion of all non-producing 
exporters from the investigation resulted in the in clusion of interested parties with higher normal 
values, relative to export prices, than would otherw ise have been the case, thus making an affirmative 
determination of dumping more likely.   
7.180  Finally, Norway argues that contextual support for its interpretation of Article 6.10 may also 
be found in Article 9.4 of the AD Agreement, which Norway contends requires investigating 
authorities to consider all categories of interested  parties for inclusion in a limited investigation.350  
We are not convinced by Norway's argument.  First, we note that nothing in the text of Article 9.4 requires that the anti-dumping duties applied to non-i nvestigated parties must be derived from the 
margins of dumping calculated for the investigated pa rties that have been chosen from all categories 
of interested parties.  Indeed, Article 9.4 addresses the level of anti-dumping duties that may be 
applied to non-investigated parties, not the selecti on of investigated parties.  Secondly, as we have 
observed above, there may be valid reasons for an investigating authority to exclude a category of 
interested parties from an investigation (for exampl e, avoiding the determination of two margins of 
dumping for the same export transactions).  Thus , it does not automatically follow that an 
investigating authority would be acting unfairl y if it were to apply anti-dumping duties on non-
investigated parties on the basis of the margins of  dumping determined for investigated parties that 
were not chosen through a consideration of  all categories of interested parties. 
7.181  For all of the above reasons, and in the light of  standard set out in Article 17.6(ii) of the 
AD Agreement, we do not agree with Norway wh en it claims that the EC's interpretation of 
Article 6.10 is impermissible.  We therefore dismi ss Norway's claim that the investigating authority's 
selection of the ten interested parties investigat ed was inconsistent with the second limited 
investigation technique described in the second se ntence of Article 6.10 because the investigating 
authority excluded, ab initio , all non-producing exporters from even being considered for selection.
  
(iii) The investigated parties did not constitute the "l argest percentage of exports that could 
reasonably be investigated" 
7.182  Norway argues that even assuming that the EC  was entitled to exclude  all non-producing 
exporters from the investigation, the producers a nd producer-exporters finally selected did not account 
for the largest volume of exports that could be  reasonably investigated because two producers, 
Bremnes and Salmar, which exported mo re than several of the investig ated companies, were left out 
of the EC's limited investigation.  The question befo re us under this part of Norway's claim is whether 
the investigating authority acted consistently with the second sentence of Article 6.10 by not 
investigating two producers of salmon that allegedl y exported a larger volume of salmon to the EC 
than several of the compan ies actually investigated. 
 Bremnes 
 
7.183  The European Communities asserts that Brem nes was not investigated because it was not 
among the companies that the FHL requested be in cluded in the investigation during consultations.351  
It argues that in identifying the co mpanies that would be subject to its limited investigation – i.e., in 
determining the largest percentage of the volume of exports to the EC which could reasonably be 
investigated – it gave preference to the companies proposed by FHL to the extent that they matched 
its stated policy of investigating producers or producer/exporters.352  The European Communities 
argues that it was entitled to do so because, in its view, Article 6.10.1 of the AD Agreement envisages 
                                                      
350 Norway, FWS, para. 318. 
351 EC, FWS, para. 191; EC, SWS, para. 81. 
352 EC, Answer to Panel Question 74. WT/DS337/R 
Page 150  
 
  the possibility that investigating authorities may take  into account the representations of exporters and 
producers concerned when selecting the entities that will be the subject of a limited investigation.
353  
7.184  Norway argues that Article 6.10.1 is a procedural obligation which cannot affect the 
application of the substantive obligation to select by the largest percentage of the volume of exports 
that can be reasonably investigated.354  To this end, Norway argues that the consultations that are 
envisaged under Article 6.10.1 are intended to address issues that go to ensuring that the substantive 
obligations in Article 6.10 are complied with, in cluding "(1) which sampling option in Article 6.10 
should be used; (2) the accuracy and interpretati on of the data before the authority (e.g., the 
significance of the export data in the sampling returns,  the identity of the largest exporters, etc.); and 
(3) how many companies can reasonably be investigated".355 
7.185  Article 6.10.1 reads: 
"Any selection of exporters, producers, impor ters or types of products made under 
this paragraph shall preferably be chosen in  consultation with and with the consent of 
the exporters, producers or importers concerned." 
7.186  Article 6.10.1 requires that the selection of inter ested parties for the purpose of either of the 
two types of limited investigation described in the second sentence of Article 6.10 "shall preferably" 
be undertaken in "consultation with and with the consent of" the relevant exporters, producers or 
importers.  On its face, this requirement reveals a preference for selecting the interested parties that will be subject to a limited investigation in cl ose cooperation with the exporters, producers or 
importers concerned. 
7.187  To give this preference the meaning that Norway advocates would render the selection of 
interested parties by the largest percentage of  the volume of exports which can reasonably be 
investigated a purely mathematical exercise.  It would mean that only the largest exporting companies 
could ever be selected for investigation through the application of this limited examination technique.  
However, to the extent that it refers to the larg est percentage of the volume of exports which can 
"reasonably" be investigated, the text of the sec ond sentence of Article 6.10 suggests that such an 
outcome was not intended.  In particular, the word  "reasonably" implies that the objective of this 
limited examination technique is to identify the la rgest percentage of the volume of exports that it 
would be reasonable for an investigating authority to investigate.   
7.188  In our view, the volume of export sales that may be reasonable for an investigating authority 
to investigate is a question that must be asse ssed on a case-by-case basis, taking into account all 
relevant facts that are before the investigating auth ority, including the nature and type of interested 
parties, the products involved and the investigating authority's own investigating capacity and 
resources.  We see no reason why this assessment might not also be informed by the matters raised during consultations pursuant to Article 6.10.1.  
7.189  Unlike Norway, we do not believe that the possi bility that the investigated parties may be 
selected without the consent of the inte rested parties supports Norway's position.
356  We doubt that the 
drafters intended to encourage a mechanism for consultations while limiting the ability of the 
investigating authority to take into account the preferences expressed by exporters, producers and 
importers in those consultations.  This does not mean  that all information submitted or requests made 
during such consultations must be accepted by an investigating authority.  There may well be 
                                                      
353 EC, FWS, paras. 161-167. 
354 Norway, Answer to Panel Question 53. 
355 Norway, Answer to Panel Question 53. 
356 See, Norway, Answer to Panel Question 53.  WT/DS337/R 
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  disagreement on part or all of the matters raised dur ing consultations.  However, ultimately, what will 
be important for the purpose of compliance with Article  6.10, is that the investigated parties that are 
selected account for the largest percentage of the volume of exports which can reasonably be investigated, in the light of all relevant facts a nd circumstances, including those presented during any 
consultations, regardless of whether there is the co nsent of the interested parties involved in those 
consultations. 
7.190  In the present case, consultations took place be tween the investigating authority and the FHL 
with a view to selecting the investigated parties.   Following two meetings with the investigating 
authority,
357 the FHL submitted by e-mail dated 18 November  2004 a list of interested parties that it 
considered should be included in the investigation.358  This list did not identify Bremnes as a potential 
candidate for the investigating authority's limited investigation.  It proposed ten companies for 
selection, two producer-exporters, f our exporters and four producers.359  One of the producers was a 
company that the FHL knew had reported fewe r export sales to the EC than Bremnes.360  To this 
extent, the FHL's first proposed list of potential limited investigation candidates did not signal a 
concern with the possibility that producers with fe wer export sales to the EC than Bremnes could be 
investigated.  Indeed, according to the FHL's own da ta submitted with its proposal, only four of the 
companies it had nominated for selection were among the 15 largest Norwegian exporters of 
salmon.361 
7.191  By letter dated 22 November 2004, the investigating authority informed the FHL of the 
identity of ten companies selected for the limited inv estigation, confirming that it had decided to focus 
its investigation on only producers and exporting-producers.362  The selected companies included four 
of the companies that the FHL had proposed (two producer-exporters and two producers).363  T h e  
investigating authority also included one other producer company that, although not identified by the FHL, was part of the group of companies belongi ng to one of the four exporters it had proposed.
364  
The remaining five companies selected by the invest igating authority were not included in the FHL's 
original proposal. 
7.192  In a second proposal to the investigating authority, the FHL "in the spirit of positive 
cooperation and serious attempt to find a common solution",365 agreed to the inclusion of seven of the 
ten companies identified by the investigating au thority in its letter of 22 November 2004, on the 
condition that three selected companies be re placed by two non-produc ing exporters and one 
producer.366  Notably, the FHL did not contest the fact that Bremnes was not in cluded in the selection 
of companies, even though it was aware that the vo lume of exports of the interested parties would 
                                                      
357 The first meeting was held on 26 October 2004 (Exhibit EC-55); and the second meeting on 
17 November 2004 (Exhibit NOR-39). 
358 Exhibits EC-4 and EC-52; Exhibit NOR-47. 
359 Exhibits EC-4 and EC-52. 
360 The producer in question was La ngfjordlaks.  In its "sampling questionnaire" response, which was 
submitted to the investigating authority through the FHL,   Langfjordlaks reported export sales to the EC of 
[[XXX]] kgs.  Bremnes reported export sales to the EC of [[XXX]] kgs.  See, Exhibit NOR-38. 
361 Exhibit NOR-47. 
362 The investigating authority's intention to follow its "normal anti-dumping policy" was apparently 
first made known to FHL at the meeting of 17 November 2004.  Exhibit EC-6. 
363 Marine Harvest Norway AS, Fjord Seafood Norway AS / Fjord Seafood Sales AS, Nordlaks 
Oppdrett AS and Sinkaberg-Hansen. 
364 Hydroteck AS, part of the Leroy Seafood Group AS. 
365 Exhibit NOR-47. 
366 Exhibit NOR-47.  The two non-producing exporters were Hallvard Leroy AS and Seabon AS.  The 
producer was Salmar AS. WT/DS337/R 
Page 152  
 
  play a central role in the investigating authority's selection decision,
367 and that Bremnes' export sales 
were larger than four of the companies incl uded in the investigating authority's selection.368  In other 
words, the FHL would have accepted a selection of inte rested parties to be investigated that excluded 
Bremnes, had the investigating authority agreed to replace three selected companies with the two non-
producing exporters and one producer it had nomin ated.  As with its first proposal, the FHL's 
conditional acceptance of the investig ating authority's selection of co mpanies did not signal a concern 
with the possibility that producers with fewer export sales to the EC than Bremnes could be 
investigated. 
7.193  The investigating authority responded to the FHL's revised proposal by rejecting the 
requested modifications to the selected parties, and confirming the ten selected companies.  The 
investigating authority did not accept the FHL's two non-producing exporter nominations because of 
its desire to pursue its "normal anti-dumping pol icy" of "performing dumping calculations and 
identify dumping margins on producers rather than exporters".369  In this regard, the investigating 
authority considered that by "selecting 4 integr ated producer/exporters, [it] assured that a large 
proportion of the export industry is already covered".370  The investigating authority dismissed the 
FHL's proposal to replace "one of the independent farm ers in the south" with "one independent farmer 
from the middle of Norway",371 by stating that, in its view, the selected interested parties already 
provided "good geographical coverage of the Norwegian coast".372 
7.194  Finally, on 3 December 2004, the FHL sent a nother communication to the investigating 
authority informing it that it did not consider the companies finally selected for the limited 
investigation to be "representativ e for the Norwegian salmon industry".373  The letter identified the 
same ten companies listed in the FHL's second pr oposal, arguing that only these companies would 
make the "sample representative".  The details of th e letter reveal that the notion of representativeness 
that the FHL had in mind involved the selection of different types of companies (three producer-exporters, five producers and two non-producing expor ters), of different sizes (large and medium) 
from different regions of Norway (south, mid, western and northern coast).
374  Once again, the FHL 
did not mention Bremnes in its communication. 
7.195  Thus, to the extent that the FHL (i) explicitly requested that companies not among the largest 
Norwegian exporters of salmon be included in the li mited examination; and ( ii) conditionally agreed 
                                                      
367 For instance, the Notice of Initiation indicated that  the selection of investigated parties would be 
conducted pursuant to Article 17 of Council Regulation EC No. 384/96 of 22 December 1995 on protection 
against dumped imports from countries not members of the European Community , which identifies two limited 
investigation techniques that are similar to those described in Article 6.10 of the AD Agreement as the only 
bases for limiting an investigation.  One of these consis ts of selecting "the largest representative volume of 
production, sales or exports which can reasonably be in vestigated within the time available". In addition, the 
investigating authority's letter to the FHL of 22 Novemb er 2004 identifying the "sam pled companies" indicates, 
inter alia , that the selection ensured "a large coverage " of "exports to the EU25".  Exhibit NOR-39. 
368 The FHL submitted "sampling questionnaire" responses on behalf of [[XXX]], [[XXX]], [[XXX]], 
[[XXX]] and [[XXX]].  These responses showed that [[XXX]] exported a greater volume of sales to the EC than 
[[XXX]], [[XXX]], [[XXX]] and [[XXX]] (Exhibit NOR-38). 
369 Exhibit EC-6.  The investigating authority communicated its intention to follow "normal anti-
dumping policy" also at the meeting of 17 November 2004, and in a letter to the FHL dated 23 November 2004, 
Exhibit EC-5.  We note that we have already found that Norway has not established that the investigating authority's exclusion of non-producing exporters from th e investigation was inconsistent with Article 6.10.  See, 
paras. 7.161-7.181.  
370 Exhibit EC-6. 
371 Exhibit NOR-47. 
372 Exhibit EC-6. 
373 Exhibit EC-53. 
374 The same focus on selection ten companies that were "representative" of the Norwegian salmon 
industry is also present in the Norwegian government's Note Verbale  of 2 December 2004.  Exhibit EC-59.  WT/DS337/R 
 Page 153 
 
 
  with the selection of four companies that made fewer export sales to the EC than Bremnes, it is 
evident that the FHL considered that a selection of  producer companies that would result in a limited 
investigation covering less than the largest percenta ge of the volume of exports to the EC that was 
mathematically possible would be acceptable.  In fact, the FHL (like the Norwegian government375) 
was interested in achieving an investigation into  a level of exports to the EC made through ten 
companies that it considered would be representative of the Norwegian salmon industry.  In this light, 
and notably, in the absence of any FHL request to  select Bremnes, we find that the investigating 
authority did not act inconsistently with Article 6. 10 when, in the light of the consultations it held 
with the FHL, it did not include Bremnes in the ten companies selected for its limited investigation. 
We therefore dismiss this part of Norway's claim under Article 6.10. 
 Salmar 
 
7.196  The European Communities argues th at the investigating authority did not include Salmar in 
the limited investigation because at the time of the selection of companies, there was no specific 
information before the investigating authority in resp ect of Salmar's volume of exports to the EC.  In 
particular, the EC notes that Salmar had responded to the "sampling questionnaire" indicating that it 
made zero sales for export to the EC; and that it pr ovided no response to the investigating authority's 
follow-up questions on company relationships.  The EC  also asserts that the investigating authority 
had no pre-existing knowledge of Sa lmar from its previous trade remedy investigations into farmed 
salmon from Norway, and that the FHL, which had coordinated Salmar's re sponse to the "sampling 
questionnaire", made no effort to bring the level of Salmar's export sales to the investigating 
authority's attention.  According to the EC, the FHL consistently presented Salmar as a "producer".  
Furthermore, the list of the 15 largest exporters th at was annexed to the FHL's first proposal did not 
include Salmar.376 
7.197  Norway recognizes that Salmar did not report that it made export sales to the EC in its 
response to the "sampling questionnaire".377  However, Norway considers that there was sufficient 
information before the investigating authority to cau se it to suspect that Salmar's exports to the EC 
could have been significant.  In particular, Norway  asserts that the investigating authority knew: (i) 
Salmar's volume of production was among Norway's larg est; (ii) a large part of this production had to 
be exported because it was several times larger than total Norwegian consumption; (iii) the EC was an 
almost certain destination because it is Norway's main export market; and (iv) FHL proposed Salmar, further signalling that the company was a significant exporter to the EC.  In this light, Norway argues 
                                                     
 
375 Norwegian government Note Verbale  of 2 December 2004.  Exhibit EC-59. 
376 EC, FWS, paras. 188-190; EC, SWS, paras. 79-80; EC, Answers to Panel Questions 11, 74b 
and 104. 
377 Norway argues that Salmar repo rted zero export sales to the Ec  as a direct consequence of the 
formulation of the questions in the "sampling questionnaire".  In particular, Norway contends that the "sampling 
questionnaire" did not explicitly request Norwegian companies to provide information on exports to the EC via unrelated exporters.  (Norway, FWS, para. 325).  While  we recognize that the questionnaire did not explicitly 
ask for information about export sales made through unrelated exporters, it is equally true that it did not 
explicitly request information about export sales made through related exporters or directly by the companies 
themselves.  The relevant sections of the questionnaire asking for export information read: "Turnover in local 
currency sold for export to EU 25 – 1/10/03 to 30/09/04" and "Volume in Kg sold for export to EU 25 – 1/10/03 
to 30/09/04".  We note that faced with the same questionnaire as Salm ar, several other Norwegian companies 
that made sales to the EC through unrelated exporters (e .g., [[XXX]], [[XXX]] and [[XXX]]) reported this fact 
to the investigating authority in their res ponses to the questionnaire.  Exhibit NOR-38. WT/DS337/R 
Page 154  
 
  that it was incumbent on the investigating authority to at the very least investigate the extent to which 
Salmar exported to the EC.
378 
7.198  Salmar's response to the EC's "sampling questio nnaire" indicated that it sold [[XXX]] kgs of 
farmed salmon on the domestic market and that it made  zero export sales to the EC in the relevant 
period.379  According to Norway, the investigating authority knew from its prior trade remedy 
investigations into farmed salmon from Norway, th at this volume of domestic sales could not be 
absorbed in its entirety into  Norway's domestic market,380 and that it was more than likely that a large 
part of it would have to be exported to the EC.381  The EC has not contested the assertion that, at the 
time of the selection of the investigated parties, the investigating authorit y knew that the Norwegian 
domestic farmed salmon market could not absorb a ll of Salmar's reported sales; nor that a large 
proportion of Norwegian salmon production is exported to the EC.  Rather, the EC argues that at the 
time the investigated parties were selected, the i nvestigating authority did not have information 
enabling it to conclude that Salmar's production was being exported to the EC. 382 
7.199  We note that of the ten companies selected for the investigating authority's limited 
investigation, two producers, Nordlaks and Sinkaberg-Hansen, responded to the "sampling 
questionnaire" without identifying an  amount of export sales of farmed salmon to the EC.  Contrary to 
Salmar, these producers indicated in the narrative of their replies that they sold their production to 
Norwegian exporters.383  However, another company that w as also included in the investigating 
authority's selection, Stolt Seafarm, did not submit a "sampling questionnaire" at all.  The EC argues 
that the investigating authority included Stolt Seafarm in its limited investigation because, unlike 
Salmar, Stolt Seafarm was a known producer-exporte r with a history of cooperation with the 
investigating authority in previous anti-dumping and anti-subsidy cases.  In this regard, the EC asserts 
that the investigating authority was aware of the leve l of Stolt Seafarm's exports to the EC because of 
the Undertaking Stolt Seafarm entered into during the 1997 anti-dumping and anti-subsidy investigations into farmed salmon from Norway.
384 
7.200  In our view, the fact that the investigating authority included Stolt Seafarm in the ten 
companies selected for the limited investigation on the basis of information obtained from previous 
trade remedy investigations confirms not only that the investigating authority considered information 
obtained from its previous trade remedy investigati ons relevant to the selection of the investigated 
                                                      
378 Norway, FWS, paras. 322-327; Norway, SWS, paras. 137; Norway, Answers to Panel Questions 54, 
79, 132; Norway, Comments on the European Communities' Answers to Panel Questions 104, 105 and 106; and 
Norway, Second Oral Statement, para. 42. 
379 Exhibit NOR-38. 
380 Norway, Second Oral Statement, para. 42; Norway, Comments on the European Communities' 
Answers to Panel Questions 104, 105 and 106, referring to Recital 72 of Council Regulation EC No. 930/2003 
of 26 May 2003 terminating the anti-dumping and anti- subsidy proceedings concerning imports of farmed 
Atlantic salmon originating in Norway , where the investigating authority found that "given the specific 
characteristics of the Norwegian domestic  market, a percentage of at least 4 per cent of the volume of exports of 
the product concerned to the Community (instead of the usual 5 per cent) was held as sufficient to consider 
domestic sales to be representative".  Exhibit NOR-5. 
381 Norway, Second Oral Statement, para. 42; Norway, Comments on the European Communities' 
Answers to Panel Questions 104, 105 and 106, referring to various Recitals of Commission Regulation 
EC No. 1447/2004 of 13 August 2004 imposing provisional safeguard measures against imports of farmed salmon  and Commission Regulation EC No. 206/2005 of 4 February 2005 imposing definitive safeguard 
measures against imports of farmed salmon , which when read together suggest that over 65 per cent (66.9 per 
cent according to Norway) of  Norwegian production of farmed salmon in 2003 was exported to the EC.  
Exhibits NOR-6 and NOR-7. 
382 See, e.g., EC, Answer to Panel Question 104, where the EC was directly asked to respond to 
Norway's assertions. 
383 Exhibit NOR-38. 
384 EC, Answer to Panel Questions 105 and 106.  WT/DS337/R 
 Page 155 
 
 
  parties, but also that the investigating authority must  have been aware of the particular characteristics 
of the Norwegian salmon industry that Norway asserts were within its knowledge.  Indeed, as we have 
already noted, the EC has not contested this assertion. 
7.201  We recall that the interested parties to be in vestigated were selected in the context of 
consultations between the investigating authority a nd the FHL, during which Salmar was consistently 
identified in the list of producer companies that th e FHL considered should be investigated.  The EC 
suggests that this fact – i.e., that the FHL identif ied Salmar as a "producer" in its submissions – was 
significant.  However, we note that on the basis of  the investigating authority's own approach, it was 
not interested in exporter companies, but rather producers and exporting producers.  Thus, at the time of its consultations with FHL and at the time it sel ected the investigated comp anies, the investigating 
authority's focus would have been on the producer  and exporting producer companies identified in 
FHL's submissions – which included Salmar.  For the same reason, we do not consider the fact that 
Salmar was not listed as one of the 15 largest ex porters in the list provided by the FHL to be 
significant.  Indeed, ultimately, only four of the te n companies chosen by the investigating authority 
were named on that list.   
7.202  The EC contends that Salmar never replied to  the investigating authority's "second sampling 
questionnaire" and suggests that this is also a signi ficant fact.  By "second sampling questionnaire" we 
understand the EC to be referring to the follow-up qu estions it asked that were focused on clarifying 
the relationships between companies operating in the Norwegian salmon industry.  Although the EC 
considers this to be an uncontested fact, Norway has not accepted the EC's assertions.
385  Moreover, 
the EC has provided no evidence to prove that any such questionnaire was ever sent to Salmar. 
7.203  Thus, in the light of the foregoing, and given that the investigating authority knew (i) that 
Salmar was among the largest producers in Norway, a nd (ii) that the characteristics of the Norwegian 
salmon industry were such that it was likely that a large proportion of Salmar's production would be 
exported to the EC, we believe that it was incumben t on the investigating authority to try to remove 
any doubts about Salmar's exports by asking the FHL (or Salmar directly) for clarification.  In the 
particular circumstances of this case, we do not believe  it is sufficient for the EC to seek to justify the 
investigating authority's exclusion of Salmar on the grounds that the FH L (and Salmar) failed to 
expressly identify the level of Salmar's export sales to the EC.   
7.204  Finally, we note that a lack of information a bout whether Salmar made export sales to the EC 
was not the basis of the investigating authority's re jection of the FHL's request to include Salmar in 
the limited investigation.  The only basis for ex cluding Salmar's candidature that was communicated 
in writing to the FHL was that Salmar was not need ed to achieve a geographically balanced selection 
of investigated companies.386  While we recognize that the investigating authority's written 
communication was made in response to the FHL's explicit request to include Salmar in order to balance the geographical representativeness of the chosen companies,
387 we believe that a genuine 
concern about an alleged lack of information in respect of the dest ination of Salmar's exports might, 
and perhaps should, also have served to dismiss FHL's request.   
7.205  Thus, for all of the above reasons, we find that the EC's failure to include Salmar in the ten 
companies selected for the limited investigation was inconsistent with Article 6.10 of the 
AD Agreement. 
                                                      
385 Norway, FWS, para. 325; Norway, Answer to Panel Question 132; Norway, Comments on EC's 
Comments on the Interim Report, paras. 42-43. 
386 Exhibit EC-6. 
387 Exhibit NOR-47. WT/DS337/R 
Page 156  
 
  2. Alleged Inconsistency of the EC's Determination that Certain Below-Cost Sales Were 
Outside of the Ordinary Course of Trad e with Articles 2.2.1 and 2.2 of the 
AD Agreement 
(a) Arguments of the parties 
(i) Norway 
7.206  Norway claims that the investigating authority excluded the domestic sales of certain 
investigated companies from its calculation of normal va lue, on the grounds that they were outside of 
the ordinary course of trade by reason of price, in a manner that was inconsistent with the EC's 
obligations under Article 2.2.1 of the AD Agreem ent.  Norway furthermore claims that, as a 
consequence, the EC failed to comply with Article  2.2 of the AD Agreement because the investigating 
authority constructed normal value for the relevant companies on the basis of a flawed finding that 
their domestic sales were outside of the ordinary course of trade.  
7.207  Norway argues that Article 2.2.1 requires that before proceeding to exclude below-cost sales 
from the calculation of normal value, for being outsi de of the ordinary course of trade by reason of 
price, an investigating authority must "determine " the existence of three cumulative conditions: (i) 
that the below-cost sales are made wi thin an extended period of time; (ii) that the below-cost sales are 
made in substantial quantities; and (iii) that the below-cost sales are made at prices that do not provide 
for the recovery of all costs within a reasonable pe riod of time.  Norway contends that in excluding 
the domestic sales from its calculation of the norm al values of the companies at issue, the 
investigating authority failed to "determine" that the third of these conditions was satisfied.
388 
7.208  According to Norway, the word "determine" in  Article 2.2.1 has the meaning given by the 
Appellate Body to the same word appearing in othe r provisions of the AD Agreement.  Thus, Norway 
argues that the obligation to "determine" that below- cost sales are made at prices that do not provide 
for the recovery of all costs within a reasonable pe riod of time requires a "reasoned conclusion on the 
basis of information gathered as part of a process of reconsidera tion and examination".389  Norway 
submits that, in the light of the ordinary meani ng of the word "reasonable", a determination of the 
"reasonable period of time" may only be achieved on a case-by-case basis, taking into account the 
"normal commercial practice" of a particular industry.  Norway asserts that the investigating authority failed to make any such determination because it did not make an assessment of the appropriate 
"reasonable period of time" in the light of the particular circumstances of the investigation.   
7.209  Furthermore, in response to the EC's contention that the investigating authority was entitled to 
apply a working rule that equated the reasonable period of time with the period of investigation, 
Norway argues that nothing in the findings shows th at the EC actually adopted such a rule.  In any 
case, even if such a rule were adopted, the EC c ould not rely on it if it was not made known to the 
interested parties, which Norway contends w as not the case in the present investigation.   
7.210  Norway also contends that the obligation to "d etermine" that below-cost sales are made at 
prices that do not provide for the recovery of all costs within a reasonable period of time means that 
                                                     
 
388 Norway, FWS, para. 341. 
389 Norway, FWS, para. 339; Norway, SWS, para. 141; Norway, Answer to Panel Question 80, 
referring to Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant 
Carbon Steel Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted 
19 December 2002, DSR 2002 :IX, 3779, para. 111; Appellate Body Report, United States – Measures Relating 
to Zeroing and Sunset Reviews  ("US – Zeroing (Japan) "), WT/DS322/AB/R, adopted 23 January 2007, 
para. 182 and Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , ("US – Anti-Dumping Measures on Oil Country Tubular Goods "), WT/DS282/AB/R, 
adopted 28 November 2005, para. 283.  WT/DS337/R 
 Page 157 
 
 
  an investigating authority must provide an "explana tion" of its "determination" that is "clear and 
unambiguous" and explicit.390  Norway submits that the investigating authority failed to make any 
such determination because its findings did not in clude an explicit and una mbiguous explanation of 
why the prices of the sales discarded did not provide for the recovery of costs within a reasonable 
period of time.  Indeed, according to Norway, the investigating authority's findings did not state the 
duration of the "reasonable period of time", and di d not even mention "cost recovery" within a 
"reasonable period of time". 
7.211  Finally, Norway argues that the investigating au thority could not have even made the required 
determination implicitly, because the tests applied by  the investigating authority for the purpose of 
identifying below-cost sales that c ould be treated as not being made in the ordinary course of trade by 
reason of price did not verify whether the below-cost sales were made at prices  that could not recover 
costs within a "reasonable period of time".391  In this regard, Norway submits that absent a 
determination that the "reasonable period of time" eq ualled the period of investigation, the mere fact 
that the investigating authority's profitability test compared prices with average costs over the period 
of investigation does not necessarily mean that those costs would not be recovered over a reasonable 
period of time. 
(ii) European Communities 
7.212  The EC submits that the investigating authority was not obligated to "determine", in the sense 
that is argued by Norway, that the appropriate  "reasonable period of time" for the particular 
investigation at issue was the period of investiga tion.  The EC advances various arguments in support 
of this contention. 
7.213  First, the EC argues that the "reasonable period of time" test is part of the notion of sales 
below cost, and not an additional criterion applied to  such sales in order to decide whether they may 
be discarded in the determination of normal value.   According to the EC, the first sentence of 
Article 2.2.1 does not establish three conditions that must be fulfilled before finding that below-cost 
sales may be treated as not being made in the ordina ry course of trade, but only two.  In this regard, 
the EC argues that the true meaning of the first sen tence of Article 2.2.1 can only be discovered if the 
obligation to "determine" that below-cost sales do not provide for the recovery of costs within a 
reasonable period of time is seen not as an additiona l requirement but as an elucidation of the initial 
definition of the class of sales to which the Article 2.2.1 is addressed.  In other words, the EC argues 
that sales are to be understood as being below-cost only if their prices would not permit recovery of 
all costs within a reasonable period of time.  T hus, the EC submits that the first sentence of 
Article 2.2.1 defines a class of sales (those made below costs based on a reasonable period of time), 
whose prices may be disregarded in calculating normal value only if two conditions are satisfied 
(those of the "extended period" and the "substantial quantities"). 
7.214  Secondly, the EC argues that the second sentenc e of Article 2.2.1 stands for the proposition 
that all sales (whether above or below per unit costs at the time of sale) will be considered to provide 
for the recovery of costs within a reasonable period of  time to the extent that their prices are above the 
weighted average per unit costs for the period of inves tigation.  The EC submits that this implies that 
the "reasonable period of time" is not one that must be determined for each investigation, but one that 
may be adopted as a "working rule" by Members.392  According to the EC, the adoption of such a 
                                                      
390 Norway, SWS, para. 139; Norway, Answer to Panel Question 80, citing Appellate Body Report, 
United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from 
Korea ("US – Line Pipe "), WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403, paras. 194 and 217; 
Appellate Body Report, US – Steel Safeguards , paras. 296 and 442.  
391 Norway, FWS, paras. 360-369. 
392 EC, Answer to Panel Question 80. WT/DS337/R 
Page 158  
 
  working rule is permissible, because Members may adopt general rules when implementing the 
AD Agreement,
393 provided that these are not applied with "complete rigidity".394  Thus, the effect of 
the last sentence of Article 2.2.1 is to shift the bur den of proof, in the sense that if a Member adopts a 
working rule that prices will not be regarded as a llowing for the recovery of costs unless the price is 
above average costs in the investigation period, the onus would be on the party concerned to show 
that, despite failing this standard, the price of a sale  was sufficient to allow recovery of costs within a 
reasonable period of time. 
7.215  The EC asserts that, in the investigation at issue, the investigating authority assessed whether 
below-cost sales could be excluded from the calcul ation of normal value for being outside of the 
ordinary course of trade by reason of price through th e application of its "normal" "working rule" of 
equating the "reasonable period of time" with the twelve  month period of investigation.  It asserts that 
there is no evidence that the investigated companie s were unaware of the EC 's intentions regarding 
the way in which the issue of sales below cost woul d be determined; and no evidence to indicate that 
the investigated companies at any time questi oned the appropriateness of the EC's conduct. 
7.216  While recognising its non-binding character, the EC recalls that a Recommendation of the 
Committee on Anti-dumping Practices Concerning Periods of Data Collection,395 explicitly stipulates 
that the period of data collection for investigati ng sales below cost should normally coincide with the 
period of investigation for dumping.  The EC argues that this Recommendation, on its own, as well as 
in the context of the subsequent practice it has estab lished in the application of Article 2.2.1, within 
the meaning of Article 31(3)(b) of the Vienna C onvention on the Law of Treaties, supports its 
interpretation of Article 2.2.1. 
7.217  Finally, the EC argues that the profitability test actually applied by the investigating authority 
satisfied the substantive obligations  under Article 2.2.1.  In particular, the EC submits that the 
profitability test, to the extent that it compared  whether net sales prices were above the weighted 
average cost of production for the period of investig ation, properly addressed the question of whether 
any below-cost sales were made at cost recovery prices. 
(b) Arguments of the third parties 
(i) Japan 
7.218  Japan argues that the ordinary meaning of the word "determine" implies that investigating 
authorities must make a reasoned finding on the ba sis of positive evidence that below-cost sales do 
not provide for the recovery of all costs within a r easonable period of time.  Thus, Japan contends that 
investigating authorities must act with an appropr iate degree of diligence and arrive at a reasoned 
conclusion on the basis of information gather ed as part of a process of examination. 
7.219  Japan argues that the principle of effective tr eaty interpretation demands that the terms "a 
reasonable period of time" and "the period of investiga tion" must be attributed a different meaning.  In 
this regard, Japan recalls that the Appellate Body  has found that "[t]he word 'reasonable' implies a 
degree of flexibility that involves consideration of  all of the circumstances of a particular case."396 
Thus, according to Japan, the length of the "reasonabl e period of time" for the purpose of Article 2.2.1 
will depend upon specific circumstances of the inves tigation.  It would be inconsistent with 
                                                      
393 EC, Answer to Panel Question 80, referring to Appellate Body Report, US – Hot-Rolled Steel , 
para. 148. 
394 EC, Answer to Panel Question 80. 
395 Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations, 
G/ADP/6, adopted 5 May 2000, Exhibit EC-7. 
396 Appellate Body Report, US - Hot-Rolled Steel , para. 84.  WT/DS337/R 
 Page 159 
 
 
  Article 2.2.1 if an investigating authority were to  determine that the "reasonable period of time" was 
identical to the period of investigation in every case,  without due examination of whether or not such 
a period was reasonable under the specific situations of the case at hand. 
(ii) United States 
7.220  The United States submits that Article 2.2.1 do es not preclude an investigating authority from 
using the period of investigation as "a reasonable pe riod of time" or oblige an investigating authority 
to define the reasonable period of time differently from case to case.  In this regard, the United States 
notes that the cost recovery test described in Article 2.2.1, second sentence, deems the period of 
investigation to be the reasonable period of time.  While arguing that this factual scenario is not 
exhaustive of the situations when be low-cost sales may be found to pr ovide for cost recovery within a 
"reasonable period of time", the United States contends  that Article 2.2.1, sec ond sentence, stands for 
the proposition that using the investigation peri od to assess whether costs were recovered in a 
reasonable period of time is not necessarily  inconsistent with Article 2.2.1. 
7.221  According to the United States, the ordinary meanin g of "determine" is to "settle or decide (a 
dispute, controversy, etc., or a sente nce, conclusion, issue, etc.) as a j udge or arbiter."  Consistent with 
this definition, Article 2.2.1 requires the investiga ting authority to "decide" whether below-cost sales 
do not provide for the recovery of all costs within a reasonable period of time. 
7.222  Finally, the United States argues that the fact  that the EC identified sales as outside the 
ordinary course of trade based on criteria other than those identified in Article 2.2.1 would not alone 
support the conclusion that it acted inconsistently with  that provision.  This is because sales may be 
treated as outside the "ordinary course of trade" for reasons other than those set forth in Article 2.2.1, 
first sentence. 
(c) Evaluation by the Panel 
7.223  Norway claims that the investigating authority acted inconsistently with Article 2.2.1 of the 
AD Agreement when it excluded the below-cost domes tic sales of five companies from its calculation 
of their respective normal values, without first "deter mining" whether such sales were made at prices 
that did not provide for the recovery of all costs within a reasonable period of time.  We understand 
Norway to be arguing that the investigating aut hority did not make the requisite "determination" 
because: (i) it failed to make a reasoned assessment of the appropriate length of the "reasonable period 
of time" in the light of the particular circumstance s of the investigation; (ii) it did not provide an 
explicit, clear and unambiguous explanation of why the below-cost sales at issu e were made at prices 
which did not provide for the recovery of cost with in a reasonable period of time; and (iii) the tests 
applied to exclude the below-cost sales at issue were  not of the kind that could evaluate whether they 
were made at prices that did not provide for the re covery of all costs within a reasonable period of 
time.  We will address each of Norway's arguments below.  However, before doing so, we briefly set 
out some of the pertinent facts surrounding the investigating authority's exclusion of the domestic sales at issue. 
(i) Facts 
7.224  The investigating authority's determination of the investigated companies' normal values is 
first described in theProvisional Regulation.
397  The investigating authority proceeded in multiple 
steps.  First, it examined whether the domestic sal es of the investigated companies were made in 
"representative" quantities within the meaning of Article 2(2) of the EC's Basic Anti-Dumping 
                                                      
397 Provisional Regulation, Recitals 19-31 (Exhibit NOR-9), confirmed without modification in the 
Definitive Regulation, Recital 11, Exhibit NOR-11. WT/DS337/R 
Page 160  
 
  Regulation.
398  The investigating authority undertook this  assessment at both the level of overall 
domestic sales and sales of individual types of farmed salmon.399   
7.225  Next, for all sales of farmed salmon types th at were found to be sold in "representative 
quantities", the investigating authorit y checked to see whether they were  made in the ordinary course 
of trade "in accordance with Article 2(4)" of the EC's Basic Anti-Dumping Regulation.400  Article 2(4) 
of the EC's Basic Anti-Dumping Regulation repeats the text and footnotes of Article 2.2.1 of the 
AD Agreement almost verbatim.  The investigating authority exam ined whether the relevant sales 
were made in the ordinary course of trade pursuan t to this provision "by establishing the proportion of 
profitable sales to independent cust omers of the type in question".401  The investigating authority's 
precise methodology was described in the following terms: 
"(23) In cases where the sales volume of a type of farmed salmon, sold at a net 
sales price equal to or above its cost of production, represented more than 80 per cent 
of the total sales volume of that type, and where the weighted average price of that type was equal to or above its cost of  production, normal value was based on the 
actual domestic price. This price was calcul ated as a weighted average of the prices of 
all domestic sales of that type made during the IP, irrespective of whether these sales 
were profitable or not. 
(24)  Where the volume of profitable sales of a type of farmed salmon represented 
80 per cent or less of the total sales volume of that type, or where the weighted average price of that type was below its cost of production, normal value was based 
on the actual domestic price, which was calculated as a weighted average of 
profitable sales of that type only, provided that these sales represented 10 per cent or 
more of the total sales volume of that type. 
(25)  Finally, where the volume of profitable sales of any type of farmed salmon 
represented less than 10 per cent of the total sales volume of that type, it was considered that this particular type was sold in insufficient quantities for the domestic 
price to provide an appropriate basis fo r the establishment of the normal value."
402 
7.226  The above passage explains that all "representative" sales of a salmon type were found to be 
in the ordinary course of trade when  the "sales volume of [that] type of farmed salmon, sold at a net 
sales price equal to or above its cost of production, represented more than 80 per cent of the total sales 
volume of that type, and where the weighted average pr ice of that type was equal to or above its cost 
of production".  The disclosures made by the inves tigating authority to the individually investigated 
companies reveal that the "cost of production" used for the purpose of these comparisons was the 
weighted average cost of production for th e twelve month period of investigation.403  Thus, the first 
part of the investigating authority's evaluation of whether sales were made in the ordinary course of 
trade pursuant to Article 2(4) of the EC's Basic Anti-Dumping Regulation involved comparing the net 
                                                      
398 Provisional Regulation, Recital 19.  The EC argues that the test applied to determine whether 
domestic sales were "representative" reflected Article  2.2 of the AD Agreement.  EC, Answer to Panel 
Question 15. 
399 Provisional Regulation, Recitals 20-21.  EC, Answ er to Panel Question 15.  We note that Norway 
has raised no claim regarding the investigating au thority's determination of "representativeness". 
400 Provisional Regulation, Recital 22.   
401 Provisional Regulation, Recital 22. 
402 Provisional Regulation, Recitals 23-25.  These findings were confirmed in the Definitive 
Regulation, Recital 11. 
403 E.g., Information Note to Grieg Seafood, 8 March 2005, Exhibit NOR-55; Provisional Disclosure to 
Grieg Seafood, 22 April 2005, Exhibit NOR-58, and Defi nitive Disclosure to Grieg Seafood, 28 October 2005, 
Exhibit NOR-16.  See also, EC, Answers to Panel Questions 13 and 14.  WT/DS337/R 
 Page 161 
 
 
  sales price and the weighted average price to the wei ghted average cost of production for the period of 
investigation.  Where the proportion of sales made at  a net price equal to or above weighted average 
cost of production (i.e., the "profitable" sales)404 was greater than 80 per cent of all sales of the same 
salmon type, and where the weighted average price w as equal to or above the weighted average cost 
of production, the investigating authority found that all sales of the particular salmon type were made 
in the ordinary course of trade, regardle ss of whether they were "profitable". 
7.227  In cases where the proportion of "profitable" sal es was less than 80 per cent, but at least 
10 per cent, of all sales of the same salmon type, or  where the weighted average price was less than 
the weighted average cost of production, the inv estigating authority found that only the "profitable 
sales" of the particular salmon type were made in the ordinary course of trade.   
7.228  Thus, the investigating authority treated two ca tegories of domestic sales as outside of the 
ordinary course of trade: (i) all not "profitabl e" sales (i.e., where net sales price was less than 
weighted average cost over the period of investiga tion), to the extent these represented 20 per cent or 
more of the total sales of the particular salmon type at issue; and (ii) all "profitable" sales, to the 
extent these represented less than 10 per cent of the to tal sales of the particular salmon type at issue. 
7.229  The Provisional Regulation explains that the investigating authority found five companies to 
have made "overall  representative sales".405  The individual company disclosures reveal that for only 
three of these companies were any sales found to be "representative", when examined at the level of 
individual salmon types .406  The same disclosures also show that the investigating authority concluded 
that many of the sales found to be "representative"  by individual salmon type were not made in the 
ordinary course of trade, after application of the "profitable" sales test described above.  Thus, the 
"profitable" sales test served as th e basis for finding that certain of the domestic sales of three of the 
ten investigated companies were made out side of the ordinary course of trade. 
(ii) Whether the investigating authority failed to "d etermine" that the below-cost sales did not 
provide for the recovery of all costs w ithin a "reasonable period of time" 
7.230  We begin our evaluation of Norway's claim by reviewing the text of Article 2.2.1, which 
reads: 
"Sales of the like product in the domestic market of the exporting country or sales to a 
third country at prices below per unit (fixed  and variable) costs of production plus  
administrative, selling and general costs may be treated as not being in the ordinary 
course of trade by reason of price and ma y be disregarded in determining normal 
value only if the authorities3 determine that such sales are made within an extended 
period of time4 in substantial quantities5 and are at prices which do not provide for the 
recovery of all costs within a reasonable pe riod of time.  If prices which are below per 
unit costs at the time of sal e are above weighted average per unit costs for the period 
of investigation, such prices shall be cons idered to provide for recovery of costs 
within a reasonable period of time. 
 
                                                      
404 Although the Provisional Regulation does not explicitly define "profitable" sales, when reading 
Recitals 22 to 25 together, it is evident that the referenc es contained therein to "pro fitable" sales mean sales 
made at a net price above "cost of production" .  See also, EC, Answer to Panel Question 14. 
405 Provisional Regulation, Recital 29. Underline added. 
406 These companies were [[XXX]] (Definitive Disclosu re to [[XXX]], 28 October 2005, Exhibit NOR-
69); [[XXX]] (Definitive Disclosure to  [[XXX]], 28 October 2005, Exhib it NOR- 45), and [[XXX]] (Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibits EC-42 and EC-43).  See also, EC, Answer to Panel 
Question 15; and Norway, Answer to Panel Question 84. WT/DS337/R 
Page 162  
 
  3 When in this Agreement the term "authorities" is us ed, it shall be interpreted as meaning authorities at 
an appropriate senior level. 
 
4 The extended period of time should normally be one year but shall in no case be less than six months. 
 
5 Sales below per unit costs are made in substantia l quantities when the authorities establish that the 
weighted average selling price of the transactions  under consideration for the determination of the 
normal value is below the weighted average per unit costs, or that the volume of sales below per unit 
costs represents not less than 20 per cent of the volu me sold in transactions under consideration for the 
determination of the normal value. " 
7.231  Article 2.2.1 describes a methodology for dete rmining whether below-cost sales may be 
treated as not being made in the ordinary course of tr ade.  Pursuant to the first sentence, sales made at 
prices below "per unit (fixed and variable) costs of  production plus administrative, selling and general 
costs" may be treated as not being made in the ordi nary course of trade "by reason of price" when an 
investigating authority "determine[s]" that "such sal es are made within an extended period of time in 
substantial quantities and are at prices which do not provide for the recovery of all costs within a 
reasonable period of time". 
7.232  On its face, the methodology set out in the firs t sentence of Article 2.2.1 involves two steps: 
First, the below-cost sales that may potentially be treated as not being made in the ordinary course of 
trade by reason of price must be ascertained.  Th is initial step requires investigating authorities to 
identify sales made at prices below "per unit (fixed and variable) costs of production plus 
administrative, selling and general costs".  Article  2.2.1 does not prescribe any particular time period 
for the purpose of measuring the per un it costs that must be used in this assessment, suggesting that 
investigating authorities have a degree of discretion to calculate such costs over different periods of 
time, which might be, for example, the day of sale or  the period of investiga tion.  We understand that 
this is also the view of the parties.407 
7.233  Secondly, the investigating authority must "d etermine" whether "suc h" below-cost sales 
display three specific characteristics, i.e., whether the below-cost sales identified under the first step 
are made: (i) "within an extended period of time"; (i i) "in substantial quantities"; and (iii) "at prices 
which do not provide for the recovery of all costs within a reasonable period of time".  It is only 
below-cost sales that are found to exhibit all three of these characteristics that may be treated as not 
being made in the ordinary course of trade by reason of price.   
7.234  The focus of Norway's claim is the second step of this methodology.  In particular, Norway 
claims that the investigating authority failed to "determine" that the below-cost sales excluded from 
the calculation of normal value by reason of price were made "at prices which do not provide for the 
recovery of all costs within a reasonable period of time".  Norway argues that the obligation to 
"determine" that the below-cost sales were made at prices that did not provide for the recovery of all 
costs within a "reasonable period of time" required the investigating authority to make a reasoned 
assessment of the appropriate length of the "r easonable period of time" in the light of the 
circumstances of the investigation, taking into accoun t the particular characteristics of, for example, 
the product, the producer and the "normal commercial practice" of the industry concerned.408  
According to Norway, this follows from the ordinary  meaning of the word "determine" and the term 
"reasonable period of time". 
7.235  As previously observed by the Appellate Body , the dictionary definitions of the verb 
"determine" include "[c]onclude from reasoning or inv estigation, deduce" as well as "[s]ettle or decide 
                                                      
407 EC, Answer to Panel Question 137; Norway, Answer to Panel Question 137.  Norway does not 
assert any claim in respect of this aspect of Article 2.2.1. 
408 Norway, FWS, para. 352;  Norway, Answer to Panel Questions 82, 83, 133 and 137.  WT/DS337/R 
 Page 163 
 
 
  (a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter".409  T h e  
Appellate Body has found that the words "determine" and "review", when read together in the context 
of sunset reviews conducted pursuan t to Article 11.3 of the AD Agreement, suggest that "authorities 
conducting a sunset review must act with an appropr iate degree of diligence and arrive at a reasoned 
conclusion on the basis of information gathered  as part of a process of reconsideration and 
examination".410  Norway contends that, in the context of Article 2.2.1, which Norway argues applies 
to investigations and reviews, the verb "determine" has the same meaning.411  We disagree with the 
implication that Norway has drawn from the Appell ate Body's findings.  The Appellate Body did not, 
in US – Corrosion-Resistant Steel Sunset Review , conclude that the verb "determine" means what 
Norway contends.  Rather, as the full text of th e passage referred to by Norway demonstrates, the 
Appellate Body found that "[t]he words 'review' and  'determine' in Article 11.3 suggest that 
authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a 
reasoned conclusion on the basis of information gath ered as part of a process of reconsideration and 
examination".412  Thus, the Appellate Body did not make a finding about the meaning of the verb 
"determine" in general, but the meaning of the words "review" and "determine", when read together  
in the context of interpreting Article 11.3 of th e AD Agreement.  We understand that this was 
confirmed in US – Zeroing (Japan) , where the Appellate Body recalled that in US – Corrosion-
Resistant Steel Sunset Review , it had indicated that "the ordinary meanings of the terms 'determine' 
and 'review' in the text of Article 11.3  of the Anti-Dumping Agreement requires a 'reasoned conclusion 
on the basis of information gathered as part of  a process of reconsideration and examination'".413 
7.236  Norway also observes that in US – Line Pipe and US – Steel Safeguards , the Appellate Body 
held that a "determination" must be set forth in an  "explanation" that is "clear and unambiguous.  It 
must not merely imply or suggest an explanation.  It must be a straightforward explanation in express 
terms".414  Again, Norway contends that, in the context of Article 2.2.1, the verb "determine" has the 
same meaning.415  We are not convinced by Norway's contention.  The Appellate Body's statements in 
US – Line Pipe and US – Steel Safeguards were not made in the context of a claim under Article 2.2.1 
of the AD Agreement, but rather Articles 3.1 and 4.2(b) of the Safeguards Agreement.  Moreover, we 
can see nothing in the findings made by the Appellate  Body in these cases to suggest that the meaning 
of the verb "determine" in Article 2.2.1 of the AD  Agreement must necessarily be the same as in the 
context of Articles 3.1 and 4.2(b) of the Safeguards Agreement.  Thus, as we read them, the Appellate 
Body's findings in US – Line Pipe and US – Steel Safeguards cannot be simply transposed into Article 
2.2.1 of the AD Agreement.  The meaning of the word  "determine" that appears in Article 2.2.1 must 
be assessed in the light of the customary rules of in terpretation of public inte rnational law, which we 
recall, require us to examine the ordinary meaning of  the word "determine" in context and in the light 
of the object and purpose of the AD Agreement. 
7.237  Turning again to the dictionary definitions of th e verb "determine", we note that in addition to 
those identified by the Appellate Body, other definitions include "[c]ome to a judicial decision; make 
or give a decision about something", "[l]ay down authoritatively; pronounce, declare" as well as 
                                                      
409 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan ("US – Corrosion-Resistant Steel Sunset Review") , 
WT/DS244/AB/R, adopted 9 January 2004, para. 110, quoting the Shorter Oxford English Dictionary, 5th ed., 
W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2002), Vol. I, p. 659.  See also, Appellate Body Report, US – Zeroing (Japan) , para. 182. 
410 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111. 
411 Norway, Answer to Panel Question 80. 
412 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111.  Underline added. 
413 Appellate Body Report, US – Zeroing (Japan) , para. 182.  (Emphasis added). 
414 Appellate Body Report, US – Line Pipe , paras. 194 and 217; Appellate Body Report, US – Steel 
Safeguards , paras. 296 and 442, cited in Norway, Answers to Panel Question 80. 
415 Norway, Answer to Panel Question 80. WT/DS337/R 
Page 164  
 
  "[s]ettle or fix beforehand (now  esp. a date); ordain, decree".
416  This range of slightly varying 
definitions indicates that the verb "determine" may have a slightly different  meaning depending on the 
context in which it is found. 
(iii) What it means to "determine" that below-cost sales are made "within an extended period" in 
"substantial quantities" and at prices which do not provide for recovery of all costs within a 
"reasonable period of time" 
7.238  As we have already noted, Article 2.2.1 provid es that before disregarding below-cost sales 
from the calculation of normal value by reason of pr ice, an investigating au thority must "determine" 
that such sales display three specific characteristics.   The first characteristic that an investigating 
authority must "determine" exists is that the belo w-cost sales are made "within an extended period of 
time".  Footnote 4 defines the "extended period of ti me" as "normally ... one year but ... in no case ... 
less than six months".  Thus, the "determination" that below-cost sales are made "within an extended 
period of time" does not call for the investigating authority to "determine" the "extended period of 
time" itself, but only that the below-cost sales in question are made within a period of time that is 
normally one year but no less than six months.   
7.239  The second characteristic of belo w-cost sales that must be "d etermined" to exist by an 
investigating authority before it may exclude su ch sales from the calculation of normal value by 
reason of price is that they are made "in substantia l quantities".  Footnote 5 explains that below-cost 
sales may be considered to be "made in substa ntial quantities" when an investigating authority 
establishes that the "weighted average selling price" of  the below-cost sales at issue is less than the 
"weighted average per unit costs", or when the vol ume of below-cost sales "represents not less than 
20 per cent of the volume" of sales under considerati on for the determination of  normal value.  Thus, 
as with the requirement that an investigating auth ority "determine" that below-cost sales are made 
"within an extended period of time" , the obligation to "determine" that below-cost sales are made "in 
substantial quantities" does not call for the investig ating authority to "determine" the quantity of 
below-cost sales that may be considered "substantia l".  Rather, the investigating authority is required 
to "determine" that the below-cost  sales in question are either (i) made at a weighted average selling 
price that is below the weighted average per unit co st, or (ii) made in quantities that represent not less 
than 20 per cent of the volume of sales under consid eration for the determination of normal value. 
7.240  Thus, in the context of the obligation to "det ermine" that below-cost sales are made "within 
an extended period of time" and "in substantial quantities", the verb "determine" does not have a 
meaning that would require  an investigating authority to make an individual assessment of the 
appropriate "extended period of tim e" and "substantial quantities", in the light of the particular 
circumstances of the investiga tion.  Indeed, the language of Article 2.2.1 suggests that an 
investigating authority would be entitled to give  the "extended period of  time" and "substantial 
quantities" the same meaning in each and every inv estigation.  To this extent, an investigating 
authority would not be acting inconsistently with Artic le 2.2.1 if it adopted a general rule that resulted 
in finding, in each and every investigation, that below-cost sales were made "within an extended 
period of time" and "in substantial quantities" wh enever they were made within a one year 
investigation period and in quantities represen ting more than 20 per cent of all sales under 
consideration for the determination of normal value.   We note that this was the result achieved by the 
investigating authority in the investigation at issue. 
7.241  The third of the characteristics of below-cost  sales that an investigating authority must 
"determine" exists before disregarding such sales  by reason of price from its calculation of normal 
value, is that they are made "at prices which do not provide for the recovery of all costs within a 
reasonable period of time".  Unlike the "extended pe riod of time" and "substantial quantities", there is 
                                                      
416 New Shorter Oxford English Dictionary, Clarendon Press, 1993.  WT/DS337/R 
 Page 165 
 
 
  no footnote to Article 2.2.1 that explains the mean ing of "a reasonable period of time".  However, 
important guidance on what it means to "determine" th at below-cost sales are made "at prices which 
do not provide for the recovery of all costs within a reasonable period of time" may be found in the second sentence of Article 2.2.1. 
7.242  The second sentence of Article 2.2.1 specifies that when "prices which are below per unit 
costs at the time of sale are above we ighted average per unit costs for th e period of investigation, such 
prices shall be considered to provide for recovery of costs within a reasonable period of time."  Thus, 
Article 2.2.1 directs investigating authorities to "c onsider", in each and every investigation, that 
"prices which are below per unit costs at the time of sale" will provide for the recovery of costs within 
a "reasonable period of time" whenev er such prices are also above we ighted average per unit costs for 
the "period of investigation".  To this extent, the last sentence of Article 2.2.1 provides that, for the 
purpose of establishing whether prices that are belo w-cost at the time of sale may provide for the 
recovery of costs within a reasonable period of tim e, the "reasonable period of  time" may be the same 
as the "period of investigation", irrespective of th e particular circumstances of the investigation. 
7.243  Article 2.2.1 does not explain what is meant by  "prices which are below per unit costs at the 
time of sale ".  In this regard, we see a similar ity between the first and second sentences of 
Article 2.2.1.  Although both sentences envisage a calculation of per unit costs over a period of time, neither specifies exactly what this period of time should be.  It is true that the second sentence goes 
further than the first sentence in that it contemplat es an assessment of costs at the "time of sale".  
However, in our view this means only that the rele vant time-period must include "the time of sale".  
Thus, it would be entirely consistent with the second  sentence of Article 2.2.1 for an investigating 
authority to calculate per unit costs at the "time of sale" over the particular day of sale, or an average 
including that day, over a week, month or the period of investigation.
417 
7.244  All this suggests that an investigating authorit y that examined whether net prices were above 
weighted average costs for the period of investig ation would have established whether such prices 
provide for the recovery of costs within a "reasonable period of time", and therefore complied with 
the second sentence of Article 2.2.1.  We note that th is is exactly what the investigating authority did 
in the investigation at issue.418 
7.245  Norway contends that the second sentence of Article 2.2.1 does not establish an exhaustive 
test for determining whether below-cost prices provi de for the recovery of costs within a reasonable 
period of time.  According to Norway, the second sentence of Article 2.2.1 "merely describes one 
situation in which an authority must conclude th at prices allow for cost recovery in a reasonable 
period of time", in this way serving to "protect  foreign producers and exporters by fixing the 
                                                      
417 In this regard, we find it significant that whereas  the drafters of the AD Agreement used the words 
"date of sale" in Article 2.4.1, they chose to use "time of  sale" in the second sentence of Article 2.2.1.  In our 
view, this difference supports the view  that the "time of sale" that is referred to in the second sentence of 
Article 2.2.1 does not necessarily ha ve to be the "date of sale", and may include other "time" periods. 
418 We recognize that, in response to one of our qu estions following the first substantive meeting with 
the parties, the EC stated that the investigating authority  had not performed an assessment of whether "prices at 
the time of sale" were above weighted average costs for th e period of investigation, and therefore, in its view, 
the investigating authority had not performed the comparison  set out in the second sentence of Article 2.2.1.  
However, it is evident that the EC's statement was made on the basis of its own interpretation of the last 
sentence of Article 2.2.1, which not only seems to have evolved over the course of this dispute, but is in any 
case inconsistent with what we believe to be the correct  interpretation of this provision. See, EC, Answer to 
Panel Question 81; and EC, Second Oral Statement, paras. 43-50.  We understand that Norway does not dispute 
that, in establishing whether domestic sales were made in the ordinary course of trade, the investigating 
authority compared net sales price to  weighted average cost for the peri od of investigation ("... the EC 
determined whether an individual sales price to an unrelated party was equal to or above the company's average 
cost of production for the sub-type of the product ...").  Norway, FWS, para. 354.   WT/DS337/R 
Page 166  
 
  minimum duration of the reasonable period as equal to the IP".
419  Thus, Norway argues that the 
identification of sales that do provide for the recovery of costs within a reasonable period of time 
through the methodology set out in the second senten ce of Article 2.2.1 does not automatically result 
in compliance with the requirement in the first sen tence of Article 2.2.1 to "determine" that below-
cost sales do not provide for the recovery of all costs within a reasonable period of time.  We 
understand Norway to be arguing that a finding that  sales may be made at prices above weighted 
average cost for the period of investigation does not, a contrario , mean that sales not found to be 
above weighted average cost for the period of investigation do not  provide for the recovery of costs 
within a reasonable period of time. 
7.246  While we recognize that it does not necessarily follo w from the language of Article 2.2.1 that 
the obligation to determine that below-cost prices do not  provide for the recovery of all costs within a 
reasonable period of time may be satisfied thr ough an assessment of whether below-cost sales do 
provide for the recovery of cost within a reasonabl e period of time, we are not convinced by Norway's 
arguments.  In our view, it is less than clear that  the second sentence of Article 2.2.1 was not intended 
to apply a contrario  to identify the circumstances in wh ich below-cost sales may be found not to 
provide for the recovery of all costs within a reasonable period of time.   
7.247  First, an a contrario  reading of the second sentence woul d not be inconsistent with the 
general structure of the first sentence of Article 2.2.1, which as we have observed, does not require 
investigating authorities to make specific determin ations of the "extended period of time" or the 
"substantial quantities".  In this regard, we see no reason why the content of the last sentence should 
be treated differently to the content of footnotes 4 and 5, simply because of the form of its 
presentation.  Secondly, such a reading would also not  be at odds with the flexibility that Article 2.2.1 
affords investigating authorities when identifying the periods of time used for the purpose of 
measuring the per unit costs that are relevant to each a nd every application of the test in Article 2.2.1.  
Thirdly, we note that the nature of the inquiry that Norway argues the drafters of Article 2.2.1 agreed should be undertaken in order to "d etermine" whether below-cost sales do not  provide for cost 
recovery within a "reasonable period of time"  may be quite onerous and potentially even 
speculative.
420 
7.248  In a typical investigation, an investigating au thority will discover the existence of below-cost 
sales only some months after the initiation of an investigation, once it has received, reviewed, 
evaluated and possibly verified the data and informa tion submitted by the interested parties.  If an 
investigating authority were required at this stag e of its investigation to identify the "reasonable 
period of time" in which each of the investigated parties could be expected to recover all costs 
associated with the below-cost sales, other data and information relating to factors such as the 
investigated parties' sales, prices and costs outsi de of the period of investigation may need to be 
considered.  Given that the period of investigati on should normally end as close as possible to the date 
of initiation,421 the identification of an appropriate "reas onable period of time" for each investigated 
party may also involve examining future projections of all of these factors.  In our view, undertaking 
such an exercise as a matter of course in each and every investigation, without compromising the 
expeditious conduct of an investigation within prescr ibed time limits, would be a challenge to even 
                                                      
419 Norway, Answer to Panel Question 55.  See al so, Norway, FWS, paras. 350-351; Norway, SWS, 
paras. 142-143. 
420 The type of data that Norway contends should be considered by an investigating authority when 
making such a determination includes information about an individual producer's pricing and marketing 
strategies, information about the broader business and economic cycles affecting the producer's operations and evolution of costs, and "factors such as ... whether unit pric es during the IP are at a le vel that would recover both 
average variable costs and average fixed costs, where fixed costs are computed based on 'normalized' production 
volumes over the business cycle".  Norway, FWS, paras. 343-346; Norway,  Answer to Panel Questions 82 and 83. 
421 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 158-167.  WT/DS337/R 
 Page 167 
 
 
  the best resourced and organized investigating author ity.  These notable practical considerations also 
lead us to doubt that the last sentence of Article 2.2.1 may not have any a contrario  implications. 
7.249  Finally, we find important contextual suppor t for the view that the second sentence of 
Article 2.2.1 could be read a contrario  in Article 2.2.1.1 of the AD Agreement.  The relevance of this 
provision is perhaps best explained and understood in the light of the reasons that Norway has 
advanced in support of its contention that the "r easonable period of time" cannot, in each and every 
investigation, be automatically eq uated with the "period of investig ation", as could be the case if the 
last sentence of Article 2.2.1 were given an a contrario reading.   
7.250  Norway argues that it may be normal commercia l practice for a producer to incur unusually 
high costs that are above per unit sales price during the period of i nvestigation.  For instance, a 
producer might decide to incur "high marketing costs during the IP to improve market share", 
temporarily pushing "per unit costs above market price".422  According to Norway, that same 
producer, in the pursuit of normal commercial prac tice, may have taken on such costs in the 
expectation that they would be recovered over a period of time extending beyond the period of 
investigation.  Thus, although insuffi cient to permit cost recovery over the period of investigation, the 
market price "may [nevertheless] be sufficiently high to recover costs averaged over a reasonable 
period of time" that is longer than the period of investigation.423  Norway argues that a similar 
situation might arise in "periods of recession"424 or a "cyclical downturn"425.  In such moments of 
relatively low economic activity, a producer's output will decline rendering per unit costs higher.  
However, a producer will eventually have to recove r all of its costs "in order to replace productive 
fixed assets".  So, ultimately, prices will have to increase relative to production costs over the 
business cycle,426 and there is no reason why this may not ex tend beyond the period of investigation. 
7.251  Thus, as we understand it, Norway's concern is that by equating the "reasonable period of 
time" with the "period of investigation" as a matter of course, below-cost sales may be treated as not 
being made in the ordinary course of trade "sim ply because costs were measured during a period 
when they were unusually high"427 and not because such costs could not be recouped within what 
normal commercial practice would dictate to be a reasonable period of time for the recovery of those 
costs. 
7.252  We note that rules for calculating the costs used  in the determination of whether below-cost 
sales may be treated as not being made in the ordi nary course of trade by reason of price are found in 
Article 2.2.1.1.  The last sentence of Article 2.2.1.1,  which we consider to be particularly instructive 
for the issue that is before us, reads: 
"Unless already reflected in the cost allocati ons under this sub-paragraph, costs shall 
be adjusted appropriately for those non-r ecurring items of cost which benefit future 
and/or current production, or for circumst ances in which costs during the period of 
investigation are affected by start-up operations.6 
 
6 The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if 
that period extends beyond the period of investigatio n, the most recent cost s which can reasonably be 
taken into account by the authorities during the investigation. " 
                                                      
422 Norway, FWS, para. 343. 
423 Norway, FWS, para. 343. 
424 Norway, Answers to Panel Questions 82 and 83. 
425 Norway, FWS, para. 343. 
426 Norway, Answers to Panel Questions 82 and 83. 
427 Norway, FWS, para. 344.   WT/DS337/R 
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  7.253  This sentence provides that, unless not already taken into account in the "cost allocations" 
made under the first two sentences of Article 2.2.1.1,  costs for the period of investigation "shall be 
adjusted appropriately" for "non-recurring items of  cost which benefit future and/or current 
production" or "for circumstances when costs during th e period of investigation are affected by start-
up operations".   
7.254  Start-up costs may be described as costs specifically incurred for the purpose of setting up a 
new business or product line.  When incurred during th e investigation period, start-up costs may have 
the effect of increasing average costs of production.   Where they exist and affect an investigated 
party's costs, the last sentence of Article 2.2.1. 1 requires that the cost of production be "adjusted 
appropriately".  Footnote 6 explains that this adjust ment must reflect "costs at the end of the start-up 
period, or if that period extends beyond the period of investigation, the most recent costs which can 
reasonably be taken into account" by the investigating authority.  In other words, the appropriate cost 
adjustment must reflect costs when the start-up peri od has finished (i.e., when start-up costs no longer 
exist), or a period as close as possible to the end of the start-up period.  Thus, the adjustment for start-up costs that is called for under the last sentence of  Article 2.2.1.1 requires investigating authorities to 
exclude or minimize start-up costs in the calcu lation of cost of production for the period of 
investigation.  In this manner, the last sentence of Article 2.2.1.1 ensures that the existence of start-up 
costs during the period of investigation has no or mi nimal impact on the identification of below-cost 
sales for the purpose of Article 2.2.1.   
7.255  A similar adjustment mechanism is envisaged for non-recurring costs ("NRCs").  NRCs may 
be understood to be costs that are not repeated or  incurred on a regular basis.  These may relate to 
one-off transactions including the purchase of plant and capital equipment.  The language of 
Article 2.2.1.1 suggests that the full amount of NRCs  incurred during the period of investigation may 
not always be associated with the cost of production fo r the period of investigation.  As we have more 
fully explained in the sections of this report th at address Norway's claims under Article 2.2.1.1,
428 the 
second sentence of Article 2.2.1.1 calls for an a ppropriate allocation of NRCs incurred during the 
period of investigation over time.  Where no such allocation is made, the last sentence of 
Article 2.2.1.1 requires investigating authorities to make an appropriate adjustment for NRCs which 
benefit current and/or future production.  Thus, Ar ticle 2.2.1.1 envisages that it may be inappropriate 
to allocate in full to production and sale of th e like product during the period of investigation all 
NRCs incurred during that period. 
7.256  Thus, Article 2.2.1.1 recognizes that an investig ated party's costs of production for the period 
of investigation may, to use Norway's words, be "unusually high" when affected by non-recurring 
items of cost and start-up operations.  In such circumstances, investigating authorities are not entitled 
to simply include all such "unusuall y high" costs in the cost of production of an investigated party, but 
they must instead make appropriate allocations or ad justments.  When such allocations or adjustments 
are made, an investigated party's costs will no l onger be burdened with "unusually high" costs, and 
therefore serve as an appropriate measure of cost s of production for the period of investigation.  
Consequently, they will also serve as an appropriate  basis for the identification of below-cost sales 
under Article 2.2.1. 
7.257  In the context of Norway's arguments, the el imination of certain costs associated with non-
recurring items and start-up operations from the cost  of production, means that there would be no 
need, when applying Article 2.2.1, for an investig ating authority to determin e whether the "reasonable 
period of time" within which to recover su ch costs should extend beyond the "period of 
investigation".  Because these "unusually high" co sts would no longer be counted in the cost of 
production, there would be no reason to extend the "r easonable period of time" beyond the "period of 
investigation".  In our view, this result, which fo llows from the adjustment mechanism provided for in 
                                                      
428 See, paras. 7.484-7.487.  WT/DS337/R 
 Page 169 
 
 
  the last sentence of Article 2.2.1.1 and footnote 6, al so lends support to the vi ew that the last sentence 
of Article 2.2.1 could be read to have a contrario implications. 
7.258  In the light of the ambiguity we have identified in  the meaning of Article 2.2.1, we consider it 
appropriate to examine the work of the treaty negot iators, in accordance with Article 32 of the Vienna 
Convention on the Law of Treaties,429 in order to decipher the meaning that was intended by the 
drafters of the AD Agreement.  We begin this examination by reviewing the last draft of the 
negotiating text of the AD Agreement prior to the dr aft negotiating text contained in the Draft Final 
Act Embodying the Results of the Uruguay Round of Multilateral Trade Ne gotiations (the "Dunkel 
Draft" text),430 namely, the Draft Working Paper on Antidumping, dated 26 November 1991 (the 
"Ramsauer" text).431  However, before doing so, we briefly explain what we understand to have been 
the negotiating context in which the present da y text of Article 2.2.1 was developed. 
7.259  The conditions under which below-cost domestic sa les could be considered to be outside of 
the ordinary course of trade were among the key issues concerning the establishment of normal value discussed by negotiators during the Uruguay Round.  At the time, several of the GATT Contracting 
Parties had developed a practice of treating below-cost  sales made in the period of investigation as not 
being made in the ordinary course of trade.  However, a number of dele gations questioned this 
practice, arguing that below-cost sales often refl ected normal business practice, and should therefore 
not be disregarded from the calculation of normal value.
432  In this regard, one delegation raised the 
issue of declining cost curves in high-tech industries: 
"Producers of such products tend to set stable domestic price and export price based 
on the average cost which is estimated to be incurred during a certain period of time 
leading to the future, while there are cases  where the investigating authority of an 
importing country determines the existence of dumping using constructed value based 
on the cost prevailing at the time of actual  export, on the grounds that the domestic 
sales price of such products is less than the cost of production and thus cannot be 
regarded as the price in ordinary course of trade. ... [W]ith respect to the dumping 
investigation of the products whose cost s decline sharply, setting of price in 
anticipation of cost decline should be consid ered differently from sales at a price less 
than the cost of production only aiming at expanding market share of the products."433   
7.260  As we understand it, the point being made by th is delegation was that the determination of 
whether below-cost sales are outside of the ordinary course of trade should, for industries prone to incurring extraordinary high costs during the initial phase of production, in some way involve 
                                                     
 
429 Appellate Body Report, European Communities – Customs Classification of Certain Computer 
Equipment ("EC – Computer Equipment "), WT/DS62/AB/R, WT/DS67/AB /R, WT/DS68/AB/R, adopted 
22 June 1998, DSR 1998:V, 1851, para. 86.  
430 Draft Final Act Embodying the Results of the Ur uguay Round of Multilater al Trade Negotiations, 
GATT Doc. No., MTN.TNC/W/FA, 20 December 1991 (the "Dunkel Draft"), p. F.2. 
431 Draft Working Paper on Antidumping, dated 26 November 1991, (unpublished working document), 
(the "Ramsauer" text).  The relevant text in the Dunkel Dr aft is equivalent in all respects to Article 2.2.1 of the 
current AD Agreemen t.  Thus, the Ramsauer text reflects the Members' negotiating positions immediately prior 
to the final agreed text of Arti cle 2.2.1 of the AD Agreement. 
432 Proposed Elements for a Framew ork for Negotiations Principles and Objectives for Anti-Dumping 
Rules, Communication from the Delegation of Singapore, MTN.GNG/NG8/W/55, 13 October 1989; 
Amendments to the Anti-Dumping Code, Communication from the Delegation of Hong Kong, MTN.GNG/NG8/W/51/Add.1, 22 December 1989; Ame ndments to the Anti-Dumping Code, Communication 
from the Nordic countries, MTN.GNG/NG8/W/64, 22 December 1989; Meetings of 31 January-2 February and 
19-20 February 1990, MTN.GNG/NG8/15, 19 March 1990. 
433 Communication from Japan, Proposals on the Anti-Dumping Code, MTN.GNG/NG8/W/11, 
28 September 1987. WT/DS337/R 
Page 170  
 
  examining or taking into account the evolution of those costs and prices beyond the period of 
investigation.
434  This is because in the normal course of business, a company in such an industry will 
seek to recover those costs over a period that may be longer than the period of investigation.  Similar observations appear to have been made by other dele gations in respect of the effects of start-up costs 
and fluctuating business cycles on the levels of cost s incurred (relative to prices) during the period of 
investigation.
435  Thus, the challenge facing negotiators was to agree upon an appropriate set of 
disciplines for determining whether below-cost sales in  the period of investigation could be treated as 
not being made in the ordinary course of trade, that took into account these alleged business realities.  
7.261  The Ramsauer text addressed the issue of be low-cost sales over various provisions, starting 
with Article 2.2.2, which is reflected, almost verbatim , in the text of the first sentence of Article 2.2.1 
of the present AD Agreement:   
"2.2.2 Sales of the like product in the dom estic market of the exporting country or 
sales to a third country at prices below per unit (fixed and variable) cost of production plus selling, general and administrative costs may be treated as not being in the ordinary course of trade by reason of pri ce and may be disregarded in determining 
normal value only if the authorities
2 determine that (a) such sales are made within an 
extended period of time in substantial quantiti es and (b) such sales are at prices which 
do not provide for the recovery of all costs within a reasonable period of time. 
 
2 When in this Code the term "authorities" is used, it shall be interpreted as meaning authorities at an 
appropriate, senior level. " 
7.262  We note that there are no footnotes in this draft proposal to define the "extended period of 
time" or the notion of "substantial quantities".  In  addition, there is no second sentence recognizing 
that below-cost prices will recover costs within a reasonable period of time when above weighted 
average costs for the period of investigation.  Ho wever, these elements of the current version of 
Article 2.2.1 were not ignored in the Ramsauer text.  Language elaborating the meaning of the 
"extended period of time" and the notion of "substa ntial quantities" was contained in two additional 
sub-ordinate provisions: 
"2.2.2.1 The extended period of time shoul d be long enough to enable the authorities 
to discern whether there is a consistent pattern, in terms of quantities, of sales below 
per unit costs.  This period should normally  be one year but shall in no case be less 
than six months. 
2.2.2.2  Sales below per unit cost are made in substantial quantities when the 
authorities establish that within the extende d period of time the weighted average 
selling price of all arm's length transactions is below the weighted average unit cost 
or the volume of those sales represents a substantial proportion3 of all sales. 
 
3 For the purpose of this paragraph, a substa ntial proportion is not less than [A] per cent. "    
                                                      
434 See also, Communication from Japan, Background Notes to Japan's Proposals on the Anti-Dumping 
Code, MTN.GNG/NG8/W/30, 20 June 1988. 
435 Amendments to the Anti-Dumping Code, Submission by Canada, MTN.GNG/NG8/W/65, 
22 December 1989; Amendments to the Anti-Dumping Code, Communication from the Delegation of Hong 
Kong, MTN.GNG/NG8/W/51/Add.2, 21 March 1990; Meetings of 31 January-2 February and 19-
20 February 1990, MTN.GNG/NG8/15, 19 March 1990.  WT/DS337/R 
 Page 171 
 
 
  7.263  The Ramsauer text contained three additional provisions sub-ordinate to Article 2.2.2.436  One 
of these, Article 2.2.2.3, specified the types of ev idence that investigating authorities should take into 
account when establishing costs for the purpose of establishing normal value.  The language of this provision is reflected in the first two sentences of Article 2.2.1.1 of the current AD Agreement: 
"2.2.2.3  Costs shall normally be calcula ted on the basis of records kept by the 
exporter or producer under investigation, provided that such records are in 
accordance with the generally accepted accounting principles of the exporting 
country and reasonably reflect the costs associated with the production and sale of the product under consideration.  Authorities sh all consider all available evidence on the 
proper allocation of costs, including that whic h is made available by the exporter or 
producer in the course of  the investigation provided that such allocations have been 
historically utilized by the exporter or  producer, in particular in relation to establishing appropriate amortization and de preciation periods and  allowances for 
capital expenditures and other development costs." 
7.264  The next sub-ordinate provision, Article 2.2.2. 4, was presented in the Ramsauer text in the 
form of two square bracketed alternatives.  The first square bracketed alternative read: 
"[2.2.2.4 In determining whether the prices provide for recovery of costs within a 
reasonable period of time, taking account of whether prices prevailing at the time of sale are below weighted averag e costs, the authorities shall be guided by the pattern 
of prices and costs pertaining to the product and industry in questi on.  In addition, 
unless already reflected in the cost alloca tions, the following practices should be 
observed: 
 (i) Producers shall be given an opportunity to identify those non-recurring 
items of cost which benefit current and fu ture production and authorities shall adjust 
costs for the period of investigation appropriately. 
 (ii) For products in the start-up ph ase of production the authorities shall 
determine if prices of the product provide for the recovery of all costs within a 
reasonable period of time based on actual a nd verified data of the exporter or 
producer concerning, inter alia
, cost curve, sales volumes and cost recovery period 
for a prior generation or model of the product subject to the investigation.  When this 
is not possible the per unit costs shall reflect  the cost at the end of the start-up phase, 
or the lowest cost during the period of investigation, if that is earlier. 
 (iii) In the case of cyclical industries4, where sales would otherwise be found 
to be made at prices below per unit cost of production pursuant to paragraph 2.2.2, 
the following provisions shall apply: 
 (a) when capacity utilization and per unit costs of production vary 
significantly over the business cycle and sales prices vary only moderately the 
calculation of the per unit cost shall be adju sted to reflect average per unit costs for 
the exporter's or producer's most recent five-year period for the facilities involved; 
                                                      
436 We do not consider that the last of these sub-ordinate provisions, Article 2.2.2.5, to be relevant to 
the issue that is before us, and therefor e, have not addressed its substance in our analysis.  Article 2.2.2.5 reads:  
"Nothing in this paragraph shall compel inve stigating authorities to determine sales in the 
domestic market of the exporting country, by reason of price, not to be in the ordinary course 
of trade for the purposes of establishing normal value." WT/DS337/R 
Page 172  
 
   (b) when the sales price varies signifi cantly over the business cycle and the 
capacity utilization and the per unit costs of production vary only moderately the 
calculation of the export price shall be adju sted to reflect the average sales price for 
the exporter's or producer's most recent five-year period for the facilities involved.] 
 
4 Cyclical industries are those charac terized by [high sunk costs and] a pattern of recurring periods of 
sectoral contraction and expansi on of demand, sales, and producti on not associated with seasonal 
variations or other short-term factors. " 
7.265  The second square bracketed alternative read: 
"[2.2.2.4   The authorities shall determine th at prices below cost provide for recovery 
of costs within a reasonable period of time if prices below cost at the time of sale are 
above weighted average costs of the period of investigation.  In addition, unless 
already reflected in cost allocations, the following practices shall be observed: 
 (i) Authorities may adjust costs appr opriately for those non-recurring costs 
which benefit future or current production; 
 (ii) For products in the start-up phase of  production, costs shall be adjusted to 
reflect the cost at the end of the start-up period, or the lowest cost during the period of 
investigation, if that is earlier; 
 (iii) Costs for cyclical industries4, for the purpose of this Article, shall reflect 
fixed unit factory costs adjusted by the ratio of capacity utilization over the period of investigation to capacity utilization over the most recent five-year period for the same 
facilities.] 
 
4 Cyclical industries are those charac terized by [high sunk costs and] a pattern of recurring periods of 
sectoral contraction and expansi on of demand, sales, and producti on not associated with seasonal 
variations or other short-term factors. " 
7.266  In the same way that the Ramsauer text proposed  Articles 2.2.2.1 and 2.2.2.2 to define what it 
meant under Article 2.2.2 to "determine" that below- cost sales were made within an "extended period 
of time" and in "substantial quantities", it is eviden t that the two Article 2.2.2.4 alternatives were 
intended to describe what would be required in  order to "determine" that below-costs sales do not  
provide for the recovery of costs within a reasonable period of time.  In this regard, we note that the 
meaning of the terms "extended period of time" , "substantial quantities" and "reasonable period of 
time" was at the centre of the negotiating parti es' discussions on the appropriate methodology for 
determining when below-cost sales could be treated as not being made in the ordinary course of trade 
by reason of price.437  It is therefore not surprising to find that all three terms were the subject of 
specific textual proposals.  In our view, this strongly suggests that, as with Articles 2.2.2.1 and 2.2.2.2 of the Ramsauer text, the two alternatives presented in  Article 2.2.2.4 were in tended to give definitive 
guidance on how the obligation to "d etermine" that below-cost sales do not  provide for recovery of 
costs within a reasonable period of time should be in terpreted.  Indeed, give n their detailed nature, it 
would be odd to find that they were not intended fo r this purpose but rather intended only to describe 
one situation that was irrelevant for the resolution of one of the key questions that was before the 
negotiators.  As we see it, the fact that the brack eted proposals present two very different conceptions 
                                                     
 
437 See, Meetings of 31 January-2 February and 19-20 February 1990, MTN.GNG/NG8/15, 
19 March 1990.  WT/DS337/R 
 Page 173 
 
 
  of how cost recovery within a reasonable period of  time should be assessed further substantiates this 
view. 
7.267  The first of the two alternatives starts by sti pulating that the question as to whether prices 
provide for recovery of costs within a reasonable pe riod of time must be informed by whether prices 
are below weighted average costs,  as well as the pattern of prices and costs pertaining to the product 
and industry in question.  In other words, the star ting premise of this first alternative is that cost 
recovery within a reasonable period of time is a f unction of whether prices at the time of sale are 
below weighted average costs, an assessment that may vary between di fferent products and industries.  
Thus, as opposed to the current text of the second sentence of Article 2.2.1, the first proposal in the Ramsauer text does not equate the reasonable period of  time with the period of investigation.  Rather, 
it explicitly contemplates that the "reasonable period of time" will depend upon the particular 
characteristics of the product and industry under inves tigation.  This suggests that the drafters of this 
alternative intended that cost recovery within a "reasonable period of time" be assessed on a case-by-
case basis. 
7.268  The next sentence of the first alternative in th e Ramsauer text provides that, "in addition" to 
undertaking the assessment contemplated in the firs t sentence, and "unless already reflected in the 
cost allocations",
438 costs relating to non-recurring items, star t-up operations and cyclical industries 
must be assessed in accordance with certain practices.   The placement of this sentence in the same 
paragraph as the first sentence suggests that the prac tices that are described in the subsections that 
follow are intended to explain how the different types of cost should be accounted for in the 
calculation of costs for the purpose of determining whether below-cost prices recover costs within a 
reasonable period of time.  In this regard, it is instructive to note that as regards start-up costs, 
Article 2.2.2.4(ii) requires that the "cost recovery period for a prior generation or model of the product 
subject to the investigation" be taken into account  when identifying the appropriate reasonable period 
of time.  In our view, this confirms that the firs t alternative Ramsauer text was intended to require 
investigating authorities to determine whether belo w-cost sales recover costs within a "reasonable 
period of time" on the basis of the particular circumstances of the investigation at issue. 
7.269  The second of the two alternatives adopts a more limited approach to the question of whether 
below-cost prices provide for recovery of costs with in a reasonable period of time.  The language of 
the first alternative requiring consideration of "the pattern of prices and costs pertaining to the product 
and industry in question" is missing from the second alternative.  Instead, there is a recognition that 
below-cost prices will provide for recovery of cost s within a reasonable period of time when those 
prices are above weighted average costs for the peri od of investigation.  In our view, the focus on 
examining whether below-cost prices provide for rec overy of costs within the period of investigation 
in contrast to a requirement to take into account "the pattern of prices and costs pertaining to the 
product and industry in question" suggests that the second proposed alternative was intended to 
emphasize that it would be appropria te to equate the reasonable period of time with the investigation 
period, regardless of the factual circumstances.   
7.270  As with the first alternative Ramsauer text , the next sentence of the second alternative 
provides that, "in addition" to undertaking the asse ssment contemplated in the first sentence, and 
"unless already reflected in the cost allocations",  costs relating to non-recurring items, start-up 
operations and cyclical industries must be assessed in accordance with certain practices.  However, 
unlike the approach taken in the fi rst alternative Ramsauer text, none  of the practices described in the 
subsections that follow suggest that the reasonable pe riod of time should be determined in the light of 
the particular circumstances of the investigation at issue.  In this regard, it is significant that the 
"practice" described in respect of start-up costs does not require that the reasonable period of time 
                                                      
438 The "cost allocations" referred to in Article 2.2.2.4 would seem to be those made pursuant to 
Article 2.2.2.3 of the Ramsauer text.  WT/DS337/R 
Page 174  
 
  must be determined through consideration of the "c ost recovery period for a prior generation or model 
of the product".  Rather, the "practice" that is ca lled for under this alternative formulation envisages 
that start-up costs could be appropriately quantified on the basis of "the lowest cost during the period 
of investigation".  In our view, this supports a reading of the second alternative Ramsauer text which 
would indicate that it was intended to emphasize th at it would be appropriate to "determine" that 
below-cost sales provide for recovery of cost within a reasonable period of time by equating the 
reasonable period of time with the investigation pe riod, regardless of the factual circumstances.   
7.271  Thus, in the months immediately preceding the final agreement on the text of the 
AD Agreement, negotiators were faced with two al ternative approaches to the question of how to 
comply with the obligation in Article 2.2.2 of th e Ramsauer text to determine whether below-cost 
sales do not  provide for cost recovery within a reasonable period of time.  In our view, these two 
alternatives are, to differing degrees, reflected in th e arguments of the parties in this dispute.  In 
particular, to the extent that it has pursued its cl aim by arguing that the "reasonable period of time" 
must be always determined on the basis of the particular facts and circumstances of each investigation, Norway's position mirrors the approa ch described in the first of the two alternative 
texts. 
7.272  As the final text of Article 2.2.1 demonstrat es, the option that was ultimately agreed upon 
reflected the more limited approach set out in the second alternative of the Ra msauer text.  The first 
sentence of this alternative became  the second sentence of Article 2.2.1.  Articles 2.2.2.1 and 2.2.2.2 
of the Ramsauer text were accepted and inserted as footnotes 4 and 5 of Article 2.2.1.  The subsections relating to the calculation of non-recurri ng costs and start-up costs were finally taken up 
in the text, in slightly modified form, in footnote 6 and the last sentence of Article 2.2.1.1, which itself 
reflects Article 2.2.2.3 of the Ramsauer text.  The only proposed text contained in the Article 2.2.2.4 
alternatives that was not accepted was that relating to the calculation of costs incurred by companies 
operating in cyclical industries. 
7.273  Thus, the negotiators rejected an approach that  would have required fact-intensive case-by-
case pronouncements on the "reasonable period of tim e" for the purpose of determining whether 
below-cost sales do not  provide for recovery of costs within a reasonable period of time, and agreed 
instead to adopt a methodology that could result in  equating the "reasonable period of time" with the 
"period of investigation" regardless of the factual circumstances.  However, in doing so, they did not 
ignore the concerns expressed about the effects of certain types of costs incurred during the period of 
investigation.
439  These concerns were addressed in the last sentence of Article 2.2.1.1 and footnote 6.  
As we have already explained, the final version of  the last sentence of Article 2.2.1.1 establishes a 
cost adjustment mechanism intended to properly acc ount for start-up costs and non-recurring costs in 
the cost of production calculated for an investig ated party during the period of investigation.440  To 
this extent, the negotiators recognized that there might  well be situations when an investigated party's 
costs of production for the period of investigation c ould be "unusually high", and capable of distorting 
the assessment of whether below-cost sales may be tr eated as not being made in the ordinary course of 
trade pursuant to Article 2.2.1.  By agreeing on the mechanism set out in the last sentence in 
Article 2.2.1.1 and footnote 6, the negotiators ther efore ensured that any such distortions could be 
avoided. 
7.274  We recall that we have found that an a contrario  reading of the second sentence of 
Article 2.2.1 would not be inconsiste nt with the general structure of the first sentence of Article 2.2.1, 
which as we have observed, does not require investig ating authorities to make specific determinations 
of the "extended period of time" or the "substantia l quantities".  In addition, we have found that an a 
contrario  reading of the second sentence of Article 2.2.1 would not be at odds with the flexibility that 
                                                      
439 See, paras. 7.259-7.260. 
440 See, paras. 7.252-7.257.  WT/DS337/R 
 Page 175 
 
 
  Article 2.2.1 affords investigating authorities wh en identifying the periods of time used for the 
purpose of measuring per unit costs.  Indeed an a contrario  reading of Article 2.2.1 would be 
conducive to the effective and expe ditious conduct of investigations, which we consider to be an 
important practical considerati on that should not be underestimated, given the consequences of 
Norway's arguments for investigating authorities' de terminations of the "reas onable period of time".  
Furthermore, we have also found that, to the extent  that they seek to address the problems of the kind 
that Norway argues require investigating authorities to determine the length of the "reasonable period 
of time" on a case-by-case basis, the last sentence of Article 2.2.1.1 and footnote 6 provide strong contextual support for the view that the last sen tence of Article 2.2.1 was intended to be read a 
contrario .  In the light of our foregoing analysis, we believe that the work of the treaty negotiators 
confirms this observation.  In our view, in adopting the text of the last sentence of Article 2.2.1, the 
drafters intended to describe a methodology that if applied would result in compliance with the 
obligation to "determine" that below-cost sales do not  provide for recovery of cost within a reasonable 
period of time.   
7.275  Thus, for all of the above reasons, we find that the last sentence of Article 2.2.1 was intended 
to be read a contrario , such that a finding of sales made at prices above weighted average cost for the 
period of investigation would be sufficient to show  that all sales not found to be above weighted 
average cost for the period of investigation do not  provide for the recovery of costs within a 
reasonable period of time.   
(iv) Conclusion 
7.276  We recall that in examining whether domestic sal es were made in the ordinary course of trade 
pursuant to Article 2(4) of the EC's Basic Regula tion, and therefore by reason of price within the 
meaning of Article 2.2.1 of the AD Agreement,
441 the investigating author ity checked to see whether 
the sales at issue were made at prices that were  equal to or above the weighted average cost of 
production for the period of investigation.442  In applying this methodology, which we have found to 
be consistent with the second sentence of Article 2.2.1,443 the investigating authority determined that 
certain domestic sales made by three investigated companies were outside of the ordinary course of 
trade by reason of price.444  It follows from our interpretation of the second sentence of Article 2.2.1 
that the investigating authority's exclusion of these sales was not inconsistent with the EC's 
obligations under the first sentence of Article 2.2.1. 
7.277  Norway also contends that the investigating authority failed to "determine" that the below-
cost sales did not provide for the recovery of a ll costs within a reasonable period of time because its 
findings did not include an explicit and unambiguous  explanation of why the prices of the sales 
discarded did not provide for the recovery of  costs within a reasonable period of time.445  W e  
understand Norway's concern to be focused on the a lleged absence of any mention of the terms "cost 
recovery" and "reasonable period of time" in the inve stigating authority's determination, as well as the 
alleged lack of any statement of the duration of th e "reasonable period of time".  We recall that an 
explicit reference to Article 2(4) of the EC's B asic Anti-Dumping Regulation, which repeats the text 
and footnotes of Article 2.2.1 of the AD Agreement almost verbatim , was made in the Provisional 
Regulation.  Thus, the investigating authority's pr ovisional determination did, indirectly, explain in 
clear terms that the tests described in paragraphs 23-25 of the Provisional Re gulation were intended to 
determine whether any below-cost sales did not pr ovide for the recovery of all costs within a 
reasonable period of time.  Furthermore, as regards th e absence of any statement of the duration of the 
                                                      
441 See, para. 7.225. 
442 See, para. 7.226. 
443 See, paras. 7.225-7.229 and 7.244. 
444 See, para. 7.229. 
445 See, para. 7.210. WT/DS337/R 
Page 176  
 
  "reasonable period of time", it follows from our inte rpretation of the second sentence of Article 2.2.1 
that an investigating authority need not "determi ne", in the sense of making a reasoned conclusion on 
the basis of the particular facts of the investigati on at issue, that the "reasonable period of time" is 
equivalent to the period of investigation for th e purpose of determining whether below-cost sales do 
not provide for the recovery of all costs within a reasonable period of time.  In other words, an 
investigating authority that acts consistently with the second sentence of Article 2.2.1 need not "state" 
that the "reasonable period of time" is equivalent  to the period of inv estigation because these two 
periods are equated by definition under the express terms of the second sentence. 
7.278  Finally, to the extent that we have found th at acting in accordance with the second sentence of 
Article 2.2.1 is sufficient to demonstrate complianc e with the obligation to "determine" that below-
cost sales do not provide for the recovery of costs wi thin a reasonable period of time, we consider that 
the "profitable" sales test applied by the investig ating authority, to the extent that it established 
whether net sales prices were above the weighted average cost of production for the period of investigation, did appropriately assess whether the be low-cost sales at issue did not provide for the 
recovery of all costs within a reasonable period of time. 
7.279  For all of the above reasons, we therefore dismiss the entirety of Norway's claim that the 
investigating authority acted inconsistently with  the EC's obligations under Article 2.2.1 of the 
AD Agreement when it excluded the domestic sales of certain investigated companies from its 
calculation of normal value, on the grounds that they were outside of the ordinary course of trade by reason of price.  In this light, we also dismiss Norway's consequential claim that the EC failed to 
comply with Article 2.2 of the AD Agreement beca use the investigating authority constructed the 
normal values of the same investigated companies on the basis of a flawed finding that their domestic 
sales were outside of the ordinary course of trade by reason of price. 
3. Alleged Inconsistency of the EC's Exclusion of Actual SG&A and Profit Data in the 
Calculation of Normal Value with Articles 2.2.2 and 2.2 of the AD Agreement  
(a) Arguments of the parties 
(i) Norway 
7.280  Norway claims that the investigating authority acted inconsistently with Article 2.2.2 of the 
AD Agreement because it failed to rely on actual data  pertaining to sales in the ordinary course of 
trade for the purpose of calculating the appropr iate amounts of SG&A cost and profit when 
constructing normal value for the investigated parties. 
7.281  Norway argues that, in constructing normal value, the EC was required under Article 2.2.2 to 
utilise actual SG&A cost and profit data pertaining to  all sales made in the ordinary course of trade.  
According to Norway, Article 2.2.2 does not permit investigating authorities to reject actual SG&A 
cost and profit data simply because the volume of sales from which such data are derived is considered to be "low".
446  Norway finds support for this view in the Appellate Body's findings in 
EC – Tube or Pipe Fittings , which Norway submits stand for the proposition that investigating 
authorities must use actual SG&A and profit data fo r sales in the ordinary course of trade whenever 
such sales exist, irrespective of the volume of those sales.447 
                                                      
446 Norway, FWS, paras. 373, 384-395. 
447 Norway, FWS, paras. 387-395, citing Panel Report, EC – Anti-Dumping Duties on Malleable Cast 
Iron Tube or Pipe Fittings from Brazil , para. 138, and Appellate Body Report, European Communities – Anti-
Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil ("EC – Tube or Pipe Fittings") , 
WT/DS219/AB/R, adopted 18 August 2003, paras. 97-98.  WT/DS337/R 
 Page 177 
 
 
  7.282  Thus, Norway contends that the investigati ng authority erred when it disregarded actual 
SG&A cost and profit data pertaining to domestic sales made in the ordinary course of trade on the 
grounds that (i) the volume of such sales, assessed  by individual farmed salmon type, amounted to 
less than 5 per cent of the volume of export sales of the same salmon type; or (ii) the volume of such sales that were profitable, assessed by individua l farmed salmon type, amounted to less than 10 per 
cent of total domestic sales of the same salmon type.  Norway asserts that the investigating authority 
acted on this basis when it disregarded the actual SG&A  cost data of one investigated party, and the 
actual profit data of "at least eight" investigated parties. 
7.283  Finally, Norway argues that the less-than-10 per cent profitable sales test applied by the 
investigating authority to exclude a portion of the sales at issue, is not a permissible basis for 
determining whether sales are made in the ordinary course of trade.  As such, the EC could not rely 
upon the results of the application of this test as a basis for determining whether it was entitled to 
disregard actual profit data from its calculation of constructed normal value.  Thus, Norway claims 
that the EC's resort to the less-than-10 per cent profitable sales test for the purpose of deciding 
whether certain sales were outside of the ordina ry course of trade was inconsistent with both 
Articles 2.2 and 2.2.2. 
(ii) European Communities 
7.284  The EC argues that the investigating authority did not act inconsistently with Article 2.2.2 
when it disregarded actual data pertaining to sales in  the ordinary course of trade for the purpose of 
calculating the appropriate amounts of SG&A cost an d profit when constructing normal value for the 
investigated parties.  The EC acknowledges that th e basis for the investigating authority's non-reliance 
on actual data were findings made in respect of the volume of domestic sales compared to export sales 
(the 5 per cent sufficiency of sales test), and the volume of profitable domestic sales (the less-than-
10 per cent profitable sales test).  However, the EC argues that the investigating authority did not err 
when it rejected this data because: (i) in the view  of the EC, an implicit qualification in respect of 
low-volume sales should be read into the text of the first sentence of Article 2.2.2; and (ii) the less-
than-10 per cent profitable sales test was an or dinary course of trade test, implying that the 
investigating authority acted consistently with Artic le 2.2.2 when it disregarded SG&A cost and profit 
data in respect of sales excluded for having failed to satisfy this test. 
7.285  The EC contends that Norway's interpretation of Article 2.2.2 is incorrect and argues that this 
provision does not preclude investigating authorities from disregarding actual SG&A cost and profit data pertaining to domestic sales that have been made in low volumes.  The EC argues that when 
Article 2 is read as a whole, considering both  its context and the object and purpose of the 
AD Agreement, an implicit qualification in respect of low-volume sales should be read into the text of 
the first sentence of Article 2.2.2.  The EC submits  that if, as Norway suggests, the SG&A cost and 
profit data pertaining to sales that have been exclude d for failing to meet the 5 per cent sufficiency of 
sales test (prescribed under Article 2.2 of the AD Agreement) are used as the SG&A cost and profit 
components of constructed normal value, the effect would be to re-introduce into the calculation of 
normal value the same data that Article 2.2 explicitl y excludes.  The EC argues that this would render 
the possibility of excluding low-volume sales from the calculation of normal value through Article 2.2 
a nullity.  In particular, it would lead to constr ucted normal values being th e same as normal values 
derived from sales disregarded when found to be n on-representative, which the EC asserts would have 
been the case in the investigation at issue.  Thus, the EC submits that if, in particular circumstances, 
the usual interpretation of Article 2.2.2 woul d require a comparison to be made between non-
comparable prices, then such an interpretation must  necessarily be altered to the extent necessary to 
avoid this outcome.  To this extent, the EC argu es that it would be mistaken to apply the Appellate 
Body ruling in EC – Tube or PipeFittings  to the particular facts of the present dispute. WT/DS337/R 
Page 178  
 
  7.286  The EC also considers that an implicit qualifi cation in respect of low volume sales must be 
read into the text of the first sentence of Artic le 2.2.2 because it argues that the meaning of the 
expression "ordinary course of trade" for the purpose of  Article 2.2.2 is independent to the meaning of 
the same expression in Article 2.2.  The EC argu es that in the absence of  giving the notion of 
"ordinary course of trade" different meanings in Ar ticles 2.2.2 and 2.2, a "logical circle" would arise 
between the operation of Articles 2.2.2 and 2.2.1.  This is because, according to the EC, the opening 
paragraph of Article 2.2.2 assumes that sales which are in the ordinary course of trade are already known.  However, pursuant to Article 2.2.1, Article 2.2.2 is to be applied in deriving the SG&A costs 
necessary to identify the very sales th at may be treated as not being in the ordinary course of trade by 
reason of price.  The EC contends that the only way this "logical circle" can be broken is if the notion 
of "ordinary course of trade" found in Article 2.2. 2 is defined without reference to the notion of 
"ordinary course of trade" found in Article 2.2. 1, which it contends implies that the notion of 
"ordinary course of trade" found in Article 2.2.2 must  also be defined without reference to the notion 
of "ordinary course of trade" found in Article 2.2. 
7.287  Finally, the EC argues that the less-than-10 per cent profitable sales test that was the basis for 
the decision to disregard the actual SG&A and profit da ta of some of the sales at issue, represented an 
assessment of whether such sales were ma de in the "ordinary course of trade".
448  As such, the EC 
contends that the investigating authority was perfe ctly entitled to disregard the actual SG&A cost and 
profit data pertaining to sales that failed to satisfy th is test.  In this regard, the EC asserts that when 
profitable domestic sales are so few that they cons titute less than 10 per cent of domestic sales, they 
can no longer be considered to be in the "ordinary course of trade".  The EC justifies this view by, 
inter alia , arguing that the less-than-10 per cent profitable sales test is, in fact, "a corollary of the rule 
set out in Article 2.2.1 that where more than 80 per cent of sales are profitable even those sales that 
are unprofitable should be taken into acc ount when determining normal value."449  
(b) Arguments of the third parties 
(i) United States 
7.288  The United States contends that, in conformity  with the Appellate Body's finding in the EC – 
Tube or Pipe Fittings case, an investigating authority may not exclude actual data from the calculation 
of the profit and SG&A ratios solely because sales were made in low volumes.  The United States disagrees, however, with Norway's assertion that  because the EC accepted actual SG&A cost data, it 
must also have accepted the actual profit data.  According to the United States, an investigating 
authority may use actual SG&A data even when actu al profit data is rejected because SG&A costs 
relate to the actual selling and gene ral operations of a company.  In other words, a fluctuation in 
prices does not necessarily result in a related fluctuation in SG&A.  In contrast, profit on sales is directly impacted by the sales price.  Thus, depe nding on the facts, it may not be unreasonable for an 
investigating authority to reject actual  profit data, while accepting SG&A data. 
(c) Evaluation by the Panel 
7.289  Before assessing the merits of Norway's claims , we briefly describe the extent to which the 
investigating authority disregarded actual SG&A cost  and profit data when constructing normal value 
for the investigated parties.   
                                                     
 
448 EC, FWS, paras. 218-221, 228-229; EC, SWS, para. 95; EC, Answer to Panel Question 85. 
449 EC, FWS, para. 219.  WT/DS337/R 
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  (i) Facts 
7.290  The findings set out in the Provisional Regulation, which in this regard were confirmed in the 
Definitive Regulation,450 reveal that normal value was construc ted for eight of the ten investigated 
parties.451  The investigating authority constructed norma l value by adding to each investigated party's 
adjusted cost of manufacture, a reasonable amount for SG&A costs and a reasonable margin of profit.  
Before utilising "the SG&A incurred and the prof it realised by each" investigated party on the 
domestic market, the investigating authority check ed to see whether it "constituted reliable data".452  
In respect of profit , the investigating authority found that: 
"[t]he actual domestic profit margin was c onsidered reliable when the total domestic 
sales volume of the company concerned coul d be regarded as representative as 
compared to the volume of export sales to  the Community.  For companies with 
overall representative sales, the profit ma rgin was determined on the basis of 
domestic sales of those types that were sold in the ordinary course of trade."453 
7.291  Domestic sales were considered representativ e when the total domestic sales volume of each 
exporting producer was at least 5 per cent of its to tal export sales volume to the EC.  Three companies 
were found not to have overall representative sales.454 
7.292  Five companies were found to have overall representative sales.455  The individual company 
disclosure documents reveal that some or all of these companies' sales were found not to be 
representative at the level of individual salmon types.456  For the remainder of the sales, relating to 
                                                      
450 Definitive Regulation, Recital 11. 
451 Provisional Regulation, Recital 29.  Individual disclosures reveal that these companies were 
[[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-69); [[XXX]] (Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45), [[XXX]] (Definitive Disclosure to [[XXX]], 
28 October 2005, Exhibit EC-39), [[XXX]] (Definitive Disc losure to [[XXX]], 28 October 2005, Exhibits EC-
42 and EC-43); [[XXX]] (Definitive Disclosure to [[ XXX]], 28 October 2005, Exhibit NOR-28); [[XXX]] 
(Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16);  [[XXX]] (Definitive Disclosure to 
[[XXX]], 28 October 2005, Exhibit NOR-53); an d [[XXX]] (Definitive Disclosure to [[XXX]], 
28 October 2005, Exhibit NOR-54). 
452 Provisional Regulation, Recital 26. 
453 Provisional Regulation, Recital 27. 
454 Provisional Regulation, Recital 29.  It app ears that these companies were [[XXX]] (Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-2 8)]; [[XXX]] (Definitive Disclosure to [[XXX]], 28 
October 2005, Exhibit NOR-53); and [[XXX]] (Provisional Disclosure to [[XXX]], 22 April 2005, Exhibit NOR-120.  See also EC, Answer to Panel Question 15; and Norway, Answer to Panel Question 84. 
455 Provisional Regulation, Recital 29. It appear s that these companies were [[XXX]] (Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-69); [[XXX]] (Definitive Disclosure to [[XXX]], 
28 October 2005, Exhibit NOR-45), [[XXX]] (Definitive Disclosure to [[XX X]], 28 October 2005, Exhibit EC-
39), [[XXX]] (Definitive Disclosure to  [[XXX]], 28 October 2005, Exhib its EC-42 and EC-43); and [[XXX]] 
(Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16).  We note, however, that [[XXX]] 
Definitive Disclosure states that "[i]n terms of overall sales it was established that the domestic sales volume ... 
was representative when compared to total domestic plus EU sales ... However, the volume of all PCNs sold 
domestically was unrepresentative ... ".  It is unclear to us whether [[XXX]] domestic sales were excluded 
because they were unrepresentative overall or unrepresentativ e at the level of salmon types.  In the light of the 
fact that the Provisional Regulation identified five compan ies as having made "overall representative sales" we 
have treated [[XXX]] as one of them, by exclusion. 
456 It would appear that this was the case in re spect of all domestic sale s of [[XXX]]. Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16. WT/DS337/R 
Page 180  
 
  three of the five companies, it was found that some of these were not in the ordinary course of trade 
because they failed the less-than-10 per cent profitable sales test.
457   
7.293  No individual findings were made in respect of two investigated companies in the Provisional 
Regulation because it was found that "it was not possibl e to conclude on the basis of the information 
provided that sales of farmed salmon had been made to unrelated parties at arms length prices".458  
However, individual determinations  were made for both companies in the Definitive Regulation.  
Although there is no information in the Definitive Regulation that explains how the investigating 
authority calculated the normal values of these two companies, the individual company disclosures 
reveal that one of these companies, [[XXX]], was combined with [[XXX]] and therefore obtained the 
same individual margin as [[XXX]].459  The other company, [[XXX]], had its normal value 
constructed after it was found that "none of the dom estic sales of the like product per PCN (product 
control number) were found to be made in the ordinary course of trade".460  The extract of this 
company's Definitive Disclosure doc ument that has been submitted as evidence in this dispute does 
not explain the extent to which the less-than-10 pe r cent profitable sales test was applied in finding 
this company's sales were outside of the ordinary course of trade. 
7.294  Thus, it is apparent that for eight of the ten i nvestigated companies, the investigating authority 
found that the actual domestic profit margin, relating to all or some of their sales, was not reliable 
because of the low volume of those sales (5 per cent representative sales test).  For three of the ten 
investigated companies, the investigating authorit y found that the actual domestic profit margin, 
relating to some of their sales, was not reliable because of the low volume of profitable sales (less-
than-10 per cent profitable sales test). 
7.295  As regards SG&A costs , the investigating authority found in  its Provisional Regulation that it 
could provisionally rely upon the company specific information provided by all of the investigated 
companies.461  This finding was confirmed in the Definitive Regulation.462  However, in the Definitive 
Disclosure to [[XXX]], the investig ating authority stated otherwise: 
"As regards selling, general and administra tive expenses ('SG&A'), the findings of the 
provisional disclosure have been revised.  Given that [[XXX]] did not sell 
representative volumes on the domestic market and therefore these sales were not made in the ordinary course of trade, S GA were determined on the basis of the 
weighted average of the actual amounts de termined for other exporters.  This SGA 
rate was subsequently based on data pertai ning to all co-operating exporters part of 
the sample that made domestic sales in th e ordinary course of trade.  It amounts to 
[[XXX]] per cent based on turnover.
"463  
7.296  Thus, for this one company, the investigating authority found actual SG&A costs to be 
unreliable on the basis of the 5 per cent representative sales test.464 
                                                      
457 See, paras. 7.224-7.229. [[XXX]] (Definitive Disclo sure to [[XXX]], 28 October 2005, Exhibit 
NOR-69); [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45); [[XXX]] (Definitive 
Disclosure to [[XXX]], 28 October 2005, Exhibits EC-42 and EC-43).  See also EC, Answer to Panel 
Question 15; and Norway, Answer to Panel Question 84. 
458 Provisional Regulation, Recital 18. 
459 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit EC-40. 
460 Definitive Disclosure to [[XXX]],  28 October 2005, Exhibit NOR-29. 
461 Provisional Regulation, Recital 31. 
462 Definitive Regulation, Recital 11. 
463 Definitive disclosure to [[XXX]], 28 October 2005, Annex II, pages 2-3, heading "Selling, General 
and Administrative Expenses.  Exhibit NOR-54. 
464 This understanding was also confirmed also by the EC.  EC, Answer to Panel Question 18.  WT/DS337/R 
 Page 181 
 
 
  (ii) Whether the investigating authority acted in consistently with Ar ticle 2.2.2 of the 
AD Agreement  
7.297  The first question that we are called upon to r esolve under Norway's Article 2.2.2 claim is 
whether an investigating authority may calculate th e amounts of SG&A cost and profit to use in the 
construction of normal value by disregarding data  pertaining to domestic sales made in "low 
volumes", in particular, sales found not to be made in "sufficient quantities" within the meaning of 
footnote 2 to Article 2.2.  We begin our consider ation of this question by reviewing the text of 
Article 2.2.2 of the AD Agreement, which reads: 
"For the purpose of paragraph 2, the am ounts for administrative, selling and general 
costs and for profits shall be based on actual  data pertaining to pr oduction and sales in 
the ordinary course of trade of the lik e product by the exporter or producer under 
investigation.  When such amounts cannot be determined on this basis, the amounts 
may be determined on the basis of: 
 (i) the actual amounts incurred and realized by the exporter or producer 
in question in respect of production and sales in the domestic market of the 
country of origin of the same ge neral category of products;   
 (ii) the weighted average of the act ual amounts incurred and realized by 
other exporters or producers subject to investigation in respect of production 
and sales of the like product in the domestic market of the country of origin;   
 (iii) any other reasonable method, provided that the amount for profit so 
established shall not exceed the profit normally realized by other exporters or 
producers on sales of products of the same general category in the domestic 
market of the country of origin." 
7.298  Norway's claim is focused on the first sentence of  Article 2.2.2.  This sentence states in clear 
terms that the amounts for SG&A cost and profits u sed in the calculation of constructed normal value 
"shall" be based on "actual data pertaining to production and sales in the ordinary course of trade of 
the like product by the exporter or producer under i nvestigation".  Article 2.2.2 contains no exception 
or qualification to this rule.  On its face, it does not  appear to envisage the possibility of disregarding 
actual SG&A cost and profit data on any other basis th an sales being outside of the ordinary course of 
trade.  Furthermore, it is instructive to note that compared to Article 2.2 of the AD Agreement, which 
explicitly identifies low-volume sales (sales  not made in "sufficient quantities") and sales outside of 
the ordinary course of trade as two of three co nditions that when satisfied may result in the 
construction of normal value, Article 2.2.2 do es not identify low-volume sales as an additional 
criterion of relevance to the calculation of appropriate  amounts of actual SG&A cost and profit for the 
purpose of constructing normal value.  Thus, the text  of Article 2.2.2, when read in the context of 
Article 2.2, suggests in clear terms that Members are not entitled to disregard data pertaining to low-
volume sales (within the meaning of Article 2.2) from the identification of appropriate amounts of 
SG&A cost and profit to use in the construction of normal value.  In our view, this interpretation is 
consistent with the Appellate Body findings in EC – Tube or Pipe Fittings  where it held that 
Article 2.2.2 does not require that data pertai ning to low-volume sales be excluded from the 
calculation of SG&A cost and profits fo r the purpose of constructing normal value.465 
7.299  The EC contends that an interpretation of Ar ticle 2.2.2 that would render impermissible the 
exclusion of data pertaining to sales made in "low volumes" from the calculation of SG&A cost and 
                                                      
465 Appellate Body Report, EC – Tube or Pipe Fittings , para. 98.  See also, Panel Report,  EC – Tube or 
Pipe Fittings , paras. 7.121-7.139.  WT/DS337/R 
Page 182  
 
  profit, would, in certain factual scenarios, result in findings of dumping based on comparisons 
between prices of non-comparable sales.  The EC ar gues that if data pertaining to sales found not to 
be representative because made in low volumes within  the meaning of Article 2.2, are taken into 
account when determining SG&A cost and profit u sed for the purpose of constructing normal value, 
"the effect will be exactly to reintroduce the info rmation that was previously excluded in accordance 
with Article 2.2".
466  The EC describes this "effect" in the following terms: 
"The effect concerns sales prices that, in the application of Article 2.2, were 
disregarded under the low-volume criterion but would not have been disregarded 
under the sales-below-cost criterion.152  Under the narrow interpretation of Article 2.2 
that is favoured by Norway the SG&A a nd the profit margins of these sales would 
have been used, along with those of the other profitable sales that the EC did use, to 
arrive at an average SG&A and profit margin  which would then be added to the costs 
of various products in order to construct normal values. The crucial element in the 
process is that of profit margins. The profit margins that Norway says should be used for the constructed normal value were determined by the prices charged on sales of 
those products — the same prices that had just been disregarded in accordance with 
the Article 2.2 low-volume criterion. It is tr ue that instead of being applied directly 
back to individual sales the various profit margins on sales of the product under consideration are subjected to a process of weighted averaging when constructing the 
normal value.  However, this process of we ighted averaging is in any case applied to 
all the costs of the sales whose prices have b een rejected under Article 2.2.  Likewise, 
even where normal value is based on actual  sales prices these prices are subject to 
weighted averaging for each type or presen tation of the product u nder consideration. 
Whether the data are taken directly from actual sales, or they are split up and brought together again in constructing a normal valu e, they are the same, and when subjected 
to weighted averaging produce the same figure.  
______________________ 
152 Under the system applied in the salmon measures the EC first rejected sales on the basis of the low-
volume criterion, and only then app lied the below-cost criterion.  Consequently, some low-volume sales 
that could have been rejected as below cost were never identified as such." 467 
7.300  Thus, the EC argues that the effect of an in terpretation of Article 2.2.2 that would render 
impermissible the exclusion of data pertaining to sal es made in "low volumes" from the calculation of 
SG&A cost and profit, would ru n not only contrary to the express words of Article 2.2 (which 
prescribes that low volume "sales do not permit a proper comparison"), but also to the principle in 
Article VI:1(a) of the GATT 1994 that price compar isons should only be made between transactions 
that are comparable.468   
7.301  The EC raises a similar issue that Brazil appears to have raised on appeal in EC – Tube or 
Pipe Fittings .  The Appellate Body addressed Brazil' s concerns in the following manner: 
"we note that Brazil further argues, by way of an example, that the Panel's 
interpretation of the chapeau of Article 2. 2.2 implies that a constructed normal value 
would be identical to a normal value that is based on low-volume sales prices under Article 2.2.  As a result, in Brazil's view, Article 2.2 is rendered ineffective, contrary 
to the principles of treaty interpretation in public international law. (Brazil's 
                                                     
 
466 EC, FWS, para. 244. 
467 EC, FWS, para. 245. 
468 EC, FWS, para. 248; EC, SWS, para. 93; EC, Second Oral Statement, para. 55.   WT/DS337/R 
 Page 183 
 
 
  appellant's submission, paras. 89-90)  We  note, as does the European Communities, 
that the example posited by Brazil is premised on certain factual assumptions. (European Communities' appellee's submission, paras. 63-65)  We are not convinced that these factual assumptions necessarily hold true for most anti-dumping investigations.  We are of the view that the possibility  of the outcome suggested by 
Brazil, based on a certain set of circumstances, cannot overcome the specific text of 
the chapeau of Article 2.2.2."
469 
7.302  The EC argues that the difference between EC – Tube or Pipe Fittings and the present dispute 
is that the particular factual sc enario envisaged in Brazil's exampl e is no longer a possibility, but a 
reality.  Thus, the EC alleges that the result of taking into account data from non-representative sales 
in the present case would have been to construct no rmal values that were identical to the normal 
values that would be determined on the basis of  the prices of the same non-representative sales.470 
7.303  We recognize that the general result described by the EC does raise a real dilemma: how to 
reconcile the possibility that prices relating to sal es excluded from the calc ulation of normal value 
under Article 2.2 of the AD Agreement, may be reconstructed and relied upon for the very same 
purpose through the application of Article 2.2.2?  As  the EC notes, the problem mainly arises because 
of the requirement in Article 2.2.2 that investiga ting authorities use actual profit margins pertaining to 
all sales in the ordinary course of trade when c onstructing normal value.  SG&A costs represent the 
selling, general and administrative expenses incu rred in the production and sale of a product.  
Typically, these will not vary much between different domestic sales because they  relate to the same 
selling, general and administrative activ ities conducted in respect of all sales.471  On the other hand, 
profit margins are more likely to vary across diffe rent domestic sales, a nd between low-volume and 
other sales, because they are related to factors ex ternal to costs actually incurred and depend upon a 
company's pricing policy.  Thus, we see the main cause  of the dilemma identified by the EC to be the 
requirement in Article 2.2.2 that actual profit margin s pertaining to all sales in the ordinary course of 
trade be used when constructing normal value.   
7.304  However, the text of Article 2.2.2 is clear, and it is not our task to read words into the 
AD Agreement that are not there.  Therefore, on balan ce, in the light of the text of Article 2.2.2, and 
the Appellate Body's observations in EC – Tube or Pipe Fittings ,472 we find that Article 2.2.2 does not 
envisage a "low-volume" sales exception to the rule that SG&A costs and profit used for the purpose 
of constructing normal value be calculated on the basis of data pertaining to sales made in the 
ordinary course of trade. 
7.305  The second argument made by the EC in support of its contention that an implicit 
qualification in respect of "low volume" sales must be read into the text of the first sentence of Article 2.2.2 relates to the meaning of the expression "ordinary course of trade".
473  The EC contends 
that the expression "ordinary course of trade", as it appears in Article 2.2.2, should be given an 
independent meaning to the same expression found in Articles 2.2.1 and 2.2.  In essence, we 
understand the EC to be arguing that sales disregar ded from the calculation of normal value because 
of their low volume, pursuant to footnote 2 of Articl e 2.2, should be considered to be outside of the 
"ordinary course of trade" for th e purpose of Article 2.2.2, even though such sales could not be 
considered to be made outside of the "ordinary c ourse of trade" for the purpose of Article 2.2.  The 
                                                      
469 Appellate Body Report, EC – Tube or Pipe Fittings , footnote 99. 
470 EC, FWS, para. 254; EC, Second Oral Statement, para. 16. 
471 We recognize that this may not always be the case, and that, for instance, different selling methods 
may be employed to make different sales of the same produ ct.  However, we do not consider that this will be the 
typical way that a company will make its sales of the same product.   
472 Appellate Body Report, EC – Tube or Pipe Fittings , paras. 93-102, including footnote 99.  
473 See, para. 7.286. WT/DS337/R 
Page 184  
 
  EC submits that this conclusion follows from a "logi cal circle" created by the combined operation of 
Articles 2.2.1 and 2.2.2, which it argues can only be escaped if the meaning of "ordinary course of trade" in Article 2.2.2 is independe nt from its meaning in Articles 2.2.1 and 2.2.  The EC describes the 
"logical circle" as arising because in order to determ ine whether below-cost sales are outside of the 
"ordinary course of trade" by reason of price pursuant to Article 2.2.1, it is first necessary to calculate 
SG&A cost, which the EC argues must be done accord ing to Article 2.2.2.  However, to calculate 
SG&A cost pursuant to Article 2.2.2, one needs to  first know what sales are in "ordinary course of 
trade".
474  
7.306  We can see how, on its face, the language used in  Articles 2.2.1 and 2.2.2 may be viewed as 
creating what the EC has described to be a "logical circ le".  It is true that a determination that below-
cost sales have not been made in  the "ordinary course of trade" by reason of price under Article 2.2.1 
requires the proper calculation of SG&A costs in accordance with Article 2.2.2.  Likewise, we 
recognize that the proper calculation of SG&A costs under Article 2.2.2 must be informed by whether 
the domestic sales transactions from which the rele vant SG&A data are derived are made in the 
"ordinary course of trade".  However, we do not ag ree with the EC when it suggests that the only way 
to escape the "logical circle" created by the apparent  interdependence of these two provisions would 
be to give the expression "ordinary course of trade"  in Article 2.2.2 a meaning that would result in 
finding that low-volume sales could be treated as outside of the "ordinary course of trade" for the purpose of Article 2.2.2, even when it appears they s hould not be treated as such under Article 2.2.  In 
our view, the combined operation of Article 2.2.1 and 2.2.2 does not support such a conclusion. 
7.307  Although the below-cost sales test in Article 2. 2.1 appears in the text of the AD Agreement 
before Article 2.2.2, it is evident that, in practi ce, it cannot be performed without having first made 
the calculations referred to in Article 2.2.2.  Thus, where an investigating authority intends to perform 
the below-cost sales test pursuant to Article 2.2.1,  the provisions of Article 2.2.2 must be applied in 
advance.  We consider that the expression "ordin ary course of trade" in Article 2.2.2 must be 
understood in the light of this practical context.  In other words, the reference to sales made in the 
"ordinary course of trade" in Article 2.2.2 mu st encompass all sales found by the investigating 
authority to be in the "o rdinary course of trade" at the time of its application .  Because there can be no 
determination of below-costs sales outside of the "ord inary course of trade" pursuant to Article 2.2.1 
before  the rules in Article 2.2.2 are applied to calculate  SG&A costs, it follows that sales identified as 
not being made in the "ordinary course of trade" for the purpose Article 2.2.2 cannot include below-cost sales found to be outside of the "ordinary course of trade" within the meaning of Article 2.2.1.  In 
effect, this means that sales found to be outside of the "ordinary course of trade" under Article 2.2.1 
cannot also be outside of the "ordinary course of trade" for the purpose of Article 2.2.2.   
7.308  We note that Article 2.2.1 does not exhaust the situations when domestic sales may be 
considered to be outside of the "ordinary course of  trade".  Indeed, as the Appellate Body has found, 
Article 2.2.1 establishes but one methodology for de termining when below-cost sales may be treated 
as not being made in the "ordinary co urse of trade" by reason of price.
475  There may be many other 
reasons why domestic sales transactions might not be considered to have been made in the "ordinary 
course of trade".476  Thus, to find that sales determined to be  outside of the "ordinary course of trade" 
under Article 2.2.1 cannot also be cons idered to be "outside of the or dinary course" for the purpose of 
Article 2.2.2, does not render Article 2.2.2 ineffective.  Indeed, it is clear to us  that the appreciation of 
sales in "ordinary course of trade" that is called for under Article 2.2.2 envisages the identification of 
all sales that are outside the "ordinary course of trade" by any means other than the below-cost sales 
test set out in Article 2.2.1.  Given how we unde rstand that Articles 2.2.1 and 2.2.2 are intended to 
operate in practice, we cannot see how any other result is practically possible.  In this light, we can 
                                                      
474 EC, SWS, para. 87. 
475 Appellate Body Report, US – Hot-Rolled Steel , para. 147. 
476 Appellate Body Report, US – Hot-Rolled Steel , para. 146.  WT/DS337/R 
 Page 185 
 
 
  find no support in the so-called "logical circle" for the EC's suggestion that the notion of sales in the 
"ordinary course of trade" must be interpreted in such a manner that would permit "low-volume" sales 
to be treated as outside of the "ordinary cour se of trade" for the purpose of Article 2.2.2. 
Data pertaining to sales disregarded on the basis of the application of the 5 per cent low-
volume sales test 
 7.309  We recall that for eight of the ten investig ated companies, the investigating authority 
disregarded the actual domestic profit margins pertaining to some or all of their sales because of the low volume of those sales (5 per cent low-volume sal es test).  For one investigated company, the 
investigating authority disregarded actual SG&A costs on the same basis.  In this light, and bearing in 
mind our conclusions in respect of the proper inte rpretation of Article 2.2.2, we find that the 
investigating authority acted inconsistently with  the EC's obligations under Article 2.2.2 of the 
AD Agreement when it disregarded the actual SG&A  and domestic profit margin data pertaining to 
some or all sales of these companies because of the low volume of those sales. 
Data pertaining to sales disregarded on the basi s of the application of the less-than-10 per 
cent profitable sales test 
 
7.310  For three of the ten investigated companies, th e investigating authority found that the actual 
domestic profit margin, relating to some of their sales, was not reliable because it was derived from a low volume of profitable sales (less-than-10 per cent profitable sales test).  In the first instance, Norway argues that the exclusion of this informa tion through the application of the less-than-10 per 
cent profitable sales test amounted to disregarding actual profit margin data because of low-volume 
sales.  The EC contends that the exclusion of the profit margin information was not based on low-
volume sales, but on the investigating authority's findi ng that the sales in question were not made in 
the ordinary course of trade.  In this regard, th e EC submits that the less-than-10 per cent profitable 
sales test is a permissible means of checking whether sales are made in the ordinary course of trade.  
Norway argues that the less-than-10 per cent profita ble sales test is not a permissible methodology for 
determining whether sales are made in the ordinary course of trade.  Thus, a threshold question that 
we must resolve under this part of Norway's claim is whether the less-than-10 per cent profitable sales 
test is a permissible means of determining whether sales are in the ordinary course of trade.   
7.311  We recall that in assessing whether the investigat ed parties' sales were made in the ordinary 
course of trade, the investigating authority firs t examined whether any non-profitable (i.e., below-
cost) sales could be disregarded from the calculation of normal value by applying the test set out in 
Article 2.2.1.
477  After excluding all below-cost sales that satis fied this test, the investigating authority 
next checked to see whether "the volume of profita ble sales [that remained] of any type of farmed 
salmon represented less than 10 per cent of the tota l sales volume of that type".  Where this was found 
to be the case, "it was considered that this partic ular type was sold in insufficient quantities for the 
domestic price to provide an appropriate basi s for the establishment of the normal value".478  
Consequently, the investigating authority disregarde d all profitable (i.e., above-cost) sales that did not 
account for at least 10 per cent of the volume of all relevant domestic sales.  Thus, the investigating 
authority determined that all domestic sales of any ty pe of farmed salmon, irrespective of profitability, 
could be excluded from its calculation of normal value when the below-cost sales meeting the test set out in Article 2.2.1 accounted for more than 90 per ce nt of the volume of all relevant domestic sales.  
In the words of the EC, "where the overwhelming majority of [an investigated] company's sales 
                                                     
 
477 See paras. 7.278 - 7.279. 
478 Provisional Regulation, Recitals 23-25.  These findings were confirmed in the Definitive 
Regulation, Recital 11. See also, para. 7.240 above. WT/DS337/R 
Page 186  
 
  [were] made at a loss" the investigating author ity found "the whole of the company's sales as not 
being made in the ordinary course of trade".
479 
7.312  The AD Agreement does not specifically address the question of whether profitable sales may 
be treated as not being made in the ordinary course of trade for the sole reason that they are made in low volumes.  However, it does specifically address th e implications of below-cost sales for ordinary 
course of trade determinations and the calculation of normal value.  As we have already noted, 
Article 2.2.1 establishes a methodology for determin ing when below-cost sales may be treated as 
outside of the ordinary course of trade by reason of price.
480  Pursuant to this methodology, below-
cost sales may be found to be outside of the ordinary course of trade, and thereby disregarded from the calculation of normal value, when three conditions  are satisfied – the below-cost sales must be 
made: (i) within an extended period of time; (ii) in  substantial quantities; and,  (iii) at prices which do 
not provide for the recovery of all costs within a reasonable period of time.  
7.313  To the extent that one of the conditions for findi ng that below-cost sales have not been made 
in the ordinary course of trade is that they be made in substantial quantities , Article 2.2.1 recognizes 
that the volume of below-cost sales may be determ inative of the question whether such sales are made 
in the ordinary course of trade.  To this end, foot note 5 explains that below-cost sales will be made in 
substantial quantities when they represent at least  20 per cent of the volume of transactions under 
consideration for the determination of  normal value.  When this thres hold is not met, an investigating 
authority will not be entitled to treat the below-cost sales as outside of the ordinary course of trade by reason of price.  In other words, when 80 per cent or more of an investigated party's domestic sales 
are made at above-cost prices, the remaining below-co st sales will not be considered to be outside of 
the ordinary course of trade, and must therefor e be taken into account when determining normal 
value, unless of course, such below-cost sal es can be disregarded for another reason. 
7.314  When below-cost sales are made in substantial quantities, Article 2.2.1 provides that they may 
be treated as not being made in the ordinary course of trade only when they are made over an extended period and at pri ces which do not provide for the recovery of all costs within a reasonable 
period of time. 
7.315  Thus, two of the implications of below-cost sal es for ordinary course of trade determinations 
identified in Article 2.2.1 are that: (i) below-cost  sales cannot be found to be made outside of the 
ordinary course of trade, by reason of price, when  they are made in volumes that do not exceed 20 per 
cent of the relevant domestic sales; and (ii) below- cost sales may be found to be made outside of the 
ordinary course of trade only when all three of the conditions in Article 2.2.1 are satisfied.  It is 
notable that the possibility of treating both below-cost and above-cost sales  as not being made in the 
ordinary course of trade when be low-cost sales exceed a certain volu me (for example, 90 per cent) of 
domestic sales is not provided for in  Article 2.2.1.  Given that Arti cle 2.2.1 is intended to address the 
implications of below-cost sales for ordinary course of trade determinations, we  believe this to be a 
telling omission.  Had the drafters of Article 2.2.1 considered that a large volume of below-cost sales 
could have implications for dete rmining whether a low volume of above-cost sales could be found to 
be outside the ordinary course of trade, it could be  expected that this would have been expressed in 
the text of the only provision of the AD Agreem ent that was specifically designed to address the 
implications of below-cost sales on ordinary course of trade determinations.  This is even more so 
because through the operation of footnote 5, Article 2. 2.1 does in fact specifically envisage that large 
volumes of above-cost sales will have implications  for determining whether low volumes of below-
cost sales may be found to be in the ordinary cour se of trade.  Thus, the absence of any recognition of 
the possibility that large volumes of below-cost sal es may imply that low volumes of above-cost sales 
could be treated as not being made in the ordinary course of trade suggests that the drafters did not 
                                                     
 
479 EC, Opening Statement at the Second Substantive Meeting of the Parties, para. 58. 
480 See, paras. 7.258- 7.273.  WT/DS337/R 
 Page 187 
 
 
  envisage that a low volume of above-cost sales coul d be determinative of whether such sales were 
made in the ordinary course of trade.  
7.316  We find support for this conclusion in Article 2.2.   Read together with footnote 2, Article 2.2 
provides that domestic sales constituting less than 5 per cent of the volume of export sales of the product under consideration shall not be consider ed to permit a proper comparison between export 
price and normal value, and must therefore be disregarded from the calculation of normal value.  
Thus, when domestic sales are made in low volumes relative to export sales, they cannot be used in 
the calculation of normal value.  In our view, Article  2.2 demonstrates that when the drafters of the 
AD Agreement believed that the low volume of dom estic sales should be taken into account for the 
purpose of calculating normal value, they specifically said so.  And in doing so, we note that they did 
not distinguish between different volumes of profitable or non-profitable domestic sales.  
7.317  Finally, we note that one of the justificati ons the EC advances for the less-than-10 per cent 
profitable sales test is that it provides "a comple ment to the less-than-20 per cent unprofitable rule" 
that is set out in footnote 5 to Article 2.2.1, and thereby "helps to achieve the goal of even-handedness 
that was identified by the Appellate Body".
481  In making this statement, we understand the EC to 
suggest that the application of Article 2.2.1 may r esult in findings that are not  "even-handed" and "fair 
to all parties affected by an anti-dumping investigation".482  We are not convinced that the drafters of 
Article 2.2.1 agreed to establish a rule that coul d itself only result in "even-handed" findings when 
applied in conjunction with another rule that do es not appear elsewhere in the provisions of the 
AD Agreement. By agreeing to the rules in footnot e 5, it is evident that the drafters of the 
AD Agreement recognized that a minimum volume of be low-cost sales is not incompatible with sales 
being made in the ordinary course of trade.  As such, the result achieved through the operation of 
footnote 5 is, in and of itself, fair and even-hande d, and therefore does not require the application of 
any complementary rule to ensure that normal value is appropriately calculated. 
7.318  Therefore, for all of the above reasons, we fi nd that the less-than-10 per cent profitable sales 
test applied by the investigating authority in the i nvestigation at issue is an impermissible means of 
determining whether domestic sales are in the ordinary course of trade.  We recall that the 
investigating authority disregarded the actual prof it margins on certain domestic sales of three of the 
ten investigated parties on the basis of the less-than -10 per cent profitable sales test.  Because we have 
found that the less-than-10 per cent profitable sales test is not a permissible means of determining 
whether domestic sales are made outside of the ordina ry course of trade, the investigating authority's 
decision to disregard the profit margin data of three of the ten investigated parties cannot be justified 
under the terms of Article 2.2.2.  Thus, to the extent  that the investigating authority did not rely upon 
the profit margin data pertaining to certain sales ma de by [[XXX]], [[XXX]] and [[XXX]] on the basis 
of the less-than-10 per cent profita ble sales test, we find that the investigating authority acted 
inconsistently with the EC's obligations under Article 2.2.2 of the AD Agreement. 
7.319  In the light of our finding in respect of Norw ay's claim under Article 2.2.2, we do not believe 
it is necessary, for the purpose of satisfactorily reso lving this dispute, to also decide whether the 
investigating authority's application of the less-than -10 per cent profitable sales test was inconsistent 
with Article 2.2 of the AD Agreement.  Therefore,  on the grounds of judicial economy, we make no 
findings in respect of Norway's claim that th e less-than-10 per cent profitable sales test was 
inconsistent with Article 2.2 of the AD Agreement. 
                                                      
481 EC, Answer to Panel Question 85. 
482 Appellate Body Report, US – Hot-Rolled Steel , para. 147. WT/DS337/R 
Page 188  
 
  4. Alleged Inconsistency of the EC's Reliance on  "Facts Available" in the Calculation of 
Grieg Seafood's Normal Value with Article 6.8 and Paragraphs 3 and 6 of Annex II of 
the AD Agreement 
(a) Arguments of the parties 
(i) Norway 
7.320  Norway claims that the investigating authorit y relied on "facts available" to establish the 
constructed normal value for one of the investigated  companies, Grieg Seafood AS ("Grieg"), without 
respecting the conditions governing the use of "facts av ailable" set out in Article 6.8 and paragraphs 3 
and 6 of Annex II.  Norway's complaint relates to  the investigating authority's establishment of the 
amounts used for filleting and finance costs in the calculation of Grieg's cost of production. 
7.321  Norway submits that the AD Agreement distin guishes between primary source information 
obtained from the investigated company and secondary source information obtained from another source, and that secondary source in formation is referred to as "facts available" or "best information 
available".  Thus, if an investigating authority do es not use information submitted by an investigated 
company, it automatically uses secondary source info rmation or "facts available", and must therefore 
comply with the conditions governing the use of such  information in Article 6.8 and Annex II.    
7.322  Norway alleges that the investigating authority did not respect the conditions in paragraphs 3 
and 6 of Annex II when it used "facts available"  to calculate Grieg's filleting costs because the 
information provided by Grieg to the investigating authority in response to the deficiency notice was 
verifiable, submitted in a timely fashion and could be  used without undue difficulties.  In particular, 
Norway argues that although the requested info rmation was submitted af ter the investigating 
authority's verification of Grieg's initial questionnai re response at Grieg's premises in Norway, the 
investigating authority could have asked Grieg to  provide additional data to assist it verify the 
submitted information, had it been considered unr eliable.  However, according to Norway, the 
investigating authority failed to do so.  Moreover, No rway contends that there is no indication that the 
investigating authority even considered how the info rmation submitted by Grieg could be verified.  It 
simply decided not to accept it because the inform ation had not been presented during the on-site 
investigation at Grieg's premises.  Norway cons iders that the information on filleting costs was 
submitted in a timely fashion because it was provided approximately one week after the investigating 
authority's written disclosure of the position it had take n in respect of Grieg's cost of production, at a 
stage when the investigation was still ongoing.  Fu rthermore, in Norway's view, the information 
submitted by Grieg could also be used without un due difficulties, and the investigating authority 
never provided an explanation why this was not the case. 
7.323  Likewise, as regards the calculation of Grie g's finance costs, Norway argues that the 
investigating authority did not respect the conditi ons in paragraphs 3 and 6 of Annex II because the 
information provided by Grieg to the investigati ng authority was verifiable, submitted in a timely 
fashion and could be used without undue difficulties.  
7.324  Finally, in response to the EC's arguments, No rway submits that the Panel does not have to 
resolve the interpretive question of how Article 9.4 of the AD Agreement is intended to apply in the 
event that all margins of dumping for investigated  producers were calculated on the basis of "facts 
available", because the investigating authorit y calculated several margins of dumping in the 
investigation at issue without resorting to "facts available".  Thus, the Panel need not address the 
question raised by the EC's arguments for the purpose of resolving the present dispute.  WT/DS337/R 
 Page 189 
 
 
  (ii) European Communities 
7.325  In the first instance, the EC argues that it did not rely on "facts available" in determining the 
appropriate amount of filleting costs for the purpose of constructing Grieg's normal value.  The EC 
contends that the conditions for resorting to "facts available" were not satisfied on the basis of the 
circumstances at issue, in particular, "because of  the confused situation in which some of the 
information was in the hands of another company".483  However, because the necessary information 
could not be obtained from Grieg, the EC argues th at the investigating authority was entitled not to 
"invoke" "the particular process for a rriving at conclusions on factual issues"484 that is envisaged in 
Article 6.8.  Thus, the EC argues that, in the pa rticular circumstances of the investigation, the 
investigating authority was entitled to rely on inform ation other than "facts available".  In any case, 
the EC submits that even if the conditions for usin g "facts available" were established in respect to 
Grieg's filleting costs, an alternative to using "f acts available" is contemplated under Article 6.8 
because the text is only permissive in nature, not manda tory.  In this regard, the EC contends that "if 
there is no alternative to using facts available when  information is not forthcoming, investigations 
would reach an impasse regarding the application of Article 9.4 and the extension of an average 
margin to non-investigated exporters in situati ons where none of the investigated companies had 
cooperated".485 
7.326  Secondly, the EC argues that the investigating authority did not act inconsistently with 
paragraph 3 of Annex II in assessing Grieg's filleting costs because, in its view, the information on 
filleting costs could not be verified once submitt ed after the verification conducted on Grieg's 
premises in Norway.  Furthermore, the EC conte nds that there was no viol ation of paragraph 6 of 
Annex II because the inadequacies of Grieg's filleting cost information must have been apparent to 
Grieg in the light of the discussions held during the verification visit.  The EC also argues that the 
language of paragraph 6 only requires that an i nvestigating authority "should" (and not "shall") 
provide investigated parties with the reas ons for not accepting information.     
7.327  The EC contests Norway's claim in respect of fi nance costs by arguing that the issue before 
the Panel is not how it treated the evidence subm itted by Grieg and whether it relied on "facts 
available".  The EC asserts that Norway's complaint relates to the decision taken by the investigating 
authority to apply a particular calculation methodolog y, instead of relying on the actual data for these 
costs that was supplied by Grieg.  In this regard, the EC argues that it did not reject Grieg's data, but 
simply took a decision to apply a particular benc hmark to assess Grieg's costs, which it considered 
was of a commercial nature.  Thus, the EC argues that it did not rely on "facts available" in 
determining the appropriate amount of finance co sts for the purpose of constructing Grieg's normal 
value. 
(b) Arguments of the third parties 
(i) Korea 
7.328  Korea asserts that Article 6.8 and paragraphs 3 and 6 of Annex II of the AD Agreement do 
not provide a carte blanche to an investigating authority cond ucting an anti-dumping investigation 
whenever it encounters less than optimal informat ion from a foreign respondent.  Instead, these 
provisions unequivocally provide conditions that n eed to be satisfied before the investigating 
authority applies the facts available standard.  In particular, Korea notes that paragraph 3 of Annex II 
stipulates that all verifiable information that can be  used in the investigation without undue difficulties 
should be taken into account by the investigating auth ority; and that paragraph 6 of Annex II, in turn, 
                                                      
483 EC, FWS, para. 287;  EC, Answer to Panel Question 20. 
484 EC, Answer to Panel Question 24. 
485 EC, FWS, footnote 165. WT/DS337/R 
Page 190  
 
  stipulates that if the investigating authority plans to apply facts ava ilable, it must inform the foreign 
respondent of the reason and offer another opportunity to provide th e requested information within a 
reasonable period of time.   
7.329  Korea argues that in the underlying investiga tion, the EC applied "facts available" in a 
manner that was inconsistent with these provisions a nd rejected the information submitted by Grieg.  
Given the circumstances and in the light of the communication between the investigating authority 
and Grieg, Korea believes that Grieg cooperated w ith the EC investigation in a reasonable manner. 
7.330  Thus, Korea submits that the EC's rejection of the Grieg's information was unreasonable and 
unwarranted.  The EC's recourse to "facts available" , therefore, constituted a violation of Article 6.8 
and paragraphs 3 and 6 of A nnex II of the AD Agreement. 
(c) Evaluation by the Panel 
(i) Whether the investigating authority acted incons istently with Article  6.8 and paragraphs 3 
and 6 of Annex II when it calculated Grieg's filleting costs
 
7.331  Norway claims that the investigating authority relied on "facts available" to establish Grieg's 
filleting costs for the purpose of constructing normal value, without respecting the conditions 
governing the use of "facts available" set out in Artic le 6.8 and paragraphs 3 and 6 of Annex II.  The 
EC acknowledges that the investigating authority did not determine Grieg's filleting cost on the basis 
of the information submitted by Grieg, and that it in stead used another source of information to derive 
those costs.  However, according to  the EC, the investigating authority 's actions were not inconsistent 
with Article 6.8 and Annex II of th e AD Agreement for essentially two alternative reasons:  first, the 
EC argues that the investigating authority's reliance on information not submitted by Grieg did not 
amount to using "facts available", within the meaning of Article 6.8486; and second, in any case, the 
EC argues that the investigating authority's condu ct fully complied with paragraphs 3 and 6 of 
Annex II, thereby entitling it to rely upon "facts available".487  Before turning to address Norway's 
claims, we believe it is useful to first set out so me of the relevant facts surrounding the investigating 
authority's calculation of Grieg's filleting costs. 
 Facts 
 
7.332  The investigating authority issued the investig ated parties with the "exporters/producers" 
questionnaire for the purpose of collecting info rmation relevant to its investigation on 
24 November 2004.488  On 15 December 2004, the EC faxe d to Grieg a pre-verification letter 
confirming its intention to undertake a verifica tion visit on the premises of Grieg on 10 and 
11 January 2005.489  The same letter reminded Grieg that the deadline for its completed questionnaire 
response was 3 January 2005.  It requested Grieg to have "all costs and financial accounting records 
and supporting documents available,  including all worksheets used to  prepare the replies to the 
questionnaire and all schedules reconciling the data reco rded in the questionnaires to the source data".  
It also provided a "non-exhaustive list of items whic h should be prepared and available" for the start 
of the verification visit comprising: 
• "Reconciliations between the companies [s ic] audited financial statements and 
the information submitted in the ques tionnaire response relating to sales 
quantities, sales values and costs of production of the product concerned.  
                                                      
486 See, in particular, EC, FWS, paras. 256, 274, 287 and 290. 
487 EC, FWS, paras. 291-303. 
488 Exhibit EC-6. 
489 Exhibit EC-8.  WT/DS337/R 
 Page 191 
 
 
  • ... all incoming and outgoing invoices from 1 October 2003 to 
30 September 2004, the inputs for the production of the product concerned or any other cost relating directly or indirectly to the product concerned.  
• All documents relating to domestic and export sales, including shipping and 
payment documents and, where a pplicable, customs documents.  
• Full details on production costs, over heads and SG&A expenses including 
production reports.  
• The original contract documents.  
• With regard to any allowances or ad justments eventually considered under 
Section G of the anti-dumping questionnaire , please be prepared to justify these 
in detail and have all re levant supporting evidence readily available."  
7.333  On 8 March 2005, approximately two months after the on-site verification of Grieg's 
questionnaire reply, the investigating authority sent Grieg an "Information Note on Cost of 
Production" setting out its "preliminary asse ssment" of Grieg's cost of production.
490  In disclosing the 
"general methodology" applied by the investigating authority to calculate Grieg's cost of production, 
the Note stated that "[w]here no information [was] provided by the relevant company for certain costs 
or when these costs were not available, these have  been obtained as an average from other sources 
according to the best information available".   
7.334  The Information Note revealed that the inves tigating authority was of the view that no 
filleting costs had been reported because they could not be found in the accounts of Grieg Seafood 
Rogaland (the production company of the Grieg Seafood Group), [[XXX]].  The investigating 
authority rectified this apparent lack of informa tion by calculating Grieg's filleting costs using "cost 
per unit information acquired from another co-opera ting producer in Norway", and adding [[XXX]] 
NOK/kg to Grieg's cost of production.491  
7.335  On 16 March 2005, Grieg responded to the investig ating authority's Information Note.  Grieg 
explained that during the period of investigation, it had produced filleted pr oducts with a company 
called Triton, which was unrelated to the Grieg Se afood Group.  Grieg's response attached a letter 
from Triton setting out the per kilogram filleting pri ces charged to Grieg for its services for the period 
2003 and 2004.  The letter noted that such prices were [[XXX]] a [[XXX]] between Grieg and Triton 
dated [[XXX]].492  Grieg's response revealed that it consid ered its filleting costs for the period of 
investigation were [[XXX]] NOK/kg.493 
7.336  In the Disclosure of its Provisional Determinati on, the investigating authority confirmed its 
"preliminary assessment" of Grieg's filleting costs.  In addition, after referring to Grieg's response to 
the Information Note, the investigating authority not ed that "the cost per kilo used may be re-
examined during the definitive stage".  Grieg resp onded to the investigating authority's Provisional 
Determination, repeating the comments alr eady made in respect of filleting costs.494  
7.337  The investigating authority's Definitive Determ ination confirmed the findings made at the 
provisional stage.  The investigating authority recalled the findings made in the previous 
                                                      
490 Information Note on Cost of Production, Exhibit NOR-55. 
491 Information Note on Cost of Production, Exhibit NOR-55. 
492 Response to Information Note on Production Costs, Exhibit NOR-56. 
493 Response to Information Note on Production Costs, Exhibit NOR-56. 
494 Response to EC Provisional Disclosure to Grieg, Exhibit NOR-57. WT/DS337/R 
Page 192  
 
  communications and disclosures to Grieg, stating a dditionally that after considering the information 
submitted by Grieg, it decided to confirm its fi ndings because "at verification [Grieg] could not 
support the statements made at a later date".
495 
 The assertion that the investigating auth ority did not rely on "facts available" 
 7.338  The EC does not contest that the investigating authority determined Grieg's filleting costs on 
the basis of information that was, in part, not submitted by Grieg.  However, it  argues that the 
investigating authority's actions did not amount to th e use of "facts available", within the meaning of 
Article 6.8.  In particular, the EC asserts that although Grieg eventually provided information in 
respect of its filleting costs, it did so in the form of a letter from another company, and not on the 
basis of information from its own accounts.  Th e EC submits that this created a "confusing 
situation",
496 but one that could not justify resorting to "facts available" within the meaning of 
Article 6.8.  Confronted with these facts, the EC argues that the only option for the investigating 
authority was to base Grieg's filleting costs on info rmation from "another relevant source, one that 
[the investigating authority] could trust to gi ve a proper commercial figure and which had been 
verified".497 
7.339  As we understand it, the basis of the EC's assertion that the investigating authority did not 
rely on "facts available" when determining Grieg's filleting costs is the contention that it is possible, 
under Article 6.8, for an investigating authority to rely upon information other than "facts available" 
when an interested party has provided information to an investigating authority that falls short of what 
is necessary for it to make the required determina tion.  More specifically, we understand the EC's 
defence to Norway's claim to be premised on the view  that Article 6.8 envisages the possibility that an 
investigating authority may rely on information othe r than that submitted by an interested party in 
response to a request for informati on, even when the conditions for di sregarding that information and 
using "facts available" under Article 6.8 have not been established.   
7.340  We first turn to text of Article 6.8, which reads: 
"In cases in which any interested party refuses access to, or otherwise does not 
provide, necessary information  within a reasonable period or significantly impedes 
the investigation, preliminary and final determinations , affirmative or negative, may  
be made on the basis of the facts available . The provisions of Annex II shall be 
observed in the application of th is paragraph." (Underline added). 
7.341  Article 6.8 addresses the situation where "necessary information" for making 
"determinations" is held by an inter ested party, but not provided to the investigating authority within a 
reasonable period.  In particular, Article 6.8 speci fies that where an inter ested party refuses access to, 
or otherwise does not provide, "necessary informati on" within a reasonable period, or where an 
interested party significantly impedes the inves tigation, an investigating authority "may" make 
"determinations" on the basis of "facts available".  We note that Article 6.8 contemplates no other 
possibilities.  Thus, where "necessary information" is  not forthcoming, an investigating authority 
"may" make " determinations" on the basis of "facts available". 
7.342  Article 6.8 requires that the provisions of Annex II be observed in its application.  
Paragraph 1 of Annex II provides:  
                                                      
495 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16. 
496 EC, FWS, para. 287. 
497 EC, FWS, para. 290.  WT/DS337/R 
 Page 193 
 
 
  "As soon as possible after the initiation of the investigation, the investigating 
authorities should specify in detail the information required from any interested party , 
and the manner in which that information shou ld be structured by the interested party 
in its response.  The authorities should also ensure that the party is aware that if 
information is not supplied within a reasonable time, the authorities will be free to 
make determinations  on the basis of the facts available , including those contained in 
the application for the initiation of the investigation by the domestic industry." (Underline added). 
7.343  In establishing that investigating authorities should ensure that respondents receive proper 
notice of their right to use "facts available" in  making determinations, pa ragraph 1 of Annex II 
provides important guidance on the meaning of the te rm "necessary information" that is found in 
Article 6.8.  Specifically, pursuant to paragrap h 1, investigating authorities should provide 
investigated parties with notice of the "information required" and the possibility that "if information is 
not supplied within a reasonable time", "determi nations" may be made on the basis of "facts 
available".  When read together with Article 6.8,  this language suggests that "necessary information" 
refers to the specific information held by an inter ested party that is requested by an investigating 
authority for the purpose of making determinations.   
7.344  We recall that in the investigation at issue, the investigating authority requested Grieg to 
provide information about its actual filleting costs in  the "exporters/producers" questionnaire.  This 
information was specifically required by the inv estigating authority for the purpose of determining 
Grieg's filleting costs in order to calculate Grieg's constructed normal value.  Thus, the information on 
Grieg's actual filleting costs that was request ed by the investigating authority was "necessary 
information" within the meaning of Article 6.8.  We do not understand the EC to argue otherwise.  It 
follows that the investigating authority's treatment of the information submitted by Grieg fell within 
the scope of Article 6.8 and Annex II. 
7.345  Paragraph 3 of Annex II reads, in pertinent part: 
"All information which is verifiable, which is appropriately submitted so that it can 
be used in the investigation without undue difficulties, which is supplied in a timely 
fashion, and, where applicable, which is supplied in a medium or computer language 
requested by the authorities, should be take n into account when determinations are 
made ." (Underline added). 
7.346  As an integral part of Article 6.8, paragra ph 3 of Annex II identifies one circumstance when 
the conditions for resorting to "facts available" will not be established – namely, when the information 
that is provided by an interested party in response to a specific request from an investigating authority 
"is verifiable, ... appropriately submitted so that it can be used in the investigation without undue 
difficulties, ... supplied in a timely fashion, and,  where applicable, ... supplied in a medium or 
computer language requested by the authorities".  For present purposes, it is important to note that 
when the information submitted is of the character described in paragraph 3,  it "should be taken into 
account when determinations are made" .  It follows that when the conditions for resorting to "facts 
available" have not been established, the specific informati on provided by an interested party in 
response to a request from an investigating authority  must be taken into account in the investigating 
authority's determination.  We find support for this  conclusion in the following statements of the 
Appellate Body in US – Hot-Rolled Steel : 
"Thus, according to paragraph 3 of Annex II, investigating authorities are directed to 
use information if three, and, in some circ umstances, four, conditions are satisfied.  In 
our view, it follows that if these conditions are met, investigating authorities are not WT/DS337/R 
Page 194  
 
  entitled to reject information submitted, when making a determination
."498 (Underline 
added.) 
and the Panel in US – Steel Plate : 
 
"If, after considering the provisions of A nnex II, and in particular the criteria of 
paragraph 3, the conclusion is that in formation provided satisfies the conditions 
therein, the investigating authority must use that information in its determinations , 
and may not resort to facts available with resp ect to that element of information.  That 
is, the investigating authority may not conclude , with respect to that information, that 
"necessary information" has not been provided."499 (Underline added). 
7.347  Thus, we do not agree with the EC when it ar gues that Article 6.8 envisages the possibility 
that an investigating authority may rely upon informa tion other than that submitted by an interested 
party in response to a specific requ est for information, even when th e conditions for disregarding that 
information and using "facts ava ilable" under Article 6.8 have not been established.  Such a view of 
how Article 6.8 and Annex II are inte nded to operate is misconceived.  In our view, it is clear from the 
language of Article 6.8, when read in the light of paragraphs 1 and 3 of Annex II, that whenever an 
interested party submits specific information that an investigating authority has requested for the 
purpose of making a determination, and the conditions for resorting to "facts available" have not been 
established, the investigating authority will not be  entitled to disregard the submitted information and 
use information from another source to make the determination.   
7.348  To support its contention that the investigating authority did not rely on "facts available" in 
the present case, the EC also argues that even when the conditions for resorting to "facts available" are 
established, investigating authorities are nevertheless entitled not to rely upon "facts available" 
because Article 6.8 makes their use permissible a nd not mandatory.  We agree with the EC that 
Article 6.8 does not require investigating authorities to use "facts available" when the conditions for 
resorting to "facts available" have been satisfied.  However, in our view, the flexibility afforded to 
investigating authorities through the use of the word  "may" in Article 6.8, when all conditions for 
using "facts available" have been satisfied, must be  understood in the context of two possible choices: 
an investigating authority "may" use "facts available" to fill the information gap created by the lack of 
"necessary information" or, an investigating authority "may" not use "facts available", and to the 
extent possible, rely on the information submitted by the interested party that has resulted in the 
conditions for using "facts available" to be established.  We consider that the text of Article 6.8 and 
Annex II permits no other outcome, in a situation where the conditions for using "facts available" 
have been satisfied. 
7.349  Finally, according to the EC, an alternative to "facts available" or specific information 
submitted by an interested party must exist because if this were not the case, investigating authorities 
would be unable to calculate an average margin of dumping for non-investigated companies pursuant 
to Article 9.4 of the AD Agreement in situations where the margins of dumping for all investigated 
companies were determined through the use of "f acts available".  Article 9.4 describes how anti-
dumping duties applied to imports from exporters or  producers not included in a limited examination 
conducted pursuant to Article 6.10 must be calculated.500  It envisages the application of two possible 
                                                      
498 Appellate Body Report, US – Hot-Rolled Steel , para. 81. 
499 Panel Report,  United States – Anti-Dumping and Countervailing Measures on Steel Plate from India 
("US – Steel Plate") , WT/DS206/R and Corr.1, adopted 29 July 2002, DSR 2002:VI, 2073, para. 7.55. 
500 The pertinent text of  Article 9.4 provides: 
"When the authorities have limited their examin ation in accordance with  the second sentence 
of paragraph 10 of Article 6, any anti-dumping duty applied to imports from exporters or 
producers not included in the examination shall not exceed:  WT/DS337/R 
 Page 195 
 
 
  methodologies  for this purpose, each subject to the qua lification that "margins established under the 
circumstances referred to in paragraph 8 of Article 6" be disregarded from the calculation.  According 
to the EC, if all margins established on the basis of  "facts available" pursuant to Article 6.8 must be 
disregarded in calculating the anti-dumping duties app licable to companies not included in a limited 
investigation, the only way to determine such  anti-dumping duties would be through recourse to 
information other than "facts available".  
7.350  In US – Hot-Rolled Steel , the Appellate Body observed that Article 9.4 "does not expressly 
address the issue of how [anti-dumping duties applicable to non- investigated exporters or producers] 
should be calculated in the event that all margins are to be excluded  from the calculation."501 The 
Appellate Body described this ap parent lack of guidance as a " lacuna " in the text of the 
AD Agreement.502  However, on the basis of the particular questions raised in the appeal that was 
before it, the Appellate Body decided that it was not necessary to address how this lacuna  might be 
overcome.503 
7.351  We recall that the question that is before us under Norway's clai m is whether the investigating 
authority relied on "facts available" to establish Gr ieg's filleting costs for the purpose of constructing 
normal value, without respecting the conditions governing the use of "facts available" set out in 
Article 6.8 and paragraphs 3 and 6 of Annex II.  Norway does not claim that the investigating 
authority calculated anti-dumping duties for non-investig ated parties on the basis of information that 
was neither "facts available" nor information submitted by the investigated parties.  Thus, we believe 
that we are not directly called upon to resolve the question of how to overcome the lacuna  in 
Article 9.4.  In any case, we note that the sp ecific problem raised by the existence of this lacuna is not 
about the sources for particular pieces of missing information, but rather the appropriate methodology 
that may be used to calculate anti-dumping duties applicable to non-investigated parties, where the 
methodologies explicitly provided for un der Article 9.4 cannot be relied upon. 
7.352  Thus, for all of the above reasons, we are not convinced by the arguments that the EC has 
advanced to substantiate the assertion that the inv estigating authority did not rely on "facts available" 
when it calculated Grieg's filleting costs.  To the exte nt that the investigating authority considered that 
the conditions for using "facts available" had not  been met, our assessment of Article 6.8 and 
Annex II implies that it should have used the data s upplied by Grieg.  The investigating authority was 
not entitled to use any other source of information to make its determination of  Grieg's filleting costs, 
be that "facts available" or otherwise.  On the other hand, even assuming that the conditions for using 
"facts available" had been satisfied, the only opti on available to the inves tigating authority under 
Article 6.8 and Annex II, if it did not want to u se the information submitted by Grieg, was to use 
"facts available".  On these bases, we therefore dismiss the EC's assertion that the investigating 
authority did not rely on "facts available" when it calculated Grieg's filleting costs.504   
                                                                                                                                                                     
 (i) the weighted average margin of dumping established with respect to the 
selected exporters or producers or, 
 (ii) where the liability for payment of anti-dumping duties is calculated on the 
basis of a prospective normal value, th e difference between the weighted average 
normal value of the selected exporters or producers and the export prices of exporters 
or producers not indi vidually examined, 
provided that the authorities shall disregard for the purpose of this paragraph any ... margins 
established under the circumstances referred to in paragraph 8 of Article 6. ...".   
501 Appellate Body Report, US – Hot-Rolled Steel , para. 126.  Emphasis original. 
502 Appellate Body Report, US – Hot-Rolled Steel , paras. 125 and 126. 
503 Appellate Body Report, US – Hot-Rolled Steel , para. 26. 
504 In this regard, we note that the Information Note on Cost of Production issued to Grieg on 
8 March 2005 explained that the "general methodology" applied by the investigating authority "[w]here no 
information [was] provided by the relevant company for ce rtain costs or when these costs were not available", WT/DS337/R 
Page 196  
 
  7.353  We now proceed to examine Norway's claim th at the investigating authority used "facts 
available" without complying with the require ments of paragraphs 3 and 6 of Annex II. 
Whether the investigating authority acted incons istently with paragraph 3 of Annex II when it 
disregarded the information subm itted by Grieg and used informa tion from a third party to 
determine Grieg's filleting costs 
 
7.354  As already noted, Annex II of the AD Agreem ent forms an integral part of Article 6.8.
505  
Thus, in order to fully comply with Article 6.8, an  investigating authority's use of "facts available" 
must, in addition to satisfying the requirements of Ar ticle 6.8, be consistent with the rules set out in 
Annex II.  Norway alleges that the investigati ng authority calculated Grieg's filleting costs on the 
basis of "facts available" without meeting the re quirements of paragraph 3 of Annex II.  This 
provision reads: 
"All information which is verifiable , which is appropriately submitted so that it can 
be used in the investigation without undue difficulties , which is supplied in a timely 
fashion , and, where applicable, which is supplied in a medium or computer language 
requested by the authorities, should be take n into account when determinations are 
made.  If a party does not respond in the pr eferred medium or computer language but 
the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred me dium or computer language should not be 
considered to significantly impede th e investigation." (Underline added.) 
7.355  Paragraph 3 of Annex II directs investigating au thorities to take all s ubmitted information into 
account for the purpose of its determinations when it is: (i) "verifiable"; (ii) "appropriately submitted 
so that it can be used in the investigation w ithout undue difficulties"; (iii) "supplied in a timely 
fashion"; and, where applicable, (iv) "supplied in a medium or computer language requested by the 
authorities".   Thus, paragraph 3 of Annex II calls  upon investigating authorities to take into account 
all information that satisfies three, or some times four, cumulative conditions when making 
determinations.  It follows that where all of the conditions are satisfied, an investigating authority will 
not be entitled to reject informati on submitted when making determinations.
506  Norway's claim is 
focused on whether the information supplied by Grieg in respect of filleting costs satisfied the first 
three of these conditions.  We must therefore examine whether the letter from Triton submitted by 
Grieg was "verifiable", "appropriately submitted so th at it can be used in the investigation without 
undue difficulties" and "supplied in a timely fashion".   
7.356  We recall that the only basis that the investig ating authority gave in writing for rejecting the 
information submitted by Grieg in respect of filleti ng costs was that "at verification [Grieg] could not 
support the statements made at a later date".507  The investigating authority rejected the filleting cost 
data submitted by Grieg in March 2005 because it was not  presented to the investigators at the time of 
the on-the-spot investigation carried out in Janua ry 2005.  We understand the EC to be arguing that 
this was a sufficient basis for the investigating aut hority to conclude that the information submitted by 
Grieg did not satisfy one or all of the firs t three conditions in paragraph 3 of Annex II.508  In other 
words, the EC argues that the filleting cost information provided by Grieg was not "verifiable", "appropriately submitted so that it can be used in the investigation without undue difficulties" and/or 
                                                                                                                                                                    
 
was to calculate the relevant costs on the basis of "an average from other sources according to the best 
information available ".  Exhibit NOR-55. Underline added.  In our view, this suggests that even the 
investigating authority itself believed that it used "facts available" when it calculated Grieg's filleting costs.  
505 See, para. 7.346. 
506 Appellate Body Report, US – Hot-Rolled Steel , para. 81; Panel Report, US – Steel Plate , para. 7.57. 
507 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16. 
508 EC, FWS, paras. 294-298.  WT/DS337/R 
 Page 197 
 
 
  "supplied in a timely fashion", because it was s ubmitted after the investigating authority had 
conducted an on-the-spot investigation at Grieg's premises. 
- Whether Grieg's filleting cost information was "verifiable" 
7.357  The ordinary meaning of the word "verifiable" is  "able to be verified or proved to be true."509  
In US – Steel Plate , the Panel considered that "verifiable" information for the purpose of paragraph 3 
of Annex II was information whose "accuracy a nd reliability ... can be assessed by an objective 
process of examination".510  We find this to be a useful descripti on of what is intended by "verifiable" 
information under this paragraph.  
7.358  Although the possibility of conducting on-the-spot  investigations to verify information 
submitted by an investigated company is explicitly provided for under Article 6.7 and Annex I of the 
AD Agreement, such investigations are not required under the AD Agreement.  Moreover, as noted 
by the Panel in US – Steel Plate , pursuant to Article 6.6 of th e AD Agreement, investigating 
authorities must in general satisfy themselves of the accuracy of the information upon which their 
findings are based, regardless of whether verificat ion has taken place by means of an on-the-spot 
investigation.511  It follows that on-the-spot investiga tions do not exhaust the ways in which an 
objective assessment of the accuracy and reliability of submitted information may take place.  In other 
words, the AD Agreement recognizes that on-the-s pot investigations are not the only way of 
understanding whether information is "verifiable". 
7.359  Norway argues that the investigating authority took no steps to verify the information on 
filleting costs provided by Grieg.  According to No rway, the investigating authority could have, for 
example, verified the data submitted by conduc ting a further on-the-spot investigation or by 
requesting Grieg to provide further information, su ch as invoices confirming costs stated in the letter 
from Triton.512  The EC rejects both of Norway's suggestions.  As regards the possibility of a second 
on-the-spot investigation, the EC argues that no requ est was ever made on the part of Grieg.  In any 
case, the EC contends that a second visit to Grie g's premises would have been contrary to the 
investigating authority's normal practice and seri ously disrupted the course of the investigation.513  To 
have attempted to verify the submitted informa tion by written means would, according to the EC, 
have been "a recipe for interminable delay".514 
7.360  We recognize that for investigating authorities that choose to carry them out, on-the-spot 
investigations will be of fundamental importance to  the task of assessing the accuracy and reliability 
of information which will later form the basis of th eir findings.  We also acknowledge that it may be 
unreasonable to expect that an investigating aut hority conduct a second on-the- spot investigation in 
order to verify information submitted after an initial on-the-spot inv estigation has taken place.515  
However, in our view, the possibility of undertak ing on-the-spot investigations cannot alone be 
determinative of the question whether submitte d information is "verifiable".  Because the 
AD Agreement envisages that there may be other ways to assess the accuracy and reliability of 
information, the mere fact that a piece of inform ation may have been subm itted after an on-the-spot 
investigation has taken place, does not mean that its accuracy and reliability cannot be objectively 
assessed through any other process of verification.  This does not mean that all information submitted 
subsequent to an on-the-spot investigation will always  be "verifiable".  Ultimately, it may well be that 
                                                      
509 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
510 Panel Report, US – Steel Plate , para. 7.71. 
511 Panel Report, US – Steel Plate , footnote 67. 
512 Norway, FWS, para. 426. 
513 EC, FWS, para. 296. 
514 EC, SWS, para. 101. 
515 Panel Report, Korea – Certain Paper , para. 7.52. WT/DS337/R 
Page 198  
 
  information submitted after an on-the-spot investig ation has been conducted is not "verifiable".  
However, in our view, this must be a conclusi on reached on the basis of a case-by-case assessment of 
the particular facts at issue, including not only the nature of the information submitted but also the 
steps, if any, taken by the investigating au thority to assess the accuracy and reliability of the 
information. 
7.361  We recall that the information submitted by Gr ieg in respect of its filleting costs took the 
form of a letter from an unrelated processing co mpany called Triton, whic h Grieg had engaged to 
conduct its filleting operations. The letter from Trit on reported the prices of the contracted filleting 
services and disclosed the existence of a [[XX X]] between Grieg and Triton dated [[XXX]].
516  Grieg 
submitted this information to the investigating au thority eight days after receiving the Information 
Note on Cost of Production, and approximately tw o months after the investigating authority had 
conducted its on-the-spot verification of Grieg's que stionnaire response.  The Information Note was 
the first written communication from the investigating au thority explaining that it considered Grieg to 
have failed to report filleting costs.517  In the disclosure of its provisional findings, the investigating 
authority referred to the letter from Triton submitted by Grieg and noted that the issue "may be re-
examined during the definitive stage".  Finally, in the definitive disclosure, the investigating authority 
recalled once again the letter from Triton, but conc luded that the informa tion could not be accepted 
because "at verification [Grieg] could not suppor t the statements made at a later date".  
7.362  Thus, the facts surrounding the investigating authority's calculation of Grieg's filleting costs 
reveal that the investigating authority at no stage explored whether the accuracy and reliability of the 
information contained in the letter from Triton c ould be objectively assessed by any means other than 
an on-the-spot investigation.  Although indicating at  the time of its provisional findings that the issue 
might be re-examined, the investigating authority ma de no further requests, of a specific or general 
nature, for any additional informati on relating to Grieg's filleting costs.  For instance, the investigating 
authority did not ask Grieg to demonstrate how th e information in the letter from Triton could be 
reconciled with its annual accounts, which we unde rstand were in the investigating authority's 
possession.  Neither did it inquire into whether the information could have been verified by means of 
the [[XXX]] that had been in exis tence since [[XXX]].  The  investigating authority made no attempt 
whatsoever to assess whether the submitted informat ion was "verifiable".  We do not understand the 
EC to argue otherwise. 
7.363  Given the absence of any attempt by the inv estigating authority to assess whether the 
information submitted by Grieg was "verifiable", and in the light of the nature of the information 
submitted, as well as the fact that after receiving the information, the investigating authority had 
expressly indicated that the question of Grieg' s filleting costs continue d to be under active 
consideration, we do not believe there were suffi cient grounds for the investigating authority to 
conclude, on an objective basis, that the information at issue was not "verifiable".  In reaching this conclusion, we do not mean to say that the inv estigating authority would have found that the 
information was "verifiable", had it pursued the ma tter.  Additional information may not have given 
the investigating authority any further comfort as to  the accuracy and reliability of the information at 
issue, and the investigating authority may have le gitimately concluded that the information was not 
"verifiable".  Thus, our finding is focused on the la ck of any attempt on the part of the investigating 
authority to even explore whether the information was "verifiable".  In our view, the investigating 
authority's inaction meant that, in the particular circumstances of the investigation, there was an 
insufficient factual basis to conclude that the in formation submitted by Grieg was not "verifiable". 
                                                     
 
516 Response to Information Note on Production Costs, Exhibit NOR-56. 
517 The EC asserts that the inadequacies of Grieg's re sponse were pointed out to Grieg orally during the 
on-the-spot investigation.  However, it has submitte d no evidence to substantiate that any such oral 
communication actually took place.  WT/DS337/R 
 Page 199 
 
 
  - Whether Grieg's filleting cost information was "appropriately submitted so 
that it can be used in the investigation without undue difficulties" 
7.364  In assessing whether the filleting cost in formation provided by Grieg was not 
"appropriately submitted so that it can be used in the investigation without undue difficulties", we find 
it helpful to refer to the followi ng passage from the Panel's explanation of the meaning of this 
standard in US – Steel Plate : 
"In our view, "appropriately" in this contex t has the sense of "suitable for, proper, 
fitting".  That is, the information is suitabl e for the use of the investigating authority 
in terms of its form, is submitted to the correct authorities, etc.  More difficult is the requirement that the information can be "used without undue difficulties".  "Undue" 
is defined as "going beyond what is warranted or natural, excessive, 
disproportionate".  Thus, "undue difficulties" are difficulties beyond what is otherwise the norm in an anti-dumping inves tigation.  This recognizes that difficulties 
in using the information submitted in an anti-dumping investigation are not, in fact, 
unusual.  This conclusion is hardly surprising, given that enterprises that become 
interested parties in an anti-dumping investigation and are asked to provide 
information are not likely to maintain thei r internal books and records in exactly the 
format and with precisely the items of inform ation that are eventually requested in the 
course of an anti-dumping investigation.  Thus, it is frequently necessary for parties submitting information to collect and organize raw data in a form that responds to the 
information request of the investigating authorities.  Similarly, it is frequently 
necessary for the investigating authority to ma ke adjustments of its own in order to be 
able to take into account information that do es not fully comply with its request.  This 
is part of the obligation on both sides to cooperate, recognized by the Appellate Body 
in the US  – Hot-Rolled Steel case." (Footnotes omitted).  
7.365  Norway argues that Grieg's filleting cost in formation was "appropriately" submitted because 
it was presented to the investigating authority in r esponse to a specific invitation on the part of the 
investigating authority to comment on the finding s made in the Information Note on Cost of 
Production.
518  Furthermore, Norway submits that the fille ting cost information could be used without 
"undue difficulties" because it was in  the same form, and just as useab le as, the per-unit filleting costs 
that the investigating authority had obtained from another producer.519  The EC advances the same 
argument raised in respect of the question whether Gr ieg's filleting cost information was "verifiable" 
to support its contention that the information subm itted by Grieg was not "app ropriately submitted so 
that it can be used in the investigation without undue difficulties".  As we understand it, the essence of 
the EC's argument is that the information was not  "appropriately submitted" and could not be used 
"without undue difficulties" because it was submitted by Grieg after the on-the-spot investigation.520 
7.366  We recall that Grieg provided the investigati ng authority with information on its filleting 
costs in its comments on the investigating authority' s Information Note on Cost of Production.  The 
information was submitted as one of several comments made by Grieg to the investigating authority's 
"preliminary assessment" of its cost of production. It  was presented in the form of a short narrative 
paragraph describing Grieg's reliance on Trit on to produce salmon fillets for the period of 
investigation, identifying the alleged level of fille ting costs per kilogram, and referring to an attached 
letter from Triton confirming these costs.  We cannot see how this information could be found by the 
investigating authority not to have been "appropriately" submitted on the basis of the facts that are 
before us.  In particular, we note that the inform ation was submitted in response to an invitation to 
                                                      
518 Norway, FWS, para. 443. 
519 Norway, FWS, para. 444. 
520 EC, FWS, para. 295. WT/DS337/R 
Page 200  
 
  "comment" that was made by the investigating authority after the on-the-spot investigation.  In this 
light, the fact that the information was provided after the on-the-spot investigation does not support a conclusion that the information w as not "appropriately" submitted.   
7.367  Likewise, we cannot see how the mere fact that Grieg's filleting cost information was 
submitted after the on-the-spot investigation mean s that it could not be used without "undue 
difficulties".  Although we believe that the extent of the effort needed to  assess the accuracy and 
reliability of information may play a role in unders tanding whether information supplied, particularly 
at a late stage of an investigation, can be us ed by an investigating authority without "undue 
difficulties", the facts that are before us do not su pport a conclusion that this was the case in the 
present investigation.  As we have already noted , the AD Agreement contemplates that investigating 
authorities may verify information by different m eans, including but not limited to, on-the-spot 
investigations.  Thus, the burden that may have been associated with conducting a second on-the-spot 
investigation to verify Grieg's filleting cost  information does not necessarily mean that the 
information could not have been used without "u ndue difficulties" because there may well have been 
other options open to the investigating authority to sa tisfy itself of the accuracy and reliability of that 
information.  In this regard, we recall that the i nvestigating authority made no attempt to even explore 
the feasibility and/or practicality of any other verification options. 
7.368  Thus, in the light of the facts that are befo re us, we find that there was an insufficient 
objective basis for the investigating authority to c onclude that the filleting cost information submitted 
by Grieg was not "appropriately submitted so that it  can be used in the investigation without undue 
difficulties". 
- Whether Grieg's filleting cost information was "supplied in a timely fashion" 
7.369  The condition that all information "supplied in a timely fashion" should be taken into account 
by an investigating authority is in essence a reflect ion of the rule in Article 6.8 that permits an 
investigating authority to resort to facts availabl e if information is not provided "within a reasonable 
period".
521  The Appellate Body has observed that in considering whether information is submitted 
within a reasonable period of time for the purpose of  Article 6.8 and Annex II, it may be relevant to 
take into account factors such as: "(i) the nature and quantity of the information submitted; (ii) the 
difficulties encountered by an investigated exporter in  obtaining the information; (iii) the verifiability 
of the information and the ease with which it can be  used by the investiga ting authorities in making 
their determination; (iv) whether other interested pa rties are likely to be prejudiced if the information 
is used; (v) whether acceptance of the information would compromise the ability of the investigating 
authorities to conduct the investig ation expeditiously; and (vi) th e number of days by which the 
investigated exporter missed the applicable time-limit."522  
7.370  Norway argues that there is no basis for finding that Grieg did not submit the information on 
filleting costs in a "timely fashion".  Norway  notes that the information was submitted on 
16 March 2005, in response to the investigating authority's Note on Costs of Production issued on 
8 March 2005, before provisional findi ngs and more than one year ahead of the final determination.  
In addition, Norway asserts that the investiga ting authority took account of comments and evidence 
submitted by the interested parties after provision al disclosure, and itself requested additional 
information that was used for the purpose of setting the minimum import prices, as late as December 2005.
523 The EC has not argued that the informa tion provided was not timely in the sense 
that Grieg missed a specific dead line set for comments on the inves tigating authority's Information 
                                                      
521 See Appellate Body Report, US – Hot-Rolled Steel , para. 83; Panel Report, US – Steel Plate , 
para. 7.76. 
522 Appellate Body Report, US – Hot-Rolled Steel , para. 85. 
523 Norway, FWS, paras. 434-437.  WT/DS337/R 
 Page 201 
 
 
  Note on Cost of Production.  Rather, as we unders tand it, the EC contends that the information was 
not supplied in a timely fashion because it was supplied after the on-the-spot investigation.524 
7.371  Grieg submitted the information on 16 March 2005 , eight days after it had been invited to 
"comment" on the investigating au thority's "preliminary assessment" of its costs of production.  
Nothing in the investigating authority's Informa tion Note indicates that information submitted in 
response to its findings would not be taken into account, unless previously verified during the on-the-
spot investigation.  Indeed, the Information Note  expressly states that the investigating authority 
would "continue[] to investigate" , suggesting that it was open to r eceiving and considering additional 
information.  The investigating authority's provisiona l findings, issued shortly after the submission of 
Grieg's filleting costs, likewise stated, specifically in respect of the filletin g costs issue, that its 
findings "may be re-exami ned during the definitive stage", thus ag ain suggesting that the investigating 
authority continued to actively consider the matter.  Finally, we note that the investigating authority 
gathered additional information well after 16 March 2005 relating to various aspects of the 
investigation, including the appropriate  levels of the minimum import prices.525  In this light, and 
recalling that we have already found that there was not a sufficient factual b asis for the investigating 
authority to find that Grieg's filleting cost information was not "verifiable" or "appropriately 
submitted so that it can be used in the investiga tion without undue difficulties", we find that the 
investigating authority could not have objectively co ncluded that Grieg's filleting cost information had 
not been supplied in a timely fashion. 
7.372  Thus, for all of the foregoing reasons, we find that the investigating authority did not act 
consistently with Article 6.8 an d paragraph 3 of Annex II when it disregarded the filleting cost 
information submitted by Grieg in its comments on th e investigating authority's Information Note on 
Costs of Production, and instead determined Grieg' s filleting costs on the basis of information from 
another source. 
Whether the investigating authority acted incons istently with paragraph 6 of Annex II when it 
disregarded the information subm itted by Grieg and used informa tion from a third party to 
determine Grieg's filleting costs 
 
7.373  In the light of our finding that the investigati ng authority acted inconsistently with Article 6.8 
and paragraph 3 of Annex II when it calculated Grieg's filleting costs on the basis of "facts available", 
we consider that it is not necessary, for the purpose of  resolving this dispute, to also address Norway's 
second claim under paragraph 6 of Anne x II in respect of the investigating authority's calculation of 
Grieg's filleting costs.  Paragraph 6 of Annex II provides: 
"If evidence or information is not accepted,  the supplying party should be informed 
forthwith of the reasons  therefore, and s hould have an opportunity to provide further 
explanations within a reasonable period, due  account being taken of the time-limits of 
                                                      
524 EC, FWS, para. 295. 
525 Letter from the Commission on developments following the Definitive Disclosure, 
16 November 2005, Exhibit NOR-18; Information Note from the Commission on the Definitive MIP, 
13 December 2005, Exhibit NOR-19.  Furthermore, we note that the i nvestigating authority accepted three 
adjustments to cost of production for diseases that were claimed by Grieg, based on information submitted at the same time that the information on filleting costs was provided to the investigating authority. Provisional 
Disclosure to Grieg, Exhibit NOR-58;  Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16.  The 
EC stated in its First Written Submission (para. 268) that these adjustments were "accepted as they were 
considered by the investigators to be justified and were verified on the spot".  However, the EC has provided no 
evidence to substantiate the assertion that these claims we re previously verified.  In addition, the Disclosures to 
Grieg do not suggest that the disease claims were accept ed because previously verifi ed on-the-spot on Grieg's 
premises.  Rather, the Provisional Disc losure reveals that the claims were  accepted "[e]xceptionally, and only on 
a provisional basis".  The Definitive Disclosure merely confirmed these findings. WT/DS337/R 
Page 202  
 
  the investigation.  If the  explanations ar e considered by the authorities as not being 
satisfactory, the reasons for the rejection of such evidence or information should be given in any publishe d determinations." 
7.374  As we read it, paragraph 6 of Annex II establis hes what are essentially procedural obligations 
on an investigating authority that wishes to rely upo n "facts available".  Thus, in order to use "facts 
available" in a manner consistent with Article 6.8, paragraph 6 requires that an investigating authority 
inform the relevant interested party of the re asons why any requested evidence or information 
submitted has been rejected; give the interested pa rty a reasonable period of time to provide further 
explanations; and set out the reasons for any re jection of such information in its published 
determinations.  As we have foun d that the substantive basis of th e investigating authority's reliance 
on "facts available" was flawed, we believe that it would do little to resolve this dispute or enhance 
the ability of the DSB to make sufficiently precise r ecommendations and rulings in this dispute, if we 
were to also make findings in respect of this part  of Norway's claim.  Therefore, on the grounds of 
judicial economy, we decline to make any findings in  relation to Norway's claim that the investigating 
authority's reliance on "facts available" for the purpose of calculating Grieg's filleting costs was 
inconsistent with para graph 6 of Annex II. 
(ii) Whether the investigating authority acted incons istently with the EC 's obligations under 
Article 6.8 and paragraphs 3 and 6 of Annex II when it calculated Grieg's finance costs
  
7.375  Norway argues that the investigating authorit y acted inconsistently with Article 6.8 and 
paragraphs 3 and 6 of Annex II when  it allegedly used "facts available" to calculate Grieg's finance 
costs, instead of relying on actual information submitted by Grieg.526  In particular, Norway contends 
that the investigating authority rejected an interest  rate figure that was derived from arm's length loan 
transactions and appropriately supplied, explained and documen ted by Grieg, without any 
explanation.527  The EC argues that the investigating author ity did not resort to "facts available" when 
calculating Grieg's finance costs because it did not  reject the information supplied by Grieg.  
According to the EC, the investiga ting authority did not fail to accept Grieg's finance costs, but rather 
merely decided to apply an appropriate benchmark to  calculate the amount of Grieg's finance costs.  
Thus, the EC argues that Norway confuses a point of  law "(What is the appropriate criterion by which 
to measure the rate of interest?)" with one of fact  "(What is the level of that rate of interest?)".528 
7.376  Again, before addressing Norway's claim, we briefly set out some of the relevant facts 
relating to the investigating authority's calculation of Grieg's finance costs. 
 Facts 
 7.377  Grieg reported finance costs of an amount of NOK [[XXX]] in its initial reply to the EC's 
"exporters/producers" questionnaire.
529  In the Information Note on Cost of Production, the 
investigating authority affirmed that "[i]t was ev ident from an analysis of the Grieg Seafood Group 
accounts that finance costs ... had been understated."  The investigating authority therefore deducted 
the reported cost and replaced it with a recalculated  figure based on an interest rate of [[XXX]] per 
cent, taken from the 2003 accounts of the Grieg Se afood Group, which was applied to [[XXX]] (i.e. 
the salmon element) of interest bearing loans from Grieg Seafood Rogaland accounts of 2003.  The 
new finance cost was assessed as NOK [[XXX]].  Th e investigating authority stated that its 
                                                      
526 Norway, FWS, paras. 429-430, 438 and 446-447. 
527 Norway, FWS, paras. 406-413.  Norway, Comme nts on the European Communities' Answers to 
Panel Questions 108 and 109. 
528 EC, FWS, para. 307. 
529 Exhibit NOR-59.  WT/DS337/R 
 Page 203 
 
 
  adjustment was intended to "bring finance costs of salmon into line with the cost of finance from the 
Grieg Seafood Group".530 
7.378  In its response to the Information Note, Grieg contested the investigating authority's finance 
cost adjustment and provided a breakdown of its to tal finance costs for the period of investigation, 
which it asserted amounted to NOK [[XXX]], with only NOK [[XXX]] relevant to salmon 
production.531  In respect of the interest paid on its outstanding debt, Grieg submitted a letter from its 
bank [[XXX]].532  Grieg asserted that this information demons trated that the averag e interest rate for 
the relevant period was [[XXX]].  In this regard, Gr ieg noted that interest rates in 2004 were [[XXX]] 
lower than in 2003, and requested that the investig ating authority therefore base the finance cost 
figure on the 2004 accounts and not the 2003 accounts.533 
7.379  In the Disclosure of its Provisional Determinati on, the investigating authority confirmed its 
"preliminary assessment" of Grieg's finance costs an d noted that the arguments made in response to 
the Information Note "will be re-examined at the definitive stage once all required information has 
been collected.  If extra information is requi red from your company we will inform you".534  Grieg 
responded to the investigating authority's Provi sional Determination, repeating and further 
substantiating the comments already made in respect of finance cost with further arguments and 
documentation, including auditor statements.535 
7.380  The investigating authority's Definitive Determ ination confirmed the findings made at the 
provisional stage in respect of Grieg's finance costs being "understated".  However, the investigating 
authority changed the methodology used to calculate  them.  Instead of using a figure derived from 
2003 accounts, the investigating authority based its calculation of Grieg's finance costs on the average 
amount of Grieg's "interest bearing loans for the pe riod 2001 to 2003" and the "average interest rate 
used from the Norwegian Central Bank" during the three-year period from 2001 to 2003, which amounted to 6.58 per cent.
536  This new methodology resulted in a final finance cost figure of 
NOK [[XXX]]. 
 The assertion that the investigating author ity did not rely on "facts available"  
 
7.381  Initially, the EC argued that the issue in resp ect of Grieg's finance costs was not one of 
"quality of evidence", but rather the "subject of th e evidence: the appropriate benchmark for valuing 
interest paid on inter-company loans".  The EC su bmitted that the investigating authority was of the 
view that "the relationship between Grieg Seaf ood Rogaland and other companies to which it was 
related deprived the terms of the loan  arrangement of commercial validity".537  Thus, the EC 
explained that the interest rate reported in Gr ieg's audited accounts "clearly reflected a non-
commercial relationship".538  
                                                      
530 Information Note on Cost of Production, Exhibit NOR-55. 
531 Response to Information Note on Production Costs, Exhibit NOR-56.  Grieg requested that this 
amount be reduced by the [[XXX]], resulting in a final adjusted finance figure of [[XXX]] NOK.  See also, 
Grieg Seafood questionnaire reply, Exhibit NOR-59. 
532 Response to Information Note on Production Costs, Exhibit NOR-56. 
533 Response to Information Note on Production Costs, Exhibit NOR-56. 
534 Provisional Disclosure to Grieg, 22 April 2005, Exhibit NOR-58. 
535 Response to EC Provisional Disclosure to Grieg, Exhibit NOR-57. 
536 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16. 
537 EC, FWS, para. 307. 
538 EC, SWS, para. 104. WT/DS337/R 
Page 204  
 
  7.382  In responding to a Panel question prompted by Norway's assertion that all of Grieg's loans 
were with unrelated companies,
539 the EC stated that the concern of  the investigating authority was to 
establish "whether the interest rate on the loan was below commercial levels".  According to the EC, 
"[s]ince the [investigating authorit y] did not doubt the genuineness of the loan, the issue of whether 
the lender was part of the parent company, or was independent of it, was not [a] matter that affected 
the calculation of Grieg's costs, and it was not pursued by the investigators."540  The existence of any 
relationship between Grieg and the lender banks was not a factor considered by the investigating 
authority.  Indeed, we see nothing in the investigatin g authority's disclosures to Grieg to suggest that it 
was at any stage concerned with the level of Grie g's reported finance costs because of any supposed 
"relationship between Grieg Seafood Rogaland an d other companies to which it was related",541 the 
existence of which in any event th e EC no longer appears to assert.542  Thus, in the words of the EC, 
the basis for the investigating authority's decision not  to use Grieg's reported interest rate costs was 
that it considered them to be "cheap" relative to what it believed to be "commercial" rates of the 
Norwegian Central Bank.543 
7.383  We recall that we have found that whenever an  interested party submits specific information 
that an investigating authority has requested fo r the purpose of making a determination, and the 
conditions for resorting to "facts available" have not  been established, the investigating authority will 
not be entitled to disregard the submitted inform ation and use information from another source to 
make the determination.544  In the present investigation, Grieg provided the investigating authority 
with information that was specifically request ed by the investigating authority in the 
"exporters/producers" questionnaire for the purpose of determining the leve l of Grieg's finance 
costs.545  The requested information was therefore "n ecessary information" within the meaning of 
Article 6.8.  The investigating authority did not use the information specifically submitted by Grieg, 
but instead relied upon information from the Norweg ian Central Bank and Grieg's "interest bearing 
loans for the period 2001 to 2003".  In these circum stances, the investigating authority's use of 
information that was not specifically submitted by Grieg in response to it s request for cost of 
production information coul d only be justified if the conditions  for using "facts available" under 
Article 6.8 and Annex II were satisfi ed.  Thus, we find that the EC's assertion that the investigating 
authority did not rely on "facts available" when it disregarded the information submitted by Grieg, 
and instead relied upon Norwegian Central Bank data  and an average of Grieg's "interest bearing 
loans for the period 2001 to 2003", to determine Gr ieg's finance costs, is grounded on a misconceived 
understanding of the scope and operation of Article  6.8 and Annex II.  We therefore dismiss the 
assertion that the investigating aut hority did not rely on "facts available" when it calculated Grieg's 
finance costs. 
Whether the investigating authority acted consis tently with paragraph 3 of Annex II when it 
disregarded the information s ubmitted by Grieg and used info rmation from the Norwegian 
Central Bank to determine Grieg's finance costs 
 
7.384  Norway contends that the finance cost info rmation provided by Grieg was verifiable, 
appropriately submitted so that it could be used without causing undue difficulties, and supplied in a 
                                                      
539 Norway alleges that the only inter-company loan that existed was from Grieg to its parent company, 
which "generated income for Grieg".  Norway, First Oral Statement, para. 100; Norway, Second Oral Statement, 
para. 67. 
540 EC, Answer to Panel Question 108. 
541 EC, FWS, para. 307. 
542 Thus, we are not here confronted with the situ ation where an investiga ting authority disregards 
financial costs on the grounds that t hose costs were unreliable because they  were established on the basis of 
transactions between related parties or  were otherwise not at arms' length. 
543 EC, Answer to Panel Question 25. 
544 See, para. 7.347. 
545 Exhibit NOR-59.  WT/DS337/R 
 Page 205 
 
 
  timely manner, within the meaning of paragraph 3 of  Annex II.  In particular, Norway argues that 
Grieg submitted detailed evidence of its finance cost s, including certified and audited data as well as 
information confirmed by a letter from its bank.  According to Norway, this information was 
"perfectly capable of being verified".546  Norway asserts that the finance cost data consisted of a figure 
for finance costs for production of the product concerned during the period of investigation, 
information on the interest rates borne by Grieg during that period, and supporting evidence.  In 
Norway's view, this information c ould not generate "difficulties beyo nd what is otherwise the norm in 
an anti-dumping investigation".547  Finally, Norway argues that the information was supplied by Grieg 
in a timely manner because it was initially containe d in Grieg's questionnaire reply, and because all 
other supplementary information to confirm the reported figure was submitted in response to the 
investigating authority's Information Note on Cost of Production and the Provisional Disclosure 
document.548 
7.385  We recall that in order to fully comply with Ar ticle 6.8, an investigating authority's use of 
"facts available" must be consistent with the disci plines set out in Annex II.  In the light of our 
previous observations on the conditions set out in paragraph 3 of Annex II,549 and the arguments 
presented by Norway, we can find no evidence in the f acts that are before us to indicate that the 
investigating authority considered that the fina nce cost information provided by Grieg was not 
verifiable, appropriately submitted so that it coul d be used without causing undue difficulties, and 
supplied in a timely manner, within the meaning of paragraph 3 of Annex II.  The EC has not 
suggested otherwise.  Indeed, in this regard, we note that the EC has presented no response at all to 
Norway's specific allegations in respect of the cons istency of the investigating authority's resort to 
"facts available" with paragraph 3 of Annex II. 
7.386  We therefore find that the investigating aut hority's reliance on "facts available" for the 
purpose of determining Grieg's finance costs was in consistent with paragr aph 3 of Annex II, and 
therefore also inconsistent with Article 6.8.   
Whether the investigating authority acted consis tently with paragraph 6 of Annex II when it 
disregarded the information s ubmitted by Grieg and used info rmation from the Norwegian 
Central Bank to determine Grieg's finance costs 
 
7.387  In the light of our finding that the investigati ng authority's reliance on "facts available" for the 
purpose of determining Grieg's finance costs was inconsistent with paragraph 3 of Annex II and 
Article 6.8, we consider that it is not necessary to also address Norway's claim under paragraph 6 of 
Annex II, in order to resolve the matter that is be fore us.  We do not believe that making any findings 
under this part of Norway's claim would add anything  to the ability of the DS B to make sufficiently 
precise recommendations and rulings in this dispute.  Therefore, on the grounds of judicial economy, we decline to rule upon Norway's  claim that the investigating auth ority's reliance on "facts available" 
for the purpose of calculating Grieg's finance costs was inconsistent with pa ragraph 6 of Annex II. 
                                                     
 
546 Norway, FWS, paras. 429-430. 
547 Norway, FWS, paras. 446-447, citing Panel Report, US – Steel Plate , para. 7.72. 
548 Norway, FWS, para. 438. 
549 See, paras. 7.357-7.372. WT/DS337/R 
Page 206  
 
  5. Alleged Inconsistency of the EC's Determ ination of Margins of Dumping and Anti-
Dumping Duties for Non-Investigated Companies with Articles 9.4(i) and 6.8, and Paragraph 1 of Annex II, of the AD Agreement  
(a) Arguments of the parties 
(i) Norway 
 Claims under Article 9.4(i) of the AD Agreement 
 
7.388  Norway's claims under Article 9.4(i) of the AD Agreement relate to the margins of dumping 
that the investigating authority attributed to two categories of interested parties: all parties that 
responded to the investigating authority's "sampli ng questionnaire", but were not selected for its 
limited investigation ( non-investigated cooperating companies ); and all other parties that did not 
make themselves known to the investigating authorit y by responding to its "sampling questionnaire" 
(non-cooperating  companies ). 
- Non-investigated cooperating companies 
7.389  Norway claims that the investigating authority act ed inconsistently with Articles 9.4(i) of the 
AD Agreement because it assigned a margin of dumping to non-investigated cooperating  companies 
that resulted in the application of anti-dumping duties (an "all others rate"
550) that exceeded the 
"ceiling" permitted by Article 9.4(i).  Norway argu es that Article 9.4(i) identifies the maximum limit 
or ceiling, which investigating authorities cannot  exceed "when setting the all others rate for 
companies which were not individually examined".551  According to Norway, this ceiling is 
established on the basis of the margins of dumping determined for investigated producers as follows: 
"first, the investigating authority must exclude margins established for sampled producers using facts 
available, zero margins and de minimis margins; and, second, the i nvestigating authority must 
calculate the weighted average of the remaining margins of dumping".552  Norway contends that the 
investigating authority did not respect these disciplines  in its determination of the margin of dumping 
of the non-investigated cooperating companies,  which it alleges was used for the purpose of 
establishing the amount of applicable anti-dumping duti es.  To this extent, Norway argues that the 
investigating authority "exceeded the ceiling in Artic le 9.4" when establishing the "all others rate" for 
the non-investigated cooperating companies. 
7.390  Norway argues that the margin of dumping assi gned by the investiga ting authority to non-
investigated cooperating companies resulted in a gr eater than permitted "all others rate" for two 
reasons.  First, Norway asserts it was greater than  the weighted average of the margins of dumping 
that were finally determined for the individu ally investigated producers and published in the 
Definitive Regulation.  In this regard, Norway notes that in its Definitive Discl osure, the investigating 
authority determined that the weighted average margin of dumping of the individually examined companies was 14.8 per cent.  However, Norway contends that after Definitive Disclosure, the 
investigating authority made downward revisions to the individual margins of dumping of three of the 
examined producers.  Thus, according to Norway, th ese revisions logically implied a decrease in the 
weighted average of the margins of dumping of the investigated companies.  However, the 
investigating authority did not alter its findings, leaving the weighted average of the margins of 
dumping of the individually investigated companies in the Definitive Regulation at 14.8 per cent in its 
final determination. 
                                                     
 
550 Norway, FWS, para. 466; Norway, SWS, paras. 161 and 165.  
551 Norway, FWS, para. 466. 
552 Norway, FWS, para. 467.  WT/DS337/R 
 Page 207 
 
 
  7.391  The second reason why Norway considers that  the margin of dumping assigned by the 
investigating authority to non-investigated coope rating companies was inco rrectly calculated, and 
thereby resulted in the application of anti-dumping duties exceeding the "ceiling" in Article 9.4, is 
because it was allegedly determined without excludi ng the margin of dumping calculated for one of 
the investigated producers (Grieg Seafood) on the basis of "facts available".  
7.392  Finally, Norway argues that the margin of dumping assigned to non-investigated cooperating 
companies was used for the purpose of establishi ng the level of applicable anti-dumping duties 
because it was central to the inves tigating authority's assessment of whether such duties could be 
based on the weighted average non-injury margin.  In  particular, Norway notes that the "fixed duty" 
applied by the investigating authority to non-i nvestigated cooperating companies was based on the 
weighted average injury margin (determined to be 14.6 per cent) because it was found to be lower 
than the weighted average dumping margin for all individually investigated producers (determined to 
be 14.8 per cent).  However, according to Norway, the proper consideration of the revised margins of 
dumping for three investigated producers, and the exclusion of Grieg's margin of dumping, would 
have reduced to 13.1 per cent the weighted average of the margins of dumping of the individually 
investigated producers.553  Therefore, the investigating aut hority's incorrect assessment of the 
weighted average margin of dumping of the indi vidually investigated co mpanies resulted in the 
application of a "fixed duty" that was inconsis tent with the requirements of Article 9.4(i). 
- Non-cooperating companies 
7.393  Norway claims that the investigating authority act ed inconsistently with Article 9.4(i) because 
it attributed to non-cooperating companies  a margin of dumping that ex ceeded the weighted average 
of the margins of dumping calculated for the indivi dually investigated companies, excluding zero and 
de minimis margins and margins calculated on the basis of "facts available".  In particular, Norway 
notes that the investigating authority attributed to non-cooperating companies  a margin of dumping, 
which was the highest dumping margin established fo r the investigated producers – 20.9 per cent.  
According to Norway, this was significantly higher than the weighted average of the margins of 
dumping of the individually investigated companies,  calculated in accordance with Article 9.4(i). 
 Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement 
 
7.394  Norway claims that the EC acted inconsistently  with Article 6.8 and pa ragraph 1 of Annex II 
of the AD Agreement because it alleges that it improperly relied upon "facts available" to assign margins of dumping to non-cooperating Norwegian companies.
554  In particular, Norway asserts that 
the EC relied on "facts available" to deduce that non-cooperating companies dumped at a level that 
was at least that calculated for the investigated company that was found to be dumping the most, 
Grieg.  Norway argues that the EC was not entitle d to apply "facts available" to the non-cooperating 
companies, because it contends that Article 6.8 and paragraph 1 of Annex II of the AD Agreement, as 
interpreted by the Appellate Body in Mexico – Anti-Dumping Measures on Rice case, require 
investigating authorities to refrain from applying "f acts available" to non-investigated parties that 
were not individually notif ied of the required information that was not received by the investigating 
authority.555  The focus of Norway's claim is sixty- seven non-investigated  companies, which 
according to Norway never received the notifi cation required under para graph 1 of Annex II. 
                                                      
553 Norway, FWS, para. 476. 
554 Norway, FWS, paras. 483-491. 
555 Norway, FWS, para. 489, citing Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , 
para. 259. WT/DS337/R 
Page 208  
 
  (ii) European Communities 
 Claims under Article 9.4(i) of the AD Agreement 
 
7.395  The EC argues that Norway's claims in respect of the margins of dumping attributed to both 
non-investigated cooperating  companies  and non-cooperating  companies  are ill-founded because, in 
its view, Article 9.4 of the AD Agreement is not about the calculation of margins of dumping for 
companies left out of a limited examination, but rather the imposition of anti-dumping duties.
556   
7.396  In any case, the EC argues that the investiga ting authority's calculation of the weighted 
average of the margins of dumping of the investigated  companies did not result in the application of 
anti-dumping duties that exceeded the "ceiling" in Ar ticle 9.4(i).  First, according to the EC, the 
margin of dumping calculated for Grieg was not base d on "facts available".  As such, the investigating 
authority was perfectly entitled to include it in the calculation of the weighted average of the margins 
of dumping of the individually investigated compan ies.  Secondly, the EC asserts that the minimum 
import prices ("MIPs") applied to the non-inves tigated companies were based on the normal values 
corresponding to non-injury level prices, not the we ighted average of the investigated companies' 
normal values.  Moreover, although ac knowledging that the investigating authority failed to adjust the 
final margin of dumping attributed to non-inves tigated cooperating companies to account for the 
downward adjustments made to three of the individua lly investigated companies' margins of dumping, 
the EC contends that even with these adjustments,  the MIPs imposed would be lower than the MIPs 
based on an adjusted weighted aver age of the investigated companies'  normal values.  Finally, the EC 
asserts that the levels of "fixed duty" applied to all non-investigated companies were not calculated on 
the basis of the weighted average of the dumping ma rgins of the individually investigated companies, 
but rather the weighted average in jury margin, which was lower than the former.  In any case, the EC 
contends that the "fixed duty" is not an anti- dumping duty that falls within the scope of the 
AD Agreement. 
 Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement 
 7.397  The EC does not dispute Norway's assertion that  the investigating authority determined a 
margin of dumping for non-cooperating companies on the basis of "facts ava ilable".  However, it 
questions whether Article 6.8 may be breached in a situation such as the present where although "facts 
available" were used to calcula te the margin of dumping for non-cooperating companies, the final 
measures imposed were the same as those imposed on cooperating companies.  To this extent, the EC 
argues that Norway's claim is merely "academ ic" because even if Norway could establish an 
infringement of Article 6.8 in respect of non-cooperating companies, such a finding would have no consequence as regards the legality of the an ti-dumping measure that the EC has imposed.
557 
7.398  In any event, the EC contends that the inves tigating authority complied with Article 6.8 and 
paragraph 1 of Annex II because, as opposed to the situation in the Mexico – Anti-Dumping Measures 
on Rice case, the investigating authority did not inves tigate only those companies that were either 
identified in the petitioner's complaint or that th emselves spontaneously contacted the investigating 
authority.  The EC argues that the investigating authority contacted all of the companies in the 
Norwegian industry that it knew of, with the assistance of Norwegian Seafood Federation.  In contacting these companies, the EC argues that the i nvestigating authority provided them with a copy 
of the Notice of Initiation, which contained an explic it warning of the possible use of "facts available" 
in the event of non-cooperation.  Thus, in essence, the EC asserts that the f acts of the present case 
                                                     
 
556 EC, FWS, paras. 313, 315 and 317. 
557 EC, FWS, para. 322.  WT/DS337/R 
 Page 209 
 
 
  were qualitatively different from those in Mexico – Anti-Dumping Measures on Rice , and for this 
reason, the investigating authority did not in fringe Article 6.8 and paragraph 1 of Annex II.558 
(b) Arguments of the third parties 
(i) Japan 
7.399  Japan invites the Panel to consider whether "f acts available" may be applied to companies 
which were not identified in the course of the investig ation.  In particular, Japan's concern relates to 
the application of "facts available" to uniden tified companies without respect for the necessary 
notification requirements provided for by the AD Agre ement, for example in paragraphs 1 and 6 of 
Annex II of the AD Agreement.  
7.400  Japan recalls that the Appellate Body in Mexico – Anti-Dumping Measures on Rice found that 
putting exporters or producers on notice that "facts available" will be used is a precondition for the 
use of "facts available".  According to Japan, this precondition can never be met in the case of 
unidentified exporters or producers, as an inv estigating authority cannot notify the exporter or 
producer it has not identified.  The n eed to notify exporters as set forth inter alia  in paragraphs 1 and 
6 of Annex II to the AD Agreement, applies when ever "facts available" are used, whether based on 
information from the applicant or otherwise.   However, in this case, the EC assigned to the 
unidentified exporters or producers a margin of dum ping equal to the highest margin of an exporter 
individually calculated, a margin that was clearly based on the "facts available", and importantly, on a 
particularly negative set of "facts available". 
(ii) United States 
7.401  The United States asserts that the EC is not excused from complying with Article 6.8 and 
Annex II merely because it used the MIP as the basis for imposing antidumping duties on these 
companies.  In the view of the United States, the ob ligation contained in Article 6.8 is not by its terms 
limited to determinations that are "determinativ e of the duty imposed", as the EC claims; rather, 
Article 6.8 provides that it applies to the use of "facts available" in "preliminary and final determinations, affirm ative or negative". 
(c) Evaluation by the Panel 
(i) Claims under Article 9.4(i) of the AD Agreement  
7.402  Before turning to evaluate Norway's claims, we  believe it is useful to set out some of the 
pertinent facts surrounding the investigating authority's calculation of the margins of dumping and anti-dumping duties attributed to th e non-investigated companies. 
 Facts 
 7.403  In its Definitive Regulation, the investigating authority decided to introduce a "double system 
of measures", composed of minimum import prices ("MIPs") and a "fixed duty", in response to arguments made by certain interested parties about  the efficacy of only MIPs and in the light of 
"indications that some circumvention of the MIP [imposed following provisional findings]" had 
                                                     
 
558 EC, FWS, paras. 324-326. WT/DS337/R 
Page 210  
 
  already taken place and "the potential which exists  for compensatory arrangements" in the salmon 
market.
559 
7.404  Irrespective of its form, the investigating au thority expressed the intention to set the 
"definitive duty" "at the level of the dumping or injury margins, whichever is the lower", in 
accordance with Article 9(4) of the EC's Basic Anti-Dumping Regulation.560 
7.405  The MIPs were calculated for six different pr esentations of salmon: "[w]hole fish, fresh, 
chilled or frozen"; "[g]utted, head-on, fresh, chilled or frozen"; "[o]ther (including gutted, head-off), 
fresh, chilled or frozen"; "[w]hole fish fillets and fillet cut in pieces, weighing more than 300 g per 
fillet, fresh, chilled or frozen, skin on"; "[w]hole fi sh fillets and fillet cut in pieces, weighing more 
than 300 g per fillet, fresh, chilled or frozen, skin off"; and "[o]ther whol e fish fillets and fillet cut in 
pieces, weighing more than 300 g or less per fillet, fresh, chilled or frozen".561  For each presentation, 
the investigating authority calculated a "non-injurious MIP" – a price that would not result in injury to 
the domestic industry – and compared this to a corresponding "company-specific non-dumped MIP", calculated on the basis of "normal value, adjust ed to the net free-at-Community-border price".
562  The 
investigating authority found the "non-injurious MIP"  to be lower than the "non-dumped MIP" for  
each of the investigated producers in r espect of each of the salmon presentations.563  Thus, the MIPs 
were established at the level of the "non-injurious  MIP" for each of the salmon presentations and 
applied equally to all producers from Norway, whether or not investigated.564 
7.406  The fixed duty was calculated, in accordance with "Article 9(4) of the EC's Basic Anti-
Dumping Regulation ... on the basis of the weighted  average injury margin as this was found to be 
lower than the weighted average dumping margin ". The weighted averag e injury margin was 
determined to be 14.6 per cent.565  This was converted into a fixed EUR amount per kilogram for the 
six different presentations of salm on, and applied as the fixed duty.566  The "weighted average 
dumping margin" was calculated on the basis of the "weighted average of the individual dumping margins" of the investigated parties and attributed  to "[c]ompanies which co-operated, but which were 
not selected in the sample, and which are not re lated to any of the companies included in the 
sample".
567  The Definitive Regulation reveals th at this margin was 14.8 per cent. 
7.407  The "fixed duties" applied equally to all produ cers from Norway, whether or not investigated.  
However, they would only become payable when  certain conditions were met.  The intended 
operation of the fixed duties is explained in th e Definitive Regulation in the following terms: 
"To ensure the effective respect of the MI P, importers should be made aware that 
when it is found following a post-importation verification that (i) the net free-at- 
Community-frontier price actually paid by the first independent customer in the 
Community (post-importation price) is below the net free-at-Community-frontier price, before duty, as resulted from the customs declaration; and (ii) the post-importation price is lower than the MIP, a fixed duty shall apply retrospectively for 
the relevant transactions, unless the appli cation of the fixed duty plus the post-
importation price lead to an amount (price actually paid plus fixed duty) which 
                                                     
 
559 Definitive Regulation, Recital 136.  The reasons for "double system of measures" is described in 
greater detail below, paras. 7.691 - 7.700 and 7.403 - 7.408 
560 Definitive Regulation, Recitals 129 (re MIPs) and 136 (re fixed duty). 
561 Definitive Regulation, Recital 132, Article 1(5). 
562 Definitive Regulation, Recital 129. 
563 Definitive Regulation, Recital 129. 
564 Definitive Regulation, Recital 133. 
565 Definitive Regulation, Recital 127. 
566 Definitive Regulation, Article 1(5). 
567 Provisional Regulation, Recital 38, confirmed in the Definitive Regulation, Recital 30.  WT/DS337/R 
 Page 211 
 
 
  remains below the MIP. In such a case, an amount of duty equivalent to the difference 
between the MIP and the post-importation price shall apply. Customs authorities 
should inform the Commission immediately wh enever indications of a misdeclaration 
are found." 
7.408  Finally, we note that the investigating author ity also determined a "residual margin", which it 
attributed to "exporters in Norway which did not cooperate or did not  make themselves known",568 
that is, non-cooperating companies.  This margin was set at the level of the highest individual 
dumping margin established for an investigated coope rating company, which turned out to be Grieg 
Seafood AS ("Grieg") with a margin of dumping of 20.9 per cent.569  The residual margin was not 
used by the investigating authority for the purpose of  establishing either the MIPs or the fixed duties. 
 Non-investigated cooperating companies 
 
7.409  Norway argues that the margin of dumping assi gned by the investiga ting authority to non-
investigated cooperating companies  resulted in the application of anti-dumping duties that were 
inconsistent with Article 9.4(i) because it did not represent the weighted average of the margins of 
dumping for the individually examined producers, excluding margins of dumping derived from "facts 
available", and was used for the purpose of estab lishing the anti-dumping duties applicable to non-
investigated non-cooperating companies. 
7.410  In the first instance, the EC argues that Norway's claim is misplaced because, in its view, 
Article 9.4(i) addresses the imposition of anti-dumping duties, and not the determination of margins 
of dumping for non-investigated parties.  In other wo rds, the EC argues that No rway's claim is limited 
to the allegation that the investigating authority acted inconsistently with Article 9.4(i) because it 
determined margins of dumping for non-investigated compan ies that were greater than the weighted 
average of the margins of dumping for all inves tigated parties, excluding margins based on "facts 
available".  We do not understand Norway's claim to have this limited meaning.  Overall, Norway's 
arguments reveal a concern with the "all others rate" calculated by the investigating authority for non-
investigated cooperating producers.570  In particular, Norway identifi es the "fixed duty" as the focus of 
this concern.571  Thus, we do not agree with the EC when it suggests that Norway's claim is not about 
whether the investigating authority imposed an ti-dumping duties on non-investigated parties in 
accordance with Article 9.4(i).  It is true that Norway calls into question the compatibility of the 
margin of dumping that was attributed to the non-inv estigated parties with Article 9.4(i).  However, 
when considered in the context of  the entirety of Norway's arguments, in particular, the assertion that 
the "all others rate" was determined through an assess ment which took that margin into account, it is 
clear to us that Norway's submissions in respect of the calculation of the margin of dumping attributed to non-investigated cooperating companies serve to s upport its allegation that the "all others rate" did 
not satisfy the requirements of Article 9.4(i).  We  will therefore proceed to examine Norway's claim 
on the basis of this understanding.  However, before doing so, we believe that a threshold 
question that we must resolve is whether the "fixed duty" that lies at the centr e of Norway's claim is 
an anti-dumping duty that falls within the scope of the AD Agreement. 
- Whether the "fixed duty" falls within the scope of the AD Agreement 
7.411  The EC submits that the "fixed duty" adopted by  the investigating authority is not a "specific 
action against dumping" within the meaning of Ar ticle 18.1 of the AD Agreement, and therefore 
cannot be subject to the disciplines of Article 9.4(i)  of the AD Agreement.  According to the EC, the 
                                                     
 
568 Provisional Regulation, Recital 40, confirmed in the Definitive Regulation, Recital 31. 
569 Provisional Regulation, Recital 40, confirmed in the Definitive Regulation, Recital 31. 
570 Norway, FWS, para. 466; and Norway, SWS, paras. 161, 163 and 165.  
571 Norway, SWS, para. 165; Norway, Fi rst Oral Statement, para. 102. WT/DS337/R 
Page 212  
 
  "fixed duty" is a measure taken to address circ umvention of the anti-dumping measures imposed on 
salmon imports, in particular, "designed to deter evasion of lawfully imposed anti-dumping duties ... 
[and] ... intended to enforce the basic level of duty, ... one which exporters a nd importers can avoid by 
respecting the rules."
572  The EC argues that the terminology or  characterization applied to the "fixed 
duty" under its domestic laws should not be dete rminative of its characterisation under WTO law.573 
7.412  Norway, on the other hand, argues that the "fix ed duty" is an anti-dumping duty falling within 
the scope of the AD Agreement.  In this regard, No rway points to the fact that Article 1(5) of the 
Definitive Regulation explicitly d escribes the "fixed duty" as a "fix ed anti-dumping duty"; that it was 
calculated on the basis of a comparison between th e weighted average margin of injury and the 
weighted average margin of dumping; and that it was adopted under a domestic legal basis that is 
specific to anti-dumping measures.574  
7.413  Article 18.1 reads:  
"No specific action against dumping of expor ts from another Member can be taken 
except in accordance with the provisions of  GATT 1994, as interpreted by this 
Agreement.24 
__________________ 
24 This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate." 
7.414  A measure may be characterised as a "specifi c action against dumping", within the meaning 
of Article 18.1, when it is both: (i) "spe cific" to dumping; and (ii) "against" dumping.575  A measure 
that is "specific" to dumping is one that "may be  taken only when the constituent elements of dumping 
... are present".576  Such a measure must be either explicitly  or implicitly "inextricably linked to, or 
have a strong correlation with, the constituent elements of dumping".577  To determine whether a 
measure is "against" dumping, "the design and structur e of a measure" must be examined to determine 
whether it is "opposed to, has an adverse bearing on,  or more specifically, has the effect of dissuading 
the practice of dumping or creates an incentive to terminate such practices"578.  A measure that is not a 
"specific action against dumping" is not regulat ed by the AD Agreement nor Article VI of the 
GATT 1994.579  
7.415  The description provided in the Definitive Regulation of the reason for the adoption of the 
"fixed duty" and its intended application suggests that  it was employed to counter a perceived risk that 
the MIPs imposed on salmon imports could be circ umvented through misdeclarations of the customs 
value.580  To this end, the Definitive Regulation estab lishes that the "fixed duty" will be collected 
whenever post-importation verification shows that im ports have been sold to the first independent 
customer at a net free-at-Community-border price that is below the net free-at-Community-border 
price, before duty, declared to customs and this is below the MIP, unless application of the "fixed 
duty" would not bring the import price to the level (o r above the level) of the MIP.  In other words, 
                                                      
572 EC, FWS, paras. 501-502. 
573 EC, Answer to Panel Question 41. 
574 Norway, First Oral Statement, para s. 158-161; Norway, SWS, para. 223.  
575 Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000 
("US – Offset Act (Byrd Amendment )"), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, 
DSR 2003:I, 375, para. 236. 
576 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 239. 
577 Appellate Body Report, US – Offset Act (Byrd Amendment) , paras. 240 and 244. 
578 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 254. 
579 Appellate Body Report, US – Offset Act (Byrd Amendment) , paras. 236 and 262. 
580 Definitive Regulation, Recital 136.  WT/DS337/R 
 Page 213 
 
 
  the "fixed duty" is intended to apply when th e customs value of an import transaction has been 
understated such that the actual import price of the transaction is below the MIP.  The "fixed duty" 
will not be collected when the post-importation ve rified import price is at or above the MIP.581 
7.416  We recall that the MIPs were set by the investigating authority at prices that would remove 
the injury suffered by the EC domestic industry.  Therefore, any price below the MIPs would continue 
to cause injury to the EC domestic industry.  Mo reover, because the non-injury price was lower than 
the non-dumped price, it follows that any price below the MIPs would also be at a level where dumping would continue to exist.  Thus, it is clear to us that the "fixed duty" may only be collected 
when the constituent elements of dumping are present.  This renders the "fixed duty" "specific" to 
dumping within the meaning of Article 18.1. 
7.417  Next we examine whether the "fixed duty" is a measure "against" dumping.  We note that the 
legal basis of the measure is Article 9(4) of the EC's Basic Anti-Dumping Regulation, which specifically identifies the amount of the anti-dumpi ng duty that may be imposed by the investigating 
authority following a finding of dumping, injury and causation.
582  The Basic Anti-Dumping 
Regulation itself is intended to lay down detailed rules for the "protection against  dumped imports 
from countries not members of the European Community".583  In addition, we observe that the "fixed 
duty" was referred to in the Definitive Regulation as a "fixed anti-dumping duty"584 and determined 
on the basis of a comparison between the weighted average injury margin a nd the weighted average 
dumping margin.585  Thus, in our view, the "design and structure" of the measure is intended to 
oppose and dissuade the practice of dumping.  This is also evident from the fact  that the measure will 
not apply if actual import prices do not fall below the MIPs.  Therefore, we find that the "fixed duty" 
is also a measure taken "against" dumping,  within the meaning of Article 18.1. 
7.418  In conclusion, we find that the "fixed duty" applied by the investigating authority is a 
"specific action against dumping" within the meani ng of Article 18.1 of the AD Agreement.  It is 
therefore subject to the disciplines of Article 9.4( i) of the AD Agreement, which we now examine. 
- Whether the investigating authority acted  inconsistently with Article 9.4(i) 
7.419  We begin our evaluation of Norway's claim by re viewing the text of Article 9.4(i), which in 
pertinent part reads: 
"When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: 
 (i) the weighted average margin of  dumping established with respect to 
the selected exporters or producers or, 
 (ii) where the liability for payment of anti-dumping duties is calculated 
on the basis of a prospective normal value, the difference between the 
                                                      
581 We note that the "fixed duty" will also not be collected when the di fference between the post-
importation verified import price and the MIP is greater than  the "fixed duty".  In this case, the entire difference 
between the MIP and the post-importation verified import pr ice will be collected.  This fact does not change our 
analysis, because it is still clear that the only circumstances in which the "f ixed duty" will be collected are when 
the post-importation verified prices are below the MIP. 
582 Definitive Regulation, Preamble and Article 1. 
583 EC, Basic Anti-dumping Regulation, Recitals 1-30, Document G/ADP/N/1/EEC/2 (2 July 1996). 
584 Definitive Regulation, Article 1(5). 
585 Definitive Regulation, Recital 136. WT/DS337/R 
Page 214  
 
  weighted average normal value of the selected exporters or producers and the 
export prices of exporters or producers not individually examined, 
provided that the authorities shall disregard for the purpose of this paragraph any zero 
and de minimis  margins and margins established under  the circumstances referred to 
in paragraph 8 of Article 6. ..." 
7.420  Article 9.4 applies when investigating author ities have conducted a limited examination in 
accordance with Article 6.10 of the AD Agreement.  In particular, Article 9.4 applies when an 
investigating authority has not determined an i ndividual margin of dumping for each known exporter 
or producer, within the meaning of the first sen tence of Article 6.10, and instead determined 
individual margins of dumping for a limited number  of interested parties selected from the known 
exporters or producers, in accordance w ith the second sentence of Article 6.10.
586  In such cases, 
Article 9.4 specifies that the anti-dumping duty appl icable to imports from the non-examined parties 
must not exceed either of two benchmarks: (i) the weighted average of the margins of dumping 
established for the examined parties, excluding zero and de minimis margins and margins calculated 
on the basis of "facts available"; or (ii) where the liability for payment of anti-dumping duties is 
calculated on the basis of a prospective normal valu e, the difference between the weighted average 
normal value of the examined parties and the expo rt prices of the non-examined parties, excluding 
zero and de minimis margins and margins calculated on the basis of "facts available".  Norway's claim 
relates to whether the anti-dumping duties applied by  the investigating author ity exceeded the first of 
these benchmarks, namely, the weighted average of the margins of dumping established for the 
examined parties, excluding zero and de minimis margins and margins calculated on the basis of 
"facts available".  
7.421  In the present investigation, the anti-dumping du ties applied by the investigating authority to 
non-investigated cooperating companies took the form  of both minimum import prices (MIPs) and a 
fixed anti-dumping duty.  Norway argues that the investigating authority relied on the weighted average margin of dumping for the individually inves tigated parties when setting the fixed duty.  The 
EC disputes this, and argues that the fixed duty was derived instead from the weighted average injury 
margin, not the weighted average dumping ma rgin for the investigated producers. 
7.422  As we have already noted, the investigating au thority stated that the "definitive duty" would 
be set at "the level of the dumping or injury margins, whichever is lower", in accordance with 
Article 9(4) of the EC's Basic Anti-Dumping Regulation.
587  Article 9(4) of the EC's Basic Anti-
Dumping Regulation provides for the application of what is generally known as the "lesser-duty rule".  
It reads, in pertinent part: 
"The amount of the anti-dumping duty shall not exceed the margin of dumping 
established but it should be less than the marg in if such lesser duty would be adequate 
to remove the injury to the Community industry."588 
7.423  The investigating authority applied the "lesser-dut y rule" in setting both the levels of the MIPs 
and the fixed duty.  In particular, as regards the "f ixed duty", the investigating authority explained its 
methodology in the following terms: 
"In accordance with Article 9(4) of the basic Regulation, the fixed duty was 
calculated on the basis of the weighted aver age injury margin as this was found to be 
lower than the weighted average dumping margin."589 
                                                      
586 Appellate Body Report, US – Hot-Rolled Steel , para. 115. 
587 Definitive Regulation, Recital 129. 
588 EC, Basic Anti-dumping Regulation, Article 9(4), Document G/ADP/N/1/EEC/2 (2 July 1996).  WT/DS337/R 
 Page 215 
 
 
  7.424  The investigating authority's explanation reveals that the "fixed duty" applied to non-
investigated cooperating companies was based on the weighted average injury margin (calculated to 
be 14.6 per cent590) because it was lower than the weight ed average margin of dumping for all 
investigated companies (which was found to be 14.8 per cent591).  Thus, it is apparent that the 
weighted average margin of dumping for investigated  parties played a key role in the investigating 
authority's determination of the duty to apply to non-investigated cooperating companies.  The 
weighted average dumping margin was central a nd indispensable to the comparison made when 
applying the "lesser-duty rule".  To this extent, th e investigating authority's decision to set the fixed 
duty at the level of the weighted average injury  margin was dependent upon the weighted average 
dumping margin that was determined for the individually investigated parties. 
7.425  Norway argues that the weighted average margin of dumping that was relied upon by the 
investigating authority was overstated because it di d not reflect the downward adjustments made to 
three individually investigated companies after th e investigating authority's Definitive Disclosure.  
The EC acknowledges that it failed to adjust the 14.8 per cent figure for these downward revisions.592  
It follows that the weighted aver age margin of dumping of the i nvestigated producers used for the 
purpose of identifying the level of the fixed duty shou ld have been lower than the 14.8 per cent figure 
actually relied upon by the investigating authority. 
7.426  In addition, according to Norway, the wei ghted average margin of dumping of the 
investigated producers that was u sed for the purpose of determining the level of fixed duty was 
calculated using the margin of dumping determined for Grieg, which Norway argues was based on "facts available".  The EC does not deny that the investigating authority used Grieg's margin of 
dumping for this purpose, but argues that it was not based on "facts available".  We recall that we 
have already found that the investigating authority' s determination of the margin of dumping for Grieg 
did involve the use of "facts available".
593  Thus, the weighted average margin of dumping that was 
used for the purpose of setting the level of fixed duties was calculated using a margin of dumping that 
was based on "facts available".  Furthermore, we note that Grieg's margin of dumping was 20.9 per 
cent, the highest of all investigated parties.  Th erefore, it must logically follow that the weighted 
average margin of dumping of the investigated pr oducers would have been less than the 14.8 per cent 
figure, had the investigating authority not included Grieg's margin of dumping in its calculations.  In 
this regard, we note that Norway has presented evidence which it argues demonstrates that the 
weighted average margin of dumping for the investigated companies would have been 14.1 per cent without the inclusion of Grieg's margin of dumping.
594   
7.427  We recall that pursuant to Article 9.4(i), anti-dumping duties applied to imports from non-
investigated parties must not exceed the weighted average of the margins of dumping established for 
the investigated parties, excluding zero and de minimis margins and margins calculated on the basis of 
"facts available".  In the present investigation, th e fixed duty applied to th e non-investigated parties 
was set at the EUR per kilogram equivalent of the 14.6 per cent weighted av erage margin of injury 
because this margin was found to be lower than the weighted average margin of dumping for the 
investigated parties.  However, as the EC ha s acknowledged, the 14.8 per cent figure used as the 
weighted average margin of dumping for the inv estigated parties was overstated because it did not 
take into account the downward revisions to the margins of dumping of three individually examined producers.  In addition, we have found that the inve stigating authority's calculation of the weighted 
                                                                                                                                                                    
 
589 Definitive Regulation, Recital 136. 
590 Definitive Regulation, Recital 127. 
591 Definitive Regulation, Recital 32. 
592 EC, FWS, para. 312. 
593 See, para. 7.383. 
594 Exhibit NOR-68.  According to Norway, this figure would be 13.1 per cent if also calculated to 
account for the revised margins of  dumping for the three releva nt investigated producers. WT/DS337/R 
Page 216  
 
  average margin of dumping for the investigated parties included Grieg's margin of dumping, which 
was the highest margin of dumping of all investig ated producers and derived from "facts available".  
Thus, the basis of the investigating authority's findi ng that the margin of injury was lower than the 
margin of dumping, and therefore by implication, that the fixed duty applied to the non-investigated 
cooperating companies did not exceed the weighted  average of the margins of dumping established 
for the investigated parties, excluding margins calcu lated on the basis of "facts available", was flawed. 
7.428  In this light, to the extent that it determined the fixed duty on the basis of an assessment that 
relied upon a weighted average margin of dumping for investigated parties that (i) was overstated because it did not take into account downward re visions to the margins of dumping of three 
individually examined producers; a nd (ii) was calculated with reliance on a margin of dumping that 
was based on "facts available", we find that the i nvestigating authority acted inconsistently with 
Article 9.4(i) of the AD Agreement. 
 Non-cooperating companies 
 
7.429  Norway claims that the investigating authority act ed inconsistently with Article 9.4(i) because 
it attributed to non-cooperating companies  a margin of dumping that ex ceeded the weighted average 
of the margins of dumping calculated for the indivi dually investigated companies, excluding zero and 
de minimis margins and margins calculated on the basis of  "facts available".  Unlike its claim in 
respect of non-investigated coope rating companies, Norway does not  argue that the margin of 
dumping attributed to non-cooperating companies re sulted in the application of an anti-dumping duty 
that exceeded the weighted aver age of the margins of dumping calculated for the individually 
investigated companies.  Rather , Norway's claim is limited to the allegation that investigating 
authority's finding that non-cooperating companies dumpe d at a rate of 20.9 per cent was inconsistent 
with the benchmark set out in Article 9.4(i).  Thus, Norway's claim is premised on the view that Article 9.4(i) governs the determination of marg ins of dumping for non-cooperating companies.   
7.430  The EC contests Norway's allegation, arguing that Article 9.4(i) does not discipline the 
determination of margins of dumping for non-cooperating companies, but rather only the imposition 
of anti-dumping duties.   
7.431  As we have already noted, Article 9.4(i) applies when an investigating authority has not 
determined an individual margin of dumping for each known  exporter or producer, within the meaning 
of the first sentence of Article 6.10, and instead  determines individual margins of dumping for a 
limited number of interested pa rties selected from the known exporte rs or producers, in accordance 
with the second sentence of Article 6.10.  The focus of Article 9.4 is therefore on the "exporters or 
producers not included in the examination" that could have been potentially included in the selection 
of parties to investigate pursuant to the second sente nce of Article 6.10.  In our view, this does not 
include exporters or producers that did not identify themselves to the investigating authority for the 
purpose of being selected in the limited investiga tion because such exporters or producers could not 
have been potentially included in the selection of th e parties to investigate.  Thus, the disciplines in 
Article 9.4(i) apply only in respect of non-investig ated parties that cooperated with the investigating 
authority for the purpose of selection of the parties that  would be subject to a limited investigation.  It 
does not apply in respect of parties that did not cooperate for this purpose.
595 
                                                      
595 We note that the principle that non-cooperating parties may be treated differently to cooperating 
parties is also recognized in paragraph 7 of Annex II of  the AD Agreement, which pr ovides that "[i]t is clear, 
however, that if an interested party does not cooperate and thus relevant information is being withheld from the 
authorities, this situation could lead to a result which is less favourable to the party than if the party did 
cooperate".  WT/DS337/R 
 Page 217 
 
 
  7.432  In the present investigation, the non-coopera ting companies were identified as companies 
which "did not cooperate or did not make themselves known".596  This may be contrasted with the 
non-investigated cooperating companies, which we re identified as "[c]ompa nies which cooperated, 
but which were not selected in the sample, and whic h are not related to any of the companies included 
in the sample".597  It follows that the non-cooperating companies included any investigated company 
that did not cooperate in the investigation and any non-investigated company that did not make itself 
known to the investigating authority for the purpose of  being selected in the limited investigation.  We 
note that none of the investigated companies were found to be non-cooperating.  Thus, the margin of 
dumping attributed to non-cooperating companies was assigned only to companies that did not  make 
themselves known to the investigating authority fo r the purpose of being selected in the limited 
investigation. 
7.433  In this light, we find that the investigating aut hority's attribution of a 20.9 per cent margin of 
dumping to non-cooperating companies does not fall within the scope of Article 9.4(i) of the 
AD Agreement.  To this extent, Norway's claim that  the investigating authority acted inconsistently 
with Article 9.4(i) is unfounded, and we therefore dismiss it. 
(ii) Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement  
7.434  Norway claims that the EC acted inconsistently  with Article 6.8 and pa ragraph 1 of Annex II 
of the AD Agreement because it alle ges that the investigating authority improperly relied upon "facts 
available" to establish margins of dumping for the non-cooperating companies.598  The EC does not 
contest that the investigating authority relied on "fac ts available" when it determined the margin of 
dumping for non-cooperating companies.  However, it questions whether any breach of Article 6.8 
occurred in the present investiga tion when the anti-dumping duties a pplied to the non-cooperating 
companies were not based on the margins of dumping that were determined for these companies.  In 
any case, the EC contends that the circumstance s of the investigation were such that the non-
cooperating companies were given sufficient notice, w ithin the meaning of paragraph 1 of Annex II.  
7.435  The EC's response to Norway's claim raises one initial threshold question: whether the use of 
"facts available" for the calculation of a margin of  dumping which is not determinative of the anti-
dumping duty imposed may fall within the scope of Article 6.8 of the AD Agreement.   
7.436  We recall that the text of Article 6.8 provid es that "preliminary and final determinations, 
affirmative or negative, may be made on the basis of  the facts available" when certain conditions have 
been satisfied.599  Although not defined, it is clear th at the expression "preliminary and final 
determinations, affirmative or negative" refers to the determina tions called for or contemplated under 
the AD Agreement, which include, for example, th e "determination of dumping" under Article 2 and 
the "determination of injury" under Article 3.  An  investigating authority's "determination" of 
dumping therefore falls squarely within the scope of  Article 6.8.  We see nothing in the language of 
Article 6.8 to indicate that its scope should be lim ited only to "determinations" that are determinative 
of the level of anti-dumping duties that is actua lly applied by an investigating authority. 
7.437  Thus, we are not convinced by the EC's cont ention that, in the present investigation, the 
investigating authority's establishment of the margins of dumping for the non-cooperating companies 
cannot be impugned under Article 6.8 and Annex II of the AD Agreement because it was not 
determinative of the level of anti-dumping duties a pplied to the non-cooperating parties.  While the 
EC may consider Norway's claim to be "academic ", we do not understand it to suggest that it is 
                                                      
596 Provisional Regulation, Recital 40. 
597 Provisional Regulation, Recital 38. 
598 Norway, FWS, paras. 483-491. 
599 See, para. 7.340. WT/DS337/R 
Page 218  
 
  frivolous, or that Norway has not appropriately "e xercised its judgement" as to whether the claim 
"would be fruitful" within the meaning of Article 3. 7 of the DSU.  In this regard, we recall that 
Article 3.7 of the DSU neither requires nor authoriz es us to look behind Norway's decision to bring 
this claim and to question the exercise of its judgement.
600  Furthermore, we note that pursuant to 
Article 3.8 of the DSU, there is a presumption th at benefits are nullified or impaired whenever a 
provision of the WTO Agreement has been violated.  In the light of this presumption, it would be for 
the EC to show that any conduct of the investigati ng authority that we may find to be inconsistent 
with Article 6.8 has not nullified or impaired be nefits accruing to Norway under the Agreement.601  
However, we note that the EC has failed to adduce any evidence in this respect. 
7.438  We now turn to address the remainder of Norway's claim.  However, before doing so, we 
briefly set out the pertinent facts surrounding the in vestigating authority's determination of the non-
cooperating companies' margins of dumping. 
 Facts 
 
7.439  The investigating authority's first notification of the consequences that non-cooperation could 
bring in the investigation was contained in the Noti ce of Initiation.  This notification was published in 
the Official Journal on 23 October 2004, and read: 
"In cases in which any interested party refuses access to or does not provide the 
necessary information within the time limits, or significantly impedes the 
investigation, provisional or final findings, affirmative or negative, may be made in 
accordance with Article 18 of the basic Regula tion, on the basis of facts available."602 
7.440  On 26 October 2004, the investigating authorit y met with a representative of the Norwegian 
Seafood Federation ("FHL"), who also acted on behalf of the Norwegian Seafood Association,603 to 
discuss the initiation of the investigation.  The FH L representative said that the two Associations 
would "collaborate under the informal  title of 'the salmon project'" to streamline communications with 
the investigating authority.  The representative signed for the receipt of "the initiation papers" 
comprising "a cover letter addressed to [the] Associ ation, the sample questionnaire, the questionnaire 
intended for producers/exporters in relation to pr oceeding AD 487, relating to imports of farmed 
salmon from Norway, a list of producers/exporters."604  The list of "producers/exporters" were those 
that had apparently already been cont acted by the investigating authority.605  The investigating 
authority asked the FHL representative to "check th e provided list of exporters/producers in order to 
ensure that all relevant companies got the form ".  He was also "reminded that it [was] each 
compan[y's] responsibility to ask for forms if not received directly".606 
7.441  The "sampling form" provided to the FHL e xplained that it was "designed to assist 
exporters/producers in submitting the required info rmation to the Commission services as mentioned 
                                                      
600 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) 
from the United States – Recourse to Article 21.5 of  the DSU by the United States ("Mexico – Corn Syrup 
(Article 21.5 – US)") , WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675, para. 74. 
601 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles 
from Italy ("Argentina – Ceramic Tiles") , WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, 6241, 
paras. 6.104-6.105. 
602 Exhibit EC-9, paragraph 8. 
603 See, Note for the File , 28 October 2004, Exhibit EC-55; NSL Power of Attorney , 
22 November 2004, Exhibit EC-56.  
604 See, Note for the File , 28 October 2004, Exhibit EC-55.  
605 EC, Answer to Panel Question 88. 
606 See, Note for the File , 28 October 2004, Exhibit EC-55.   WT/DS337/R 
 Page 219 
 
 
  in the Notice of Initiation".  It "encouraged" reci pients to read the Notice of Initiation, which 
contained "[f]ull explanations of th e procedures relating to" the proceeding.607 
7.442  By e-mail of 2 November 2004, the FHL representa tive informed the investigating authority 
that another entity, the Norwegian Seafood Export Co uncil, had decided to participate in the "salmon 
project" managed by the FHL.  The e-mail explained that the "main task of the [salmon project was] 
to assist the industry and the organisations in all aspects when dealing with dumping and/or Safeguard 
question".608  The e-mail also reveals that the FHL ha d found the list of "approx 160" producers and 
exporters provided by the investigating authority to  the FHL at the meeting of 26 October 2004 to be 
"fairly complete" as regards exporters, but "incomplet e" in respect of producers.  The FHL therefore 
sent the "sampling form to an additional number of producers, tak[ing] into account that an eventual 
sample should have representativeness from north to south, smaller and bigger companies, and 
independent as well as integrated companies".609  The e-mail lists the names, addresses and telephone 
numbers of 27 companies to whom the FHL sent the "sampling form". 
7.443  In response to the request for information made  in the Notice of Initiation, the investigating 
authority received information from 102 companies by the 8 November 2004 deadline.610  These 
included the responses of 89 companies to the "sampling questionnaire", coordinated through the 
FHL.611 
7.444  On 18 November 2004, the FHL sent an e-mail to  the investigating authority referring to a 
meeting held with the investigating authority on 17 November 2004 and proposing ten companies for 
inclusion in the investigating authority's limited investigation.  This e-mail also contained an 
"[a]lphabetical list of [157] Norwegian salmon farming companies, with addresses and number of 
licenses".612 
7.445  The Provisional Regulation suggests that the investigating authority was, at that stage, under 
the impression that it had notified all known interested parties: 
"The Commission officially advised the co mplainant, Norwegian producers, traders, 
importers, suppliers and users known to be  concerned, as well as associations known 
to be concerned and represen tatives of Norway, of the op ening of the proceeding.  
Interested parties were given an opportuni ty to make their views known in writing 
and to request a hearing within the time limit set in the notice of initiation."613 
7.446  The Provisional Regulation identified "non-coop erating companies" as companies "which did 
not cooperate or did not make themselves known".  After reviewi ng "information available", the 
investigating authority concluded that such compan ies had not "dumped at a level lower than any of 
the companies included in the sample".  Consequently , it determined that they should be attributed the 
highest margin of dumping calculated for an investig ated producer at the provisional stage, that of 
Fjord Seafood AS, 37.7 per cent.614  However, provisional anti-dumping duties were established at a 
rate of 24.5 per cent, the dumping margin determin ed for Follalaks AS, because this was lower than 
                                                      
607 Exhibit NOR-38. 
608 Exhibit EC-64. 
609 Exhibit EC-64. 
610 Provisional Regulation, Recital 16. 
611 Exhibit NOR-38. 
612 Exhibits EC-4 and EC-52. 
613 Provisional Regulation, Recital 6. 
614 Provisional Regulation, Recitals 41, 42 and 139. WT/DS337/R 
Page 220  
 
  the weighted average of the marg in of injury calculated by the investigating authority for all 
investigated producers.
615   
7.447  The Provisional Regulation lists 119 companies by name and specifically identifies the anti-
dumping duty applicable to each.  All companies not named in the 119 were treated as non-cooperating companies.
616 
7.448  Following the investigating authority's provisi onal determination, th e FHL submitted a letter 
dated 4 May 2005 to the investigating authority comp laining about the application of the 24.5 per cent 
duty on the non-cooperating companies and requesting a hearing with the investigating authority.  The 
letter asserted that the salmon farmers "subject to th e 24.5 per cent [duty] are small companies, some 
being family companies managed by husband and wife ".  The letter alleged that "many" of the 
companies treated as non-cooperating did not receive the "sample form", citing the following three 
main reasons: 
"Some of the companies are not members of the industry organisations in Norway 
and for that reason they did not receive  information through such channels. 
They were not on the list of companies for which the Commission transmitted the 
sample form directly. 
Some of the companies report problems with  internet connection or that the e-mail 
address used has not been correct, and that  they consequently did not receive the 
sampling form."617 
7.449  The letter from the FHL identifies 88 compani es that were treated as non-cooperating, and 
asserts that 67 of these companies did not receive a "sampling form".618  Norway has indicated that 33 
of these companies were not members of the FHL or  the NSL at the time that the "sampling form" 
was distributed.619  Thus, 34 of the companies that did not receive the "sampling form" were members 
of the FHL at the time of its distribution. 
7.450  The meeting requested by the FHL in its letter of 5 May 2005 apparently took place on 
2 June 2005.  Norway asserts that the FHL pres ented the investigating authority with individual 
powers of attorney for 64 of the 88 companies that were treated as non-cooperating.620  The EC has 
not disputed Norway's assertion.621 Attending that meeting were representatives of the FHL, the NSL, 
Mr. Trond S. Paulsen from the law firm Trond S Paul sen, and 28 companies.  The record of this 
meeting that was submitted by Norway as evidence in this dispute indicates that, in addition to 
interventions by Mr Paulsen and the representative of  the NSL, five companies also made statements, 
explaining their situations and offering to comply with any future requests for information from the 
Commission.622 
7.451  Finally, as we have already noted, in the De finitive Regulation, the investigating authority 
attributed a margin of dumping of 20.9 per cent to the non-cooperating companies.  This margin was 
set at the level of the highest individual dumping ma rgin established for an investigated cooperating 
                                                      
615 Provisional Regulation, Recital 139. 
616 Provisional Regulation, Article 1(3). 
617 Exhibit NOR-152. 
618 Exhibit NOR-152. 
619 Norway, Answer to Panel Question 134. 
620 Norway, Answers to Pane l Questions 135 and 136.  
621 European Communities, Comments on Norway's Answers to Panel Questions 135 and 136. 
622 Exhibit NOR-153.  It is unclear from the record submitted by Norway exactly how many of the 
companies that attended the meeting we re members of the FHL or the NSL.  WT/DS337/R 
 Page 221 
 
 
  company, Grieg.  However, it was not used by the investigating authority for purpose of establishing 
either the MIPs or the fixed duties.623  
Whether the investigating authority acted inconsis tently with Article 6.8 and Annex II of the 
AD Agreement 
 
7.452  We recall that pursuant to Article 6.8 of the AD Agreement, an investigating authority may 
use "facts available" for the purpose of making its preliminary and final determinations when any 
interested party refuses access to, or otherwise does not provide, necessary information within a 
reasonable period or significantly impedes the inves tigation.  In resorting to "facts available", the 
disciplines that are set out in Annex II must also be  respected.  Of particular relevance to Norway's 
claim are the rules set out in paragraph 1 of Annex II, which reads: 
"As soon as possible after the initiation of the investigation, the investigating 
authorities should specify in detail the information required from any interested party, and the manner in which that information shou ld be structured by the interested party 
in its response.  The authorities should also ensure that the party is aware that if 
information is not supplied within a reasonable time, the authorities will be free to 
make determinations on the basis of the f acts available, including those contained in 
the application for the initiation of the investigation by the domestic industry." 
7.453  Paragraph 1 of Annex II establishes two obliga tions on investigating authorities wanting to 
use "facts available" in their determinations:  Firs t, they must inform any interested party of the 
information that must be supplied during the course of a proceeding; and secondly, the party must be 
made aware of the consequences of not submitting requ ested information, in particular, the possibility 
that "facts available", including those presented in a complainant's application, could be applied.  In 
Mexico – Anti-Dumping Measures on Rice , the Appellate Body explained these obligations in the 
following terms:   
"The last sentence of Article 6.8 provides that the provisions of Annex II shall be 
observed in the application of that para graph.  In particular, under the second 
sentence of paragraph 1 of Annex II, the i nvestigating authorities should 'ensure' that 
an interested party is "aware" that, if the required information is not supplied within a 
reasonable time, "the authorities will be free to make determinations on the basis of facts available,  including those contained in the application for the initiation of the 
investigation by the domestic industry ." (emphasis added)  The second sentence of 
paragraph 1 of Annex II c onditions the use of facts from the petitioner's application 
on making the interested party "aware" that, if the information is not supplied by it 
within a reasonable time, the investigating authority will be free to resort to these 
facts available.  In other words, an exporte r shall be given the opportunity to provide 
the information required by the investigating authority before the latter resorts to facts 
available that can be adverse to the exporter's interests.  An exporter that is unknown 
to the investigating authority—and, theref ore, is not notified of the information 
required to be submitted to the inves tigating authority—is denied such an 
opportunity.  Accordingly, an investigating authority that uses the facts available in 
the application for the initiation of the investigation against an exporter that was not given notice of the information the investigating authority requires, acts in a manner 
inconsistent with paragra ph 1 of Annex II to the  Anti-Dumping Agreement   and, 
therefore, with Article 6.8 of that Agreement."
624 (Footnote omitted). 
                                                      
623 See, para. 7.408. 
624 Appellate Body Report,  Mexico – Anti-Dumping Measures on Beef and Rice , para. 259. WT/DS337/R 
Page 222  
 
  7.454  The EC argues that the facts of the present investigation must be distinguished from those in 
Mexico – Anti-Dumping Measures on Rice  case.
625  According to the EC, the situation in the present 
investigation is qualitatively different from that in the Mexico – Anti-Dumping Measures on Rice 
because the investigating authority in the latter cas e had notified only those exporting companies that 
had been identified in the petition, as well as two companies that had made themselves known.  The 
Mexican investigating authority had undertaken no fu rther effort to contact any other companies that 
might be concerned by its investigation.  In contrast , in the investigation at issue, the EC argues that 
the investigating authority contacted all of the co mpanies in the industry that it knew of, with the 
assistance of the FHL, which had received a copy of the "sampling questionnaire" and the Notice of Initiation setting out an explicit warning of the possibl e use of "facts available" in the event of non-
cooperation.
626  To this end, the EC contends that the FHL served as a channel of communication 
between the investigating authority and Norwegian salmon producers and exporte rs, in particular, for 
the purpose of selecting the companies that would be examined.627  
7.455  We agree with the EC that there are important differences between the actions of the 
investigating authority in Mexico – Anti-Dumping Measures on Rice and those of the investigating 
authority in the investigation at issue in the pr esent dispute.  However, these differences cannot 
change the nature of the obligation set out in paragr aph 1 of Annex II.  In this regard, we observe, as 
the Appellate Body did in Mexico – Anti-Dumping Measures on Rice , that pursuant to paragraph 1 of 
Annex II an interested party must not only be informed of the information required by an investigating authority for the purpose of its investig ation, but it must also be given an opportunity to 
provide it before
 the investigating authority may resort to  "facts available" within the meaning of 
Article 6.8.  Thus, we must assess whether th e investigating authority complied with these 
requirements, in the light of the particular facts and circumstances of the investigation at issue. 
7.456  The investigating authority resorted to "facts av ailable" in establishing the margin of dumping 
for "non-cooperating companies", which it defined as companies that "did not cooperate or did not 
make themselves known".628  None of the investigated companies or companies that submitted a 
response to the investigating authority's "sam pling form" were found not to have cooperated.629  I t  
follows that the "non-cooperating companies" a ttributed the margin of dumping based on "facts 
available" were companies that "did not make them selves known" to the investigating authority – that 
is, companies that did not respond to the investigatin g authority's request for information contained in 
the "sampling questionnaire". 
7.457  The Provisional Regulation reveals that the investigating authority believed that it had 
informed all known interested parties of the opening of  the proceeding.  Howeve r, the evidence that is 
before us indicates that 67 of the companies treated as "non-cooperating" did not receive the 
"sampling questionnaire" or the Notice of Initiation,  containing the investigating authority's request 
for information and warning about the possible u se of "facts available" in the event of non-
cooperation.  The EC does not contest that the inv estigating authority was not aware of the existence 
of these 67 companies at the time it sent out the " sampling questionnaire" and when it subsequently 
selected the companies to examine.  However, according to the EC, the investigating authority should 
not be faulted for relying on "facts available" in  the present case because, in its view, the FHL had 
effectively undertaken to ensure that all relevant  companies would be inform ed of the investigation.630 
Thus, the EC argues that by acting in consultation and through the FHL, the investigating authority 
                                                      
625 EC, FWS, para. 327. 
626 EC, FWS, para. 324. 
627 EC, Answer to Panel Question 88. 
628 Provisional Regulation, Recital 40, Exhibit NOR-9. 
629 Provisional Regulation, Article 1(3), Exhibit NOR-9. 
630 EC, Answers to Panel Questions 88 and 110.  WT/DS337/R 
 Page 223 
 
 
  took all reasonable steps to bring both the investig ation and the need to complete the "sampling 
questionnaire" to the attention of all the 67 companies.631 
7.458  We note that the FHL informed the investigati ng authority that three industry Associations 
had decided to work together, under the informal title  of "the salmon project", in order to streamline 
communications with the investigating authority and assist the Norwegian salmon industry in "all 
aspects when dealing with dumping ... questions".  Th e investigating authority initially asked the FHL 
to check a list of "approx 160 companies" that it ha d already contacted "in order to ensure that all 
relevant companies got the [sampling] form".  The FHL reviewed the list and reported that it was 
"fairly complete" as regards expor ters, but "incomplete" in respect of producers.  The FHL took the 
initiative of sending the "sampling form" to 27 "a dditional" producers.  Subsequently, the FHL 
submitted the completed "sampling questionnaires" of 89 companies to the investigating authority by 
the 8 November 2004 deadline; and on 18 November , it submitted to the investigating authority its 
own proposal of companies to include in the investig ation, including for this purpose, a list of "the 
Norwegian salmon farming companies, with addresses and number of licenses".  In our view, these facts suggest that the FHL had not only presented itself to the investigating authority as the single 
voice and channel of communication for dealings with the three industry Associations, but also that it 
had decided to take an active role in contacti ng all Norwegian salmon produ cers it considered were 
"relevant" to the investigating authority's investigation.   
7.459  Additional insights into the scope of the FHL's role in informing interested parties of the 
investigating authority's investigation can be found in its letter to the investigating authority of 
4 May 2005.  In this letter, the FH L notes that one of the reasons why "some" of 67 companies did not 
receive the "sampling questionnaire" was that "the companies are not members of the industry 
organisations in Norway and for that reason
 they did not receive information through such channels" 
(underline added).  In other words, the FHL informed  the investigating authority that "some" of the 
67 companies did not receive the sampling questio nnaire because they were not members of the 
Norwegian industry associations, and could not theref ore be contacted by the associations.  In our 
view, this implies that it was the FHL's own view  that had such companies been members of the 
Norwegian industry associations, they would have b een informed of the investigation and received a 
copy of the "sampling questionnaire".  This suggests that the FHL had in fact assumed the role of informing all of the members of the associations it represented of the EC's investigation. 
7.460  We recall that Norway has indicated that at th e time of the selection of the companies that 
would form part of the investigating authority's li mited examination, 33 of the 67 companies that did 
not receive the "sampling questionnaire" were not memb ers of the FHL or the NSL.  In the light of the 
statement made by the FHL in its letter of 4 May 2005, it follows that these companies could not have 
been contacted through the FHL.  On the other ha nd, it also follows from the FHL's statement that it 
must have contacted or at least attempted to contact the remaining 34 companies that allegedly did not receive the "sampling questionnaire".  If this were not the case, the FHL's revelation that "some" of 
the 67 companies did not receive the "sampling ques tionnaire" "for the reason that" they were not 
members of industry associations would not make sense.
632  In this regard, we note that another of the 
reasons advanced by the FHL to explain why certain companies did not receive a "sampling 
questionnaire" was that technical problems with in ternet connections or incorrect e-mail addresses 
                                                      
631 EC, Answer to Panel Question 88. 
632 Such a conclusion is also supported by the statement made by Mr Paulsen at the meeting of 2 June 
2005, where he explained that "[m]ost of [the companies concerned] were not [a] sic member of any trade or 
industry organization and, thus, did not receive the sample form through such channels." Exhibit NOR-153, 
para. 13. WT/DS337/R 
Page 224  
 
  hindered the distribution of the "sampling questionnai re".  This suggests that FHL may also have had 
problems contacting its own members.
633 
7.461  On balance, we believe that the relevant fact s and circumstances surrounding the investigating 
authority's selection of companies to investigate,  demonstrate that the investigating authority did 
enough to comply with the requirements of paragr aph 1 of Annex II, in respect of 34 of the 
67 companies that did not allegedly receive a copy of  the "sampling questionnaire".  In the particular 
circumstances of the present investigation, we see no reason why, even in the absence of powers of 
attorney granted by all of the relevant companies to the FHL,634 the investigating authority could not 
have relied upon the FHL to communicate its requ est for information and the warning about the 
possible use of "facts available" in the event of non-cooperation, to all members of the associations 
that it represented.  The investigating authority acted in consultation with the FHL in selecting the 
companies to examine and also for the purpose of  distributing the "sampling questionnaire" and 
Notice of Initiation.  The FHL held itself out as the channel of communication between the 
investigating authority and three industry associations .  It responded to the investigating authority's 
request to check the list of "approx 160 compan ies" already contacted, and actively pursued 
contacting additional producers when it considered  the investigating authority's efforts were 
insufficient.  The "sampling questionnaires" of 89 of 102 companies were submitted through the FHL.  
The FHL expressly indicated that certain allege dly non-cooperating companies had not received a 
"sampling questionnaire" because they were not members of the industry associations, implying that such companies would have received the relevant information had they been members.  It also 
revealed that some of its members did not receive  the "sampling questionnaire" because of technical 
problems affecting its transmission.  And, finally,  the FHL made representa tions on behalf of its 
members that had apparently not been contacted by  the investigating authority after the stage of 
provisional findings, confirming its role as intermed iary between its members and the investigating 
authority. 
7.462  However, to the extent that 33 of the 67 companies that did not receive the "sampling 
questionnaire" were not members of any of the associations represented by the FHL, we find that the 
EC did not provide these companies with the releva nt notices required under paragraph 1 of Annex II.  
Because these companies were unknown to the inves tigating authority (and not members of the FHL 
or NSL), they could not have received the releva nt notices under paragraph 1 of Annex II.  We see 
nothing in the facts that have been presented before  us to suggest that the FHL had indicated that it 
would act as a channel of communication between th e investigating authority and companies that 
were not part of the membership of  the relevant industry Associations at the time that the "sampling 
questionnaire" was being distributed.   Thus, to the extent that the investigating authority applied 
"facts available" for the purpose of establishing the margin of dumping of the 33 companies that did 
not receive a "sampling questionnaire" and which were not members of the FHL or the NSL, we find that it acted inconsistently with paragraph 1 of  Annex II and therefore also Article 6.8 of the 
AD Agreement.  
                                                     
 
633 That technical problems prevented the FHL from contacting some of its members was confirmed at 
the meeting of 2 June 2005, where Mr Paulsen revealed  that "[s]ome of the comp anies experienced problems 
with internet connections or  correct e-mail address and they, conseq uently, did not receive the sampling form 
from the FHL". Exhibit NOR-153, para. 13. 
634 We note that Norway argues th at in the absence of powers of  attorney from each of the 67 
companies at issue, the investig ating authority was required to c ontact and communicate with each on 
individually.  Norway, Answers to Panel Questions 135 and 136.  WT/DS337/R 
 Page 225 
 
 
  F. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF 
CONSTRUCTED NORMAL VALUE WITH THE AD A GREEMENT  
1. Alleged Inconsistency of the EC's Treatment of Non-Recurring Costs with Articles 2.1, 
2.2 and 2.2.1.1 of the AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.463  Norway claims that the investigating authority acted inconsistently with Articles 2.1, 2.2 and 
2.2.1.1 of the AD Agreement when it included a num ber of non-recurring costs ("NRCs") in the cost 
of production it calculated for three investigated  companies, [[XXX]], [[XXX]] and [[XXX]].  
Norway argues that costs of production are the expenses that a producer incurs to pay for the 
economic resources used to produce the like product sold during the period of investigation.  
According to Norway, in identifying costs of production for the purpose of constructing normal value, investigating authorities must, pursuant to the fi rst sentence of Article 2.2.1.1, demonstrate a 
relationship between each element of cost and produc tion of the like product.  In Norway's view, the 
last sentence of Article 2.2.1.1 indicates that such  a relationship may be fo und to exist between NRCs 
and production during the period of investigation onl y when NRCs "benefit future and/or current 
production".   
7.464  Norway describes NRCs as costs that are not incu rred on a repeated or regular basis, which do 
not necessarily affect production and sale of a good .  Thus, Norway considers that NRCs do not all 
involve outlays that pay for resources used in current  or future production, and should therefore not all 
be included in the cost of production.  For instan ce, Norway submits that costs arising from the 
elimination of formerly productive resources through  plant closures, severance payments and losses 
from impairment of assets, have no link with production activities and should therefore not be 
included in a producer's costs of production.  Moreover, according to Norway, investigating 
authorities are not entitled to allocate the entire amount of NRCs incurred during the period of investigation, but must instead appropriately allocat e a portion of such costs to the extent that they 
"benefit" production of the like product during the period of investigation or thereafter. 
7.465  In respect of [[XXX]], Norway asserts that the upward adjustment for NRCs made by the 
investigating authority amounted to [[XXX]] of its co st of production for the period of investigation.  
According to Norway, this adjustment was compri sed of one-third of the sum of certain NRCs 
incurred by [[XXX]] in the years 2002, 2003 and 2004.  In total, the investigating authority added NOK [[XXX]] million to [[XXX]] cost of production, which was made up of adjustments for: (i) the 
write-down in the value of biomass due to deform ity reported in [[XXX]] 2003 audited accounts; (ii) 
the write-down in the value of several production f acilities including the [[XXX]] in 2003; and (iii) 24 
"other items", including the "write down of assets on the closure of production facilities and various 
consequential costs, such as severance pay".
635  Norway asserts that the investigating authority failed 
to provide an adequate explanation for why it tr eated all of these NRCs as costs of production, and 
argues that, in any case, none of them benefited pr oduction and sale of salmon during the period of 
investigation or thereafter, and therefore, pursuant to  Article 2.2.1.1, should not have been included in 
[[XXX]] cost of production.  
7.466  As regards [[XXX]], Norway asserts that th e upward adjustment for NRCs made by the 
investigating authority amounted to [[XXX]] of its co st of production for the period of investigation.  
Norway submits that the investigating authority made  one single adjustment reflecting one-third of the 
amounts of losses resulting from [[XXX]] investment activities in the years 2002, 2003 and 2004.  
                                                      
635 Norway, FWS, para. 831. WT/DS337/R 
Page 226  
 
  These losses comprised write-downs in the value of certain equity investments made by [[XXX]] in 
other companies, including companies that were not involved in the production and sale of salmon. 
Norway contends that [[XXX]] made detailed submissi ons to the investigating authority in respect of 
its investment losses, arguing that they should not be included in its cost of production.  Norway 
asserts that the investigating authority failed to  respond to these objections.  In any case, Norway 
argues that the losses on [[XXX]] investments related to its investment business, and had nothing to 
do with production and sale of salmon.  They should therefore not have been included in its cost of production for the period of investigation. 
7.467  To the extent that it determined the amount  of the NRC adjustments for [[XXX]] and 
[[XXX]] on the basis of a three-year average cove ring 2002 to 2004, Norway also claims that the 
investigating authority acted inconsistently with Article 2.2.1.1 and, con sequently, Articles 2.1 and 
2.2 of the AD Agreement.  In particular, Norway ar gues that the three-year averaging approach fails 
to comply with Article 2.2.1.1 because it is not  based on any rational link between the apportionment 
of costs and the production activities benefiting from t hose costs.  In this regard, Norway contends 
that there is no rational relationship between the salmon growth cycle and the period during which a 
particular NRC will contribute to salmon production.  Thus, for instance, according to Norway, a one-
off severance payment to terminate employment has no relationship to the life of a salmon; nor is the 
salmon growth cycle relevant to either the annua l revaluation of biomass or to operating losses 
incurred at a production plant in a given year. 
7.468  Finally, in respect of [[XXX]], Norway challe nges the investigating aut hority's adjustment for 
the write-down in the value of four smolt producti on facilities that were closed in December 2003.  
Norway submits that this adjust ment resulted in increasing [[XXX]] co st of production by [[XXX]].  
According to Norway, the smolt facilities at i ssue did not contribute to the production of salmon 
during the last three quarters of the period of investigation.  Again, Norway contends that the investigating authority's response to the submissions  made by [[XXX]] objecting to the treatment of 
these NRCs as costs of production was inadequate and did not explain why they could be used in the 
calculation of cost of production of salmon for the period of investigation.  Norway notes that as 
opposed to the approaches used to  calculate the NRC adjustments for [[XXX]] and [[XXX]], the 
investigating authority did not average the write- down value at issue over a three year period.  
Instead, it took the entire amount of this cost incu rred in 2003 and added it to [[XXX]] cost of 
production.  Norway contends that this inconsiste ncy further invalidates the application of the three-
year average methodology that was applied to [[XXX]] and [[XXX]]. 
7.469  Thus, for all of the above reasons, Norway cl aims that the EC's tr eatment of the NRCs 
reported by [[XXX]], [[XXX]] and [[XXX]] resulted  in a determination of normal values that was 
inconsistent with Articles 2.1, 2.2 and 2.2.1.1 of the AD Agreement. 
(ii) European Communities 
7.470  The EC rejects Norway's claim that the investigating authority was not entitled to include all 
of the relevant NRCs of [[XXX]], [[XXX]] and [[ XXX]] in their respective costs of production.  
According to the EC, the investigating authority's ac tions were in full compliance with Article 2.2.1.1 
of the AD Agreement, and consequently, Articles 2.1 and 2.2.   
7.471  The EC dismisses Norway's view that, under Artic le 2.2.1.1, NRCs can only be included in 
the cost of production when they measure resour ces expended to "benefit future and/or current 
production".  The EC submits that this notion of when  NRCs may form part of cost of production is 
too narrow to meet the requirement in Article 2.2.1.1 that costs be "reasonably associated" with 
production of the like product.  Furthermore, the EC ar gues that the adjustments re ferred to in the last 
sentence of Article 2.2.1.1 will become necessary only when NRCs have not been allocated in the cost 
information referred to in the firs t two sentences of Article 2.2.1.1.  WT/DS337/R 
 Page 227 
 
 
  7.472  The EC contends that NRCs may be appropriately  treated as part of the cost of production 
when they arise from the inherent risks associated with the continuing operations of a salmon business 
segment.  According to the EC, a business segment is a "distinguishable component of an entity that is 
engaged in providing an individu al product or service or group of  related products and services and 
that is subject to risks and returns that ar e different from those of other business segments"636 – a 
"complete and separate business activity".  In the c ontext of salmon farming, the EC argues that a 
business segment represents "all activities that are related to growing, ha rvesting and marketing 
salmon".  Thus, the EC argues that the relevant dist inction for the purpose of applying Article 2.2.1.1 
relates to the concept of income or loss from continui ng operations.  In other words, to the extent that 
costs (including NRCs) relate to the inherent ri sks associated with the continuing operations of a 
business segment, they may be taken into account for the purpose of establishing the relevant cost of 
production.  It is only extraordinary costs, which are by definition not related to the risks inherent in continuing operations, that should not be included in cost of production.   
7.473  The EC asserts that in conformity with Article  2, the investigating authority followed this 
theory of cost of production and sought to dete rmine the full cost of production for each of the 
investigated parties, taking into account all cost items related to the product concerned, wherever 
reported in the financial statements.  Thus, the EC  contends that the investigating authority was 
justified in making all of the adjustments that No rway challenges because each cost resulted from an 
inherent risk of conducting the salmon business. 
7.474  As regards [[XXX]], the EC argues that the inv estigating authority was justified in making the 
biomass deformity adjustment because such deformity  and loss of value was an inherent risk in the 
conduct of its salmon business.  According to the EC, the write-down at issue was not based on a 
changed market valuation of the product, but rather  the result of the fact that some biomass showed 
physical deficiencies.  Thus, the EC argues that th e adjustment of the value of the assets was a cost 
element of the salmon business, regardless of whether it affected the [[XXX]] cash flow position, i.e., 
regardless of whether [[XXX]] expended this sum or  that the write-down did not reflect any outlay 
incurred by [[XXX]] for resources used directly in the production of salmon.  In respect of the other 
NRCs, the EC argues that these costs all formed pa rt of the salmon business because they related to 
ongoing efforts of rationalization which would bene fit the salmon business by bringing efficiency 
gains in future years. 
7.475  The EC explains that the investigating author ity examined the salmon business of [[XXX]] as 
a business segment, and thereby treated all costs associ ated with this business segment, whether or not 
directly related to business transactions or financial participations, as NRCs that were integral to the 
salmon business.  As regards [[XXX]] investments in  companies that Norway alleges were not salmon 
related, the EC asserts that it could not accept su ch a claim because it was never substantiated.  
7.476  The EC argues that the adjustment made to [[XXX ]] cost of production reflected the evidence 
that was available to the investigating authority duri ng the investigation.  First, the EC notes that the 
trial balance for the period of investigation presente d by [[XXX]] at the on-site verification showed an 
amount of NOK [[XXX]] as a depreciation cost.  A ccording to the EC, this information did not 
identify any write-down for the closure of smolt produc tion facilities.  Furthermore, the EC notes that 
a write-down would not normally be reported under re gular depreciations of a company.  In any case, 
according to the EC, the information that part of th e regular depreciations in fact referred to write-
downs following the closure of smolt facilities was re vealed for the first time only in Norway's First 
Written Submission. 
                                                     
 
636 EC, Answer to Panel Question 28, citing International Accounting Standard 14. Segment Reporting, 
2005, para. 9, Exhibit EC-44. WT/DS337/R 
Page 228  
 
  7.477  Finally, the EC contends that the investig ating authority was forced into choosing an 
allocation methodology for NRCs because the Norwegian exporting producers "deliberately 
underestimated" these costs and failed to report them in their questionnaire responses.  According to 
the EC, the three-year averaging approach that was ultimately applied by the investigating authority to 
calculate the NRCs was rational because it reflected the project accounting method applied by some 
of the investigated companies.  Pursuant to pr oject accounting, all costs related to a specific 
generation of salmon are accumulated over the period from fertilisation of eggs to harvesting of adult 
salmon.  The EC asserts that this period was typically  three years.  Thus, the EC argues that the use of 
the three-year average methodology was consistent with how the investigated companies treated the 
costs of salmon production in their own accounting systems. 
(b) Arguments of the Third Parties 
(i) United States 
7.478  Without expressing an opinion on the specific fact s at issue, the United States notes that many 
of the costs Norway discusses may be captured appropr iately under the allocations referred to in the 
first sentence of Article 2.2.1.1 without the requireme nt of the last sentence th at they "benefit future 
and/or current production". 
(c) Evaluation by the Panel 
7.479  As we understand it, Norway's challenge to the investigating authority's inclusion of a portion 
of the NRCs incurred by [[XXX]], [[XXX]] and [[XXX ]] into their respective costs of production is 
based on essentially two arguments: first, that the NRCs at issue did not amount to costs of production; and, secondly, in respect of [[XXX]] a nd [[XXX]], the investigating authority was not 
entitled to allocate these costs to th eir respective costs of production through the application of a 
three-year average allocation methodology.  Below,  we address each of these arguments in turn. 
(ii) Whether the NRCs at issue were appropriately counted as costs of production 
7.480  The first basis for Norway's claim raises the question of the extent to which NRCs may be 
included in an investigated party's "cost of producti on".  Although both parties argue that only costs 
"associated with production and sale" of the like pr oduct may be included in the calculation of "cost 
of production" for the purpose of constructing norma l value, they present two fundamentally different 
views on the extent to which NRCs may be included in this calculation.  According to Norway, the 
last sentence of Article 2.2.1.1 specifies that "s olely those NRC that benefit current or future 
production can be allocated to the costs of production".
637  In other words, Norway reads 
Article 2.2.1.1 as requiring investigating authoriti es to exclude from the calculation of cost of 
production all NRCs which do not "benefit" current a nd/or future production.  Thus, Norway contends 
that NRCs which do not "benefit" current and/or fu ture production are not costs "associated with the 
production and sale of the product under consideration".  On the other hand,  the EC is of the view that 
the last sentence of Article 2.2.1.1 does not set th e benchmark for when NRCs may be appropriately 
included in the cost of production.  The EC argues that the opening words of  the last sentence of 
Article 2.2.1.1 recognize that it is subject to the ge neral principle that only "costs associated with 
production and sale" of the like product may be used in the calculation of cost of production.  Thus, the EC contends that NRCs that do not "benefit cu rrent and/or future" produc tion may nevertheless be 
included in the cost of production "if there are proper grounds to do so".
638 
                                                      
637 Norway, First Oral Statement, para. 205. 
638 EC, FWS, para. 621.  WT/DS337/R 
 Page 229 
 
 
  7.481  We start our examination of Norway's claim by considering the meaning of the term "cost of 
production".  The expression "cost of production" first appears in the AD Agreement in Article 2.2, in 
the description of what is commonly known as cons tructed normal value.  This provision does not 
explain what amounts to a "cost of production"; a nd no explicit description of "cost of production" 
can be found elsewhere in the AD Agreement.  The di ctionary definitions of the word "cost" include 
"[w]hat must be given in order to acquire, produce, or effect something; the price (to be) paid for a 
thing."639  The word "production" may be understood to mean "[t]he action or an act of producing, 
making, or causing something; the fact or condition of being produced".640  Thus, the ordinary 
meaning of the expression "cost of pr oduction" may be considered to be the price to be paid for the 
act of producing. 
7.482  The calculation of costs of production for the purpose of determining whether below-cost 
sales made on the domestic market may be treated as  not being made in the ordinary course of trade 
and for calculating constructed normal value is addres sed in Article 2.2.1.1.  This provision reads: 
"For the purpose of paragraph 2, costs sh all normally be calculated on the basis of 
records kept by the exporter or producer  under investigation, provided that such 
records are in accordance with the gene rally accepted accounting principles of the 
exporting country and reasonably reflect the costs associated with the production and 
sale of the product under consideration.  Authorities shall consider all available 
evidence on the proper allocation of costs, in cluding that which is made available by 
the exporter or producer in the course of  the investigation provided that such 
allocations have been historically utilized by the exporter or  producer, in particular in 
relation to establishing appropriate amor tization and depreciation periods and  
allowances for capital expenditures and othe r development costs.  Unless already 
reflected in the cost allocations under this  sub-paragraph, costs shall be adjusted 
appropriately for those non-recurring items of cost which benefit future and/or current 
production, or for circumstances in which co sts during the period of investigation are 
affected by start-up operations.6 
 
6 The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if 
that period extends beyond the period of investigatio n, the most recent cost s which can reasonably be 
taken into account by the authorities during the investigation. " 
7.483  The first sentence of Article 2.2.1.1 establishes that the data sources to be privileged when 
calculating an investigated party's cost of productio n shall "normally" be the records kept by that 
party, provided that such records: (i) are cons istent with GAAP of the exporting country; and 
(ii) reasonably reflect the costs associated with the production and sale of the product under 
consideration.  When the records kept by an i nvestigated party evidence these characteristics, an 
investigating authority will "normally" be required to use them in the calculation of cost of production.  In our view, the fact that GAAP-cons istent records, which reasonably reflect costs 
"associated with the production and sale" of the lik e product, must "normally" be used to calculate 
cost of production, implies that the test for determ ining whether a cost can be  used in the calculation 
of "cost of production" is whether it is "associated with the production and sale" of the like product.  
We understand that the Panel in Egypt – Steel Rebar came to a similar conclusion.
641  
                                                      
639 New Shorter Oxford English Dictionary, Clarendon Press, 1993.  
640 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
641 Panel Report, Egypt – Definitive Anti-Dumping Measur es on Steel Rebar from Turkey ("Egypt –
Steel Rebar "), WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667, paras. 7.393 and 7.422. WT/DS337/R 
Page 230  
 
  7.484  The second sentence of Article 2.2.1.1 addresses th e evidence that an investigating authority 
must consider for the purpose of the allocation of costs .  To this extent, Article 2.2.1.1 presupposes 
that it may be necessary for an investigating author ity to allocate costs in order to properly establish 
cost of production.  No particular method of allocation is prescribed.  However, investigating 
authorities are required to consider "all availa ble evidence" on "proper allocation" methods, 
"including that which is made available by the exporter or producer in the course of the investigation 
provided that such allocations have been historically  utilized".  In this regard, investigating authorities 
are called upon to pay "particular" attention to  the allocation of "capital expenditures and ... 
development costs".   
7.485  Both "capital expenditures and ... development co sts" often involve large sums of money and 
can be of a short-term and non-recurring nature.  A typical example of "capital expenditure" is a one-
off purchase of plant and equipment assets intended fo r production activities.  Similarly, one type of 
"development cost" is the expense related to the development of new technology for the purpose of 
launching a new product line in the future.  The second sentence of Article 2.2.1.1 envisages that it 
may be necessary to establish "appropriate amortizat ion and depreciation periods and allowances" for 
these costs.  Typically, amortization and deprecia tion for "capital expenditures and ... development 
costs" involves the deduction of the cost incurre d in acquiring capital or developing a new product 
over a specific period of time.  Where the expendi ture relates to the acquisition of an asset, the 
appropriate depreciation period will typically be the life of the asset, which may extend beyond the 
period of investigation.  Thus, although the full  amount of certain "capital expenditures and ... 
development costs" may be associated with produc tion and sale of the like product over the life of the 
relevant productive assets, the second sentence of Article 2.2.1.1 recognizes that it would be 
inappropriate to include the full amount of such cost s in an investigated party's cost of production.  
Instead, as we read it, Article 2.2.1.1 calls for an  appropriate allocation of those costs so as to 
determine the extent to which they should be attr ibuted to production and sale of the like product 
during the period of investigation . 
7.486  We note that "capital expenditures and ... devel opment costs" are not the only costs that may 
need to be appropriately allocated to productio n and sale of the like product in the period of 
investigation.  In our view, it is clear that Article 2.2.1.1 applies in respect of any cost, including other 
NRCs, which it would be inappropria te to allocate in full to production and sale of the like product 
during the period of investigation.  Moreover, allo cation of costs may be n ecessary not only to spread 
costs over time, but also to ensure that costs incu rred during the period of investigation are distributed 
between different products.  Thus, costs may need to be allocated between the production and sale of 
the like product and a different product that is also pr oduced and sold in the period of investigation.   
7.487  We next turn to the last sentence of Article 2.2. 1.1.  This sentence esta blishes an obligation on 
investigating authorities to make appropriate adju stments to cost of production for "non-recurring 
items of cost which benefit future and/or current  production" or for "circumstances in which costs 
during the period of investigation are affected by st art-up operations", when not "already reflected in 
the cost allocations" that are contemplated under the second sentence.  The first point to note about 
the last sentence is that it establishes a conditional  obligation to make appropriate adjustments to cost 
of production for two types  of cost: NRCs "which benefit future  and/or current production"; and start-
up costs.  Furthermore, it is clear from the introducto ry clause of the last sente nce that this obligation 
will come into play only when appropriate allocatio ns for NRCs "which benefit future and/or current 
production" or start-up costs have not already been made pursuant to the second sentence of 
Article 2.2.1.1.  Thus, we do not understand the last sentence of Article 2.2.1.1 to define the 
circumstances when NRCs (or start-up costs) may be properly "associated with production and sale" 
of the like product in the period of investigation.  As far as NRCs are concerned, the last sentence of 
Article 2.2.1.1 merely recalls that NRCs "which be nefit future and/or current production" must be 
properly accounted for either through the cost allocations envisaged under the second sentence of 
Article 2.2.1.1, or an appropriate adjustment.  We  are therefore not convinced by Norway's argument  WT/DS337/R 
 Page 231 
 
 
  that Article 2.2.1.1 specifies that "solely those N RC that benefit current or future production can be 
allocated to the costs of production".642  In our view, Norway's interpretation misrepresents the 
obligation that is set out in the last sentence of Article 2.2.1.1. 
7.488  We recall that Norway claims that the EC acted  inconsistently with Article 2.2.1.1, and as a 
consequence, Articles 2.1 and 2.2 of the AD Agreemen t, because it alleges that the NRCs included by 
the investigating authority in the cost of produc tion calculated for three investigated companies, 
[[XXX]], [[XXX]] and [[XXX]], did not involve outlays that pay for resources which benefit current 
and/or future production.  However,  we have found that the standard  for determining whether or not 
NRCs may be properly counted as part of cost of pr oduction is whether they are "associated with the 
production and sale" of the like product during the pe riod of investigation.  Although the extent to 
which a NRC may benefit  future and/or current production may be indicative of whether or not it is 
associated  with production and sale of the like product in the period of investigation, we do not 
understand from the language of Article 2.2.1.1 that it should be considered to be determinative of this 
fact.  Indeed, because the notion of costs "associat ed" with production is broader than costs that 
"benefit" production, it does not necessarily follo w that costs which do not "benefit" production 
cannot be "associated" with production.643  In any case, as we have al ready noted, the obligation 
established under the last sentence of Article 2.2.1. 1 does not define when NRCs may be included in 
cost of production, but merely recalls that wher e no cost allocation has been made for NRCs which 
benefit future and/or current production, invest igating authorities must make an appropriate 
adjustment.  Thus, to the extent that Norway's clai m against the investigating authority's treatment of 
the NRCs of [[XXX]], [[XXX]] and [[XXX]] is ba sed on the contention that Article 2.2.1.1 requires 
that NRCs may only be included in the cost of production when  they benefit future and/or current 
production,644 we find that it is based on an incorrect interp retation of Article 2.2.1.1, and we therefore 
dismiss it.   Norway's claims under Articles 2.1 a nd 2.2 of the AD Agreement are either consequential 
to its claim under Article 2.2.1.1 or dependent on th e same reasoning used to support that claim.  
Accordingly, we find that they also cannot be substantiated. 
(iii) Whether the investigating authority was entitled to calculate the NRC adjustments for 
[[XXX]] and [[XXX]] on the basis of a three-year average 
7.489  The second ground for Norway's challenge to the investigating authority's inclusion of the 
NRCs of [[XXX]] and [[XXX]] in their respective costs of production is focused on the three-year 
average cost allocation methodology used to calculate the relevant  adjustments.  According to 
Norway, the cost allocations contemplated under Ar ticle 2.2.1.1 involve apportioning a given cost 
over time in accordance with the relationship be tween the cost at issue and production activities 
benefiting from those costs.  In Norway's view, an allocation methodology must therefore establish a 
link between the cost at issue and production in sp ecific years, something which it alleges the three-
year average NRC allocation methodology applied by the investigating authority did not do.  On the other hand, the EC argues that the three-year aver age cost allocations made by the investigating 
authority were consistent with Article 2.2.1.1 b ecause they reflected the project accounting approach 
used by the investigated companies to collect and report their costs of production.  The EC alleges 
that this accounting methodology involved accumulating costs associated with a specific generation of 
salmon over a period of three years.  The EC argu es that three years was the average amount of time 
needed to farm a salmon from a fertilized egg.  As  such, it was perfectly rational for the investigating 
authority to allocate NRCs on the basis of a three-year average. 
                                                     
 
642 Norway, First Oral Statement, para. 205. 
643 For instance, it could be argued  that an expense that adversely effects production during the period 
of investigation does not "benefit" that production.  Ho wever, such an expense might still be "associated" with 
the same production. 
644 See, e.g., Norway, FWS, paras. 803, 809-813;  Norway, First Oral Statement, para. 205; Norway, 
Answer to Panel Question 62. WT/DS337/R 
Page 232  
 
  7.490  As we have already noted, although it envisages that cost allocations may be necessary in 
establishing cost of production, the second sentence of Article 2.2.1.1 does not prescribe the use of any particular cost allocation methodology.  Howe ver, in settling on a particular approach, an 
investigating authority must consider "all availabl e evidence" on "proper allocation", "including that 
which is made available by the exporter or producer in the course of the investigation provided that 
such allocations have been historically utilized".  We do not understand Norway to be arguing that the 
investigating authority acted inconsistently with Article 2.2.1.1 because it failed to consider "all 
available evidence" on "proper allocation".  Instead , as we understand it, Norway's claim is based on 
the allegation that in allocating an amount of N RC corresponding to the three-year average of the 
NRCs incurred by [[XXX]] and [[XXX]] from 2002 to 2004, the investigating authority included 
costs which were not "associated with the production and sale" of the like product during the period of 
investigation in the companies' re spective costs of production.  Norway submits that there are various 
reasons for this, including the alleged lack of fact ual support for the main justifications advanced by 
the EC for the investigating authority's actions, na mely, the view that the investigated companies 
reported their costs on the basis of project accoun ting, and the contention that the salmon production 
cycle lasts on average three years. 
7.491  We agree with Norway that any allocation of cost performed for the purpose of establishing 
cost of production must not result in the inclusi on of costs not "associated with the production and 
sale" of the like product during the period of investiga tion.  In this respect, we believe the EC to be of 
the same view.  Thus, the question that is before us  is whether the three-year average cost allocation 
methodology applied by the investigating authorit y resulted in the allocation of more than the 
appropriate amount of NRCs "associated with th e production and sale" of the like product during the 
period of investigation.  We begi n our consideration of this question by briefly summarising the facts 
surrounding the NRC adjustments applied to [[XXX]] and [[XXX]]. 
 Facts 
7.492  In the Definitive Regulation, the investiga ting authority explained that a number of 
investigated parties had taken issue with the incl usion of the full amounts of certain "extraordinary 
expenses applicable to the product concerned" in their respective costs of production in the 
provisional findings.  These expenses related to "a number of company-specific costs, but typically 
included write-downs of tangible assets, closure of farming facilities, slaughtering and processing plants, and severance payments to employees".
645  One of the grounds upon which the investigating 
authority's actions were challenged was that the ex traordinary costs – or NRCs – had allegedly not 
been appropriately allocated "over the true period of ti me to which they relate, e.g., the useful life of a 
processing plant when the extraordinar y expense relates to such an asset".646  In responding to this 
complaint, the investigating authority stated the following: 
"It is, however, true that allocation of th e costs over a period of time would remove 
any undue effect caused by the timing of the decisions of the companies to report 
these costs.  Ideally, all extraordinary cost s reported for each separate asset should be 
allocated over the useful life of that asset to arrive at an average annual cost.  
However, it is to be noted that none of  the companies concerned carried out this 
exercise.  Instead, the Commission has deci ded to take the extraordinary costs 
reported by companies in the sample during the last three years, based on the most 
recently available financial statements, a nd to allocate one third of these costs to 
salmon production in the IP, on the basis of turnover.  Three years was considered an 
                                                      
645 Definitive Regulation, Recital 15. 
646 Definitive Regulation, Recital 15.  WT/DS337/R 
 Page 233 
 
 
  appropriate time period as this is the aver age length of time that it takes to grow a 
salmon from a smolt to a harvestable salmon."647 
7.493  Similar comments were made in the investigati ng authority's explanation of its treatment of 
NRCs in the Definitive Disclosures made to [[XXX]]; 
"In line with the 3 year salmon generation approach, the Commission has decided that 
non-recurring costs should be assembled over a 3 years period and depreciated over 
the same period. 
For [[XXX]], non-recurring costs were based on the financial accounts 2002, 2003 
and 2004: ... 
Depreciation over 3 years of [[XXX]] million NOK leads to an adjustment of 
[[XXX]] NOK per kg WFE." 648 
and to [[XXX]]: 
 
"As concerns your comments on the alloca tion of recurring extraordinary cost the 
Commission services take note of your comments concerning the extraordinary costs 
not being recurring costs. 
Therefore, the methodology of the calculati on of these costs has been revisited.  A 
three year average of this cost has been app lied instead of the annual cost in order to 
find a reasonable basis to take into account of this cost and in order to distribute any non-recurring cost included in this item over a reasonable period of time.  The 
resulting average of the reported extraord inary cost over the years 2002, 2003 and 
2004 was [[XXX]] NOK."
649 
7.494  We recall that at the centre of the EC's justifi cation for the investigating authority's allocation 
of the NRCs through the application of a three-y ear average is the assertion that "companies using 
project accounting based on salmon generations collect  their cost information themselves over such an 
average period".650  We note that this apparent justification cannot be found in the explanations of the 
methodology applied by the investigating authority that  are set out in the Definitive Regulation or the 
Definitive Disclosures to [[XXX]] and [[XXX]].  The only rationale given in the Definitive Regulation and the Definitive Disclosures for alloca ting NRCs on the basis of a three-year average 
was that it reflected what the investigating authorit y considered to be the average length of time to 
grow a salmon from a smolt to a harvestable salmon or the average length of time to grow a salmon generation.   
 [[XXX]] 
 
7.495  The EC argues that the reason why the inv estigating authority calculated [[XXX]] NRC 
adjustment on the basis of a three-year averag e was because [[XXX]] reported its costs of production 
on the basis of project accounting.  Norway contes ts this view, and argues that in fact [[XXX]] 
reported its cost of production in relation to costs in curred solely during the period of investigation.   
                                                     
 
647 Definitive Regulation, Recital 18. 
648 Definitive Disclosure to [[XXX]],  28 October 2005, Exhibit NOR-28. 
649 Definitive Disclosure to [[XXX]],  28 October 2005, Exhibit NOR-69. 
650 EC, FWS, para. 692. WT/DS337/R 
Page 234  
 
  7.496  The EC initially asserted that [[XXX]], like other companies, was "invited" to "use weighted 
average cost of production for all salmon generations  that were harvested during the investigation 
period".
651  However, when asked by the Panel to substan tiate its assertion, the EC noted that although 
the questionnaire did not explicitly require companies to report costs in this manner, "during the preparation of the questionnaire reply, companies [were] invited to contact case handlers ... for any 
further enquiries".
652  The EC argues that [[XXX]] "actively sought such contact and agreed on 
following the same approach that was follo wed during the safeguard investigation".653   
7.497  That [[XXX]] made contact with the investiga ting authority to discuss how to report cost of 
production as it was preparing its reply to the questi onnaire is confirmed in the comments made to the 
investigating authority's disclosure of provi sional findings.  These comments recalled that: 
"The Commission performed safeguard inves tigations (a mini investigation) in 
August to October 2004, and Fjord Seafood Norw ay was subject to this investigation.  
It was formally not part of AD 487, but th e investigations were focusing on a similar 
calculation of Cost of Production as in AD 487, and the inspectors later confirmed that the two investigations (the safeguard investigation and the AD 487) were 
"closely linked". ... 
During December 2004 the inspectors confirmed that they wanted [[XXX]] to apply 
the same methodology as applied in the calculation of COP under the safeguard investigations, and a number of practical qu estions on how to calculate the COP, how 
to present the calculation, what to specify, what legal entities to include etc were agreed on with the inspectors, and c onfirmed in writing from the inspectors."
654  
7.498  The EC argues that the methodology that was "agreed" between [[XXX]] and the 
investigating authority was apparent from a docum ent "presented by [[XXX]] during the verification 
for that investigation in October 2004..., in which it proposed that: four salmon generations should be 
selected as representative and that costs should be reported for these generations".655  This particular 
document was submitted by the EC as Exhibit EC-6 8, which it named "[[XXX]] cost of production 
submission in Safeguard investigation" .  We have reviewed this particular exhibit.  It presents a series 
of data relating to cost of production in table form .  Part of this data relates to "rearing costs" 
presented by four "Projects".  The document is  titled "ODY Prod.cost.[[X XX]].xls – Cost of 
production", and is dated 3 January 2005.  The word s "Safeguard investigation" cannot be found in 
this document.  Thus, it is not immediately appare nt that the document was generated for the purpose 
of the safeguards investigation.  Indeed, the date  on the document suggests that it was prepared and 
presented by [[XXX]] during the verification visit conducted in the anti-dumping investigation.  In 
any case, even if the same document had been presented in both the anti-dumping and safeguard 
investigations, in the absence of any narrative, the information that it discloses does not, on its own, 
confirm that it was intended to illustrate the acc ounting methodology that [[XXX]] applied in the anti-
dumping proceeding. 
7.499  The EC also argues that certain statements made by [[XXX]] elsewhere in its comments on 
the investigating authority's provisional findings support the view that [[XXX]] reported costs of production on the basis of project accounting.  Th e full extracts of the re levant passages of [[XXX]] 
comments read as follows: 
                                                     
 
651 EC, Answer to Panel Question 12. 
652 EC, Answer to Panel Question 113. 
653 EC, Answer to Panel Question 113. 
654 [[XXX]], Response to Provisional Findings, 27 May 2005, Exhibit NOR-110. 
655 EC, Answer to Panel Question 112.  WT/DS337/R 
 Page 235 
 
 
  "It was agreed that the [cost of producti on] calculation should be based on the project 
accounting system, where a substantial level of  detail is available per site/production 
entity and where a "full cost calculation" is made on all biomass (including salmon) during production and up to the closing of the site after the sale of the fish.  It was agreed on a "pragmatic" approach on the cal culation of the harvesting costs including 
using the harvesting cost for a period devia ting from the investigation period (IP), as 
a representative "per kg cost" of harvest for the IP.  A similar pragmatic calculation was made for SGA costs.  The extracts made from the project accounting system were made for the investigation period directly as this was found useful for the COP calculation, and this extract therefore re trieve data from two different accounting 
years.  It was verified that the project  accounting was the basis for the formal 
statutory accounts, which Fjord Seafood of course confirmed. 
When using the project accounting system for calculation of COP the issue of 
including finance costs is directly solved , as the project accounting generate finance 
costs on each production facility, the part of finance cost not allocated in the project 
accounting will be finance costs related to ot her assets, closed/sold plants, funding of 
historical losses etc, which are not part of the project accounting system, and should not be part of the "running production". Restructuring costs are not part of the project accounting system, and should not be part of the cost of production."
 656 
7.500  We do not understand the above statements to de monstrate that [[XXX]] reported its costs of 
production for the period of investigation on the basi s of project accounting, that is, the "weighted 
average cost of production for all salmon generations  that were harvested during the investigation 
period".  Although it is clear that [[XXX]] agreed to report cost of production "based on the project 
accounting system", the way that it did so was by using "extracts made from the project accounting 
system" "for the investigation period" "from two different accounting years".  It does not necessarily follow that [[XXX]] reported the costs of salm on generations harversted during the period of 
investigation, reflecting the costs of salmon genera tions accumulated over three years, as would be the 
case under project accounting.  In other words, the fact  that [[XXX]] kept its financial accounts on the 
basis of project accounting does not necessarily mean  that it also reported costs of production on the 
same basis. 
7.501  The principles used by [[XXX]] to report its cost of production were explained in a 
presentation submitted to the investigating authorit y during the on-site investigation.  This 
presentation was submitted by Norway as Exhibit NOR-184.
657  Although initially stating that the 
investigating authority had not recei ved page five of this presentation,658 the EC subsequently 
confirmed that the entire presentation including page  5 was before the inves tigating auth ority during 
the proceeding.659  Having reviewed the contents of this exhi bit, we believe that it supports the view 
that [[XXX]] did not report cost of production on  the basis of project accounting, that is, the 
"weighted average cost of production for all salmo n generations that were harvested during the 
investigation period".  At page four of the presen tation, the calculation of the cost of production is 
explained as follows: 
"For calculation of cost of production th e following is done: (Volume = Production in 
period) 
+ Stock per 30.09.04 
                                                      
656 [[XXX]], Response to Provisional Findings, 27 May 2005, Exhibit NOR-110. 
657 Norway initially submitted page 5 of this presentation as Exhibit NOR-156. 
658 EC, Answer to Panel Question 31; EC, SWS, para . 229; EC, Second Oral Statement, para. 100. 
659 EC, Answer to Panel Question 112. WT/DS337/R 
Page 236  
 
  + Harvested per 30.09.04 
– Stock per 01.10.03 – Harvested before 01.10.03
 
= Produced volume, live weight 
Project cost: Sum all cost that is booked on salmon projects in period. 
From this we get total cost of produc tion: Project cost / Production in period" 
This calculation was explained diagrammatically on page five of presentation.  We have reproduced 
this diagram below:  
Cost of production – principle seawater 
A: Total farming cost:  
   
 
     
 
    
 
     
 
    
 
    7.502  As we understand the contents of the above pa ges from [[XXX]] presentation, this company's 
cost of production for the period of investiga tion was established on a per kilogram basis by 
calculating total cost booked in the period of investigation  and dividing this by the total 
volume/weight of production in that same period .  The total cost was established on the basis of the 
[[XXX]] salmon projects that were ongoing during th e period of investigation.  We recall that 
[[XXX]] expressly stated in its comments on the inve stigating authority's provi sional findings that the 
cost extracts from its project accounting system used  to calculate the cost of production covered two  
Harvestin g
2002G
2003G
2004GGrowth in seawate r Smolt 
Growth in seawate r Harvestin g Smol t
Growth in seawate r Harvestin g Smolt
Growth in seawate r SmoltGrowth in seawate r Harvestin g Smolt
Growth in seawate r Smolt O N D    J F M A M J J A S O N D  J  F M A M J J A S O N D  J F M A M J J A S O N D   J F M A M2002 2003 2004
Principle for tracking cost of production  
 
All cost for all active project in per iod (own specification) as nominator. 
       2002 generation –  [[XXX]] pr ojects, [[XXX]] salmon, [[XXX]] broodstock, 
[[XXX]] trout 
       2003 generation –  [[XXX]] pr ojects, [[XXX]] salmon, [[XXX]] broodstock 
       2004 generation –  [[XXX]] projects, [[XXX]] salmon 
       [[XXX]]   Unclosed 2000/2001 projects ( for balancing total ) 
All production in period (salmon ) as denominator.Investigation Period
   WT/DS337/R 
 Page 237 
 
 
  accounting years.660  It can be seen from the diagram th at these two accounting years were 2003 and 
2004.  Had [[XXX]] reported costs of production on a project accounting basis, the diagram shows 
that it would have reported the costs of salmo n generations harvested during the period of 
investigation, which would have reflected cumulated costs from three  accounting periods – 2002, 
2003 and 2004. 
7.503  That [[XXX]] reported its costs of production on the basis of costs incurred for all active 
salmon projects during the period of investigation , and not project accounting, is confirmed by the 
methodology it used to derive the relevant volume of production.  In this regard, [[XXX]] simply 
identified the total volume of "stock" and harvested salmon at the end of the period of investigation 
("30.09.04") and subtracted the volume of "stock" a nd harvested salmon that existed at the beginning 
the period of investigation ("01.10.03").  Had [[XXX]] reported costs derived from project 
accounting, it would have been necessary to identify the volume of production corresponding to each of the salmon generations harvested during the period of investigation.  However, this is not how the 
volume of production was determined.   
7.504  Thus, for all of the above reasons, we are not convinced by the EC's assertion that [[XXX]] 
reported costs of production on the basis of project a ccounting.  Our assessment of the facts that were 
before the investigating authority that the partie s have submitted for our review indicates that 
[[XXX]] did not report the "weighted average cost of  production for all salmon generations that were 
harvested during the investigation period".  Instead , the evidence that has been presented before us 
indicates that [[XXX]] reported costs of production on  the basis of costs incurred during the period of 
investigation in respect of active salmon projects,  divided by the total volume of "stock" and 
harvested salmon during the period of investigation.  Accordingly, we find that the factual 
underpinning of the EC's justification of the i nvestigating authority's treatment of [[XXX]] NRCs 
cannot be substantiated.   
7.505  In any case, we consider that even if [[XXX]]  had reported its costs on the basis of project 
accounting, this alone would not be enough to justif y the investigating authority's actions.  As it has 
been explained to us during the course of this di spute, project accounting in the Norwegian salmon 
industry involves the accumulation of costs over the period it takes for a salmon farming project to be completed.  The period of time over which such co sts may be collected will naturally depend upon the 
duration of the salmon farming project – it may start at the moment an egg is fertilized and end with 
the harvesting of adult salmon, or it may begin with juvenile salmon (smolt).  Furthermore, the 
duration of each project can be shortened or prolo nged, depending upon, for example, the temperature 
of the water.  Thus, the duration of salmon farming projects is variable.  Nevertheless, according to 
the EC, on average, the period from e gg to harvested salmon is 36 months.
661  Norway contests that 
36 months is the average period for farming salmon from the stage of a fertilized egg.662 
7.506  Irrespective of whether 36 months is the correct average length of time that it takes to farm 
salmon, the investigating authority's reliance on this  period of time to determine the NRC adjustment 
for [[XXX]] implies that it considered that the full amount of the relevant NRCs incurred between 
2002 and 2004 could be properly a llocated to, and therefore "associ ated" with, production and sale of 
the like production over the same three year period.  However, in our view, even if the correct average 
length of time to farm salmon were three years, it does not automatically follow that it would be 
appropriate to allocate all NRCs incurred during th is period to salmon farming activities taking place 
over the same three year period.  This is because the use of project accounting does not mean that all 
NRCs incurred during the course of a salmon genera tion relate exclusively to the farming activities 
                                                      
660 See, paras. 7.499-7.500. 
661 EC, Answers to Panel Questions 31 and 119. 
662 Norway, FWS, para. 956;  Norway, Comments on the EC's Answer to Panel Question 119. WT/DS337/R 
Page 238  
 
  that are undertaken in that period in respect of the same salmon generation.  In this regard, we agree 
with Norway that the logic behind such an a pproach could lead to unreasonable results.   
7.507  Although Article 2.2.1.1 does not prescribe any particular methodology for allocating NRCs 
to cost of production, the allocation method applied by an investigating authority must not result in 
the calculation of a cost of production that includes costs not "associated" with production and sale of 
the like product in the period of investigation.
663  It follows that in order to comply with 
Article 2.2.1.1, the allocation methodology that is applied must reflect the relationship that exists 
between the costs being allocated and the production  activities to which they are "associated".  For 
instance, companies will typically account for N RCs incurred in the acquisition of fixed assets by 
depreciating them over the productive life of thos e assets because of their use and relevance to 
production activities over this entire period.  Moreove r, in each case, the appropriate period of time 
may vary depending, inter alia , upon the particular type of asset being depreciated. 
7.508  The NRC allocation made by the investigati ng authority to [[XXX]] cost of production 
included many different types of NRCs.  These incl uded (i) the write-down in the value of biomass 
due to deformity reported in [[ XXX]] 2003 audited accounts; (ii) the write-down in the value of 
several production facilities including the [[XXX]] in  2003; and (iii) 24 "other items", including the 
"write down of assets on the closure of production fac ilities and various consequential costs, such as 
severance pay", reported in 2002 and 2003.  We can find no statement in the investigating authority's 
findings to explain why the full amounts of all of  these varying NRCs, either individually or 
collectively, should have been allocated over the life of one salmon generation, and in particular, over 
[[XXX]] operations between 2002 and 2004.  In this regard, we recall that the Definitive Regulation 
reveals that the investigating authority recognized  that its approach was not the best solution: 
"Ideally, all extraordinary costs reported fo r each separate asset should be allocated 
over the useful life of that asset to arrive at  an average annual cost.  However, it is to 
be noted that none of the companies concerned carried out this exercise."664 
7.509  Thus, the "ideal" solution envisaged by the inv estigating authority was to allocate the NRCs 
"reported for each separate asset ... over the useful life of that asset".  Because of the investigated 
parties' alleged failure to carry out such an alloca tion exercise, the investigating authority decided to 
apply another methodology.  However, [[XXX]] di d provide the investigating authority with 
information about the accounting principles it had ap plied for "significant accounting entries", which 
included information about usual de preciation periods for land and buildings, plant and equipment, 
fixtures and fittings, boats and farming licenses.665  It also indicated that it treated assets as fixed 
assets only when the "useful economic lifetime exceeds three years".666  The investigating authority's 
findings do not explain why this information was in appropriate and could not be used to determine 
how to allocate the relevant NRCs.  In any case,  regardless of the relevance of [[XXX]] reported 
accounting principles, we believe that it was incumben t on the investigating authority to at the very 
minimum explain why it was appropriate to allocate th e relevant NRCs over a period of time that was 
equivalent to what the investigating authority cons idered to be the average period of time to farm 
salmon.  However, we can find no such explana tion, even in general terms, anywhere in the 
investigating authority's findings.  Absent any such  explanation, the approach undertaken by the 
investigating authority fails the test that is established under Article 2.2.1.1.667 
                                                      
663 See, para. 7.491. 
664 Definitive Regulation, Recital 18. 
665 [[XXX]] Questionnaire Response, Section F-1.6, Exhibit NOR-123. 
666 [[XXX]] Questionnaire Response, Section F-1.6, Exhibit NOR-123. 
667 See, paras. 7.491and 7.507.  WT/DS337/R 
 Page 239 
 
 
  7.510  For all of the above reasons, we find that the i nvestigating authority acted inconsistently with 
Article 2.2.1.1 of the AD Agreement, when it adjusted [[XXX]] cost of production for NRCs 
calculated on the basis of a three-year average of NRCs incurred between 2002 and 2004.  In the light 
of this finding, we believe that it is not necessary, for the purpose of resolving this dispute, to decide 
whether the investigating authority's treatment of [[XXX]] NRCs was also inconsistent with 
Articles 2.1 and 2.2 of the AD Agreement.  Therefore, on the grounds of judicial economy, we make 
no findings in respect of this aspect of Norway's complaint.  
 [[XXX]] 
 
7.511  In response to a question from the Panel, the EC revealed that [[XXX]] did not in fact report 
its costs of production on the basis of project accounting.668  Rather [[XXX]] reported on the basis of 
conventional accounting for the period of investigati on only.  For the most part, the investigating 
authority used the cost informati on as it was reported by [[XXX]],669 and determined cost of 
production on the basis of information derived fro m [[XXX]] annual accounts covering the last three 
months of 2003 and the first nine months of 2004, th at is, the period of investigation.  It was only 
[[XXX]] NRCs that were derived fro m data taken from outside of the period of investigation.  These 
were based on the average of NRC amounts incu rred over the years 2002, 2003 and 2004.  Thus, the 
EC's initial justification of the investigating au thority's use of a three-year average allocation 
methodology for NRCs (i.e., that it reflected the project accounting methods used by the investigated parties) cannot explain the investigating authority's treatment of [[XXX]] NRCs. 
7.512  As we understand it, the EC justifies the inv estigating authority's conduct in respect of 
[[XXX]] by arguing that because "project accounting was the system applied to the great majority of 
exports examined" and because it considered project accounting to give "the most reliable indication 
of the financial performance of companies engaged in salmon production", the investigating authority 
was entitled to "view" data from companies applying  conventional accounting over a three year period 
"where that was appropriate".
670  However, the EC has failed to specifically explain why it was 
"appropriate" to allocate the three-year average of  [[XXX]] NRCs to its costs of production.   
7.513  The reason given by the investigating authority in [[XXX]] Definitive Disclosure for its use 
of the three-year average allocation methodology was that it was considered to be "a reasonable basis 
to take into account of this cost and in order to  distribute any non-recurring cost included in this item 
over a reasonable period of time."  Although there is no mention in [[XXX]] Definitive Disclosure 
that the three year period was used because the inv estigating authority considered it to be the average 
period of time it takes to farm salmon, we unders tand from the Definitive Regulation that the three 
year period was chosen for this reason.  This suggest s that the investigating authority chose to allocate 
[[XXX]] NRCs on the basis of a three-year average in  an effort to reflect a result that it perceived 
could be obtained for these costs through project acc ounting.  However, we note that the EC does not 
argue that [[XXX]] annual accounts were "i mplicitly ... based on the project accounting 
methodology", as it does for [[XXX]] and [[XXX]].671  Indeed, the EC explicitly recognizes that 
[[XXX]] annual accounts "did not incor porate the project accounting approach".672  T h u s ,  t h e  
investigating authority accepted that all of [[XXX]] costs, but for NRCs, could be established on the 
basis of the conventional accounting records provided by [[XXX]].  However, when it came to NRCs, 
                                                      
668 EC, Answer to Panel Question 111. 
669 EC, Answer to Panel Question 111. 
670 EC, Answer to Panel Question 111.  Norway c ontests that "project accounting was the system 
applied to the great majority of exports examined".  For the present purposes, we believe it is not necessary for 
us to come a position on whether Norway is correct.  But we note that to the extent that we have already found 
that [[XXX]] did not report its cost s on the basis of project accounting,  the EC's argument is weakened. 
671 EC, Answer to Panel Question 117(a) and (b). 
672 EC, Answer to Panel Question 117(c). WT/DS337/R 
Page 240  
 
  the investigating authority rejected what was re ported in the conventional accounts, and chose to 
pursue an allocation methodology intended to reflect project accounting.
673   
7.514  We recall that in order to comply with Article  2.2.1.1, the allocation methodology that is 
applied by an investigating authority to determine co st of production must reflect the relationship that 
exists between the costs being allocated and the pro duction activities to which they are "associated".  
In the present case, the NRCs that were averaged  and included by the inv estigating authority in 
[[XXX]] cost of production were write-downs in th e value of certain equity investments made by 
[[XXX]] in other companies, including companies that were not involved in the production and sale 
of salmon.  We can see nothing inherent in these NRCs to suggest that it would be appropriate to 
allocate them over a period of time equivalent to the average duration of a salmon farming project.  
Therefore, it is not immediately apparent to us  that the full amount of NRCs allocated by the 
investigating authority to [[XXX]] cost of prod uction was "associated" with salmon farming activities 
over a period of exactly three years.   
7.515  In explaining its findings in respect of its treatment of NRCs, the investigating authority 
stated only that "[t]hree years was considered an appropriate time period as this is the average length 
of time that it takes to grow a salmon from a smolt to a harvestable salmon."674  This statement does 
not address the extent of any relationship betw een the allocated costs and [[XXX]] production 
activities.  Notably, it provides no insight into why such costs should be allocated over the three-year 
period.  Neither has the EC, in its response to Norway's claims, specifically explained why it was 
appropriate to allocate [[XXX]] NRCs on the basis of what it alleges was the average period of time 
needed to farm salmon.  In the absence of any explanation of why it was appropriate to allocate the 
NRCs incurred by [[XXX]] in the years 2002 to 2004 over the same three years, we believe that the 
investigating authority's actions lacked an appropriate  factual basis.  The lack  of any such explanation 
is particularly telling in the present case, because,  as we have already noted, the investigating 
authority was prepared to accept all other costs used  in the calculation of [[XXX]] cost of production 
from information reported through the application of  conventional accounting methods.  It was only in 
respect of NRCs that the investigating authority considered that the data submitted by [[XXX]] on the 
basis of conventional accounting was inappropriate.  A ccordingly, we find that in choosing to allocate 
the three-year average of the NRCs incurred by [[ XXX]] in the years 2002 to 2004 to its cost of 
production for the period of investigation, the i nvestigating authority acted inconsistently with 
Article 2.2.1.1 of the AD Agreement.   
7.516  In the light of this finding, we do not believe it is necessary, for the purpose of resolving this 
dispute, to decide whether the investigating au thority's treatment of [[XXX]] NRCs was also 
inconsistent with Articles 2.1 and 2.2 of the AD Ag reement.  Therefore, on the grounds of judicial 
economy, we make no findings in respect of this aspect of Norway's complaint. 
                                                      
673 We understand this to be the case also from the EC's Answer to Panel Question 119, where it states: 
"The 36 month period was not applied to the companies that were applying project accounting.  The accounts of 
such companied already reflected the actual growing periods of the salmon harvested during the investigation period, whether these periods were more or less than or equal to 36 months".  
674 Definitive Regulation, Recital 18.  WT/DS337/R 
 Page 241 
 
 
  2. Alleged Inconsistency of the EC's Treatment of Finance Costs With Article 2.2 of the 
AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.517  Norway claims that the investigating authority acted inconsistently with Article 2.2 of the 
AD Agreement when, in establishing the constructed normal values of three investigated companies, 
[[XXX]], [[XXX]] and [[XXX]], it allegedly adjusted  their reported finance costs in a manner that 
inappropriately inflated each company's cost of pr oduction.  According to Norway, the investigating 
authority's adjustments resulted in the inclusion of  finance costs that were not "associated" with 
production and sale of salmon during the period of inv estigation because: (i) for all three companies, 
they represented the three-year average of the finan ce costs incurred by the i nvestigated companies in 
preceding years instead of the actual finance costs in curred during the period of investigation; and (ii) 
in respect of [[XXX]] only, the finance cost adjust ment included the write-down in the value of shares 
held by [[XXX]] in another company that was reported in [[XXX]] accounts in 2002, which Norway 
argues was not a finance cost  but an investment loss. 
7.518  Norway argues that by relying on a three-year average of the companies' finance costs, the 
investigating authority determined the average costs associated with funding production and sale 
during that entire three-year period, and not the finance costs associated with production and sale activities in the period of investigation.  In this regard, Norway contends that the average of the 
finance costs incurred by a compan y over a three-year period does not provide an objective basis for 
making conclusions about finance costs in the period  of investigation.  Furthermore, because of the 
variation in the level interest rates between 2001 and 2004, Norway argues that the end-result of the 
investigating authority's approach was to signifi cantly increase the finance costs of the relevant 
companies.  Norway also alleg es that the EC applied the methodology inconsistently as between 
investigated companies and in respect of the years used  to determine the relevant finance costs.  In the 
case of [[XXX]], the three-year period was 2001 to  2003; and, in the case of [[XXX]] and [[XXX]], 
the three-year period was 2002 to 2004.  Finance costs were derived on the basis of a three-year 
average for no other companies.   
7.519  Norway notes that, in calculating the three-y ear average for [[XXX]], the EC included among 
the finance costs, a loss of NOK [[XXX]] million th at the [[XXX]] incurred in 2002 on the write-
down of shares held in [[XXX]], a whitefish farming and processing company.  Norway claims that this loss should have been exclude d from the calculation of finance co sts because it is an investment 
loss, not a finance cost arising from payments made by the [[XXX]] to service debt related to its own 
production of salmon.  In addition, Norway ar gues that in its view, losses incurred by salmon 
producers on investments in other companies reflect a decline in the equity position of the investor 
company, but do not impact the production costs of salmon. 
7.520  Thus, for all of the above reasons, Norway claims that the adjustment made by the 
investigating authority to the finance costs reporte d by [[XXX]], [[XXX]] and [[XXX]] resulted in the 
establishment of a cost of production and construc ted normal value that was inconsistent with 
Article 2.2 of the AD Agreement. 
(ii) European Communities 
7.521  The EC argues that the investigating authority' s calculation of the finance costs of [[XXX]], 
[[XXX]] and [[XXX]] on the basis of a three-year av erage was consistent with Article 2.2 of the AD 
Agreement because it reflected the project accoun ting practice that was normally followed by these 
companies in their current operations.   WT/DS337/R 
Page 242  
 
  7.522  According to the EC, [[XXX]] and [[XXX]] did not report figures to the investigating 
authority using project accounting.  Rather, the EC asserts that both companies completed the 
questionnaire applying an "alternative approach" usin g adjusted data for the period of investigation.
675  
The investigating authority rejected the reported fi gures because of irreconcilable differences with the 
annual accounts, and resorted to establishing all bu t the finance costs for th ese companies on the basis 
of their annual accounts and trial balances pertaining to the relevant periods in 2003 and 2004.  In the 
EC's view, these annual accounts were implicitly b ased on project accounting.  Thus, the approach 
taken by the investigating authority to calculate fi nance costs on the basis of a three-year average was 
justified. 
7.523  The EC advances a similar justification in resp ect of the investigati ng authority's calculation 
of [[XXX]] finance cost, with the only difference being that, according to the EC, [[XXX]] initially 
reported costs of production on the basis of project accounting.  When the reported cost figures were 
rejected by the investigating authority, it then resorted to annual accounts covering the period of 
investigation, which the EC cont ends were based on project accountin g.  Reflecting this approach, 
finance cost was determined on the basis of a three-year average. 
7.524  Finally, the EC argues that the final figures u sed to calculate [[XXX]] finance costs did not 
take into account the write-off value of the shares he ld by [[XXX]] in [[XXX]], and as such, that there 
is no factual basis to Norway's claim. 
(b) Evaluation by the Panel  
7.525  As a preliminary matter, we recall that we have already found that the investigating 
authority's calculation of [[XXX]] finance costs on th e basis of "facts available" was inconsistent with 
Article 6.8 and paragraph 3 of  Annex II of the AD Agreement.676  In particular, we have concluded 
that the conditions for disregarding the finance cost  data submitted by [[XXX ]] in its questionnaire 
reply and resorting to "facts available" in the form  of a three-year average of the Norwegian Central 
Bank's interest rates and [[XXX]] own [[XXX]] over the period 2001 to 2003, were not properly 
established.  In this light, we believe that it is not ne cessary, in order to resolve this dispute, for us to 
decide whether the investigating authority's calculati on of [[XXX]] finance costs was also inconsistent 
with Article 2.2 of the AD Agreement.  Accordingly,  on the grounds of judicial economy, we make no 
findings in respect of Norway's claim that the i nvestigating authority acted inconsistently with 
Article 2.2 of the AD Agreement when it calculated [[XXX]] finance costs through the application of 
a three-year average of finance costs incurred be tween 2001 and 2003.  Thus, in the sections that 
follow, the focus of our evaluation is on Norway 's claims in respect of [[XXX]] and [[XXX]].  
7.526  Norway argues that finance costs are recurring cost s associated with funding debt that is used 
as part of the working capital invested in production and sale of a product.  In its view, only finance costs incurred during the period of investigation can be "associated" with production and sale of 
salmon in the period of investigation.  Thus, accordi ng to Norway, to the extent that any finance costs 
incurred outside of the period of investigation ar e taken into account in establishing the cost of 
production used to construct normal value for the peri od of investigation, reliance on that constructed 
normal value will be inconsistent  with Article 2.2 of the AD Ag reement.  In essence, the EC's 
justification for calculating the relevant companies' finance costs on the basis of a three-year average 
is the same as its justification fo r using a three-year average allocation methodology to derive certain 
NRCs,
677 namely that it reflected the project accoun ting practice that was normally used by the 
investigated companies and implicitly incorporated  in the annual accounts used by the investigating 
                                                      
675 EC, Answer to Panel Question 111. 
676 See, paras. 7.375-7.386. 
677 See, paras. 7.477 and 7.489.  WT/DS337/R 
 Page 243 
 
 
  authority to determine the vast majority of the cost  elements used in the calculation of the individual 
companies' costs of production.   
7.527  We begin our evaluation of Norway's claim by re viewing the text of Article 2.2, which reads: 
"When there are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular market 
situation or the low volume of the sales in the domestic market of the exporting 
country, such sales do not permit a proper comparison, the margin of dumping shall 
be determined by comparison with a comparable price of the like product when exported to an appropriate third country, pr ovided that this price is representative, or 
with the cost of production in the country of origin plus a reasonable amount for 
administrative, selling and general costs and for profits."
678 
7.528  Article 2.2 identifies the circumstances when an investigating authority may be entitled to 
determine the margin of dumping through a comparis on between export price and: (i) the export price 
of the like product exported to a third country ("a comparable price of the like product when exported to an appropriate third country, provided that this price is representative"); or (ii) constructed normal 
value ("the cost of production in the country of or igin plus a reasonable amount for administrative, 
selling and general costs and profits") .  As we have already observed, a cost may be used to calculate 
"cost of production" for the purpose of establishing c onstructed normal value wh en it is "associated" 
with production and sale of the like produc t during the period of investigation.
679  It follows that a 
comparison between export price and a constructed normal value that is derived from a "cost of 
production" calculated on the basis of costs that are not "associated" with production and sale of the 
like product during the period of investigati on will be inconsistent with Article 2.2. 
7.529  We recall that the practice of project accoun ting involves the accumulation of costs over the 
period it takes for a salmon farming project to be co mpleted, typically lasting from fertilized egg to 
the harvest of adult salmon.  Where farming activiti es take three years, as the EC asserts is the case on 
average in the Norwegian salmon industry, the co sts accumulated through project accounting will be 
"associated" with the salmon harvested at the end of that three year period.  Thus, it would be entirely 
accurate, in our view, to establish the "cost of production" of salmon harvested during the period of 
investigation on the basis of costs properly cap tured through project accounting.  We do not 
understand the parties to disagree with this conclusion .  However, the parties' views diverge in respect 
of the extent to which the investigating authority was entitled to calculate finance costs on the basis of 
a three-year average.  Whereas Norway considers th at there was no rational basis for the investigating 
authority to proceed in this manner, the EC argu es that the practice of three-year project accounting 
normally pursued by the investigated parties justifie d the investigating authority's three-year average 
finance cost calculation methodology.  Before turning to address the merits of the parties' arguments, 
we briefly summarize the information that can be  found in the individual company disclosures and 
published determinations about the investigating authority's determination of the finance costs of 
[[XXX]] and [[XXX]]. 
(ii) Facts 
7.530  The Definitive Disclosures to [[XXX]] and [[XX X]] reveal that the investigating authority 
rejected the two companies' reported finance cost s and replaced these with figures determined on the 
basis of data relating to the three years from 2002 to  2004.  In particular, for both companies, the 
investigating authority first totalled finance expens es at the group-wide level for the years 2002 to 
2004.  It then divided this figure by the total group-wide turnover for the same period, in this way 
                                                      
678 Footnote omitted. 
679 See, para. 7.483. WT/DS337/R 
Page 244  
 
  arriving at an average finance ratio at the group le vel, again for the period 2002 to 2004.  This ratio 
was then multiplied by each investig ated company's turnover during the period of investigation.  The 
resulting amount was the finance cost used by the investigating authority for the purpose of 
calculating cost of production and constructed normal value.
680 
7.531  The investigating authority explained its determ ination of both companies' finance costs on 
essentially the same terms: 
"Reference is made to paragraph (20) of the general disclosure.  In the case of your 
company, financial expenses incurred in the years 2002 to 2004 by the group company were accordingly allocated to the salmon cost of production of the IP."
681 
7.532  Paragraph 20 of the General Disclosure Docume nt related to the investigating authority's 
findings in respect of the write-down of licenses and financial expenses.  It reads as follows: 
"For these reasons, the Commission confirms that these write-downs relate to 
expenses that are incurred and must be borne  by the companies concerned.  It is 
further confirmed that these costs should be attributed to the prime business activities including salmon farming, thus the claim is rejected.  As with ex traordinary expenses, 
it was also considered appropriate to have  one third of all costs incurred by the 
relevant companies in the last three year s allocated to salmon production, on the basis 
of turnover."
682 
7.533  The Definitive Regulation provides no additional insight into the investigating authority's 
calculation of the finance costs of [[XXX]] and [[XXX]]. 
(iii) Whether the investigating authority was entitled to  calculate finance costs on the basis of a 
three-year average 
7.534  The EC explains that initially, both [[XXX]] a nd [[XXX]] reported their costs of production 
using an "alternative approach" – an approach  that followed neither project accounting or 
conventional accounting.683  According to the EC, the investigating authority rejected the figures 
reported in their questionnaire replies "because of irreconcilable differences with the annual 
accounts".684  Consequently, the investigating author ity resorted to using [[XXX]] and [[XXX]] 
annual accounts, which it argues were "implic itly  ... based on the project accounting 
methodology".685  In making this statement, we understand the EC to be of the view that the annual 
accounts reflected costs incurred in farming different  generations of salmon, from fertilized egg to 
harvested salmon.  Because, in the view of the EC, th ree years is the average time it takes to farm one 
generation of salmon, it argues that the establishmen t of finance costs through the application of a 
                                                      
680 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45;  Definitive Disclosure to 
[[XXX]], 28 October 2005, Exhibit NOR-54.  See also, [[XXX]] Worksheet, prepared by Norway, Exhibit 
NOR-130. 
681 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45;  Definitive Disclosure to 
[[XXX]], 28 October 2005, Exhibit NOR-54.  The stat ement in [[XXX]] disclosure identifies the [[XXX]] as 
[[XXX]].  No similar identification of the name of th e [[XXX]] is made in Definitive Disclosure made to 
[[XXX]]. 
682 General Disclosure Document, 28 October 2005, Exhibit NOR-67. 
683 EC, Answer to Panel Question 111.  See also, Exhibit EC-37, where the EC indicates that both 
companies used "an alternative approach to allocate costs to the IP", reporting all costs ("eggs/smolt, feed, direct 
labour, vaccine/medications, other farming costs, harves ting costs, processing costs,  selling expenses, general 
and administrative expenses, financial expenses, bad debts, NRC") on this basis. 
684 EC, Answer to Panel Question 117(a); and Exhibit EC-37. 
685 EC, Answer to Panel Question 117(a).  WT/DS337/R 
 Page 245 
 
 
  three-year average was rational, and produced a "r esult in all likelihood ... similar to the one that 
would have been found had reporte d costs been properly based on the companies' project accounting 
system and not been made on pu rpose for the investigation".686  In other words, as we understand it, 
the EC argues that the investigating authority was ju stified in calculating the companies' finance costs 
on the basis of a three-year average because this refl ected the nature of the figures the investigating 
authority had actually used to derive the other co sts used in its determination of the cost of 
production. 
7.535  Norway considers that the investigating author ity was not entitled to determine finance costs 
on the basis of a three-year average because both [[XXX]] and [[XXX]] did not report their costs on the basis of project accounting.  That is, accordi ng to Norway, [[XXX]] and [[XXX]] did not report 
the costs associated with the quantity of salmon harvested during the period of investigation.  Instead, 
both companies reported costs associated with all salmon production activities undertaken during the period of investigation, including salmon growth and harvesting.  As such, the relevant finance costs 
for the calculation of their costs of production we re those reported by the companies in their 
questionnaire replies.  Moreover, Norway argues that the investigating authority did not reject the cost 
of production figures reported by [[XXX ]] and [[XXX]].  It contends that the EC used almost all 
reported data, rejecting only very few figures for whic h it made adjustments that Norway contests.  To 
this end, Norway has presented a number of tables derived from information contained in the investigated parties' questionnaire replies and i ndividual company disclosures to substantiate its 
assertions.
687  We have closely reviewed these tables a nd the information on which they are based and 
agree with Norway that the investigating author ity did not reject the cost of production figures 
reported by [[XXX]] and [[XXX]]. 
 [[XXX]] 
 
7.536  [[XXX]] reported costs of production are set out in an Excel worksheet titled [[XXX]].  
Norway submitted this worksheet as Exhibit NOR-132.   The investigating authority's calculation of 
[[XXX]] cost of production can be found in Annex 3 of its Definitive Disclosure to [[XXX]], Exhibit 
NOR-45.  The final cost of production per kilogram determined by the investigating authority is set 
out in the Excel worksheet titled [[XXX]], Annex 3, and is further relied upon in the worksheet titled 
"COP".  It can be seen from the former of the two worksheets, that the inves tigating authority used 16 
of the 18 cost of production figures reported by  [[XXX]].  The two cost elements not relied upon 
relate to the investigating authority's adjustment s for smolt costs and finance costs, which Norway 
contests.688  Thus, the facts as they have been presented to us in this dispute do not support the EC's 
assertion that the investigating authority rejected [[ XXX]] reported costs, and used another basis to 
derive its costs of production.  Rather, the facts show that the investigating authority based its 
determination of [[XXX]] cost of  production on all but two figures reported in [[XXX]] questionnaire 
response.   
7.537  Moreover, the investigating authority's Definitiv e Disclosure also indicates that it did not rely 
upon only the quantity of salmon harvested during the period of investigation for the purpose of 
arriving at [[XXX]] per kilogram cost of production.  The "COP" worksheet reveals that the investigating authority identified an amount of [[XXX]] kilograms as the "total quantity produced during the IP".  This figure was derived from an amount of [[XXX]] kilograms, which had been reported by [[XXX]] and adjusted downwards by on e per cent by the investigating authority.  The 
amount of [[XXX]] kilograms can be found in the [[XXX]] worksheet, which shows that it is derived 
from the quantity of salmon harvested, plus "closing stock" minus "opening stock".  We understand 
                                                     
 
686 EC, Answer to Panel Question 117(b). 
687 Norway, Comments on EC Answer to Panel Question 117(a). 
688 Norway's claims in respect of the investigating authority's adjustments to reported smolt costs are 
addressed below at paras. 7.545-7.572. WT/DS337/R 
Page 246  
 
  that the reference to "stock" is a reference to "biomass", that is, salmon that are still in the growing 
stage and not yet ready to be harvested.  Thus, the figure used for total production in the period of investigation was the sum total of harvested and non- harvested salmon in the period of investigation.  
In our view, this evidence supports the conclusion that: (i) [[XXX]] did not report its per kilogram 
costs of production on the basis of project accounting, but rather on the basis of all costs relating to its 
salmon farming activities over the period of investiga tion; and (ii) that the investigating authority 
calculated all but two of the costs used for the pur pose of arriving at [[XXX]] per kilogram cost of 
production on the basis of information from the period of investigation. 
 [[XXX]] 
 
7.538  The cost of production figures reported by [[XXX ]] in section F-2-5 of its questionnaire 
response are set out in Exhibit NOR-133, page 2.  This worksheet shows that [[XXX]] reported costs 
for the period of investigation on the basis of costs incurred in the years 2003 and 2004.  The investigating authority's calculation of [[XXX]] co st of production is set out in the Definitive 
Disclosure, Exhibit NOR-54, Annex 3.  The final co st of production per kilogram determined by the 
investigating authority is revealed in the Excel work sheet that is titled "COP".   This amount is derived 
from another worksheet in the same Annex with the tit le [[XXX]].  All but three of the figures used in 
worksheet [[XXX]] to derive the per kilogram cost  of production amount that is referred to in the 
worksheet titled "COP" are exactly the same as those reported by [[XXX]].  The only figures that differ are those relating to the contested adjustments made for finance costs, depreciation and the cost 
of smolt, which Norway contests.
689  Thus, as Norway alleges, 19 of 22 cost elements used by the 
investigating authority to determine [[XXX]] per kilogram cost of production came directly from 
[[XXX]] questionnaire response.  We can therefore see no factual basis for the EC's assertion that the investigating authority rejected the figures re ported in [[XXX]] questionnaire reply "because of 
irreconcilable differences with the annual accounts".
690 
7.539  As with [[XXX]], the Definitive Disclosure indicates that the investigating authority did not 
rely upon only the quantity of salmon harvested during the period of investigation for the purpose of 
arriving at [[XXX]] per kilogram cost of produ ction.  [[XXX]] reported its total quantity of 
production for the period of investigating using th e same methodology applied by [[XXX]].   The 
[[XXX]] worksheet reveals that total production w as derived from adding "closing biomass" to the 
total quantity of salmon "harvested during the peri od" and detracting "opening biomass".  Thus, the 
figure reported for total production in the period of investigation was the sum total of [[XXX]] 
harvested and non-harvested salmon in the period of investigation.  It can be seen from the same 
worksheet that the investigating au thority used this figure as the basis for its calculations.  Once again, 
we find that the evidence presented in the Defini tive Disclosure supports the conclusion that: (i) 
[[XXX]] did not report its per kilogram costs of production on the basis of project accounting, but rather on the basis of an all costs relating to  its salmon farming activities over the period of 
investigation; and (ii) that the investigating author ity calculated all but three of the costs used for the 
purpose of arriving at [[XXX]] per kilogram cost of production on the basis of information from the period of investigation. 
7.540  We recall that the EC's response to Norway's  complaint is premised upon two key factual 
assertions: (i) that the investigating authority did not rely upon the data submitted by [[XXX]] and 
[[XXX]] because it could not be reconciled with thei r annual accounts; and (ii) that after rejecting the 
reported information, the investigating authorit y established each company's costs of production on 
the basis of information drawn from their annual accounts, which the EC argues implicitly incorporated project accounting.  We can find no ev idence to substantiate these assertions.  Indeed, as 
                                                     
 
689 Norway's claims in respect of the investigating authority's treatment of NRCs and adjustments to 
reported smolt costs are addressed, re spectively, above at paras. 7.463-7.51 6, and below at paras. 7.545-7.572 
690 EC, Response to Panel Question 117(a); and Exhibit EC-37.  WT/DS337/R 
 Page 247 
 
 
  we have explained above, the facts we have reviewed  indicate that the opposite to what the EC argues 
took place, actually occurred during the investigation.   The investigating authority accepted almost all 
of the cost information reported by [[XXX]] and [[ XXX]], and thereby based its determination of the 
companies' costs of production on data that was almost entirely reported by means of an "alternative approach" – an approach that according to the EC reflected neither conventional or project 
accounting.  In this light, the EC's contention th at the investigating authority was justified in 
calculating the companies' finance costs on the basis of  a three-year average because this reflected the 
nature of the figures the investigating authority ha d relied upon to derive the other costs used in its 
determination of the cost of produc tion cannot be substantiated.  In other words, there is no factual 
basis to support the argument the EC has advanced to  demonstrate that the finance costs calculated for 
[[XXX]] and [[XXX]] were "associated" with prod uction and sale of the like product during the 
period of investigation. 
7.541  Norway argues that the average of the finance costs incurred by a company over a three-year 
period does not provide an objective basis for maki ng conclusions about finance costs "associated" 
with production and sale of the like product in the period of investigation.  In our view, whether this is 
the case will very much depend upon the factual circ umstances, and in particular, the methodology 
used to collect costs used in the calculation of  cost of production.  Where costs of production are 
derived through project accounting, and each project typically runs over three years, it seems to us 
that the determination of finance costs (or any other recurring cost) on the basis of a three-year 
average might well be an objective basis to approximate costs that would otherwise be reported 
through project accounting.
691  However, where costs of production are not derived through project 
accounting, the use of a three-year average to de termine one element of those recurring costs could 
have distortive effects.  This is particularly  so when, as in the presen t case, the interest rates 
associated with funding debt in the preceding years are different from those existing in the period of investigation.  In our view, in order to use a cost  element derived on the basis of a three-year average 
in circumstances where almost all other cost elements  used in the calculation of cost of production are 
determined through the use of a methodology that do es not even implicitly reflect three-year project 
accounting, an investigating author ity must properly explain its deci sion.  The required "association" 
between a recurring cost derived on the basis of a three-year average and production of the like product in the period of investigation cannot be imp lied when the cost of production is determined on 
the basis of information relating to production activities in the period of investigation only. 
7.542  We have found that almost all of the cost elem ents used in the calculation of the respective 
costs of production of [[XXX]] and [[XXX]] were  determined on the basis of an "alternative 
approach" and therefore did not reflect three-year project accounting.  Thus, for almost all relevant 
cost elements, the investigating authority was satisfi ed that data pertaining to the cost of harvesting 
and non-harvesting activities that took place solely w ithin the period of investigation were properly 
"associated" with production and sale of the like produc t during the period of investigation.  As such, 
we believe it was incumbent upon the investigating authority to explain why, in the light of its 
rejection of the companies' reported finance costs, it was appropriate to calculate finance costs on the 
basis of a three-year average.  The required " association" between finance costs calculated on the 
basis of a three-year average and production of th e like product in the period of investigation could 
not simply be implied.  In this regard, we note that the only specific statement made by the 
investigating authority in respect of the met hodology applied to determine [[XXX]] and [[XXX]] 
finance costs was that it was considered "appropriate to have one third of [the finance] costs incurred 
by the relevant companies in the last three year s allocated to salmon production, on the basis of 
turnover".  This does not explain how, in the light of  the approach taken to determine almost all other 
                                                     
 
691 However, we do not consider this to be th e case in respect of non-recurring costs.  As non-recurring  
costs, these must be appropriately a llocated over a period of time that may be different from the lifetime of a 
"project".  See, paras. 7.506-7.507. WT/DS337/R 
Page 248  
 
  cost elements, the three-year av erage finance costs were "associated" with production of the like 
product during the period of investigation. 
7.543  Thus, for all of the above reasons, we find that there is no factual basis to support the EC's 
contention that the three-year average finance costs determined for [[XXX]] and [[XXX]] were 
"associated" with the production and sale of the like product during the period of investigation.  To 
the extent that the investigating authority used these costs in the calculation of [[XXX]] and [[XXX]] 
"costs of production", it failed to properly est ablish the constructed normal values used for the 
purpose of determining the existence of dumping.  Accordingly, we find that the investigating 
authority acted inconsistently with Article 2.2 of the AD Agreement. 
7.544  We note that Norway also claims that the inv estigating authority acted inconsistently with 
Article 2.2 when it counted in the total amount of [[XXX]] finance costs for the period 2002 to 2004, 
a loss of NOK [[XXX]] million that the [[XXX]] incu rred in 2002 on the write-down of shares held in 
[[XXX]].
692  Because we have found that the investiga ting authority erred in calculating [[XXX]] 
finance cost on the basis of the average of the fi nance costs incurred from 2002 to 2004, we consider 
that it is not necessary, for the purpose of resolv ing this dispute, to also address Norway's second 
complaint against the investigating authority's calcu lation of [[XXX]] finance costs.  In our view, 
findings in respect of this element of Norway's complaint would do little to enhance the ability of the 
DSB to make sufficiently precise recommendations and rulings in this dispute.  Accordingly, on the 
grounds of judicial economy, we make no findings in respect of Norway's clai m that the investigating 
authority acted inconsistently with Article 2.2 of the AD Agreement when it included among the 
finance costs used to derive the three-year average of [[XXX]] fina nce costs, a loss of NOK [[XXX]] 
million that the [[XXX]] incurred in 2002 on the write-down of shares held in [[XXX]]. 
3. Alleged Inconsistency of the EC's Treatment of Smolt Costs With Articles 2.2 and 
2.2.1.1 of the AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.545  Norway claims that the investigating authorit y acted inconsistently with Articles 2.2 and 
2.2.1.1 of the AD Agreement when it ma de adjustments to the reported smolt693 costs of three 
investigated companies, [[XXX]], [[XXX]] and [[XXX] ], resulting in the inclusion of an amount of 
smolt costs in the calculation of the companies'  respective costs of production that was not 
"associated" with production and sale of salm on during the period of investigation.   
7.546  Norway argues that the investigating authorit y treated all smolt costs incurred by [[XXX]] 
and [[XXX]] as if related to the production of salmon in  the period of investigation, when in fact they 
were related to both production during the period  of investigation and production in the period 
immediately after the period of investigation.  Norway submits that both [[XXX]] and [[XXX]] made 
documented submissions requesting the investigating authority to allocate their respective smolt costs 
to their costs of production in proportion to the salmon produced and sold during the period of 
investigation.  However, according to Norway, the investigating authority failed to properly consider 
the two companies' representations, and summari ly dismissed the proposed allocation methods 
because of the need for consistency in treatment betw een different producers.    Norway argues that 
the costs should have been allocated to the produ cers' costs of production in proportion to the salmon 
produced and sold during the period of investigation.   The investigating authority's failure to do so 
                                                      
692 See, para. 7.519. 
693 Norway describes smolt as "juvenile salmon that take approximately 9 to 16 months to develop into 
harvestable salmon".  Norway, FWS, para. 992.  WT/DS337/R 
 Page 249 
 
 
  inflated the companies' costs of production by NOK [[XXX]] for [[XXX]] and NOK [[XXX]] for 
[[XXX]].  Thus, Norway claims that the investig ating authority's actions were inconsistent with 
Articles 2.2.1.1 and 2.2. 
7.547  In respect of [[XXX]], Norway submits that th e investigating authority improperly included in 
its cost of production: (i) an amount of NOK [[XXX]] million, representing the entire cost of smolt 
purchased in the last month of the period of inves tigation, which was not harvested until after the end 
of the period of investigation; and (ii) the cost of smolt sold to unrelated customers at arm's length 
prices during the period of investigation wit hout deducting the revenue of NOK [[XXX]] million 
earned from those sales.  Norway argues that [[ XXX]] submitted substantiated requests for the 
investigating authority to exclude these amounts from its cost of production on various occasions.  
However, according to Norway, [[XXX]] submissions  were rejected because the relevant information 
had not been presented at the time of the on-the-spot investigation.  Norway c ontends that the inability 
to verify these costs on-the-spot lay with the investig ating authority, and not [[XXX]].   Thus, Norway 
argues that the investigating authority's failure to  accept the requested adju stments resulted in the 
inclusion of costs in [[XXX]] cost of production that were not "associated" with the production and 
sale of salmon during the period of investigation.  The investigating authority's actions were therefore 
inconsistent with Article 2.2.   
(ii) European Communities 
7.548  The EC argues that there is no factual basis to  Norway's claims in respect of [[XXX]] and 
[[XXX]] because the investigating authority reme died the matters raised by Norway between 
Definitive Disclosure and the Definitive Regulation.  Th e EC argues that this is  evidenced by the fact 
that the margins of dumping determined for these co mpanies in the Definitive Regulation were lower 
than those contained in the Definitive Disclosure document. 
7.549  As regards [[XXX]], the EC asserts that the appr oach taken by the investigating authority to 
determining smolt costs was affected by [[XXX]] failu re to properly report its costs according to the 
project accounting methodology that it was supposed to  have implemented.  According to the EC, a 
valid project accounting methodology would have properl y dealt with the two cost items at issue.  
However, the EC argues that [[XXX]] badly implemented the project accounting methodology.  
Therefore, the investigating authority had to use annual accounts to determine smolt costs, and these 
did not show that the smolt had been bought in the last month of the period of investigation, or that the alleged sale of smolt had actually taken place.  For this reason, the EC asserts that the investigating authority could not have taken the a pproach advocated by [[XXX]] in respect of smolt 
costs, because although valid under the project accoun ting methodology, it could not be matched with 
an approach to calculating costs on the basis of annual accounts.   
(b) Evaluation by the Panel 
(i) [[XXX]] and [[XXX]] 
7.550  We begin our evaluation of Norway's claims by  first addressing the investigating authority's 
calculation of the smolt costs used in the determin ation of [[XXX]] and [[XXX]] cost of production.  
The EC argues that there is no factual basis to  Norway's claims because it asserts that the 
investigating authority decided, between the st ages of Definitive Disclosure and adoption of the 
Definitive Regulation, that it was appropriate to accept the adjustments requested by the two 
companies in respect of smolt costs.
694  Thus, in the view of the EC, the companies' final margins of 
dumping correctly excluded the relevant smolt costs fr om their cost of production.  The EC explains 
the background to the investigating author ity's decision in the following terms: 
                                                      
694 EC, Answer to Panel Question 125. WT/DS337/R 
Page 250  
 
  "In both cases, the companies had argued in their comments on disclosure and in 
hearings that certain adjustments should be made to the costs actually incurred during 
the investigation period.  Pursuant to th e hearings that took place after definitive 
disclosures, the investigating authoritie s accepted the claim on smolt quantities and 
costs and in the definitive Regulation correspondingly reduced the margins of 
dumping.  In the case of [[XXX]] an a dditional correction was made regarding 
processing costs in order to remove a clerical error pointed out by the company."
695 
7.551  This is the only defence raised by the EC to Norway's claims in respect of these two 
companies.  The EC does not, in the alternative, contest Norway's claim that the inclusion of the 
relevant smolt costs in the two companies' costs of  production would be inconsistent with Articles 2.2 
and 2.2.1.1 of the AD Agreement.  Furt hermore, as we have noted elsewhere,696 the EC agrees with 
Norway that pursuant to Articles 2.2 and 2.2.1.1,  only costs "associated" with production and sale of 
the like product during the period of investigation may be included in the calculation of cost of 
production.  There is therefore no dispute between the parties as to whether the smolt costs were 
"associated" with production and sale of salmon duri ng the period of investig ation.  Thus, the only 
question that is before us is whether the EC's as sertions can be substantiated by the facts of the 
investigation. 
7.552  Norway has consistently alleged that [[XX X]] and [[XXX]] were not provided with any 
evidence indicating that their claims in respect of smolt costs had been accepted.  On the other hand, 
the EC has explained that "Norway should already possess all the information necessary to verify the 
correctness of the investigating authorities' statemen t, because the relevant data were disclosed to the 
companies".697  When specifically asked to substantia te its factual assertions on the basis of 
"information and evidence that was before the inve stigating authority during the investigation", the 
EC responded by making the following statement: 
"The evidence of the EC authorities' decision is apparent in the margins of dumping 
determined for the two companies in the de finitive Regulation, which are lower than 
those announced in the definitive disclosure."698 
In the same reply, the EC also referred to the two companies' responses to the Definitive Disclosures.   
7.553  It is true that [[XXX]] and [[XXX]] both raised the investigating authority's treatment of their 
reported smolt costs in their responses to the Defin itive Disclosures.  However, in each case, the smolt 
cost issue was only one of several aspects of th e investigating authority's margin of dumping 
determination that was contested.699  Thus, it is impossible to confirm by reference to the companies' 
responses to the Definitive Disclosure documents that  the investigating author ity accepted all or part 
of the smolt cost adjustment claims that had been  made.  Moreover, the fact that both [[XXX]] and 
[[XXX]] challenged various aspects of the investig ating authority's cost of production calculations 
implies that the decrease in th e margins of dumping between Definitive Disclosure and the Definitive 
Regulation might well have been due to the investig ating authority's full or partial acceptance of any 
one or more of the companies' other complaints.  The EC has not explained how its factual assertions 
                                                      
695 EC, Response to Panel Question 125. 
696 See, para. 7.491. 
697 EC, Opening Statement at the Second Substantive Meeting of the Parties, para. 107. 
698 EC, Response to Panel Question 125. 
699 [[XXX]] response to the Definitive Disclosure criticized various aspects of the investigating 
authority's calculation of its cost of production, including the amounts used for smolt costs, finance costs, 
SG&A costs and the quantity of salmon produced duri ng the period of investigation.  Exhibit NOR-136.  
Likewise, [[XXX]] response to the Definitive Disclosure contested various aspects of the investigating authority's calculation of its cost of production, including the amounts used for smolt costs, finance costs, 
depreciation costs, processing costs as well as the treatment of write-downs for biomass.  Exhibit NOR-98.   WT/DS337/R 
 Page 251 
 
 
  are substantiated in the light of the various comment s of the investigated parties on the investigating 
authority's determination of dumping that are set out in their responses to the Definitive Disclosures.  
Thus, the simple fact that the margins of dumping determined for the two companies in the Definitive 
Regulation are lower than those announced in the Definitive Disclosures does not support the EC's 
assertion that the investigating authority accepted the tw o companies' claims in respect of smolt costs. 
7.554  There is therefore no factual basis to substantiate  the EC's rejection of Norway's claim.  Thus, 
on the basis of the facts that have been presented before us, we find that there is no evidence to 
conclude that the investigating authority accepte d the requested smolt cost adjustments between 
Definitive Disclosure and adoption of the Definitive Re gulation.  In other words, there is no factual 
basis to support the EC's view that the investigati ng authority did not include the contested smolt costs 
in the calculation of [[XXX]] and [[XXX]] costs of produc tion.  In this light, and bearing in mind that 
the EC has accepted that the smolt costs at issu e were not "associated" with production and sale of 
salmon during the period of investigation, we find that  the investigating authority acted inconsistently 
with Articles 2.2 and 2.2.1.1 of the AD Agreement. 
(ii) [[XXX]] 
7.555  We next turn to address Norway's claims in respect of [[XXX]] requested smolt cost 
adjustments. 
7.556  The EC contends that, consistent with its normal accounting practice, [[XXX]] initially 
reported its cost of production to the investigati ng authority on the basis of project accounting.  
According to the EC, such an approach, if prope rly implemented, would have accounted for both of 
the smolt cost adjustments at issue.  However, th e EC asserts that [[XXX]] reported figures could not 
be reconciled with its annual accounts, which indicated  a higher level of costs than reported.  As a 
consequence, the investigating aut hority was left with no alternative but to determine [[XXX]] cost of 
production on the basis of [[XXX]] annual account s and trial balances covering the period of 
investigation.   
7.557  While acknowledging that the cost of the NOK [[XXX]] million purchase of smolt should 
have been excluded from [[XXX]] cost of production for the period of investigation, had such costs 
been determined through project accounting, the EC argues that since project accounting was not 
used, this amount could not be deducted.700  In this regard, the EC conte nds that the exclusion of these 
costs was not simply a matter of checking the invoice date of the smolt purchase and concluding that salmon grown from such smolt could not have been ha rvested during the period of investigation.  It 
also required information about the extent to which smolt purchased before the period of investigation 
was harvested as salmon during the period of investig ation.  However, unlike [[XXX]] and [[XXX]], 
for whom the EC contends the investigating au thority accepted similar smolt cost adjustments,
701 
[[XXX]] did not apparently apply a tracking syst em that would have permitted the investigating 
authority to make the appropriate corrections.702  In the absence of this in formation, the investigating 
authority was unable to verify the requested adjustme nt and therefore, in the EC's view, it was entitled 
to treat the costs reported in the annual accounts as "associated" with production and sale of salmon 
during the period of investigation. 
7.558  Similarly, the EC argues that the effect of the NOK [[XXX]] million sale of smolt to 
unrelated parties on the costs of smolt for the period of investigation would have been properly 
                                                      
700 EC, FWS, para. 708; EC, Opening Oral Statement at  the Second Substantive Meeting of the Parties, 
para. 108. 
701 However, we recall that we have found that there is no evidence to support the factual assertion that 
the investigating authority accepted the smolt cost  adjustments requested by [[XXX]] and [[XXX]]. 
702 EC, Response to Panel Question 126. WT/DS337/R 
Page 252  
 
  accounted for had project accounting been used to determine [[XXX]] cost of production.  However, 
because the requested adjustment could not be veri fied, the investigating au thority was entitled to 
reject the adjustment.
703 Thus, as we understand it, the EC's defe nce to Norway's cl aim is centred on 
the contention that the requested adjustments could not be verified on the basis of the information 
contained in the annual accounts. 
7.559  Norway notes that [[XXX]] presented its request  for the two smolt cost adjustments in 
response to the investigating authority's Informati on Note on Cost of Production, which was the first 
time that [[XXX]] learned of the methodology the investigating authority intended to apply to determine its cost of production.  Thus, Norway submits that [[XXX]] requested the adjustments at 
the earliest possible opportunity after the investigating authority had disclosed that it was including 
the smolt costs at issue in its calculation of [[XXX]] cost of production.  Norway argues that there is 
no documented evidence that the investigating authority attempted to verify [[XXX]] claimed 
adjustments.  Furthermore, according to Norway, if  the investigating authority considered that it 
needed additional information, it could have asked  [[XXX]] to provide it.  However, it never made 
any such request.  Thus, Norway argues that the EC 's assertion that the investigating authority made 
no adjustment because it could not verify the in formation submitted by [[XXX]] is not credible.
704 
7.560  Before evaluating the merits of Norway's claim, we find it useful to first set out some of the 
key facts surrounding the investigating authority' s rejection of the requested adjustments. 
 Facts 
 
7.561  The Information Note on Cost of Production relating to [[XXX]] identified a number of 
deficiencies in [[XXX]] questionnaire reply, relating to " inter alia " SG&A costs, income statements, 
filleting costs and information about a related compan y.  Overall, the investigating authority found 
that [[XXX]] reported cost of production "appeared only to reflect part of the cost incurred on the 
production of the product concerned".705  It therefore rejected the reported costs and calculated 
[[XXX]] cost of production on the basis of "[[XXX]] A ccounts for the IP", that is, using "[a]ll costs in 
[[XXX]] Accounts for the IP used as starting point".706  The investigating authority then made five 
separate adjustments, one of which was a "cost de duction of 4 per cent [[XXX]] for production which 
did not relate to Salmon".707   
7.562  In its response to the Information Note, [[XX X]] contested the NOK [[XXX] deduction made 
for non-salmon production activities.708  [[XXX]] argued that the appropriate adjustment for non-
salmon activities should have amounted to NOK [[XXX ]], covering four separate items.  Two of these 
were the smolt cost adjustments at issue in this dispute.709  [[XXX]] submitted a statement from its 
auditor confirming their amounts as NOK [[XXX ]] for the purchased smolt adjustment, and NOK 
[[XXX]] for the smolt sale adjustment.710  The adjustments were explained by [[XXX]] in the 
following language: 
"c. The late smolt entry of 2004 in Oct ober is accounted for in September, and 
must therefore be adjusted (deducted).  Th is will also correspond to the late smolt 
                                                      
703 EC, FWS, para. 709; EC, Opening Oral Statement at  the Second Substantive Meeting of the Parties, 
para. 108. 
704 Norway, Comments on EC Response to Panel Questions 93 and 126. 
705 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55. 
706 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55. 
707 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55. 
708 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56. 
709 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56. 
710 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56.  WT/DS337/R 
 Page 253 
 
 
  entry of 2003 which is accounted for in October and therefore during the 
investigation period.  The cost for this external smolt purchase is NOK, [[XXX]] mill. 
d. We have deducted NOK [[XXX]] mill fro m costs related to external sales in 
the smolt department.  These costs are related to sale of a smolt group sold to a non-related customer, cost connected to cod fry f acility, and cost connected to loss of fish 
in one of the hatchery that is now clos ed.  Related income are eliminated on the 
income side."
711 
7.563  The investigating authority confirmed the findi ngs made in the Information Note at the 
provisional stage, stating only that: 
"Your comments concerning the matters covered by adjustments 1 to 3 above, 
contained in your letter da ted 16 March 2005, have b een noted and will be re-
examined at the definitive stage once all re quired information has been collected.  If 
extra information is required from your company we will inform you."712      
7.564  [[XXX]] responded to the investigating aut hority's provisional findings making the same 
arguments and providing the same auditor statem ents contained in the comments made to the 
Information Note.  The explanations given for the adjustments was essentially the same: 
"c. The late smolt entry of 2004 in Oct ober is accounted for in September with 
NOK [[XXX]], and must therefore be adjusted (deducted).  This will also correspond to the late smolt entry of 2003 which is accounted for in October 2003 and is therefore fully included in the reporte d data in the investigation period. 
d. We have deducted NOK [[XXX]] mill from costs related to external income 
in the smolt department.  These costs are related to sale of a smolt group sold to a non 
related customer, cost connected to cod fry f acility, and cost connected to loss of fish 
in one of the hatchery that is now closed.  Corresponding income is eliminated in the 
accounts receivables."
713 
7.565  At the definitive stage, the investigating aut hority once again confirmed the findings made in 
the Information Note, stating that the [[XXX]] adju stment made to costs of production for costs not 
associated with the production of salmon would st and because the informati on used by [[XXX]] to 
challenge this adjustment "was not verified on spot".714 
 The adjustment for purchased smolt 
 
7.566  The facts show that the investigating authorit y did not initially reject [[XXX]] adjustment of 
NOK [[XXX]] million for purchased smolt costs.  At the provisional stage, the investigating authority 
noted [[XXX]] request and explained that it would re-examine the matter at the definitive stage of the 
investigation.  Furthermore, it stated that if an y additional information w as required, [[XXX]] would 
be informed.  No additional information was reque sted from [[XXX]].  At the definitive stage, the 
investigating authority rejected the requested adjust ment because the information used by [[XXX]] to 
justify its claim had not been verified during the on -the-spot investigation conducted in January 2005. 
                                                      
711 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56. 
712 [[XXX]], Provisional Disclosure Document, Exhibit NOR-58. 
713 [[XXX]], Response to Provisional Disclosure Document, Exhibit NOR-57. 
714 [[XXX]], Definitive Disclosure Document, Exhibit NOR-16. WT/DS337/R 
Page 254  
 
  7.567  The information verified during the on-the-spot investigation was essentially that contained in 
[[XXX]] questionnaire reply, parts of which have been submitted as evidence in this dispute.  
[[XXX]] costs of production were reported in a table attached to Section F of the questionnaire.  This 
table was submitted by Norway as Exhibit NOR-59.  On reviewing the data contained in this exhibit,
715 we find that an amount of NOK [[XXX]], representing "External purchase of [sic] 
smolt/fry" in "Salmon autumn 04", appears as an ad justment ("Adjustment [[XXX]]") to the reported 
costs of production.  In addition, an amount of NOK [[XXX]] is booked for "External purchase of 
[sic] smolt/fry" relating to "Salmon autumn 03", and included in the reported costs for the period of investigation. 
7.568  As we understand it, these figures match the adjust ments described by [[XXX]] at point "c." 
of its comments on the investigating authority's di sclosures.  Although presented in the context of 
[[XXX]] own methodology for calculating costs of pr oduction, which was different from that applied 
by the investigating authority, it is clear to us that "Adjustment [[XXX]]" was intended to reduce 
[[XXX]] cost of production by the cost of purchased  smolt incurred during the period of investigation 
which related to salmon harvested outside of the pe riod of investigation.  Thus, contrary to what 
Norway asserts, it was not the case  that the investigating authority did not have an opportunity to 
verify the information underlying [[XXX]] requested adjustment during the on-the-spot investigation.  
Indeed, in reviewing [[XXX]] reported costs of pr oduction, the investigating authority would have 
been faced with precisely the same  claim for an adjustment to pr operly account for the cost of 
purchased smolt not harvested in the period of inves tigation that it was later faced with in [[XXX]] 
comments on the disclosures.  
7.569  We recall that the investigating authority re jected [[XXX]] reported costs of production 
because they "appeared only to reflect part of the cost incurred on the production of the product 
concerned".
716  The investigating authority found that they were "incomplete and understated".717  
Although there is no report indicating that the spec ific purchased smolt cost figure at issue was 
verified and rejected, we do not believe that this means that there is no evidence to show that the 
investigating authority was unable to verify the accur acy of that particular piece of data during the on-
the-spot investigation.  In our view, given the par ticular circumstances of this case, the investigating 
authority's overall view that [[XXX]] reported cost s of production were deficient overall is enough to 
substantiate its conclusion that [[XXX]] purchased smo lt cost adjustment could not be verified.  In the 
light of the large volumes of data that an investig ating authority must process during the course of an 
investigation, we do not be lieve that an investigating authority must explain, for each and every piece 
of cost data that is placed before it, why it ma y have rejected it, when it has reached a general 
conclusion about the quality of the reporting of costs overall, as it did in the present case.   
7.570  Thus, we find that Norway has failed to establish that the investigating authority erred when it 
rejected [[XXX]] claimed adjustme nt for the cost of purchased sm olt relating to salmon harvested 
outside of the period of investigation.  Accordingly,  we dismiss Norway's claim that the investigating 
authority acted inconsistently w ith Article 2.2 when it decided not to accept [[XXX]] NOK [[XXX]] 
million adjustment to its cost of production.  
 The adjustment for income from smolt sales 
 
7.571  As with [[XXX]] purchased smolt cost adjustme nt, the investigating authority justified its 
rejection of [[XXX]] requested adjustment for income earned from sales of smolt to unrelated 
customers on the basis of the conclusion that the in formation used by [[XXX]] to justify its claim had 
not been verified during the on-the-spot investig ation conducted in January 2005.  However, unlike 
                                                      
715 In particular, the Excel worksheet titled "COP-Section F". 
716 [[XXX]], Information Note on Cost of Production, Exhibit NOR-55. 
717 [[XXX]], Information Note on Cost of Production, Exhibit NOR-55.  WT/DS337/R 
 Page 255 
 
 
  the situation in respect of [[XXX]] claimed purchase d smolt cost adjustment, we can find no evidence 
of an adjustment of this kind in th e cost of production data first reported  to the investigating authority.  
Neither has the EC pointed to where in, [[XXX]] questionnaire reply (or any other submission that 
was subject to the on-the-spot investigation), such an adjustment can be found or how the 
investigating authority attempted to verify it "on-th e-spot".  Thus, on the basis of the facts that are 
before us, we agree with Norway that the first tim e that the investigating authority was presented with 
[[XXX]] claim for a NOK [[XXX]] million adjustment  to account for income earned from smolt sales 
was after it had issued its Information Note on Cost of Production.  In other words, [[XXX]] 
requested adjustment for income earned from smolt sal es was not before the investigating authority at 
the time of the on-the-spot investigation. 
7.572  We recall that the EC has explained the investigating authority's actions in terms of its 
inability to match [[XXX]] requested adjustment with the information c ontained in its annual 
accounts.  The EC has not argued that the investiga ting authority was justified in rejecting [[XXX]] 
requested adjustment because it was submitted after the on-the-spot investigation.  In other words, the 
EC has not argued that the requested adjustment wa s rejected because too late to be verified on-the-
spot.  Rather, the focus of the EC's defence to No rway's claim is on the investigating authority's 
inability to verify the submitted data on the basis of annual accounts and trial balances.  Thus, it follows from the EC's explanation of the inves tigating authority's conclusion in the Definitive 
Disclosure that the reason for rejecting [[XXX]] requ ested adjustment was that, at the time of the on-
the-spot investigation, the information underlying th e submitted data could not be verified.  However, 
as we have noted above, [[XXX]] requested adjust ment for income earned from smolt sales was not 
before the investigating authority at the time of the on-the-spot investigation.  There is therefore no 
factual basis to support the investigating authority' s conclusion that the requested adjustment "was not 
verified on spot",
718 in the sense that has been advanced by the EC.  It follows that the investigating 
authority's rejection of [[XXX]] requested adjustment  rested on a flawed assessment of the facts that 
were before it.  Consequently, the investigating au thority's conclusion that th e unadjusted smolt costs 
were "associated" with production and sale of salm on during the period of investigation was also 
flawed.  Thus, we find that the investigating author ity acted inconsistently with Article 2.2 of the AD 
Agreement.  
4. Alleged Inconsistency of the EC's Treatment of Selling, General and Administrative 
Expenses with Article 2.2.2 of the AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.573  Norway argues that Article 2.2.2 of the AD Ag reement requires investigating authorities to 
calculate selling, general and administrative ("SG&A ") expenses used in the construction of normal 
value on the basis of actual data pertaining to the production and sale of the like product in the 
ordinary course of trade.  Norway claims that the i nvestigating authority acted inconsistently with this 
obligation when it used adjusted SG&A amounts in  the calculation of [[X XX]] constructed normal 
value instead of relying on [[XXX]] reported SG&A  expenses, which represented the actual selling, 
general and administrative, expenses incurred by [[XX X]] during the period of investigation.  Norway 
argues that the investigating authority failed to pr ovide any explanation at all for its rejection of 
[[XXX]] reported G&A figures; and that the only stat ed reason for its rejection of the reported selling 
expenses was that they did not reflect what it consid ered should be the higher expense associated with 
making sales to unrelated domestic customers, compared with sales to related domestic customers.  
Norway argues that this explanation was inadequa te because it failed to identify any specific selling 
                                                      
718 [[XXX]], Definitive Disclosure Document, Exhibit NOR-16. WT/DS337/R 
Page 256  
 
  functions undertaken by [[XXX]] sales company th at contributed to a difference in the amount of 
expenses incurred for sales transactions to related and unrelated customers.   
7.574  In addition, Norway submits that the i nvestigating authority treated [[XXX]] in a 
discriminatory fashion, without justification or  explanation, because it accepted all SG&A expenses 
reported by companies such as [[XXX]], [[XXX] ] and [[XXX]], while rejecting those reported by 
[[XXX]], even though, in its view, all of th ese companies reported such costs using the same 
allocation methodology and even, in the case of [[XXX ]], sold to the same related domestic customer 
([[XXX]]).   
7.575  Finally, Norway claims that the investig ating authority acted inconsistently with 
Article 2.2.2(iii) because the approach it applied to recalculate [[XXX]] SG&A expenses was not 
"reasonable".  In this regard, Norway argues that the investigating authority's method of calculating 
[[XXX]] adjusted SG&A expenses resulted in the double counting of a subs tantial portion of the 
company's reported cost of production for salmon; failed to take into account SG&A costs already 
reported by [[XXX]]; and, did not address the percei ved deficiency identified by the investigating 
authority as the reason for rejecting [[XXX]] reported SG&A expenses in the first place.  In Norway's 
view, a method of accounting for SG&A expenses cannot  be considered "reasonable" where it suffers 
from all these deficiencies and results in a substa ntial overstatement of a company's costs through 
double counting. 
(ii) European Communities 
7.576  The EC argues that the investigating authority was justified in rejecting the reported SG&A 
costs reported by [[XXX]], and that the alternative basis used to derive these costs was "reasonable", 
within the meaning of Article 2.2.2(iii) of the AD Agreement.  According to the EC, the reported 
SG&A costs requested by [[XXX]] were understated because they related to domestic sales made in 
low quantities where economies of scale could not be achieved.  As regards G&A expenses, the EC 
asserts that no documented evidence was presented to  the investigating authority in either [[XXX]] 
submissions or during the on-site investigation to demonstrate that the G&A expenses allocated by the 
[[XXX]] to [[XXX]], which formed the basis of th e figures reported by [[XXX]], were incorporated 
into its normal accounting system.  In respect of selling expenses, the EC contends that the 
investigating authority was faced with a transfer pr icing issue between related companies that it could 
not resolve by reference to a market benchmark.  Thus, in order to resolve, what it argues, was the 
confusion surrounding [[XXX]] allocation of SG&A cost s, the investigating authority used the "other 
operating expenses" item in the consolidated acc ounts of the [[XXX]] as a proxy for SG&A cost.
719  
The EC argues that the investigating authority had no reason to believe that the consolidated accounts 
were not accurate.  Therefore, there was no reason to suspect that there could be double-counting of 
costs charged by one gro up company to another. 
(b) Evaluation by the Panel 
7.577  We recall that the first sentence of Article 2.2.2 states in clear terms that the amounts for 
SG&A cost used in the calculation of constructe d normal value "shall" be based on "actual data 
pertaining to production and sales in the ordinary course of trade of the like product by the exporter or 
producer under investigation".720  Norway does not claim that th e investigating authority acted 
inconsistently with this obligation because it failed to  rely on data pertaining to sales in the ordinary 
course of trade.  Rather, Norway's claim is, in the first instance, concerned with the justification (and 
alleged lack of reasons) provided by the investigatin g authority for its rejection of the reported SG&A 
costs. 
                                                      
719 EC, FWS, para. 714. 
720 See, para. 7.298.  WT/DS337/R 
 Page 257 
 
 
  7.578  Norway asserts that the SG&A  cost information submitted by [[XXX]] was derived from 
actual data taken directly from its audited account s, maintained in accord ance with Norwegian GAAP, 
reflecting allocation methods that comp anies in the [[XXX]] frequently used.721  Thus, according to 
Norway, there was no basis to reject the reported info rmation.  On the other hand, the EC   contends 
that the reported data understated actual SG&A expenses, and so the investigating authority was 
entitled to reject the reported costs and derive them  through the use of an alternative methodology.  
Thus, as we understand it, the issue at the centre of the parties' dispute is essentially a factual one.  It 
is therefore useful, before turning to assess the merits of the parties' arguments, to first set out some of the key facts surrounding the investigating authorit y's rejection of [[XXX]] reported SG&A costs. 
 Facts 
 7.579  In its reply to the investigating authority' s questionnaire, [[XXX]] reported G&A and selling 
expenses separately, on a per kilogram basis, under the headings "Administrative cost" and "Sales and 
marketing cost".
722  The information was presented in table form, together with various other cost 
items reported for the purpose of determining [[XXX]] full cost of production. 
7.580  The narrative section of [[XXX]] questionnaire repl y explained that [[XXX]] was part of the 
[[XXX]] of vertically integrated companies active in the business of farming, slaughtering and packing salmon and trout.  [[XXX]], the parent co mpany, performed all administrative functions for 
the companies belonging to the [[XXX]].  The costs associated with these function were "allocated to 
the various profit centres".
723  According to Norway, this meant that the cost associated with the 
administrative functions performed by [[XXX]] were  allocated according to a standard methodology 
to all of the companies in the [[XXX]].724   
7.581  [[XXX]] questionnaire reply indicates that it made  all of its sales of salmon through a related 
sales company, [[XXX]].725  Almost all of the domestic sales made by [[XXX]] through [[XXX]] 
were to another related company [[XXX]].726  The relationship between [[XXX]] and [[XXX]] was 
explained in the following terms: 
"One of our main customers is [[XXX]].  The mother company of [[XXX]], [[XXX]], 
holds 39 per cent of the shares of [[XXX]], the mother company of [[XXX]], and is therefore regarded as a company related to [[XXX]].  The salmon is sold on ordinary 
commercial terms to [[XXX]]."
727 
7.582  [[XXX]] received the same price obtained by [[X XX]] for its sales, which were for the most 
part made to [[XXX]].  [[XXX]] then invoiced [[XXX]] the cost of its selling services.728 
7.583  In the Information Note on Cost of Production, the investigating authority rejected [[XXX]] 
reported SG&A costs and used instead a proxy fo r these costs derived from the 2003 Profit and Loss 
Account for the Group.  The investigating authority explained its decision and the approach taken to 
calculate [[XXX]] SG&A expenses in the following terms: 
                                                      
721 Norway, FWS, paras. 1029, 1032, 1033 and 1045.  
722 [[XXX]], Questionnaire Reply, Excel file [[X XX]], Exhibit NOR-132 and Excel file [[XXX]], 
Exhibit NOR-138. 
723 [[XXX]], Questionnaire Reply, Exhibit NOR-139. 
724 Norway, FWS, para. 1030. 
725 [[XXX]], Questionnaire Reply, Exhibit NOR-139. 
726 [[XXX]], Questionnaire Reply, Exhibit NOR-141. 
727 [[XXX]], Questionnaire Reply, Exhibit NOR-139. 
728 [[XXX]], Questionnaire Reply, Exhibit NOR-141. WT/DS337/R 
Page 258  
 
  "SGA costs were not reported in the format requested.  In particular, no break-down 
was given on SGA relating to total turnover,  product concerned sold on the domestic 
market and for export, to related and unre lated customers.  Subsequently, SGA costs 
were re-assessed on the basis of the 2003 Profit and Loss Account of the Group Company (see table attached).  In addition,  a trader's mark-up was added to the SGA 
in order to cater for the activities of a trader involved in the export of the product 
concerned.  The mark-up added (5 per ce nt) does not correspond to the costs actually 
incurred by [[XXX]] but constitutes an approximation (confidentiality reasons)."
729 
7.584  [[XXX]] contested these findings, arguing that the reported SG&A costs were established on 
an arm's length basis and presented in its audited acc ounts.  It also contested the methodology applied 
to recalculate its SG&A costs, arguing inter alia  that on the basis of data from its 2004 accounts, the 
investigating authority's methodology would result in the calculation of a negative SG&A expense.730 
7.585  The investigating authority maintained its rej ection of [[XXX]] reported SG&A costs in its 
provisional findings, but modified the methodology used to calculate the amounts used in the construction of [[XXX]] normal value.  The inves tigating authority explained its decision as follows: 
"The principles of assessing SGA have not changed compared to the methodology set 
out in the information note.  However, in order to allocate SGA to domestic sales to 
unrelated customers a re-assessment was made  on the basis of the turnover ratio of 
unrelated sales against total sales.  Details are contained in spreadsheet "SGA factor".  In effect, the total amount of SGA incurred was allocated to unrelated sales only.  For the purpose of determining provisional measu res, this is considered a reasonable 
estimate of the SGA incurred on dome stic sales to unrelated customers."
731 
7.586  Once again, [[XXX]] contested th e investigating authority's findings, arguing that it was 
ignoring reported SG&A costs based on its audited accounts and appl ying an unreasonable 
methodology to recalculate them, which could result inter alia  in triple counting certain costs.732  
7.587  In the Definitive Disclosure provided to [[XXX] ] the investigating authority continued to 
reject the reported SG&A costs, but changed, fo r a third time, the methodology applied to determine 
the relevant costs to use in the construction of  [[XXX]] normal value.  Thus, the investigating 
authority explained: 
"Selling, general and administrative costs have  been re-assessed on the basis of "other 
operating expenses" borne by the group comp any.  By taking recourse to this 
approach, it is ensured that the full SGA incurred are actually allocated on the product 
concerned.  It is also noted that normal value is constructed on the basis of SGA 
applicable on domestic sales to unrelated cust omers.  This SGA should be higher than 
the SGA incurred for sales to related customers ([[XXX]])."733 
7.588  [[XXX]] maintained its objection to both the re jection of its reported SG&A costs as well as 
the revised methodology used to dete rmine those costs.  In particular , [[XXX]] argued that the use of 
the Group's consolidated "other operating expenses"  resulted in using an SG&A amount that was 18 
per cent of its cost of production in the constructi on of normal value.  In addition, [[XXX]] submitted 
                                                      
729 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142. 
730 [[XXX]], Comments on Information Note on Cost of Production, 16 March 2005, Exhibit NOR-
129. 
731 [[XXX]], Provisional Disclosure Document, 22 April 2005, Exhibit NOR-143. 
732 [[XXX]], Comments on Provisional Disclosure Document, 27 May 2005, Exhibit NOR-134. 
733 [[XXX]], Definitive Disclosure Document, 28 October 2005, Exhibit NOR-45.  WT/DS337/R 
 Page 259 
 
 
  that several irrelevant cost elements (smolt co st, feed cost, overhead, other farming cost and 
processing cost) were included in the amount of cons olidated "other operating expenses".  As such, 
the use of "other operating expenses" as the benc hmark for SG&A costs was bound to result in an 
unreasonably high outcome.  [[XXX]] submitted a break-down of these various cost elements and an 
auditor's statement attesting to the correctness of  the reported figures with Norwegian law and "good 
accounting practice".734 
 Norway's claim under Article 2.2.2 of the AD Agreement 
 
- General and administrative expenses 
7.589  We recall that in responding to Norway's claims in respect of the investigating authority's 
rejection of [[XXX]] reported G&A costs, the EC asserted that there was no documented evidence 
that the allocation of costs reported by [[XXX]] wa s incorporated in its normal accounting system nor 
that [[XXX]] was able to demonstrate that this  was the case during the on-the-spot investigation.735  
Norway argues that this explanation of the inves tigating authority's rejection of [[XXX]] reported 
G&A costs amounts to " ex-post rationalization".736 We agree.   
7.590  Having reviewed the investigating authority' s disclosures to [[XXX]], we can find no 
evidence to substantiate the EC's assertion that th e reason why the investigating authority rejected 
[[XXX]] reported G&A costs was that [[XXX]] had faile d to show that the cost allocations used to 
derive the reported figures were incorporated into  its normal accounting system.  The reason given for 
rejecting [[XXX]] reported SG&A costs in the In formation Note on Cost of Production was simply 
that they "were not reported in the format requested".737  The explanation provided in the provisional 
disclosure gives no further insight into the reason for rejecting [[XXX]] reported G&A costs.  
Likewise, the explanation set out in the definitiv e disclosure does not substantiate the EC's assertion 
that [[XXX]] failed to document th e consistency of the allocation methodology used to report G&A 
costs with its annual accounts.  Moreover, in respon se to a specific question from the Panel asking it 
to reconcile the asserted basis for the investigati ng authority's rejection of [[XXX]] reported G&A 
costs with the statements made by the investigati ng authority in the disclosures, the EC confirmed its 
view that [[XXX]] had failed to properly substa ntiate the allocation methodology applied, and in 
addition submitted that: 
"[[XXX]] was unable to demonstrate that the reported SGA expenses pertained to its 
domestic sales.  The SGA expenses we re understated since the domestic sales 
concerned low quantities where no economies of scale could play as compared to the 
situation on the important volume of export sales."738 
7.591  However, in making the above statements and co nfirming its initial factual assertions, the EC 
did not refer to any piece of evidence or information that was before the investigating authority at the 
time of the investigation.  
7.592  Thus, we find that there is no factual basis to support the EC's contention that the 
investigating authority rejected [[XXX]] re ported G&A costs because it considered that no 
documented evidence was presented in either [[XXX]] submissions, or during the on-site investigation, to demonstrate that the G&A e xpenses allocated by the [[XXX]] to [[XXX]] were 
incorporated into its normal accounting system.  Th ere is therefore no basis to conclude that the 
                                                     
 
734 [[XXX]], Comments on Definitive Disclosure Do cument, 8 November 2005, Exhibit NOR-136. 
735 EC, FWS, para. 711. 
736 Norway, SWS, para. 292. 
737 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142. 
738 EC, Response to Panel Question 120. WT/DS337/R 
Page 260  
 
  investigating authority's rejection of [[XXX]] re ported G&A costs rested on an unbiased and objective 
assessment of the facts before it.  Accordingly, we  find that in rejecting [[XXX]] reported G&A costs 
the investigating authority acted inconsisten tly with Article 2.2.2 of the AD Agreement. 
- Selling expenses 
7.593  Although the investigating authority's initial reason for rejecting [[XXX]] reported selling 
costs was that they had not been "reported in the format requested",
739 the Definitive Disclosure 
reveals that the investigating authority rejected  [[XXX]] reported selling costs because it considered 
them to be an unreliable measure of selling costs to unrelated customers.  This can be understood 
from the following statement: 
"It is also noted that normal value is co nstructed on the basis of SGA applicable on 
domestic sales to unrelated customers.  This SGA should be higher than the SGA 
incurred for sales to related customers ([[XXX]])."740 
7.594  Thus, the EC argues that the investigating au thority was justified in rejecting [[XXX]] 
reported selling costs because it was confronted  with a problem of "transfer pricing".741  
7.595  The facts show that [[XXX]] made all of its dom estic market sales through a related "sister" 
company [[XXX]], which in turn sold almost all of  [[XXX]] salmon to a related customer [[XXX]].  
[[XXX]] parent company, [[XXX]], held a 39 per cent interest in [[XXX]], which is the parent 
company of [[XXX]].  The price received by [[ XXX]] for sales through [[XXX ]] was the same as the 
price invoiced from [[XXX]] to [[XXX]].  [[XXX]] would invoice [[XXX]] the cost of administering its salmon sales to [[XXX]] and it was this cost that was reported by [[XXX]] as its selling expense.   
7.596  Thus, the entire chain of sale from [[XXX]] to the final customer [[XXX]] involved the 
transfer of salmon, and the invoicing of costs and prices, from one related company to another.  In 
particular, [[XXX]] paid its "sister" company [[XX X]] to sell its salmon, almost all of which was 
purchased by [[XXX]].  In retu rn, [[XXX]] would receive the price obtained by [[XXX]] from 
[[XXX]].  [[XXX]] parent company owned 39 pe r cent of [[XXX]], which owned 100 per cent of 
[[XXX]].    In the light of the corporate relations hips lying at the centre of [[XXX]] sales transactions, 
we cannot fault the investigating authority for su specting that the invoiced costs and prices may not 
have been reliable.  In this regard, we note that  Article 2.3 of the AD Agreement explicitly envisages 
the possibility of finding export price information unreliable when it is de rived from related-party 
transactions.  Similarly, pursuant to Article 2.1, related-party transactions may be a basis for finding 
domestic sales outside of the ordinary course of trade.
742  We see no reason why the related-party 
nature of an investigated party's selling activities mi ght not also affect the reliability of its reported 
selling costs. 
7.597  Norway also argues that in rejecting [[XX X]] reported SG&A costs, the investigating 
authority treated [[XXX]] in a discriminatory fashion, without justification or explanation, compared with [[XXX]], [[XXX]] and [[XXX]], even though all of these companies apparently reported SG&A 
costs using the same allocation methodology as [[ XXX]].  Furthermore, in the case of [[XXX]], 
Norway contends that not only was the allocation methodology the same, but also its sales of salmon 
were made to the same related customer [[XXX]].
743 
                                                      
739 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142. 
740 [[XXX]], Definitive Disclosure Document, 28 October 2005, Exhibit NOR-45. 
741 EC, FWS, para. 712; EC, SWS, para. 110. 
742 See, e.g., Appellate Body Report, US – Hot-Rolled Steel , para. 141. 
743 Norway, FWS, para. 1047.   WT/DS337/R 
 Page 261 
 
 
  7.598  We note that as far as selling costs are concerned, the investigating authority's rejection of 
[[XXX]] reported costs was not based on the methodol ogy used to derive those costs, but rather the 
related-party nature of the sales transactions from wh ich they were derived.  Thus, the fact that the 
investigating authority accepted the reported SG&A  costs of [[XXX]], [[XXX]] and [[XXX]], which 
were derived through application of the same methodology as [[XXX]], does not demonstrate that 
[[XXX]] was treated in a discriminatory fashion.  Moreover, while it is true that [[XXX]] sold its 
salmon production to the related company [[XXX]], the facts that have been presented to us do not 
demonstrate that these sales were made through [[ XXX]].  Indeed, the information that we have 
reviewed indicates that [[XXX]] sold directly  to [[XXX]], without using the services of any 
intermediate seller.744  To this extent, the facts surroundi ng [[XXX]] sales transactions, from which 
were derived its reported SG&A costs, were diffe rent from those underlying [[XXX]] reported selling 
costs.  In this light, the investigating authority' s rejection of [[XXX]] reported selling costs did not 
amount to discriminatory treatment compared with how the investigating authority treated [[XXX]]. 
7.599  Thus, on the basis of the facts that are before us , we consider that the investigating authority's 
conclusions about the reliability of [[XXX]] re ported selling expenses did not result from an 
evaluation of facts that was biased or not objective.   Therefore, we find that Norway has failed to 
establish that the investigating authority acted inconsis tently with Article 2.2.2, first sentence, when it 
rejected [[XXX]] reported selling expenses. 
 Norway's claim under Article 2.2.2(iii) of the AD Agreement 
 
7.600  Norway claims that, even if the investigating authority was entitled to reject [[XXX]] reported 
SG&A costs, the methodology applied to recalculate [[XXX]] SG&A costs was not "reasonable", and 
therefore inconsistent with Article 2.2.2(iii) of the AD Agreement.  This provision reads: 
"For the purpose of paragraph 2, the am ounts for administrative, selling and general 
costs and for profits shall be based on actual  data pertaining to pr oduction and sales in 
the ordinary course of trade of the lik e product by the exporter or producer under 
investigation.  When such amounts cannot be determined on this basis, the amounts 
may be determined on the basis of: 
 ...   
(iii) any other reasonable method, provided that the amount for profit so 
established shall not exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic 
market of the country of origin." 
7.601  We recall that after rejecting [[XXX]] reported SG&A costs, the investigated authority relied 
upon an allocation of costs from the "other operating expenses" reported in the [[XXX]] consolidated 
accounts.  Norway notes that this methodology r esulted in the addition of NOK [[XXX]] to [[XXX]] 
per kilogram cost of produc tion, increasing the company's costs by almost 20 per cent.
745  I n  
particular, Norway argues that according to the invest igating authority' calculations, [[XXX]] "costs to 
sell industrial grade salmon to its customers in Norway were (1)  significantly greater than the 
company's smolt costs, … (2) nearly 40 pe r cent of its salmon feed costs; and (3) over three times 
                                                      
744 [[XXX]], Comments on Definitive Disclosure, 8 November 2005, Exhibit NOR-147; [[XXX]] 
Letter to the Commission on double counting of harvest costs, 20 March 2006, Exhibit NOR-148. 
745 Norway, SWS, para. 301. WT/DS337/R 
Page 262  
 
  [[XXX]] labor costs for growing salmon."
746  Norway believes there were essentially three problems 
with the methodology applied by the investigating authority: 
"First, it resulted in the double counting of the SG&A expenses already reported as 
part of [[XXX]] cost of production.  Sec ond, it involved the unfair inclusion of 
SG&A costs incurred within  the [[XXX]] that were not associated  with salmon 
produced by [[XXX]] (e.g., G&A costs incu rred for smolt sold to unaffiliated 
customers).  Third, and most importantly, by relying on the broad category of " other 
operating expenses " as a "proxy" for SG&A costs, the EC double counted a 
significant number of other operating costs items that had already been accounted for in [[XXX]] reported cost of production fo r salmon (e.g. costs for smolt, feed, 
harvesting, and other farmi ng and processing operations)."
747 
7.602  The EC explains that the consolidated account s do not tell which part of the SG&A cost 
originate from [[XXX]] or from the other group comp anies, because they d escribe the costs incurred 
for the group as a whole.  Thus, assuming that the c onsolidated accounts had been properly prepared, 
and the EC argues that the investigating authority ha d no reason to doubt that this was the case, there 
would have been no double-counting of costs.  Furthermore, the EC argues that there was no reason 
why the investigating authority should have redu ced the costs allocated from the consolidated 
accounts by the SG&A costs originally reported by [[XXX]], because it contends that [[XXX]] reported SG&A costs were replaced by the consolidated SG&A costs.
748 
7.603  The investigating authority's calculation of [[ XXX]] full cost of production, including SG&A 
cost was provided to [[XXX]] in the Definitive Disclosure.  Annex 3 of this disclosure is an Excel file 
containing several worksheets.  The investigating au thority's final cost of production calculations are 
found in the worksheet with the title "COP".  This worksheet shows that the per kilogram cost of 
production for head-on gutted salmon was determined  by adding together "farming cost" of NOK 
[[XXX]], "wellboat cost" of NOK [[XXX]], "harve sting cost" of NOK [[XXX]] and "processing cost" 
of NOK [[XXX]].  To this was added SG&A cost of NOK [[XXX]].  The "full cost" of NOK [[XXX]] 
was then multiplied by a weight conversion ratio of 0.90, resulting in a final per kilogram cost of 
production of NOK [[XXX]].749 
7.604  The same worksheet confirms that the am ount of NOK [[XXX]] SG&A cost was derived 
from the consolidated accounts of the [[XXX]].  This  is evidenced by the explicit cross-reference to 
the worksheet titled "Group results", which shows how the amount of NOK [[XXX]] was determined.  
Likewise, the "COP" worksheet reveals that the "farming cost" amount of NOK [[XXX]] was derived 
from information contained in the worksheet title d [[XXX]].  The [[XXX]] worksheet indicates that 
the "farming cost" amount of NOK [[XXX]] was made  up of 12 different cost items.  Among these 
was the amount of NOK [[XXX]] that [[XXX ]] had reported as "Administrative cost".750  The amount 
of NOK [[XXX]] that [[XXX]] had reported as "Sales and marketing cost", was excluded from the calculation of "farming cost", and cost of production. 
7.605  Thus, our review of the investigating authorit y's calculation of [[XXX]] cost of production 
reveals that it failed to  remove from its calculation of [[XXX]] co st of production part of the reported 
SG&A costs that it had refused to accept.  In particular, although appare ntly rejecting [[XXX]] 
submission of G&A costs, these costs were neverthel ess included in [[XXX]] cost of production.  To 
the extent that the SG&A costs derived from [[X XX]] data were intended to act as a "proxy" for 
                                                     
 
746 Norway, Comments on EC Response to Panel Question 124.  Emphasis original. 
747 Norway, SWS, para. 300. 
748 EC, FWS, para. 714; EC, Response to Panel Question 124. 
749 [[XXX]], Definitive Disclosure Document, Exhibit NOR-45. 
750 [[XXX]], Definitive Disclosure Document, Exhibit NOR-45.  WT/DS337/R 
 Page 263 
 
 
  selling, as well as G&A costs, the investigating authority's calculation of [[XXX]] SG&A costs 
rendered those expenses greater than what they shou ld have been, in effect counting two amounts for 
G&A costs.  In our view, a methodology for calcula ting SG&A that inflates SG&A costs above what 
they should have been cannot be "reasonable" within  the meaning of Article 2.2.2(iii).  Accordingly, 
we find that the investigating authority acted in consistently with Article 2.2.2(iii) of the AD 
Agreement when it determined [[XXX]] SG&A costs on the basis of data pertaining to the [[XXX]] 
consolidated accounts without excluding the G&A costs originally reported by [[XXX]] from the calculation of its cost of production. 
5. Alleged Inconsistency of the EC's Treatment of [[XXX's]] Purchased Salmon Costs with 
Articles 2.2 and 2.2.1.1 of the AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.606  Norway claims that the investigating authority' s adjustment to [[XXX]] cost of production for 
purchased salmon costs was inconsistent with Artic les 2.2 and 2.2.1.1 of the AD Agreement because 
it overstated [[XXX]] costs of production by NOK [[ XXX]] million.  In particular, Norway submits 
that the investigating authority improperly determ ined the cost of production of [[XXX]] by adding 
the company's costs of purchasing salmon from domestic producers (NOK [[XXX]] million) to its 
cost of production, without taking account of th e revenue received (NOK [[XXX]] million) from the 
same domestic producers for slaughtering services performed by [[XXX]] in respect of the same 
purchased salmon.  As a consequence, Norway argu es that the investigating authority overstated 
[[XXX]] actual cost of purchased salmon (which was added to the cost of production) by NOK 
[[XXX]] million. 
7.607  Norway submits that the investigating author ity was fully aware of the NOK [[XXX]] million 
figure because it was reported in [[XXX]] questionna ire response as a deduction from the company's 
salmon processing costs.  Moreover, Norway notes th at the investigating authority even referred to 
this amount in its Definitive Disclosure for the pur pose of establishing [[XXX]] slaughtering costs.  
Thus, according to Norway, the EC has no justificat ion for asserting that the investigating authority 
was unfamiliar with the figure and that it could not be verified during the on-the-spot investigation 
conducted on [[XX X]] premises.  
(ii) European Communities 
7.608  Initially, the EC contested Norway's claim becau se, in its view, [[XXX]] never submitted the 
figure of NOK [[XXX]] million to the investigating authority.  Subsequently, the EC acknowledged 
that the figure had been reported as a deduction from [[XXX]] costs of production, but argued that 
[[XXX]] was unable to justify the deduction during verification of its accounting records.  Finally, 
after reconsidering its position and the data submitte d by [[XXX]] during the investigation, the EC 
stated, in response to a Question from the Pane l, that [[XXX]] purchases of live salmon and 
slaughtering activities for third parties could be isol ated from its own-farming activities.  Thus, the EC 
concluded that the "gross purchase costs of NOK [[XXX]], and harvesting/ slaughtering revenue of 
NOK [XXX]] should be taken out of the results of  [[XXX]], and the quantity of salmon should be 
limited to the farmed fish harvested during the investigation period".
751 
                                                      
751 EC, Answer to Panel Question 128. WT/DS337/R 
Page 264  
 
  (b) Evaluation by the Panel 
7.609  As described in the above argumen ts section, the EC's response to Norway's claim in respect 
of the investigating authority's treatment of [[XXX]] purchase salmon costs has evolved during the 
course of this proceeding.  We understand the EC's final position to be that expressed in its response 
to Panel Question 128, where it explicitly acknowledg ed that the investigating authority should not 
have included [[XXX]] slaughtering revenue of NOK [[XXX]] in its cost of production.  In making 
this statement, we understand that the EC has accep ted that the cost of production determined for 
[[XXX]] in the investigation was overstated by at l east this same amount.  In this light, and recalling 
our findings in respect of the obligations on inv estigating authorities when constructing normal value 
under Articles 2.2 and 2.2.1.1,
752 we uphold Norway's claim, and therefore find that the investigating 
authority acted inconsistently with these provi sions when it added the amount of NOK [[XXX]], 
representing revenue from the slaughtering services provided by [[XXX]] to third parties, to its cost of production.   
G. A
LLEGED INCONSISTENCY OF THE EC'S INJURY DETERMINATION WITH ARTICLES  3.1,  3.2, 
3.4, AND 3.5 OF THE AD A GREEMENT  
1. Arguments of the Parties 
(a) Norway 
7.610  Norway raises three principal challenges to the EC's injury determination.  First, Norway 
argues that the EC violated Articles 3.1 and 3.2, and consequently Article 3.5, because it failed to 
correctly determine the volume of dumped  imports to be considered in its injury analysis.  Second, 
Norway argues that the EC violated Articles 3.1. and 3.2, and consequently, Article 3.5, because it 
failed to adequately examine the existence of price undercutting.  Finally, Norway argues that the EC 
violated Articles 3.1 and 3.4 because it failed to objectively examine price trends affecting EC 
producers.    
7.611  With respect to the allegedly incorrect volume of imports, Norway asserts that Article 3.1 
requires the investigating authority to examine objec tively "the volume of the dumped imports", and 
that Article 3.2 requires an examination of whethe r there has been a "significant increase in dumped 
imports", while  Article 3.5 requires that the authority must demonstrate that "the dumped  imports are, 
through the effects of dumping, as set forth in pa ragraphs 2 and 4, causing injury".  Thus, Norway 
argues that under Article 3.5, it is the imports found to be dumped  under Article 3.2 that must cause 
injury.     
7.612  Norway asserts that, in the circumstance of this case, the dumping determinations made with 
respect to sampled producers could not be applied to  non-sampled exporters, refe rring in this regard to 
the Appellate Body's decision in EC – Bed Linen (21.5 – India) , which held that while it is possible to 
rely on findings concerning dumping by sampled producers to draw conclusions concerning dumping 
by non-sampled producers, this is not always the case.753   In Norway's view, the circumstances of this 
case are such that it is not possible to extrapolat e from sampled producers to non-sampled companies, 
because of the different operations and cost stru ctures of the companies sampled (production and 
exporting) and the non-sampled companies (exporting only).   Since, Norway maintains, the dumping determinations regarding sample d exporting producers do not provide positive evidence that imports 
from non-sampled exporters are also dumped, the EC  erred in treating all imports from Norway as 
                                                     
 
752 See, paras. 7.483-7.487, 7.491 and 7.528. 
753 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India – Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India )"), 
WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965, para. 138.    WT/DS337/R 
 Page 265 
 
 
  dumped.  Finally, Norway asserts that the EC wa s required to treat as non-dumped, and therefore 
exclude from its injury analysis, imports from Nordlaks, with respect to which it found a de minimis  
margin of dumping.   
7.613  With respect to price undercutting, Norway observes that Article 3.1 requires that the 
investigating authority must examine "the eff ect of the dumped imports on prices" of the like 
domestic product, while Article 3.2 provides that the authority must consider whether there was 
"significant price undercutting" by the dumped imports.  In Norway's view, the mere fact that imports 
have lower prices than like domestic products does not  necessarily mean that the effect of the dumped 
imports is significant price undercutting, as the pric e difference could be e xplained by some other 
factor, such as a price premium enjoyed by domestic products.  In this case, Norway notes that the EC 
found that the dumped imports undercut the price of  the domestic product by 12 per cent.  Norway 
argues that the EC failed to address, in the Defi nitive Regulation, the fact, which it had previously 
acknowledged in the disclosure of essential facts, that the domestic product enjoyed a price premium 
of 12 per cent.  Thus, Norway argues, the price difference between the imported and domestic products simply reflects the usual price premium en joyed by domestic products.  Taking account of 
this price premium, Norway argues that there was no price undercutting.   
7.614  Third, Norway argues that the EC erred in c onsidering the price trends for the domestic 
industry.  Norway notes that the EC examined the prices of the sampled domestic producers in Euros, 
and concluded that prices had dropped by 9 per cent.   However, Norway maintains that this price 
"decrease" is a mathematical construct and stems entirely from an appreciation in the value of the 
Euro in comparison to the pound sterling over the pe riod considered.  Norway asserts that the EC was 
required to evaluate the evidence concerning pri ce trends from the perspective of the sampled 
companies being examined, which incurred most of  their costs in pounds sterling, and made 70 per 
cent of their sales in the UK, in pounds.  Norway argues that, when prices trends are examined in 
pounds sterling, instead of a decline in prices, prices remained constant and did not fall.   
(b) European Communities 
7.615  The EC asserts that it acted appropriately in treating all imports from Norway as dumped in 
its injury analysis.  The EC maintains that it wa s appropriate in the circumstances of this case to 
extrapolate from the findings of dumping for sampled companies (producing exporters) to non-sampled companies (including non-producing exporters).  In this regard, the EC argues that non-producing, or independent, exporte rs essentially serve the same function as the exporting departments 
of exporting producers, and that therefore there is no reason to conclude that their experiences would 
be any different, and it was therefore appropriate to treat their exports as dumped on the basis of the 
evidence of dumping by sampled producers.  The EC argues that the facts and circumstances at issue 
in the EC-Bed Linen   dispute were very different from those in this case, and that these differences 
warrants a different outcome in this case.  The EC points out that in EC – Bed Linen (Article 21.5 - 
India) , producers accounting for 53 per cent of the imports in the sample were found not to be 
dumping, and the only evidence of dumping was the evidence obtained from the sampled producers.
  
In this case, the EC maintains that  all of the sampled companies were found to be dumping (including 
one company having a de minimis  dumping margin), and the examined producers accounted for 
30 per cent of all imports.  For the EC, the extrapolation from the sample to all imports was appropriate in this case, as there were no imports  from sampled producers that were not dumped.  
Moreover, the EC maintains that among the imports  from the sampled exporting producers, the EC 
also examined and included imports from those companies that exported to the Community via 
traders, and these imports also were found to be dumped.  
7.616  The EC also maintains that it had other s ources of information (besides the findings of 
dumping for the sampled producers) indicating that  imports from the non-sampled companies were 
dumped. The EC notes that Eurostat data was u sed in the assessment of the imports from non co-WT/DS337/R 
Page 266  
 
  operating companies, which were not in the sample , and asserts that the price levels of the non-
sampled companies were very similar to those of the sampled companies.
754  The EC asserts that it 
concluded that non-cooperating co mpanies were not dumping less than the sampled companies, 
because there was no reason to distinguish, in the interpretation of the Eurostat data, between the 
sampled and non-sampled companies. Non-coopera ting companies accounted for approximately 
20 per cent of all the imports.  For the EC, this implies that the investigating authority had positive 
evidence that approximately 50 per cent of all imports were dumped.  
7.617  Finally, the EC maintains that the fact that Nordlaks had a de minimis  dumping margin does 
not mean that it was not dumping, and therefore does not require that its imports be excluded from the 
injury analysis.  The EC asser ts that the concept of a de minimis  dumping margin is a legal rule 
relevant in some situations under the AD Agreement, but not in this circumstance.  The EC agrees 
that, in theory, if 95 per cent of the exports of sampled companies had zero or de minimis  margins, 
that sample could not be the basis for an extr apolation that all imports  from the country in 
question are dumped.  However, it argues, Nordlaks ' exports accounted for a small percentage of the 
volume of exports of the  sampled companies, and th is cannot be considered significant when all other 
companies included in the sample are dumping.  
7.618  The EC maintains that it properly examined pri ce undercutting.  The EC asserts that Norway 
appears to be arguing that a failure to discuss the price premium in the Definitive Regulation is the 
problem.  However, the EC maintains that it actually considered and examined the effect of the price 
premium and, having found that it was not a factor  which could affect its price undercutting analysis, 
did not mention it in the Definitive Regulation. Thus, the EC asserts that Norway's argument is 
misconceived.    The EC notes that the price premium was a ddressed in the disclosure, and that the 
premium was taken into account in calculating the non-injurious MIPs - to the benefit of Norwegian 
exporters, as it resulted in lower MIPs.  Moreover, the EC maintains that the price premium does not 
play a role in a price undercutting analysis. For the EC, price undercutting is  a "snapshot" of the 
market situation and reflects nothing but the real price differential.   The EC also notes that, under 
Article 3.2 of the AD Agreement, price undercutting is  not the only relevant factor in considering the 
effect of dumped imports on prices, and that in this  case, the EC also established  price depression and 
price suppression.  Finally, the EC observes that the conclusion that 12 per cent price undercutting 
equals the usual price premium of 12 pe r cent is not mathematically correct.755  The EC maintains, 
even under the Norwegian approach, there woul d still be 1.44 per cent price undercutting.  
7.619  The EC observes that Norway's claim concerni ng the evaluation of price trends is based, 
factually and legally, on the proposition that pounds sterling was the operating currency of the 
companies examined in the sample.  However, th e EC asserts, Norway is incorrect on both the facts 
and the law. Moreover, the EC maintains that even if Norway were correct, this would not 
demonstrate a violation of Articles 3.1 and 3.4 in  the EC's assessment of the domestic industry, as 
there is no legal obligation to examine prices in "operating currency".   The EC maintains that the 
results of its analysis would have been the same  regardless of which currency was used, so long as 
that use was consistent.756  Moreover, the EC observes that a significant part of the transactions of the 
domestic industry took place in Euro, and those sales showed price declines.757  Finally, the EC 
observes that even if there were no price decline, this would not m ean that the assessment of the EC 
investigating authority violated Articles 3.1 and 3. 4 of the Anti-Dumping Agreement.  Article 3.4 of 
                                                      
754 Relying on Exhibit EC-10. 
755 The EC calculates that, assuming the price of EC  product is 100 and the price of the Norwegian 
product 88 (i.e., 12 per cent price undercutting), the pric e premium should be calculated as 112 per cent of the 
price of the Norwegian product (i.e.,. 112 per cent of 88, or 98.56 per cent) 
756 See table, EC, FWS, para. 381. 
757 Exhibit EC-13.  WT/DS337/R 
 Page 267 
 
 
  the AD Agreement specifically provides that none of  the factors listed in Article 3.4 shall be given 
decisive guidance in the examination of the dumped imports on the domestic industry.  
2. Evaluation by the Panel 
7.620  In our evaluation of Norway's claims regarding the domestic industry, we noted that whether 
the EC defined the domestic industry in a proper mann er may well be decisive in the consideration of 
other claims in dispute, i.e., subsidiary claims regarding initiation,  as well as claims regarding injury 
and causation.  We concluded by finding that the EC 's approach to defining domestic industry in this 
case resulted in an investigation concerning a dom estic industry that did not comport with the 
definition set forth in Article 4.1.  Thus, it is clear to us that the EC analyzed the wrong industry in considering the issue of injury.  In addition, the EC's examination of the volume, price effects, and 
impact of dumped imports is ba sed on determinations regarding dumping which we have determined 
are inconsistent, in various ways, with the AD Ag reement.  Thus, it seems clear to us that the 
investigating authority's analysis  of injury was not based on an objective examination of positive 
evidence concerning proper determinations of dumping and a proper definition of the domestic 
industry, and that the injury determination is th erefore not consistent with the requirements of 
Article 3.1 of the AD Agreement.  Nonetheless, the cl aims raised by Norway in this dispute relate to 
discrete elements of the investigating authority's an alysis and determination that are capable of being 
assessed independently, and we will therefore consider them.
758      
(a) Volume of dumped imports 
7.621  Norway raises two claims concerning the vol ume of dumped imports.  The first of these 
concerns the EC's treatment of imports from Nordlaks, for which a de minimis margin of dumping 
was calculated, as dumped imports in making its injury  determination.  We begin by considering the 
meaning of the term "dumped imports" in the cont ext of injury determina tions under Article 3. 
7.622  Article 3.1 provides: 
"A determination of injury for purposes of  Article VI of GATT 1994 shall be based 
on positive evidence and involve an objective examination of both (a) the volume of 
the dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the consequent impact of these imports on domestic 
producers of such products." 
Thus, Article 3.1, requires consideration of th e volume, price, and consequent impact of dumped  
imports on the domestic industry.  Articles 3.2, 3.4 and 3.5 set out more specific guidelines for the 
consideration of the volume, price effects, impact on domestic producers, and causation, and similarly 
require consideration of dumped  imports.   
 7.623  Norway's claim that imports attributable to Nordlaks were wrongly treated as dumped in the 
EC's injury determination thus raises the question of the interpretation of the term "dumped imports" 
in Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreem ent.  Previous panel and Appellate Body decisions 
have made clear that dumping is a determination made with reference to a product from a particular 
                                                     
 
758 We note that, in addition to making findings neces sary to resolve the matter before it, a panel is 
required to "make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements."  Article  11, DSU.  The Appellate Bo dy has stated that "[s]uch 
"other findings" could, for instance, relate to implementation, to the extent that such findings "will assist the 
DSB in making the recommendations or in giving the rulings provided for in the covered agreements". Appellate Body Report, European Communities – Export Subsidies on Sugar ("EC – Export Subsidies on 
Sugar "), WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005, para. 331. WT/DS337/R 
Page 268  
 
  producer/exporter.
759  Thus, it seems clear, and previous panels  have concluded, that an investigating 
authority is entitled to consider all imports attribut able to a producer found to be dumping as "dumped 
imports" in its analysis of injury.760    
7.624  There is no dispute between the parties as to the relevant facts.  The EC calculated a de 
minimis margin of dumping for Nordlaks,761 and found that the amount of the definitive anti-dumping 
duty for Nordlaks shall be 0.0 per cent.762  In its analysis of volume, price effects, impact on domestic 
producers, and causation, the EC considered all imports from Norway to be dumped, including 
imports attributable to Nordlaks.  Thus, Norway's cl aim in this case raises the question, not previously 
resolved by any panel or the Appellate Body, whether imports for which a finding of de minimis  
dumping margins is made may be treated as "dum ped imports" for purposes of injury analysis.763 
7.625  We consider that imports attributable to a producer or exporter for which a de minimis  
margin of dumping is calculated may not be treated as "dumped" for purposes of the injury analysis in 
that investigation.  Article 5.8 of the AD Ag reement provides that there shall be "immediate 
termination in cases where the authorities determine that the margin of dumping is de minimis ".  Thus, 
it is clear that no anti-dumping duties can be impos ed on such imports.  In our view, a finding of de 
minimis dumping margins is a finding that there is no legally cognizable dumping by the producer or 
exporter in question.  If there is no legally cognizable  dumping by a particular producer or exporter, as 
a result of a finding of de minimis margins, then it seems inescapable to us that imports attributable to 
such producer or exporter may not be treated as "dum ped" imports for any aspect of that investigation. 
In our view, it would be illogical to treat such imports as "dumped" imports for purposes of the injury determination, when they cannot be consider ed as "dumped" for purposes of imposition of anti-
dumping duties as a result of the investigation.     
7.626  As noted above, this specific issue has not b een resolved by any previous panel or the 
Appellate Body, but a number of panels have made  statements suggesting that the answer to this 
question is as we have concl uded.  Thus, the Panel in EC-Bed Linen, observed, with respect to a 
producer for which de minimis  margins were calculated that "i mports attributable to such a 
producer/exporter may not be considered as "dumped" for purposes of injury analysis."
764  T h e  
subsequent EC – Bed Linen (Article 21.5 – India) Panel similarly commented that "the question of 
which imports are to be considered dumped is readily answered – 'dumped imports' are all imports attributable to producers or exporters fo r which a margin of dumping greater than de minimis  is 
calculated."
765  The Panel in Argentina – Poultry  agreed with these statements, finding that "the term 
"dumped imports" refers to all im ports attributable to producers or exporters for which a margin of 
                                                      
759 Panel Report, EC – Bed Linen , para. 6.114, Appellate Body Report, EC – Bed Linen , para. 51. 
760 Panel Report, EC – Bed Linen , para. 6.136. 
761 Definitive Regulation, Recitals 32-33. 
762 Definitive Regulation, Article 1, para. 3. 
763 We note the EC's contention that whether Nordlaks' imports were excluded from the volume of 
dumped imports would not have made any significant difference on the facts of this case.  Essentially, this is an 
allegation of harmless error, which is not cognizable  in our evaluation of the investigating authority's 
determination.  See, EC, FWS, para.352.  Moreover, as we discuss above, Norway's claim raises a question of 
legal interpretation, which must be addressed before any consideration of the facts may be undertaken.  If we 
conclude that imports from producers with a de minimis  margin of dumping may not be treated as dumped 
imports for purposes of the injury analysis, then the vo lume of such imports is irrelevant.  Conversely, the 
volume of imports can have no relevance in our analysis of the legal question.  Since we do not consider the 
evidence concerning the volume of imports attributable to Nordlaks to be relevant to our analysis, we do not consider the information in Exhibit EC-12,  relied on in this regard by the EC. See also,  paras. 7.835 - 7.860.  
764 Panel Report, EC – Bed Linen , para. 6.138. 
765 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen 
from India – Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India)") , 
WT/DS141/RW, adopted 24 April 2003, para. 6.133.  WT/DS337/R 
 Page 269 
 
 
  dumping greater than de minimis  has been calculated."766  These statements lend support to our 
conclusion that imports for which a de minimis  margin of dumping is calculated may not be treated as 
dumped for purposes of analysing injury. 
7.627  The EC recognizes that the consequence of a finding of de minimis  dumping is that no duties 
may be applied to the imports in question, as it has stated that it does not, as a matter of policy, 
impose anti-dumping duties on imports from producers with a de minimis margin.767  T h e  E C ,  
however, argues that the non-imposition of duties is  a different issue from the question whether a 
company with a de minimis margin of dumping is in fact dumping and injuring the domestic 
industry.768  In the EC's view, while the inclusion of imports from companies with de minimis  margins 
in the volume of "dumped" imports for injury analys is may, in some cases, be inappropriate, this was 
not such a case, and the exclusion of imports attributable to Nordlaks would not have had any 
significant effect on injury analysis.769  We do not agree with the EC's view that the injury analysis is 
"a distinct part of the anti-dumping action a nd has to be considered on its own merits".770  We can 
conceive of no rational basis on which the imports  which are not legally cognizable as "dumped" 
because a de minimis  margin has been calculated for the producer/exporter in question could be 
included in the volume of dumped imports taken into account in assessing the question of injury.  In 
our view, the consequences from a determination that there is no le gally cognizable dumping must be 
taken into account in the injury analysis. 
7.628  Moreover, whether it is permissible to treat imports for which a de minimis  margin is 
calculated as dumped for purposes of injury analys is when no anti-dumping duties can be imposed on 
them is not, in our opinion, a question of fact to be addressed on the basis of the circumstances in 
different investigations.  Rather, we consider that the issue raises a question of interpretation of the 
term "dumped imports".   We consider that an in terpretation of "dumped im ports" in Article 3 which 
would allow an investigating authority to includ e in the volume of dumped imports for purposes of 
injury analysis imports attributable to a producer/exporter for which a de minimis margin has been 
calculated is impermissible.  As noted above, Artic le 5.8 requires termination of the investigation 
upon a determination of de minimis  margins for imports from a particular foreign producer or 
exporter, and thus leads to the conclusion that ther e is no legally cognizable dumping.  A consistent 
interpretation of the term "dumped" requires th at such imports be excluded from the "dumped 
imports" considered in the analysis of injury (and causation, of course).  We therefore conclude that 
the EC acted inconsistently with Articles 3.1 and 3. 2 by treating imports attributable to Nordlaks as 
dumped in its injury analysis. 
7.629  The second of Norway's claims with respect to  the volume of dumped imports concerns the 
treatment of imports attributable to producers/e xporters who were not individually examined in 
making the dumping determination ("unexamined exporters") as "dumped imports" for purposes of 
the injury determination under Article 3.   Norway  argues that an investigating authority may treat 
imports from unexamined exporters as dumped in its injury determination if there is evidence to 
support extrapolating from the selected examined producers to all imports, but asserts that the facts 
preclude such treatment in this investigation.  No rway's argument is rooted in the fact that the 
enterprises selected for individual examination by  the investigating authority for dumping consisted 
exclusively of Norwegian producers who also e xported ("exporting producers"), while many of the 
unexamined exporters were exclus ively exporters ("non-producing exporters").  Norway argues that 
findings of dumping for the examined exporting producers may not be relied upon as evidence as to 
whether imports from unexamined non-producing e xporters were dumped, as the business activities, 
                                                      
766 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.303 
767 The EC refers to this as a "long-standing EC policy".  EC, Answer to Panel Question 34, para. 157. 
768 EC, Answer to Panel Question 34. 
769 EC, FWS, para. 352. 
770 EC, Answer to Panel Question 34. WT/DS337/R 
Page 270  
 
  cost structures, and pricing of these two groups are different.  The EC, on the other hand, argues that 
extrapolation from the findings of dumping for the ex amined producers to all imports was appropriate 
in this case.  The EC asserts th at all examined producers were found to be dumping, a finding which 
covered 30 per cent of total imports  from Norway, and maintains that this alone is sufficient to 
extrapolate to all imports.  In addition, the EC asserts that other evidence supported the conclusion 
that imports from unexamined exporters were dumped, in cluding the fact that, pursuant to Article 6.8, 
all imports from non-cooperating companies were f ound to be dumped.  The EC points specifically to 
Exhibit EC-10, which it argues shows that price levels  of the examined producers were very similar to 
those of the unexamined producers.
771     
7.630  Norway's argument in this regard is based on the same facts as its claim of error in the EC's 
decision to include in the limited examination only exporting producers, and not exporters that did not 
also produce salmon.  We have found elsewhere in our  report that the EC did not err in this regard  
and that therefore the selection of the companies was not, for that reason, inconsistent with Article 6.10 of the AD Agreement.
772   In our view, the fact that a number of the unexamined 
producers were non-producing exporters does not underm ine the relevance of the findings of dumping 
for the examined producers as evidence that imports from unexamined producers are dumped for 
purposes of the injury analysis.773  The purpose of limited examination in an anti-dumping 
investigation is to allow an investigating authorit y to draw conclusions about dumping for all foreign 
producers and exporters on the basis of a detailed examin ation of less than all of them.  In our view, if 
the selection for limited examination is made cons istently with the AD Agreement, then the 
investigating authority may treat the findings of dumping made with respect to that group of 
companies as evidence of dumping by all unexamined companies, regardless of possible differences 
between some or all of them and the examined companies.  To do otherwise would limit the utility of Article 6.10 of the AD Agreement, as it would requi re the investigating authority to gather and 
consider information for unexamined producers, which it would not otherwise do as a result of a 
decision to conduct a limited examination, in order to be able to make individual judgments as to 
possible differences between the examined producers a nd unexamined exporters.  In our view, there is 
no obligation to consider facts concerning the individual operations of  unexamined exporters per se  in 
order to decide the extent to which findings for the examined producers may be relied upon in 
drawing conclusions concerning whet her imports attributable to une xamined exporters are dumped.  
Moreover, in our view, it would be illogical to acce pt the principle that conclusions about dumping 
can be based on the examined companies for purposes of the imposition of anti-dumping duties on 
unexamined companies, but not accept that those same conclusions about dumping may serve as 
evidence that imports attributable to unexamined e xporters are dumped in the same investigation.   
7.631  The question of treatment of imports attributable to unexamined producers was addressed by 
the Appellate Body in the EC - Bed-Linen implementation dispute.  In  implementing the original 
Panel and Appellate Body decisions in the EC - Bed Linen  dispute, the EC re-examined the dumping 
determinations for examined producers, and found th at three of the five producers examined were 
dumping, and two were not.  The producers found not  to be dumping accounted for 53 per cent of 
total imports of the five examined producers.  In its  injury analysis in the implementation context, the 
EC excluded the imports attributable to the tw o non-dumping producers from the volume of dumped 
                                                     
 
771 Norway contests the propriety of this Exhibit, No rway First Oral Statement at para. 111, asserting 
that it contains information that the EC cannot demonstrate was before the investigating authority, was not made available under Article 6.4, was not disclosed under Article 6.9, and was not identified or mentioned in the 
published determinations, and supports impermissible ex post  explanations for the EC's determination.  We deal 
with these objections separately, at section  VII.J.4, below. 
772 See, para. 7.181. 
773 In fact, in a case where, as here, the unexamin ed exporters source their exports from producers for 
which determinations of dumping were made, as they do not, themselves, produce the product they export, we can see no reason why those determinations of dumping would not be compelling evidence that the exports by 
non-producing exporters are dumped.  See, footnote 339  WT/DS337/R 
 Page 271 
 
 
  imports in its injury analysis, but included all impor ts attributable to producers which were not in the 
group selected for limited examination.  The Pa nel concluded that this was permissible.774  
7.632  The Appellate Body reversed.  The Appellate  Body noted that there was no specified 
methodology for determining the volume of dumped imports, but stated that any such methodology must be based on positive evidence and an objective ex amination of relevant evidence.  The Appellate 
Body concluded that the fact that producers accounti ng for 47 per cent of total imports attributable to 
examined producers were found to be dumping was not  a sufficient basis to justify treating imports 
from unexamined producers/exporters  as dumped for purposes of the injury analysis.  The Appellate 
Body determined that an objective examination of th at evidence alone could not lead to the conclusion 
that imports from unexamined producers were dumped,
775 and concluded that there must be other 
evidence to justify treating imports from unexamine d producers as dumped for purposes of the injury 
investigation.776  While a calculation of dumping margins for each individual producer/exporter was 
clearly not required, as Article 6.10 permitted limite d examination, the Appellate Body considered 
that other evidence could be relied upon in dete rmining whether imports from unexamined producers 
were dumped imports.777   
7.633  We are troubled by the Appellate Body's decision in this regard.  The Appellate Body's report 
indicates that an investigating authority may consider  "different and additional evidence" to evaluate 
whether imports from unexamined producers are dumpe d for purposes of injury analysis.  In this 
regard, the Appellate Body's Report refers to ev idence "such as witness testimony and different types 
of documentary evidence about critical aspects of the market, conditions of competition, production 
characteristics, and statistical data relating to the volume, prices, and effects of imports" as evidence 
that may form part of the evidence an inv estigating authority may take into account "when 
determining, on the basis of an "objective examin ation" whether or not imports from non-examined 
producers are being dumped."778  However, Article 2.1 of the AD Agreement makes clear that "a 
product is to be considered as being dumped" only if  the export price is less than the normal value, 
and establishes detailed rules for that calculation.  The Appellate Body has, in the context of sunset 
reviews, found that a determination of likelihood of  dumping based on a dumping margin calculated 
using a methodology inconsistent with Artic le 2 of the AD Agreement is unacceptable.779  Thus, it is 
unclear to us how such "other evidence" can pr ovide a legally sound basis for a conclusion that 
imports attributable to unexamined producers are dumped.  In our view, the fact that imports from 
unexamined producers are, under the AD Agreement, recognized as dumped for purposes of the imposition of anti-dumping duties, and that those duties may be collected in amounts limited by 
calculations made pursuant to Article 2 of the AD Agreement, does establish a legally sound basis for 
the treatment of those imports as dumped  for purposes of the injury analysis. 
7.634  Moreover, while the Appellate Body found, in EC- Bed Linen , that in a case where not all 
examined producers are found to be dumping, an inv estigating authority must consider other evidence 
in deciding the extent to which imports from unexamined producers may be treated as dumped for 
purposes of injury analysis, we do not see why the opposite  should also be the case.  That is, we see 
no reason why, if all examined producers are found to be dumping, an investigating authority should 
be required to consider "other evidence" that mi ght indicate that imports from some unexamined 
                                                     
 
774 Panel Report, EC-Bed-Linen (Article 21.5-India) , para. 6.144. 
775 Appellate Body  Report, EC-Bed-Linen (Article 21.5-India) , para. 132. 
776 Appellate Body  Report, EC-Bed-Linen (Article 21.5-India) , para. 124.  In that case, the EC had 
proffered no evidence, other than the determination with respect to the sampled producers, with respect to the 
question of dumping by unexamined exporters, and thus the Appellate Body did not go on to consider the 
whether there was a sufficient basis for the treatment of imports from unexamined producers as dumped. 
777 Appellate Body Report, EC – Bed-Linen (Article 21.5-India) , para. 129 and fn. 162. 
778 Appellate Body Report, EC – Bed-Linen (Article 21.5-India) , para. 129 and fn. 162.    
779 Appellate Body Report, US – Corrosion  Resistant Steel Sunset Review , para. 130. WT/DS337/R 
Page 272  
 
  producers are not dumped.  This would again undermine the u tility of Article 6.10, as it would require 
the investigating authority to c onsider evidence concerning companies not included in the limited 
examination.  In our view, a finding that all impor ts attributable to examined producers are dumped 
may be treated as evidence that all imports attrib utable to unexamined producers are dumped for 
purposes of the injury analysis without a further examination of the nature of the operations of 
examined and unexamined producers.
780  Of course, in this case, the EC erred in concluding that all 
examined producers were dumping, as we have fou nd above that the EC erred in treating imports 
from Nordlaks as "dumped imports".  We have also found that the EC erred in the determination of 
the companies to be included in the group examined .   Thus, not all examined sampled producers were 
found to be dumping, and to the extent that the EC  extrapolated to all imports on the basis of a 
conclusion that all imports attributable to the examined producers were dumped, it erred.   
7.635  Finally, we note the EC's argument that th ere was other evidence relied upon in determining 
the treatment of imports attributable to unexami ned exporters as dumped.  We can, however, discern 
nothing on the face of the Provisional or Definitive Regulation which supports the EC's argument that 
other evidence was considered at the time, or that  any analysis was undertaken as to whether imports 
attributable to unexamined exporters  were dumped.  There is no reference to any consideration of 
other evidence or any discussion of whether to treat imports from unexamined producers as dumped.  Paragraph 40 of the Provisional Regula tion, cited by the EC in this regard, relates to the calculation of 
the dumping margin to be applied to "non-cooperating companies".
781  However, the mere fact of 
calculating a dumping margin to be applied to im ports from these companies does not, in our view, 
demonstrate that the investigating authority cons idered, on the basis of that calculation, whether 
imports attributable to those companies were dump ed for purposes of injury analysis.  The EC also 
refers to Exhibit EC-10 in this regard.  However,  there is no indication that this information was 
considered by the investigating authority in or der to justify a conclusion that all imports from 
unexamined exporters were dumped for purposes of the injury determination, a nd we have not taken it 
into account in our analysis.782   
7.636  Therefore, we conclude that that the EC erre d in treating imports attributable to a company 
for which a de minimis  margin was calculated as dumped, and further erred in treating all imports 
from unexamined producers and exporters as dumped, in the context of its injury determination.  As a 
result, the EC acted inconsistently with Articl es 3.1 and 3.2 in considering the volume of dumped 
imports.  We do not consider it necessary to address Norway's consequential claim of violation of 
Article 3.5, which is based on the same considera tions addressed above.  A finding of violation of 
Article 3.5 would add nothing to the resolution of this dispute, nor would it aid in any potential 
implementation, and therefore the exercise of j udicial economy in this respect is warranted. 
(b) Price undercutting and price trends 
7.637  Norway's claims concerning the EC's ex amination of price undercutting are under 
Articles 3.1, 3.2, and 3.5 of the AD Agreement.  Artic le 3.2 is at the core of Norway's argument, so 
we begin by considering the text of that provision, which states, in pertinent part: 
"With regard to the effect of the dumped imports on prices, the investigating 
authorities shall consider whether there has been a significant price undercutting by 
                                                      
780 Moreover, a finding that all sampled producer/exporters were dumping is persuasive evidence of 
dumping by unexamined non-producing exporters, who are presumably exporting the products produced by the sampled companies found to be dumping. 
781 Defined as "exporters in Norway which did not cooperate or did not make themselves known" to the 
investigating authority.  Provisional Regulation, para. 40. 
782 We note that we have, elsewhere in our report, declined to exclude Exhibit EC-10 from 
consideration in this dispute.  See para. 7.846.  WT/DS337/R 
 Page 273 
 
 
  the dumped imports as compared with the price of a like product of the importing 
Member, or whether the effect of such imports is otherwise to depress prices to a significant degree  or prevent price increases, which otherwise would have occurred, to a significant degree.  No one or several of these factors can necessarily give decisive guidance." 
7.638  It is clear that the text of Article 3.2 provides no methodological guidance as to how an 
investigating authority is to "consider" whether th ere has been significant pr ice undercutting.  It is 
also clear that while the question of significant price undercutting must be considered, a finding of 
significant price undercutting is not necessary to a findi ng that dumped imports have had an effect on 
prices.   In our view, price undercutting may be demonstrated by comparing the prices of the like 
product of the domestic industry with the prices of the dumped imports, as the EC did in this case.  
Where the prices of imports are lower than the domestic  prices, it seems clear to us that there is, as a 
factual matter, price undercutting.  The significance  of any such undercutting would, in our view, be a 
question of the magnitude of such price difference, in light of other relevant information concerning 
competition in the domestic market between the impo rts and the domestic product, the nature of the 
product, and other factors.  It is in this context th at the question of a price premium may be relevant.   
7.639  Where, as here, the investigating authority has found that the domestic product benefits from 
price premium over the imports, it s eems to us that a conclusion of significant  price undercutting 
could not be reached by an objective investigating au thority without some consideration of that price 
premium.  The EC suggests that, having referred to the price premium in the General Disclosure 
Document, it "might have actually considered and examined the effect of the price premium and, 
having found that it was not a factor which coul d affect its price undercutting analysis, did not 
mention it in the Definitive Regulation."
783  The EC then goes on to explain why, in its view, the 
existence of a price premium is irrelevant to the analysis of price undercutting, and can only be taken 
into account when considering the injury margin , as it purports to have done in this case.   
7.640  Even assuming the EC is correct in its views c oncerning the irrelevance of a price premium, 
we can see nothing in either the General Disclos ure Document or the Definitive Regulation which 
would indicate that the investigating authority actua lly considered whether, much less found that, the 
price premium was not a factor which could affect  the price undercutting analysis.  The General 
Disclosure Document identifies the price premium as "up to a maximum of 12 per cent", and concludes that this price premium should be take n into account in establishing the injury margin.
784 
There is no further discussion of the price premium by the investigating authority, and the EC has 
brought nothing before the Panel indicating that th e investigating authority considered the relevance 
of the price premium and concluded that it could not  affect the price undercutting analysis.  Merely 
that the price premium was taken into account in calculating the injury margin does not demonstrate 
that it was considered and deemed irrelevant to the evaluation of price undercutting. Having identified 
the existence of a price premium for the domestic  product over the imports, we consider that an 
unbiased and objective investigating authority could not conclude, without explanation, that such 
price premium had no bearing on the issue of whether there was significant price undercutting.  Thus, the investigating authority's finding of significan t price undercutting is no t consistent with the 
requirements of Articles 3.1 and 3.2.   
7.641  Similar considerations govern our evaluation of Norway's arguments with respect to the 
adequacy and objectivity of the EC's consideration of price trends.  Again, in light of the lack of 
guidance in the AD Agreement on criteria or methodology for an evaluation of price trends, there is 
no basis to conclude that the assessment of price trends in Euro is per se  inconsistent with Articles 3.1 
and 3.4.  As with price undercutting, the price trends, whether calculated in Euro or pounds, are not 
                                                     
 
783 EC, FWS, para. 358. 
784 Exhibit NOR-67, para. 122. WT/DS337/R 
Page 274  
 
  themselves decisive.  Rather, they are relevant to an assessment of the condition of the domestic 
industry, and the issue of causation.   
7.642  We are not persuaded by Norway's argument that an investigating authority is obligated to 
consider price trends in the "operating currency" of  the domestic industry, which it alleges in this case 
to be pounds sterling.  Domestic industries in the EC may operate in one or  more of the currencies 
circulating in the EC.  We can see no basis in the AD Agreement for the conclusion that the 
investigating authority must determine, for indivi dual producers in the domestic industry, which is the 
"operating currency", and examine all aspects of the in jury analysis in that currency.  While in a 
particular case, this might be possible, if all dom estic producer operate in the same currency, that 
possibility does not justify the conclusion that such  analysis is required.  As we have discussed 
elsewhere in our findings, the assessment of injury to the domestic industry is not based on separate 
examination of the individual members of that indu stry.  Thus, it seems reasonable to us that an 
investigating authority would select a single currency in which to undertake its analysis.  So long as that analysis is unbiased and objective, and based  on positive evidence, we see no reason to disallow 
it.  The investigating authority in this case considered all the relevant information in Euros, thus on a 
consistent basis.   
7.643  We are unwilling to conclude that the requireme nt to consider positive evidence necessarily 
entails the conclusion that the only proper basis for an analysis of pr ice trends is information in the 
same currency as the normal record-keeping of indi vidual companies in the domestic industry.  We 
simply cannot conclude that such detailed met hodological rules can be, or were intended to be, 
derived from the general prescriptions in Article 3.1,  and the relevant factors addressed in Articles 3.2 
and 3.4 of the AD Agreement.   
7.644  We do consider, however, that whatever dete rminations are made by an investigating 
authority, and whatever information is relied upon in making those determinations, must be carefully 
considered, and the conclusions ade quately explained.  Norway argues that the consideration of price 
trends in Euro masked the true situation of the domestic industry in this case,
785 and that this argument 
was made to the investigating authority during the investigation.786  We can find no indication that the 
investigating authority even considered the possibi lity that price trends in Euro might not paint a 
relevant and accurate picture of the situation facing the domestic industry.  Particularly where an issue 
like this has been brought to the attention of the in vestigating authority by interested parties, the 
failure to address it in any way leaves us unable to c onclude that the determination made with respect 
to price trends was one that could be reached by an  unbiased and objective investigating authority.   
7.645  Thus, while we do not find any obligation for an investigating authority to choose one 
currency over another in conducting its examination of the information before it, there is an obligation 
to explain the relevance of the information to the de terminations made.  Particularly where, as in this 
case, arguments are made by parties that the currenc y used in the analysis may make a difference to 
that analysis, it would seem imperative that the inve stigating authority consider and resolve the issue 
before it makes factual findings based on the info rmation before it.  Thus, a failure by the 
investigating authority to even address the parties' arguments, and to resolve them, leaves us unable to 
conclude that the investigating authority's findi ng of declining prices is  consistent with the 
requirements of Articles 3.1 and 3.4. 
7.646  Therefore, we conclude that the EC's examin ation of the volume of dumped imports and price 
undercutting were not consistent with Articles 3.1 and 3.2 of the AD Agreement  and its examination 
of price trends was not c onsistent with Articles 3.1,  3.2, and 3.4 of the AD Agreement.  In the absence 
                                                      
785 It is equally possible that converting all relevant data, including import prices, into pounds sterling, 
might mask the true situation of the domestic industry.    
786 Norway, FWS, para. 567, Exhibit NOR-49.  WT/DS337/R 
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  of adequate explanations for th e findings on these factors based on the information before the 
investigating authority at the time, relied upon by the investigating authority in finding injury, we 
conclude that the finding of injury was not one that could be made by a reasonable investigating 
authority on the basis of the facts and arguments before it.  We do not consider it necessary to address Norway's consequential claims of violation of Artic le 3.5, which are based on the same considerations 
addressed above.  A finding of violation of Article 3.5 would add nothing to the resolution of this 
dispute, nor would it aid in any potential implementation, and therefore the exercise of judicial economy in this respect is warranted. 
H. A
LLEGED INCONSISTENCY OF THE EC'S CAUSATION DETERMINATION  
1. Arguments of the Parties 
(a) Norway 
7.647  Norway argues that the EC violated Articles 3. 1 and 3.5 of the AD Agreement in its causation 
determination by failing to ensure that injury  caused by two other known factors – (1) the EC 
producers' increased costs of production, and (2) surging imports from Canada and the United States – 
were not improperly attributed to dumped imports .  Norway asserts that Article 3.5 requires an 
investigating authority to establish that there is  a "genuine and substan tial" causal relationship 
between the dumped imports and th e domestic industry's injury,787 and that in establishing the 
existence of this relationship, Article 3.5 requires th e investigating authority to avoid attributing injury 
to dumped imports that is, in fact, caused by other factors.   
7.648  With respect to increased costs of production, Norway argues that the EC failed to address the 
argument that EC producers failed to reduce costs of  production, and that those costs were a cause of 
injury to the domestic industry.  Norway argues that  the EC did not adequately examine developments 
in the EC industry's costs of production and that its analysis masked the fact that the domestic 
industry's costs of production rose significantly during the period considered, by examining price trends in euros, instead of pounds sterling, the re levant currency for the sampled producers.  Norway 
maintains that because unit sales prices were constant in pounds sterli ng, while sales volumes 
increased by 7 per cent, the sampled producers' re venues must have increased during the period 
considered.  However, during that same period, the profitability of the EC producers turned from 
positive to negative.  For Norway, this suggests th at losses sustained by the EC industry were caused 
by an increase in costs of production that outst ripped the industry's increased revenues.  Norway 
asserts that these increased costs were attributable, at least in part, to the efforts of three of the five 
sampled producers to transition to organic farming.   Norway asserts that, if the EC industry's costs of 
production had not increased significantly during th e period considered, the industry would have 
continued to make profits in poun ds sterling.  Norway asserts that the EC did not even acknowledge 
that the evidence showed that the EC producers' costs had increased considerably, did not assess the 
injurious effects of this development, and did no t "separate and distinguish" these injurious effects 
from those attributable to dumped imports.   
7.649  With respect to the increased imports from the United States and Canada, Norway notes that 
during the period investigated, the EC industry's mark et share declined from 2.98 to 2.77 per cent, 
while imports from all countries other than Norway rose from 15.5 to 19.4 per cent.
788  The market 
share of imports from Canada and the United Stat es rose from a combined market share of 1.0 per 
                                                      
787 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 132;  see also 
Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the 
European Communities ("US – Wheat Gluten") , WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717, 
para. 69. 
788 Provisional Regulation, Recital. 94 (Table 11). WT/DS337/R 
Page 276  
 
  cent, to 5.1 per cent, more than the EC industry's market share.  In volume terms, Norway notes that 
imports from Canada and the United States we re 31,564 ton during the period investigated, 
significantly more than the producti on of the EC industry (22,000 tons)
789.  Finally, Norway notes that 
the prices of imports from Canada were 36 per cent lower than the EC price, and the prices of imports from the United States were 39 per cent lower than  the EC price.  Thus, Norway maintains that 
imports of salmon from Canada and the United States had the capacity to cause ma terial injury to the 
domestic industry.  Norway argues that the EC di smissed the significance of this information, and 
specifically of the 560 per cent increase in imports from the Canada and the US, on the grounds that 
these imports consisted mostly of wild salmon, wh ich, the EC found, did not compete with farmed 
salmon.  Norway maintains that the EC offers no f acts in support of these conclusions.  Moreover, the 
EC import statistics do not separate farmed and wild salmon.
790    Thus, Norway argues, there was no 
basis for the EC to conclude that the surge in impor ts consisted of wild salm on.  In addition, Norway 
asserts that evidence in the record contradicts the EC's conclusion th at farmed and wild salmon do not 
compete.  Thus, Norway maintains that the EC erred in dismissing Canadian and US imports as an "other factor" causing injury to the domestic industry. 
(b) European Communities 
7.650  With respect to Norway's claims under Article  3.5, the EC notes that the AD Agreement does 
not address how an investigating authority is to  assess and "separate and distinguish" the injurious 
effects of dumped imports and other factors.  The EC cites in this regard the decision of the Appellate 
Body stated in US – Hot-Rolled Steel :  
"We emphasize that the particular methods  and approaches by which WTO Members 
choose to carry out the process of separati ng and distinguishing the injurious effects 
of dumped imports from the injurious eff ects of the other known causal factors are 
not prescribed by the Anti-Dumping Agreem ent. What the Agreement requires is 
simply that the obligations in Article 3.5 be  respected when a determination of injury 
is made
."791 
The EC asserts that what matters in the present ca se is whether the EC made a proper assessment and 
evaluation of the specific facts of this case.  Th e EC notes that it examined at least seven known 
factors besides the volume of dumped imports and their effect on the state of the EC industry, and that 
Norway challenges its assessment of only two of these.    7.651  The EC asserts that it did consider and address th e question of EC producer costs, referring to 
paragraph 108 of the Provisional Regulation.  Th e EC maintains that it considered the production 
costs of both Norwegian and EC producers, and f ound that Norway enjoyed advantages in relation to 
certain costs and the EC producers enjoyed advantages in relation to other costs, but that there were 
no significant differences, and that both suffered lo sses.  Thus, the EC maintains that it properly 
considered whether the EC industry's production costs were an other factor causing injury.  In 
addition, the EC argues that Norway has failed to make a prima facie  case that the domestic industry's 
production costs increased and thus contributed to inju ry.  The EC points out that Norway refers to an 
increase of 14.9 per cent, but that this is calculated in pounds sterling, not the euro basis used by the 
EC – in euros, the increase in production costs w as only 5.2 per cent.  The EC notes that Norway's 
argument is counterfactual, asserting that if the EC industry's costs had not increased, it would have 
continued to make profits.
792  The EC points out that Norway has not given any reason to suggest that 
production costs should not have increased, and in the absence of such an argument, the facts 
                                                      
789 Definitive Regulation, para. 38. 
790 Provisional Regulation, Recital. 96. 
791 Appellate Body Report, US – Hot-Rolled Steel , para. 224. 
792 Norway, FWS, para. 586.  WT/DS337/R 
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  demonstrate that EC producers' costs did increase, a nd profits turned to losses.   The EC also notes 
that it found no significant differences between the pr oduction costs of the EC industry in comparison 
with Norwegian producers.  Consequently, the EC ma intains that Norway has not established that the 
EC did not properly examine the developments in production costs of the EC industry, and has not 
established that those developments caused or could have caused injury to the EC domestic industry.  
7.652  The EC asserts that Norway's argument concer ning the examination of imports from the US 
and Canada rests on an interpretation of Article 3. 5 of the AD Agreement requiring that the evidence 
underlying every factual finding be cited, and that failure to do so makes an y assessment of such facts 
a violation if Article 3.5 of the Anti-Dumping Agr eement. The EC maintains that there is no support 
for such an extreme interpretation of Article 3.5.  The EC argues that the considerations set out by the 
Appellate Body in US - Softwood Lumber VI (Article 21.5-Canada)793 and relied upon by Norway 
relate to the analysis of conflicting evidence, while in this case, the EC investigating authority was not 
faced with conflicting evidence. In the absence of  any legal requirement to explain each factual 
finding, the EC maintains that Norway's claim must fail. 
7.653  The EC goes on to argue that Norway did not make a prima facie  case that the EC 
determinations were incorrect.  The EC first states that, in the course of judicial challenges to the 
measure, it discovered what it calls a "technical e rror" in the Provisional Regulation, concerning the 
volume of imports of salmon from the US and Canada , and provides, in Exhibit EC-15, the corrected 
information. The EC asserts that the corrected in formation shows that imports from the US actually 
decreased by 15 per cent, as did the market share of   US salmon (from 5.2 per cent to 4 per cent).  
While imports from Canada increased from 2705 tonn es to 6940 tonnes (from 0.5 per cent to 1.1 per 
cent of market share), the EC asserts that these are negligible (referring to Article 5.8 of the Anti-
Dumping Agreement).  As a result, the EC argues th at decreased imports from the US and Canada had 
a very little, effectively zero capacity to cause any injury to the EC domestic industry. The EC also argues that the error in the original data did not a ffect the assessment by the investigating authority of 
the effect of imports of salmon from the United States and Canada, which was based principally on 
the fact that the majority of those imports were of wild salmon, which does not compete with farmed 
salmon. The EC asserts that Norway has not challenge d this conclusion, but rather attacks the EC for 
failing to explain what evidence supports it.  The EC points out that  Norway has not adduced any 
evidence that would contradict that conclusion, and maintains that the fact that the imports of salmon 
from the US and Canada consist of wild salmon are largely known, i.e. are industry knowledge, 
confirmed by publicly available data and by the No rwegian government itself.  Similarly, the EC 
maintains that Norway has failed to demonstrate e rror in the conclusion that farmed and wild salmon 
are not interchangeable.   
2. Evaluation by the Panel 
7.654  As discussed above, we have found that the EC 's approach to defining domestic industry in 
this case resulted in an investigation concerning a domestic industry that did not comport with the 
definition set forth in Article 4.1.  As was the case in  the context of injury, it is clear to us that the EC 
analyzed the wrong industry in considering the i ssue of causation.  Nonetheless we consider it 
appropriate to make findings regarding Norway's claims.  The claims regarding the investigating 
authority's consideration of "other factors" causing injury, albeit with respect to a wrongly defined domestic industry, are therefore addressed below.       
7.655  We recall that it is our task to undertake a careful scrutiny of the EC's determination to assess 
whether the conclusions therein could be reached by an unbiased and objective decision maker, taking 
into account the facts that were be fore the investigating authority, and in light of the explanations 
given.   
                                                     
 
793 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 97. WT/DS337/R 
Page 278  
 
  7.656  Turning to the substance of Norway's claims, Norway argues that the EC failed to consider 
the allegedly injurious impact on the domestic indus try of two "known factors" - increased production 
costs, and imports of salmon from the United States  and Canada – as possible causes of injury to the 
domestic industry, as required by Article 3.5 of th e AD Agreement, which provides in pertinent part: 
"The authorities shall also examine any known factors other than the dumped imports 
which at the same time are injuring the domestic industry, and the injuries caused by 
these other factors must not be attributed to the dumped imports."   
Previous panel and Appellate Body decisions make it clear that while an investigating authority is 
required to consider the effects of other factors known to the investigating authority which may be 
causing injury to the domestic industry, there is no required method of analysis in undertaking that 
examination.
794   
 7.657  Norway argues that the EC industry experien ced significant increases in per unit costs of 
production, which explains why, despite an increase  in sales volumes, and constant prices (measured 
in pounds sterling) the domestic industry incurred losses.  Thus, Norway argues, had the industry's 
costs of production not increased during the period,  it would have been profitable, and thus, the 
increase in costs was an important cause of injury to  the domestic industry.  Norway asserts that this 
argument was raised by interested parties during the investigation,
795 and that the EC acknowledged 
this when it noted that interested parties had c ontended that the failure of the domestic industry to 
reduce costs had contributed to injury.796  However, Norway contends that the EC failed to address 
this issue. 
7.658  The EC does not dispute that the domestic industry's costs increased,797 although it does 
dispute the magnitude of that increase.  Norway calculated the increase in pounds sterling as 14.9 per 
cent, and in Euros as 5.2 per cent.798   The EC does not dispute these figures, but maintains that the 
proper calculation is in Euros, and that the increases in the cost of production "are less significant" on 
that basis.799  We note, however, that there is no mention of the increase in production costs, in either 
currency, in either the Provisional or Definitive Regulation, and no discussion of the significance of 
that increase. 
7.659  Rather, what is in the Regulations is a discussion of the effect of "smaller less efficient 
producers in the EC and high costs of production" – that is, a comparison between Norwegian salmon farmers' costs, and the EC industry's costs.
800  Based on a comparison, the EC found that while 
Norwegian producers had certain cost advantages, th e EC industry had certain other advantages, that 
both were incurring significant losses, and that ther efore the argument that EC producers were less 
efficient "was not substantiated and that  this could not be cause of" injury.801  In our view, this 
analysis simply does not address the argument that an increase in the EC industry's costs was a cause 
of the losses incurred by the industry.   
7.660  The EC asserts that Norway has failed to make a prima facie  case with respect to its argument 
that increased costs were a cause of injury to the EC industry, and that in order to do so, Norway 
                                                      
794 Appellate Body Report, US – Hot-Rolled Steel, para. 178, Appellate Body Report, EC – Tube or 
Pipe Fittings , para. 189, Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 154. 
795 Norway, FWS, para. 582. 
796 Norway, FWS, para. 581; Provis ional Regulation, Recital 108. 
797 EC, FWS, para. 413 ("it has been establishe d that the production costs did increase.") 
798 Norway, FWS, para. 585, Table 7.   
799 EC, FWS, para. 411. 
800 Provisional Regulation, Recital 108, Definitive Regulation, Recital  99. 
801 Provisional Regulation, Recital 108, Definitive Regulation, Recital  99.  WT/DS337/R 
 Page 279 
 
 
  would have to explain to the Panel why it believes costs should not have increased as they did.802   We 
do not agree.  Norway has demonstrated that the fa cts before the investigating authority showed that 
EC industry production costs increased, and that it was argued to the investigating authority that that increase in costs caused injury.  The Provisiona l and Definitive Regulations do not address this 
contention.  The EC has not brought forward any information that was before the investigating 
authority or analysis on this issue.  In the absence  of consideration of this argument, the EC has not 
demonstrated that an objective and unbiased inve stigating authority coul d have concluded that 
increased production costs were not causing injury to the domestic industry, and therefore that injury 
caused by this factor was not attributed to dumped imports.  In these circumstances, our view is that Norway has demonstrated that the EC failed to co mply with Article 3.5 of the AD Agreement.   
7.661  With respect to the EC's consideration of imports from the US and Canada, Norway has 
challenged the EC's submission of exhibit EC-15,  which presents "corrected" information on the 
volume of imports from the United States.
803  Norway asserts that the EC has acknowledged that the 
information post-dates the imposition of the measur e, and thus was not before the investigating 
authority at the time it made its determination.  No rway also asserts that the analysis presented by the 
EC on the basis of this information is different from that relied on in the Provisional and Definitive 
Regulations, and thus constitutes an impermissible ex post  rationalization.  The EC does not dispute 
that the information in these two exhibits was corrected after  the Definitive Regulation was 
published, but rather argues that the correction of th e data in question "does not affect the outcome of 
the determination", and asks us to take that  into consideration in making our findings.804    
7.662  We decline to consider the "corrected" information on the volume of US imports presented in 
Exhibit EC-15 (and the information in EC-14).  Ar ticle 17.5(ii) of the AD Agreement provides that a 
panel shall examine the matter before it "based upon .. . the facts made available in conformity with 
appropriate domestic procedures to the authorities of the importing Member."  It is clear, and the EC does not dispute, that the facts set out in the Exhibits were not available to the investigating authority 
at the time it made its determination.  Indeed, it is clear that the investigating authority cited and relied 
upon different facts concerning the volume of impo rts from the United States, and the consequent 
information on rate of increase and changes in market  share.  We cannot, therefore, take into account 
the information in Exhibits EC-14 and EC-15 in our analysis of the EC's determination, as to do so 
would effectively require us to make our own findings on the basis of new evidence.  This is clearly precluded by the applicable standard of review.
805   
7.663  Norway asserts that the EC erred in concluding that it was "unlikely that imports from [the 
United States and Canada] could have had a si gnificant impact on the situation of the [EC] 
industry."806   Norway argues that this conclusion was based on factual findings which are deficient, 
as there is no reference to any evidence in support of findings that the majority of salmon imports 
from Canada and the US are of wild salmon, and th at wild and farmed salm on do not compete.  Thus, 
Norway argues, the EC failed to properly assess the injurious effect of these imports, and failed to 
ensure that injury caused  by these imports was not attributed to dumped imports.  The EC argues that 
Article 3.5 of the AD Agreement does not require an i nvestigating authority to cite to sources of its 
factual findings, and that Norway does not challenge  the factual findings or adduce any evidence to 
contradict them.  The EC notes that "the fact that the imports from the US and Canada consist of wild 
salmon are [sic] largely known (i ndustry knowledge), confirmed by pub licly available data and ... by 
                                                      
802 EC, FWS, para. 413. 
803 Norway also challenges the EC's submission of exhibit EC-14, which presents information on injury 
factors such as market share reflecting the co rrected data on the volume of US imports. 
804 EC, Answer to Panel Question 1, para. 30. 
805 See, para. 7.857. 
806 Definitive Regulation, Recital 86. WT/DS337/R 
Page 280  
 
  the Norwegian government itself".
807  The EC argues that, in any event, Norway failed to make a 
prima facie  case that the investigating authority erred in  its assessment of the effect of imports from 
the United States and Canada.    
7.664  In evaluating this claim, we note first that we do not disagree with the view of the EC that an 
investigating authority is not obligated to cite or refer to every piece of evidence underlying its factual 
findings.  However, that does not mean that the factual findings of the investigating authority must be 
accepted by the Panel unless the party challenging th ose findings adduces evidence that demonstrates 
that they are erroneous.  The Panel's task is to "d etermine whether the authorities' establishment of the 
facts was proper, and whether its evaluation of tho se facts was unbiased and objective".  In this case, 
Norway, as we understand its argument, contends that the EC's establishm ent of the "facts" in 
question, i.e.,  that the majority of salmon imports from Canada and the US are of wild salmon, and 
that wild and farmed salmon do not compete, was im proper as there is no explan ation of, or reference 
to, any evidence upon which those facts could be estab lished.  In such a situation, the Panel cannot 
itself determine whether the investigating authority's factual findings are correct.  Rather, the Panel must examine the information and arguments that were  before the investigatin g authority in order to 
determine whether the investigating authorit y came to those findings on a proper basis. 
7.665  It is undisputed that the relevant import statis tics do not distinguish be tween wild and farmed 
salmon imports from the United States and Canada.
808  The EC has pointed to no information that was 
before the investigating authority which indicat es what proportion of those imports was of wild 
salmon, and nothing that indicates that the majority w as of wild salmon.   Instead, the EC asserts that 
this fact is "industry knowledge", and confirmed by unspecified publicly available information, which 
the EC has not put before the Panel.  The EC also notes that in a separate EC safeguard investigation 
concerning imports of salmon, No rway acknowledged that exports of salmon from the US and Canada 
are mainly of wild salmon.809  Norway points out that both the United States and Canada produce 
farmed as well as wild salmon, and thus, the imports  may well include some farmed salmon, which is 
again undisputed by the EC.810  It thus seems clear to us that the proportion of imports from the 
United States and Canada consisting of wild salmon is  a question of fact to which the answer is not 
self-evident.   
7.666  The Provisional and Definitive Regulations both refer to "information gathered during the 
investigation" as the basis of the conclusion that the majority of imports from the United States and 
Canada were of wild salmon, but do not indicate wh at that information was or how it was considered 
by the investigating authority.  The Panel asked the EC to "demonstrate what information in the file of 
this investigation" supports these conclusions.811  In response to the Panel's question, the EC points to 
the information gathered in the separate safeguards proceeding, and argues that the basic facts cannot 
differ from one proceeding to the other, especially when those proceedings were conducted in parallel, and that the persons wo rking on the anti-dumping investigation could not erase knowledge 
gained in the safeguards case.   The EC also asserts  that the investigating authority was in "intense 
contact with the representatives of the salmon i ndustry", that it was "common industry knowledge", 
that the investigating authority "conducted a comprehe nsive internet research", and that in any event, 
                                                     
 
807 EC, FWS, para. 441. 
808 Provisional Regulation, Recital 96, Definitive Regulation, Recital 84. 
809 EC, FWS, para. 441 and footnote 247. 
810 Norway has submitted public inform ation concerning the volume of production of farmed and wild 
salmon in the United States and Canada in exhibit NOR-78.  However, that information was not before the 
investigating authority, and we therefore do not consider it in our analysis, for the same reasons as set out above 
concerning exhibits-EC14 and EC-15.   
811 EC, Answer to Panel Question 37.  WT/DS337/R 
 Page 281 
 
 
  Norway never put any contrary evidence before the investigating authority, which could not "pursue 
any unsubstantiated assertion which lacks credibility on its face".812 
7.667  While we do not and cannot decide whether, i ndeed, the majority of imports of salmon from 
the United States and Canada were of  wild salmon, we do not consider that the investigating authority 
properly established that fact during the course of the investigation.  We do not dispute that the 
persons working for the investigating authority in a particular anti-dumping dispute may have 
knowledge and information gained from sources ot her than information submitted by interested 
parties during an investigation – prior knowledge of a product, industry, or market, experience gained 
in other investigations, or other types of investig ations, publicly available information, and "common 
knowledge" may also all play a part in an investiga ting authority's efforts to establish the facts in a 
particular investigation.  However, in this case, such information is not reflected anywhere in the 
published determinations, and the in formation obtained from these efforts has not been brought before 
us in a form that demonstrates that it was available to and considered by the investigating authority in 
establishing the facts.  We 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 th e 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.    
7.668  The same considerations apply to our examinati on of the EC's establishment of the fact that 
wild and farmed salmon are not interchangeable.  No rway has pointed to information that was before 
the investigating authority that there was at least some competition between the two.  The EC asserts 
that this information does not demonstrate error in its  conclusions that wild salmon "practically" is not 
sold as a fresh product, but "mostly" as a canned produc t.   However, in the absence of any indication 
as to what information was considered and any explanation of how the investigating authority 
assessed the relevant information, it is not possible for us to determine that the facts were properly 
established.  
7.669  We therefore conclude that the EC failed to properly examine known factors other than the 
dumped imports which at the same time were causi ng injury to the domestic industry, and failed to 
ensure that the injuries caused by these other factors were not attributed to dumped imports, in 
violation of the requirements of Article 3.5 of the AD Agreement.  Having found a violation of 
Article 3.5 in this respect, we do not consider it either appropriate  or necessary to consider whether 
these same considerations constitute  a violation of Article 3.1 of the AD Agreement, as to do so 
would not further the resolution of this dis pute or serve as any guidance in the event of 
implementation.   
 
                                                      
812 EC, Answer to Panel Question 37, paras. 170-172. WT/DS337/R 
Page 282  
 
  I. A
LLEGED INCONSISTENCY OF THE EC'S DECISION TO APPLY MINIMUM IMPORT PRICES AND 
FIXED DUTIES WITH ARTICLE  VI:2  OF THE GATT  1994  AND ARTICLES  9.1,  9.2, 9.3 AND 9.4 
OF THE AD A GREEMENT  
1. Alleged Inconsistency of the Imposition of  Minimum Import Prices with Articles 9.1, 
9.2, 9.3 and 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994  
(a) Arguments of the Parties 
(i) Norway 
7.670  Norway claims that the minimum import pri ces ("MIPs") imposed by the investigating 
authority on investigated and non-investigated parties were inconsistent with Articles 9.1, 9.2, 9.3 and 
9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994.  Norway argues that the 
investigating authority acted inc onsistently with these provisions because: (i) the MIPs imposed on 
investigated parties were greater than their resp ective normal values; (ii) the MIPs imposed on non-
investigated parties were greater than the weight ed average of the normal values calculated for the 
investigated parties; and (iii) the MIPs imposed on investigated parties were greater than their 
respective margins of dumping. 
 The assertion that the MIPs were greater than the relevant normal values 
  
- MIPs imposed on investigated parties we re inconsistent with Article 9.2 of 
the AD Agreement and Article VI:2 of the GATT 1994 
 
7.671  Norway argues that in order to comply w ith the requirement under Article 9.2 of the 
AD Agreement that anti-dumping duties be collected  "in the appropriate amounts", an investigating 
authority must ensure that any MIPs imposed on i ndividually investigated parties must not exceed 
their respective normal values.  Furthermore,  according to Norway, any MIPs imposed on 
individually investigated parties must not exceed their respective normal values because otherwise the 
anti-dumping duties imposed would be greater than n ecessary "to offset or prevent dumping" within 
the meaning of Article VI:2 of the GATT 1994.  No rway contends that the EC failed to initially 
disclose the investigating authority's calculation of the MIPs despite being asked  to do so, once by the 
Norway during consultations, and once by the Panel in Panel Question 39.  According to Norway, it 
was only in its answer to Panel Question 130, follow ing the second substantive meeting of the parties, 
that the EC dislcosed its calculations based on the nromal values disclosed by the EC to the 
investigated parties.  Therefore, in its submissions  to the Panel, Norway presented its own calculations 
based on the normal values disclosed by the EC  to the investigated companies during the 
investigation.  On the basis of these calculations , Norway asserts that the MIPs imposed by the 
investigating authority on the investigated parties were greater than their respective normal values.  
Thus, Norway claims that the MIPs imposed on th e investigated parties were inconsistent with 
Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994.   
7.672  Norway recalls that the MIPs applied to the investigated parties were based on the "non-
injurious" MIPs established for six different presen tations of salmon, because these were found by the 
investigating authority to be less than the co rresponding "non-dumped" MIPs calculated for each of 
the individually investigated parties.  However, according to Norway, the "non-dumped" MIPs that 
were used for this purpose were greater than the relevant normal values of the investigated parties 
because: (i) they were based on normal values ad justed to the CIF Community border level; and 
(ii) they were derived through the application of a three-year-average NOK/EUR exchange rate, 
instead of the exchange rate for the period of investigation.  In Norway's view, these alleged 
methodological errors had the result of inflati ng the "non-dumped" MIPs above the appropriate  WT/DS337/R 
 Page 283 
 
 
  normal values, which thereby flawed the compar ison between "non-injurious" and "non-dumped" 
MIPs. 
7.673  Norway also contends that the investigating authority's calculation of the "non-dumped" MIPs 
was flawed because for five of the six presentati ons of salmon, it was based on costs of production 
derived from the application of "weight conversi on factors" and not actual costs of production.  
Norway argues that a producer's actual costs of producing one presentation of salmon cannot 
necessarily be derived from the cost of produc ing another presentation simply by applying the 
standard "weight conversion factors".  Moreover, No rway submits that the investigating authority did 
not use "standard" "weight conversion factors", and that as a consequence, the MIPs finally 
determined were considerably higher than those th at would be obtained had the investigating authority 
used "standard" "weight conversion factors".  To this extent, Norway argues that the "non-dumped" 
MIPs for these five presentations of salmon were greater than the investigated parties' respective 
normal values. 
7.674  Finally, for one investigated party, Si nkaberg-Hansen, Norway argues that the EC 
acknowledged in response to a question from the Panel that the investigating authority's determination 
of dumping was unreliable, thereby invalidating the MIPs set for this company.  
- MIPs imposed on non-investigated pa rties were inconsistent with 
Article 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994 
7.675  Norway argues that, pursuant to Article 9.4(ii)  of the AD Agreement, MIPs imposed on non-
investigated parties must not exceed the weight ed average of the normal values of all of the 
investigated parties.  Where this benchmark is su rpassed, the MIPs will not only be inconsistent with 
Article 9.4(ii) but also Article VI:2 of the GATT 1994 because, according to Norway, they would 
result in the collection of anti-dumping duties greater  than necessary "to offset or prevent dumping". 
Norway asserts that on the basis of its own calcula tions, the MIPs imposed on non-investigated parties 
were greater than the weighted average of the normal values of the investigated parties.  As such, the 
MIPs imposed on the non-investigated parties were  inconsistent with Article 9.4(ii) of the 
AD Agreement and Article VI:2 of the GATT 1994. 
7.676  Norway recalls that the MIPs imposed on th e non-investigated parties were based on the 
"non-injurious" MIPs established for six different pr esentations of salmon, because for each different 
presentation of salmon, these were found by the inves tigating authority to be less than the weighted 
average of the "non-dumped" MIPs of the investigated  parties.  To the extent that the "non-dumped" 
MIPs calculated for the investigated parties were fl awed, Norway argues that the weighted average of 
the "non-dumped" MIPs of the investigated parties was also flawed.  In add ition, Norway argues that 
the weighted average of the "non-dumped" MIPs of the investigated parties was flawed for two other 
reasons: (i) because the "non-dumped" MIP calculated for Grieg was used in the calculation of the 
weighted average, and Grieg's normal value was alle gedly calculated on the basis of "facts available"; 
and (ii) because, according to the EC's explanati on of the investigating authority's methodology, an 
individually determined "non-dumped" MIP calculated for Seafarm Invest was used in the calculation 
of the weighted average, even though the Definitive Regulation reveals that the investigating authority 
did not calculate an individual margin of dumping for this company, and treated it in the same way as 
Marine Harvest. 
 The assertion that MIPs were greater than the relevant margins of dumping 
 
7.677  Norway argues that Articles 9.1 and 9.3 of the AD Agreement, and Article VI:2 of the 
GATT 1994, require that any anti-dumping duties imposed on investigated parties cannot be greater 
than their respective margins of dumping.  Where this is the case, any anti-dumping duty imposed WT/DS337/R 
Page 284  
 
  would not be collected in "the appropriate amount", a nd therefore also inconsistent with Article 9.2 of 
the AD Agreement.   
7.678  Norway submits that the duty imposed on inv estigated parties through the contested MIPs 
may vary with individual export transactions, and co uld even equal the entire amount of the MIP ("in 
the theoretical event that the export pr ice is just marginally above zero")
813.  As a result, Norway 
argues that the amount of anti-dumping duty that may be collected through the MIPs imposed by the 
investigating authority is not limited to the margin of dumping of any of the investigated parties.  
Norway argues that the EC should have adopted a "m echanism" to ensure that the MIPs applied could 
not result in the imposition of a duty that exceeds the maximum amount of ad valorem  duty that it was 
entitled to impose.  According to Norway, the absen ce of any such mechanism meant that the measure 
applied by the EC could not guarantee that the amount of duties imposed through the MIPs, when 
expressed as a percentage of the relevant export price, did not exceed the margins of dumping 
determined for the investigated parties.  Thus, Norw ay claims that the EC acted inconsistently with 
Article VI:2 of the GATT 1994 and Articles 9.1 and 9.3, and as a consequence, also Article 9.2. 
(ii) European Communities 
The assertion that the MIPs were g reater than the relevant normal values  
 
7.679  The EC notes that the investigating authority cal culated the MIPs in question on the basis of 
the non-injury price, not the normal values of the inv estigated parties.  In doing so, the EC contends 
that the investigating authorit y assessed and confirmed that the MIPs imposed were below the 
investigated parties' "non-dumped" MIPs.  The EC rejects Norway's calculation of the investigated 
parties' normal values showing that the vast majo rity of these were below the final MIPs imposed, 
arguing that Norway's figures are speculative a nd based on mere hypotheses.  Thus, the EC rejects 
Norway's claim that it acted inconsistently with Article VI of the GATT and Articles 9.2 and 9.4 of 
the AD Agreement. 
7.680  The EC explains that the methodology applied by  the investigating authority to calculate the 
investigated parties' "non-dumped" MIPs fo r each presentation of salmon involved initially 
establishing the "non-dumped" MIP for one of the presentations, whole fish.  The investigating 
authority did this by first identifying the full cost of production, including SG&A cost, for the most common presentation – chilled head-on salmon.  The investigating authority then applied a "standard 
adjustment factor" of 0.9 to arrive at a cost of pr oduction for whole fish.    It then added costs relating 
to shipment to the EC border, CIF level, as well as an amount for profit calculated at 8 per cent of the 
CIF value.  For the five other presentations of salmo n, the investigating auth ority determined the full 
cost of production by "applying the same standard  adjustments" to each presentation.  Once these 
were determined for each presentation, they were ad justed by adding shipping costs to CIF EC border 
and profit.  
7.681  The EC justifies the investigating authority's ad justment to CIF level by arguing that it was 
necessary in order to bring the normal values to the level that is traditi onally used by the EC to charge 
duties, and hence compare with the "non-injury" MIP,  which was set at the same level.  According to 
the EC, an alternative approach would be to set th e MIPs at the actual normal value, and reduce the 
invoice price of imported salmon by an amount corres ponding to transport and insurance costs.  The 
EC argues that the result of this alternative, in terms of duty imposed under the MIP, would be the 
same as the approach adopted by the investigatin g authority.  It argues, however, that it would 
considerably add to the cost and bother of passing goods through customs control. 
                                                     
 
813 Norway, FWS, para. 662.  WT/DS337/R 
 Page 285 
 
 
  7.682  The "non-dumped" MIPs were initially derived in NOK.  In order to compare them with the 
"non-injury" MIPs, the investigating authority applie d a three-year-average exchange rate.  The EC 
defends the investigating authority's use of the thre e-year-average exchange ra te by arguing that the 
application of this exchange rate followed logically from the fact that  the costs used to calculate the 
normal values were in part collected over the same three year period. 
 The assertion that MIPs were greater than the relevant margins of dumping  
  
7.683  In essence, the EC argues that Article 9. 4(ii) assumes that Members may impose anti-
dumping duties in the form of MIPs set at the level of a normal value calculated during an anti-dumping investigation.  According to the EC, the language of Article 9.4(ii) does not envisage an 
upper limit on the duty that may be collected through th e application of MIPs.  In this regard, the EC 
contends that all that the text of Article 9.4(ii) rev eals is that the duty collected must be equivalent to 
the difference between the export price and the nor mal value.  Nevertheless, the EC acknowledges 
that MIPs might on occasion result in the collection of a duty that exceeds the actual margin of 
dumping for a particular import transaction.  Howeve r, in the EC's view, this is not an anomaly, 
because the same result may obtain when applying more conventional type of prospective anti-
dumping duties.  In both cases, the EC argues that the AD Agreement provides for the possibility of 
being reimbursed for duties collected in excess of the actual margins of dumping through the refund 
procedure established under Article 9.3.2.   
7.684  The EC finds further support for its view that Article 9.4(ii) does not limit the amount of anti-
dumping duty that may be collected through MIPs in the Panel's finding in the Argentina – Poultry 
Anti-Dumping Duties case.  The EC argues that there is no significant difference between the facts in 
that case and those before the Panel in the present dis pute.  Thus, although the issue of the kind of cap 
suggested by Norway was not discussed in Argentina – Poultry Anti-Dumping Duties , the EC 
contends that the Panel's ruling in that case clear ly established the legitimacy of MIPs and their 
consistency with the requirements of  Article 9 of the AD Agreement. 
7.685  The EC also argues that the requirement in Ar ticle 9.3 to ensure that the "amount of anti-
dumping duty shall not exceed the margin of dumpi ng as established under Article 2", does not refer 
to the margin of dumping determined in the original  investigation, but rather the margin of dumping 
relating to import transactions made after the impos ition of measures, calculated for the purpose of a 
duty refund proceeding under Article 9.3.2.  According to the EC, if this were not the case, there 
would be no recourse for an importer to claim duty refund in a situation where the exporter no longer 
dumped after the imposition of measures.  Thus, the EC argues that the MIPs imposed on the 
investigated parties cannot be foun d to be inconsistent with Article  9.3 for the sole reason that, at 
certain price levels, they result in the collecti on of anti-dumping duties, which when expressed in 
ad valorem  terms, are greater than the margin of dumping calculated in the original investigation.  For 
the same reason, the EC argues that the MIPs cannot be found to be inconsistent with the respective 
requirements in Article VI:2 of the GATT 1994 and Article 9.1 of the AD Agreement to ensure that 
"an anti-dumping duty [is] not greater in amount than the margin of dumping" or "the amount of the anti-dumping duty to be imposed be the full margin of dumping or less". 
(b) Arguments of the third parties  
(i) China 
7.686  China considers that the MIPs imposed by the EC were inconsistent with the AD Agreement 
because, with six different MIPs, the EC did no t impose "a single anti-dumping duty" against "a 
single product" in a single investigation.  Accord ing to China, there should be only one duty imposed 
for each product investigated against each exporter/pr oducer concerned.  In China's view, the wording 
of various provisions of the AD Agreement (Articles 2. 1, 6.10, 9.1, 9.2 and 9.3) demonstrates that the WT/DS337/R 
Page 286  
 
  drafters intended a strict corresponding relationshi p between a product (singular form), a margin of 
dumping (singular form), an exporter/producer (singular form), and an antidumping duty (singular form).  Thus, China submits that once an investig ating authority has defined "a product", i.e., the 
product under consideration, it is required to determine "an indivi dual margin of dumping" for "a 
known exporter or producer" and impose "an anti-dumpi ng duty" against such a product and such an 
exporter/producer. 
(ii) Japan 
7.687  Japan does not challenge the right of a WTO Member to assess and collect anti-dumping 
duties through the imposition of prospective normal va lues and a non-injurious MIP, as applied by the 
EC in the case at hand.  However, Japan takes issue with the alleged lack of transparency in respect 
the EC's calculation of the level of the MIP.  In addition, Japan doubts the consistency of the duty 
collection system applied by the EC with the obligations of Article VI of GATT 1994 and the 
AD Agreement not to impose duties in excess of  the margin of dumping found to exist. 
7.688  Japan considers that the lack of  transparency evident in the EC 's calculation of the MIPs is 
more than simply a problem of procedure.  In th e absence of a reasoned and adequate explanation of 
the determination made, the conclusion of the EC th at the non-injurious MIPs did not exceed the level 
of the non-dumped MIPs, and that it therefore comp lied with its obligation under the AD Agreement, 
becomes a mere assertion.  In the absence of an adequate and reasoned expl anation, no meaningful 
review by a Panel is possible.   
7.689  Japan notes that Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of GATT 1994 
make clear that an authority is not allowed to im pose a duty in excess of the margin of dumping found 
to exist.  In the light of this obligation, Japan believes it is incumbent upon the authorities to 
demonstrate through a reasoned and adequate explanation that the level of the duty imposed did not 
exceed the level of the margin.  Jap an invites the panel to examine whether the EC can be found to 
have met its obligation under Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of 
GATT 1994 in the absence of a clear and objective basis for the calculation of such duties. 
(iii) United States   
7.690  Consistent with Articles 9.1 and 9.3, the amount of any anti-dumping duty may not exceed 
the margin of dumping.  Article VI:2 of the GATT 1994, read in conjunction with Article VI:1, provides that the margin of dumping is the price difference when a product is being introduced into 
the commerce of the importing country at a price less than normal value.  Article 9.4 of the AD Agreement recognizes that a Member may utilize a prospective normal value system of assessing 
antidumping duties.  Assuming Norway's description of the EC's minimum import price ("MIP") 
system is accurate, and based on the EC's descripti on in its own submission, the system appears to 
operate in a similar fashion to a prospective normal value system.  To the extent that the EC used 
MIPs that exceed properly established normal valu es, the antidumping duties calculated on the basis 
of such MIPs would exceed the margin of dumping.  If this is the case, such action would be 
inconsistent with Article VI:2 of the GATT 1994,  and Articles 9.1, 9.2, 9.3 and 9.4 of the 
AD Agreement. 
(c) Evaluation by the Panel 
(i) Facts 
7.691  Before turning to address Norway's claims, we believe it is useful to briefly set out the 
pertinent facts surrounding the investigating authority 's calculation of the MIPs for the investigated 
and non-investigated parties.  WT/DS337/R 
 Page 287 
 
 
  7.692  We recall that, except for one company that obtained a de minimis margin of dumping, the 
investigating authority established MIPs in respect of  six different presentations of salmon at the same 
levels for all investigated and non-investigated  parties.  These MIPs were based on the "non-
injurious" MIPs calculated for the different presen tations of salmon, because these were found to be 
lower than each investigated party's "non -dumped" MIPs for the corresponding salmon 
presentations.814 
7.693  The Definitive Regulation reveals that the "c ompany-specific non-dumped" MIPs that were 
compared with the "non-injurious" MIPs were calcula ted on the basis of "normal value, adjusted to 
the net free-at-Community-border price".815  However, neither the Definitive Regulation nor any of 
the individual company disclosures explain how the investigating authority determined the "company-
specific non-dumped" MIPs for each of the individua l presentations of salmon.  The EC has explained 
that this involved a number of steps, which we understand to be the following:  First, for each 
investigated party, the investigating authority calculated a "non-dumped" MIP for one type of presentation, whole fish.  To do this, the EC identif ied the actual cost of production, including SG&A 
cost, calculated for another presentation, chilled head-on salmon, and adjusted this by a "standard 
adjustment factor" of 0.9.
816  The EC has not explained what it means by a "standard adjustment 
factor".  However, we understand that the EC is  referring to what is d escribed in the Definitive 
Regulation as the "weight conversion factors, as contained in Council Regulation (EC) No 772/1999".
817  Our understanding from the information contained in Council Regulation (EC) 
No 772/1999 and the parties' responses to Panel Questi on 130, is that "weight conversion factors" are 
factors that may be used to convert the we ight of one salmon presentation into another.818  F o r  
instance, the weight conversion factor of 0.9 fo r chilled head-on salmon means that 90kg of chilled 
head-on salmon has a whole fish weight of 100kg. T hus, it follows from the EC's explanation that in 
the investigation at issue, for each investigated part y, the investigating authority did not determine the 
full cost of production of whole fish salmon on the b asis of actual data relating to the production of 
whole fish.  Instead, the investigating authority derived these production costs by applying a weight 
conversion factor to the actual production cost s determined for chilled head-on salmon.   
7.694  The Definitive Regulation confirms that the in vestigating authority used "weight conversion 
factors" when establishing the MIPs.  However, it al so reveals that "[w]ith regard to the whole fish 
fillets and fillets cut in pieces, pr ocessing costs were taken into account".819  The EC has not explained 
how such processing costs were taken into account.  No rway asserts that the fact that the investigating 
authority took processing costs into account when determining the MIPs for "whole fish fillets and 
fillets cut in pieces" means that it did not apply th e "standard" weight conversion factors set out in 
Council Regulation (EC) No 772/1999 to all presenta tions covered by the MIPs.  We agree with 
Norway that the langauge in the Definitive Regulation appears to support this assertion. 
                                                      
814 A more detailed explanation of the rationale underl ying the investigating authority's decision to base 
the MIPs on "non-injurious" prices is set out above, paras. 7.403 - 7.408. 
815 Definitive Regulation, Recital 129. 
816 EC, Answer to Panel Question 130. 
817 Definitive Regulation, Recital 132. 
818 EC, Answer to Panel Question 130; Norway, Comme nts on the European Communities'  Answer to 
Panel Question 130.  Council Regulation (EC) No 772/1999 of 30 March 1999 imposing definitive anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway and repealing 
Regulations (EC) No 1890/97 and (EC) No 1891/97, Official Journal L101/1, 16 April 1999.  Paragraph 17 of 
Regulation 772/1999 states that the weight conversion factors used in that investigation are set forth in the Notice of Initiation of that investigation.  The Notice of Initiation reveals the following weight conversion 
factors: "Gutted head-on" salmon – "0,90"; "Gutted head -off" salmon – "0,80"; "whole fish fillets above 300 gm 
each" – "0,65"; and "other fillets or f illet portions normally weighing 300 gm or less" – "0,56", Official Journal 
C400/4, 22 December 1998. 
819 Definitive Regulation, Recital 132. WT/DS337/R 
Page 288  
 
  7.695  After it had derived the cost of production for whole fish salmon, the investigating authority 
next adjusted this amount to account for transport expenses related to shipping the relevant salmon 
presentation from Norway to the EC border at the level of CIF.  The EC has not explained whether the transport costs applied were actual costs incurred by the relevant investigated party, for example, on 
its export sales, or whether it used some  other basis for calculating these costs. 
7.696  The investigating authority then added a figure representing an amount of profit of 8 per cent 
on the CIF adjusted price.  We note that the inves tigating authority used the same percentage profit 
margin when constructing normal value.
820 
7.697  Finally, in order to compare the "non-dumpe d" MIPs with the "non-injurious" MIPs, the 
investigating authority converted the "non-dump ed" MIPs expressed in NOK into "non-dumped" 
MIPs expressed in EUR on the basis of a three y ear average exchange rate covering 2002, 2003 and 
the period of investigation.  The investigating aut hority explained that it believed it was appropriate to 
use a three year average exchange rate because "a nu mber of important costs which [were] included in 
the normal value [were] incurred over [the] producti on cycle" of salmon, which the investigating 
authority considered to have an average duration of three years.821 
7.698  The EC has submitted the following table to  accompany its explanation of how the 
investigating authority calculated the final "non-dumpe d" MIPs for each investigated party in respect 
of one presentation – whole fish:822 
NOK 
Company Volume 
Exported to 
EU 
(kg WFE) Final COP 
WFE Ex-
W Transport + 
Tax + 
Miscellaneous 
cost per unit CIF Turnover CIF per 
unit Non-
dumped 
MIP 
Fjord Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Marine Harvest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Grieg Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Stolt Seafarm [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Follalaks [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Hydroteck [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Pan Fish [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Seafarm Invest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Weighted 
Average [[XXX]]   [[XXX]] [[XXX]] [[XXX]] 
 
                                                      
820 Provisional Regulation, Recital 30. 
821 Definitive Regulation, Recital 130. 
822 Exhibit EC-77.  WT/DS337/R 
 Page 289 
 
 
   
Euro (1 Euro = 7.942 NOK, three year average) 
Company Volume 
Exported to 
EU 
(kg WFE) Final COP 
WFE Ex-W Transport + 
Tax + 
Miscellaneous 
cost per unit CIF Turnover CIF per 
unit Non-
dumped 
MIP 
Fjord Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Marine Harvest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Grieg Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Stolt Seafarm [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Follalaks [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Hydroteck [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Pan Fish [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Seafarm Invest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] 
Weighted Average [[XXX]]   [[XXX]] [[XXX]] [[XXX]] 
 
7.699  We note that the MIP imposed in the Defin itive Regulation on all investigated and non-
investigated parties in respect of "whole fish, fresh, chilled or frozen" salmon was EUR 2.80 per kg.  
The above table shows that all of the "non-dumped" MIPs calculated for the in vestigated parties were 
greater than the MIP imposed in the Definitive Regul ation.  Likewise, the above table indicates that 
the weighted average of the company-specific non-dumped MIPs for whole fish was also above 
EUR 2.80 per kg. 
7.700  The EC has not provided a similar table or e xplanation in respect of the "non-dumped" MIPs 
calculated for all of the other salmon presentations.  However, it argues that "[s]ince the figures for 
other presentations are the result of applying the sa me standard adjustments that were used in the 
calculations of the cost of production, the same result necessarily follows for them".823  W e  
understand this statement to mean that the "com pany-specific non-dumped" MIPs calculated for all 
other presentations were based on a cost of produc tion derived using "weigh t conversion factors", 
adjusted for shipping costs to the EC  and a profit margin of 8 per cent. 
(ii) Allegation that the MIPs imposed on the investigated parties were inconsistent with 
Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994 
7.701  As we understand it, the system of MIPs imposed by the investigating authority results in the 
collection of anti-dumping duties through the applica tion of a "prospective reference price" which the 
EC argues was less than the normal value.  The Definitive Regulation explains that each time a 
presentation of salmon is imported at a price below the relevant MIP for that presentation, the amount of anti-dumping duty collected would be equivalent to the "difference between the actual price and the minimum import price".
824  Thus, the MIP for each separate salmon presentation acts as a 
"prospective reference price", which may result in the collection of variable amounts of anti-dumping 
duty, depending upon the difference between the export price and the MIP. 
                                                      
823 EC, Answer to Panel Question 130. 
824 Definitive Regulation, Recital 133. WT/DS337/R 
Page 290  
 
  7.702  Norway argues that Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994 
require that MIPs imposed on investigated partie s not exceed the respective normal values of those 
investigated parties.  According to Norway, the MI Ps imposed by the investigating authority in the 
present investigation were, for various reasons, gr eater than the normal values of the individually 
investigated parties.  The EC shares Norway's view  that MIPs imposed on investigated parties must 
not exceed their respective normal values.  However,  according to the EC, the MIPs imposed by the 
investigating authority in the present investigation were lower than the respective normal values of the 
investigated parties. 
7.703  Norway's claim is focused on the level of MIPs set by the investigating authority for the six 
different salmon presentations for all investigated parties.  Although the collection of variable anti-
dumping duties on the basis of a "prospective normal value" or an equivalent or lower MIP is 
permissible under the AD Agreement,
825 there is no explicit guidance in the GATT 1994 or the 
AD Agreement on the maximum level at which the "prospective normal value" or MIP must be set for 
investigated parties .  In this regard, the parties agree that  the relevant benchmark is the respective 
normal values of the investigated parties.826  According to Norway, this flows from the obligation in 
Article 9.2 to collect anti-dumping duties in the "a ppropriate amounts", when read together with 
various other provisions, including Articles 2.1 and 9.4 of the AD Agreement and Articles VI:1 and 
VI:2 of the GATT 1994. 
7.704  Article 9.2 of the AD Agreement is one of several provisions in Article 9 addressing the 
"Imposition and Collection of Anti-Dumping Duties" .  One of its requirements is that any anti-
dumping duties imposed must be collected "in the a ppropriate amounts".  However, Article 9.2 does 
not explain how to determine the "appropriate" am ounts of any anti-dumping duty to be collected.  
The dictionary definitions of the word "appropriate " include "specially suitable (for, to); proper, 
fitting".827  This suggests that the "appropriate" amount of anti-dumping duty is the amount of duty 
that is "proper" or "fitting" in the c ontext of an anti-dumping investigation. 
7.705  Article VI:2 of the GATT 1994 reveals that the purpose of imposing and collecting anti-
dumping duties is to "offset or prevent dumping".  Th is principle is reflected in Article 9.1 of the 
AD Agreement, which provides that an anti-dumping duty may only be imposed when "all requirements for the imposition have been fulfilled".  It follows that the "appropriate" amount of anti-
dumping duty must be an amount that results in of fsetting or preventing dumping, when all other 
requirements for the imposition of anti-dumping duties have been fulfilled.  Dumping is defined in 
both Article VI:1 of the GATT 1994 and Article 2.1 of the AD Agreement, in essentially the same 
terms, as the introduction of a product into the comm erce of another country at a price which is "less 
than its normal value".  Thus, to the extent that  an anti-dumping duty may be imposed to offset or 
prevent dumping, it follows that it may only be co llected when the price of the imported product is 
less than its normal value.  No anti-dumping duty ma y be imposed (and therefore collected) when the 
price of an imported product is above its normal va lue.  To this extent, normal value constitutes a 
point of reference for determining when anti-dumping duties may or may not be imposed and 
collected. 
                                                     
 
825 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.359; Panel Report, United States – 
Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") ("US - Zeroing (EC) "), 
WT/DS294/R, adopted 9 May 2006, para. 7.206; and Panel Report, United States – Measures Relating to 
Zeroing and Sunset Reviews  ("US – Zeroing (Japan) "), WT/DS322/R, adopted 23 January 2007, as modified by 
Appellate Body Report, WT/DS322/AB/R, paras. 7.201, 7.205-7.206. 
826 Norway, FWS, paras. 643-651; Norway, Answer to Panel Questions 69 and 90; EC, Answer to 
Panel Question 90; EC, Oral Statement at the Second Substantive Meeting of the Parties, para. 71. 
827 New Shorter Oxford English Dictionary, Clarendon Press, 1993.  WT/DS337/R 
 Page 291 
 
 
  7.706  All this suggests that normal value must also be determinative of th e "appropriate" amount of 
anti-dumping duty that may be collected in the context of the application of a MIP.  Thus, it would not be "appropriate" to collect anti-dumping duties throug h the imposition of a MIP that was greater than 
normal value, because this would imply that anti-dum ping duties could be collected even when export 
price was above the normal value.  Therefore, it follows that when collecting anti-dumping duties 
through application of a MIP, the "appropriate" am ount of anti-dumping duty pursuant to Article 9.2 
must be one where the maximum level of the MIP imposed on an i nvestigated party is its normal 
value. 
7.707  We find important contextual support for this conc lusion in Article 9.4.  Article 9.4 explicitly 
recognizes that a "prospective normal value" may be applied for the purpose of collecting anti-
dumping duties from parties not included in a lim ited investigation undertaken pursuant to 
Article 6.10.  To this end, Article 9.4(ii) estab lishes that for such non-investigated parties, an 
investigating authority will be entitled to apply an ti-dumping duties in an amount not greater than the 
"difference between the weighted average normal valu e of the selected exporters or producers and the 
export prices" of the non-investigated parties.  Ar ticle 9.4(ii) thereby sets the maximum level of the 
"prospective normal value" that could be applied to  non-investigated parties at the weighted average 
of the normal values of the investigated parties.  In our view, it would make sense to consider that 
essentially the same benchmark – normal value – should be equally relevant when applying a 
"prospective reference price" to investigated parti es.  In this regard, we find the last sentence of 
Article 9.4 to be particularly in structive.  This sentence reads: 
"The authorities shall apply individual duties or normal values to imports from any 
exporter or producer not included in the examination who has provided the necessary 
information during the course of the investigation, as provided for in subparagraph 10.2 of Article 6." (Emphasis added). 
7.708  Thus, the last sentence of Article 9.4 explicitly recognizes that the benchmark for a MIP 
applied to any individual exporter or producer that  has provided information of the kind that could 
result in the calculation of an individual margin of dumping in accordance with Article 6.10.2, may be 
equivalent to its "individual ... normal values".   
7.709  For all of the above reasons, we therefore c onclude that in order to comply with the 
requirement in Article 9.2 of the AD Agreemen t that anti-dumping duties be collected in the 
"appropriate amounts", Members imposing MIPs on inves tigated parties must ensure that they do not 
exceed their respective normal values. 
 Whether the MIPs imposed on investigated par ties were greater than their respective normal 
values 
 
7.710  We understand Norway to have argued that th e MIPs imposed on the investigated parties 
exceeded their individual normal values for essentially  four reasons:  First, because for one company, 
Sinkaberg-Hansen, Norway contends that the EC has practically admitted  that the "non-dumped" 
MIPs were based on a determination of dumping that  was unreliable.  Secondly, Norway asserts that 
the "non-dumped" MIPs were set at CIF Communi ty border levels, thus raising them above the 
respective normal values.  Thirdly, to the extent that it used a three-year average exchange rate, 
instead of the exchange rate for the period of investigation, to convert the "non-dumped" MIPs 
expressed in NOK to EUR, Norway submits that the i nvestigating authority inflated those MIPs.  And 
fourthly, because in calculating the "non-dumped" MIPs, the investigating authority used "weight 
conversion factors" instead of actual costs of prod uction for five of the six presentations of salmon. 
7.711  Below, we address the merits of each of Norway's  assertions in turn.  However, before doing 
so, we recall that the MIPs established by the investigating authority were based on the "non-WT/DS337/R 
Page 292  
 
  injurious" MIPs, because these were found to be lower than the "non-dumped" MIPs.  The level of the 
"non-dumped" MIPs was therefore critical to the in vestigating authority's decision to set the MIPs 
equal to the "non-injurious" MIPs.  Thus, to the extent  that we may find any flaw in the investigating 
authority's calculation of the "non-dumped" MIPs that could potentially have caused them to be 
overstated, we believe that the factual basis for th e investigating authority's conclusion that the "non-
dumped" MIPs were lower than the "non-injuri ous" MIPs must also be flawed, rendering the 
imposition of the latter on the investigated parties in consistent with the obligation under Article 9.2 to 
collect anti-dumping duties in the "appropriate amounts".  In our view, it is neither necessary nor permitted, under the standard of review set out in  Article 17.6 of the AD Agreement, for us to 
determine whether any error in the calculation of the "non-dumped" MIPs could in actual fact render 
the "non-dumped" MIPs lower than the "non-injurious" MIPs.  In this regard, we believe that it would 
be sufficient, in order to conclude that the inves tigating authority has not sa tisfied the obligation set 
out in Article 9.2, to find that the factual basis upon which the investigating authority took the decision to base the MIPs on the "non-injurious" MIPs was erroneous. 
- The "non-dumped" MIPs calculated for Sinkaberg-Hansen 
7.712  In the table submitted by the EC to explain how the investigating authority calculated the 
"non-dumped" MIPs for each of the investigated pa rties, the EC did not include the figures for two 
companies, Nordlaks and Sinkaberg-Hansen.  The e xplanation for not including Nordlaks was that it 
was determined to have a de minimis  margin of dumping in the investigation, and therefore not 
subject to anti-dumping measures.  However, the EC explained that it had not disclosed how 
Sinkaberg-Hansen's "non-dumped" MIPs had been cal culated because, "in the light of the claims 
made by Norway", it considered that Sinkaberg-H ansen's data "gave rise to doubts" about the 
investigating authority's "calculation of the company's cost of production".
828  Thus, the EC 
communicated that "the finding of dumping for Sinkaberg cannot presently be regarded as reliable", noting that it would "continue to r econsider expeditiously the relevant data and when that process is 
completed will take whatever action is appropriate  regarding the measure and regarding the position 
of Sinkaberg in particular".
829 
7.713  As of the time of writing this report, the EC has not communicated the results, if any, of its 
reconsideration of the position of Sinkaberg-Hansen .  In any case, we understand the EC's statement 
to be an admission that the investigating authorit y erred in determining Sinkaberg-Hansen's costs of 
production during the investigation.  In particular, we take the EC's statement to mean that it has 
accepted that the investigating authority erred when it included Sinkaberg-Hansen's revenue from 
slaughtering services provided to third companies in the calculation of its cost of production for the 
purpose of determining c onstructed normal value.830  Thus, to the extent that the cost of production for 
each investigated company was a central element of  the investigating authority's calculation of the 
company-specific "non-dumped" MIPs, we find that by overstating Sinkaberg-Hansen's cost of production, the investigating authority also overs tated the corresponding "non-dumped" MIPs.   
- Adjustment of the normal value to  the CIF Community border level 
7.714  We recall that the investigating authority constr ucted normal value for most if not all of the 
domestic sales of the investigated parties, on the basis of each investigated party's manufacturing 
costs, SG&A costs and a profit margin of 8 per cent.
831  However, the "non-dumped" MIPs were not 
strictly set at the levels of the investigated pa rties' constructed normal values.  Rather the "non-
                                                      
828 EC, Answers to Panel Questions 128 and 130. 
829 EC, Answer to Panel Question 128. 
830 Our findings in respect of Norway's claims c oncerning the investigating authority's calculation of 
Sinkaberg Hansen's constructed normal value are set out above, paras. 7.609. 
831 Provisional Regulation, Recitals 26 and 30.  WT/DS337/R 
 Page 293 
 
 
  dumped" MIPs were derived by adding transport a nd insurance expenses relating to the shipment of 
salmon presentations from Norway to the CIF Community  border level, to the full cost of production, 
and then adding an amount of 8 per cent of th is figure, representing the margin of profit. 
7.715  The EC does not argue that the "non-dumped" MIPs were strictly equal to the investigated 
parties' normal values.  However, as we understand it, the EC contends that the adjustment made to 
bring the normal value to the CIF Community bor der level was merely made for administrative 
convenience.  In essence, the EC argues that b ecause the export price of any salmon presentation 
imported to the EC would be assessed by the EC customs authorities for the purpose of collecting 
anti-dumping duties at the CIF Community border le vel, it makes administrative sense to set the MIP 
at a normal value adjusted to the CIF Community border level.832  In this manner, there would be no 
need to reduce the CIF invoice price of imported salmon for transport and insurance costs incurred 
between Norway and the Community border.  Thus, th e EC argues that the "result in terms of the duty 
imposed under the MIP would be the same, but the process would considerably add to the cost and 
bother of passing goods through customs control".833 
7.716  As we have already noted, the MIPs imposed by  the investigating authority will result in the 
collection of variable amounts of anti-dumping du ty, depending upon the difference between the 
export price and the MIP of the relevant presentation of salmon.834  Because a MIP must be set at a 
price that does not exceed the normal value, it follo ws that the collection of variable anti-dumping 
duties implies the continued existence of dumping.   Under Article 2.4 of the AD Agreement, the 
comparison between export price and normal value that  is required to determine the existence of 
dumping must be made between prices at the same level of trade, normally the ex-factory level.  
Thus, in normal situations, an investigating author ity will adjust export price to the ex-factory level 
and compare this to a normal value that is also ad justed to the ex-factory level.  Alternatively, in 
situations outside of the norm, it may be appropria te to compare export price with normal value at a 
level of trade that is different from ex-factory, for ex ample, at the level of distributors.  In our view, 
the principle that export price and normal value be compared at the same level of trade is of equal 
relevance and importance to the assessment of vari able anti-dumping duties through the application of 
a MIP.  However, unlike the situation when su ch a comparison is necessary for the purpose of 
determining the existence of dumping, the AD Agreement provides no guidance on how any adjustments to export price and/or normal value must be  made in this context.  For instance, there is 
no indication of the appropriate level of trade that an investigating authority must use to assess the 
relevant amount of duty.  Neither is there any guidance on whether adjustments should be made in 
advance of importation, when setting the MIP, or at the time of importation, when assessing the 
amount of duty.  In this light, we believe that the AD Agreement leaves investigating authorities with 
a degree of discretion to make the adjustments consider ed to be most appropriate, in the light of all 
relevant circumstances, provided that these do not r esult in the distortion of the relevant export price 
or normal value.  
7.717  In the present investigation, the investigati ng authority decided that the most appropriate 
adjustment to make would be one that brought the " non-dumped" MIP to the level of trade of the CIF 
Community border, because EC customs authorities traditionally assess ad valorem  anti-dumping 
duties at this level.  In doing so, we note that the investigating authority did not add the CIF adjustment figure to the normal value calculated for each investigated party, but  only to the cost of 
production.  Thus, instead of adding transport an d insurance costs to the normal value (cost of 
production plus profit), the investigating authority a dded these costs to the cost of production.  The 
investigating authority then added a further amount representing 8 per cent of the CIF adjusted cost of 
                                                     
 
832 EC, SWS, paras. 191-192; EC, Or al Statement at the Second Subs tantive Meeting of the Parties, 
para. 71. 
833 EC, Oral Statement at the Second Substa ntive Meeting of the Parties, para. 71. 
834 See, para. 7.701. WT/DS337/R 
Page 294  
 
  production , as profit, to arrive at the "non-dumped" MIP.   Obviously, 8 per cent of the CIF adjusted 
cost of production is greater than 8 per cent of the cost of production.  As such, the "non-dumped" MIP derived by the investigating authority was in fact greater than the sum of the normal value calculated for the purpose of the determination of dump ing plus the transport and insurance costs.  In 
other words, the figure that would result after the removal of transport and insurance costs from the 
"non-dumped" MIP would be greater than the normal va lue.  To this extent, the adjustment applied by 
the investigating authority resulted in overstating norma l value.  For this reason, we consider that the 
"non-dumped" MIPs determined by the investigati ng authority exceeded the appropriate benchmark. 
- Conversion of the "non-dumped" MIPs into EUR using a three year average 
exchange rate 
7.718  Norway argues that the investigating authorit y was not entitled to use a three-year average 
exchange rate covering the years 2002, 2003 and the period of investigation when converting the 
"non-dumped" MIPs into EUR for the purpose of comparison with the "non-injurious" MIPs and arriving at the MIPs finally imposed.  Norway not es that during this three-year period, the EUR 
appreciated by 11.6 per cent against the NOK.  Thus , by using the lower three-year average exchange 
rate, instead of the exchange rate for the peri od of investigation, Norway submits that the 
investigating authority effectively oversta ted normal value in EUR by 5.2 per cent.
835 
7.719  In the present investigation, the investigating authority explained that it chose to apply a 
three-year average exchange rate to determine each of the investigated parties' "non-dumped" MIPs 
because "a number of important costs which [were]  included in the normal value" were incurred over 
a production cycle for salmon that was on average three years.836  In other words,  the investigating 
authority chose to apply a three-y ear average exchange rate because "a  number" of the costs used to 
construct normal value were calculated on the same basis. 
7.720  According to the EC's own explanation of the methodology applied by the investigating 
authority to determine the costs of pr oduction of the investigated parties,837 a three-year average was 
used to determine one of 12 items of cost (NRCs) used in the calculation of the cost of production of 
three investigated parties; and one of ten items of cost (finance costs) used in the calculation of the 
cost of production of five investigated parties.  Fo r two investigated parties, all cost elements were 
derived from data relating to opera tions undertaken during the period investigation.  Thus, the three-
year average approach to calculating costs was not a pplied uniformly to all investigated parties; and 
only in respect of a very small proportion of the number of cost items used in the determination of eight of the 10 investigated parties' costs of produc tion.  In contrast, the three-year average exchange 
rate was applied to convert all cost elements of the "non-dumped" MIPs into EUR for all ten 
investigated parties. 
7.721  We recall that we have found that the investiga ting authority's use of a three-year average to 
calculate the NRCs of [[XXX]] and [[XXX]] and the finance costs of [[XXX]] and [[XXX]] was inconsistent with the AD Agreement.
838  Thus, to the extent that the investigating authority justified 
the use of a three-year average exchange rate in the calculation of the "non-dumped" MIPs on the 
basis of its adoption of the same approach to the calculation of the underlying costs, we find that the 
EC's defence to Norway's claim cannot be sustained.  Moreover, even assuming arguendo that the use 
of a three-year average exchange rate were appropr iate, we do not believe the application of such a 
methodology to all cost elements of all investigated parties could be justified in the present case, 
given that only one of many cost elements used in  the determination of eight investigated parties' 
                                                      
835 Norway, FWS, para. 633. 
836 Definitive Regulation, Reci tal 130, Exhibit NOR-11. 
837 Exhibit EC-37. 
838 See, paras. 7.510, 7.515 and 7.543.  WT/DS337/R 
 Page 295 
 
 
  costs of production was calculated on the basis of a three-year average, and that none of the cost 
elements of two of the investigated parties were determined on this basis.  Thus, we find that the investigating authority's use of a three-year aver age exchange rate resulted in overstating the "non-
dumped" MIPs calculated for the investigated parties. 
- Weight conversion factors used to derive cost of production 
7.722  For five of the six presentations of salmon the investigating authority determined the 
investigated parties' "non-dumped"  MIPs by applying "weight conve rsion factors" to derive the 
relevant costs of production (i.e., manufacturing and SG&A cost), and then adjusting these to the CIF 
Community border level and adding a amount for profit.   
7.723  Once again, we recall that the maximum level at which it is permissible to set a MIP imposed 
on investigated parties, in order to comply with Article 9.2, is the normal value used for the purpose 
of determining the existence of dumping.  Rul es governing the calculation of normal value can be 
found in Article 2 of the AD Agreement.  Depending upon the particular circumstances of an investigation, investigating authorities may determin e normal value on the basis of one of three prices: 
(i) the "comparable price, in the ordinary course of  trade, for the like product" sold on the domestic 
market;
839 (ii) the "comparable price of the like product when exported to an appropriate third 
country";840 or (iii) the "cost of production in the count ry of origin plus a reasonable amount for 
administrative, selling and general costs and for profits".841  Guidance on how to calculate costs of 
production, SG&A expenses and prof its can be found in Articles 2.2.1.1 and 2.2.2.  These provisions 
provide that the starting point should always be actual cost data and information reported by the investigated party.  However, in certain situa tions, investigating authorities may have recourse to 
other sources of information.  For instance, Artic le 2.2.2(iii) indicates that when the amounts for 
SG&A expenses and profit cannot be based on actual data relating to sales made in the ordinary 
course of trade, an investigating authority may derive these data through the use of "any other 
reasonable method".  Article 6.8 and Annex II of th e AD Agreement permit an investigating authority 
to use "facts available" to fill a gap created when information necessary for it to make a determination 
is not forthcoming from an investigated party.  Thus, the AD Agreement does not exclude the 
possibility that an approach which approximates an investigated party's costs of production may, in 
certain circumstances, be appropriate.  Therefore,  we see no reason why the application of "weight 
conversion factors" of the kind applied by the inves tigating authority in the present investigation must 
be per se  impermissible. 
7.724  Likewise, although the facts appear to demonstrat e that the investigating authority did not rely 
upon "standard" weight conversion factors when deriving the "non-dumped" MIPs for all of the 
presentations,
842 we do not consider that this alone is enough to show that the "non-dumped" MIPs 
were flawed.  There may well be good reasons for choosing to apply weight conversion factors that 
result in a higher MIP than would otherwise be th e case through the application of "standard" weight 
conversion factors.  Therefore, in the same way that we consider it is possible, in certain 
circumstances, under the AD Agreement to rely up on "standard" weight conversion factors, it may 
also be possible to apply weight conversion f actors that are different from the "standard". 
7.725  We note that Norway has brought numerous detail ed claims in this dispute relating to the 
investigating authority's calculation of constructe d normal value for the investigated parties.  
However, Norway has not brought any specific claim under Articles 2 or 6.8 of the AD Agreement against the investigating authority's use of the "weight conversion factors" for the purpose of 
                                                     
 
839 Article 2.1. 
840 Article 2.2. 
841 Article 2.2. 
842 See, para.7.694. WT/DS337/R 
Page 296  
 
  calculating the investigated parties' costs of produc tion for five presentations of salmon.  Moreover, 
we note that in its comments on the EC's explanation of the methodology applied by the investigating authority to derive the "non-dumped" MIPs, Norway  explicitly identified "two objections" to the use 
of weight converions factors: First, that they de part from a "cost-based approach to calculating the 
normal value plus CIF"; and secondly, that the weight  conversion factors applied by the investigating 
authority were not "standard".
843  However, in raising these objections, Norway has not explained why 
the investigating authority was required under the AD Agreement to apply a "cost-based approach" 
when deriving the production costs of the differe nt salmon presentations, or use only "standard" 
weight conversion factors.  We recognize that the EC's disclosure of the details underlying the 
calculation of the "non-dumped" MIPs only in response to Panel Question 130, following the second 
substantive meeting of the parties, rendered Norway's task of constructin its arguments more difficult.  
However, we do not understand Norway to argue that it is for this reason that we must find the use of 
weight conversion factors resulted in a flawed calculation of the "non-dumped" MIPs.844  Thus, while 
it may be true that the investigating authority did not follow a cost-based appr oach in arriving at the 
costs of production for five of the six salmon presentations, and while it certainly appears that it did 
not apply "standard" weight conversion factors fo r all presentations of salmon, Norway has not 
established that the investigating authority's approach  was inconsistent with any of the disciplines for 
calculating normal value under the AD Agreement.  Fo r this reason, we cannot fault the investigating 
authority's calculation of the "non-dumped" MIPs simp ly because of the fact th at for five of the six 
presentations of salmon, it derived the relevant cost s of production through the application of "weight 
conversion ratios". 
- Conclusion 
7.726  In summary, we have found that: 
(i) For one investigated party, Sinkaberg -Hansen, the investigating authority 
incorrectly calculated the "non-dumped" MIPs for all six presentations of salmon because it erred in the calculation of this company's cost of 
production; 
(ii) For all investigated parties, the "non -dumped" MIPs for all presentations of 
salmon were greater than their respective normal values because they were inappropriately adjusted to the CIF Community border level; 
(iii) For all of the investigated parti es, the "non-dumped" MIPs for all 
presentations of salmon were overstated because of the use of a three year 
average exchange rate to convert th ese prices from NOK to EUR, despite the 
fact that only very few costs used in the calculation of these prices were 
derived from information averaged over the same three-year period; and  
(iv) Norway has not established that the inv estigating authority was not entitled to 
use "weight conversion factors" in establishing the costs of production used 
for the purpose of calculating the "non-dumped" MIPs for five of the six 
presentations of salmon.  
7.727  We recall that the MIPs established by the i nvestigating authority were based on the "non-
injurious" MIPs, because these were found to be lowe r than the "non-dumped" MIPs.  To the extent 
                                                     
 
843 Norway, Comments on the European Communities' Answers to Panel Questions 130 and 131. 
844 We note that Norway also challenges the investigating authority's alleged failure to provide a 
reasoned and adequate explanation of its MIP calculati ons under Article 12 of the AD Agreement.  Our views 
on this claim are set out at para. 7.834.  WT/DS337/R 
 Page 297 
 
 
  that we have found that the "non-dumped" MIPs calcu lated by the investigating authority were greater 
than the relevant normal values, greater than wh at they should have been or derived through the 
application of a flawed methodology, the investigating authority's finding that the "non-injurious" MIPs were less than the "non-dumped" MIPs rested on a flawed factual basis.  Thus, in imposing the MIPs on the investigated parties at the level of the "non-injurious" MIPs, the investigating authority 
did not act consistently with the obligation to ensu re that anti-dumping duties must be collected in the 
"appropriate amounts", within the meaning of Article 9.2 of the AD Agreement. 
7.728  We note that Norway has not asserted any basis for its allegations that the MIPs are 
inconsistent with Article VI:2 that is independent of its allegations of  inconsistency with Article 9.2.  
Accordingly, and in the light of our finding that th e investigating authority acted inconsistently with 
the EC's obligations under Article 9. 2, we consider that it is not n ecessary, in order to resolve this 
dispute, to make any findings in respect of Norway 's claim that the investigating authority's MIPs 
were also inconsistent with Article VI:2 of th e GATT 1994.  We therefore decline to do so, on the 
grounds of judicial economy. 
(iii) Allegation that the MIPs imposed on the non- investigated parties were inconsistent with 
Article 9.4(ii) of the AD Agreemen t and Article VI:2 of the GATT 1994 
7.729  Norway argues that the MIPs imposed on non-inv estigated parties were inconsistent with 
Article 9.4(ii) of the AD Agreement and Article  VI:2 of the GATT 1994 because they exceeded the 
weighted average of the normal values of the inve stigated parties.  We begin our evaluation of 
Norway's claim by reviewing the text of Ar ticle 9.4(ii), which reads in relevant part: 
"When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: 
(i) the weighted average margin of dumping established with 
respect to the selected exporters or producers or,  
(ii) where the liability for payment of anti-dumping duties is 
calculated on the basis of a prospective normal value, the difference 
between the weighted average normal value of the selected exporters 
or producers  and the export prices of exporters or producers not 
individually examined, 
provided that the authorities shall disreg ard for the purpose of this paragraph  any zero 
and de minimis  margins and margins established under  the circumstances referred to 
in paragraph 8 of Article 6 ." 
7.730  As we have already noted,845 Article 9.4(ii) requires investigating authorities applying a 
"prospective normal value" to ensure that an y amount of anti-dumping duty collected from non-
investigated parties does not exceed  the difference between the "weight ed average normal value of the 
selected exporters or producers" and the export price of the non-investigated parties.  The proviso in 
Article 9.4 indicates that "margins established under the circumstances referred to" in Article 6.8 must 
be disregarded "for the purpose of this paragraph ".  In our view, this implies that the margins of 
dumping calculated on the basis of "facts available"  within the meaning of Article 6.8 must be 
excluded when setting the benchmark for duty collec tion in accordance with either Article 9.4(i) or 
(ii).  If the exclusion of such margins were only required in respect of duty collection pursuant to 
Article 9.4(i), we do not see why the drafters of the provision would have explicitly stated that the 
                                                      
845 See, para. 7.707. WT/DS337/R 
Page 298  
 
  proviso was intended to operate for the purpose of the entire paragraph.  Moreover, we note that the 
proviso  is expressed in the same sentence that includes the tw o methodologies described in 
Article 9.4(i) and (ii).  
7.731  In the context of Article 9.4(ii), Norway argues that the exclusion of margins of dumping 
established on the basis of "facts available" means that normal values that have been calculated on the 
basis of "facts available" must be disregarded in setting the appropriate level of the applicable MIP 
because normal values "are an integral part of the calculation of margins".
846  We agree.  Whenever 
"facts available" are used to determine an inves tigated party's normal value, the margin of dumping 
that is determined for that party will be establis hed on the basis of "facts available", within the 
meaning of Article 6.8.  Thus, the requirement that  "facts available" margins be disregarded for the 
purpose of setting the "prospective normal value" referre d to in Article 9.4(ii) means that any normal 
values of investigated parties calculated on the basi s of "facts available" must be excluded from the 
calculation of the "weighted average normal value of  the selected exporters or producers".  To this 
extent, we find that Article 9.4(ii) sets the maximu m level of the "prospective normal value" that may 
be imposed on non-investigated parties at the weighted average of the normal values of the 
investigated parties, excluding any normal values ca lculated for investigated parties on the basis of 
"facts available" within the meaning of Article 6.8. 
7.732  Norway asserts that the MIPs imposed on the no n-investigated parties did not meet this 
standard.  First, for the same reasons that we ha ve explained and addressed in the previous section, 
Norway argues that the "non-dumped" MIPs calculate d for each of the investigated parties exceeded 
their respective normal values.  As such, the weight ed average of the "non-dumped" MIPs must have 
necessarily also exceeded the weighted  average of the investigated parties' respective normal values.  
Secondly, Norway argues that the weighted average of the "non-dumped" MIPs of the investigated 
parties was flawed because: (i) it was calculated in  part on the basis of the individual "non-dumped" 
MIP determined for Seafarm Invest, even thoug h the Definitive Regulation reveals that the 
investigating authority did not calculate an individual margin of dumping for this company, and 
treated it in the same way as another company, Marine  Harvest; and (ii) it was calculated in part on 
the basis of the normal value determined for Grieg Seafood through the application of "facts 
available". 
7.733  We note that the Definitive Regulation does not indicate whether the investigating authority 
actually compared the "non-injurious" MIPs with the weighted average of the "non-dumped" MIPs 
calculated for each of the investigated parties for each presentation of salmon.  The EC has not argued 
that the investigating authority actually undertook any such assessment.  Howe ver, the EC argues that, 
on the basis of the "non-dumped" MIPs that were dete rmined for the investigated parties, as well as 
the relevant volume and CIF turnover data, the wei ghted average of the "non-dumped" MIPs of the 
investigated parties for each presentation of sal mon was greater than each corresponding "non-
injurious" MIP.847 
 Reliance on the "non-dumped" MIPs ca lculated for investigated parties 
 
7.734  We recall that the investigating authority's finding that the "non-injurious" MIPs were less 
than the "non-dumped" MIPs calculated for each of the investigated parties was deficient because the 
"non-dumped" MIPs were greater than the relevant normal values, greater than what they should otherwise have been and because derived thro ugh the application of a flawed methodology.
848  I t  
follows that there is no objective factual basis to s upport the EC's contention that the "non-injurious" 
MIPs were less than the weighted average  of the "non-dumped" MIPs determined for the investigated 
                                                      
846 Norway, Comments on the European Communities' Answers to Panel Questions 130 and 131. 
847 EC, Answer to Panel Question 130. 
848 See, para. 7.727.  WT/DS337/R 
 Page 299 
 
 
  parties for each presentation of salmon.  In other words, because the weighted  average of the "non-
dumped" MIPs for investigated parties did not amount  to the weighted average of the normal values 
of the investigated parties, there is no objective f actual basis for concluding that the "non-injurious" 
MIPs were lower than the weighted average of the no rmal values of the investigated parties.  Thus, we 
find that the investigating authority failed to comp ly with the obligation in Article 9.4(ii) of the 
AD Agreement to ensure that any MIPs imposed  on non-investigated parties did not exceed the 
weighted average of the normal va lues of the investigated parties. 
 Reliance on the "non-dumped" MIPs calculated for Seafarm Invest  
 
7.735  In its response to Panel Question 130, the EC explained that the investigating authority 
calculated individual "non-dumped" MIPs for all pr esentations of salmon for Seafarm Invest.  Exhibit 
EC-77 shows that these "non-dumped" MIPs were diffe rent from those calculated for Marine Harvest.  
However, we can find no evidence of the investig ating authority having actually determined a 
company-specific margin of dumping (normal value or export price) for Seafarm Invest.  On the 
contrary, the investigating authority's Definitive Disclosure to Seafarm Invest noted that it had 
decided to treat this company in the same way as Marine Harvest.849  Moreover, the Definitive 
Regulation shows that Seafarm Invest was attributed  the same margin of dumping as Marine Harvest, 
11.2 per cent.  Thus, to the extent that it is based upon the unsubstantiated calculation of separate 
"non-dumped" MIPs for Seafarm Invest, the EC's co ntention that the weighted average of the "non-
dumped" MIPs calculated for all of the investigated  parties was greater than the "non-injurious" MIPs 
for each of the presentations of salmon, rests on a flawed  factual basis.  In other words, to the extent 
that the EC's calculation of the weighted average of the "non-dumped" MIPs for investigated parties 
relies in part on the "non-dumped" MIPs of Seaf arm Invest, which cannot be substantiated on the 
basis of the evidence that is be fore us, that figure cannot amount to the weighted average of the 
normal values of the investigated parties.  There is  therefore no objective factual basis for concluding 
that the "non-injurious" MIPs were lower than th e weighted average of the normal values of the 
investigated parties.  Thus, we find that the i nvestigating authority failed to comply with the 
obligation in Article 9.4(ii) of the AD Agreem ent to ensure that any MIPs imposed on non-
investigated parties did not exceed the weighted average of the normal values of the investigated 
parties. 
 Reliance on the "non-dumped" MIPs calculated for Grieg Seafood 
 
7.736  We have found elsewhere in this report that  the investigating authority determined Grieg 
Seafood's filleting and finance costs, and thereby Grieg's constructed normal value, on the basis of 
"facts available", in a manner that was inconsiste nt with Article 6.8 and paragraph 3 of Annex II.850  
The EC's explanation of the investigating author ity's methodology for calculating the investigated 
parties' "non-dumped" MIPs confirms that the co st components of Grieg's constructed normal value 
that were impermissibly derived from "facts availabl e" were used to establish its "non-dumped" MIPs. 
7.737  We recall that when setting MIPs for non-investig ated parties at the level of the weighted 
average of the normal values of the investigated parti es, investigating authorities must ensure that they 
disregard normal values determined on the basis of "facts available".851  The EC has argued that the 
weighted average of the "non-dumped" MIPs for the investigated parties, including those of Grieg, 
was greater than the "non-injurious" MIPs for all presentations of salmon.  For this reason, the EC 
submits that the MIPs imposed on non-investigated parties were consistent with Article 9.4(ii).  
However, to the extent that the weighted aver age of the "non-dumped" MIPs calculated by the EC 
included the "non-dumped" MIPs for Grieg, we be lieve that the comparison made by the EC is 
                                                      
849 Exhibit NOR-85. 
850 See, paras. 7.372 and 7.336. 
851 See, para. 7.731. WT/DS337/R 
Page 300  
 
  flawed.  This is because the inclusion of Grieg's "non-dumped" MIPs means that the weighted average 
of the "non-dumped" MIPs of the investigated pa rties that the EC relies upon does not represent the 
weighted average of the normal valu es of the investigated parties that is referred to in Article 9.4(ii).  
Thus, the conclusion that the MIPs imposed on non- investigated parties were consistent with 
Article 9.4(ii) is erroneous because there is no objec tive basis to find that they were lower than the 
weighted average of the investigated parties' normal values, excluding all normal values calculated on 
the basis of "facts available" .  To this extent, we find that the MIPs established for the non-
investigated parties were incons istent with Article 9.4(ii).  
 Conclusion 
 
7.738  We have found that there is no objective factual basis to support the conclusion that the MIPs 
imposed on non-investigated parties were lower than the weighted average of the normal values of the 
investigated parties, excluding normal values calcu lated on the basis of "facts available", for the 
following reasons: 
(i) the weighted average of the "non-dumped"  MIPs of the investigated parties 
did not amount to the weighted average of the normal values of the 
investigated parties, because the "non- dumped" MIPs used for this purpose 
were greater than the relevant normal values, greater than what those normal 
values should have otherwise been and derived through the application of a 
flawed methodology; 
(ii) the weighted average of the "non-dumped"  MIPs of the investigated parties 
did not amount to the weighted average of the normal values of the 
investigated parties, because it includes the "non-dumped" MIPs allegedly calculated for Seafarm Invest which ca nnot be substantiated on the basis of 
the evidence that is before us; and  
(iii) the weighted average of the "non-dumped"  MIPs of the investigated parties 
did not amount to the weighted average of the normal values of the 
investigated parties, because it incl udes the "non-dumped" MIPs calculated 
for Grieg Seafood on the basis of "facts available". 
7.739  For all of the foregoing reasons, we find that  the MIPs imposed on the non-investigated 
parties were inconsistent with Article 9.4(ii).  Once again, we note that Norway has not asserted any 
basis for its allegations that the MIPs are inconsiste nt with Article VI:2 that is independent of its 
allegations of inconsistency with Ar ticle 9.4(ii).  Accordingly, and in  this light, we do not consider it 
is necessary, in order to resolve this dispute, to make any findings in respect of Norway's claim under 
Article VI:2 of the GATT 1994.  We therefore declin e, on the grounds of judicial economy, to make a 
finding on whether the MIPs imposed on non-investig ated parties were also inconsistent with 
Article VI:2 of the GATT 1994. 
(iv) Allegation that the MIPs imposed on the investigated parties were inconsistent with 
Articles 9.1, 9.2 and 9.3 of the AD Ag reement and Article VI:2 of the GATT 1994 
7.740  Norway contends that Articles 9.1 and 9.3 of  the AD Agreement and Article VI:2 of the 
GATT 1994 require that, when imposing measures on the basis of MIPs, investigating authorities 
must ensure that the amount of duty collected do es not exceed the margin of dumping calculated in 
the original investigation.  Thus, according to Norway, in imposing a system of measures based on 
MIPs on the investigated parties, the EC should have applied a mechanis m to ensure that the 
collection of a duty greater than the ad valorem  equivalent of the margin of dumping from the original  WT/DS337/R 
 Page 301 
 
 
  investigation was not possible.  In Norway's view , the EC's failure to do so, meant that it acted 
inconsistently with these provisions.   
7.741  The EC argues that anti-dumping duties collected from investigated parties on the basis of a 
MIP do not need to be capped at the ad valorem  equivalent of the margin of dumping calculated in the 
original investigation.  In this regard, the EC subm its that investigating authorities applying MIPs to 
investigated parties are entitled to collect anti-dum ping duties in the amount of the difference between 
the MIP that is imposed and the relevant export pri ce of the transactions being assessed.  The EC finds 
support for this in Article 9.4(ii), which specifically envisages that the total duty amount to be collected from non-investigated parties through the application of a MIP should be the difference 
between the weighted average normal values of the investigated parties and the export price of the 
relevant non-investigated party.  In addition, the EC argues that the "margin of dumping" that is 
referred to in Article 9.3 is the "margin of dumpi ng" that is determined for imports on which anti-
dumping duties have already been charged, in the co ntext of a refund proceeding under Article 9.3.2.  
Thus, according to the EC, the obligation under Article 9.3 to collect anti-dumping duties in an amount which does not exceed the "margin of dumping as established under Article 2" does not refer 
to the margin of dumping in the original investiga tion, but to the margin of dumping determined for 
the purpose of a refund proceeding. 
7.742  In essence, we understand Norway to be arguing th at in the context of the application of a 
MIP system to collect anti-dumping duties from investigated parties , the maximum amount of duty 
that may be collected is set at the difference betw een the individual normal values of the investigated 
parties and their individual export prices, provided that this differen ce does not exceed the ad valorem 
equivalent of the margin of dumping calculated in the original investigation .  In other words, Norway 
contends that there is a cap on the amount of duty that may be collected through the use of the application of a MIP from an investigated party at the level which corresponds to the margin of 
dumping calculated in the original investigation . 
7.743  As we have noted elsewhere in this report, Article 9 regulates the imposition and collection of 
anti-dumping duties.  Pursuant to Article 9.3, invest igating authorities must ensure that the amount of 
the anti-dumping duty collected does not "ex ceed the margin of dumping as established under 
Article 2".  In our view, this obligation reflects Article VI:2 of the GATT 1994, which provides that 
anti-dumping duties may be levied on any dumped product in an amount "not greater ... than the 
margin of dumping in respect of that product".  The parties argue that Article 9.3 of the AD Agreement applies equally to all duty collection systems, including those relying on a 
"prospective normal value" or allege dly equivalent MIP, as is the case in the present dispute.  We 
agree, and believe that the same may be said for Article VI:2 of the GATT 1994.  Moreover, to the 
extent that the AD Agreement is intended to impl ement Article VI of the GATT 1994, we consider 
Article 9.3 to be particularly instructive in id entifying the circumstances when the obligation under 
Article VI:2 will be satisfied. 
7.744  The modalities for ensuring compliance with Arti cle 9.3 are set out in three sub-ordinate 
paragraphs.  The first of these, Article 9.3.1, addresses duty assessment in the context of retrospective 
systems of duty collection.  Retrospective dut y assessment systems operate by virtue of the 
assessment of final liability for the payment of an ti-dumping duties on a retrospective basis, that is, 
after imports have been undertaken.  In US – Zeroing (Japan) , the Appellate Body explained that the 
obligations on investigating authorities operati ng such systems include the requirement to: 
"ensure that the total amount of anti-dumping duties collected from all the importers 
of [the product under consideration] does not exceed the total amount of dumping WT/DS337/R 
Page 302  
 
  found in all sales made by the exporter or foreign producer, calculated according to 
the margin of dumping established for th at exporter or foreign producer ... ."
852 
7.745  The Appellate Body made this observation in the context of its assessment of whether the 
collection of anti-dumping duties on imports made on a transaction- or importer-specific basis 
involved the calculation of margins of dumping.853  In this regard, we note that it is well established 
that duty collection or assessment proceedings take place after the imposition of an anti-dumping 
measure, and relates to import sales made over a period of time which starts and finishes beyond the 
period of investigation used in the original investig ation.  Thus, the Appellate Body's reference to the 
"total amount of dumping found in all sales by the exporter or foreign producer" must necessarily 
refer to the amount of dumping corresponding to the margin of dumping calculated for sales made 
after the original investigation.  Therefore, the Appe llate Body's statement does not support the view 
that the "margin of dumping" that is relevant fo r the purpose of determining the maximum amount of 
anti-dumping duty that may be collect ed under Article 9.3 in a retrospective duty assessment system 
must correspond to the ad valorem  equivalent of the margin of dumping calculated in the original 
investigation . 
7.746  Article 9.3.2 explains how investigating author ities may go about ensuring that the amount of 
anti-dumping duty does not exceed the "margin of dump ing as established under Article 2" when the 
amount of anti-dumping duty is assessed "on a prospective basis".  Article 9.3.2 reads: 
"When the amount of the anti-dumping duty is assessed on a prospective basis, 
provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  A refund of any such duty paid in excess of the actual 
margin of dumping  shall normally take place within 12 months, and in no case more 
than  18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of  the product subject to the anti-dumping 
duty.  The refund authorized should normally be made within 90 days of the above-noted  decision." (Emphasis added.) 
7.747  It is instructive for present purposes to note th at Article 9.3.2 requires that investigating 
authorities assessing the amount of anti-dumping duty "on a prospective basis" must, on request, refund any duty collected in excess of the "actua l margin of dumping".  Arguably, the same 
requirement applies to prospective normal value systems of duty assessment.
854  As the Panel in 
Argentina – Poultry Anti-Dumping Duties observed, the dictionary definitions of the word "actual" 
include "existing now; current".855  Like that panel, we also consid er that this terminology indicates 
that investigating authorities operating prospective normal value systems must, on request, provide for 
a refund of duties paid in excess of the margin of dumping prevailing " at the time the duty is 
collected ".856  In other words, Article 9.3.2 establishes a mechanism for ensuring that the maximum 
amount of anti-dumping duty that may be collected when duty is assessed on the basis of a prospective normal value is equivalent to the marg in of dumping determined for the sales that are 
subject to duty assessment.   
7.748  Thus, to the extent that the operation of Articl es 9.3.1 and 9.3.2 is intended to result in the 
final collection of anti-dumping duties in amounts corresponding to the levels of dumping found on the export transactions that are subject to duty assessme nt, it follows that the "margin of dumping" for 
                                                     
 
852 Appellate Body Report, US – Zeroing (Japan) , para. 156. 
853 Appellate Body Report, US – Zeroing (Japan) , paras. 152-156. 
854 Panel Report, US – Zeroing (Japan) , para. 7.204; Appellate Body Report, US – Zeroing (Japan) , 
paras. 159-160. 
855 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.361. 
856 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.361.  Emphasis added.  WT/DS337/R 
 Page 303 
 
 
  the purpose of Article 9.3 cannot be limited to the "margin of dumping" established during the 
original investigation .857  We find additional contextual support fo r this conclusion in Article 9.4(ii), 
which as we have previously explained, explic itly sets the maximum limit on the amount of anti-
dumping duties that may be collected from non-investigated parties through the application of a 
prospective normal value or equivalent MIP at th e difference between the weighted average normal 
values of the investigated parties and the export pri ce of the relevant non-investigated party.  We see 
no reason why an investigating authority should not  be entitled to collect anti-dumping duties in the 
same way through the application of a prosp ective normal value or equivalent MIP to investigated 
parties .  In this respect, we understand the Appe llate Body to be of the same view: 
"In a prospective normal value system , the authorities announce in advance a 
prospective normal value that applies to future entries of a given product and anti-
dumping duties are assessed on the basis of the difference between this "prospective normal value" and the prices of individua l export transactions for that product."
858       
7.749  For all of the above reasons, we find that the obligation in Article 9.3 to ensure that anti-
dumping duties are not collected in excess of the "margin of dumping as established under Article 2" 
does not require that any anti-dumping duties collect ed not exceed the margin of dumping calculated 
in the original investigation .  Thus, in the specific context of prospective normal value systems of 
duty assessment, such as the one applied by the EC in  the present investigation, we do not believe that 
Article 9.3 prevents investigating authorities fro m collecting anti-dumping duties from investigated 
parties in excess of the ad valorem  equivalent of the margin of dumping calculated in the original 
investigation, when such an amount of duty represen ts the difference between an investigated party's 
normal value and the export price of the transaction s ubject to duty assessment.  On this basis, we find 
that Norway has failed to establish that the EC  acted inconsistently with Article 9.3 of the 
AD Agreement and Article VI:2 of the GATT 1994 because of its failure to adopt a mechanism, in the 
operation of the MIPs it imposed, which ensured that an anti-dumping duty greater than the ad 
valorem  equivalent of the margin of dumping from the original investigation could not be collected. 
7.750  We note that Norway has also claimed that the MIPs adopted by the investigating authority 
were inconsistent with Article 9.1 of the AD Agreement.  Norway makes essentially the same arguments in support of this claim presented to s ubstantiate its claims under Articles 9.3 of the 
AD Agreement and Article VI:2 of the GATT 1994.  Article 9.1 reads: 
"The decision whether or not to impose an anti-dumping duty in cases where all 
requirements for the imposition have been fulfilled, and the decision whether the 
amount of the anti-dumping duty to be imposed shall be the full margin of dumping 
or less , are decisions to be made by the authorities of the importing Member.  It is 
desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such l esser duty would be adequate to remove the 
injury to the domestic industry". (Underline added.) 
7.751  The focus of Norway's claim is on the underlined language.
859  As we understand it, Norway 
argues that through this language Article 9.1 estab lishes that investigating authorities are entitled to 
"impose" anti-dumping duties that are less than the full margin of dumping, but in no case can an 
investigating authority "impose" duties that exceed the full margin of dumping.  Irrespective of the 
question whether the language Norway  relies upon actually establishes any obligation to ensure that 
                                                      
857 Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.361. 
858 Appellate Body Report, US – Zeroing (Japan) , footnote 367. 
859 Norway, FWS, para. 658. WT/DS337/R 
Page 304  
 
  anti-dumping duties reflect the "full margin of dumping or less",
860 we recall that we have found that 
pursuant to Article 9.3, the margin of dumping that  is relevant for the purpose of the collection of 
anti-dumping duties is that prevailing at the time of duty assessment.  As such, even if Article 9.1 were an appropriate legal basis to bring the clai m that is before us, our findings in respect of 
Article 9.3 imply that the MIPs established by the investigating authority were not inconsistent with 
Article 9.1.  We therefore dismiss Norway's claim under Article 9.1 of the AD Agreement. 
7.752  Finally, we understand Norway's claim in resp ect of Article 9.2 to be consequential and 
dependent upon its claims under Articles 9.1 and 9. 3 of the AD Agreement and Article VI:2 of the 
GATT 1994.  In the light of our findings in resp ect of Norway's core claims, we also dismiss 
Norway's consequential claim under Article 9.2. 
2. Alleged Inconsistency of the Imposition Of Fixe d Duties with Articles 9.1, 9.2 and  9.3 of 
the AD Agreement 
(a) Arguments of the Parties 
(i) Norway 
7.753  Norway submits that the fixed duties imposed by  the investigating authority are anti-dumping 
duties that fall within the scope of the AD Agreem ent, and therefore subject to the disciplines of 
Articles 9.1, 9.2 and 9.3.
861  Relying on the same arguments advan ced in support of its contention that 
Articles 9.1 and 9.3 of the AD Agreement prohibit th e imposition of MIPs that result in the collection 
of anti-dumping duties greater than margins of du mping calculated in the original investigation,862 
Norway argues that any fixed duties applied to investigated parties must also not exceed the 
respective margins of dumping determined in the orig inal investigation.  Thus, in setting the fixed 
duties for the investigated parties in the present proceeding, Norway contends that the investigating 
authority was obliged under Articles 9.1 and 9.3 of  the AD Agreement to ensure that they did not 
exceed the respective margins of dumping calculate d in the original investigation.  However, 
according to Norway, for certain price ranges, the fi xed duties imposed by the investigating authority 
could in fact be greater than the margins of dumpi ng determined for five of the investigated parties 
during the original investigation.  To this extent, Norway claims that the fixed duties imposed by the 
investigating authority were inconsistent with Articles 9.1 and 9.3 of the AD Agreement, and as a 
consequence, also Article 9.2. 
(ii) European Communities 
7.754  The EC argues that the fixed duties do not fall within the scope of the AD Agreement because 
they do not amount to "specific action against dum ping" within the meaning of Article 18.1 of the 
AD Agreement.863  In any case, in so far as the fixed duties imposed on the investigated parties may 
result in the collection of anti-dumping duties great er than those permitted under Article 9 of the 
AD Agreement, the EC submits that the inconsiste ncy would be justified unde r Article XX(d) of the 
GATT 1994.  In this regard, the EC notes that th e fixed duties are necessary to secure compliance 
with the anti-dumping measures imposed on salmon im ports, as well as the obligations under ordinary 
customs law of the 27 EU Member States for importers  to make truthful declarations regarding the 
value of goods that they are entering into the EC.  Thus, the EC contends that the fixed duties fall 
                                                      
860 Arguably, the first sentence of Article 9.1 could be read as suggesting that the only obligation it 
imposes is to ensure that the two decisions that are referred to therein are taken "by the authorities of the 
importing Member".  
861 Norway's arguments in this respect have already been summ arised above at para. 7.409. 
862 See, paras. 7.677-7.678. 
863 The EC's arguments in this respect have al ready been summarised above at para. 7.408.  WT/DS337/R 
 Page 305 
 
 
  within the terms of Article XX(d) of GATT 1994 because they are "necessary to secure compliance 
with laws or regulations which are not inconsistent with the provisi ons of this Agreement, including 
those relating to customs enforcement". 
(b) Evaluation by the Panel 
7.755  As we have outlined elsewhere in this report,864 the fixed duties imposed by the investigating 
authority formed part of the "double system of measures" applied at the end of the original 
investigation to all imports of salmon from Norway .  A fixed amount of duty equivalent to the 
weighted average injury margin of 14.6 per cent was calculated for all six presentations of salmon, 
and applied equally to imports of salmon from all No rwegian producers, whether or not investigated.  
The fixed duties would only become payable when certain conditions are met.  In summary, as 
explained in the Definitive Regulation, the fixed duty will be payable when "it is found following 
post-importation verification" that the "net free-at-C ommunity frontier price actually paid by the first 
independent customer in the Community" (the "act ual price") is both below the price declared to 
customs and below the relevant MIP, provided that the payment of the fixed duty would result in a 
final import price at or above the MIP.865   
7.756  We note that Norway has not challenged the le gality of the "double system of measures" – 
that is, Norway has not challenged the investigating authority's imposition of both MIPs and fixed 
duties. Rather, Norway's complaint in respect of th e fixed duties is confined to the assertion that for 
certain price levels, the fixed duties collected w ill exceed the margins of dumping calculated for five 
of the investigated parties during th e original investigation.  In par ticular, Norway's claim is focused 
on the situations when the payment of the fixed duty would have this result and the final import price 
after payment of the duties would be above the MIP.   Norway presents the following table to explain 
and substantiate its factual assertions:866 
 Product (all 
fresh, chilled, 
or frozen) MIP (€) Actual Price 
(€) Fixed 
Duty (€) Ad 
Valorem  
Equiv. Fjord Marine 
Harvest Seafarm 
Invest Stolt 
Sea 
Farm Sinkaberg 
Hansen 
2.80/kg 2.41/kg (L) 0.40/kg 16.6% 15.0% 11.2% 11.2% 10.0% 2.6% 1 Whole fish 
2.80/kg 2.79/kg (H) 0.40/kg 14.3% 15.0% 11.2% 11.2% 10.0% 2.6% 
3.11/kg 2.67/kg (L) 0.45/kg 16.8% 15.0% 11.2% 11.2% 10.0% 2.6% 2 Gutted, head-
on 
3.11/kg 3.10/kg (H) 0.45/kg 14.5% 15.0% 11.2% 11.2% 10.0% 2.6% 
3.49/kg 3.00/kg (L) 0.50/kg 16.7% 15.0% 11.2% 11.2% 10.0% 2.6% 3 Other fish, 
fresh, chilled 
or frozen 3.49/kg 3.48/kg (H) 0.50/kg 14.4% 15.0% 11.2% 11.2% 10.0% 2.6% 
5.01/kg 4.29/kg (L) 0.73/kg 17.0% 15.0% 11.2% 11.2% 10.0% 2.6% 4 Fillets of more 
than 300 g, 
skin on 
5.01/kg 5.00/kg (H) 0.73/kg 14.6% 15.0% 11.2% 11.2% 10.0% 2.6% 
                                                      
864 See, paras. 7.691-7.700.  
865 See, paras. 7.691-7.700. 
866 Norway, FWS, para. 679. WT/DS337/R 
Page 306  
 
   Product (all 
fresh, chilled, 
or frozen) MIP (€) Actual Price 
(€) Fixed 
Duty (€) Ad 
Valorem  
Equiv. Fjord Marine 
Harvest Seafarm 
Invest Stolt 
Sea 
Farm Sinkaberg 
Hansen 
6.40/kg 5.48/kg (L) 0.93/kg 17.0% 15.0% 11.2% 11.2% 10.0% 2.6% 5 Fillets of more 
than 300 g, 
skin off 6.40/kg 6.39/kg (H) 0.93/kg 14.6% 15.0% 11.2% 11.2% 10.0% 2.6% 
7.73/kg 6.62/kg (L) 1.12/kg 16.9% 15.0% 11.2% 11.2% 10.0% 2.6% 6 Fillets of less 
than 300g 
7.73/kg 7.72/kg (H) 1.12/kg 14.5% 15.0% 11.2% 11.2% 10.0% 2.6% 
 
(L) = the lowest "actual price" at which the payment of the fixed duty would be necessary and result in a final import price 
above the MIP. 
(H) = the highest "actual price" at which the payment of the fixed duty would be necessary and result in a final import price 
above the MIP. 
 
7.757  The EC has not specifically contest ed the information contained in this table.  Indeed, it is our 
understanding that the EC acknowledges that for certa in price ranges, the application of the fixed 
duties could result in the collection of anti-dum ping duties that exceed the margins of dumping 
calculated for the above-mentioned investigated parti es in the original investigation.  However, the 
EC defends this result by arguing, firstly that the fixed duties are not anti-dumping duties falling within the scope of the AD Agreement, and secondly,  that, in any case, even if the fixed duties could 
result in a violation of Article 9 of the AD Agreemen t, they are nevertheless justified under the terms 
of the general exception set out in Article XX(d) of the GATT 1994. 
7.758  We recall that we have already found that the investigating authority's imposition of the fixed 
duties amounted to "specific action against dumpi ng" within the meaning of Article 18.1 of the 
AD Agreement.
867  As such, the fixed duties are subject to the disciplines of Article 9.  We therefore 
first turn to address Norway's claim that the fixed duties were inconsistent with Articles 9.1 and 9.3 
because of the fact that, for certain price ranges, they result in the collection of anti-dumping duties 
greater than the margins of dumping determined for fi ve of the investigated parties during the original 
investigation. 
7.759  We note that Norway's claim is premised on th e same view of how Article 9.3 disciplines the 
imposition and collection of anti-dumping duties that it advanced in respect of its claim relating to the 
MIPs imposed by the investigating authority on the investigated parties.868  Namely, Norway contends 
that the obligation on investigating authorities not to collect an amount of anti-dumping duty that exceeds the "margin of dumping as established under Ar ticle 2" implies that investigating authorities 
are not entitled to impose any measures that result in  the collection of anti-dumping duties that exceed 
the margin of dumping determined for investigated parties in the original investigation .  In other 
words, Norway sees the margin of dumping determin ed for investigated parties during the original 
investigation as a cap on the maximum amount of anti-dumping duties that may be imposed on 
investigated parties in duty collection proceedings. 
7.760  We recall that we have already addressed Norway 's arguments in respect of Article 9.3, and 
rejected them.
869  In particular, we have determined that the obligation in Article 9.3 to ensure that 
anti-dumping duties are not collected in excess of the "margin of dumping as established under 
Article 2" does not prohibit an investigating authority from imposing and collecting anti-dumping 
duties in excess of the margin of dumping calculated in the original investigation .  In the specific 
                                                      
867 See, paras. 7.411-7.418. 
868 See, paras. 7.677-7.678. 
869 See, paras. 7.740-7.749.  WT/DS337/R 
 Page 307 
 
 
  context of duty assessment conducted "on a prospective b asis", which is the situation that is before us 
at present as regards the application of the fixed duti es, what is important in terms of compliance with 
Article 9.3 (and Article 9.1870) of the AD Agreement is that any duties imposed and collected on 
investigated parties do not exceed the actual margin of dumping determined on the sales that are 
subject to duty assessment.  In essence, this follows  from the fact that pursuant to Article 9.3.2, 
investigating authorities must refund any duty collect ed in excess of the "actual margin of dumping" 
for sales that are subject to duty assessment.871 
7.761  Thus, we find that Norway's claim that the fixe d duties imposed by the investigating authority 
were inconsistent with Articles 9.1 and 9.3 of the AD Agreement cannot be upheld.  Consequently, 
we also dismiss Norway's claim in respect of Artic le 9.2 of the AD Agreement, which we understand 
to be entirely dependent upon its claims under Articles 9.1 and 9.3 of the AD Agreement.  
J. ALLEGED INCONSISTENCY OF THE EC'S CONDUCT OF THE PROCEEDINGS WITH ARTICLES  6.2,  
6.4, 6.9, 12.2  AND 12.2.2  OF THE AD A GREEMENT  
1. Alleged Inconsistency with Articles 6.4 and 6.2 
(a) Arguments of the parties 
(i) Norway 
7.762  Norway claims that the EC acted inconsis tently with Articles 6.4 and 6.2 of the 
AD Agreement because it failed to disclose non-confiden tial information contained in the record of 
the investigation.  Norway argues that Articles 6. 2 and 6.4 require an investigating authority to 
provide access to all relevant information in the non- confidential record of the investigation, and that 
the EC failed to do so, as demonstrated by the fact that a number of documents that had been filed by 
interested parties were missing from the non-confid ential record that was accessible at the EC 
Commission's premises.  Norway refers in this rega rd to its letter of 4 August 2006, in which it 
outlined the circumstances surroundi ng the EC's alleged failure to disclose all non-confidential 
documents in the record.  Norwegian officials insp ected the non-confidential record at the offices of 
the EC, and concluded that numerous documents of whose existence Norway was aware were not in 
the record.  Norway notes that the EC did not provide a master list or index to the non-confidential 
record on the basis that there is no requirement to do so in the AD Agreement.  Annex 3-A to 
Norway's letter of 4 August 2006 lists all the doc uments that were included in the non-confidential 
record.872  Annex 3-B to that letter lists 68 documents that Norway knows, or has reason to believe, 
were submitted in the investigation but that were missing from the record it was permitted to 
inspect.873  Because Norway does not know what  docu ments were submitted to the EC, the list 
provided in Annex 3-B is indicative and not an exhaustive list of documen ts that were not disclosed to 
Norway.  Norway maintains that the missing do cuments cover all aspects of the investigation, 
including the investigation of both dumping and injury .  Norway asserts that the information in these 
documents is relevant to the presentation of Norwegian parties' interests.   
                                                      
870 We believe our discussion on the relevance of Artic le 9.1 to Norway's claim in respect of the MIPs 
to be equally pertinent to Norway's claim in respect of the fixed duties. 
871 See, para. 7.747. 
872 Exhibit NOR-13. 
873 Exhibit NOR-13.  Norway lists the following categories of documents as missing:  (a) sampling 
forms and questionnaire responses provided by EC domestic producers; (b) questionnaire responses (or other communications) from EC "importers users and processors"; (c) questionnaire responses (or other 
communications) from EC "users' associations"; (d) all submissions by the Government of Norway; (e) all 
submissions by FHL; and (f) numerous submissions by all ten sampled Norwegian companies and by a related company that was requested to provide a questionnaire response.  Norway, FWS,  para. 700 and footnotes 558-
561. WT/DS337/R 
Page 308  
 
  7.763  Norway also argues that certain exhibits presente d by the EC to the Panel in this case contain 
information that was not before the investigating au thority, and must therefore be excluded from this 
dispute.  In the alternative, Norway argues that if the Panel concludes that this information was before 
the investigating authority, the EC violated Article  6.4 by failing to disclose that information to 
Norway.
874 
(ii) European Communities 
7.764  The EC considers that Norway's claims rega rding alleged lack of access to relevant non-
confidential information during the investigation ar e based on a fundamental misunderstanding of the 
law, and fail to take into account that Norway  was granted access on numerous occasions to all 
relevant non-confidential information during the entir e duration of the investigation.  The EC points 
out that Norway's arguments refer to a lack of access to the "non-confidential" or "public" record, 
without describing what that "record" is. The EC notes that the word "record" is in neither Article 6.2 
nor Article 6.4.  For the EC, these provisions do not impose any obligation on WTO members to 
establish a "record" of all information submitted by an y interested party during the investigation, and 
in particular, Article 6.4 does not regulate how a Me mber stores, manages, distributes internally, or 
otherwise processes such information. In support of its  view in this regard, the EC points to the fact 
that proposals (by Norway) in the current negotiations on the AD Agreement would specifically provide for such record-keeping requirements.   
7.765  The EC also asserts that Article 6.4 does not require the investigating authority to fully 
disclose all (non-confidential) documents submitted to  all other interested parties, as it specifically 
provides that information must be disclosed to inter ested parties if it is "relevant to the presentation of 
their cases".   For the EC, this mean s that the investigating authority may decide to which information 
access should be granted.  In any event, the EC  emphasizes that it provided repeated and timely 
opportunities for Norway to have access to all relevant information on numerous occasions. 
Norwegian authorities reviewed the non-confidential files on six dates,
875 and the EC made available 
to Norway all the non-confidential information it ha d gathered as of each of those dates.  The EC 
investigating authority did not e ngage into any assessment of whether or not requested information 
was relevant to Norway's case or not.  The EC asserts  that the fact that documents are not in Norway's 
files does not prove that Norway was not grante d access to all the non-confidential documents in the 
investigation. 
7.766  The EC maintains that it had no obligation to s how the 68 "missing" documents referred to by 
Norway.  The EC argues that simply because Norway  knows they were submitted does not mean that 
they were relevant, non-confidential, and used by th e investigating authority.  The EC maintains that 
there were valid reasons for not including these documents in the investigation files, inter alia :  lack 
of a non-confidential version, subject matter not re levant to exporters, or  government-to-government 
correspondence.876  The EC maintains that the fact that  Norwegian representatives did not find 68 
"irrelevant or confidential or not used documents" when they inspected the files does not demonstrate 
a violation of Article 6.4 
                                                      
874 Norway refers specifically to Exhibits EC-2, EC-10, EC-12, EC-13, EC-14, EC-15, and EC-16.  
Norway, SWS, para. 228. 
875 22 December 2004; 12 January 2005; 18 May 2005; 28 and 29 November 2005; and  
23 December 2005.   
876 EC, SWS, paras. 243-246.  WT/DS337/R 
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  (b) Arguments of third parties 
(i) United States 
7.767  Regarding Norway's claim relating to the proper interpretation and application of Articles 6.2 
and 6.4 of the AD Agreement, the United States not es that Article 6.2 provides that "all interested 
parties shall have a full opportunity for defence of th eir interests," and Article 6.4 provides in relevant 
part that "authorities shall whenever practicable provide timely opportunities to see all information 
that is relevant to the presentation of their cases, that is not confidential .  .  ., and that is used by the 
authorities in an anti-dumping investigation."  The US observes, with respect to the EC's assertion that 
"the investigating authority may decide on whic h information access should be granted or not"877  
that, as the EC concedes, relevance must be asse ssed from the perspective of the interested party 
presenting its case.878  The US considers that the EC's asserti on that "the investigating authority may 
not disclose information it has received from one inte rested party to another interested party, unless it 
is relevant for the preparation of the latter's case,"879 is not supported by the text of Article 6.4, which 
contains an affirmative obligation to disclose info rmation in certain circumstances, not a prohibition 
against such disclosure.  The US argues that Article  6.4 establishes a rule regarding when an authority 
must disclose information, and not when it must withhold information.  
(c) Evaluation by the Panel 
7.768  We begin our analysis by considering the text  of Article 6.4 of the AD Agreement, which 
provides: 
"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 
authorities in an anti-dumping investigation, and to prepare presentations on the basis 
of this information." 
This provision plainly and unambiguously requires an  investigating authority, "whenever practicable" 
to provide "timely" opportunities for any interested pa rty to see "all information" that is "relevant" to 
the presentation of its case, that is not confidential, an d that is "used" by the investigating authority.   
  7.769  It seems clear to us that the timeliness of th e opportunities must be assessed by reference to 
the right of the interested parties to prepare presenta tions on the basis of the information seen.  It is 
similarly clear to us that whether particular in formation is relevant is  not determined from the 
investigating authorities' perspective, but with re ference to the issues to be considered by the 
investigating authority under the AD Agreement.
880  Thus, information which relates to issues which 
the investigating authority is required to consider  under the AD Agreement, or which it does, in fact, 
consider, in the exercise of its discretion, dur ing the course of an anti-dumping investigation, 
presumptively falls within the scope of Article 6.4.881  Clearly, an investigating authority may not 
allow interested parties to see information whic h is properly treated as confidential under the 
                                                      
877 EC, FWS, para. 531. 
878 EC, FWS, para. 531. 
879 EC, FWS, para. 531. 
880 We find support for this conclusion in the views of the Appellate Body in EC – Tube and Pipe 
Fittings , paras. 145-146. 
881 We thus reject the view of the EC that, in the context of whether information is relevant to the 
presentation of an interested party's case, "the investigating authority may decide on which information access 
should be granted".  EC, FWS, para. 531. WT/DS337/R 
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  AD Agreement.
882  Finally, the question of whether info rmation is "used" by the investigating 
authority cannot, in our view, be assessed from th e perspective of whether the information is 
specifically referred to or relied upon by the inves tigating authority in its determination.  If the 
investigating authority evaluates a question of fact or  an issue of law in the course of an anti-dumping 
investigation, then, in our view, all information rele vant to that question or issue that is before the 
investigating authority must necessarily be considered  by the investigating authority, in order to make 
an objective and unbiased decision.  Consequently, it seems clear to us that whether information is 
"used" by the investigating authority must be asse ssed by reference to whether it forms part of the 
information relevant to a particular issue that is be fore the investigating authority at the time it makes 
its determination.883   
7.770  We note that the EC contests strongly Norway's  reliance on the concept of a "record" in the 
investigation, arguing that this word does not app ear in the AD Agreement, and that there are no 
obligation on WTO Members concerning how to or ganize the administrative details of an anti-
dumping investigation.  The EC considers that ea ch Member "may choose the appropriate method of 
ensuring that it complies with its WTO obligations", and that nothing in the AD Agreement governs 
the "internal housekeeping prerogatives of a Member.884  We do not disagree.  As the EC points out, 
there are no specific requirements governing how a WTO Member organizes and maintains its files, how it receives and processes information and submissions, or how it ensures that it complies with its obligations under the AD Agreement.
885  However, it is this latter aspect that we must assess – 
whether the EC has complied with its obligations under Article 6.4 of the AD Agreement.  If we find 
that it has not, it will not be because it failed to organize its documentary information and 
investigative files in a particular way, but because we have concluded that, however it organized such 
matters, it failed to substantively comply with the obligation to provide timely opportunities for 
interested parties to see all relevant, non-confidentia l information relevant to the presentation of their 
cases. 
7.771  The EC has not contended that the 68 documen ts listed in Exhibit NOR-13 were, in fact, 
among the information seen by Norwegian represen tatives when granted access to non-confidential 
information during the course of the investigation.  Rather, the EC disputes the implication that it had 
an obligation to show these docum ents to Norway.  The EC admits that these documents were 
submitted to the investigating authority,886 but considers that the investigating authority is not required 
to include in the investigation files all documents submitted, and is only required to provide access 
under Article 6.4 to information it has included in th e investigation files.  The EC asserts that to 
require otherwise would be "at odds with the functi ons of the investigating authority to determine 
whether or not submitted documents are relevant or  not for the investigation, whether they are 
confidential and whether they should be used by the investigating authority."887  We cannot agree.  In 
our view, unless information submitted to the investiga ting authority is rejected, that information must 
remain in the investigating authorities' files, and if  it is relevant, not confidential, and used by the 
investigating authority, as discussed above, interested  parties must be given timely opportunities to 
see it.   
                                                      
882 Except to the extent that disclosure is made pursuant to protective orders, as provided for in 
footnote 17 of the AD Agreement. 
883 We find support for this conclusion in the views of the Appellate Body in EC – Tube and Pipe 
Fittings , para. 147. 
884 EC, FWS,  para. 523. 
885 The lack of such specific requirements is not surprising, given the various legal and administrative 
structures pursuant to which Members operate their anti-dumping systems.   
886 EC, FWS, para. 241, referring to the "frustration of a WTO Member not to find documents, that it 
knows to have been submitted, also in the investigation file  of an investigating authority", para. 242, referring to 
asserted grounds "for not including the 68 documents into the investigation files." 
887 EC, SWS, para. 241.  WT/DS337/R 
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  7.772  With these principles in mind, we consider the sp ecific allegations made by Norway in this 
case.  Norway has listed 68 documents888 it is aware were submitted to the investigating authority, 
which were not among the information which Norwegian representatives saw when given the 
opportunity to see information during the investigation.889  The EC responds that there were various 
reasons why the 68 documents were not included in the investigation files.   The EC has not identified 
which particular documents were not included for which reasons, but has defended its position on the 
basis of more general arguments.890   
7.773  First, the EC asserts that a number of th e documents were submitted by exporters, and 
contained confidential information, but that no non-confidential version was provided by the 
submitting exporter, in violation of Article 6.5.1 of  the AD Agreement.  Ther efore, the investigating 
authority did not include it in the files made available to interested parties under Article 6.4.  While 
we are concerned that the failure of parties to su bmit non-confidential versi ons of documents provided 
to the investigating authority may result in limitat ions on the rights of interested parties to see 
information as provided for in Article  6.4, there is no claim in this dispute that the EC wrongly treated 
information as confidential.891  Article 6.4 clearly excludes confidential information from the 
information which must be made available for inter ested parties to see, and therefore, to the extent 
that information in the 68 documents was c onfidential, we conclude that the EC did not violate 
Article 6.4 by failing to provide timely opportunitie s for interested parties to see such confidential 
information.   
7.774  Next, the EC asserts that other documents rela ted to the question of "Community interest", 
which does not correspond to any provision in the AD Agreement, and thus is not relevant to 
exporters.  As discussed above, in our view, informa tion pertaining to any issue that is considered and 
decided by the investigating authority, even one wh ich is not specifically required to be considered 
and decided under the AD Agreement, is to be c onsidered "relevant" within the meaning of 
Article 6.4.  Thus, to the extent that information in the 68 documents was not confidential, but related 
to the question of "Community interest", we concl ude that the EC violated Article 6.4 by failing to 
provide timely opportunities for interest ed parties to see such information.892 
7.775  With respect to a letter from Dr. Jaffa, documen t No. 34 in Annex 3-B to Exhibit NOR- 13, 
the EC argues that it was not germane to the invest igation or determinations.  The EC asserts that 
Dr. Jaffa was not an interested pa rty, did not represent any interested  party, made representations to 
                                                      
888 Norway contends that the missing documents fell into four categories and contained information as 
follows:  1)  sampling replies and questionnaire rep lies of sampled and non-sampled EC producers, with 
attachments; 2)  submissions of EC "users" and "user" associations on the "deepened investigation on 
Community interest"; 3)  documents submitted by sampled and non-sampled Norwegian companies, including 
sampling forms, and comments on the authority's Information Notes and disclosures; and, 4)  communications from other parties, including FHL and the Government of Norway, on dumping.  Norway's SOS, para. 105. 
889 In this regard, we note that we accept the re presentations of Norway as to what was in the 
investigation files and seen by its representatives, and what documents it was aware had been submitted but were not seen, as described in Exhibits NOR-13, NOR-90, NOR-91, NOR-88, and NOR-89.  The EC has 
brought forward no evidence that contradicts those representations, and we discount the unsupported suggestion 
that there may have been mistakes made in copying the files seen.  EC, FWS, para. 535. 
890 In addition, Norway asserts that information in a series of exhibits presented to the Panel is not 
properly before us, or, if it was in the investigation files and is therefore properly before us, was not among the 
information which Norwegian representatives saw when given the opportunity to see information during the investigation.  Norway's allegations in this regard are addressed below, at paras. 7.835 - 7.860. 
891 Nor is there any claim concerning the apparent  lack of non-confidential summaries of some 
confidential information submitted to the investigating authorities. 
892 We note that the EC has not argued that this information was not "used" by the investigating 
authority. WT/DS337/R 
Page 312  
 
  EC authorities (to which a reply was made as a matter of courtesy),
893 and continued to make 
unsolicited observations, including the letter in quest ion, the substance of which was doubtful as to its 
nature and accuracy, and no "non-limited" version w as provided for the file accessible to parties.  The 
EC states the investigating authority was "uncertain  whether it could discard the letter right away" and 
left the question open "given th at the issues raised we re issues regarding domestic production".  The 
investigating authority requested representatives of the EU Salmon Producers Group to comment on 
Dr. Jaffa's letter on a provisional basis, and later decided not to consider the letter pertinent to the 
investigation, and informed Dr. Jaffa that he was not considered to be an interested party.894  We can 
find nothing in this recounting of events that would provide a basis for declining to provide 
opportunities for interested parties to see this documen t.  It clearly contained information regarding a 
relevant issue, domestic production,  there is no contention that it was confidential, and in our view, 
the fact that the investigating authority requested  representatives of the domestic industry to comment 
on it demonstrates that it was used by the investiga ting authority.  There is no indication that the 
investigating authority rejected Dr. Jaffa's submission  as irrelevant, untimely, or for any other reason.  
Thus, we conclude that the EC violated Article  6.4 by failing to provide timely opportunities for 
interested parties to see Dr. Jaffa's letter.   
7.776  Finally, the EC asserts that 15 of the documents referred to by Norway are Notes Verbales  of 
the Norwegian government, that were treated as "government-to-government correspondence, not to 
be included in the file."895  The EC contends that, should Norway (an interested party in the 
investigation) have wanted them to be included in the file, it should have produced non-confidential 
versions of them.  However, there is no indica tion that the Government of Norway requested 
confidential treatment of these submissions, nor is there any contention by the EC that the 
investigating authority considered them to be c onfidential under Article 6.5 of the AD Agreement.  
Nor has the EC argued that the information in these Notes Verbales  is irrelevant, or was not used by 
the investigating authorities.  In th ese circumstances, we conclude that  the EC violated Article 6.4 by 
failing to timely provide opportunities for inter ested parties to see such information.   
7.777  Having found that the EC violated Article 6.4 by failing to provide timely opportunities for 
interested parties to see all non-confidential informat ion relevant to the presentation of their cases, we 
do not consider it either necessary or appropriate to address Norway's claim, based on the same facts and arguments, under Article 6.2 of the AD Agreem ent.   A finding under Article 6.2 would be 
exclusively a consequence of our findings under Artic le 6.4, and would therefore add nothing to the 
parties' understanding of the obligations under the AD Agreement, or to the ability of the European 
Communities to comply with our decision in the context of implementation.   
2. Alleged Inconsistency with Articles 6.9 and 6.2 
(a) Arguments of the parties 
(i) Norway 
7.778  Norway claims that the EC failed to disclose th e essential facts that formed the basis for the 
EC's decision to impose duties, as required by Artic le 6.9, and thereby deprived Norway of a full 
opportunity to defend its interests, as required by Article 6.2.  Norway asserts that the disclosure by the EC consisted of a draft of the Definitive Regula tion that largely fails to refer to any facts forming 
                                                     
 
893 We note that Dr. Jaffa similarly made unsolicited representations to the Panel in this proceeding, 
two of which we made available to parties and third parties for comment.  As discussed elsewhere in our 
decision, we did not rely on the information in Dr. Jaffa's submissions in our findings.  See above paras. 1.12 - 
1.13. 
894 EC, Answer to Panel Question 45, paras. 202-206. 
895 EC, SWS, para. 246.  WT/DS337/R 
 Page 313 
 
 
  the basis for the EC's determination.  Specifically , Norway argues that, in the disclosure documents 
that the EC provided to the investigated Norweg ian producers, as well as to the other interested 
parties, it failed to disclose the essential facts related to key elements of the EC's decision, such as: 
definition of the product concerned; definition of  the domestic industry; dumping; injury; causation 
and non-attribution; and the remedy.   
7.779  Norway maintains that the aim of disclosure is to "actually disclose to the interested parties 
the essential facts which, being under consideration,  are anticipated by the authorities as being those 
which will form the basis for the decisi on whether to apply definitive measures."896  Moreover, 
Norway maintains that the investigating authority must actively identify the facts on which it will rely 
in making its determination.  In this case, th e EC made two disclosures by sending disclosure 
documents to interested parties.  Norwegian pro ducers received disclosure documents with annexes, 
some of which were identical for all investigated producers, while other annexes were specific to each 
producer.  The "general"  disclosure document consisted of a draft of the Provisional or Definitive EC 
Regulation, while additional specific annexes a ddressed the calculation of dumping for each producer, 
and the injury margin analysis.  Subsequent to th e Definitive Disclosure in October 2005, the EC sent 
additional documents to the investigated parties,  including an information note on "developments" 
following the Definitive Disclosure, which addressed  "concerns" regarding the minimum import price 
(MIP) for fillets, and finally a subsequent informati on note regarding the definitive MIPs for fillets.   
7.780  Norway sets out a series of specific examples of how the EC failed to make adequate 
disclosure with respect to (i) the dumping determin ation; (ii) injury – definition of the domestic 
industry; (iii) causation and non-attribution; and, (iv) the determination of minimum import prices 
(MIPs).   
7.781  With respect to the dumping determination for some producers, Norway complains that, after 
the definitive disclosure, the EC re -assessed the facts and made chang es to the determination set out in 
draft in the disclosure, but did not undertake any further disclosure (dumping margin for producers PFN, Hydroteck and Sinkaberg-Hansen, which cha nged between the Definitive Disclosure and the 
Definitive Regulation).  Norway also  argues that the EC failed to disclose that, at both the provisional 
and definitive stages, it rejected the company- specific information submitted by Hydroteck and 
recalculated the company's SG&A costs.  
7.782  Norway claims that the EC failed to disclose to  the interested parties the essential facts under 
consideration concerning its determination of the scope of the domestic industry for purposes of its 
injury determination.  Norway asserts that the definitive disclosure documen ts do not refer to any 
documents or facts that substantiate  the EC's determination – rather, Norway maintains that instead of 
disclosing the essential facts underlying its determ inations, the EC has simply disclosed its 
determinations.   
7.783  Similarly, Norway asserts that the EC failed to disclose the essential facts underpinning its 
determination with respect to the evaluation of im ports from Canada and the US as an "other factor" 
causing injury.  Specifically, Norway  argues that the EC failed to disclose any facts or references to 
facts concerning import figures for wild salmon from Canada and the US, the circumstances of competition between wild and farmed salmon, prices of wild salmon, etc.   
7.784  Finally, Norway argues that the EC failed to disclose essential facts in connection with the 
minimum import prices (MIPs).  In this regard, Norw ay notes that the EC recalculated the MIPs for 
fillets after the definitive disclosure, and sent th e interested parties an information note, which 
Norway asserts failed to specify which particular docum ents and which facts in the record are relevant 
for the EC's revised determination.   
                                                     
 
896 Panel Report, Argentina – Ceramic Tiles , para. 6.125.   WT/DS337/R 
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  7.785  Norway takes the view that, when an investig ating authority violates Article 6.9, it also 
violates Article 6.2 of the AD Agreement.  Norway recalls that Article 6.9 refers to the ability of 
interested parties to "defend their interests", while Article 6.2 requires that interested parties be given 
full opportunity for the defence of their interests throughout the anti-dumping investigation .  As a 
result, any violation of the disclosure obligation in  Article 6.9 entails a violation of Article 6.2. 
(ii) European Communities 
7.786  With respect to Norway's claim under Article 6. 9, the EC observes that that provision requires 
the investigating authority to "inform all interested parties of the essential facts  under consideration 
which form the basis for the decision" (emphasis added), while Norway's arguments are based on an 
alleged duty to disclose evidence .  The EC considers that it is not required that the investigating  
authority support every factual finding with a re ference to the supporting evidence, for example by 
citing the relevant statistics, form or other document which is material for the fact.  There is no duty to 
specifically identify in the disclosure document the source on which the assembled facts are based.  
Rather, the EC maintains that the obligation to disclose essential facts is satisfied by a simple 
reference to them.  
7.787  The EC goes on to address, in detail, the essential facts it disclosed to the parties prior to the 
final determination.  The EC refers to the standa rd of review, noting that Norway's arguments enter 
into the area of factual assessments, which are for the investigating authorities to make in the first 
instance, and that the Panel should be cautious in  assessing whether a fact was essential and therefore 
to be disclosed before imposition of the measure.   The EC notes that it disclosed to all interested 
parties, including the Government of Norway, a draft of the Definitive Regulation on 
28 October 2005, which explained all the releva nt factors of the investigation, sometimes 
incorporating by reference more detailed findings from the provisional stage. The EC considers it 
plain that the essential facts regarding the dumping de termination, injury to the domestic industry, 
causation and non-attribution and reme dy determination are all set out therein. The EC provided at the 
same time replies to individual exporters and shar ed the individual calculations relevant to their 
situation with them.  
7.788  With respect to Norway's claims concerning th e alleged failure to disclose the re-assessment 
of dumping margins that changed between the defini tive disclosure and Definitive Regulation, the EC 
asserts that nothing in Article 6.9 requires that there be additional disclosure relating to any re-
assessment in view of the comments received in response to a disclosur e, or an individual explanation 
of the re-assessment to an interested party after th e adoption of the definitive measure. The EC refers 
in this regard to the text of the first sentence of Article 6.9, which provides that disclosure shall take 
place "before a final determination is made".  Thus, the EC acknowledges that it corrected its definitive dumping margin found for PFN, Hydroteck  and Sinkaberg-Hansen but considers that no 
further disclosure under Article 6.9 was required.  Nonetheless, the EC notes that telephone exchanges 
and/or hearings held between definitive disclosur e and publication made clear the reasons for the 
adjustments with respect to these three companies.   
7.789  With respect to the disclosure regarding th e domestic industry, the EC maintains that 
Norway's dissatisfaction with the failure to disclos e "documents that support or  substantiate the EC's 
assertions" is without legal basis, as there is no requirement in Article 6.9 of the AD Agreement to disclose to Norway the ev identiary support of the EC's factual findings.  
7.790  Similarly, with respect to the consideration of  imports from Canada and the United States, the 
EC again argues that Norway's complaint that ther e was "no reference to any documents and facts in 
the record" substantiating the EC's statements is without legal basis.   In addition the EC notes that 
several interested parties had questioned the EC's interpretation of the information on these imports 
after disclosure, and the EC explained its decision in the Definitive Regulation, a draft of which was  WT/DS337/R 
 Page 315 
 
 
  provided in the general disclosure.  Thus, the EC considers it "devoid of any purpose" to claim non-
disclosure of essential facts under Article 6.9 of the AD Agreement.  
7.791  With respect to the MIPs, the EC  reiterates that there was no obl igation to provide any further 
disclosure after the disclosure of 28 October 2005, and therefore Norway's claim in this regard must 
be rejected.  Moreover, the EC notes that, on a purely  voluntary basis, the EC sent out an information 
note concerning the changes in the definitive MIP on 13 December 2005, which additional MIP 
disclosure informed the parties that their latest in formation in reply to the definitive disclosure had 
been assessed before taking a final decision.  
7.792  Finally, the EC argues that there is no reason for the Panel to conclude that a violation of 
Article 6.9 of the AD Agreement automatically trigge rs a breach of Article 6.2, as the first violation 
would already require action to bring the measure  into conformity with the AD Agreement.   
(b) Evaluation by the Panel 
7.793  There is no dispute about the facts surrounding the EC's disclosure of essential facts.  An 
initial disclosure was made prior to the impos ition of provisional measures, on 22 April 2005.897  On 
28 October 2005, approximately three months befo re the Definitive Regulation was adopted, the EC 
sent definitive disclosure documents to interested pa rties.  These consisted of a letter and annexes, 
some of which were identical for all interested pa rties receiving the disclosure, others of which were 
specific to the individual interested parties receiving them.  All interested parties received a draft of 
the Definitive Regulation, while individual interested parties also received, inter alia , specific 
disclosure documents regarding calculation of dumpi ng margins and injury factors.  All interested 
parties were given an opportunity to make represen tations to the investigating authority following the 
disclosure.  Subsequent to the October 2005 discl osure, the EC sent interested parties further 
communications, including an information note on ce rtain developments subse quent to the disclosure 
regarding the minimum import prices for fillets, and a subsequent communication regarding the 
definitive minimum import prices for fillets.  Th e Definitive Regulation, which was issued on 
17 January 2006, states that "oral and written comme nts submitted by the in terested parties were 
considered and, where appropriate, taken into account for the definitive findings."898 
7.794  In evaluating Norway's claims, we must consider first the text of Article 6.9 of the 
AD Agreement, which provides: 
"The authorities shall, before a final dete rmination is made, inform all interested 
parties of the essential facts under considerati on which form the basis for the decision 
whether to apply definitive measures.  Such disclosure should take place in sufficient 
time for the parties to defend their interests." 
The obligations of this provision are quite straight forward – the investigating authority shall inform 
interested parties of "essential f acts under consideration" prior to ma king a final determination, but in 
sufficient time for the interested pa rties to defend their interests.   
 
7.795  Norway asserts that the EC failed to disclose es sential facts in numerous instances, but limits 
its claim to four examples:  essential facts concer ning (1) dumping; (2) definition of the domestic 
industry; (3) causation and non-attribution of injury to other factors; and (4) the remedy, that is,  
minimum import prices.  With respect to the first and last of these, dumping and the remedy, Norway's arguments regarding alleged failure to di sclose essential facts are based on the fact that the 
Definitive Regulation is different from the draft of  that regulation disclosed in October 2005.   
                                                     
 
897 We do not understand Norway to have made any claims regarding this disclosure. 
898 Definitive Regulation, para. 6. WT/DS337/R 
Page 316  
 
  7.796  Norway suggests that the facts that are essentia l to a particular determination depend on the 
substance of that determination, and that, for instan ce, the facts essential to a determination of injury 
are different from the facts essential to a determination of no injury.  Therefore, Norway argues, "if an 
authority changes its mind about the substantive char acter of a  determination it proposes to make, this 
will likely entail a "change" in the essentia l facts supporting the new determination."
899  We do not 
agree.  We consider that "essential facts under cons ideration which form the basis of the decision 
whether to apply definitive measure s" are not only those facts that support  a determination, but rather  
are the body of facts essential to any determination that  are being considered in the process of analysis 
and decision-making by the investig ating authority.  Thus, in our view, the essential facts to be 
disclosed under Article 6.9 are not affected by the substance of the determination an investigating 
authority may ultimately make.  Indeed, they cannot be, as the essential facts to be disclosed are those 
"under consideration which form the basis of the de cision" – that is, the disclosure of essential facts 
precedes the decision.  Thus, at the time of the Article 6.9 disclosure, no decision has yet been taken, and, it seems to us, the disclosure of essential fact s may not enable an interested party to foresee the 
ultimate decision.   
7.797  We consider that Norway errs in arguing that Ar ticle 6.9 requires an investigating authority to 
provide an additional disclosure, as in our view, the essential facts do not change simply because the ultimate determination of the investigating authority is  not that which was intimated in the disclosure.  
Merely that the EC chose to provide information to  interested parties subsequent to the definitive 
disclosure
900 does not establish that there was an obliga tion to do so – the AD Agreement establishes 
the minimum rights that must be afforded interested  parties in an anti-dumping investigation, but does 
not preclude a Member from affording additional ri ghts, so long as in doing so it does not violate 
some provision of the AD Agreement. 
7.798  The Panel's decision in Guatemala – Cement II  does not suggest otherwise.  In that case, the 
investigating authority disclosed essential f acts prior to a provisional determination of, inter alia , 
threat of material injury.   The investigation contin ued, with additional facts gathered, and ultimately a 
final determination of mate rial injury was made.  The Panel found that disclosure of the essential facts 
prior to the preliminary determination was "c learly inadequate" to satisfy Article 6.9.901  Given that 
different and additional facts, relating to differe nt and additional factors under the AD Agreement 
must be considered by an investigating authorit y in finding threat of material injury, and present 
material injury, it seems clear to us that the essential facts under consideration prior to the provisional 
determination were different from those under consideration at the time of the definitive 
determination.  Here, however, the investigating au thority did not make a different determination  
regarding dumping, but rather rea ssessed the facts before it, and revised its calculations resulting in a 
different dumping margin than that foreshadowed in the disclosure.   
7.799  How an investigating authority undertakes to disclose the essential facts does not change the 
nature of the obligations under Article 6.9.  Th e second sentence of Article 6.9 makes clear that the 
disclosure of essential facts must be in sufficient time to allow parties to defend their interests.  In our 
view, this must entail the possib ility that, whatever decision may have possibly been foreseen or 
foreseeable at the time of disclosure, the ultimat e decision may be a different one, based on the 
defence of parties' interests following that disclosur e.  Clearly, the investigating authority must, in 
making its decision whether to apply definitive meas ures, take into account whatever information or 
argument parties submit subsequent to disclosure to  defend their interests.  The alternative would 
render meaningless the right of parties to receive disclosure of essential facts in sufficient time to 
                                                      
899 Norway, Answer to Panel Question 71, para. 239. 
900 EC, FWS, para. 555. 
901 Panel Report, Guatemala – Definitive Anti-Dumping Measur es on Grey Portland Cement from 
Mexico ("Guatemala – Cement II") , WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 5295, 
para. 8.228.  WT/DS337/R 
 Page 317 
 
 
  defend their interests.  However, we do not consider  that this possible change of outcome triggers a 
requirement for additional disclosure under Article 6. 9.  Thus, the fact that the EC undertakes 
disclosure by providing a draft definitive regula tion does not mean that, should the investigating 
authority ultimately issue a determination that diffe rs in some respect from the draft, an additional 
disclosure is required.  Such a change in the ultim ate determination is presumably what is envisioned 
by the right given to parties to defend their interest s after the disclosure.  The manner in which the EC 
chooses to provide disclosure does not limit the inv estigating authority's obligation to take into 
account comments and information submitted by inte rested parties after disclosure, and the 
concomitant possibility that the investigating author ity may issue a definitive regulation that differs, 
even in material respects, from that provided in dr aft form as part of the Article 6.9 disclosure.  
7.800  With respect to dumping, Norway asserts that the margin of dumping determined for three 
Norwegian producers, PFN, Hydroteck, and Sinkaberg -Hansen, changed in the interval between the 
disclosure and the Definitive Regulation, without th ere having been "any additional disclosure of the 
essential facts supporting [the] modified dumping determination."902  Thus, Norway appears to treat 
the disclosure of the draft definitive regulation al most as if it were a determination of dumping, 
modified subsequently as revealed in the Definitiv e Regulation.  In Norway's view, this situation 
demands, under Article 6.9, a further disclosure of essential facts because, in its view, the essential 
facts leading to the imposition of measures on these companies changed.903  In our view, as discussed 
above, Article 6.9 does not require more than on e disclosure prior to the imposition of definitive 
measures.904 
7.801  These same considerations apply with respect to  Norway's arguments in connection with the 
disclosure of essential facts relating to the minimu m import prices.  In this case, following the 
October 2005 disclosure, the EC recalculated th e minimum import price for fillets, and informed 
interested parties of the newly calculated mini mum import prices on 13 December 2005.  In that 
communication, the investigating authority indicat ed that in light of comments received, it had 
verified and cross-checked the information availa ble, including information provided by parties in 
response to the definitive disclosure, and on that basis, recalculated the minimum import prices, and 
provided a table setting forth those prices.905  
7.802  In our view, this sequence of events demons trates precisely the purpose of Article 6.9.  
Following the definitive disclosure, the investiga ting authority received further information which 
prompted it to a re-consideration and adjustment of  its views, resulting in a different determination 
that than indicated in the draft definitive regulation at  the time of the Article 6.9 disclosure.  Norway's 
argument would presumably require the investigating authority to disclose whatever new information 
was provided, on the premise that the different  result demonstrates that the new information 
constituted "essential facts" within the meaning of Article 6.9.  Article 6.9 would then mandate a 
further opportunity for interested parties to defend th eir interests, and an endless stream of disclosures  
and comments could ensue.  Norway's position would result in an impossible situation for 
investigating authorities, which must complete the investigation within the time limits set out in 
Article 5.10 of the AD Agreement.  Norway sugg ests that this could only happen because the 
investigating authority decided that different fact s were essential to its determination, and that 
                                                      
902 Norway, FWS, para. 725. 
903 Norway, FWS, para. 727. 
904 This is not to be understood to mean that any disclosure, at any time prior to the imposition of 
definitive measures, will satisfy the requirements of Artic le 6.9.  There may well be circumstances, such as 
those addressed by the Panel in Guatemala – Cement (II) , in which a disclosure is found not to satisfy those 
requirements.  However, in our view, merely because a definitive measure is different from that foreshadowed 
in or anticipated on the basis of the disclosure does not necessarily mean additional disclosure should have been made before that different determination is issued.    
905 Exhibit NOR-19. WT/DS337/R 
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  disclosure of these previously undisclosed essential facts is required.  As discussed above, Norway's 
view confuses the essential facts with the facts supporting the decision.
906   
7.803  Based on the foregoing, we conclude that the EC's disclosure of essential facts regarding 
dumping by PFN, Hydroteck, and Sinkaberg-Hansen, and regarding the minimum import prices, was 
not inconsistent with Article 6.9 of the AD Agreement.   As Norway's claim of violation of Article 6.2  
is dependent on its claim of viola tion of Article 6.9, which we have  rejected, we find no violation of 
Article 6.2.   
7.804  Norway's arguments concerning alleged failure  to disclose essential facts concerning the 
definition of domestic industry and causation and non-attribution raise a different question.  In these 
examples, Norway asserts that the EC failed to refer, in the disclosure, to "any document or fact that 
supports or substantiates any of the EC's assertions " regarding the scope of the domestic industry, and 
failed to disclose "any documents and facts on th e record substantiating the EC's statements" 
regarding wild salmon imports from the United Stat es and Canada and lack of competition between 
wild and farmed salmon.907   
7.805  The word "fact" is defined variously as "Truth ; reality" and "A thing known for certain to 
have occurred or to be true; a datum of experien ce" and "A thing assumed or alleged as a basis for 
inference" and "Events or circumstances as distinct from their legal interpretation."908  In our view, 
essential facts to be disclosed under Article 6.9 may qualify under any of these meanings of the word 
fact.  We consider that the purpose of disclosure unde r Article 6.9 is to provide the interested parties 
with the necessary information to enable them to  comment on the completeness and correctness of the 
facts being considered by the investigating auth ority, provide additional information or correct 
perceived errors, and comment on or make argument s as to the proper interpretation of those facts.909   
7.806  Norway appears to be of the vi ew that the investigating authority must disclose the underlying 
evidence on which it has relied, or will rely, in reachi ng factual conclusions.  We do not agree.   It is 
clear that Article 6.9 requires disclosure of "essential facts" that are "under consideration" and "which form the basis for the decision whether to apply definitive measures."  This requirement is not 
necessarily satisfied by the disclosure of the inves tigating authorities' conclusions on issues of fact 
that must be resolved before a decision to apply definitive measures is taken.  Neither, however, does 
Article 6.9 require disclosure of all the evidence and information that is before the investigating 
authority.
910  Indeed, one Panel has specifically held that access to the files of the investigating 
authority does not satisfy the requirements of Article  6.9, as parties given such access would not know 
which facts were essential and under consideration.911   
7.807  As already indicated above, we consider that "essential facts under consideration which form 
the basis of the decision whether to apply definitiv e measures" are the body of facts essential to the  
determinations that must be made by the investiga ting authority before it can decide whether to apply 
                                                      
906 We note that in our view, the ability of interested parties to defend their interests in subsequent 
review before domestic tribunals, as provided for in Article 13 of the AD Agreement, is irrelevant to the issue 
here.  The Article 6.9 disclosure is a procedural right accorded interested parties in furtherance of the general 
right to defend their interests during the anti-dumping proceeding.      
907 Norway, FWS, para. 736. 
908 New Shorter Oxford English Dictionary, Clarendon Press, 1993. 
909 This follows from the second sentence of Article 6.9, which establishes the timing of the disclosure, 
as "in sufficient time for the parties to defend their interests."   
910 We note that Article 6.4 establishes the right of interested parties to see all relevant, non-
confidential information used by the investigating authorities.   Thus, to interpret Article 6.9 to require disclosure 
of evidence would to some extent establish a redundancy. 
911 Panel Report, Argentina – Ceramic  Tiles , para. 6.129.  WT/DS337/R 
 Page 319 
 
 
  definitive measures.  That is, th ey are the facts necessary to the process of analysis and decision-
making by the investigating authority, not only those that support the decision ultimately reached.     
7.808  We do not consider that every element of factual evidence considered by the investigating 
authority must be disclosed, or that every fact di sclosed must be footnoted to the specific source 
information before the investigating authority.  We can see nothing in Article 6.9 which would require 
any particular form of disclosure, or any particular degree of precision in tying facts to the 
information before the investigating authority.  While  it would certainly be useful for the investigating 
authority to indicate to interested parties the inform ation before the investigating authority on which a 
disclosed essential fact is based, we cannot  conclude that this is required.   
7.809  Turning to the specific examples of alleged failu re to disclose essential facts, Norway argues 
that the EC failed to disclose the identities of th e 15 EC producers constituting the domestic industry, 
the identities of the excluded related producers, wh at the volume of production of related producers 
(individual or collective) was, facts or documents providing the basis for the volume of production of the domestic industry, the identities of the "silent " producers, whether their production volume was 
included in domestic production, and which compan ies were excluded from the definition of the 
domestic industry and their production volume, individual and collective.
912  It is undisputed that the 
Definitive Regulation with regard to the definitio n of the domestic industry is identical to the 
disclosure provided in October 2005.  Norway's argument is that this disclosure was of the 
determination, and not the facts underlying the determ ination.  It seems clear to us that the essential 
facts forming the basis for the EC's definition of the domestic industry913 are set out in the Definitive 
Regulation, which describes the factual basis on which the EC defined the domestic industry.  Merely 
that the evidence or information from which the inv estigating authority derived that factual basis is 
not set out does not establish a violation of Article 6. 9.  Thus, we find no violation of Article 6.9 in 
this regard. As Norway's claim of violation of Ar ticle 6.2 is dependent on its claim of violation of 
Article 6.9,  which we have rejected, we  find no violation of Article 6.2.   
7.810  With respect to the essential facts relating to  causation and non-attribution, Norway asserts 
that the disclosure did not contain any facts or refe rence to facts concerning import statistics for wild 
salmon from Canada and the United States, competition between wild and farmed salmon, predominance of sales of wild salmon in tins or cans, lower prices for wild salmon, and taste differences between wild and farmed salmon.  As with  the definition of domestic industry, there is no 
dispute that the Definitive Regulation is identical to the disclosure on this issue.  Again, it seems clear 
to us that the essential facts form ing the basis for the EC's conclusion that imports from Canada and 
the United States were not a cause of injury to the domestic industry are set out.  We have, elsewhere 
in this decision, found that the EC's conclusion in th is regard is not consiste nt with the requirements 
of the AD Agreement.  However, that finding do es not necessarily mean that the essential facts were 
not disclosed – it simply means that the conclusion was not one that could be reached by an objective 
and unbiased investigating authority on the basis of those facts.  Thus, we find no violation of 
Article 6.9 in this regard.  As Norway's claim of vi olation of Article 6.2 is dependent on its claim of 
violation of Article 6.9, which we have reject ed, we find no violation of Article 6.2.   
                                                     
 
912 Norway, FWS, para. 735. 
913 We note our conclusion elsewhere in this report that the EC's approach to defining the domestic 
industry in this case resulted in an investigation concer ning a domestic industry that did not comport with the 
definition set forth in Article 4.1 of the AD Agreement.   WT/DS337/R 
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  3. Alleged Inconsistency with Articles 12.2 and 12.2.2 
(a) Arguments of the parties 
(i) Norway 
7.811  Norway's third claim is that the EC violat ed Article 12.2 and 12.2.2 because it failed to 
provide a reasoned and adequate explanation for a number of its findings and conclusions.  Norway 
considers that the EC's publishe d determination – the Definitive Regulation – is characterized by a 
general failure to explain how the facts in the r ecord support the factual an d legal determinations.  
Norway first sets out its view of the obligation to provide a reasoned a nd adequate explanation 
imposed by Article 12.   
7.812  Norway asserts that these provisions require th e investigating authority  to provide a reasoned 
and adequate explanation , among others, of how the evidence in the record supports the authority's 
determination, citing US – Softwood Lumber VI (Article 21.5 – Canada) ,
914 and that the explanation  
must demonstrate in a "clear and unambiguous" ma nner that the substantive conditions for imposition 
of trade remedy measures have been satisfied, citing US – Line Pipe .915  
7.813  Norway sets out examples of how, in its view, th e EC failed to comply with those obligations 
in its determinations of: (1) th e product under consideration and the domestic industry; (2) the margin 
of dumping for companies for whom the definitive ma rgin differed from the di sclosed margin; (3) the 
causal link; and (4) the level of the MIPs.   
7.814  Norway recalls its claim that the EC failed to make a proper determination of the product 
under consideration, and argues th at its substantive arguments al so demonstrate that the EC's 
statement of reasons for the determination of the "product under consideration"  fails to provide any 
explanation of the "evidentiary path" that led the EC to its conclusion with regard to the four criteria it 
used to assess likeness, namely, phy sical characteristics, production process, substitutability, and end 
uses.  In particular, Norway contends that the EC has not explained how the facts in the record 
support its conclusions.   
7.815  Second, Norway recalls its claim that the EC improperly defined the domestic industry under 
Article 4.1, and asserts that the EC's determination on that issue  failed to set forth a reasoned and 
adequate explanation for many of the elemen ts that make up this determination.   
7.816  With respect to the dumping determination, Norw ay considers that there are many examples 
of the EC's failure to explain its dumping determ inations for the ten sampled companies.  For 
instance, Norway recalls that the definitive disclos ure for PFN revealed a dumping margin of 24.5 per 
cent, but in the Definitive Regulation, the EC re vised its determination to 17.7 per cent. Norway 
asserts that the EC must have accepted some of PFN 's arguments, but that the Definitive Regulation 
sets out no reasons for the change.   Norway notes th at the EC also failed to provide any reasons for 
changes to the dumping margins for Hydroteck a nd Sinkaberg-Hansen that occurred between the 
Definitive Disclosure and the Definitive Regulation. 
7.817  With respect to the causation determination, Norway recalls its claims of violation of 
Articles 3.1 and 3.5 of the AD Agreement, and offers examples of the EC's alleged failure to provide 
a reasoned and adequate explanation for its price undercutting and "non-attrib ution" analysis.  These 
relate to the failure to address the price premium,  referred to in the general disclosure, in the 
Definitive Regulation,  the dismissal of the argument that any injury sustained by the EC industry was 
                                                      
914 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 98. 
915 Appellate Body Report, US –Line Pipe , para. 217  WT/DS337/R 
 Page 321 
 
 
  caused by an increase in the industry's costs of production without adequate  explanation, and the 
failure to provide a proper explanation of why im ports from Canada and the United States were not 
another factor causing material injury to the domestic industry.   
7.818  With respect to the MIPs, Norway recalls its arguments that the EC's determination of the 
level of the MIPs violated Article VI:2 of the GATT 1994 and Article 9 of the AD Agreement, and  
asserts that those arguments reflected that the EC 's determination did not provide a reasoned and 
adequate explanation of how the EC arrived at th e values for the various MIPs.  Specifically, Norway 
maintains that the EC does not disclose any explan ation of how it calculated the "non-dumped" MIPs 
or the "non-injurious" price of the Community industry of the like product.   
(ii) European Communities 
7.819  Regarding Norway's claims under Article 12, the EC maintains that the Definitive Regulation 
complies with the requirements of that Article, and that Norway is attempting to impose an exaggerated legal standard in th is context.  The EC notes that Article 12.2 of the AD Agreement 
requires an investigating authority to provide "in sufficient detail the findings and conclusions reached 
on all issues of fact and law", and that Article 12.2.2 of the AD Agreement spells out what is meant 
by sufficient detail for final determinations.  The EC  argues that Norway contorts the language of this 
provision to give the impression that the " sufficient detail" as mentioned in Article 12.2. is left undefined, and then advances a standard of "su fficiency" which goes well beyond the three criteria 
mentioned in Article 12.2.2.   
7.820  In the EC's view, Article 12.2 of the AD Agr eement is satisfied when an investigating 
authority provides the information that it considers rele vant, and the reasons that it held to be decisive 
for its findings. The EC recognizes that an investiga ting authority may err on some matters of fact or 
law, but suggests that such errors could be attacked under the substantive provisions of the 
AD Agreement, while the procedural provision, Article  12.2, is only at issue when an investigating 
authority fails to provide relevant information on matte rs of fact or law, when it does not put forward 
any reasoning in support of them, or simply ignor es the arguments presented by interested parties.  
The EC also notes that Norway fails to take in to account the obligation to protect confidential 
information, which is set out in Article 12.2.2 itself.  
7.821  With respect to the determination regarding sel ection of the product under consideration, the 
EC recalls its view that Article 2.6 is irrelevant to  this issue, and asserts that it was therefore under no 
obligation to undertake the detailed explanation No rway considers to have  been necessary. The EC 
maintains that it was simply required to describe its  selection of the subject product as farmed salmon, 
however presented, which it did adequately  in the Provisional Regulation.   
7.822  The EC considers that, while Norway may disagr ee with the EC's conclusion, it is sufficient, 
as it identifies the four criteria that are found to cons titute the common strain of farmed salmon – i.e., 
the relevant issues of law and fact, it draws a conclusion from the facts, and explains that no comments were made concerning that conclusion, obviating the need for further discussion in the 
Definitive Regulation.   
7.823  With respect to the domestic industry determina tion, the EC considers that the information 
concerning production by the domestic industry, and th e producers it considered to be part of that 
industry, is clearly set out in the Provisional and Definitive Regulations, and that Norway's emphasis 
on the question of filleting-only ope rations is the basis for its dissatisfaction with the EC's 
explanation.  The EC maintains that the exclusion of certain producers is set out in paragraph 39 of 
the Definitive Regulation, and that this is adequate  reasoning to explain why the EC considered that 
the 15 complaining producers constituted the domes tic industry on the basis that their production WT/DS337/R 
Page 322  
 
  accounted for a major proportion of total domestic pr oduction.  While Norway may disagree with the 
EC's conclusions, the EC considers it undeniable that it has provided reasons for its decisions.  
7.824  The EC recognizes that the Definitive Regulation does not address the reasons for the 
modification of the dumping margins with regard to three Norwegian exporters (PFN, Hydroteck and 
Sinkaberg-Hansen), but maintains that to do so would have disclosed confidential industrial data, 
which is prohibited.  Consequently, the EC wa s not only justified but also required under the 
AD Agreement not to provide specific informa tion on the reasons why and how exactly it had 
modified the dumping margin of several Norwegian exporters after definitive disclosure.  The EC 
notes, however, that it did explain its determinatio n to the three exporters individually - verbal 
notifications to PanFish and Hydroteck were followe d by short e-mails after the publication, while a 
lengthy telephone-conference was held with Si nkaberg-Hansen prior to the publication.  
7.825  Turning to the causation determination, the EC points out that the price premium issue relates 
to injury, and not causation, and th at the EC addressed this question in the general disclosure, but did 
not do so in the Definitive Regulation. The EC reiterates its view that the price premium for 
Community industry is not relevant for the calculati on of price undercutting, and that therefore, the 
Definitive Regulation did not have to refer to this element.   
7.826  With respect to the alleged "dismissal" of the arguments related to the EC industry's costs of 
production, the EC notes that the alleged lack of expl anation is in the Provisional Regulation, which is 
governed by Article 12.2.1, which is not the subject of  any claim in this dispute, and is therefore not 
properly before the Panel.   
7.827  With respect to the alleged lack  of evidence to support the determination that imports from 
Canada and the US were not an "other factor" causing material injury, the EC asserts that, as 
explained in recitals 85 and 86  of the Definitive Regulation, imports from the US and Canada 
consisted mostly of wild salmon, which was not the product concerned and therefore immaterial for 
the causation analysis. The EC main tains that such straightforward reasoning is adequate.  With 
respect to the MIPs, the EC maintains that it explai ned its choice for the MIPs in recitals 127 to133 of 
the Definitive Regulation. The method of calculation wa s particularly set out in recitals 130 to 133.  
The EC considers that the explanation is sufficien tly detailed to reveal how the EC calculated the 
relevant data.   
(b) Evaluation by the Panel 
7.828  Article 12.2 of the AD Agreement provides: 
"Public notice shall be given of any prelimin ary or final determination. … Each such 
notice shall set forth, or otherwise ma ke available through a separate report, in 
sufficient detail the findings and conclusions  reached on all issues of fact and law  
considered material by the investigating authorities.  All such notices and reports 
shall be forwarded to the Member or Memb ers the products of which are subject to 
such determination or undertaking and to other interested parties known to have an 
interest therein." (Emphasis added) 
Article 12.2.2 of the AD Agreement provides: 
"A public notice of conclusion … of an inv estigation in the case of an affirmative 
determination providing for the imposition of  a definitive duty … shall contain, or 
otherwise make available through a separat e report, all relevant information on the 
matters of fact and law and reasons wh ich have led to the imposition of final 
measures or the acceptance of a price  unde rtaking, due regard being paid to the  WT/DS337/R 
 Page 323 
 
 
  requirement for the protection of confidential  information.  In particular, the notice 
or report shall contain the information descr ibed in subparagraph 2.1, as well as the 
reasons for the acceptance or rejection of re levant arguments or claims made by the 
exporters and importers, and the basis for any decision made under subparagraph 10.2 
of Article 6".  
7.829  Norway alleges that the EC violated these pr ovisions by failing to provide a reasoned and 
adequate explanation for many of its findings.  Norway considers that the Definitive Regulation 
generally fails to explain how the facts in the reco rd support the factual and legal determination.  
Specifically, Norway asserts that the EC's determin ation fails to provide a reasoned and adequate 
explanation of the determinations of (1) produc t under consideration; (2) domestic industry; (3) 
dumping; (4) causation; and (5) the level of minimum import prices.   
7.830  With respect to Norway's claim concerning th e alleged failure to provide a reasoned and 
adequate explanation for the dete rmination of the product under cons ideration, we have concluded 
elsewhere in our decision that the EC did not act  inconsistently with the AD Agreement in not 
limiting the scope of the product under consideration to "like" products .  Thus, we concluded that the 
EC was not required to make the determination pr oposed by Norway on the basis of the analysis 
argued by Norway.  In our view, it follows from our finding that there is no violation of Article 12 in 
the fact that the EC did not provide an explanation of an analysis and determination it was not required to make.  The Definitive Regulation sets fort h the conclusions of the investigating authority 
as to the product under consideration.  To the extent that Articles 12.2 and 12.2.2 require an explanation of aspects of the determination not re quired by the AD Agreement, we consider that the 
Definitive Regulation contains an adequate explana tion of this aspect of the EC's determination. 
7.831  With respect to Norway's claim regarding the definition of the domestic industry, we have 
found elsewhere in our decision that the EC's appr oach to defining the domestic industry in this case 
resulted in an investigation concerning a domestic i ndustry that did not comport with the definition set 
forth in Article 4.1 of the AD Agreement.  We  note that our finding in this regard was based 
principally on the definition of the domestic i ndustry as set out in the Provisional and Definitive 
Regulations.  Having found error in this regard, the question of whether the notice of the definition of 
the domestic industry is "sufficient" under Article 12. 2 is immaterial.  We co nsider that, where there 
is a substantive inconsistency with the provisions of the AD Agreement, it is neither necessary nor 
appropriate to consider whether there is a violati on of Article 12, as the question of whether the notice 
is "sufficient" under Articles 12.2 and 12.2.2  is immaterial.
916 
7.832  With respect to Norway's claim regarding dumping, Norway asserts that there are "many 
examples of the EC's failure to explain its dumpi ng determinations for the ten sampled companies",917 
and refers, as the single example in support of its claim, to the change in the dumping margins for 
three companies as set out in the Definitive Re gulation from those set out in the disclosure under 
Article 6.9.  Norway alleges that  the Definitive Regulation does not e xplain the reasons for the change 
in the dumping margins calculated for PFN, Hydrot eck, and Sinkaberg-Hansen, that PFN argued that 
the calculation in the definitive disclosure was flawed , and that the Definitive Regulation fails to state 
                                                      
916 We find support for our position in the views of the Panel in EC-Bed Linen ,  
"A notice may adequately explain the determination that was made, but if the determination was substantively inconsistent with the relevant legal obligations, the adequacy of the notice is 
meaningless.  Further, in our view, it is m eaningless to consider whether the notice of a 
decision that is substantively inconsistent with  the requirements of the AD Agreement is, as a 
separate matter, insufficient under Article 12.2.  A finding that the notice of an inconsistent 
action is inadequate does not add anything to the finding of violation, the resolution of the 
dispute before us, or to the understanding of the obligations imposed by the AD Agreement." Panel Report, EC-Bed Linen , para. 6.259. 
917 Norway, FWS, para. 769. WT/DS337/R 
Page 324  
 
  the reasons for the acceptance or rejection of arguments made by PFN, Hydroteck, and Sinkaberg-
Hansen.  We have found elsewhere in our decision that the EC's determination of dumping for these 
companies was inconsistent with Articles 2.2, 2.2.1. 1, 2.2.2 and 2.2.2(iii).  Having found error in this 
regard, the question of whether the notice of those de terminations is "suffici ent" under Article 12.2 is 
immaterial.  We consider that, where there is a s ubstantive inconsistency with the provisions of the 
AD Agreement, it is neither necessary nor appropriate  to consider whether there is a violation of 
Article 12, as the question of whether the notice is  "sufficient" under Articles 12.2 and 12.2.2  is 
immaterial.
918 
7.833  With respect to Norway's claim regarding cau sation, Norway offers three examples of the 
EC's alleged failure to provide a reasoned and ad equate explanation for its price undercutting and 
"non-attribution" determinations.919  Norway alleges that the Definitive Regulation does not address 
the question of a price premium,920 does not address the argument that increased costs of production 
were a cause of injury to the domestic industry,  and does not provide a proper explanation for the 
conclusion that imports from Canada and the Unite d States were not a cause of injury.  We have 
found elsewhere in our decision that these elements of  the EC's determinations of injury and causation 
were inconsistent with Articles 3.1, 3.2 and 3.5 of the AD Agreement.  Having found error in this 
regard, the question of whether the notice of either  the preliminary or affirmative determination of 
injury is "sufficient" under Article 12.2 is immaterial .  We consider that, where there is a substantive 
inconsistency with the pr ovisions of the AD Agreement, it is neither necessary nor appropriate to 
consider whether there is a violation of Article 12,  as the question of whether the notice of either a 
preliminary or final determination is "sufficien t" under Articles 12.2 and 12.2.2  is immaterial.921 
7.834  Finally, with respect to Norway's claim re garding the level of minimum import prices, 
Norway asserts that the determination did not provid e a reasoned and adequate explanation of how the 
EC arrived at the values for the various minimum import prices.922  Specifically, Norway argues that 
the EC failed to disclose how it calculated the non-dumped minimum import prices and non-injurious price of the EC industry for the like product.  We have found elsewhere in our decision that the EC's 
determination of the level of the minimum import pric es was inconsistent with Articles 9.2 and 9.4(ii).  
Having found error in this regard, the question of  whether the notice of that determination is 
"sufficient" under Article 12.2 is immaterial.  We  consider that, where there is a substantive 
inconsistency with the pr ovisions of the AD Agreement, it is neither necessary nor appropriate to 
consider whether there is a violation of Article 12, as the question of whether the notice is "sufficient" 
under Articles 12.2 and 12.2.2  is immaterial.
923 
4. Allegedly Inadmissible Exhibits Submitted to the Panel  
7.835  At the first meeting of the Panel with the Parti es, Norway raised objections to seven exhibits 
submitted by the EC in connection with its firs t written submission.  Norway asserts that these 
exhibits are inadmissible in this proceeding, because they contain "data and evidence that is not part 
of the record of investigation."924  Norway raised specific objections to Exhibits EC-2, EC-10, and 
EC-12 – EC-16.925  Norway argues that these exhibits contai n new evidence, not contained in either 
the report of the investigating authority, or in the investigation record, and that the Panel may not take 
                                                      
918 Panel Report, EC– Bed Linen , para. 6.259. 
919 Norway, FWS, para. 773. 
920 We note that Norway's substantive claim of vi olation with respect to the question of a price 
premium was raised under Articles 3.1, 3.2, and 3.5, and is discussed in the portion of our decision referring to 
the injury determination. 
921 Panel Report, EC – Bed  Linen , para. 6.259. 
922 Norway, FWS, para. 777. 
923 Panel Report, EC– Bed Linen , para. 6.259. 
924 Norway, First Oral Statement, para. 7. 
925 Norway, First Oral St atement, paras. 8-12.  WT/DS337/R 
 Page 325 
 
 
  such new evidence into consideration in this dispute.   Norway relies in this respect on Article 17.5 of 
the AD Agreement, and US – Countervailing Duty Investigation on DRAMS , where the Appellate 
Body stated that "[t]here is no doubt that a Member may not seek to defend its agency's decision on 
the basis of evidence not contained in the record of the investigation ."926  Norway notes that panels 
have held that they can " not examine any new evidence that was not part of the record of the 
investigation."927  
7.836  The Panel requested the EC to indicate whethe r the information in the challenged exhibits 
was in the files of the anti-dumping investigation, and on what basis the EC demonstrated that this 
information was before the investigating au thority at the time it made its decision.928  In its response, 
the EC asserted that all the relevant information was before the investigating au thority, and that this 
was "largely apparent from the measure at issu e itself and the public nature of some of the 
information", as well as "photocopies of extracts from the questionnaire responses, verification or 
disclosure documents."929  The EC then gave further specific comments with respect to each of the 
seven contested exhibits. 
7.837  As we have previously noted, in our assessment of the matter before us, we must limit our 
review to the "facts made available in conform ity with appropriate domestic procedures to the 
authorities of the importing Member", in accordance with  Article 17.5(ii) of the AD Agreement.  This 
does not mean, in our view, that we are limited to  the information actually set forth or specifically 
referenced in the determination at issue.  We find support for this view in the Appellate Body's report 
in US – Countervailing Duty Investigation on DRAMS , where it rejected the view that an investigating 
authority could not defend its dete rmination on the basis of information contained in the record that 
was before it at the time of the determination,  but not specifically cited or discussed in that 
determination.930  While the Appellate Body was considering a countervailing measure under the 
Agreement on Subsidies and Countervailing Measures,  which does not contain a provision similar to 
Article 17.5(ii), we consider that the same conclusion applies with equal force in the context of review 
of an anti-dumping measure.   
7.838  We also are of the view that Article 17.5(ii) does not preclude a party from organizing 
information in a different presentation or format for submission to the Panel than was before the 
investigating authority, in response to the particular  allegations of error and arguments at issue in the 
dispute.  We note in this respect the view of the Panel in EC-Bed Linen , that "the form of the 
document, ( i.e., a new document) does not preclude us from considering its substance, which 
comprises facts made available to the inves tigating authority during the investigation".931   
                                                      
926 Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random 
Access Memory Semiconductors (DRAMS) from Korea ("US – Countervailing Duty Investigation on DRAMS") , 
WT/DS296/AB/R, adopted 20 July 2005, para. 161. Emphasis added. 
927 Panel Report, Guatemala - Cement II , para. 8.19. Emphasis added. See also Panel Report, Korea – 
Definitive Safeguard Measure on Imports of Certain Dairy Products ("Korea – Dairy "), WT/DS98/R and 
Corr.1, adopted 12 January 2000, as modified by Appellate Body Report, WT/DS98/AB/R, DSR 2000:I, 49, para. 7.30; Appellate Body Report, US – Wheat Gluten , para. 161; Panel Report, United States – Anti-Dumping 
Measures on Certain Hot-Rolled Steel Products  from Japan ("US – Hot-Rolled Steel ") , WT/DS184/R, adopted 
23 August 2001, para. 7.6, quoted also in Panel Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada ("US – Softwood Lumber VI ") , WT/DS277/R, adopted 
26 April 2004,  para. 7.37; Panel Report, EC – Bed Linen , para. 6.41 – 6.43; Panel Report, US – Hot-Rolled 
Steel , para. 7.6; Panel Report, Egypt – Steel Rebar , para. 7.21; Panel Report, US – Wool Shirts and Blouses , 
para. 7.21.  
928 EC, Answer to Panel Question 1.   
929 EC, Answer to Panel Question 1, para. 3. 
930 Appellate Body Report, US – Countervailing Duty Investigation  on DRAMS , paras. 161-165.   
931 Panel Report, EC – Bed Linen , para. 6.43. WT/DS337/R 
Page 326  
 
  7.839  Thus, in deciding whether the contested exhibits  are properly before us for our consideration 
in this dispute, we must determine whether the information  in those exhibits was before the 
investigating authority at the time it made its determin ation.  If it was, then even if now presented in a 
different format, our view is that we may not excl ude it from our consideration.  However, if the 
information, in any form, was not demonstrably befo re the investigating authority at the time it made 
its determination, then we consider it appropria te to exclude it from our consideration in this 
proceeding. 
7.840  We turn now to the specific exhi bits objected to by Norway.  
- Exhibit EC-2
 consists of six articles from "Intrafish", dating from 
August 2001, March 2002, April 2002,  May 2002, September 2002, and 
September 2004, printed from the Internet on 17 October 2006.  
7.841  The EC recognizes that these articles were prin ted in 2006, but notes that the date of 
publication of each was prior to the investigating au thority's determination.  The EC presents evidence 
that it subscribes to Intrafish,932 and asserts that the investigating authority monitored this service 
throughout the investigation, and that these documen ts were in the public domain.  Thus, the EC 
argues, the fact that the articles were printed in 20 06 is immaterial.  The EC submitted this exhibit in 
support of the statement in paragraph 15 of the Pr ovisional Regulation that changes in the Norwegian 
industry enabled the investigating authority to  calculate dumping margins based on data from 
producers.  The EC argues that this assertion does not  have to be justified, as it does not concern any 
issue of law, but rather a question of whether a particular approach to calculating dumping margins 
was possible as a practical matter.  Moreover, the EC argues that this issue is not raised in Norway's 
request for establishment.   The EC also notes th at Norway does not contest the substance of the 
articles.  The EC asserts that a number of reasons explain why the articles are not referred to in the Provisional Regulation, including the need to translat e such regulations into the 20 official languages, 
and associated technical and administrative requireme nts, which impose pressure to produce texts that 
are succinct and not over-burdened with extraneous  references, which in any event the EC argues are 
not required by the AD Agreement.   
7.842  Norway contends that the fact that informa tion is publicly available does not make that 
information part of the investigation record, and th at while the EC may have shown that it subscribed 
to Intrafish, it has not shown that the entire archive of articles from Intrafish are part of the file of 
every investigation into fish products conducted by the EC.  Norway argues that the EC has also 
failed to show that the articles in que stion were part of the record of this investigation , and were 
considered by the authority as pa rt of that decision-making process.
933  Norway notes that this exhibit 
relates to its claim that the EC was required by  Article 6.10 of the AD Agreement to include 
independent exporters in the sample.   
7.843  We can find no basis to conclude that the six ar ticles in Exhibit EC-2 were actually before the 
investigating authority at the time of its determinati on.  We do not question that the EC subscribed to 
Intrafish, nor that staff of the EC investigating authority monitored that service, and informed 
themselves as to events in the seafood industry.  As we have noted elsewhere in our decision, persons 
working for the investigating authority in a par ticular anti-dumping dispute may have knowledge and 
information gained from sources other than inform ation submitted by interested parties during an 
investigation – prior knowledge of a product, i ndustry, or market, experience gained in other 
                                                      
932 Exhibit EC-27, consisting of an internal EC Commission note dated 27 May 2004 recording the 
subscription and its relevance for the anti-dumping proceeding. 
933 Norway also argues that th e articles in question were not made available for Norway's 
representatives, not shown to Norway when Norway insp ected the non-confidential r ecord of the investigation 
in November as required by Article 6.4, and were not disc losed as essential facts as required by Article 6.9.   WT/DS337/R 
 Page 327 
 
 
  investigations, or other types of investigati ons, publicly available information, and "common 
knowledge" may all play a part in an investigating authority's efforts to establish the facts in a particular investigation.  However, in our view, in order for such information to be put before a Panel 
to support an argument in dispute settlement, such  information must be reflected in the published 
determinations, or at a minimum in other documen ts in the files of the investigating authority and 
brought before us in a form that demonstrates that it was available to and considered by the 
investigating authority in establishing the facts.  In this case, the Provisional Regulation clearly 
references changes in the structur e of the Norwegian salmon industry.   Presumably, the investigating 
authority had some basis for this reference.  Bu t we cannot simply accept that these six articles were 
that basis.  The presentation of articles printed from the Internet long after the investigation was 
completed does not, to us, demonstrate that the information in those articles was before, and 
considered by, the investigating authority in establis hing the facts.  The fact that the information in 
question is in the public domain does not change our view in this regard.  Clearly, a great deal of information in the public domain may be relevant in a particular anti-dumping investigation.  A 
reviewing panel cannot, in our view, simply accept that  all such information was, in fact, before the 
investigating authority and considered, without so me contemporaneous evidence of that fact.  We 
therefore consider it appropriate to excl ude this exhibit from our consideration.
934 
- Exhibit EC-10  contains data on (1) export volumes, (2) turnover, and (3) 
export prices for sampled producers, non-sampled producers, and producers 
that were deemed "non-cooperating".  
7.844  The EC argues that this exhibit is not provided to the Panel as "evidence" but is rather "an 
explanation (in tabular format) that forms an inte gral part of the text of the EC's first written 
submission, placed in an Exhibit for the convenience of the Panel"935.  The EC argues that the 
contents of this exhibit are "entirely based on info rmation that was before the investigating authority, 
and particularly Eurostat data (whi ch is also in the public domain)."936 The EC explains how official 
Eurostat data, is "generally extracted" by the investigating authority at the beginning of an 
investigation, generating an EXCEL spread sheet, which may contain thousands of lines.  The EC 
submits Exhibit EC-28, containing the first and last pages of the Eurostat data extracted in this case on 23 February 2005.
937    The EC asserts that in this case it was necessary to express the data in "whole 
fish equivalent" (WFE), a process never contested by Norway.  The EC submits Exhibit EC-29, a worksheet that is part of the same EXCEL file, whic h shows some of the figures that appear in Exhibit 
EC-10, and explains how the remainder of the figures  were derived.  The EC also used information 
from questionnaire responses in preparing Exhibit EC -10.  The EC relied on Exhibit EC-10 in support 
of its argument that it had other sources of information for the conclusion that non-sampled companies were also dumping.   
7.845  Norway argues that the distinction drawn by th e EC between "evidence" and "explanation" is 
irrelevant, the relevant question being whether part icular information was before the investigating 
authority.  Norway contests the admissibility of two aggregate figures shown in this exhibit.  Norway 
argues that the fact that the figures are taken from pub lic Eurostat data is immaterial, as not all public 
information is necessarily among the information gath ered by the investigating authority.  Norway 
asserts that the EC has not demonstrated that these tw o figures were part of the record.  Norway points 
out that the figures on which other extrapolations were  based do not appear in the EC's determination, 
                                                     
 
934 We note that this does not mean that we have found that the EC erred in stating that the Norwegian 
industry was undergoing reconstruction – a question of fact on which we have found it unnecessary to rule, in light of our decision on Norway's claim under Article 6.10.   
935 EC, Answer to Panel Question 1, para. 17 
936 EC, Answer to Panel Question 1, para. 18 
937 The EC offered to submit the entire document, sh ould the Panel wish.  We are satisfied that the 
investigating authority did extract the information indicated in EC-28 during the course of the investigation.    WT/DS337/R 
Page 328  
 
  were not disclosed under Article 6.9, and were not  among the information made available pursuant to 
Article 6.4.  Norway argues that the allegedly public ly available data was manipulated on the basis of 
a number of choices made by the EC for purposes of this proceeding.  Moreover, no interested party was ever in a position to comment on these figures.  Moreover, even accepting that the aggregate 
figures were before the investigating authority, Norw ay argues that the remainder of the data in EC-10 
were not, except for turnover for sampled producers.   Rather, Norway asserts, the remaining data are 
based on extrapolations from other figures, based on c hoices and allocations of data that result in new 
volume and turnover figures for non-sampled producer s and non-cooperating producers that were not 
part of the record, and that such manipulation of the data may not be considered by the Panel.   
7.846  With respect to Exhibit EC-10, we note that, as  discussed above, the fact that Eurostat data 
are publicly available does not, in our view, demonstrate that such information was before the 
investigating authority during the investigation.  However, we are satisfied that the investigating 
authority did, in fact, extract relevant inform ation from the Eurostat data for purposes of this 
investigation, and that this information was before the investigating authority.  While it is clear that 
the information in EC-10 was not before the investigating authority in the form in which it was 
submitted to the Panel, we are satisfied that the information has not been impermissibly manipulated, 
but rather has been compiled and presented in a more useful form to support the EC's arguments.  We 
therefore decline to exclude it from our consideration in this dispute.  We note, however, that we did 
not rely on this information in making our decisi on on the issue in connection with which it was 
submitted. 
7.847  We understand from the parties' arguments that the Eurostat data in question was not included 
in the files made available to interested parties pu rsuant to Article 6.4.  In response to questioning 
from the Panel, the EC acknowledged that public info rmation used by the investigating authority is 
covered by Articles 6.4 and 6.9 of the AD Agreement.
938  The EC went on to argue, however, that it 
was not required to disclose publicly availabl e data, as this would not be practical, although 
extractions and details could be produced in re sponse to specific requests at the time of the 
investigation.939   We do not agree.  In our view, if an investigating authority obtains relevant public 
information during the course of its investigation, from whatever source, that information must be 
among the information interested parties are given opportunities to see, pursuant to Article 6.4, and 
may need to be disclosed as essential facts pursuant to  Article 6.9.  We do not mean to suggest that 
every scrap of public information known by the staff of  the investigating authority must be in the files 
of the investigation.  But certainly, public informa tion that is specifically obtained for the purposes of 
a particular investigation must, we believe, be in tho se files, and must be made available for interested 
parties to see pursuant to Article 6.4, as it clearly form s part of the information relevant to a particular 
issue that is before the investigating aut hority at the time it makes it determination.940  We therefore 
consider that the EC violated Article 6.4 by faili ng to provide timely opportunities for the interested 
parties to see the Eurostat information obtai ned for purposes of the investigation.   
7.848  Moreover, such public informa tion may constitute part of the essential facts that must be 
disclosed under Article 6.9.  In our view, inform ation concerning the volume and value of imports of 
Norwegian salmon, falls within the scope of " essential facts" which are to be disclosed under 
Article 6.9.  The disclosure documents do contain information on the volume and value of imports of 
Norwegian salmon, although not necess arily in the form presented in Exhibit EC-10.  The fact that the 
EC has, in making its arguments to this Panel in r esponse to Norway's allegations of error, relied on a 
sub-set of that information that was not disclosed  in that form does not, in our view, suffice to 
demonstrate a violation of Article 6.9.  Article 6. 9 requires disclosure of essential fact that form the 
basis of the investigating authorities' decision wh ether to impose definitive measures.  It does not 
                                                      
938 EC, Answer to Panel Question 94, para. 22.   
939 EC, Answer to Panel Question 94, para. 26.   
940 See above VII.J.1(c).  WT/DS337/R 
 Page 329 
 
 
  require an investigating authority to predict what alle gations of error it might have to answer in future 
dispute settlement and disclose the specific informat ion in the specific form on which it might in the 
future rely in responding to those allegations.  Theref ore, we consider that the fact that the specific 
information as set out in Exhibit EC-10 was not disclosed does not constitute a violation of Article 6.9. 
- Exhibit EC-12
 contains data on the level of dumped imports from Norway 
that excludes imports from one of the sampled companies.  
7.849  The EC argues that, like Exhibit EC-10, this exhibit was provided to the Panel not as 
"evidence" but as "an explanation (in tabular format) that  forms an integral part of the text of the EC's 
first written submission, placed in an E xhibit for the convenience of the Panel."941  The EC argues that 
the information in this exhibit is based on the same  Eurostat data as Exhibit EC-10, and explains how 
the information in this exhibit corresponds to th e Eurostat data, as well as data from Nordlak's 
questionnaire response.    
7.850  Norway again asserts that the distinction between "evidence" and "explanation" is irrelevant.  
Norway argues that some of the data in Exhibit EC -12 is new, based on a manipulation of data in the 
record, rather than the cited sources directly.   No rway argues that these computations involve choices 
in how they were made, which in Norway's view ha ve a significant impact on the conclusions drawn.   
Norway also argues that the purpose of the info rmation presented is to present facts supporting a 
different conclusion than that reached by the inv estigating authority – a conclusion excluding imports 
from Nordlaks that were included in  the investigating authorities' determination.  Finally, Norway 
argues that this information was also not in the fil es made available to its representatives, and was not 
disclosed pursuant to Article 6.9.   
7.851  The views expressed above in our consideration of Exhibit EC-10 also apply here.  We are 
satisfied that the investigating authority did, in fact, extract relevant information from the Eurostat 
data for purposes of this investigation, and that  this information was be fore the investigating 
authority.  While it is clear that the information in  EC-12 was not before the investigating authority in 
the form in which it was submitted to the Panel, we  are satisfied that the information has not been 
impermissibly manipulated, but rather has been co mpiled and presented in a more useful form to 
support the EC's arguments.  We therefore decline to exclude it from our consideration in this dispute.  
We note, however, that we did not rely on this  information in making our decision on the issue in 
connection with which it was submitted.  As we f ound with respect to Exhibit EC-10, we conclude 
that the EC violated Article 6.4 by failing to provi de timely opportunities for the interested parties to 
see the Eurostat information obtained for purposes of th e investigation, but consider that the fact that 
the specific information in Exhibit EC-12 was not  disclosed does not constitute a violation of 
Article 6.9. 
- Exhibit EC-13  contains data on the proportion of sales made by the EC 
salmon industry in the United Kingdom. 
7.852  The EC argues that, like Exhibits EC-10 and EC -12, this exhibit was provided to the Panel 
not as "evidence" but as "an explanation (in tabular form at) that forms an integral part of the text of 
the EC's first written submission, placed in an Exhibit for the convenience of the Panel."942  The EC 
argues that the information in this exhibit is b ased on questionnaire responses of EC producers, which 
were unquestionably before the investigating auth ority, including transaction-by-transaction listings, 
as well as information from sampled Norwegian producer s, all of which are confidential.  The EC 
relied on this exhibit in support of its argument  concerning consideration of price trends.    
                                                      
941 EC, Answer to Panel Question 1, para. 22. 
942 EC, Answer to Panel Question 1, para. 26. WT/DS337/R 
Page 330  
 
  7.853  Norway objects to this exhibit on the basis th at although it may be based on data that was 
before the authority, the original data has b een transformed into a new set of facts through 
manipulation.   Norway argues that a defending Memb er cannot manipulate data in the record in this 
way, and thereby establish new facts that were not  previously known.  Norway also alleges that 
whether the investigating authority had before it data on UK and non-UK sales is contradicted by a 
statement in the Provisional Regulation, which notes that the UK market cannot be isolated from the 
overall EC market in evaluating changes in consumption.
943  Finally, Norway argues that this 
information was also not in the files made ava ilable to its representatives, and was not disclosed 
pursuant to Article 6.9. 
7.854  With respect to Exhibit EC-13, we have no doubt that it is based on information that was 
before the investigating authority, as Norway do es not dispute that it was derived from questionnaire 
responses from EC and Norwegian producers.  In our view, the statement in the Provisional Regulation does not demonstrate that the investiga ting authority did not have information on UK and 
non-UK sales by the domestic producers.  That st atement rejects the possibility of considering 
declining consumption in one part of the domestic market as a cause of injury when consumption as a 
whole was increasing – it says nothing about the existence of data for particular sales.  The fact that 
the EC has, in making its arguments to the Panel, so rted data in a way that it had not done during the 
investigation does not demonstrate that the underlyi ng information was not before the investigating 
authority.  Such a reformulation of the information before the investigating authority may give rise to questions as to the adequacy of the analysis of the issue in question at the time of the determination, 
and whether the arguments presented to a reviewing Panel constitute post hoc  rationalizations, but 
those are not the questions to be addressed in deci ding whether the information in the exhibit may be 
considered by a panel.  We are satisfied that the investigating authority did have before it the 
information reflected in EC-13, albeit not in the fo rm in which it was submitted to the Panel, and we 
are satisfied that the information has not been impermissibly manipulated, but rather has been 
compiled and presented in a different form to support the EC's arguments.  We do not consider that an 
investigating authority must have before it at the ti me of its determination in formation organized in a 
form that will be later deemed useful in supporti ng its arguments in later dispute settlement.   We 
therefore decline to exclude it from our consideration in this dispute.  We note, however, that we did 
not rely on this information in making our decisi on on the issue in connection with which it was 
submitted. 
- Exhibit EC-14
 contains a table entitled "injury data with Corrected 
US/Canadian Imports" 
- Exhibit EC-15  contains a table entitled "Imports originating in other third 
countries (corrected data)"  
7.855  The EC argues that, as it explained in its firs t written submission, the data on imports of 
salmon from the United States and Canada set out in the Provisional Regulation were incorrect.  The 
EC submitted the corrected figures in Exhibit EC-1 5, and based on those figures, submitted Exhibit 
EC-14 to support the contention that the error in  the data does not affect the outcome of the 
determination, and asks the Panel to take that in to consideration when making its findings.  The EC 
acknowledges that the correction of the technical error regarding salmon imports from the US and 
Canada post-dates the measure at issue.  
7.856  Norway argues that the EC, by stating that the correction post-dates the measure explicitly 
confirms that, at least part of the data in those exhibits is new and was not before the investigating 
authority.  As a result, Norway asserts, the data is  inadmissible.  Norway also argues that, based on 
the corrected data, the EC presents analysis di fferent from that originally undertaken by the 
                                                      
943 Provisional Regulation, Recital 101.  WT/DS337/R 
 Page 331 
 
 
  investigating authority, and that for the Panel to consider this data would require an impermissible de 
novo review.  Finally, Norway argues that this info rmation was plainly not made available to the 
parties during the investigation, contrary to Articles 6.2 and 6.4, and not disclosed, contrary to Article 6.9. 
7.857  It is clear, and the EC does not dispute, that  the facts set out in these two Exhibits were not 
available to the investigating authority at the time it ma de its determination.  Indeed, it is clear that the 
investigating authority cited and relied upon different facts concerning the volume of imports from the 
United States and Canada, and the consequent information on rate of  increase and changes in market 
share.  We may not, in our examination of the anti- dumping measure, take into account facts that were 
not before the investigating authority when it made its  decision.  Therefore, we consider it appropriate 
to exclude these exhibits from our consideration.   
- Exhibit EC-16 
contains data concerning salmon imports from the United 
States.  
7.858  The EC asserts that Exhibit EC-16 is the same pr eviously referred to public Eurostat data that 
was before the investigating authority.  The EC ar gues that the use of these data is evident from the 
comparison of domestic and imported salmon pri ces reflected in the Definitive Regulation at 
paragraphs 83-86.   The EC relies on exhib it EC-16 in connection with its arguments on non-
attribution of injury to imports from Canada and the United States. 
7.859  Norway argues that the mere fact that the data in Exhibit EC-16 were taken from public 
Eurostat data does not demonstrate that it was part of  the investigation record.   Norway asserts that 
the EC has not demonstrated that the data, as organi zed in the exhibit, was before the authority during 
the investigation.  Moreover, Norway argues, the e xhibit relies on import statistics to demonstrate that 
imports of salmon from the United States consists mos tly of wild salmon, despite the fact that the 
investigating authority specifically stated that "i mport statistics do not distinguish between farmed 
salmon and wild salmon".944  Finally, Norway argues that this information was also not in the files 
made available to its representatives, and w as not disclosed pursuant to Article 6.9.   
7.860  The views expressed above in our consideration of Exhibit EC-10 also apply here.  We are 
satisfied that the investigating authority did, in fact, extract relevant information from the Eurostat 
data for purposes of this investigation, and that  this information was be fore the investigating 
authority.  We are satisfied that the information has not been impermissibly manipulated, but rather 
has been compiled and presented in a more useful form  to support the EC's arguments.  That the EC is 
relying on this exhibit to support an argument that may be in some respect contradictory to statements 
in the Provisional and Definitive Regulations goes to the persuasiveness of those arguments, but is not 
relevant to whether or not the information in questio n may be considered by the Panel.  We therefore 
decline to exclude it from our consideration in this di spute.  We note, however, that we did not rely on 
this information in making our decision on the issu e in connection with which it was submitted.  As 
we found with respect to Exhibit EC-10, we conclude  that the EC violated Article 6.4 by failing to 
provide timely opportunities for the interested part ies to see the Eurostat information obtained for 
purposes of the investigation, but consider that th e fact that the specific information as set out in 
Exhibit EC-16 was not disclosed does not constitute a violation of Article 6.9. 
                                                      
944 Provisional Regulation, Recital 96, Definitive Regulation, Recital 84.   WT/DS337/R 
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  VIII.  CONCLUSIONS AND RECOMMENDATION  
A. C
ONCLUSIONS  
8.1 In light of the findings we have set out in th e foregoing sections of our Report, we conclude 
that the European Communities acted inconsistently with: 
(i) Article 4.1 of the AD Agreement because its approach to defining the 
domestic industry in this case resulted in an investigation concerning a 
domestic industry that did not compor t with the definition set forth in 
Article 4.1 of the AD Agreement, and consequently  
- Article 5.4 of the AD Agreement in determining support for the 
application for initiation on the basi s of information relating to a 
wrongly-defined domestic industry, and  
- Articles 3.1, 3.4 and 3.5 of the AD Agreement in undertaking injury 
and causation analyses on the basis of information relating to a wrongly-defined domestic industry;
945 
(ii) Article 6.10 of the AD Agreement because it failed to include Salmar in the 
ten companies selected for investig ation pursuant to the second limited 
investigation technique described in the second sentence of Article 6.10;946  
(iii) Article 2.2.2 of the AD Agreement when it disregarded actual domestic profit 
margin data pertaining to domestic sales  of eight investigated companies, and 
actual SG&A data pertaining to domestic sales of one investigated company, on the basis of the low volume of those sales (5 per cent representative sales 
test);
947 
(iv) Article 2.2.2 of the AD Agreement when it disregarded actual domestic profit 
margin data pertaining to domestic sales of three investigated companies on the basis of the less-than-10 per cent profitable sales test;
948 
(v) Article 6.8 and paragraph 3 of Anne x II of the AD Agreement when it 
disregarded the filleting cost information submitted by Grieg Seafood AS and 
inappropriately resorted to "facts available";949 
(vi) Article 6.8 and paragraph 3 of Anne x II of the AD Agreement when it 
disregarded the finance cost information submitted by Grieg Seafood AS and inappropriately resorted to "facts available";
950 
(vii) Article 9.4(i) of the AD Agreement because it imposed a fixed amount of 
anti-dumping duty on non-investigated cooperating companies on the basis of 
a flawed finding that the weighted aver age "injury margin" was less than the 
                                                      
945 Para. 7.124. 
946 Para. 7.205. 
947 Para. 7.309. 
948 Para. 7.318. 
949 Para. 7.372. 
950 Para. 7.386.  WT/DS337/R 
 Page 333 
 
 
  weighted average margin of dumping calculated for the investigated 
companies;951  
(viii) Article 6.8 and paragraph 1 of Annex II of the AD Agreement because it 
applied "facts available" for the pur pose of establishing the margin of 
dumping of 33 of 67 companies that did not receive the "sampling 
questionnaire" and which were not members of the FHL or the NSL;952 
(ix) Article 2.2.1.1 of the AD Agreement when  it made upward adjustments to the 
costs of production of [[XXX]] and [[XXX]] to account for NRCs on the basis of a three-year average of the NRCs incurred for each company 
between 2002 and 2004;
953 
(x) Article 2.2 of the AD Agreement becaus e it calculated the finance costs used 
in the determination of the costs of production of [[XXX]] and [[XXX]] on 
the basis of a three-year average of  the finance costs incurred between 2002 
and 2004, thereby failing to properly establish these companies' constructed 
normal values;954 
(xi) Article 2.2 and 2.2.1.1 of the AD Agreement because the EC rejected smolt 
cost adjustments to [[XXX]] and [[XXX]] cost of production and could not demonstrate that the investigati ng authority accepted these adjustments 
between Definitive Disclosure and adoption of the Definitive Regulation;
955 
(xii) Article 2.2 of the AD Agreement because it rejected the adjustment for 
income earned on the sale of smolt during the period of investigation that was 
requested by [[XXX]];956 
(xiii) Article 2.2.2 of the AD Agreement because it rejected [[XXX]] reported 
G&A costs;957 
(xiv) Article 2.2.2(iii) of the AD Agreement because it applied a methodology that 
involved double-counting and was thereb y not "reasonable" to determine 
[[XXX]] SG&A costs;958 
(xv) Articles 2.2 and 2.2.1.1 of the AD Agreement when it added revenue earned 
by [[XXX]] from slaughtering services provided to third parties to its cost of production;
959 
(xvi) Articles 3.1 and 3.2 of the AD Agreemen t because in finding material injury 
it treated imports attributable to a company for which a de minimis margin 
                                                      
951 Para. 7.428. 
952 Para. 7.462. 
953 Paras. 7.510 and 7.515. 
954 Para. 7.543. 
955 Para. 7.554 
956 Para. 7.572. 
957 Para. 7.592. 
958 Para. 7.605. 
959 Para. 7.609. WT/DS337/R 
Page 334  
 
  was calculated, and all imports from unexamined producers and exporters, as 
dumped;
960 
(xvii)  Articles 3.1 and 3.2 of the AD Agreemen t because in finding material injury 
it failed to take into account the pri ce premium enjoyed by domestic salmon 
products in considering whether there was significant price undercutting;961 
(xviii)  Articles 3.1 and 3.4 of the AD Agreemen t because in finding material injury 
it failed to take into account arguments alleging a distortive effect of using 
EUR, instead of GBP, in determini ng price trends and thereby failed to 
provide an adequate explanation of  its finding of declining prices;962    
(xix) Article 3.5 of the AD Agreement becau se it failed to properly examine 
known factors other than the dumped im ports which at the same time were 
causing injury to the domestic industry, and failed to ensure that injuries caused by these other factors were not attributed to dumped imports;
963 
(xx) Article 9.2 of the AD Agreement when it imposed MIPs on the investigated 
companies on the basis of a flawed fi nding that the "non-injurious" MIPs 
were less than the investigated comp anies' respective normal values, thus 
failing to ensure that anti-dumping duties were collected in the "appropriate amounts";
964 
(xxi) Article 9.4(ii) of the AD Agreement because there was no objective factual 
basis to support the conclusion that the MIPs imposed on non-investigated companies were lower than the weighted  average of the normal values for the 
investigated parties;
965  
(xxii)  Article 6.4 of the AD Agreement by failing to provide timely opportunities 
for interested parties to see:  
- all non-confidential information contained in 68 documents which 
were relevant to the presentation of their cases,966  
- a letter received from Dr. Jaffa,967  
- 15 Notes Verbales submitted to the investigating authority by the 
Norwegian government,968 and   
- relevant Eurostat information obtain ed by the investigating authority 
for purposes of the investigation. 
8.2 In light of the findings we have set out in th e foregoing sections of our Report, we conclude 
that the European Communities did not act inconsistently with: 
                                                      
960 Paras. 7.636 and 7.646. 
961 Paras. 7.640 and 7.646. 
962 Paras. 7.645 and 7.646. 
963 Para. 7.669. 
964 Para. 7.727. 
965 Para. 7.739. 
966 Para. 7.774. 
967 Para. 7.775. 
968 Para. 7.776.  WT/DS337/R 
 Page 335 
 
 
  (i) Articles 2.1 and 2.6 of the AD Agreement with respect to the product under 
consideration, nor as a consequence, Articles 2.1, 3.1, 3.2, 3.4, 3.5, 3.6, 5.1 and 5.4 of the AD Agreement;
969 
(ii) Articles 3.1, 3.4 and 3.5 of the AD Agreement by having had recourse to 
sampling in making its injury determination;970 
(iii) Article 6.10 of the AD Agreement in  excluding all non-producing exporters 
from the selection of companies to inv estigate pursuant to the second limited 
investigation technique described in the second sentence of Article 6.10;971  
(iv) Article 6.10 of the AD Agreement for not  having included Bremnes in the ten 
companies selected for investig ation pursuant to the second limited 
investigation technique described in the second sentence of Article 6.10;972 
(v) Articles 2.2 and 2.2.1 of the AD Agreement in excluding the domestic sales 
of certain investigated companies from the determination of normal value, on the grounds that they were outside of the ordinary course of trade by reason of price;
973 
(vi) Article 9.4(i) of the AD Agreement in attributing a 20.9 per cent margin of 
dumping to non-cooperating companies;974   
(vii) Article 6.8 and paragraph 1 of Annex II of the AD Agreement in applying 
"facts available" for the purpose of establishing the margin of dumping of 34 of 67 companies that did not receive the "sampling questionnaire" and which were members of the industry associations represented by the FHL;
975 
(viii) Articles 2.1, 2.2 and 2.2.1.1 of the AD  Agreement in making adjustments to 
the costs of production of [[XXX]], [[XXX]] and [[XXX]] for certain NRCs;
976 
(ix) Article 2.2 of the AD Agreement in rej ecting the adjustment for the cost of 
purchased smolt relating to salmon harvested outside of the period of 
investigation that was requested by [[XXX]];977 
(x) Article 2.2.2 of the AD Agreement in rejecting [[XXX]] reported selling 
expenses;978 
(xi) Articles 9.1, 9.2 and 9.3 of the AD Agreement and Article VI:2 of the GATT 
1994 by not adopting a mechanism to ensure that the MIPs imposed on investigated parties could not result in the collection of anti-dumping duties 
                                                     
 
969 Para. 7.76. 
970 Para. 7.129. 
971 Para. 7.181. 
972 Para. 7.195. 
973 Para. 7.279. 
974 Para. 7.433. 
975 Para. 7.461. 
976 Para. 7.488. 
977 Para. 7.570. 
978 Para. 7.599. WT/DS337/R 
Page 336  
 
  in excess of the ad valorem  equivalent of those parties' respective margins of 
dumping calculated in the original investigation;
979 
(xii) Articles 9.1, 9.2 and 9.3 of the AD Agre ement because of the fact that at 
certain price levels, the fixed anti-dumping duties imposed on investigated parties could result in the collection of anti-dumping duties in excess of the 
ad valorem  equivalent of those parties' respective margins of dumping 
calculated in the original investigation;
980   
(xiii) Article 6.4 of the AD Agreement by failing to provide timely opportunities 
for interested parties to see confidential information contained in 68 documents;
981 
(xiv) Articles 6.2 and 6.9 of the AD Agreement  with respect to disclosure of the 
essential facts regarding: 
- dumping by PFN, Hydroteck and Sinkaberg-Hansen, and minimum 
import prices,982 
- the definition of the domestic industry, causation and non-
attribution;983 and 
(xv) Article 12.2 and 12.2.2 of the AD Agreem ent in setting forth its conclusions 
as to the product under consideration in the Definitive Regulation.984 
8.3 Finally, in light of the findings  we have set out in paragraphs 8.1 (iv)-(vi), (ix), (x) and (xvi)-
(xxii), we make no findings, based on judicial economy, in respect of Norway's claims under: 
(i) Article 2.2 of the AD Agreement, in respect of the less-than-10 per cent 
profitable sales test applied by the EC to determine whether domestic sales 
are made outside of the ordinary course of trade;985  
(ii) Paragraph 6 of Annex II of the AD Ag reement, in relation to the EC's 
reliance on "facts available" for the pur pose of calculating the filleting costs 
of Grieg Seafood AS;986 
(iii) Paragraph 6 of Annex II of the AD Ag reement, in relation to the EC's 
reliance on "facts available" for the pur pose of calculating the finance costs 
of Grieg Seafood AS;987 
(iv) Articles 2.1 and 2.2 of the AD Agreement, as regards the upward adjustments 
made to the costs of production of [[XXX]] and [[XXX]] for NRCs on the basis of the three-year average of NRCs incurred between 2002 and 2004;
988  
                                                      
979 Paras. 7.749-7.752. 
980 Para. 7.761. 
981 Para. 7.773. 
982 Para. 7.803. 
983 Paras. 7.809 and 7.810. 
984 Para. 7.830. 
985 Para. 7.319. 
986 Para. 7.373. 
987 Para. 7.387.  WT/DS337/R 
 Page 337 
 
 
  (v) Article 2.2 of the AD Agreement, in relation to the EC's inclusion of a loss of 
NOK [[XXX]] million that the [[XXX]] incurred in 2002 on the write-down of shares held in [[XXX]] into its calculation of [[XXX]] finance costs;
989 
(vi) Article 3.5 of the AD Agreement, as regards the EC's consideration of 
dumped imports, price undercutting and pricing trends in its finding of 
injury;990 
(vii) Article 3.1 of the AD Agreement, in re lation to the EC's determination of 
causation;991 
(viii) Article VI:2 of the GATT 1994, in relation to the imposition of the MIPs on 
both investigated and non-investigated parties at the level of the "non-
injurious" MIPs;992 
(ix) Article 6.2 of the AD Agreement, as regards the failure to provide timely 
opportunities for interested parties to see all non-confidential information relevant to the presentation of their cases;
993 and  
(x) Articles 12.2 and 12.2.2 of the AD Agreement, in relation to the sufficiency 
of the notice given to interested parties of the definition of the domestic 
industry, the preliminary or final determ inations of injury and causation, the 
level of the minimum import prices, as well as the sufficiency of the explanation pertaining to the determination of dumping.
994   
B. RECOMMENDATION  
8.4 Pursuant to Article 3.8 of the DSU, in cases wh ere there is infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment of bene fits under that agreement.  Accord ingly, we conclude that to the 
extent the European Communities has acted inconsis tently with the provisions of the AD Agreement, 
it has nullified or impaired benefits accruing to Norway under that Agreement.  
8.5 We recommend that the Dispute Settlement Body  request the European Communities to bring 
its measure into conformity with its  obligations under the AD Agreement. 
8.6 Norway requests that the Panel suggest that  the EC implement the recommendations and 
rulings of the DSB by withdrawing the contested m easures.  Norway argues that the Panel would be 
justified in making such a suggestion in the present case because of the nature and scope of the EC's 
violations of the AD Agreement and of the GATT 1994.995 
8.7 The EC does not address Norway's specific requ est in respect of the implementation of the 
recommendations and rulings of the DSB.996 
                                                                                                                                                                     
988 Paras. 7.510 and 7.516. 
989 Para. 7.544. 
990 Paras. 7.636 and 7.646. 
991 Para. 7.669. 
992 Paras. 7.728 and 7.739. 
993 Para. 7.777. 
994 Paras. 7.831-7.834. 
995 Norway, FWS, para. 1081. 
996 EC, FWS, paras. 717-727. WT/DS337/R 
Page 338  
 
  8.8 Article 19.1 of the DSU provides: 
"Where a panel or the Appellate Body concl udes that a measure is inconsistent with a 
covered agreement, it shall recommend that the Member concerned bring the measure 
into conformity with that agreement.  In  addition to its recommendations, the panel or 
Appellate Body may suggest ways in which the Member concerned could implement 
the recommendations".  (Footnote omitted.) 
Thus, a panel must ("shall") reco mmend that a Member found to have acted inconsistently with a 
provision of a covered agreement "bring the measure into conformity", but has discretion to ("may") 
suggest ways in which a Member could implement that recommendation.  Clearly, however, a panel is not required to make a suggestion should it not deem it appropriate to do so, and in fact, most panels 
have not made such suggestions. 
 8.9 In this case, we exercise our discretion to no t make any suggestions concerning ways in 
which the EC could implement our recommendati on to bring its measure into conformity. 
 
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