WORLD TRADE  
ORGANIZATION   
WT/DS397/AB/R 
15 July 2011 
 (11-3500) 
 Original:   English 
  
 
     
 
    
 
    
 
EUROPEAN COMMUNITIES – DEFINI TIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STE EL FASTENERS FROM CHINA 
 
  
AB-2011-2 
  
 
    
 
    
Report of the Appellate Body 
  WT/DS397/AB/R 
 Page i 
 
 
  I.  Introduction .................................................................................................................. ............... 1  
II.  Arguments of the Participants and the Third Participants .......................................................... 5  
A.  Claims of Error by the European Union – Appellant  .................................................... 5  
1.  The Panel's Findings Regarding Article 9(5) of the Basic AD 
Regulation "As Such" ....................................................................................... 5  
(a)  The Scope of Article 9(5) of  the Basic AD Regulation ....................... 6  
(b)  Article 6.10 of the Anti-Dumping Agreement  ...................................... 8  
(c)  Article 9.2 of the Anti-Dumping Agreement  ...................................... 12  
(d)  Article I:1 of the GATT 1994 ............................................................ 16  
(e)  Article XVI:4 of the WTO Agreement  and Article 18.4 of the 
Anti-Dumping Agreement  .................................................................. 17  
2.  The Panel's Findings Regarding Article 9(5) of the Basic AD 
Regulation "As Applied" in the Fasteners Investigation ................................ 17  
3.  The Panel's Findings under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  ....................................................................................................... 18  
(a)  The "Information" Subject to the Obligations under 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement  ........................ 19  
(b)  Whether the "Information" Was Made Available to the 
Interested Parties in a "Timely" Manner within the Meaning of Article 6.4 of the Anti-Dumping Agreement  ...................................... 21  
(c)  The Panel's Finding under Article 6.2 of the Anti-Dumping 
Agreement  .......................................................................................... 22  
(d)  Conclusion ......................................................................................... 23  
4.  The Panel's Findings under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement  Regarding Non-Confidential Questionnaire Responses ............... 23  
(a)
  Non-Confidential Summaries of Domestic Producers' 
Questionnaire Responses ................................................................... 23  
(b)  Confidential Treatment of Information Obtained from Pooja 
Forge .................................................................................................. 25  
5.  The Panel's Findings under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the 
Complainants .................................................................................................. 28  
B.  Arguments of China – Appellee  ................................................................................... 29  
1.  The Panel's Findings Regarding Article 9(5) of the Basic AD 
Regulation "As Such" ..................................................................................... 29  
(a)  The Scope of Article 9(5) of  the Basic AD Regulation ..................... 29  
(b)  Article 6.10 of the Anti-Dumping Agreement  .................................... 31  
(c)  Article 9.2 of the Anti-Dumping Agreement  ...................................... 36  
(d)  Article I:1 of the GATT 1994 ............................................................ 42  
(e)  Article XVI:4 of the WTO Agreement  and Article 18.4 of the 
Anti-Dumping Agreement  .................................................................. 44  
2.  The Panel's Findings Regarding Article 9(5) of the Basic AD 
Regulation, "As Applied" in the Fasteners Investigation ............................... 44  
3.  The Panel's Findings under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  ....................................................................................................... 45  
(a)  The "Information" Subject to the Obligations under 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement  ........................ 45  
(b)  Whether the "Information" Was Made Available to the 
Interested Parties in a "Timely" Manner within the Meaning of 
Article 6.4 of the Anti-Dumping Agreement  ...................................... 48  WT/DS397/AB/R 
Page ii  
 
  (c)  The Panel's Finding under Article 6.2 of the Anti-Dumping 
Agreement  .......................................................................................... 50  
(d)  Conclusion ......................................................................................... 51  
4.  The Panel's Findings under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement  Regarding Non-Confidential Questionnaire Responses ............... 51  
(a)  Non-Confidential Summaries of Domestic Producers' 
Questionnaire Responses ................................................................... 51  
(b)  Confidential Treatment of Information Obtained from 
Pooja Forge ........................................................................................ 53  
5.  The Panel's Findings under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the 
Complainants .................................................................................................. 56  
C.  Claims of Error by China – Other Appellant  ............................................................... 57  
1.  The Panel's Findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement  ....................................................................................................... 57  
(a)  Exclusion of Certain Producers ......................................................... 58  
(b)  "A Major Proportion" of the Total Domestic Production .................. 64  
(c)  The Representativeness of the Sample of Domestic Producers 
in the Injury Determination ................................................................ 67  
2.  The Panel's Findings under Article 2.4 of the Anti-Dumping Agreement  ....... 69 
(a)  The Panel's Treatment of China's Argument ..................................... 69  
(b)  Physical Differences .......................................................................... 71  
(c)  Quality Differences ............................................................................ 74  
3.  The Panel's Findings under Articles 6.5, 6.2, and 6.4 of the 
Anti-Dumping Agreement  Regarding the Disclosure of the Identity of 
the Complainants ............................................................................................ 75  
(a)  The Complainants' "Good Cause" Showing ...................................... 75  
(b)  Disclosure under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  .......................................................................................... 77  
4.  The Panel's Findings that the MET/IT Claim Form Was Not a 
"Questionnaire" for Purposes of Article 6.1.1 of the Anti-Dumping 
Agreement  ....................................................................................................... 78  
D.  Arguments of the European Union – Appellee  ............................................................ 80  
1.  The Panel's Findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement  ....................................................................................................... 80  
(a)  Exclusion of Certain Producers ......................................................... 80  
(b)  "A Major Proportion" of the Total Domestic Production .................. 86  
(c)  The Representativeness of the Sample of Domestic Producers 
in the Injury Determination ................................................................ 90  
2.  The Panel's Findings under Article 2.4 of the Anti-Dumping Agreement  ....... 91 
(a)  The Panel's Treatment of China's Argument ..................................... 91  
(b)  Physical Differences .......................................................................... 92  
(c)  Quality Differences ............................................................................ 95  
3.  The Panel's Findings under Article 6.5, 6.2, and 6.4 of the 
Anti-Dumping Agreement  Regarding the Disclosure of the Identity of 
the Complainants ............................................................................................ 96  
(a)  The Complainants' "Good Cause" Showing ...................................... 97  
(b)  Disclosure under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  .......................................................................................... 99   WT/DS397/AB/R 
 Page iii 
 
 
  4.  The Panel's Findings that the MET/IT Claim Form Was Not a 
"Questionnaire" for Purposes of Article 6.1.1 of the Anti-Dumping 
Agreement  ....................................................................................................... 99  
E.  Arguments of the Third Participants  .......................................................................... 100  
1.  Brazil ............................................................................................................. 100  
2.  Colombia ....................................................................................................... 102  
3.  Japan ............................................................................................................. 104  
4.  United States ................................................................................................. 106  
III.  Issues Raised in This Appeal ..................................................................................................  109 
IV.  The Panel's Findings Regarding Article 9(5)  of the Basic AD Regulation "As Such" ........... 114  
A.  Introduction  ............................................................................................................... 114  
B.  The Measure at Issue  ................................................................................................. 115  
C.  Section 15 of China's Accession Protocol .................................................................. 119  
D.  The Scope of Article 9(5) of the Basic AD Regulation  ............................................... 123  
E.  Articles 6.10 and 9.2 of the Anti-Dumping Agreement  .............................................. 129  
1.  Interpretation of Articles 6.10 and 9.2 of the Anti-Dumping Agreement  ...... 129 
(a)  Article 6.10 of the Anti-Dumping Agreement  .................................. 129  
(b)  Article 9.2 of the Anti-Dumping Agreement  .................................... 135  
2.  Application of Articles 6.10 and 9.2 of the Anti-Dumping Agreement  ......... 142  
(a)  Whether the European Union Is  Entitled to Presume that in 
NMEs the State and the Exporters Constitute a Single Entity ......... 143  
(b)  Whether in NMEs the State and the Exporters Can Be 
Considered as a Single Entity .......................................................... 148  
3.  Conclusions under Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement  ..................................................................................................... 152  
F.  Article I:1 of the GATT 1994 .................................................................................... 153  
G.  Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping 
Agreement  .................................................................................................................. 156  
V.  The Panel's Findings Regarding Article 9(5)  of the Basic AD Regulation "As Applied" 
in the Fasteners Investigation ................................................................................................ .. 157 
VI.  China's Other Appeal of the Panel's Fi ndings under Articles 4.1 and 3.1 of the 
Anti-Dumping Agreement  ....................................................................................................... 160  
A.  Introduction  ............................................................................................................... 160  
B.  Interpretation of Articles 4.1 and 3.1 of the Anti-Dumping Agreement  ..................... 160  
C.  Whether 27 Per Cent of Total Domestic Production in the Fasteners 
Investigation Constitutes "a major proportion" within the Meaning of 
Article 4.1 of the Anti-Dumping Agreement  .............................................................. 164  
D.  The Consistency of the Sample with Ar ticle 3.1 of the Anti-Dumping Agreement  ..... 170 
E.  Exclusion of Certain Producers  ................................................................................. 173  
1.  The Exclusion of Producers Who Did Not Support the Complaint .............. 173  
2.  The Exclusion of Producers Who Did Not Respond within 15 Days ........... 180  
3.  The Exclusion of Producers under Article 3.1 of the Anti-Dumping 
Agreement  ..................................................................................................... 184  WT/DS397/AB/R 
Page iv  
 
  F.  Conclusion  ................................................................................................................. 185  
VII. Appeal of the Panel's Findings Regarding As pects of the Dumping Determination in the 
Fasteners Investigation under Articles 6.4, 6.2, and 2.4 of the Anti-Dumping Agreement  ..... 186 
A.  Introduction  ............................................................................................................... 186  
B.  The Relevant Factual Background  ............................................................................. 186  
C.  The Relevant Interpretation of Articles 6.4 and 2.4 of the Anti-Dumping 
Agreement  .................................................................................................................. 189  
D.  The European Union's Appeal of the Panel's Findings under Articles 6.4 
and 6.2 of the Anti-Dumping Agreement  ................................................................... 195  
E.  China's Other Appeal of the Panel's Findings under Article 2.4 of the 
Anti-Dumping Agreement  .......................................................................................... 201  
F.  Conclusion  ................................................................................................................. 208  
VIII. Confidential Treatment and the Disclosure of  Information under Articles 6.5 and 6.5.1 
and Articles 6.2 and 6.4 of the Anti-Dumping Agreement  ...................................................... 209  
A.  Introduction  ............................................................................................................... 209  
B.  Confidential Treatment of Information under Articles 6.5 and 6.5.1 of the 
Anti-Dumping Agreement  .......................................................................................... 211  
C.  Domestic Producers' Statements of the Reasons Why Summarization of 
Confidential Information Was Not Possible  .............................................................. 216  
D.  Confidential Treatment of Informati on Submitted by the Analogue Country 
Producer, Pooja Forge  .............................................................................................. 221  
E.  Confidential Treatment of the Identity of the Complainants  ...................................... 228  
F.  Whether China's Claim under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement Regarding the Non-Disclosure of the Identity of the Complainants 
Was within the Panel's Terms of Reference  ............................................................... 236  
IX.  Time-Limit for Submission of the MET/IT Claim Form ........................................................ 238  
X. 
Findings and Conclusion ....................................................................................................... .. 249 
 
ANNEX I Notification of an Appeal by the European Union, WT/DS397/7  ANNEX II Notification of an Other Appeal by China, WT/DS397/8   WT/DS397/AB/R 
 Page v 
 
 
  CASES CITED IN THIS REPORT 
 
Short title Full case title and citation 
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping 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 Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Desiccated Coconut Panel Report, Brazil – Measures Affecting Desiccated Coconut , WT/DS22/R, 
adopted 20 March 1997, as upheld by Appellate Body Report WT/DS22/AB/R, DSR 1997:I, 189 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 D ecember 2007, DSR 2007:IV, 1527 
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043 
Chile – Price Band System 
(Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the 
DSU by Argentina , WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, 
513 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts , WT/DS339/AB/R, WT /DS340/AB/R, WT/DS342/AB/R, adopted  
12 January 2009 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted  
5 April 2001, DSR 2001:VII, 3243 
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 1997:II, 591 
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas  ("EC – Bananas III "), WT/DS27/R/ECU (Ecuador) / 
WT/DS27/R/GTM, WT/DS27/R/HND (Guatemala and Honduras) / WT/DS27/R/MEX (Mexico) / WT/DS27/R/USA (US), adopted 25 September 
1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 
695 to DSR 1997:III, 1085 
EC – Bananas III (Ecuador) (Article 22.6 – EC) Decision by th e Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Arbitration by 
the European Communities under Article 22.6 of the DSU , 
WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2237 
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, 2077 WT/DS397/AB/R 
Page vi  
 
  Short title Full case title and citation 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, 9157 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, 2031 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adop ted 11 December 2006,  DSR 2006:IX, 3791 
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, as modified by Appellate Body Report WT/DS219/AB/R, DSR 
2003:VII, 2701 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 1 
June 2011 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping 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, 
DSR 1998:I, 9  
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 – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adop ted 10 December 2003,  DSR 2003:IX, 4391 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted  
17 December 2007, DSR 2007:VII, 2703 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, 10637  WT/DS397/AB/R 
 Page vii 
 
 
  Short title Full case title and citation 
Korea – Certain Paper 
(Article 21.5 – Indonesia) Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia – Recourse to Article 21.5 of the DSU by Indonesia , 
WT/DS312/RW, adopted 22 October 2007, DSR 2007:VIII, 3369 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, DSR 
2000:I, 3 
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products , WT/DS98/R and Corr.1, adopted 12 January 2000, as 
modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, 49 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted  
20 December 2005, DSR 2005:XXII, 10853 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005,  
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 11007 
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, DSR 2001:XIII, 6675 
Mexico – Olive Oil Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from 
the European Communities , WT/DS341/R, adopted 21 October 2008, DSR 
2008:IX, 3179 
Mexico – Steel Pipes and Tubes Panel Report, Mexico – Anti-Dumping Duties on  Steel Pipes and Tubes from 
Guatemala , WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, 1207 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 
2000:X, 4793 
US – Anti-Dumping and 
Countervailing Duties (China) Panel Report, United States – Definitive Anti-Dumping and Countervailing 
Duties on Certain Products from China , WT/DS379/R, adopted 25 March 2011, 
as modified by Appellate Body Report WT/DS379/AB/R 
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 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 
2008, DSR 2008:X, 3507 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – Corrosion-Resistant 
Steel Sunset Review Appellate Body Report, United States – Sunset R eview 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 – Countervailing 
Measures on Certain EC 
Products Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, adopted 
8 January 2003, DSR 2003:I, 5 WT/DS397/AB/R 
Page viii  
 
  Short title Full case title and citation 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 
1619 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
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 Appellate 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, adopted 16 May 2001, DSR 2001:IX, 
4051 
US – Lamb Panel Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/R, 
WT/DS178/R, adopted 16 May 2001, as modified by Appellate Body Report 
WT/DS177/AB/R, WT/DS178/AB/R, DSR 2001:IX, 4107 
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Oil Country Tubular 
Goods Sunset Reviews (Article 21.5 – Argentina) Panel 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/RW, adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX-X, 3609 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589 
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 – Upland Cotton  
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DSR 2008:III, 809 
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 – Zeroing (Japan)  (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009 
  WT/DS397/AB/R 
 Page ix 
 
 
  ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  
Basic AD Regulation Council Regulation (EC) No. 1225/2009 of 30 November 2009 on 
protection against dumped imports from countries not members of the European Community, Official Journal of the European Union , L Series, 
No. 343 (22 December 2009) 51, and Corrigendum, Official Journal of 
the European Union , L Series, No. 7 (12 January 2010) 23 (Panel Exhibit 
CHN-3) 
China's Accession Protocol Protocol on the Accession of the People's Republic of China, WT/L/432 
China's Accession 
Working Party Report Report of the Working Party on the Accession of China, 
WT/ACC/CHN/49 and WT/ACC/CHN/49/Corr.1 
Definitive Regulation Council Regulation (EC)  No. 91/2009 of 26 January 2009 imposing a 
definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China, Official Journal of the 
European Union , L Series, No. 29 (31 January 2009) 1 (Panel Exhibit 
CHN-4) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
GATT 1994 General Agreement on Tariffs and Trade 1994 
General Disclosure 
Document European Commission, Anti-dumping proceeding concerning imports of 
certain iron or steel fasteners originating in the People's Republic of China, Proposal to impose definitive measures, 3 November 2008) (Panel Exhibit CHN-18) 
Information Document European Commission, Anti-dumping proceeding concerning imports of 
certain iron or steel fasteners originating in the People's Republic of 
China, Non-imposition of provisiona l anti-dumping measures, 4 August 
2008 (Panel Exhibit CHN-17) 
IT Individual treatment 
IT suppliers Non-market economy supplier s that qualify for individual treatment 
Kennedy Round 
Anti-Dumping Code Kennedy Round  Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade , BISD 15S/24, entered into force 
1 July 1968 
MET Market economy treatment 
MFN Most favoured nation 
NME Non-market economy 
Panel Report Panel Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/R 
PCN Product Control Number WT/DS397/AB/R 
Page x  
 
  Abbreviation Description 
SCM Agreement Agreement on Subsidies and Countervailing Measures  
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 1969, 
1155 UNTS 331;  8 International Legal Materials 679  
Working Procedures  Working Procedures for Appellate Review , WT/AB/WP/6, 16 August 
2010 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Es tablishing the World Trade Organization   WT/DS397/AB/R 
 Page 1 
 
 
  WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
European Communities1 – Definitive 
Anti-Dumping Measures on Certain Iron or 
Steel Fasteners from China  
 European Union, Appellant/Appellee 
China, Appellee/Other Appellant 
 
Brazil, Third Participant 
Canada, Third Participant 
Chile, Third Participant 
Colombia, Third Participant 
India, Third Participant 
Japan, Third Participant 
Norway, Third Participant 
Separate Customs Territo ry of Taiwan, Penghu, 
 Kinmen and Matsu, Third Participant   
Thailand, Third Participant 
Turkey, Third Participant 
United States, Third Participant 
  AB-2011-2 
  Present:   Oshima, Presiding Member 
 Hillman, Member 
 Unterhalter, Member   
 I. Introduction 
1. The European Union and China each appeals certa in issues of law and legal interpretations 
developed in the Panel Report, European Communities – Definitive Anti-Dumping Measures on 
Certain Iron or Steel Fasteners from China  (the "Panel Report").
2  The Panel was established on 
23 October 2009 to consider a complaint by Ch ina concerning the consistency "as such" of 
Article 9(5) of Council Regulation (EC) No. 384/96  of 22 December 1995, as amended, on protection 
                                                      
1This dispute began before the entry into force of the Treaty of Lisbon amending the Treaty on 
European Union and the Treaty establishing the European Community  (done at Lisbon, 13 December 2007) on 
1 December 2009.  On 29 November 2009, the World Trade Organization received a Verbal Note (WT/L/779) 
from the Council of the European Union and the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon , as of 1 December 2009, the "Europe an Union" replaces and succeeds the 
"European Community".  On 13 July  2010, the World Trade Organizati on received a second Verbal Note 
(WT/Let/679) from the Council of the European Union confirming that, with  effect from 1 December 2009, the 
European Union replaced the European Community and assumed all the rights and obligations of the European 
Community in respect of all Agreements for which the Di rector-General of the Worl d Trade Organization is the 
depositary and to which the European Community is a si gnatory or a contracting party.  We understand the 
reference in the Verbal Notes to the "European Communi ty" to be a reference to the "European Communities".  
The European Union requested that the Panel replace "European Communities"  with "European Union" in the 
title of the case, but the Panel decided not to make this change because China's request for consultations and for 
the establishment of a panel both occurred prior to 1 D ecember 2009 and re ferred to the European Communities, 
as did the decision of the DSB establis hing the Panel.  However, all the submissions of the parties before the 
Panel came after that date and referred to the European Un ion, and the Panel made its findings with reference to 
the European Union. (Panel Report, paras. 6.4 and 6.5)  In this Report, we too refer to the European Union. 
2WT/DS397/R, 3 December 2010. WT/DS397/AB/R 
Page 2  
 
  against dumped imports from countries not members of the European Community
3 with the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994  (the 
"Anti-Dumping Agreement "), the General Agreement on Tariffs and Trade 1994  (the "GATT 1994"), 
and the Marrakesh Agreement Establishi ng the World Trade Organization  (the " WTO Agreement "), 
and the consistency of this m easure, "as applied" in the fast eners investigation, with the Anti-Dumping 
Agreement ;  and the consistency of Council Regula tion (EC) No. 91/2009 of 26 January 2009 
imposing a definitive anti-dumping duty on imports of cer tain iron or steel fasteners originating in the 
People's Republic of China (the "Definitive Regulation")4 with the Anti-Dumping Agreement .  
Council Regulation (EC) No. 384/96 was subsequently  repealed and replaced by Council Regulation 
(EC) No. 1225/2009 of 30 November 2009, and Ch ina's submissions to the Panel addressed Council 
Regulation (EC) No. 1225/2009 (the "Basic AD Regulation").5 
2. Before the Panel, China challenged the cons istency of Article 9(5) of the Basic AD 
Regulation, "as such", with Articles 6.10, 9.2, 9.3, 9.4, and 18.4 of the Anti-Dumping Agreement , 
Articles I:1 and X:3(a) of the GA TT 1994, and Article XVI:4 of the WTO Agreement  because it 
requires exporters from non-market economies to satisfy  certain criteria in order to receive individual 
dumping margins and individual duty rates.  China also challenged Article 9(5) of the Basic AD 
Regulation, "as applied" in the fasteners investigation, under Articles 6.10, 9.2, and 9.4 of the Anti-Dumping Agreement .  Additionally, China challenged vari ous substantive and procedural aspects 
of the Definitive Regulation, imposing anti-dumpi ng duties in the fasteners investigation, under 
Articles 2, 3, 4, 5, 6, and 12 of the Anti-Dumping Agreement .  These included the Commission's 
determinations regarding standi ng, the definition of the domestic industry, the product under 
consideration, dumping and price unde rcutting, volume and impact of dumped imports, and causation.  
Procedurally, China's challenges dealt with the di sclosure by the Commission of information relevant 
to the investigation, the treatment of confidential information, and the procedural aspects of individual 
treatment claims. 
3. The Panel Report was circulated to Members of the World Trade Organization (the "WTO") 
on 3 December 2010.  For the reasons set out in its  Report, the Panel made the following findings. 
                                                      
3Official Journal of the European Communities , L Series, No. 56 (6 March 1996) 2 (Panel Exhibit 
CHN-1). 
4Official Journal of the European Union , L Series, No. 29 (31 January 2009) 1 (Panel Exhibit CHN-4). 
5Official Journal of the European Union , L Series, No. 343 (22 December 2009) 51, and Corrigendum, 
Official Journal of the European Union , L Series, No. 7 (12 January 2010) 23 (Panel Exhibit CHN-3).  WT/DS397/AB/R 
 Page 3 
 
 
  The Panel found that the following claims we re not within its terms of reference: 
(a) the claim under Article 2.6 of the Anti-Dumping Agreement  with respect to the 
definition of like product; 
(b) the claim under Article 6.9 of the Anti-Dumping Agreement  with respect to the 
alleged non-disclosure of aspects of the normal value determination;  and 
(c) the claim under Article 6.9 of the Anti-Dumping Agreement  with respect to the 
procedural aspects of the domestic industry definition. 
 The Panel found that the European Union acted inconsistently with: 
(a) Articles 6.10, 9.2, and 18.4 of the Anti-Dumping Agreement , Article I:1 of the 
GATT 1994, and Article XVI:4 of the WTO Agreement  with respect to Article 9(5) of 
the Basic AD Regulation; 
(b) Articles 6.10 and 9.2 of the Anti-Dumping Agreement  with respect to the individual 
treatment determinations in the fasteners investigation; 
(c) Articles 3.1 and 3.2 of the Anti-Dumping Agreement  with respect to the volume of 
dumped imports considered in the fasteners investigation; 
(d) Articles 3.1 and 3.5 of the Anti-Dumping Agreement  with respect to the causation 
analysis in the fasteners investigation; 
(e) Articles 6.4 and 6.2 of the Anti-Dumping Agreement  with respect to certain aspects of 
the normal value determination; 
(f) Article 6.5.1 of the Anti-Dumping Agreement  with respect to non-confidential 
versions of questionnaire responses of two Eu ropean producers and Article 6.5 of the 
Anti-Dumping Agreement  with respect to confidential treatment of information in the 
questionnaire response of the Indian producer; 
(g) Article 6.5 of the Anti-Dumping Agreement  with respect to the confidential treatment 
of the Eurostat data on total EU production of fasteners;  and 
(h) Article 6.5 of the Anti-Dumping Agreement  by disclosing confidential information. 
 The Panel found that China had not establis hed that the European Union had acted 
inconsistently with: 
(a) Article 5.4 of the Anti-Dumping Agreement  with respect to the standing determination 
in the fasteners investigation; 
(b) Articles 4.1 and 3.1 of the Anti-Dumping Agreement  with respect to the definition of 
domestic industry in the fasteners investigation; 
(c) Articles 2.1 and 2.6 of the Anti-Dumping Agreement  with respect to the product under 
consideration in the fasteners investigation; WT/DS397/AB/R 
Page 4  
 
  (d) Article 2.4 of the Anti-Dumping Agreement  with respect to the dumping 
determination in the fasteners investigation; 
(e) Articles 3.1 and 3.2 of the Anti-Dumping Agreement  with respect to the price 
undercutting determination in the fasteners investigation; 
(f) Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement  with respect to the 
consideration of imports from non-sample d/unexamined producers and exporters as 
dumped in the fasteners investigation; 
(g) Articles 3.1 and 3.4 of the Anti-Dumping Agreement  with respect to the consideration 
of the consequent impact of dumpe d imports on the domestic industry; 
(h) Articles 6.5, 6.4, and 6.2 of the Anti-Dumping Agreement  in connection with the 
non-disclosure of the identity of the complainants and the supporters of the 
complaint; 
(i) Articles 6.2 and 6.4 of the Anti-Dumping Agreement  with respect to the confidential 
treatment of the Eurostat data on total EU production of fasteners; 
(j) Articles 6.2 and 6.4 of the Anti-Dumping Agreement  with respect to the procedural 
aspects of the domestic industry definition;  and 
(k) Article 6.1.1 of the Anti-Dumping Agreement  with respect to the amount of time 
provided for responses to requests for information. 
 The Panel exercised judicial economy with regard to the following claims: 
(a) Articles 9.3 and 9.4 of the Anti-Dumping Agreement  and Article X:3(a) of the 
GATT 1994 with respect to Article 9(5) of the Basic AD Regulation; 
(b) Article 9.4 of the Anti-Dumping Agreement  with respect to the individual treatment 
determinations in the fasteners investigation; 
(c) Articles 3.4 and  3.5 of the Anti-Dumping Agreement  with respect to the volume of 
dumped imports considered in the fasteners investigation; 
(d) Article 6.5.1 of the Anti-Dumping Agreement  with respect to the questionnaire 
response of the Indian producer;  
(e) Articles 6.2 and 6.4 of the Anti-Dumping Agreement  with respect to the 
non-confidential versions of questionnaire  responses of two European producers and 
the confidential treatment of information in the questionnaire response of the Indian 
producer;  and 
(f) Article 12.2.2 of the Anti-Dumping Agreement  with respect to the procedural aspects 
of the individual treatment determinations. 
4. On 25 March 2011, the European Union notified th e Dispute Settlement Body (the "DSB") of 
its intention to appeal certain issues of la w covered in the Panel Report and certain legal 
interpretations developed by the Panel,  pursuant to Articles 16.4 and 17 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes  (the "DSU"), and filed a Notice of  WT/DS397/AB/R 
 Page 5 
 
 
  Appeal6 and an appellant's submission pursuant to Rules 20 and 21, respectively, of the Working 
Procedures for Appellate Review  (the " Working Procedures ").7 
5. On 30 March 2011, China notified the DSB of its  intention to appeal certain issues of law 
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel, pursuant to 
Articles 16.4 and 17 of the DSU, and filed a Notice of Other Appeal8 and an other appellant's 
submission pursuant to Rule 23(1) and (3), respectively, of the Working Procedures .  
On 12 April 2011, the European Union and China each filed an appellee's submission.9  O n  
15 April 2011, Brazil, Colombia, Japan, and the United States each filed a third participant's 
submission.10  On the same day, Canada, Chile, India, Norway, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu,  and Thailand each notified its in tention to appear at the oral 
hearing as a third participant.11  On 18 April 2011, Turkey notified its intention to appear at the oral 
hearing as a third participant.12 
6. The oral hearing in this appeal was held on 4-6 May 2011.  The participants and six of the 
third participants (Brazil, Colombia, India, Jap an, Norway, and the United States) made oral 
statements.13  The participants and third participants r esponded to questions posed by the Members of 
the Appellate Body Division hearing the appeal. 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the European Union – Appellant 
1. The Panel's Findings Regarding Article  9(5) of the Basic AD Regulation 
"As Such" 
7. The European Union argues that the Panel erred in finding that Article 9(5) of the Basic 
AD Regulation is inconsistent with Articles 6.10, 9.2, and 18.4 of the Anti-Dumping Agreement , 
Article I:1 of the GATT 1994, and Article XVI:4 of the WTO Agreement14, and asks the Appellate 
Body to reverse these findings by the Panel.15 
                                                      
6WT/DS397/7 (attached as Annex I to this Report).   
7WT/AB/WP/6, 16 August 2010. 
8WT/DS397/8 (attached as Annex II to this Report). 
9Pursuant to Rules 22 and 23(4) of the Working Procedures . 
10Pursuant to Rule 24(1) of the Working Procedures . 
11Pursuant to Rule 24(2) of the Working Procedures . 
12Pursuant to Rule 24(4) of the Working Procedures . 
13Turkey made concluding remarks at the oral hearing. 
14European Union's appellant's submission, para. 14. 
15European Union's appellant's submission, para. 227. WT/DS397/AB/R 
Page 6  
 
  (a) The Scope of Article 9(5) of the Basic AD Regulation 
8. The European Union claims that the Panel erre d in finding that Article 9(5) of the Basic 
AD Regulation concerns not only the imposition of anti-dumping duties but also the calculation of 
margins of dumping, and that the Panel erred in the application of Article 6.10 of the Anti-Dumping 
Agreement  when finding that Article 9(5) of the Basic AD Regulation is, "as such", inconsistent with 
that provision.  The European Union therefore conte nds that the Panel's finding of inconsistency with 
Article 6.10 was premised on an incorrect unders tanding of the scope of Article 9(5), since 
Article 6.10 addresses the determination of margins of dumping, while Article 9(5) is directed at the 
imposition of anti-dumping duties.
16  The European Union asks the Appellate Body to reverse these 
findings of the Panel.17 
9. The European Union argues that, although the Panel considered that the meaning of 
Article 9(5) of the Basic AD Regulation was a "factual matter", this error can be reviewed by the 
Appellate Body because the examination by a pane l of the municipal law of a WTO Member for 
purposes of determining whether the Member has complied with its WTO obligations is a legal 
characterization by a panel, which is subject to  appellate review under Article 17.6 of the DSU.18 
10. According to the European Union, an examinati on of Article 9(5) of the Basic AD Regulation 
on its face, based on its text and in the context of  other articles of the Basic AD Regulation, shows 
that Article 9(5) deals exclusively with the imposition of anti-dumping duties.19  The European Union 
contends that, in view of the "as such" nature of  China's claim, any disagreement between the parties 
on the scope of the measure at issue should have been  resolved by examining Article 9(5) on its face.  
Considering that the text of Article 9(5) makes it clear that, on its face, this provision relates to only 
the individual or country-wide imposition of anti-du mping duties, in the European Union's view, the 
Panel should have ended its examinat ion of the scope of Article 9(5) at this stage.  The European 
Union adds that, when Article 9(5) is read in  the context of other provisions of the Basic 
AD Regulation, the same conclusion is reach ed regarding its meaning and content.20 
11. The European Union claims that the Panel e rred in concluding that nothing in the other 
articles of the Basic AD Regulation cited by the European Union "pertains to whether or not an 
individual margin will be calculated for any fore ign producer or exporter", and asserts that other 
                                                      
16European Union's appellant's submission, para. 88. 
17European Union's appellant's submission, para. 110. 
18European Union's appellant's submission, para. 89 (referring to Appellate Body Report, US – 
Section 211 Appropriations Act , para. 105;  and Appellate Body Reports, China – Auto Parts , para. 225). 
19European Union's appellant's submission, para. 90. 
20European Union's appellant's submission, para. 95.  WT/DS397/AB/R 
 Page 7 
 
 
  provisions of the Basic AD Regulation address directly or indirectly the separate threshold issue of the 
determination of individual dumping margins.  The Eu ropean Union makes reference to:  Article 2(7) 
of the Basic AD Regulation, which determines wh ether suppliers should receive market economy 
treatment ("MET") and whether individual margins of dumping will be calculated for these suppliers;  
Article 11(4) of the Basic AD Regulation, which re quires the calculation of individual margins of 
dumping in the context of new exporters' reviews;  and Article 11(8) of the Basic AD Regulation, 
which requires that margins of dumping be establishe d on an individual basis in the context of refund 
proceedings.21  According to the European Union, the numerous references in the Basic 
AD Regulation to the determination of individual  dumping margins make sense in view of the 
obligation set out in Article 9(4) to establish the ceiling for the amount of anti-dumping duties by, inter alia , reference to the margin of dumpi ng established.  It is thus Artic le 9(4) that indicates that the 
EU authorities should calculate an i ndividual dumping margin per supplier.
22 
12. The European Union further contends that th e operation of Article 9(5) of the Basic 
AD Regulation in the context of anti-dumping inves tigations confirms that this provision addresses 
specifically the imposition of anti-dumping duties.  The European Union explains that Article 9(5) 
serves to identify the relevant supplier in the context of imports from non-market economies 
("NMEs") (that is, an independent supplier or the State and its related or controlled export entities) 
and that other relevant rules determine the proper duty rate for individual treatment ("IT") suppliers 
and non-IT suppliers.  The Panel's finding that Ar ticle 9(5) determines whether an individual or 
country-wide dumping margin will be established for an exporter from an NME ignores the fact that 
the determination of the dumping margin for a supplier entitled to an individual dumping margin 
flows from the rule contained in Article 9(4) of th e Basic AD Regulation, which China did not specify 
as the measure at issue in the present dispute.23  Moreover, according to the European Union, an 
individual duty is not automatica lly based on an individual dumping margin, which serves as a ceiling 
for the amount of the anti-dumping duty.24 
13. Finally, the European Union contends that, ev en if the determination of dumping and the 
imposition of duties are closely related issues, this does not mean that Article 9(5), which specifically 
addresses the imposition of anti-dumping duties,  also incorporates by implication any other related 
                                                      
21European Union's appellant's submission, para. 96. 
22European Union's appellant's submission, para. 97. 
23European Union's appellant's submission, para. 104. 
24European Union's appellant's submission, para. 105. WT/DS397/AB/R 
Page 8  
 
  issues that may derive as a consequence of its opera tion.  The European Union emphasizes that such 
an approach should be rejected, particularly in the case of "as such" claims.
25 
(b) Article 6.10 of the Anti-Dumping Agreement 
14. The European Union claims that the Panel e rred in its interpretation and application of 
Article 6.10 of the Anti-Dumping Agreement and failed to comply with Article 11 of the DSU in 
finding that Article 9(5) of the Basic AD Regula tion is inconsistent with Article 6.10 of the 
Anti-Dumping Agreement  because  it conditions the calculation of individual dumping margins for 
producers from NMEs on the fulfilment of the IT test.26  The European Union requests the 
Appellate Body to reverse this finding by the Panel.27 
15. The European Union contends that Article  6.10, first sentence, does not impose an 
unqualified obligation to determine individual dumping margins.  The term "as a rule", which is 
inserted after the word "shall", indicates that the obl igation is only a general principle and not a strict 
obligation that is to be complied with in any and all circumstances.28  Article 6.10 should not be read 
as being structured in the manner of a "rule/only exception";  rather, it expresses a preference for determining individual dumping margins and then refe rs to one affirmative situation (sampling) where 
such a preference "may" not be followed.
29  According to the European Union, there is no direct link 
between the general principle of the first sente nce and the possibility of sampling in the second 
sentence of Article 6.10. 
16. The European Union points out that earlier pane ls have interpreted Article 6.10 in a more 
flexible manner than this Panel, as not requiring the calculation of individual dumping margins for each known exporter or producer in all cases.  Th e European Union refers to the panel in Korea – 
Certain Paper , which interpreted the term  "exporter and producers" in Article 6.10 as permitting the 
combination of separate entities in a single supp lier that is the "actual source of price 
discrimination".
30  The European Union also  refers to the panel in EC – Salmon (Norway) , which 
found that the term "exporter and producers" in Artic le 6.10 means that an investigating authority may 
                                                      
25European Union's appellant's submission, para. 107. 
26European Union's appellant's submission, para. 112. 
27European Union's appellant's submission, para. 157. 
28European Union's appellant's submission, para. 114. 
29European Union's appellant's submission, para. 117. 
30European Union's appellant's submission, para. 120 (referring to Panel Report, Korea – Certain 
Paper , para. 7.161).  WT/DS397/AB/R 
 Page 9 
 
 
  calculate dumping margins based on the producer's pricing behaviour, notwit hstanding the existence 
of a known exporter for the product under investigation.31 
17. According to the European Union,  the fact that Article 6.10, first sentence, does not contain a 
strict rule, as the Panel found, is further supporte d by the existence of other situations where the 
preference does not need to be followed.  In partic ular, the European Union refers to the following 
examples:  (1) a non-cooperating exporter or produ cer for whom the dumping margin is calculated 
based on facts available, pursuant to Article 6.8 of the Anti-Dumping Agreement ;  (2) an exporter that 
exports the product of another supp lier (mere "trader") and that is assigned the dumping margin of the 
actual supplier;  (3) the situation where the act ual producer of the produc t concerned cannot be 
identified;  (4) the situation where an investigati ng authority has to calculate a single dumping margin, 
based on constructed normal value and export price, due to insufficient information;  and (5) a known 
producer, related to an exporter or producer already subject to anti-dumping duties, that did not export 
the product during the period of investigation and that  would not be entitled to an individual dumping 
margin in the investigation, nor in the contex t of a review pursuant to Article 9.5 of the Anti-Dumping 
Agreement . 
18. The European Union observes that the Panel dismissed these examples on the grounds that 
they are directly based on other provisions of the Anti-Dumping Agreement , and that, "as such", they 
could not be considered even potentially as excep tions to the obligation to calculate individual 
dumping margins but rather as specific rights an d obligations otherwise provided for in the 
Anti-Dumping Agreement .  The European Union contends that, in doing so, the Panel ignored basic 
principles of treaty interpretation, because, if other provisions of the Anti-Dumping Agreement  (such 
as Article 6.8) directly and expressly permit depa rting from the "mandatory rule" contained in 
Article 6.10, first sentence, the only conclusion that the treaty interpreter can reach is that Article 6.10 
cannot be interpreted in such a rigid manner.32  The European Union submits that Article 9(5) of the 
Basic AD Regulation addresses a situation other than sampling where the preference expressed in 
Article 6.10 does not need to be followed.  Therefor e, Article 9(5) of the Basic AD Regulation is "as 
such" consistent with Article 6.10 of the Anti-Dumping Agreement . 
19. The European Union claims that, even assumi ng that Article 6.10 is understood to contain a 
strict rule to requiring the determination of in dividual dumping margins for each known exporter or 
producer, the Panel erred in its application of Article 6.10 because it ignored the fact that Article 9(5) of the Basic AD Regulation aims at identifying the supplier that is the actual source of price 
                                                      
31European Union's appellant's submission, para. 121 (referring to Panel Report, EC – Salmon 
(Norway) , para. 7.178). 
32European Union's appellant's submission, para. 122. WT/DS397/AB/R 
Page 10  
 
  discrimination in the context of imports from NMEs.  In this respect, the European Union contends 
that the purpose of the IT test is to determine if the State and those entities that do not act 
independently from the State should be treated as a single supplier.
33 
20. The European Union relies on the findings of the panel in Korea – Certain Paper , which, in 
the European Union's view, stand for the propositio n that, for the purpose of determining individual 
dumping margins, Article 6.10 permits investigati ng authorities to determine that two or more 
exporters and producers are part of the same entity.34  The European Union adds that "[n]othing in the 
Anti-Dumping Agreement  supports the proposition that the panel in Korea – Certain Paper  explored 
the complete universe of relationships existing be tween separate entities to consider them as one 
single entity".  According to the European Union, the Anti-Dumping Agreement  contains provisions 
where, directly or indirectly, the relations hip between two separate entities is relevant.35 
21. The European Union argues that a determination of individual dumping margins for each 
legal entity, regardless of whether they are de jure  or de facto  related to each other, would be contrary 
to the object and purpose of Article 6.10 of the Anti-Dumping Agreement .  Investigating authorities 
should be allowed to determine one dumping marg in for related companies as a whole or for 
companies that, because of their close relationshi p, behave in the market as one single entity.36 
22. The European Union points out that the purpose of imposing and collecting anti-dumping 
duties is to target the source of price discrimina tion and that a proper identification of the single 
exporter or producer in a case where several related companies exist allows for the imposition of anti-
dumping duties on the actual source of price discrimination.  In the view of the European Union, the 
identification of the actual source of price discrimin ation and the application of a single duty rate in 
the case of non-IT suppliers would avoid potenti al circumvention and additional dumping, which 
could occur if exports could be channelled by re lated companies through the supplier with the lowest 
duty rate.37 
23. The European Union argues that the Article 9( 5) criteria not only reflect elements that 
demonstrate direct or de jure  control or interference by the State, but also reflect other elements that 
indirectly and de facto  limit the capacity of the exporter to ac t free from State interference.  Contrary 
to what the Panel found, the European Union contends  that Article 9(5) does not merely relate to the 
role of the State in the way business is conducted in  a given country, but it aims also at determining 
                                                      
33European Union's appellant's submission, para. 137. 
34European Union's appellant's submission, para. 139. 
35European Union's appellant's submission, para. 140. 
36European Union's appellant's submission, para. 141. 
37European Union's appellant's submission, para. 142.  WT/DS397/AB/R 
 Page 11 
 
 
  whether there is a close relationship between separat e legal entities and the State in NMEs.  Thus, the 
reasoning of the panel in Korea – Certain Paper  is fully applicable to Article 9(5), considering that 
the objective of the IT criteria is to  identify the actual source of price discrimination, that is, the single 
supplier of the product concerned, due to a close relationship.38 
24. According to the European Union, whilst in th e case of market economies, as established by 
the panel in Korea – Certain Paper , the close relationship between th e separate legal entities has to be 
examined on a case-by-case basis, in NMEs, since the role of the State is different than in market 
economies, the presumption of State control is the general rule.  Therefore, according to the European Union, the reasoning of the panel in Korea – Certain Paper  fully applies in cases of imports 
from NMEs, starting with the presumption that all producers and exporters in an NME are, effectively, arms of the State.  The criteria of th e IT test are then applied to determine whether each 
individual producer or exporter can demonstrate that it acts independently from the State.
39 
25. The European Union further contends that the Panel acted inconsistently with Article 11 of 
the DSU, because it disregarded evidence submitted by  the European Union concerning the nature of 
NMEs and China's status as an NME, as well as the fact that the Protocol on the Accession of the 
People's Republic of China (China's "Accession Protocol")40 entitles the European Union to treat 
China as an NME until 2016.  According to the Eu ropean Union, this evidence, which was not 
contested by China, supports the presumption underlyi ng Article 9(5) of the Basic AD Regulation that 
all producers and exporters in an NME constitute a singl e entity together with the State.  However, in 
the European Union's view, the Panel ignored this  evidence without providing reasoned and adequate 
explanations for its conclusion41, and merely stated that it was not convinced by this argument and 
that the European Union had not pointed to any legal basis that would support it. 
26. Finally, the European Union claims that the Panel erred in relying on the fact that the 
European Union applies a test such as the one in Korea – Certain Paper  "in addition to" the IT test.  
The European Union remarks that its argument was not that the two tests are identical, but rather that 
the relationship between non-IT suppliers and the Stat e "is similar to" the relationship that the panel in 
Korea – Certain Paper  found between several legally distin ct entities producing the product under 
investigation, for which the Korean authorities ha d calculated a single margin, treating them as a 
single producer.  In this respect, th e European Union argues, the application of both tests is irrelevant 
                                                      
38European Union's appellant's submission, para. 148. 
39European Union's appellant's submission, para. 150. 
40WT/L/432, 23 November 2001. 
41European Union's appellant's submission, para. 154. WT/DS397/AB/R 
Page 12  
 
  to the question of whether Article 9(5) of the Basi c AD Regulation is  consistent with Article 6.10 of 
the Anti-Dumping Agreement .
42 
(c) Article 9.2 of the Anti-Dumping Agreement 
27. The European Union claims that the Panel erred in interpreting and applying Article 9.2 of the 
Anti-Dumping Agreement and violated Article 11 of the DSU when  concluding that Ar ticle 9(5) of the 
Basic AD Regulation violates Article 9.2 of the Anti-Dumping Agreement , and requests the Appellate 
Body to reverse this finding by the Panel.43 
28. The European Union claims th at, like Article 6.10 of the Anti-Dumping Agreement , 
Article 9.2 does not contain a mandatory rule rega rding the imposition of anti-dumping duties, but 
rather a principle or a preference.  The European Union argues that Article 9.2 reflects a product-wide 
and country-wide approach in that it refers to the imposition of an anti-dumping duty on a "product", 
not a company.44  The European Union contends that it is particularly significant that Article 9.2 
refers to sources found to be dumped and causing injury , since injury is a country-wide, rather than a 
company-specific, concept.45 
29. The European Union thus contends that, contrary  to the Panel's interpretation, Article 9.2 does 
not impose an obligation to grant individual treatment to, or to impose individual anti-dumping duties on, exporters or producers.  Article 9.2 merely cont ains an obligation to specify by name exporters or 
producers where practicable.  This, according to th e European Union, may serve to distinguish 
between exporters or producers included in the anti-dumping investigation and new exporters or 
producers that may request a review pursuant to Article 9.5 of the Anti-Dumping Agreement .
46 
30. The European Union contends that the Panel in terprets Article 9.2 as providing for the same 
general rule (individual duties) and the same single exception (sampling) as contained in Article 6.10, 
which would make Ar ticle 9.2 redundant.47  The European Union argues that the purpose of imposing 
anti-dumping duties (that is, to offset and to prev ent dumping) also supports its interpretation that 
Article 9.2 does not require the imposition of i ndividual anti-dumping dutie s on all known exporters 
and producers.  In this respect, the European Un ion claims that, once dumping has been found to exist 
for the product concerned with respect to some inve stigated companies, a further examination of the 
                                                      
42European Union's appellant's submission, para. 155. 
43European Union's appellant's submission, paras. 158 and 208. 
44European Union's appellant's submission, para. 161. 
45European Union's appellant's submission, para. 162. 
46European Union's appellant's submission, para. 163. 
47European Union's appellant's submission, para. 163.  WT/DS397/AB/R 
 Page 13 
 
 
  pricing behaviour of other entities would not be re quired in order to impose anti-dumping duties in 
order to offset and prevent dumping.48 
31. Assuming that Article 9.2 of the Anti-Dumping Agreement  contained a strict rule to impose 
anti-dumping duties on an individual basis, the European Union submits that the Panel erred in finding that Article 9(5) of the Basic AD Regulation does not fall within the exception under Article 9.2, third sentence, which would only be available in cases wh ere the authorities consider that, 
because of the large number of producers involved, it  would be impracticable to name exporters or 
producers individually.  The European Union is of  the view that, like Article 6.10, Article 9.2 
expressly permits the imposition of duties on a co untry-wide basis in cases ot her than the sampling 
scenario, in particular when it is "impracticable" to do so on an individual basis, consistently with the 
notion that these provisions should be interpreted in a flexible manner.
49 
32. The European Union points out that Article 9.4 of the Anti-Dumping Agreement  addresses the 
specific situation of the imposition of anti-dumping du ties when sampling is used, and contends that 
interpreting "impracticable" in Article 9.2 as re ferring only to sampling would make Article 9.4 
redundant and unnecessary.50 
33. The European Union argues that the Panel's in terpretation of the term "impracticable" in 
Article 9.2 is both redundant and t oo rigid and that this term shoul d be interpreted in a flexible 
manner.51  According to the European Union, the notion of "impracticable" in Article 9.2 
encompasses the notion of "ineffective".  This situ ation is envisaged in Article 9(5) of the Basic 
AD Regulation, which provides for the imposition of  country-wide duties, where anti-dumping duties 
cannot be imposed on an individual basis for "practi cal" reasons.  The European Union explains that it 
would not be effective to impose individual anti-dump ing duties on suppliers that are all related to the 
State, because this may lead to circumvention of the higher anti-dumping duties imposed on some individual exporters by channelli ng exports through those exporte rs for whom the lowest anti-
dumping duties have been calculated.
52 
34. The European Union submits that its interp retation of the exception to the individual 
treatment of producers or exporters contemplated unde r Article 9.2 is also confirmed by the analysis 
of supplementary means of interpretation and, in  particular, by the negotiating history and the 
circumstances at the conclusion of the Kennedy Round  Agreement on Implementation of Article VI of 
                                                      
48European Union's appellant's submission, para. 164. 
49European Union's appellant's submission, para. 168. 
50European Union's appellant's submission, para. 170. 
51European Union's appellant's submission, para. 174. 
52European Union's appellant's submission, para. 187.  WT/DS397/AB/R 
Page 14  
 
  the General Agreement on Tariffs and Trade  (the " Kennedy Round Anti-Dumping Code ").
53  
According to the European Union, the negotiating hi story and the circumstances at the conclusion of 
Article 8(b) of the Kennedy Round Anti-Dumping Code  show that negotiators were aware of the 
problems associated with imposing anti-dumping dut ies on imports from NMEs.  They clarified that 
anti-dumping duties could be imposed on a country-w ide basis in cases where it was "impracticable" 
to specify duties on an individual b asis.  The European Union notes th at no limits were imposed on 
the notion of "impracticability", which included no t only cases where suppliers could not be examined 
individually because they were too numerous or because they did not make themselves known or did not trade during the period examined, but also ot her situations, such as imports from NMEs.  The 
notion of "impracticability" provided the necessar y flexibility when imposing anti-dumping duties in 
order to remedy injurious dumping and, at the same time, preserved the rights of the other signatories 
through the obligation to provide refunds.
54 
35. The European Union further claims that the Panel erred in considering irrelevant the fact that 
Article 8 and Article 2(g) were introduced into the Kennedy Round Anti-Dumping Code  together and 
for the first time.  The European Union observes that Article 2(g), which incorporated the second 
Ad Note to Article VI:1 of the GATT 1994, speci fically referred to a situation where "special 
difficulties … in determining price comparability " existed and, thus, a situation where it was 
"impracticable" to use the normal methods for determining the existence of dumping.55 
36. The European Union claims that the Panel erre d in its application of Article 9.2 of the 
Anti-Dumping Agreement , which, in the European Union's view , does not exclude that the State could 
be considered as the actual source of price discrimination or as a single supplier for the purposes of imposing anti-dumping duties.  The European Union argues that the terms "sources" and "supplier" in 
Article 9.2 may also include the State in cases wher e the State is an exporter or producer, because the 
use of these terms implies that anti-dumping measures aim at identifying the supplier that is the actual 
source of the price discrimination.  This could be  one exporter, one producer, or a group of related 
exporters and/or producers.
56 
37. The European Union argues that, in rejecting the notion that in NMEs the State can be 
presumed to be the source of price discrimination, the Panel acted inconsistently with its duties under 
Article 11 of the DSU, because it disregarded evid ence presented by the Euro pean Union regarding 
NMEs in general and China's status as an NME,  and failed to provide reasoned and adequate 
                                                      
53BISD 15S/24, entered into force 1 July 1968. 
54European Union's appellant's submission, para. 184. 
55European Union's appellant's submission, para. 182. 
56European Union's appellant's submission, para. 194.  WT/DS397/AB/R 
 Page 15 
 
 
  explanations for its findings.  Alt hough the Panel stated that it addr essed this issue elsewhere in its 
findings, the European Union contends that no explanation was provided by the Panel as to why in 
NMEs the State cannot be presumed to be a producer and the actual source of price discrimination.  
To the extent that the Panel discu ssed this issue in its Report, th e European Union argues that the 
Panel failed to provide a reasoned a nd adequate explanation for its fi nding and thus failed to make an 
objective analysis of the matter.57 
38. The European Union claims that, in NMEs, because of State control over the means of 
production and State intervention in the economy, incl uding international trade relations, all exports 
can be considered to emanate from the State, wh ich can be considered as one single supplier whose 
dumping behaviour can be identified and addresse d in accordance with the disciplines of the 
Anti-Dumping Agreement .  The European Union further contends that it has shown that China is an 
NME and that, in accordance with paragra ph 15(d) of China's Accession Protocol, the 
European Union is entitled to treat China as an NME in anti-dumping proceedings with all the 
consequences that this  determination entails.58 
39. The European Union argues that the Panel erred in finding that Article 9(5) of the Basic 
AD Regulation does not serve to identify the source of  price discrimination, because it took a narrow 
view of the notion of "source of price discrimination" as being limited exclusively to the determination of export prices.  In the view of th e European Union, the source of price discrimination 
is both the determination of export prices and th e determination of norma l value, even though 
suppliers from NMEs may not actually control the de termination of their normal value.  In this 
respect, the European Union observes that, while  anti-dumping disciplines address the phenomenon of 
international price discrimination, Article 2.1 of the Anti-Dumping Agreement  does not require a 
conscious pricing decision with the intention of  dumping by the entity concerned.  Moreover, the 
European Union observes that the IT test criteria embodied in Article 9(5) are not limited to the 
determination of export prices, but aim at identifying whether the applicant company acts 
independently from the State in its export activities.
59 
40. In sum, the European Union claims that Article 9(5) serves to identify the relevant supplier in 
the context of imports from NMEs.  The supplier will be the individual supplier if it can show that it 
meets the five criteria in the IT test.  However, fa ilure to meet these criteria will mean that the non-IT 
                                                      
57European Union's appellant's submission, para. 195. 
58European Union's appellant's submission, para. 196. 
59European Union's appellant's submission, para. 203. WT/DS397/AB/R 
Page 16  
 
  supplier is not the genuine exporter or producer, but an entity that do es not act independently from the 
State and, thus, should be subject to th e actual supplier, country-wide duty rate.
60 
(d) Article I:1 of the GATT 1994 
41. The European Union claims that the Panel e rred in the interpretation and application of 
Article I:1 of the GATT 1994 and acted inconsistently  with Article 11 of the DSU, when it found that 
Article 9(5) of the Basic AD Regulation is inconsis tent with the MFN obligation of Article I:1 of the 
GATT 1994.  The European Union argues that it is en titled to grant formally different treatment to 
imports from market economies and from NMEs because such imports are different in nature.  The 
European Union adds that the word ''unconditionall y'' in Article I:1 does not preclude an advantage 
being subjected to conditions as long as this does not result in de facto  discrimination.61 
42. Moreover, the European Union claims that the alleged advantage granted to market 
economies was based on the nature of the suppliers  involved, and not on the product itself.  The 
European Union contends this was a ''very important  point that the Panel fa iled to acknowledge'' since 
it means that discrimination between like products originating in different countries does not arise in this case.
62  The European Union further contends that, in assessing China's claim under Article I:1 of 
the GATT 1994, the Panel failed to fulfil its duties under Article 11 of the DSU, because it did not 
examine the evidence submitted by the European Un ion regarding China's status as an NME.  The 
European Union asserts that it did demonstrate that market economies and NMEs, by definition, are in 
a different situation and that this evidence justifie s the formally different treatment it conferred to 
imports from China.63  This is so, the European Union argu es, because China's status as an NME was 
not unilaterally determined by the European Unio n, but is based on paragraph 15(d) of China's 
Accession Protocol.  According to the European Union,  the Panel's failure to examine this evidence is 
contrary to its obligations under Article 11 of the DSU.64 
43. The European Union also argues that the f act that under Article 9(5) of the Basic 
AD Regulation producers from NMEs may be able to demonstrate that they are independent from the 
State ensures that discrimination does not arise, b ecause, if a supplier complies with the conditions of 
the IT test, it will be treated like a supplier of a market economy.65  The European Union further 
contends that the fact that the Basic AD Regula tion explicitly lists the NMEs whose producers will be 
                                                      
60European Union's appellant's submission, para. 206. 
61European Union's appellant's submission, para. 212. 
62European Union's appellant's submission, para. 213. 
63European Union's appellant's submission, para. 214. 
64European Union's appellant's submission, para. 215. 
65European Union's appellant's submission, para. 217.   WT/DS397/AB/R 
 Page 17 
 
 
  subject to the IT test is irrelevant to the questi on of non-discrimination, because this list is based on 
evidence that the listed countries ar e in the same economic situation to be classified as NMEs and, 
thus, confers the same treatment to  all countries in the same category.66 
44. Finally, the European Union argues that, even if  the Appellate Body were to consider that 
Article 9(5) of the Basic AD Regulation was inc onsistent "as such" with Article I:1 of the 
GATT 1994, the different treatment of imports from NMEs would be permitted by the provisions of 
the Anti-Dumping Agreement .  The European Unio n remarks that the lex specialis  principle and the 
General Interpretative Note to Annex 1A of the WTO Agreement  make it clear that, when a provision 
of the Anti-Dumping Agreement conflicts with a provision of the GATT 1994, the former should 
prevail.  In this respect, the European Union argues that a conflict between a provision of the 
GATT 1994 and a provision of the Anti-Dumping Agreement  occurs not only in situations where a 
rule in the GATT 1994 prohibits what a rule in the Anti-Dumping Agreement  requires;  a conflict also 
exists when there is ''incompatibility of contents ".  This scenario includes situations where an 
agreement prohibits what another permits.  The Eur opean Union further notes that Article 9.2 of the 
Anti-Dumping Agreement  already requires the imposition and collection of anti-dumping duties on a 
non-discriminatory basis.67 
(e) Article XVI:4 of the WTO Agreement  and Article 18.4 of the 
Anti-Dumping Agreement  
45. As a consequence of the European Union's contention that the Panel wrongly found that 
Article 9(5) of the Basic AD Regulation is inconsis tent "as such" with Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement , the European Union also requests the Appellate Body to reverse the  Panel's 
findings that the European Union acted in consistently with Article XVI:4 of the WTO Agreement  and 
Article 18.4 of the Anti-Dumping Agreement  by failing to ensure the conformity of its laws, 
regulations, and administrative procedures with its  obligations under the relevant agreements. 
2. The Panel's Findings Regarding Article  9(5) of the Basic AD Regulation 
"As Applied" in the Fasteners Investigation 
46. The European Union appeals the Panel's finding th at Article 9(5) of the Basic AD Regulation, 
"as applied" in the fasteners investigation, is  inconsistent with Artic les 6.10 and 9.2 of the 
Anti-Dumping Agreement .  The European Union argues that, since the Panel erred in finding that 
Article 9(5) of the Basic AD Regulation is inconsistent "as such" with the provisions of the 
                                                      
66European Union's appellant's submission, para. 218. 
67European Union's appellant's submission, para. 222. WT/DS397/AB/R 
Page 18  
 
  Anti-Dumping Agreement , the Appellate Body should also reve rse the Panel's "as applied" findings 
with respect to the determinations made in the fasteners investigation.
68 
47. The European Union argues that the Panel applie d the "as such/as applied" distinction in a 
mechanical manner, and noted that there are m easures where the result that is found to be 
WTO inconsistent "as such" may or may not take pl ace in an "as applied" context, depending on the 
configuration of facts.  The European Union conten ds that, in such cases, it cannot be found that the 
same measure "as applied" is WT O inconsistent since, in reality, the result does not take place.69  The 
European Union points out that, while the Panel f ound Article 9(5) of the Basic AD Regulation to be 
"as such" inconsistent with the provisions of the Anti-Dumping Agreement  and of the GATT 1994, in 
the fasteners investigation, each of the five cooperating sampled companies and each of the 
cooperating companies examined individually were granted individual treatment.  Thus, according to 
the European Union, although the Panel found that Article 9(5) "as such" prevents the result that 
suppliers from NMEs are entitled to obtain from the obligations contained in the Anti-Dumping 
Agreement  and the GATT 1994, in a case where all companies requesting individual treatment were 
granted such treatment, there is no basis for a finding of inconsistency "as applied".  According to the 
European Union, for the Panel to say that there is a possibility that Article 9(5) affected participation 
by Chinese exporters in the fasteners investigatio n and/or the quality and quantity of information 
Chinese exporters provided to the Commission is  pure speculation, and not based on evidence.70 
48. The European Union argues that the Panel found that Article 9(5) of the Basic AD Regulation 
leads to a particular result in th e absence of the required evidence to substantiate such a conclusion.  
According to the European Union, the Panel erred by concluding that, having found Article 9(5) of 
the Basic AD Regulation to be inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement , "for the same reasons", its application in th e fasteners investigation was also inconsistent 
with these two provisions.  Therefore, even if th e Appellate Body were to uphold the Panel's finding 
in respect of Article 9(5) "as such" and "as applie d", the European Union requests the Appellate Body 
to modify the Panel's reasoning on this issue.71 
3. The Panel's Findings under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  
49. The European Union requests the Appellate B ody to reverse the Panel's finding that the 
European Union acted inconsistently with Articles 6.4 and 6.2 of the Anti-Dumping Agreement  with 
                                                      
68European Union's appellant's submission, para. 228. 
69European Union's appellant's submission, para. 230. 
70European Union's appellant's submission, para. 231. 
71European Union's appellant's submission, para. 232.  WT/DS397/AB/R 
 Page 19 
 
 
  respect to certain aspects of the normal value determin ation.  In the European Union's view, the Panel 
erred in finding that Articles 6.4 and 6.2 required the Commission to disclose the factual 
determination of how it grouped product types fo r purposes of determining normal value.  The 
European Union also maintains that the Panel made a purely consequential finding of violation of Article 6.2 that is incorrect given the flaws in th e Panel's finding under Article 6.4.  In addition, the 
European Union submits that the Panel disregarde d certain important evidence on the record in its 
factual findings and thus violated Article 11 of the DSU. 
(a) The "Information" Subject to the Obligations under Articles 6.4 
and 6.2 of the Anti-Dumping Agreement  
50. The European Union claims that the Panel erre d when ''it effectively found that Articles 6.4 
and 6.2 required the EU investigating authorities to have disclosed the manner in which they decided 
to group product types fo r purposes of the normal value determin ation, prior to the disclosure of 
essential facts, and as part of their obligation un der Article 6.4 to allow access to the file.''
72  T h e  
European Union submits that such a factual determin ation by investigating authorities is not the kind 
of information that is covered by th e obligation in Article 6.4 of the Anti-Dumping Agreement .  
Rather, the European Union contends that this is  merely an essential factual determination that was 
disclosed at the end of the fasteners investig ation in the final General Disclosure Document73, in 
compliance with Article 6.9 of the Anti-Dumping Agreement .  The European Union posits that a 
proper interpretation of the term ''information'' in Ar ticle 6.4, which takes into account the context of 
Article 6 as a whole, supports the proposition that f actual determinations by investigating authorities 
are not subject to the obligation of Article 6.4. 
51. The European Union contends that the term ''info rmation'', read in the light of the sequence of 
rights and obligations set out in the various paragraphs of Articles 6.1 to 6.8 of the Anti-Dumping 
Agreement , refers to knowledge of facts as communicated by  the interested parti es or collected by the 
investigating authorities.  Referring to the panels' findings in Korea – Certain Paper , Korea – Certain 
Paper (Article 21.5 – Indonesia) , and US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – 
Argentina) , the European Union contends that the term ''in formation'', as used in Article 6.4, concerns 
facts and ''raw data'', rather than "reasoning", factual determinations, or conclusions by the 
                                                      
72European Union's appellant's submission, para. 248. 
73The General Disclosure Document (European Commission, Anti-dumping proceeding concerning 
imports of certain iron or steel fasteners originating in  the People's Republic of China, Proposal to impose 
definitive measures, 3 November 2008) (Panel Exhibit CH N-18)) was the final disclosure document before the 
Commission issued the Definitive Regulation.  WT/DS397/AB/R 
Page 20  
 
  investigating authorities.
74  The European Union further submits that this view is confirmed by the 
Appellate Body's findings in EC – Tube or Pipe Fittings , which "assimilated" the term ''information'' 
in Article 6.4 with facts, evidence, or raw data th at had not been disclosed to the interested parties.75 
52. The European Union maintains that there is a logical sequence of events and corresponding 
rights and obligations that is reflected in the various  paragraphs and subparagra phs of Article 6 of the 
Anti-Dumping Agreement .  Specifically, the European Union submits that Articles 6.1 to 6.3 provide 
parties with the right to submit their own evidence in writing and to make their views known at an 
oral hearing.  Articles 6.6 and 6.7, in turn, impose an obligation on investigating authorities to verify the information submitted by the parties, and Article 6.8 allows the use of "facts available" when any 
interested party does not provide necessary info rmation.  Thus, the European Union asserts, 
Article 6.4 is limited to addressing "t he parties' right to know what other interested parties have 
submitted  in terms of evidence and information".
76  Moreover, the European Union recalls that 
Article 6.9 requires that, before a final determina tion is made, the authorities inform all interested 
parties of "the essential facts under consideration which form the basis for the decision whether to 
apply definitive measures".  In the European Un ion's view, the use of the phrase "essential facts" 
rather than the word "information" in Article 6.9 indicates that Articles 6.1 to 6.8 concern the 
information-gathering process, and Article 6.9 mark s the end of the process and requires a disclosure 
of the authority's essential factual conclusions.  The European Union further contends that the 
differences between the obligations under Article  6.4 and Article 6.9 are well established in 
WTO jurisprudence.  For example, in Guatemala – Cement II , the panel found that Article 6.4 
generally provides an "access to the file" right77, whereas Article 6.9 provides for a disclosure of the 
basic factual findings in respect of the information received.   
53. The European Union submits that the Panel fa iled to recognize the important differences 
between the various paragraphs of Article 6, and erroneously consider ed that Article 6.4 also applied 
in respect of the authorities' factual findings disclosed under Article 6.9 of the Anti-Dumping 
Agreement .  This is because the Panel did not find th at non-confidential evidence gathered by the 
Commission was not made available to the interested parties.  Rather, the Panel's finding concerns the 
fact that the Commission in its General Disclosure Document stated that the normal value 
                                                      
74European Union's appellant's submission, paras. 252 (quoting Panel Report, Korea – Certain Paper 
(Article 21.5 – Indonesia) , para. 6.82) and 253 (referring to Panel Report, Korea – Certain Paper , para. 7.199;  
and Panel Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , para. 7.124). 
75European Union's appellant's submission, para. 254 (referring to Appellate Body Report, EC – Tube 
or Pipe Fittings , paras. 138-141). 
76European Union's appellant's submission, para. 260. (original emphasis) 
77European Union's appellant's submission, para. 268 (referring to Panel Report, Guatemala – 
Cement II , para. 8.230).  WT/DS397/AB/R 
 Page 21 
 
 
  determination was based on a grouping of products  as certain "product types", as opposed to Product 
Control Numbers ("PCNs")78, which were reflected in the request for data in the questionnaires sent to 
the Chinese producers and exporters, but did not provide any information as to the relevant 
characteristics of those "product types".  Howeve r, the European Union argues, the grouping of 
products is not raw data submitted by the parties or  gathered by the Commission, but is "simply the 
determination by the European Commission of what  constituted a proper way of grouping products 
per model or type, based on the information on product types which was in the public record".79  The 
Panel thus erred in finding that the Commissi on was required by Article 6.4 to provide timely 
opportunities to the Chinese interested  parties to see such "information". 
(b) Whether the "Information" Was Made Available to the Interested 
Parties in a "Timely" Manner within the Meaning of Article 6.4 of the Anti-Dumping Agreement  
54. The European Union claims that the Panel fa iled to conduct an objective assessment of the 
facts when finding that the European Union act ed inconsistently with Article 6.4 of the Anti-Dumping 
Agreement  by not providing a timely opportunity for Chinese producers to see information regarding 
the product types on the basis of which normal valu e was established.  Specifically, the European 
Union submits that the Panel disregarded certain critical evidence and thus failed to consider the 
evidence before it in its totality, as required by Article 11 of the DSU. 
55. The European Union recalls that the Panel re lied on the final General Disclosure Document, 
issued on 3 November 2008, to conclude that, for th e first time during the investigation, the Chinese 
interested parties were informed that "the Commission based its normal value determination on 
'product types', as opposed to PCNs", and that the General Disclosure Document did not "provide any information as to the relevant characteristics of  those groups, or how they were determined".
80  
However, the European Union argues, the Panel disregarded certain evidence on the record that 
contradicts this factual finding.  Specifically, the Information Document81, issued on 4 August 2008, 
contains the same paragraphs as those in the Gene ral Disclosure Document that the Panel referred to, 
with the exact same refe rences to the use of ''product types''.  The Information Document, signalling 
the use of ''product types'', was thus sent to all inte rested parties for comments three months before the 
                                                      
78PCNs contain the following elements identified by the Commission:  type of fasteners (by CN code);  
strength/hardness;  coating;  presence of chrome on coating;  diameter;  and length/thickness. (See Panel Report, 
para. 7.293) 
79European Union's appellant's submission, para. 274. 
80European Union's appellant's submission, para. 283 (quoting Panel Report, para. 7.485). 
81European Commission, Anti-dumping proceeding concerning imports of certain iron or steel fasteners 
originating in the People's Republic of China, Non-imposition of provisional anti-dumping measures, 
4 August 2008 (Panel Exhibit CHN-17). WT/DS397/AB/R 
Page 22  
 
  issuance of the General Disclosure Document, yet no request to see the charact eristics that formed the 
basis for the product types was received until 8 No vember 2008.  Moreover, the Panel also ignored 
the fact that the Commission's decision to group produ ct types according to the strength class and the 
distinction between standard and special fastener s was based on arguments and information submitted 
by the Chinese interested parties dur ing the investigation.  Indeed, th e Chinese interested parties were 
able to make presentations on exactly those elemen ts that were used by the Commission to group 
product types.  Thus, in the European Union's view, it is clear that the interested parties had a timely 
opportunity to see information on the product types and to present their views. 
56. The European Union further submits that, even assuming that the interested parties were only 
informed of the use of product types in the Genera l Disclosure Document, the fact that the European 
Union ultimately disclosed the basis for the pr oduct types to the Chinese producers remains 
unchanged.  On the basis of this disclosed in formation, a Chinese interested party submitted 
comments in a letter dated 24 November 2008, in whic h it did not request an extension of time for 
making further presentations or submit any evidence relating to the need to make adjustments for 
differences affecting price comparability.
82  In the European Union's view, this letter, which the Panel 
ignored, demonstrates that a presentation was made on the basis of the ''information'' provided and 
therefore that the ''info rmation'' was made available in a timely manner. 
(c) The Panel's Finding under Article 6.2 of the Anti-Dumping 
Agreement  
57. The European Union maintains that, because it has demonstrated that the Panel's finding 
under Article 6.4 was flawed, the Panel's "purely con sequential" finding under Article 6.2 was also in 
error.83  In addition, the European Union submits that Article 6.2 cannot be read to constitute a mere 
reiteration of the right under Article 6.4 to see the information. 
58. The European Union contends that the Panel ma de a purely consequential finding of violation 
of Article 6.2 when it considered that the viola tion of Article 6.4 on access to information also 
constituted a violation of the general right of de fence allegedly set forth in Article 6.2 of the 
Anti-Dumping Agreement .  The European Union contends that th e Panel made the error of reading the 
obligation in Article 6.4 into Article 6.2, thus erroneously collapsing both provisions, even though 
Article 6.2 sets forth an important but limited and sp ecific obligation of its own.  The European Union 
finds support for this view in the panel's finding in Korea – Certain Paper  that Article 6.2 does not 
                                                      
82Letter dated 24 November 2008 from Van Bael & Bellis to the European Commission on behalf of 
Kunshan Chenghe Standard Component Co. Ltd. (Panel Exhibit EU-12). 
83European Union's appellant's submission, para. 275.  WT/DS397/AB/R 
 Page 23 
 
 
  "address interested parties' right to  see the information on the record".84  The European Union further 
argues that the first sentence of Article 6.2, refe rring to the "full opportunity for the defence of 
[interested parties'] interests" cannot "be read as a catch-all due process provision", because doing so 
"would effectively render redundant all of the other provisions of Article 6 which impose specific 
obligations on investigating authorities".85 
(d) Conclusion 
59. In sum, the European Union asserts that a prope r interpretation of the relevant provisions, as 
well as a proper assessment of the facts and evid ence on the record, should have led the Panel to 
conclude that no violation of Article  6.4, and thus no consequential vi olation of Article 6.2, had been 
demonstrated.  Therefore, the European Union re quests the Appellate Body to reverse the Panel's 
finding that the European Union acted incons istently with Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  concerning the product types used for purposes of normal value determination. 
4. The Panel's Findings under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement  Regarding Non-Confidential Questionnaire Responses 
60. The European Union requests the Appellate Body  to reverse the Panel's findings that the 
European Union acted inconsistently with Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement  with 
respect to confidentiality requests and non-conf idential summaries of confidential information 
received in the fasteners investigation.  Specifically , the European Union contends that the Panel erred 
in finding that the Commission acted inconsistently with Article 6.5.1 because it failed to require that 
domestic producers furnish appropriate statements  of the reasons why information submitted in 
confidence was not susceptible of summary, and wi th Article 6.5 because it treated as confidential 
information received from the analogue country pro ducer, Pooja Forge, without examining whether 
"good cause" supported this confidential treatment. 
(a) Non-Confidential Summaries of Domestic Producers' Questionnaire 
Responses 
61. The European Union claims that the Panel erre d in its interpretation and application of the 
obligations contained in Article 6.5.1 of the Anti-Dumping Agreement  when it found that the 
Commission failed to require domestic producers to pr ovide "appropriate" statements of the reasons 
why summarization of confidential information was not possible.  In the European Union's view, 
Article 6.5.1 imposes only a "best endeavours" ob ligation on investigating authorities to require 
                                                      
84European Union's appellant's submission, para. 276 (quoting Panel Report, Korea – Certain Paper , 
para. 7.306). 
85European Union's appellant's submission, para. 277. (original emphasis) WT/DS397/AB/R 
Page 24  
 
  parties to provide non-confidential summaries of information submitted in confidence, or, in the 
alternative, a statement of the reasons explaining why summarization is not possible.
86  T h e  
European Union contends that the Panel erred in finding that Article 6.5.1 further obliges 
investigating authorities to ensure  that such summaries or statements of reasons are "appropriate".87 
62. Under the interpretation of Article 6.5 of the Anti-Dumping Agreement  proffered by the 
European Union, the only obligations imposed on i nvestigating authorities are:  (1) not to disclose 
confidential information without the specific permis sion of the submitting party;  and (2) to require 
interested parties to provide non-confidential summaries of information submitted in confidence.88  
The European Union argues that Article 6.5 is ther efore concerned "first and foremost" with assuring 
parties that information submitted in confidence will be treated as confidential and will not be 
disclosed without their permission.89  Article 6.5.1, then, imposes a "best endeavours" obligation on 
authorities to require that parties provide a non- confidential summary of information submitted in 
confidence so that other interested parties have  a reasonable understanding of  the substance of the 
confidential information.90  In the European Union's view, it is also "permissible" for submitting 
parties not to summarize certain information, as long as they indicate that summarization is not 
possible, and provide a "statement of the reasons" as to why such summarization  is not possible.91  
The European Union claims that, because Article  6.5 does not allow an authority to disregard 
information properly treated as confidential, regard less of whether or not a non-confidential summary 
or statement of reasons is provided, Article 6.5. 1 cannot be read strictly to require that such 
summaries or statements be provided.92  "Absent the necessary stick" th at would allow an authority to 
penalize noncompliance, the European Union insi sts that Article 6.5.1 can only impose a "best 
efforts" obligation on authorities to "push inter ested parties to be as transparent as possible".93  The 
European Union does not see that any "risk of abuse"  would result from such an interpretation, as the 
Panel warned, as long as the request for confidential treatment is warranted.94 
63. The European Union argues that prior WTO pane ls that interpreted Article 6.5.1 of the 
Anti-Dumping Agreement  as imposing a duty on investigating auth orities to require parties to submit a 
statement of reasons described the "outer boundari es of the obligation imposed by Article 6.5.1".95  
                                                      
86European Union's appellant's submission, para. 298. 
87European Union's appellant's submission, para. 310. 
88European Union's appellant's submission, para. 314. 
89European Union's appellant's submission, para. 316. 
90European Union's appellant's submission, para. 317. 
91European Union's appellant's submission, para. 317. 
92European Union's appellant's submission, para. 320. 
93European Union's appellant's submission, para. 321. 
94European Union's appellant's submission, para. 322. 
95European Union's appellant's submission, para. 327.  WT/DS397/AB/R 
 Page 25 
 
 
  The panel's reasoning in Mexico – Steel Pipes and Tubes  supports this argument, and stated that 
Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement  do not contain any obligation with regard to 
how an authority should comply with the requirements thereunder.96  The European  Union further 
alleges that the Panel misinterpreted the findings of the panel in Mexico – Olive Oil  when it relied on 
that case for its conclusion that the pro forma  "general statements" of the domestic producers were not 
sufficient to constitute an appropriate statement of  reasons as to why summarization of confidential 
information was not possible.97 
(b) Confidential Treatment of Information Obtained from Pooja Forge 
64. The European Union contends that the Panel e rred in making findings under Article 6.5 of the 
Anti-Dumping Agreement  with regard to the confidential tr eatment of Pooja Forge's questionnaire 
responses, and that, substantively, the Panel also erre d in its application of the chapeau of Article 6.5 
to Pooja Forge.  Specifically, th e European Union argues that the claims relating to Pooja Forge's 
questionnaire response were not contained in China's panel request98, and therefore not within the 
Panel's terms of reference, and that the Panel thus e rred in making findings in this respect, contrary to 
Article 7.1 of the DSU.  In the alternative, the Eu ropean Union alleges that the manner in which China 
pursued its claim under Article 6.5, and the manner in which the Panel dealt with this claim, deprived 
the European Union of its due process rights.  If the Appellate Body determines that the Panel did not 
err in considering this claim to be within its terms of reference and making findings on it, the 
European Union argues that the Panel neverthele ss erred in its application of the chapeau of 
Article 6.5 because the requirement to show "go od cause" in support of a request for confidential 
treatment applies only to "interested parties" a nd does not apply to analogue country producers. 
(i) Terms of reference and due process 
65. The European Union claims that  the Panel did not have jurisdiction over China's claim under 
Article 6.5 relating to Pooja Forge's questionnaire responses, because this cl aim was not included in 
China's panel request as required under Article 6.2 of  the DSU.  The relevant portion of China's panel 
request did not mention the Indian producer, Pooja Forge, and "unambiguously states that China brings a claim only with regard to domestic producers".
99  The European Union acknowledges that it 
did not formally raise this challenge before the Pa nel, but states that the Panel had an obligation to 
examine its jurisdiction on its own moti on, and that it failed to do so.  In Mexico – Corn Syrup 
(Article 21.5 – US) , the Appellate Body explained that "panels cannot simply ignore issues which go 
                                                      
96European Union's appellant's submission, para. 328. 
97European Union's appellant's submission, para. 329. 
98European Union's appellant's submission, paras. 335-339. 
99European Union's appellant's submission, para. 335. WT/DS397/AB/R 
Page 26  
 
  to the root of their jurisdiction"
100, and in Guatemala – Cement I , it found that a panel must determine 
whether a party has "properly identified a relevant antidumping measure in its panel request" before it 
may find that a dispute is properly before it.101  In making findings on this claim, then, the 
European Union argues, the Panel violated Article 7.1 of the DSU.102 
66. Should the Appellate Body find that China' s claims with respect to Pooja Forge's 
questionnaire response were within th e Panel's terms of reference, the European Union argues that, in 
the alternative, the Panel violated its obligations  under Article 11 of the DS U because the manner in 
which it dealt with this claim deprived the Eur opean Union of its rights to due process.  Citing US – 
Continued Zeroing , the European Union argues that the Pane l used its questions impermissibly to 
"make the case"103 for China.  Only in response to Panel Question 71 did China begin to formulate its 
claims with respect to Pooj a Forge's questionnaire response104;  and only in response to Panel 
Question 103, after the second substantive meeting of the Panel with the parties, did China "finally 
clarif[y] that it actually made a claim under both Ar ticles 6.5 and 6.5.1 with respect to Pooja Forge's 
questionnaire response".105 
67. The European Union points out that the Panel itself admitted that the claim was unclear, and 
that this lack of clarity led it to pos e questions to China in this regard.106  Despite the Panel's 
suggestion to the contrary, the European Union clai med throughout this process that it was "not in a 
position to provide adequate responses due to the confusion" about China's claim.107  For these 
reasons, the European Union requests the Appellate  Body to reverse the Panel's finding that the 
European Union acted inconsistently with Article 6.5 of the Anti-Dumping Agreement  with respect to 
confidential treatment of information in the questionnaire response of the Indian producer, 
Pooja Forge. 
                                                      
100European Union's appellant's submission, para. 337 (quoting Appellate Body Report, Mexico – Corn 
Syrup (Article 21.5 – US) , para. 36). 
101European Union's appellant's submission, para. 338 (quoting Appellate Body Report, Guatemala – 
Cement I , para. 88). 
102European Union's appellant's submission, para. 339. 
103European Union's appellant's submission, paras. 342 and 343 (quoting Appellate Body Report, US – 
Continued Zeroing , para. 343). 
104European Union's appellant's submission, para. 343. 
105European Union's appellant's submission, para. 344. 
106European Union's appellant's submission, para. 345 (quoting Panel Report, para. 7.522). 
107European Union's appellant's submission, para. 346.  WT/DS397/AB/R 
 Page 27 
 
 
  (ii) Application of Article 6.5 to  analogue country producers 
68. Substantively, the European Union argues that  the Panel erred in its interpretation and 
application of Article 6.5 when it found that the Commission failed to require the Indian producer, 
Pooja Forge, to demonstrate that "good cause" exis ted for the confidential treatment of certain product 
type information in its questionnaire response.  Acco rding to the European Union, Article 6.5 applies 
only to "parties to an investigation", which includes "interested parties" as defined in Article 6.11 of 
the Anti-Dumping Agreement .108  The European Union contends that the Panel implicitly 
acknowledged this interpretation when it used the term  "interested parties" in making its findings on 
this claim.109  The definition of "interested parties" does not include producers from analogue third 
countries, and the European Union points out that it did not designate Pooja Forge an "interested party" in its regulation regarding the fasteners inv estigation, which it could have done under the last 
sentence of Article 6.11.
110  Therefore, because Pooja Forge could not be considered as an "interested 
party" in the fasteners investigation, the requirement  in Article 6.5 to show "good cause" did not apply 
to it.111 
69. The European Union emphasizes that this argument "is not pure textualism".112  Rather, it is 
the interpretation that "makes the most sense in li ght of the realities of investigations involving 
[NME] countries".113  In NME investigations, authorities must  rely on the willingness of third country 
producers to cooperate with the investigation, although they have no obligation to do so.  The 
difficulty inherent in this situation is eviden ced by the fact that the Commission found only two 
producers willing to cooperate in the fasteners in vestigation, of which only one, Pooja Forge, 
submitted information sufficiently detailed to serve as  the basis for the establishment of normal value.  
The European Union argues that its investigating authorities have no coercive powers over analogue 
country producers, and therefore it would not be prac ticable to apply the requirements of Article 6.5 
to these producers.  According to th e European Union, having reliable  and verifiable third-party data 
is a benefit to the investigation, even if that da ta is provided on a confidential basis and without an 
assertion of "good cause".114 
                                                      
108European Union's appellant's submission, para. 349. 
109European Union's appellant's submission, para. 350. 
110European Union's appellant's submission, paras. 352 and 353 (quoting the Definitive Regulation, 
supra , footnote 4). 
111European Union's appellant's submission, para. 354. 
112European Union's appellant's submission, para. 356. 
113European Union's appellant's submission, para. 356. 
114European Union appellant's submission, para. 357. WT/DS397/AB/R 
Page 28  
 
  5. The Panel's Findings under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the Complainants 
70. The European Union requests the Appellate Body  to reverse the Panel's determination that 
China's claim under Articles 6.4 and 6.2 of the Anti-Dumping Agreement  regarding the identity of the 
complainants was within its terms of reference.   Although the Panel found that the Commission had 
not violated these provisions by failing to disclose the identity of the complainants and the supporters 
of the complaint, the European Union neverthel ess argues that the Panel should never have made 
findings on these claims because they were not include d in China's panel request.  In the European 
Union's view, Articles 6.4 and 6.2 contain multiple  obligations, and it is therefore not sufficient 
simply to mention them without further elaboration. 
71. Specifically, the European Union claims that China's panel request does not refer to the 
identity of the complainants within its claims under Articles 6.2 and 6.4, and the European Union 
stresses that, in this case, the mere listing of Ar ticles 6.2 and 6.4 was not sufficient to present the 
problem clearly.115  According to the European Uni on, the Panel mischaracterized the 
European Union's argument as claiming that China failed to provide "a brief summary of the legal 
basis for a claim under Artic les 6.4 and 6.2".  In the European Union's view, "[t]he issue was whether 
the way in which the panel request was made presented the problem clearly".116  Specifically, the 
European Union challenges the Panel's interpretation th at "the nature of the rights and obligations set 
forth in Articles 6.4 and 6.2 is such that a refere nce to these provisions, without further explanation, 
could suffice to put the responding Member on notice of  the nature of the clai m that the complainant 
might bring".117  It argues that, while the Appellate Body has found that in some instances it may be 
sufficient to list the provisions of WTO law under which a complaining party may later develop its 
arguments, the Appellate Body has also stated in Korea – Dairy  that this would not be appropriate 
where the provisions listed contain not just one, distinct obligation, but multiple obligations.118  
According to the European Union, the fact th at China made a claim under both Article 6.2 and 
Article 6.4 suggests that at least two obligations ar e necessarily involved, and that, furthermore, "these 
multiple obligations apply in multiple situations in the course of an anti-dumping investigation".119 
                                                      
115European Union's appellant's submission, paras. 365 and 372. 
116European Union appellant's submission, paras. 369 and 370. 
117European Union's appellant's submission, paras. 378 and 379. 
118European Union's appellant's submission, para. 381. 
119European Union's appellant's submission, para. 382.  WT/DS397/AB/R 
 Page 29 
 
 
  B. Arguments of China – Appellee 
1. The Panel's Findings Regarding Article  9(5) of the Basic AD Regulation 
"As Such" 
72. China requests the Appellate Body to reject th e European Union's appeal and to uphold the 
Panel's findings that Article 9(5) of the Basic AD Regulation is inconsistent with Articles 6.10, 9.2, 
and 18.4 of the Anti-Dumping Agreement , Article I:1 of the GATT 1994, and Article XVI:4 of the 
WTO Agreement .120 
(a) The Scope of Article 9(5) of the Basic AD Regulation 
73. China submits that the "meaning" or "scope" of Article 9(5) of the Basic AD Regulation is an 
issue of fact that the Appellate Body is not competen t to review pursuant to Article 17.6 of the DSU.  
However, in the event that the Appe llate Body were to consider itself competent to review this issue, 
China submits that the Panel correctly found that Article 9(5) concerns not only the imposition of 
anti-dumping duties but also the calculation of dumping margins.121 
74. China submits that the issue of the "meaning" or "scope" of Article 9(5) of the Basic AD 
Regulation is an issue of fact that can only be revi ewed in an appeal made on the basis of a claim 
under Article 11 of the DSU.  Therefore, it rejects the European Union's argument that the scope of 
Article 9(5) of the Basic AD Regulation is a legal issue and hence subject to appellate review pursuant 
to Article 17.6 of the DSU.  China contends that, since the "meaning" or "scope" of Article 9(5) was 
not clear on its face, the Panel's examination necessar ily involved a factual assessment in relation to 
the operation of this provision in practice.   As the Appellate Body stated in China – Auto Parts , "there 
may be instances in which a panel's assessment of  municipal law will go beyond the text of an 
instrument on its face, in which case further examin ation may be required, and may involve factual 
elements".122  In that dispute, the Appellate Body also cl arified that whenever a panel is required, in 
order to determine the meaning of a Member's munici pal law, to "go beyond the text of an instrument 
on its face", the Appellate Body will not interfere li ghtly with the factual findings made by the panel 
in that respect.123  China recalls that, in the case at issue, th e "meaning" or "scope" of Article 9(5) was 
determined by the Panel not solely on the face of th is provision, but also involved factual assessments 
regarding its operation in practice.  Given that the "meaning" or "scope" of Article 9(5) of the Basic 
AD Regulation is an issue of fact and that the Euro pean Union failed to raise it under Article 11 of the 
                                                      
120China's appellee's submission, para. 364. 
121China's appellee's submission, para. 67. 
122China's appellee's submission, para. 73 (quoting Appellate Body Reports, China – Auto Parts , 
para. 225). 
123See China's appellee's submission, para. 74. WT/DS397/AB/R 
Page 30  
 
  DSU as a failure by the Panel to make an objective assessment of the facts, such a factual issue is not 
within the scope of the present appeal. 
75. China contends that Article 9(5) of the Basi c AD Regulation concerns not only the imposition 
of anti-dumping duties but also the determination of du mping margins.  The fact that Article 9(5) does 
not contain the words "margins of dumping" is not sufficient, in China's view, automatically to conclude that Article 9(5) does not deal with dum ping margins at all and relates only to the imposition 
of anti-dumping duties.  In this regard, China agr ees with the Panel's reasoning that it is necessary to 
look at the operation of Article 9(5) as a whole in order to clarify the meaning of that provision and, in particular, to determine whether it also concerns  the calculation of dumping margins even if it does 
not expressly say so.  The Panel correctly went be yond the mere text of Article 9(5) and also 
examined its context and operation, in accord ance with the principles established by the 
Appellate Body in US – Corrosion-Resistant Steel Sunset Review  and in US – Carbon Steel , in order 
to ascertain the meaning of that provision.
124 
76. China contests the European Union's assertion that  the examination of the context provided by 
other articles of the Basic AD Regulation, such as Artic les 2, 9(4), and 9(6), conf irms that Article 9(5) 
relates only to the imposition of anti-dumping duties.   However, China notes that none of these other 
provisions addresses the issue of whether the dump ing margin for exporters or producers from NMEs 
is to be determined on an individual or co untry-wide basis.  China disagrees with the 
European Union's contention that Article 9(5) of the Basic AD Regulation mirrors Article 9.2 of the 
Anti-Dumping Agreement  concerning the imposition of duties and the obligation to determine 
individual margins of dumping for each known exporte r or producer.  Even assuming that this were 
correct, China points out that there is no provision in the Basic AD Regulation that mirrors Article 6.10 of the Anti-Dumping Agreement  concerning dumping margin determinations.  China 
submits that Article 9(4) of the Basic AD Regulation merely sets out the principle that the duty rate 
must not exceed the margin of dumping, but does not state how the dumping margin should be 
determined, or whether that margin has to be de termined on an individual basis or on a country-wide 
basis for exporters from NMEs.
125  China thus contends that Artic le 9(5) is the provision governing 
two separate, but very closely related, issues, na mely, the determination of dumping margins and the 
imposition of anti-dumping duties.  Therefore, meeti ng the five requirements for individual treatment 
listed under Article 9(5) not only determines whet her the exporting producer is subject to an 
                                                      
124China's appellee's submission, para. 82 (referring to Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 168;  and Appellate Body Report, US – Carbon Steel , para. 157). 
125China's appellee's submission, para. 93.  WT/DS397/AB/R 
 Page 31 
 
 
  individual anti-dumping duty but also whether it qualifies for the determination of an individual 
dumping margin. 
77. China notes that the operation of Article 9(5) of the Basic AD Regulation further confirms 
that this provision deals with both the determin ation of dumping margins as well as the imposition of 
duties.  Contrary to what the European Union asser ts, China contends that whether a Chinese exporter 
or producer is entitled to a de termination of an individual dumping margin does not flow from 
Article 9(4), which establishes the requirement th at the dumping margin be the ceiling of the anti-
dumping duty, but rather flows from Article 9(5) of the Basic AD Regulation.  Indeed, during the Panel proceedings, the European Union confirmed th at the fact that an exporting producer is a 
"non-IT supplier", and therefore does not fulfil the Ar ticle 9(5) conditions, implies not only that it will 
receive a country-wide anti-dumping duty but also that no individual dumping margin will be 
determined for this exporting producer.
126  China recalls that, in order to impose an anti-dumping 
duty, the investigating authorities first have to determine a dumping margin, and thus considers it 
logical that an individual anti-dumping duty can only be imposed if the underlying dumping margin was also calculated on an individual basis.
127 
78. Thus, China submits that the examination of how Article 9(5) operates in practice clearly 
confirms the Panel's conclusion reached on the basis of an analysis of Article 9(5) in the context of the 
other provisions of the Basic AD Regulation, name ly, that Article 9(5) deals not only with the 
imposition of anti-dumping duties but also with the determination of  the dumping margins.128 
(b) Article 6.10 of the Anti-Dumping Agreement  
79. China submits that the Panel properly concluded that Article 9(5) of the Basic AD Regulation 
is inconsistent with Article 6.10 of the Anti-Dumping Agreement  because it conditions the calculation 
of individual margins for producers from NMEs on the fu lfilment of the IT test.  China considers that 
the Panel did not err in finding that Article 6.10 of the Anti-Dumping Agreement  contains a strict rule 
that an individual dumping margin be calculated for each known producer or exporter and that 
sampling is the only exception to that rule.129 
80. China submits that the use of the word "shall" in the first sentence of Article 6.10 establishes 
the mandatory nature of this provision, and contends  that if the drafters' intention indeed had been 
                                                      
126China's appellee's submission, para. 98 (referring to European Union's response to Panel 
Question 6(a)). 
127China's appellee's submission, para. 106. 
128China's appellee's submission, para. 107. 
129China's appellee's submission, para. 111. WT/DS397/AB/R 
Page 32  
 
  merely to express a preference, as the European Union contends, they would have used the word 
"should" instead of "shall".  Likewise, they coul d have expressly mentioned that the derogation from 
the general rule was permitted in situations othe r than the one mentioned in the second sentence of 
Article 6.10.  However, the drafters did not use an y such words.  In China' s view, the expression "as a 
rule" is necessary to the extent that it creates a "link between the obligation contained in Article 6.10 
first sentence which constitutes the rule and the ex ception to that rule included in the second sentence 
of that provision".
130  China asserts that the structure of Article 6.10 confirms the conclusion that the 
first sentence contains the main rule ("the authorities shall … determine "), whereas the second 
sentence lays down the exception to th at rule ("In cases where … such a  determination  [is] 
impracticable").131 
81. China points out that, even in cases where sampling is used, Article 6.10.2 requires 
investigating authorities to determine an individua l margin for any exporter or producer not initially 
selected who submits the necessary information in time, except when this would be unduly 
burdensome to the authorities due to the large num ber of exporters or producers requesting individual 
examination.  Therefore, Article 6.10.2 confirms th e fundamental importance of the rule that margins 
of dumping be determined on an indivi dual basis for each exporter or producer.132  Indeed, reading 
Article 6.10, first sentence, as merely establishi ng a "preference", as the European Union submits, 
would mean that investigating authorities are merely invited to determine individual dumping 
margins.  This conclusion would, in China's view , render the first sentence of Article 6.10 inutile.133 
82. China recalls that a finding of the panel in Mexico – Anti-Dumping Measures on Rice  
confirmed that sampling is the only exception to the obligation contained in Article 6.10, first sentence.  In that dispute, th e panel stated that "[t]he exception to this rule is the case in which 
there are too many foreign producers or exporters so that an individual margin of dumping will only 
be calculated for a representative sample".
134  The use of the term "the" preceding the word 
"exception" indicates that the panel did not consider  the second sentence of Article 6.10 to be merely 
an exception among various possible deviations from the rule.  China charac terizes the panel reports 
cited by the European Union, namely, Korea – Certain Paper  and EC – Salmon (Norway) , as 
irrelevant to the point at issue, since neither pane l in those disputes attempted to clarify whether the 
exception provided in Article 6.10, second sentence, is the only exception to the rule set out in the 
first sentence.  China also considers that the Eur opean Union's reference to other provisions of the 
                                                      
130China's appellee's submission, para. 114. 
131China's appellee's submission, para. 121. (original boldface) 
132China's appellee's submission, para. 125. 
133China's appellee's submission, para. 118. 
134China's appellee's submission, para. 126 (quoting Panel Report, Mexico – Anti-Dumping Measures 
on Rice , para. 7.137).  WT/DS397/AB/R 
 Page 33 
 
 
  Anti-Dumping Agreement  that would "provide investigating au thorities with certain flexibility in the 
application of the relevant rules"135 does not support the European Union's position.  On the contrary, 
Articles 2.4, 2.5, 5.8, 9.3.1, and 11.4 of the Anti-Dumping Agreement , by including the word 
"normally", rather support the view that, if the draf ters had intended not to establish a strict obligation 
under the first sentence of Article 6.10, they would ha ve used clearer wording to  that effect, just like 
they did in the Articles referred to by the European Union. 
83. China further asserts that none of the ex amples presented by the European Union 
convincingly shows that there are other hypothetical situations, apart from sampling, that may justify 
not calculating an individual margin for each known e xporter or producer.  Notably, in the case where 
an exporter or producer that initially agreed to cooperate decides to cease cooperating in the course of 
the investigation, the fact that the dumping margin  for that exporter is based on best information 
available and, therefore, is de facto  the same as the one determin ed for the other non-cooperating 
exporters does not render such dumping margin non-individual.136  Similarly, in the case of an 
exporter who has not produced the product concerne d during the period of investigation but merely 
"traded" this product, the fact that the investig ating authorities may not calculate an individual 
dumping margin for this "trader" does not constitute  an exception to Article 6.10, first sentence;  
rather, it is a possibility flowing directly from the ge neral obligation in Article 6.10, first sentence, to 
determine an individual ma rgin for "each known exporter or producer".137  Lastly, in cases where a 
known producer did not export the product concerned during the period of investigation, China notes 
that no dumping margin—whether individual or co llective—can be determined for a non-exporting 
producer, and once such a producer starts exporting it will receive, pursuant to Article 9.5 of the 
Anti-Dumping Agreement , an individual dumping margin unless that producer is related to existing 
producers or exporters.138  China contends that the ot her two examples presented by the 
European Union are based on the Eu ropean Union's unilateral practice and therefore are not relevant 
to the interpretation of Article 6.10, first sentence.139 
84. China also rejects the European Union's alte rnative argument that Article 9(5) of the 
Basic AD Regulation is consiste nt with Article 6.10 of the Anti-Dumping Agreement  because it "aims 
at identifying the relevant supplier in acco rdance with Article 6.10, first sentence".140  Indeed, China 
                                                      
135China's appellee's submission, para. 151 (quoting European Union's appellant's submission, 
para. 133). 
136China's appellee's submission, para. 139. 
137China's appellee's submission, para. 143. (original boldface) 
138China's appellee's submission, para. 149. 
139China's appellee's submission, paras. 146 and 147. 
140China's appellee's submission, para. 165 (quoting European Union's appellant's submission, p. 47, 
heading (b)). WT/DS397/AB/R 
Page 34  
 
  contests the European Union's claim that "Article 9( 5) of the Basic Regulation follows the same logic 
[as the Korea – Certain Paper  test] and seeks to identify the releva nt supplier in the specific context 
of imports from non-market economy countries", which is either a Chinese exporter acting 
independently from the State (IT supplier), or the State together with related export entities (non-IT 
suppliers) that are not acting independently from the State.
141  According to China, the 
European Union's anti-dumping practice confirms that the purpose of Article 9(5) is not to identify the 
"exporter" or "producer" within the meaning of Artic le 6.10, first sentence.  Indeed, China notes that 
the IT test provided for in Article 9(5) of the B asic AD Regulation is only applied once the exporters 
or producers have been identified by the Commission .  Therefore, the ultimate purpose of the IT test 
is not, as the European Union asserts, to identify the single supplier of the product under investigation.  
If the purpose of the IT test was indeed to identify the relevant supplier, such a test would not be 
carried out after the supplier has been identified by  the Commission, but rather in order to identify 
such a supplier in the first place.  China agrees with the Panel's finding that the fact that "the 
Commission first determine[s] which, if any, gr oups of companies should be considered as a single 
producer or exporter, and then applies the IT test to  each 'single' producer or exporter it finds on the 
basis of that test … clearly shows that the Commission itself distinguishes the test aimed at 
determining whether separate legal entities should be treated as a single exporter/producer for purposes of dumping determinations, from the IT test under Article 9(5) of the Basic AD Regulation".
142 
85. China further submits that, contrary to the Korea – Certain Paper  test, Article 9(5) presumes 
that in NMEs all exporters or producers are rela ted to the State and places the burden of proving the 
contrary on each exporter or producer, who are re quested to provide evidence of complete fulfilment 
of the IT requirements under Article 9(5) in orde r to rebut this presumption.  By contrast, under the 
Korea – Certain Paper  test, it is for the investigating authorities to establish that there is a 
"sufficiently close structural and commercial re lationship between indivi dual producers to justify 
treating them as a single entity".143  The Panel, therefore, correctly concluded that the "difference in 
the starting points of the two tests, and the different evidentiary burdens involved, … show how different these two tests are".
144  China also notes that the Commissi on applies a test similar to the one 
in Korea – Certain Paper  in all its anti-dumping investigations, irrespective of whether the importing 
                                                      
141China's appellee's submission, para. 173 (referring to European Union's appellant's submission, 
para. 142). 
142China's appellee's submission, para. 182 (quoting Panel Report, para. 7.97). 
143China's appellee's submission, para. 186. 
144China's appellee's submission, para. 187 (quoting Panel Report, para. 7.95).  WT/DS397/AB/R 
 Page 35 
 
 
  country is a market economy or an NME;  however, in cases where imports from NMEs are 
concerned, the Commission additionally applies the IT test.145 
86. China recalls that the European Union justifies the reversal of the burden of proof under the 
IT test as compared to the Korea – Certain Paper  test on the basis of the mere assertion that there is a 
presumption of State control in NMEs.  For China, such a presumption lacks an y legal basis.  China 
notes that there are also many State-owned or State-controlled companies in market economy 
countries, and fails to see why such companies receive an individual dumping margin whereas the 
same does not apply to the State-owned or State- controlled companies in NMEs.  China also notes 
that the European Union refers to another presumptio n in order to justify the previous presumption of 
"State control", namely, that China is an NME and that the European Union is allowed to treat China 
as an NME by virtue of China's Accession Protocol .  In this respect, China submits that China's 
Accession Protocol merely authorizes certain WTO Members to apply a temporary and limited 
derogation from certain rules of the Anti-Dumping Agreement  concerning the determination of normal 
value, but in no case contains any general acknowledgement that China is an NME.146  In any event, 
China points out that whether China is a market ec onomy or an NME is irrelevant for the purposes of 
this case, because the first sentence of Article 6.10 of the Anti-Dumping Agreement  does not 
distinguish between imports from market economies or NMEs in relation to the determination of 
dumping margins.  China further notes that the Pa nel expressly and fully addressed this point.  
Accordingly, there is no basis for the European Unio n's additional claim that the Panel failed to act in 
accordance with its duty under Article 11 of the DS U to make an objective assessment of the facts.147 
87. China further asserts that there are im portant differences between the test in Korea – Certain 
Paper  and the Article 9(5) IT test because the nature  of the relationship examined in these tests is 
fundamentally different:  whereas the Korea – Certain Paper  test examines the linkages between 
companies, the Article 9(5) IT test focuses on the relationship between companies and the State.  For 
China, there is a fundamental difference between the examination of the structural and commercial 
relationship between different companies and the exam ination under Article 9(5), which relates to the 
political influence or interference the State exercises on the way business is conducted by the 
exporting producers concerned.148  The panel in Korea – Certain Paper  reached the conclusion that 
there was a close structural and commercial re lationship among three companies on the basis of 
several factual findings, namely:  (i) that the pa rent company had considerable controlling power;  
(ii) that there was commonality with respect to  company management;  (iii) that the companies 
                                                      
145China's appellee's submission, para. 189. 
146China's appellee's submission, para. 195. 
147China's appellee's submission, para. 197. 
148China's appellee's submission, para. 204. WT/DS397/AB/R 
Page 36  
 
  harmonized their commercial activities to achieve co mmon corporate objectives;  and (iv) that the 
parent company acted  practically as the sole chan nel for domestic sales.  China contends that the 
IT test criteria in Article 9(5) relate to elemen ts that are proper to the exercise of a governmental 
function in general, rather than to elements relevant to establishing State control, either de jure  or 
de facto .  Indeed, the IT test involves an assessment of  whether exporters are free to repatriate capital 
and profits, whether export prices are freely determined, whether the majority of shares belong to 
private persons, whether exchange rate conversions are carried out at the market rate, and whether 
State interference is not such as to permit circum vention of anti-dumping measures when individual 
exporters are given different rates of duties.  Ther efore, in essence, the nature of the relationship 
examined by the IT test is not comparable to the one in Korea – Certain Paper .  China further submits 
that, even assuming that the IT test criteria were seeking to identify circumstances of State control, 
those criteria are so strict that they disqualify Chinese exporters from individual treatment even in 
cases where there is no close relationship.
149 
88. Lastly, China notes that even assuming that th e European Union seeks to identify a single 
exporter or producer by applying the IT test under Article 9(5), no individual dumping margin is 
ultimately calculated for the "State".  Indeed, the principle that an "individual dumping margin" needs 
to be determined for each exporter or producer w ould require that an individual dumping margin be 
determined for the "State", that is, the group of  companies found not to fulfil the IT conditions.  
According to China, the European Union does not determine such an individual dumping margin for 
the "State", but rather it determines a country-wid e "residual" dumping margin that is, in most cases, 
based on "facts available" and applicable to a ll cooperating non-IT exporting producers as well as to 
all non-cooperating exporting producers.150 
(c) Article 9.2 of the Anti-Dumping Agreement  
89. China submits that the Panel correctly conclude d that Article 9(5) of the Basic AD Regulation 
is inconsistent with Article 9.2 of the Anti-Dumping Agreement .  Article 9.2 requires that 
anti-dumping duties be imposed on an individual basis and that a country-wide duty can only be 
imposed in the circumstances expressly referred to in Article 9.2, third sentence.  Article 9.2, third 
sentence, however, does not authorize the automati c imposition of a country-wide duty in the case of 
imports from NMEs.  Furthermore, the "State" cannot be regarded as a "supplier" or a "source" within 
the meaning of Article 9.2 of the Anti-Dumping Agreement .151 
                                                      
149China's appellee's submission, para. 209. 
150China's appellee's submission, para. 211. 
151China's appellee's submission, para. 219.  WT/DS397/AB/R 
 Page 37 
 
 
  90. China submits that the fact that Article 9.2,  first sentence, refers to the imposition of 
anti-dumping duties with respect to a "product" does not entail an authorization to impose country-
wide duties.  In China's view, there is no cont radiction in acknowledging that the imposition of 
anti-dumping duties is made with respect to "produ cts" as well as for each "producer" or "exporter" 
concerned.  Indeed, the panel in EC – Bed Linen  stated that "individual dumping margins are 
determined for each producer or exporter un der investigation, and for each product under 
investigation".152  China agrees with the Panel's interpreta tion of the word "sources" as necessarily 
referring to "producers" and/or "exporters" of the product under investigation.  This reading finds 
support in Article 8 of the Anti-Dumping Agreement , which refers to "sources from which price 
undertakings have been accepted", when read in c onnection with Article 9.2, first sentence.  By 
definition, only exporters—and not countries—may o ffer such price undertakings.  China also finds 
support for that conclusion in the language of Ar ticle 9.2, itself referring to the "sources found to be 
dumped".  Since dumping is determined on an indi vidual basis, it follows that "sources found to be 
dumped" need to refer to exporters  individually found to be dumping.153  China characterizes the 
European Union's reference to the term "injury" in Ar ticle 9.2, first sentence, as entirely irrelevant for 
the purposes of determining whether Article 9.2 cont ains the obligation that anti-dumping duties must 
be imposed on an individual basis.  Whereas the te rm "injury" is a country-wide rather than a 
company-specific concept, the panel in EC – Salmon (Norway)  pointed out that "[t]he [ Anti-Dumping 
Agreement ] makes clear that a determination of dumping is individual" even though "a single injury 
determination is made in each investigation".154 
91. China rejects the European Uni on's reading of the term "appropriate" in Article 9.2, first 
sentence, as referring to the "duty rate appropriate to  the country concerned", and submits that the use 
of the word "appropriate" rather confirms the ru le that anti-dumping duties must be imposed on an 
individual basis.  The panel in EC – Salmon (Norway)  defined the term "appr opriate" as "'proper' or 
'fitting' in the context of an anti-dumping investigation".155  In this regard, Chin a notes that the context 
of an anti-dumping investigation includes the dete rmination of the dumping margin, which must, as a 
rule, be calculated on an individual basis, in  accordance with Articles 2 and 6.10 of the Anti-Dumping 
Agreement .  Therefore, an anti-dumping duty must be deemed to be "appropriate" for a particular 
exporting producer when it does not exceed the indi vidual dumping margin determined for that 
                                                      
152China's appellee's submission, para. 224 (quoting Panel Report, EC – Bed Linen , para. 6.118). 
153China's appellee's submission, para. 226. 
154China's appellee's submission, para. 227 (quoting Panel Report, EC – Salmon (Norway) , 
para. 7.128). 
155China's appellee's submission, para. 228 (quoting Panel Report, EC – Salmon (Norway) , 
para. 7.704). WT/DS397/AB/R 
Page 38  
 
  exporting producer.  China also notes that Article 9. 2, first sentence, provides that an anti-dumping 
duty (singular) be collected in appropriate amounts (plural) on imports from all sources.
156 
92. With respect to the interpretation of  Article 9.2, second sentence, of the Anti-Dumping 
Agreement , China submits that the Panel properly found that the obligation "to name" each "supplier" 
necessarily implies the obligation to impose anti-dump ing duties on an individual basis.  China also 
agrees with the Panel's interpretation of the term  "suppliers", in the second and third sentences of 
Article 9.2, as referring to the individual foreign "p roducers" or "exporters" of the product subject to 
the anti-dumping investigation.  In this respect, Ch ina rejects the European Union's argument that the 
second sentence of Article 9.2 merely imposes an obligation "to name", and that this "naming" 
obligation may serve to distinguish between ex porters or producers who are subject to the 
anti-dumping duties on that product and those ne w exporters who may request a review under 
Article 9.5 of the Anti-Dumping Agreement .  China fails to see what u tility an obligation to name each 
supplier would have if the genera l obligation set out in Article 9.2 was not to determine and impose 
the anti-dumping duties on an individual basis.157 
93. China points out that Articles 6.10 and 9.4 of the Anti-Dumping Agreement  are relevant 
context for the purposes of interpreting Article 9.2 and confirming that it contains an obligation to 
impose individual anti-dumping duties on each supplier.  In China's view, the obligation to determine 
individual dumping margins contained in Article 6. 10 would be rendered meaningless if no similar 
rule was contained in Article 9.2.  In a similar ve in, if, pursuant to the second sentence of Article 9.4, 
an individual anti-dumping duty must be imposed on those exporters or producers not included in the 
sample to the extent they provided the necessary in formation, it logically follows that an individual 
anti-dumping duty must necessarily be determined for those exporters/producers that are included in the sample (in case sampling is used), as well as a ll the exporters/producers that have provided the 
necessary information (if sampling is not used).
158  When Article 9.2 of the Anti-Dumping Agreement  
is read in its context it becomes clear that the i nvestigating authorities have the general obligation to 
impose anti-dumping duties on an individual basis, and th at the sole exception to that rule is the one 
identified in the third sentence of Article 9.2. 
94. China contests the European Union's submissi on that the fact "that Article 9.2 does not 
require an individual imposition of anti-dumping du ties on all known exporters or producers is also 
supported by the purpose of imposing anti-dumping duties", namely, to "offset or prevent 
                                                      
156China's appellee's submission, para. 229.  
157China's appellee's submission, para. 232. 
158China's appellee's submission, para. 237.  WT/DS397/AB/R 
 Page 39 
 
 
  dumping".159  Article VI:2 of the GATT 1994 certainly provides that a Member may levy an 
anti-dumping duty on any product fou nd to be dumped and not exceeding the dumping margin in 
respect of such a product "in order to offset or prevent dumping";  however, in China's view, this does 
not authorize Members to impose anti-dumping duties on the basis of whatever circumstances and pursuant to any methodology they wish to choose for the calculation of the margin of dumping.
160 
95. China agrees with the Panel's in terpretation that the third sentence of Article 9.2 permits the 
imposition of country-wide duties when two conditions  are met.  First, th ere must be "several 
suppliers from the same country" and, second, it must be  "impracticable to name  all these suppliers".  
However, China rejects the European  Union's interpretation of the term "impracticable" that leads the 
European Union to read Article 9.2 as permitting the imposition of anti-dumping duties on a country-
wide basis in cases other than the sampling scenario .  China considers that a proper interpretation of 
the word "impracticable" in acco rdance with Article 31 of the Vienna Convention on the Law of 
Treaties161 (the " Vienna Convention ") does not lead to the conclusion, as the European Union submits, 
that the exception provided for in Article 9.2, thir d sentence, includes situations where the imposition 
of individual duties would be rendered "ineffective" (that is, by actually not offsetting or preventing 
dumping).  The ordinary meaning of the word "impracticable" is "impossible in practice", but it does 
not encompass something that is "ineffective, not f easible or not suited for being used for a particular 
purpose".162  China fails to see how something impossible "for practical reasons" would cover 
situations where the imposition of anti-dumping duti es on an individual basis would be "ineffective" 
for the purpose of offsetting or preventing dumping. 
96. China further notes that the word "impractic able" is used in other provisions of the 
Anti-Dumping Agreement  and in other covered agreem ents.  Article 6.10 of the Anti-Dumping 
Agreement  expressly sets out that it is a "large number of producers or exporters" that makes 
individual dumping determinations "imp racticable".  It flows from the language of this provision that 
"impracticable" is something not feasible "for practical reasons".  Similarly, Article 8.3 of the 
Anti-Dumping Agreement  expressly establishes that an instan ce of impracticability is where "the 
number of actual or potential exporters is too great".  China notes that, under the Anti-Dumping 
Agreement , the word "(im)practicable" is also used in Articles 6.1.1, 6.4, 6.13, 12.2.1, and 
paragraph 7 of Annex II thereto, and that in all these provisions this term refers to something which is 
(not) possible for practical reasons, and not to someth ing which is (not) effective.  Furthermore, the 
                                                      
159China's appellee's submission, para. 239 (quoting European Union's appellant's submission, 
para. 164 (original emphasis)). 
160China's appellee's submission, para. 241. 
161Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
162China's appellee's submission, para. 249 (quoting European Union's appellant's submission, 
para. 172). WT/DS397/AB/R 
Page 40  
 
  word "practicable" appears in Article 22.3 of th e DSU.  In this regard, the arbitrators in EC – 
Bananas III (Ecuador) (Article 22.6 – EC)  emphasized the difference between the meaning of 
"practicable" and "effective" by stating that "the ordinary meaning of 'practicable' is 'available or 
useful in practice' … .  In contrast, the term 'eff ective' connotes 'powerful in effect', 'making a strong 
impression', 'having an effect or result'".
163 
97. China also contests the European Union's argu ment that, since the purpose of imposing and 
collecting anti-dumping duties is to offset or prevent dumping, the imposition of duties on an 
individual basis becomes "impracticable" when such  imposition renders the duties ineffective because 
they do not actually address the "source of pr ice discrimination".  China notes that the 
European Union fails to explain or define the vague  concept of "source of price discrimination", and 
recalls that there is no rule in Article VI of the GATT 1994 or the Anti-Dumping Agreement  that 
addresses it.  China further submits that, even if the purpose of the Anti-Dumping Agreement  is to 
offset or prevent dumping, nothing in the Anti-Dumping Agreement  authorizes WTO Members to 
impose anti-dumping duties pursuant to any methodology they choose in clear deviation of the obligation set forth in Article 1 of the Anti-Dumping Agreement , which unambiguously provides that 
an anti-dumping measure shall only be  applied under the circumstances provided for in Article VI of 
the GATT 1994 and pursuant to investigations  initiated and conducted in accordance with the 
provisions of the Anti-Dumping Agreement .
164  China also notes that, ev en assuming that the word 
"impracticable" would mean "ineffective", what is  "impracticable" under Article 9.2, second sentence, 
is the action of "naming" the suppliers on an indi vidual basis and not the action of "imposing" the 
duties on an individual basis.165  Lastly, although in China's view there is no need to resort to 
supplementary means of interpretation w ithin the meaning of Article 32 of the Vienna Convention , 
since the application of customary rules of inte rpretation enshrined in Article 31 do not leave its 
meaning ambiguous or obscure and do not lead to a r esult that is manifestly absurd or unreasonable, 
the travaux préparatoires  confirm the understanding that "impracticable" only relates to the existence 
of "several suppliers from the same country" for the purposes of Article 9.2 of the Anti-Dumping 
Agreement . 
98. In particular, China contends that an examinati on of the negotiating history of Article 8 of the 
Kennedy Round Anti-Dumping Code  (now Article 9.2 of the Anti-Dumping Agreement ) confirms that 
the drafters' aim was to clarify whether a Member  would be authorized to impose anti-dumping duties 
only with respect to those particular exporters f ound to be dumped or, a dditionally, on all imports 
                                                      
163China's appellee's submission, para. 264 (quoting Decision by the Arbitrators, EC – Bananas III 
(Ecuador) (Article 22.6 – EC) , paras. 70-72).  
164China's appellee's submission, para. 269. 
165China's appellee's submission, para. 270.  WT/DS397/AB/R 
 Page 41 
 
 
  from the country of origin of the dumped imports.166  China notes that no refe rence whatsoever to the 
specific issue of imports from NMEs can be found in  the negotiating history of this provision.  In 
addition, China submits that the fact that Article 2(g) of the Kennedy Round Anti-Dumping Code  
(which incorporates the second Ad Note to Article VI:1 of the GATT 1994) was also discussed, and 
eventually included in the Anti-Dumping Code  during the Kennedy Round, does not demonstrate that 
the second Ad Note and Article 8 necessarily address the same issues.167  On the contrary, in China's 
view, there is no link between the Ad Note and Article 9.2 of the Anti-Dumping Agreement . 
99. China agrees with the Panel's interpretation of the terms "sources" and "suppliers" as referring 
to "the individual foreign producers or exporters of the product subject to the anti-dumping investigation".
168  With respect to the European Union's claim that the Chinese State can be deemed 
the actual "supplier", China submits that, even if th e State could be regarded as a "supplier", it would 
nonetheless be necessary to prove that the State actually "exports" or "produces" the product 
concerned.  In other words, the fact that the St ate may have some influence on the manner in which 
exporting producers conduct their business does not su ffice to establish that the State itself is an 
"exporter" or a "producer".  Regarding the Europ ean Union's assertion that the term "supplier" can 
also refer to the "actual source of price discriminat ion", China submits that there is no legal basis, 
either in the wording of Article 9.2 or in the ne gotiating history of that provision, to support such a 
conclusion.169 
100. China further submits that, even assuming th at the words "source" or "supplier" could 
somehow include the concept of "actual source of pr ice discrimination", the Panel correctly found that 
the State cannot be presumed to be the source of pri ce discrimination.  In China's view, the lack of 
any legal basis supporting such a presumption is suffici ent to reject the Europ ean Union's claim and, 
therefore, the Panel did not fail to make an obj ective assessment of the matter as required by 
Article 11 of the DSU.  Notably, the argument that  the State in NMEs can be presumed to be the 
"source of price discrimination" flows from another presumption, namely, that China is indeed an 
NME, which China also contests.  Indeed, China recalls that its Accession Protocol does not contain 
an understanding that China is an NME but merely c ontains the possibility, limited in time and only 
for specific WTO Members, to derogate from the ge neral rules governing normal value determination.  
                                                      
166China's appellee's submission, paras. 274-285. 
167China's appellee's submission, para. 286. 
168China's appellee's submission, para. 292 (quoting Panel Report, para. 7.104).  
169China's appellee's submission, para. 300. WT/DS397/AB/R 
Page 42  
 
  In China's view, the fact that many countries ha ve expressly acknowledged that China is a market 
economy confirms this position.
170 
101. China contends that, even assuming that the te rms "suppliers" or "sources" could be read as 
referring to the "source of price discrimination", the IT  test contained in Article 9(5) of the Basic AD 
Regulation does not aim at identifying the "source of price discrimination".  Indeed, if this were the case, there would be no reason for the European Un ion to apply different treatment to market 
economies and NMEs.  China notes, instead, that, accord ing to the European Union, the influence or 
interference by the State in NMEs makes the Stat e the "source of price discrimination", whereas the 
same influence or interference by the State in ma rket economies does not make the State the "source 
of price discrimination".
171 
(d) Article I:1 of the GATT 1994 
102. China submits that the Panel properly found that Article 9(5) of the Basic AD Regulation is 
inconsistent with Article I:1 of the GATT 1994.  Ch ina also submits that the Panel did not fail to 
comply with Article 11 of the DSU and that it did not err in finding that the Anti-Dumping Agreement  
does not allow for the different treatment of imports  from NMEs provided for in Article 9(5) of the 
Basic AD Regulation. 
103. China agrees with the Panel's conclusion that Article 9(5) of the Basic AD Regulation is 
inconsistent with the MFN obligation contained in Article I:1 of the GATT 1994.  China contests the 
European Union's reading of the word "unconditi onally" as permitting an advantage to be made 
available subject to conditions, as long as this does not result in de facto  discrimination.  Notably, in 
Canada – Autos , the panel clearly stated that once an advantage per se  has been granted to any 
product of a WTO Member, the obligation to accord it "unconditionally" to the like product of any 
other WTO Member means that "the extension of that advantage may not be made subject to conditions with respect to the situ ation or conduct of those countries".
172  In the light of this finding, 
subjecting the determination of individual dumpi ng margins and imposition of individual duties (the 
advantage  granted to all WTO Members that are consider ed market economies) to  the fulfilment of 
the Article 9(5) IT test requirements (the condition  imposed on China) is de jure  inconsistent with the 
obligation set out in Article 1:1 of the GATT 1994.  Only in the hypothetical situation in which the 
IT test was meant to apply to all countries—i rrespective of their market economy or NME status—
would it be necessary to prove that Article 9(5) results in de facto  discrimination in order to find a 
                                                      
170China's appellee's submission, para. 304. 
171China's appellee's submission, para. 312. 
172China's appellee's submission, para. 323 (quoting Panel Report, Canada – Autos , para. 10.18).   WT/DS397/AB/R 
 Page 43 
 
 
  violation of Article I:1 of the GATT 1994.  China rejects the European Union's assertion that no 
discrimination arises under Article 9(5) of the Basic AD Regulation because imports from market 
economies are not "like" imports from NMEs.  China also contends that whether or not imports from 
market economies and NMEs are different in natu re is irrelevant for the purpose of the present 
dispute, precisely because the measure at issue is not origin-neutral on its face.173 
104. China notes that the Panel addressed the European Union's argument that there is a difference 
in the nature of imports from NMEs, which justifi es different treatment.  In this respect, the Panel 
correctly concluded that the European Union mere ly asserted that imports from market economies and 
NMEs are different in nature, without providi ng sufficient factual evidence to support such a 
presumption.  Notably, a panel's examination and weighing of the evidence submitted falls within the 
scope of the panel's discretion as the trier of the facts174, and, in this case, the Panel did examine the 
evidence before it, but eventually concluded that it was insufficient to support the European Union's 
argument. 
105. China further submits that the second Ad Note to Article VI:1 of the GATT 1994 does not 
reflect a recognition by Members that imports fro m market economies and NMEs are different in 
nature.  In China's view, the Ad Note does not refer to NMEs but only to countries that have a 
complete or substantially complete monopoly of trade and where all  domestic prices are fixed by the 
State, this not being China's case.  Moreover, Chin a recalls that the fact that exporters from NMEs 
may be able to show that they act independently from the State casts doubts on the alleged 
fundamental difference in nature between imports  from market economies and NMEs.  China also 
points out that nothing in its Accession Protocol ca n be read as an understanding that China is an 
NME.  China argues that, pursuant to Section 15 of its Accession Protocol, WTO Members are only entitled to "use a methodology that is not based on a strict comparison with domestic prices or costs in 
China"
175 when determining normal value.  By no means does Section 15 of China's Accession 
Protocol authorize Members to derogate from the principles contained in the Anti-Dumping 
Agreement  that dumping margins and anti-dumping duties must be determined and imposed on an 
individual basis.  In any event, China submits th at, even assuming that China's Accession Protocol 
would permit WTO Members to treat China as an NM E, this would still fail to demonstrate that 
imports from NMEs are different in nature and thus that different treatment is justified.176 
                                                      
173China's appellee's submission, para. 328. 
174China's appellee's submission, para. 339 (quoting Appellate Body Report, US – Wheat Gluten , 
para. 151). 
175China's appellee's submission, para. 344. 
176China's appellee's submission, para. 345. WT/DS397/AB/R 
Page 44  
 
  106. China requests the Appellate Body to uphold the Panel's finding that Article 9(5) of the Basic 
AD Regulation violates Article I:1 of the GATT 1994, even in the event it reverses the Panel's 
findings under Articles 6.10 and 9.2 of the Anti-Dumping Agreement .  China rejects the 
European Union's argument that if Article 9(5) is found to be consistent with Articles 6.10 and 9.2 of 
the Anti-Dumping Agreement  it must, by definition, also be c onsistent with Article I:1 of the 
GATT 1994 by virtue of the lex specialis  principle contained in the General Interpretative Note to 
Annex 1A of the  WTO Agreement .  China recalls that the panel in EC – Bananas III  established that a 
conflict only exists where obligations in di fferent agreements cannot be complied with 
simultaneously.
177  Thus, it fails to see, in the presen t case, an actual conflict between the 
Anti-Dumping Agreement  and Article I:1 of the GATT 1994.  In China's view, even if the Appellate 
Body were to find that the Anti-Dumping Agreement  is silent (hence does not expressly prohibit) on 
the question of whether investigating authorities ma y use special criteria when examining whether a 
country-wide or a company-specific duty must be im posed with respect to imports from NMEs only, 
it would still need to examine whether Article  I:1 of the GATT 1994 prohibits treating WTO 
Members differently when deciding on the imposition of a country-wide or individual duty.178 
(e) Article XVI:4 of the WTO Agreement  and Article 18.4 of the 
Anti-Dumping Agreement  
107. China requests the Appellate Body to uphold th e Panel's finding that the European Union 
acted inconsistently with Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping 
Agreement .  China submits that, for all the reasons above , the Appellate Body should also find that the 
European Union failed to "ensure the conformity  of its laws, regulations and administrative 
procedures with its obligations as provided in the annexed Agreements", in accordance with 
Article XVI:4 of the WTO Agreement .  Likewise, the European Uni on failed to "take the necessary 
steps, of a general or particular character, to en sure … the conformity of its laws, regulations and 
administrative procedures with the provisions of the [ Anti-Dumping Agreement ] ", in accordance with 
Article 18.4 of the Anti-Dumping Agreement .179 
2. The Panel's Findings Regarding Article 9(5) of the Basic AD Regulation, 
"As Applied" in the Fasteners Investigation 
108. China requests the Appellate Body to uphold the Panel's finding that the EU authorities 
violated Articles 6.10 and 9.2 of the Anti-Dumping Agreement  with respect to the IT determinations in 
                                                      
177China's appellee's submission, paras. 356 and 357 (referring to Panel Reports, EC – Bananas III , 
paras. 7.159 and 7.160). 
178See China's appellee's submission, para. 359. 
179China's appellee's submission, para. 363.  WT/DS397/AB/R 
 Page 45 
 
 
  the fasteners investigation.  China submits that a measure that is found to be "as such" inconsistent 
with WTO obligations will also necessarily be in consistent "as applied".  China notes that the 
European Union relies on the fact that all coopera ting companies who requested individual treatment 
obtained it to contend that the application of Artic le 9(5) of the Basic AD Regulation did not actually 
lead to a denial of the rights contained in the relevant WTO rules, namely, individual treatment.  China stresses that Article 9(5) not only prevents  the result that suppliers from NMEs are entitled to 
obtain but also subjects them to an additional bur den by requiring such exporters to request and 
demonstrate that they fulfil the c onditions laid down in Article 9(5).
180  Therefore, the Panel correctly 
concluded that Article 9(5) of the Basic AD Regula tion was inconsistent "as such" with Articles 6.10 
and 9.2 of the Anti-Dumping Agreement  and, for the same reasons, also inconsistent "as applied" in 
this investigation.181 
3. The Panel's Findings under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  
109. China requests the Appellate Body to uphold th e Panel's finding that the European Union 
acted inconsistently with Article 6.4 of the Anti-Dumping Agreement  by not providing timely 
opportunities for the Chinese interested parties to see information regarding the product types on the 
basis of which normal value was established.  In addition, China requests the Appellate Body to 
uphold the Panel's finding that the European Union acted inconsistently with Article 6.2 of the Anti-Dumping Agreement  because the Chinese interested parti es were not able to defend their 
interests.  China requests the Appellate Body to di smiss in its entirety the European Union's appeal 
under these provisions.  
(a) The "Information" Subject to the Obligations under Articles 6.4 
and 6.2 of the Anti-Dumping Agreement  
110. China submits that the product types used fo r the determination of normal value were 
correctly considered by the Panel as ''informati on'' within the meaning of Article 6.4 of the 
Anti-Dumping Agreement . 
111. With regard to the interpretation of Article 6.4,  China maintains that the ordinary meaning of 
the term ''information'' indicates that it is a broad te rm covering any type of knowledge or facts and is 
not, as the European Union argues, limited to ''facts and raw data rather than factual determinations 
                                                      
180China's appellee's submission, para. 369. 
181China's appellee's submission, para. 370 (referring to Panel Report, para. 7.148). WT/DS397/AB/R 
Page 46  
 
  and conclusions by the investigating authorities''.
182  In China's view, this interpretation is confirmed 
by the other provisions of the Anti-Dumping Agreement  in which the term is used, including 
Articles 2.4, 5.2, 8.6, and 11.2.  This interpre tation is also confirmed by the panel's finding in Korea – 
Dairy  that the term "information" in Article 12.2 of the Agreement on Safeguards  differs from "issues 
of fact and law" in that it is more general.183 
112. China argues that none of the prior disputes relied upon by the European Union supports the 
interpretation that the term ''information'' is limite d to ''facts and raw data''.  The panel's finding in 
Korea – Certain Paper (Article 21.5 – Indonesia)  merely confirms that the relevant information must 
be before the investigating authorities in the re levant anti-dumping proceeding and does not restrict 
the meaning of ''information'' to ''raw data''.184  Moreover, the European Union's reliance on the panel's 
findings in Korea – Certain Paper  is misplaced, because the panel's findings in that dispute actually 
support the view that the term ''information'' cove rs also the facts as processed by the investigating 
authority.185  As for the panel's finding in US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.5 – Argentina) , it merely indicates that Article 6.4 applies to ''information'' as opposed to 
the ''reasoning'', but does not suggest that the information is limited to raw data and facts.186  China 
further argues that, in EC – Tube or Pipe Fittings , the Appellate Body did not assimilate the term 
"information" under Article 6.4 as "raw data", as the European Union argues187, but merely noted the 
panel's factual finding that the authority's reasoning, as well as certain raw data, had not been disclosed to the interested parties.
188  In addition, the information f ound to be covered by Article 6.4 
in that dispute contained data that had been treat ed, aggregated, and summarized by the investigating 
authority, as well as the authority's evaluation of th ese data.  China adds that the "information" found 
to be subject to Article 6.4 in EC – Tube or Pipe Fittings  is thus similar to the product types in the 
fasteners investigation, which are categories of pr oducts established on the b asis of raw data provided 
by the Indian producer, Pooja Forge. 
113. China contends that the word "relevant" in  Article 6.4 supports the interpretation that 
"information" under Article 6.4 is not limited to ra w data and facts but any types of facts that the 
                                                      
182China's appellee's submission, para. 380 (quoting European Union's appellant's submission, 
para. 253). 
183China's appellee's submission, para. 379 (quoting Panel Report, Korea – Dairy , para. 7.125). 
184China's appellee's submission, paras. 391 (quoting Panel Report, Korea – Certain Paper 
(Article 21.5 – Indonesia) , para. 6.82) and 392. 
185See China's appellee's submission, para. 393 (referring to Panel Report, Korea – Certain Paper , 
para. 7.201). 
186China's appellee's submission, para. 394 (quoting Panel Report, US – Oil Country Tubular Goods 
Sunset Reviews (Article 21.5 – Argentina) , para. 7.124). 
187See European Union's appellant's submission, para. 254. 
188China's appellee's submission, para. 395 (referring to Appellate Body Report, EC – Tube or Pipe 
Fittings , paras. 138-141).  WT/DS397/AB/R 
 Page 47 
 
 
  interested parties consider relevant to the presentatio n of the case.  As for the context provided by the 
other paragraphs of Article 6, China argues that th e European Union has erroneously tried to create an 
artificial division between the scope of the different ob ligations in Article 6, and appears to argue that 
there can be no overlap between such obligations.  In  China's view, there is a certain overlap between 
the different paragraphs of Article 6 and, in certain cases, one set of facts can give rise to a violation of several due process obligations.  Specifically, the European Union's assertion that Articles 6.1 
to 6.3 of the Anti-Dumping Agreement  address only the right to submit a party's own evidence and 
arguments is incorrect in the light of the text of  these provisions.  This assertion also ignores the 
intertwined nature of a party's right  to make submissions a nd its right to be informed of what the other 
interested parties submit. 
114. In addition, China contends that the repeated re ference to Article 6.5 in the other paragraphs 
of Article 6 illustrates the interrelated nature of  the rights and obligations under Article 6, and 
undermines the artificial distinctions that the Eu ropean Union has tried to draw among different 
paragraphs of Article 6.  Furthermore, recalling its view that the term "information" in Article 6.4 has 
a broad connotation and may also incl ude data that has been treated or  organized by the investigating 
authority, China submits that the term "information"  in Article 6.4 covers an even wider scope than 
"essential facts under consideration" in Article 6.9.  Therefore, China argues, the distinction drawn by 
the European Union between "information" in Artic le 6.4 and "essential facts under consideration" in 
Article 6.9 is baseless.  Finally, China submits th at it would frustrate the object and purpose of the 
important obligations contai ned in Article 6 of the Anti-Dumping Agreement  if the scope of the term 
''information'' were to be interpreted restrictively,  thereby depriving interest ed parties of their essential 
due process rights.  In China's view, the sole limit ations to the right granted in Article 6.4 are 
expressly laid down in the provision itself. 
115. Turning to the facts of the fast eners investigation, China finds  it ''rather absurd'' that the 
European Union seems to be arguing that the ''pro duct types'' only need to be ''disclosed by the 
investigating authorities as 'essential facts' under Article 6.9''.
189  The European Union's argument 
would imply that, until the disclosure of the "essential facts" towards the end of the investigation, the 
interested parties would have no way of knowing th e basis on which the products used for the normal 
value determination have been gr ouped into "product types".  China argues that this would result in 
the interested parties not only being unable to  comment on the appropriateness of the product 
categories but also, not knowing the physical characteristics of the product types, being unable to request adjustments pursuant to Article 2.4 of the Anti-Dumping Agreement .  China adds that this 
would also be inconsistent with the requirement, in paragraph 151 of the Report of the Working Party 
                                                      
189China's appellee's submission, para. 456. WT/DS397/AB/R 
Page 48  
 
  on the Accession of China to the WTO (C hina's "Accession Working Party Report")
190, that the 
process of investigation be transparent and that sufficient opportunity be given to Chinese producers 
and exporters to make comments. 
(b) Whether the "Information" Was Made Available to the Interested 
Parties in a "Timely" Manner within the Meaning of Article 6.4 of the Anti-Dumping Agreement  
116. China maintains that the European Union fa ils to demonstrate that the Panel acted 
inconsistently with Article 11 of the DSU in its as sessment of the facts in relation to its finding that 
the European Union failed to make information av ailable on a timely basis.  China argues that the 
evidence referred to by the European Union was not de liberately disregarded by the Panel, and that, in 
any event, the conclusions the European Union dr aws from these pieces of evidence are incorrect and 
irrelevant. 
117. China maintains that, during the Panel proceedi ngs, the European Union did not refer to the 
Information Document in rebuttal of China's claim th at the European Union acted inconsistently with 
Articles 6.2 and 6.4 of the Anti-Dumping Agreement .  Rather, before the Panel, the European Union 
argued that the Information Document should not be  taken into account because it was "an informal 
document that simply reflects a work in progress and has no legal status whatsoever in EU law or in 
the context of the Anti-Dumping Agreement."
191  Therefore, there is no basis for the 
European Union's assertion that the Panel disr egarded the Information Document, when the 
European Union itself did not claim that th is document constituted relevant evidence. 
118. In any event, China considers that the Information Document should not lead to a conclusion 
different from that reached by the Panel.  The parity of wording between the General Disclosure 
Document and the Information Document regarding ''product types'' does not, in China's view, detract 
from the Panel's conclusion on this issue for two main reasons.  First, the relevant wording was a mere 
statement by the European Union that it had dete rmined the normal value ''per product type''.  
However, in China's view, this did not change the impression by the Chinese producers since the mere 
reference to ''product types'' was made without clear ly stating that these product types were different 
from the product types constructed on the basis of th e full PCNs.  Considering the consistent practice 
of the European Union in previous investigations  to make the comparison on a PCN basis, this was 
not sufficient information to draw the necessary c onclusions that there was a difference between the 
"product types" and the PCNs. 
                                                      
190WT/ACC/CHN/49 and WT/ACC/CHN/49/Corr.1. 
191China's appellee's submission, para. 473 (quoting European Union's second written submission to the 
Panel, para. 120).  WT/DS397/AB/R 
 Page 49 
 
 
  119. Second, China maintains that neither the Information Document nor the General Disclosure 
Document was specific enough to allow a Chinese producer to know on which basis the comparison 
would be made.  The General Disclosure Document did not provide any information as to the relevant 
characteristics of those product groups, or how they  were determined, and the same applies to the 
Information Document.  China argues that the ''fact ual context supports an interpretation that the use 
of such ambiguous wording by the Commission was intentional"192, as further illustrated by the very 
ambiguous reply of the Commission to the two Chinese exporters who had doubts regarding the 
comparison and requested clarification.  To Chin a, it was only when these exporters made a second 
request that the Commission clearly  stated that the product types had not been constructed on the 
basis of the full PCNs, but were instead establis hed on the basis of the strength class and the 
distinction between standard and special fasteners. 
120. China further contends that, even assuming that  the Chinese producers had been informed of 
the use of product types by either the Information Document or the General Disclosure Document, this would be irrelevant to the examination of wh ether the European Union complied with Article 6.4 
of the Anti-Dumping Agreement .  Article 6.4 requires an authority to provide "timely opportunities" to 
see the information requested by the interested parties.  In the fast eners investigation, the Commission 
did not inform the Chinese interested parties about  the basis of its normal value determination until 
one working day before the deadline to make comments, following two requests by the Chinese 
interested parties.  Thus, the Panel's finding that  the investigating authorities provided ''timely 
opportunity'' to see the information requested is pr operly supported by the relevant evidence on the 
record. 
121. China submits that the contention put forward by the European Union regarding the ability of 
Chinese producers to make presentations on the b asis of the ''information'' provided by the 
European Union was rightly dismissed by the Panel as irrelevant to its analysis under Article 6.4 of 
the Anti-Dumping Agreement .  The comments by certain Chinese exporters referred to by the 
European Union were, according to China, made in  a context that was completely unrelated to the 
determination of the product types that would be  used for the comparison between normal value and 
export price.  China submits that the Panel consider ed these ''presentations'' but rightly concluded that 
they were irrelevant to the assessment  of China's claim under Article 6.4. 
122. With respect to the letter of 24 November 2008
193, in which one of the Chinese interested 
parties who requested information concerning produc t types commented on this ''information'', China 
                                                      
192China's appellee's submission, para. 484. 
193Panel Exhibit EU-12, supra , footnote 82. WT/DS397/AB/R 
Page 50  
 
  disagrees with the European Union that this piece of  evidence indicated that a ''timely opportunity'' 
had been provided.  China maintains that the c ontent of the information given to the Chinese 
interested parties was not sufficient to enable a substantiated claim for additional adjustments.  
Specifically, the European Union did not provide the list of ''product types'' and their correlation with the PCNs, even though such information had been  requested.  Furthermore, no precise information 
regarding the distinction between special and sta ndard fasteners was provided by the Commission.  
China submits that the fact that the Chinese produ cer did not request an extension is irrelevant, 
because it was for the Commission to provide the in formation in a timely manner, and not for the 
interested parties to try to gain additional time.  Thus, the Panel rightly decided not to rely on this 
letter in reaching its finding. 
(c) The Panel's Finding under Article 6.2 of the Anti-Dumping 
Agreement  
123. China submits that, although the European Unio n claims that the Pa nel's consequential 
finding under Article 6.2 is erroneous, it does not prov ide any additional arguments other than those it 
has provided in its arguments under Article 6.4 of the Anti-Dumping Agreement .  Moreover, contrary 
to the European Union's assertion, the Panel did not r ead the obligation of Article 6.4 into Article 6.2, 
thus collapsing both provisions.  Rather, even t hough there might be provisions more specific than 
Article 6.2 that govern a certain claim, it may be  necessary for a panel to also address the claims 
under Article 6.2. 
124. China further contends that the European Union' s characterization of the Panel's finding under 
Article 6.2 as "purely consequential"
194 is erroneous.  Rather, the Panel found a violation of 
Article 6.2 that was independent from Article 6.4, on the basis of the fact that the Chinese producers 
were denied a full opportunity for the defence of  their interests because the Commission provided 
information concerning the product types used in the determination of the normal value only at a very 
late stage of the proceedings.  Thus, according to  China, the Panel found a twofold violation of 
Article 6.2:  (i) the consequential violation resultin g from Article 6.4;  and (ii) a separate violation 
resulting from the Commission's failure adequately to  provide information that would have allowed 
the Chinese producers to defend their interests in the investigation. 
                                                      
194China's appellee's submission, para. 505 (quoting European Union's appellant's submission, 
paras. 236, 244, 247, and 275).  WT/DS397/AB/R 
 Page 51 
 
 
  (d) Conclusion 
125. On the basis of the above arguments, China requ ests the Appellate Body to uphold the Panel's 
findings that the European Union acted incons istently with Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  with respect to aspects of the normal value dete rmination, and in particular the information 
on "product types", their characteristics, and their relationship with the PCNs. 
4. The Panel's Findings under Articles 6.5 and 6.5.1 of the Anti-Dumping 
Agreement  Regarding Non-Confidential Questionnaire Responses 
126. China requests the Appellate Body to uphold th e Panel's findings that the European Union 
acted inconsistently with Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement  with respect to the 
non-confidential questionnaire responses of domestic  producers, and the confidential treatment of 
Pooja Forge's questionnaire responses.  Specifically, China agrees with the Panel that Article 6.5.1 
requires investigating authorities to ensure th at parties provide "appropriate" non-confidential 
summaries of information submitted in confidence,  or, in exceptional circumstances, "appropriate" 
statements of reasons explaining why summarization is  not possible.  China further maintains that the 
Panel rightly determined that it could make findings on China's cl aims regarding the questionnaire 
responses of Pooja Forge.  On the substance of this  claim, China asserts that Article 6.5 applies to 
analogue country producers because they  can be considered "parties to an investigation", or, in the 
alternative, because the European Un ion created a new class of "inter ested parties" when it employed 
an alternative method of determining normal value using analogue country producers. 
(a) Non-Confidential Summaries of Domestic Producers' Questionnaire 
Responses 
127. China agrees with the Panel that Article 6.5.1 of the Anti-Dumping Agreement  requires an 
investigating authority to ensure that, where inform ation provided in confidence is not susceptible to 
non-confidential summary, an "appropriate" statemen t of reasons explaining why summarization is 
not possible is required.  According to China, Artic le 6.5.1 entails a two-part obligation.  First, 
Article 6.5.1 obliges an investigating authority to  require non-confidential summaries of confidential 
information, or, where applicable, statements of  the reasons why summarization is not possible.  
Second, an investigating authority must require that these summaries or statements be "appropriate" to satisfy Article 6.5.1.
195  In China's view, interpreting this pr ovision in a way that would allow less 
than "appropriate" compliance with its terms woul d render the obligation useless and would violate a 
                                                      
195China's appellee's submission, para. 523. WT/DS397/AB/R 
Page 52  
 
  corollary to the general rule of interpretation th at an interpreter should not adopt a reading that 
reduces the provisions of treaty "to redundancy or inutility".
196 
128. China reminds the Appellate Body that, as sever al panel reports have already recognized, the 
Anti-Dumping Agreement  is aimed at WTO Members, not private parties197, and it is for the 
investigating authority of a Member, therefore, to  determine whether a party has substantiated its 
claim that summarization of confidential information is not possible.198  China disagrees with the 
European Union that authorities are not given a "stick"199 with which to enfor ce such an obligation, 
and suggests that both Article 6.5.2200 and Article 6.8201 allow authorities to disregard information that 
is not submitted in compliance with Article 6.5 as a whole.  Furthermore, China contends that the European Union's obligations under Article 6.5.1 are not affected by the fact that Chinese exporters 
did not affirmatively request improved summaries
202, or by the fact that exporters were able to make 
presentations on the issues to which the confiden tial information related without having received 
improved summaries.203 
129. Contrary to the European Union's interpretati on, China argues that Article 6.5 is only one 
aspect of the overall transparency requirement cont ained in both Articles 6.5 and 6.5.1, and that 
Article 6.5.1 "narrowly circumscribes" the right to confidential treatment.204  Therefore, 
notwithstanding the protection of confidentiality, interested parties must be given access to non-
confidential summaries of confidential information in order to allow them the exercise of their basic 
procedural rights.  Only in the exceptional circ umstance that summarization is not possible can one 
derogate from the obligation to provide a non-conf idential summary.  In China's view, if these 
conditions are not met, confidential treatment must be denied or the information must be disregarded.
205  Read within the overall framework of Article  6, then, confidential treatment is rather 
an exception to the main objective to ensure that interested part ies have a full opportunity for the 
defence of their interests.206 
                                                      
196China's appellee's submission, paras. 523 and 524. 
197China's appellee's submission, para. 525. 
198China's appellee's submission, para. 527. 
199China's appellee's submission, para. 530 (quoting European Union's appellant's submission, 
para. 321). 
200China's appellee's submission, para. 531. 
201China's appellee's submission, para. 532. 
202China's appellee's submission, para. 534. 
203China's appellee's submission, para. 535. 
204China's appellee's submission, paras. 537 and 538. 
205China's appellee's submission, para. 538. 
206China's appellee's submission, paras. 540 and 541.  WT/DS397/AB/R 
 Page 53 
 
 
  130. China further submits that the language of Article 6.5.1—that authorities "shall require" 
non-confidential summaries, and that these summaries "shall be" sufficiently detailed—does not 
suggest only a "best endeavours" obligation.  Rather , Article 6.5.1 contains "an obligation to achieve 
the required result, irrespective of the nature of  the endeavours undertaken by the investigating 
authorities".207  But even if Article 6.5.1 did contain a "b est endeavours" obligation, China argues that 
the European Union still failed to comply with it.  The panel in Egypt – Steel Rebar  analyzed what is 
meant by a party's "best endeavours", and found that the term "connotes efforts going beyond those 
that would be considered 'reasonable' in the ci rcumstances" and implies a "high level of effort".208  
While the Commission may have requested th at domestic producers submit non-confidential 
summaries, it did not do so with respect to the provision of statements of reasons explaining why 
summarization was not possible in the case that no summary was provided.209  China urges the 
Appellate Body to accept the findings of the panel in Mexico – Olive Oil , which held that an 
investigating authority should examine a party's reasons for not summarizing confidential information 
to determine whether they constitute exceptional circumstances.210  It also disputes the 
European Union's reading of that case as factually distinguishable from the fasteners investigation.211 
(b) Confidential Treatment of Information Obtained from Pooja Forge 
(i) Terms of reference and due process 
131. In response to the European Union's terms of reference challenge, China requests the 
Appellate Body to uphold the Panel's findings that China's claims regarding Pooja Forge's 
questionnaire responses were properly before it.  The European Union did not raise this claim before 
the Panel, and China contends that the European Union therefore waived its right to have this 
objection heard before the Appellate Body.212  China cites the Appellate Body Report in Mexico – 
Corn Syrup (Article 21.5 – US)  for the proposition that a Member who "fails to raise objections in a 
timely manner, notwithstanding one or more opportuniti es to do so", may be deemed to have waived 
its rights to have a panel consider such objections.213 
132. Even if the Appellate Body finds that the Europ ean Union did not waive its right to raise this 
objection on appeal, China argues that its cl aim under Article 6.5 regarding Pooja Forge's 
                                                      
207China's appellee's submission, para. 549. 
208China's appellee's submission, para. 551 (quoting Panel Report, Egypt – Steel Rebar , para. 7.244). 
209China's appellee's submission, para. 552. 
210China's appellee's submission, para. 557 (quoting Panel Report, Mexico – Olive Oil , para. 7.92). 
211China's appellee's submission, para. 558. 
212China's appellee's submission, para. 570. 
213China's appellee's submission, para. 574 (quoting Appellate Body Report, Mexico – Corn Syrup 
(Article 21.5 – US) , para. 50). WT/DS397/AB/R 
Page 54  
 
  questionnaire responses was within the panel's terms of  reference.  In China's view, its panel request 
satisfied the requirements of Article 6.2 of the DS U because the legal basis of the claim was clear.  
China observes that the Appellate Body has drawn a distinction between "c laims" and "arguments"
214, 
and maintains that Article 6.2 theref ore does not require it to explain " why and how  the measure at 
issue violates the provisions" listed in the panel request.215  By including certain of its arguments in its 
panel request, China asserts that it merely foreshad owed arguments that it would later develop in its 
submissions before the Panel, and that this ca nnot be interpreted as narrowing the scope of its 
claim.216  Furthermore, China explains, the reference in  its panel request to "domestic producers" only 
related to its claims under Article 6.5.1, and not to  its claims under Article 6.5, which the Panel found 
to have been violated with regard to the qu estionnaire responses submitted by Pooja Forge on a 
confidential basis.217  Finally, China notes that the sufficiency  of a panel request under Article 6.2 of 
the DSU entails a two-stage test , articulated by the panel in EC – Bed Linen  as follows: "first, 
examination of the text of the request for establishm ent itself, in light of the nature of the legal 
provisions in question;  second, an assessment of wh ether the respondent has been prejudiced by the 
formulation of claims in the request for estab lishment, given the actual course of the panel 
proceedings."218  China claims that the European Union's fa ilure to even raise this claim before the 
Panel confirms that its ability to defend its interests was not prejudiced. 
133. Regarding the European Union's alternative clai m, China points out that the Panel examined 
the issue of due process and sufficiently addressed th e European Union's concerns when it dealt with 
this claim.  Having determined that China had not offered arguments or evidence relating to any 
category of information besides "product types", th e Panel limited China's claims with regard to 
Pooja Forge to the confidential information relating to this category only.219  In any event, China 
submits that the Panel did not make the case for Ch ina, and highlights several submissions made by 
China to the Panel, which it argues were suffici ent for the Panel to have reached the finding it 
ultimately made.  These submissions were not limited to responses to the Panel's questions, moreover, 
but also consisted of the submission of the non-c onfidential version of Pooja Forge's questionnaire 
responses itself, as well as arguments China made in its second written submission to the Panel.220  
Finally, in China's view, the European Union was not deprived of an "adequate opportunity" to 
                                                      
214China's appellee's submission, para. 578 (quoting Appellate Body Report, Korea – Dairy , para. 139;  
and Appellate Body Report, EC – Bananas III , para. 141). 
215China's appellee's submission, para. 577. 
216China's appellee's submission, para. 584. 
217China's appellee's submission, para. 584. 
218China's appellee's submission, para. 585 (quoting Panel Report, EC – Bed Linen , para. 6.26). 
219China's appellee's submission, para. 588. 
220China's appellee's submission, paras. 591 and 592.  WT/DS397/AB/R 
 Page 55 
 
 
  respond to China's claims.  Rather, the European Union chose not to respond because it felt the claim 
"should be dismissed without entering into the substance".221 
(ii) Application of Article 6.5 to  analogue country producers 
134. China disagrees with the European Uni on's claim that Article 6.5 of the Anti-Dumping 
Agreement  did not apply to Pooja Forge because it was not  an "interested party".  China argues that 
Article 6.5 applies expressly to "parties to an in vestigation", which is a broader concept than 
"interested parties" as defined in Article 6.11, and would include analogue third country producers 
participating in the investigation.  This interpre tation is supported by the subsequent use of more 
general terms, such as "a person supplying the information" and "the  supplier of the information".222  
China claims that the consistent use of a term othe r than "interested parties" leads to the conclusion 
that a different meaning is intended, and that ther efore Pooja Forge did not need to come within the 
definition of "interested parties" to be co nsidered a "party to the investigation".223  China observes that 
Pooja Forge submitted an extensive amount of data, that this data was used by the Commission as the 
basis for calculating normal value, and that the Co mmission even visited Pooja Forge in order to 
verify such data.224  Therefore, in China's view, Pooja Forge "took part in" the fasteners investigation, 
and should be considered a "party to the investigation".225 
135. In response to the European Union's argument that  it does not make sense, in the light of the 
realities of NME anti-dumping inves tigations, to apply the requireme nts of Article 6.5 to analogue 
country producers, China asserts that the opposite is true.  In China's view, investigating authorities 
enjoy a high margin of discretion in determini ng normal value in the context of investigations 
involving NME countries, and, therefore, it is even more important that the process be as transparent 
as possible, and that sufficient opportunity be given to Chinese producers to view and make 
comments on information relating to normal value.226 
136. Even if the Appellate Body determines that Artic le 6.5 applies only to "interested parties", as 
defined by Article 6.11, China suggests that Pooja Fo rge should be considered an "interested party" in 
the fasteners investigation.  The Appellate Body in Japan – DRAMs (Korea)  found that "interested 
parties" should also include those entities whose pa rticipation is relevant "for carrying out an 
objective investigation and for obtaining information or evidence relevant to the investigation at 
                                                      
221China's appellee's submission, para. 593. 
222China's appellee's submission, para. 602. 
223China's appellee's submission, para. 599. 
224China's appellee's submission, para. 603. 
225China's appellee's submission, para. 603. 
226China's appellee's submission, para. 606 (quoting China's Accession Working Party Report, 
para. 151). WT/DS397/AB/R 
Page 56  
 
  hand"
227, and China contends that an analogue producer falls directly within the Appellate Body's 
description.  China further argues that the Eur opean Union itself designated Pooja Forge as an 
"interested party", for purposes of Article 6.5, by including in documents intended solely for analogue 
country producers instructions on  submitting confidential information in compliance with Article 6 of 
the Anti-Dumping Agreement .228 
5. The Panel's Findings under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the Complainants 
137. China counters the European Union's terms of re ference challenge regarding the disclosure of 
the identity of the complainants under Articles 6.4 and 6.2 of the Anti-Dumping Agreement by 
pointing out that the European Union fails to di stinguish between "claims"  and "arguments", and 
thereby identifies the wrong standard for determin ing whether a panel request summarizes the legal 
basis of the complaint in a way that is "sufficient to present the problem clearly".229  China urges the 
Appellate Body to follow the standard developed in  previous Appellate Body  reports, which, in its 
view, requires that "the identification of the legal ba sis of the claim must shed light on the nature of 
the obligation at issue so that the respondent is able to defend itself".230 
138. China argues that it "precisely" identified its clai m when it stated in its panel request that the 
measure at issue violated Articles 6.4 and 6.2 of the Anti-Dumping Agreement  "because the 
[European Union] failed to ensure throughout the i nvestigation to Chinese pr oducers/exporters the full 
opportunity for the defense of their interests and fail ed to provide timely opportunities for them to see 
all information that is relevant to the presentation of their cases".231  According to China, this was 
sufficient to identify its "claims", and China had no obligation to include "a rguments" explaining how 
the European Union had violated its obligations.  Moreover, the fact that China did include several 
arguments in its panel request should not be interp reted as limiting the scope of its claims to those 
arguments only.232  Furthermore, China disagrees with the European Union that its panel request was 
not specific enough to "present the problem clearly", because Articles 6.4 and 6.2 together contain multiple obligations.  With regard to Article 6. 2, China emphasizes that it included only the first 
                                                      
227China's appellee's submission, para. 608 (quoting Appellate Body Report, Japan – DRAMs (Korea) , 
para. 242). 
228China's appellee's submission, paras. 609-611. 
229China's appellee's submission, paras. 626-628. 
230China's appellee's submission, para. 633 (referring to Appellate Body Report, EC – Bananas III , 
para. 141;  Appellate Body Report, US – Carbon Steel , para. 130;  and Appellate Body Report, Korea – Dairy , 
paras. 124 and 127).. 
231China's appellee's submission, para. 634. 
232China's appellee's submission, paras. 635-638 (quoting Appellate Body Report, EC – Selected 
Customs Matters , para. 153).   WT/DS397/AB/R 
 Page 57 
 
 
  sentence of this provision in its claim, and did not intend to invoke the entire Article.233  China 
contends that, while there may be multiple ways in which these provisions can be violated, the same is 
true for all provisions of the Anti-Dumping Agreement , and does not imply that each contains multiple 
obligations.234 
139. Finally, China contends that the Appellate Body 's examination of the sufficiency of a panel 
request must take into account whether or not a respondent's ability to defend itself "was prejudiced, 
given the actual course of the proceedings".235  In China's view, "irresp ective" of whether China's 
panel request complied with Article 6.2 of the DSU,  the European Union cannot succeed in a terms of 
reference challenge unless it successfully demonstrates such prejudice.236  Given the unambiguous 
statement of China's claims in its first written submission to the Panel, and in its subsequent 
clarifications in response to the Panel's questions, China insists that the European Union cannot show 
that its ability to defend itself was prejudiced in this case.237 
C. Claims of Error by China – Other Appellant 
1. The Panel's Findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement  
140. China requests the Appellate Body to reverse th e Panel's finding that the European Union did 
not act inconsistently with Articles 4.1 and 3.1 of the Anti-Dumping Agreement  with respect to the 
definition of the domestic industry in the fasteners in vestigation.  First, China alleges that the Panel 
erred in finding that the European Union did not act  inconsistently with Articles 4.1 and 3.1 of the 
Anti-Dumping Agreement  by excluding from the definition of the domestic industry producers who 
did not support the complaint against injurious dumping and producers that made themselves known 
more than 15 days after the publication of the Notic e of Initiation of the investigation.  In addition, 
China asserts that the Panel erred in rejecting China' s claim that the domestic industry in the fasteners 
investigation, comprising producers accounting for 27 per cent of total estimated EU production of 
fasteners, did not include producers whose collec tive output "constitutes a major proportion of the 
total domestic production" within the meaning of Article 4.1 of the Anti-Dumping Agreement .  
Finally, China claims that the Panel erred in  finding that the European Union did not act 
inconsistently with Articles 4.1 and 3.1 of the Anti-Dumping Agreement  by making an injury 
                                                      
233China's appellee's submission, para. 645. 
234China's appellee's submission, para. 648. 
235China's appellee's submission, para. 632 (quoting Appellate Body Report, Korea – Dairy , para. 127). 
236China's appellee's submission, para. 653. 
237China's appellee's submission, paras. 654-658. WT/DS397/AB/R 
Page 58  
 
  determination on the basis of a sample of producer s that was not representative of the domestic 
industry. 
(a) Exclusion of Certain Producers 
141. China claims that the Panel failed to conduct an  objective assessment of the facts, as required 
by Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement , in finding that the 
European Union did not exclude producers that did not support the complaint from the definition of domestic industry.  China further argues that the Pane l erred in its interpretation of Article 4.1 of the 
Anti-Dumping Agreement , and acted inconsistently with Article  11 of the DSU, in finding that the 
European Union did not violate Article 4.1 of the Anti-Dumping Agreement  by excluding from the 
definition of domestic industry the producers that did not come forward within 15 days of the initiation of the anti-dumping investigation.  Chin a also submits that the Panel erred in its 
interpretation of Article 3.1 of the Anti-Dumping Agreement  by rejecting China's claim under that 
provision simply because it had rejected China's claim under Article 4.1 of that Agreement. 
(i) Exclusion of producers who did not support the complaint 
142. China recalls the Appellate Body's finding in respect of Article 11 of the DSU that "the 
question whether a panel has made an ' objective assessment' of the facts is a legal  one, that may be the 
subject of an appeal."
238  Moreover, the Appellate Body has found that, in carrying out its mandate 
under Article 11 of the DSU, "a panel has the duty to examine and consider all the evidence before it, 
not just the evidence submitted by one or the other party, and to evaluate the relevance and probative 
[force] of each piece thereof."239  The Appellate Body has also emphasized that panels cannot make 
affirmative findings that lack a basis in the evidence contained in the panel record.240 
143. Turning to the facts of this case, China submits  that it claimed before the Panel that the 
European Union erroneously excluded from the defi nition of the domestic industry all producers who 
did not support the complaint regarding the alleged injurious dumping caused by imports of fasteners 
from China.  The Panel, however, failed to con duct an objective assessment of the facts, and 
erroneously found that the Commission did not exclude producers unsupportive of the complaint from the definition of the domestic industry.  China a lleges that, in reaching its finding, the Panel relied 
solely on the European Union's factual assertion that  at least one producer who did not affirmatively 
                                                      
238China's other appellant's submission, para. 46 (quoting Appellate Body Report, US – Wheat Gluten,  
para. 151 (original emphasis);  and referring to Appellate Body Report, EC – Hormones , para. 132). 
239China's other appellant's submission, para. 50 (quoting Appellate Body Report, Korea – Dairy , 
para. 137). (boldface added by China) 
240China's other appellant's submission, para. 50 (referring to Appellate Body Report, US – Carbon 
Steel , para. 142, in turn referring to Appellate Body Report, US – Wheat Gluten , paras. 161 and 162).  WT/DS397/AB/R 
 Page 59 
 
 
  state support for the complaint at the pre-initiation st age was included in the definition of the domestic 
industry.  According to China, this assertion of  the European Union was not substantiated by 
evidence, even though evidence in this regard "was clearly accessible to the [European Union] as 
investigating authorities".241  For example, the European Union could have provided the list of the 
complainants and supporters who had come forward before the initiation.  Yet, in response to the 
concern raised by China concerning the reliability of th is statement, the Panel stated that it "ha[d] no 
reason to doubt the European Union's assertion of fact in this regard".242  Therefore, China submits, 
"by treating as an established fact a mere assertion made by the [European Union] without supporting evidence, the Panel committed an egregious erro r and therefore failed to make an objective 
assessment of the facts as required by Article 11 of the DSU".
243 
144. China further maintains that the Panel "disre garded the explanation put forward by China"244, 
as well as other relevant evidence, which showed  that the Commission knew whether the producer 
who had allegedly remained silent  before initiation of the investigation in fact supported the 
complaint.  China submits that, as indicated by th e European Union's respon se to a question posed by 
the Panel, the Commission enquired into the positio n of all known producers regarding the complaint 
and, consequently, must have been aware of the position of the producer who had allegedly remained 
silent prior to initiation but was included in th e domestic industry definition subsequent to 
initiation.245  Moreover, the Information Document, which was issued by the Commission several 
months before concluding the i nvestigation, made it clear that  the Commission enquired into, and 
knew, the position of all known producers regarding the complaint.  In "ignoring"246 such evidence, 
the Panel failed to make an objective assessment, as required by Article 11 of the DSU, when it found 
that the fact asserted by the European Union, th at a producer who had remained silent in the 
pre-initiation stage was included in the definition of the domestic industry, necessarily demonstrated 
that the Commission did not exclude producers unsupportive of the complaint. 
145. China asserts, furthermore, that the Panel act ed inconsistently with Article 11 of the 
DSU because it "ignored" the following three piec es of evidence submitted by China demonstrating 
that the European Union excluded from the domes tic industry definition all producers unsupportive of 
the complaint.247  Specifically, recital 114 of the Defin itive Regulation defines the domestic industry 
                                                      
241China's other appellant's submission, para. 65. 
242China's other appellant's submission, para. 63 (quoting Panel Report, footnote 473 to para. 7.214). 
243China's other appellant's submission, para. 66. 
244China's other appellant's submission, para. 69. 
245China's other appellant's submission, para. 82 (refe rring to European Union's responses to Panel 
Questions 88 and 89). 
246China's other appellant's submission, para. 82. 
247China's other appellant's submission, para. 85. WT/DS397/AB/R 
Page 60  
 
  as 45 EC producers who "supported the complaint and fully cooperated in the investigation".  The 
Panel acknowledged that the wording of the De finitive Regulation meant that "only producers 
expressing support for the complaint were included in the domestic industry".
248  However, the Panel 
"disregarded the unambiguous wording" of the De finitive Regulation in its assessment of facts249, and 
failed to explain why it did not consider this evidence relevant to its finding. 
146. In addition, China maintains th at, before the Panel, it referred to the Information Document 
issued by the Commission half a year before the pu blication of the Definitive Regulation, in which the 
Commission explained its preliminary determinations in  the fasteners investiga tion.  China argues that 
the Information Document shows that the domestic  industry was initially defined as comprising only 
the 86 producers who supported the complaint and fu lly cooperated in the investigation.  However, 
the Panel decided not to rely on the Information Document, finding that it was "a working document 
reflecting progress in the investigation to that point,  with no legal status in EU law", and thus did not 
constitute "part of the measure" at issue before the Panel.250  According to China, the Panel 
erroneously disregarded this eviden ce, because the Information Document is part of the record of the 
investigation and a relevant piece of evidence.  Finall y, China contends that it  submitted to the Panel a 
letter sent by the Commission in response to two Chinese producers' requests for clarification 
regarding certain aspects of the General Disclosure Document.251  In the letter, the Commission stated 
that the volume of production of the Community industry indicated in the General Disclosure Document corresponded to "the Community producers that supported the complaint and fully 
cooperated in the investigation".
252  In China's view, this eviden ce demonstrates that only producers 
supporting the complaint were included in the domes tic industry definition.  The Panel, however, did 
not refer to this letter and thus "totally ignored" the evidence in its analysis.253 
147. On this basis, China requests the Appellate Body to reverse the Panel's finding that the 
European Union did not exclude producers who did not support the complaint from the definition of 
the domestic industry.  China further requests the A ppellate Body to complete the analysis and find 
that the European Union excluded from the defin ition of the domestic industry the producers who did 
not support the complaint and that, in so doing, the European Union acted inconsistently with 
                                                      
248China's other appellant's submission, para. 89 (quoting Panel Report, para. 7.214). 
249China's other appellant's submission, para. 89. 
250China's other appellant's submission, para. 92 (quoting Panel Report, para. 7.214). 
251Letter from the European Commission dated 18 November 2008 to Van Bael & Bellis in response to 
letter from Van Bael & Bellis dated 12 November 2008, submitted to the Panel as Panel Exhibit CHN-39.  The General Disclosure Document, supra , footnote 73, was the final disclosure document before the Commission 
issued the Definitive Regulation. 
252China's other appellant's submission, para. 97 (quoting Panel Exhibit CHN-39, supra , footnote 251, 
p. 1). (underlining by China omitted) 
253China's other appellant's submission, para. 99.  WT/DS397/AB/R 
 Page 61 
 
 
  Article 4.1 of the Anti-Dumping Agreement .  China argues that, apart from the two exceptions 
provided in Article 4.1, no other categories of producers may be excluded by the investigating 
authorities from the definition of the domestic industr y.  China finds support for its position in the text 
of Article 4.1, as well as in the finding of the panel in EC – Salmon (Norway)  that, under Article 4.1, 
it is not permissible to exclude from the domestic industry definition certain categories of producers 
of the like product other than those set out in paragraphs (i) and (ii) of that provision.254 
(ii) Exclusion of producers who did not come forward within 
15 days of the initiation of the investigation 
148. China claims that the Panel erred in the legal interpretation, and acted  inconsistently with 
Article 11 of the DSU, in finding that the European Union did not act inconsistently with Article 4.1 
of the Anti-Dumping Agreement  by excluding from the domestic industry definition all producers who 
did not come forward within 15 days of  the initiation of the investigation. 
149. According to China, the Panel erred in the in terpretation of Article 4.1 when finding that 
"nothing in Article 4.1 … would preclude inv estigating authorities from establishing deadlines for 
companies to come forward in order to be cons idered for inclusion in the domestic industry".255  In 
China's view, Article 4.1 prohibits the exclusion of any categories of producers, except for those 
provided under paragraphs (i) and (ii), and the pr ohibition applies to producers defined as a category 
on the basis of the time period within which they must come forward.  China submits that the 
imposition of a deadline for domestic producers to come forward may be permissible by reasons of 
the necessity for the investigating authorities to c onclude the investigations within the time-limit 
prescribed in Article 5.10 of the Anti-Dumping Agreement .  The deadline, however, must be balanced 
with the fundamental due process rights enjoyed by  interested parties.  Therefore, any deadline 
granted by the investigating authorities to domestic  producers to come forward must be "reasonable" 
and "sufficient".256  China further submits that a deadline woul d not be permissible if the investigating 
authorities continue to consider the inclusion of producers who come forward after the deadline, but 
ultimately decide not to include such producers, b ecause this would constitute a deliberate exclusion 
process inconsistent with Article 4.1 of the Anti-Dumping Agreement . 
                                                      
254Under Article 4.1(i), domestic producers that ar e related to the exporters or importers or are 
themselves importers of the allegedly dumped product may be excluded.  Article 4.1(ii) further provides that 
domestic industry may be limited to include only those producers within a particular geographic region, if 
certain criteria are met. 
255China's other appellant's submission, para. 123 (quoting Panel Report, para. 7.219). 
256China's other appellant's submission, para. 125. WT/DS397/AB/R 
Page 62  
 
  150. China maintains that the Panel failed to cond uct an objective assessment of the facts, as 
required by Article 11 of the DSU, when finding that the European Union "did not act to exclude" 
producers who did not make themselves known within 15 days of the initiation of the investigation.
257  
China submits that both the Definitive Regulation and the Information Document indicate that the 
domestic industry consists of EC producers who expressed a wish to be included in the sample within 
the 15-day deadline.  Moreover, as the Panel also noted, there seemed to have been "a process of 
considering additional producers for inclusion in  the domestic industry", although none of the 
producers so considered were, in the end, included in the domestic industry.258  In China's view, this 
shows that the Commission envisaged including pr oducers other than those who had come forward 
within the 15-day period but decided not to do so.  In the light of the above evidence, China argues, 
the Panel should have concluded that the Commission acted to exclude producers who had not come 
forward within the 15-day deadline.   
151. Furthermore, China asserts that the Panel faile d to conduct an objective assessment of the 
facts, as required by Article 11 of the DSU, in finding that China had not established that the 15-day period granted by the Commission was insufficien t or unreasonable.  China contends that it 
substantiated, before the Panel, the insufficien cy and unreasonableness of the 15-day deadline with 
the following arguments and evidence.  First, the 15-day deadline is "very short and makes it much 
more likely that complainants and companies s upporting the investigation", rather than producers 
opposing the investigation, will come forward within the prescribed period.
259  China submits that this 
argument is supported by the evidence, which shows that the 46 producers that made up the domestic 
industry all supported the complaint and all came forw ard within the 15-day deadline.  In addition, as 
shown by the Information Document, "a large number of" producers who opposed the complaint or did not express an opinion were not incl uded in the domestic industry definition.
260  Furthermore, by 
requiring producers to come forward within 15 da ys and express a willingness to be included in the 
sample within that deadline, th e European Union adopted an approach that was "fundamentally 
non-objective", because producers opposing the investiga tion were less likely to be willing to be part 
of the sample.261  Finally, China asserts that the 15-day d eadline to respond to the sampling form is 
not the same as the period in which an interested party was requested to make itself known under the 
Notice of Initiation, which was a 40-day period.  China contends, therefore, that it properly 
substantiated its argument before the Panel that the 15-day deadline was unreasonable and therefore 
inconsistent with Article 4.1 of the Anti-Dumping Agreement . 
                                                      
257China's other appellant's submission, para. 117 (quoting Panel Report, para. 7.215). 
258China's other appellant's submission, para. 120 (quoting Panel Report, para. 7.215). 
259China's other appellant's submission, para. 135. 
260China's other appellant's submission, para. 136. 
261China's other appellant's submission, para. 137.  WT/DS397/AB/R 
 Page 63 
 
 
  152. On this basis, China requests the Appellate Body to reverse the Panel's finding that the 
Commission "did not act to exclude"262 producers who did not make themselves known 
within 15 days of the initiation of the investigation, and that "the mere fact that the domestic industry 
as ultimately defined does not include any particul ar proportion of producers … who did not come 
forward within the 15-day period, does not demonstrat e that the European Union acted inconsistently 
with Article 4.1 of the [ Anti-Dumping Agreement ] in defining the domestic industry."263  China further 
requests the Appellate Body to conclude that the 15-day period granted to domestic producers to come 
forward was not reasonable or sufficient and that the European Union acted inconsistently with 
Article 4.1 by setting such a deadline. 
(iii) Inconsistency with Article 3.1 of the Anti-Dumping 
Agreement 
153. China alleges that the Panel erred in its interpretation of Article 3.1 of the  Anti-Dumping 
Agreement  in dismissing China's claim under that provis ion because it found that the European Union 
did not act inconsistently with Article 4.1 of the Anti-Dumping Agreement  with respect to the 
definition of the domestic industry.  According to  China, the separate claims made by China on 
two different legal bases under Article 4.1 and Artic le 3.1 required the Panel to examine whether the 
exclusion from the domestic industry of the producers who did not support the complaint and the producers who did not come forward within th e 15-day deadline was inconsistent with the 
requirements under each of those provisions. 
154. China contends that Article 3.1 of the Anti-Dumping Agreement  requires the injury 
determination to be based on "positive evidence" and to involve an "objective examination" of, 
inter alia , the impact of dumped imports on domestic producers.  Thus, by excluding the producers 
who did not support the complaint from the definition of the domestic industry, the European Union's 
action was "fundamentally biased and non-objective" , because it "favour[ed] the interests of a group 
of interested parties, namely the complainants".
264  Moreover, the exclusion of the producers who did 
not make themselves known within the 15-day d eadline was also "bias[ed]" and "non-objective"265, 
because the European Union included only those pr oducers who came forward within that deadline 
and expressed a willingness to be part of the sample.  In China's view, the domestic industry must first 
be defined from which a sample may be selected.  By including in the domestic industry definition 
only those producers willing to be part of the sampl e, the European Union's approach confused two 
different steps in the process of selecting a sample.  Because producers not willing to be included in 
                                                      
262Panel Report, para. 7.215.  See also China's other appellant's submission, para. 141. 
263Panel Report, para. 7.219.  See also China's other appellant's submission, para. 141. 
264China's other appellant's submission, para. 155. 
265China's other appellant's submission, para. 156. WT/DS397/AB/R 
Page 64  
 
  the sample "probably [did] not support the investigation"
266, this approach made it more likely that 
only those companies supporting the complaint would be included in the domestic industry definition 
and, hence, made it more likely to find injury.  Therefore, China asserts, by including in the domestic 
industry only those producers who came forward within the 15-day deadline and expressed their 
willingness to be part of the sample, the European Un ion acted inconsistently with Article 3.1 of the 
Anti-Dumping Agreement  by failing to make an objective examination of the impact of the dumped 
imports on the domestic industry. 
155. On this basis, China requests the Appellate Body  to reverse the Panel's finding that "China 
[made] no other allegations in support of  its claim of violation of Article 3.1"267 of the Anti-Dumping 
Agreement and its claim must therefore be rejected, and to conclude that the European Union acted 
inconsistently with that provision with resp ect to the definition of the domestic industry. 
(b) "A Major Proportion" of the Total Domestic Production 
156. China submits that the Panel erred in rejecti ng China's claim that th e domestic industry as 
defined by the European Union did not include dom estic producers whose collective output of the like 
product constitutes a "major proportion" of the tota l domestic production.  According to China, the 
Panel erroneously concluded that the fact th at the Commission relied on a presumption that 
25 per cent of total domestic pr oduction constituted "a major proportion" within the meaning of 
Article 4.1 of the Anti-Dumping Agreement  was, in itself, insufficient to demonstrate that the 
definition of the domestic industry in this dispute is  inconsistent with Artic le 4.1.  Moreover, the 
Panel erroneously concluded that th e non-quantitative factors raised by China were not relevant to the 
examination of whether the domestic industry de fined by the Commission met the requirement of 
"a major proportion" under Article 4.1. 
(i) The interpretation of the term "a major proportion" 
157. China submits that the interpretation of the te rm "a major proportion" on the basis of its 
ordinary meaning and in the light of the context lead s to only one permissible interpretation, which is 
different from the one followed by the Panel.  Quo ting the relevant dictionary definitions, China 
argues that "a major proportion" means a "share" of the whole that is "unusually important, serious or 
significant".268  Therefore, the domestic producers whose production makes up a major proportion 
                                                      
266China's other appellant's submission, para. 162. 
267Panel Report, para. 7.221.  See also China's other appellant's submission, para. 171. 
268China's other appellant's submission, paras. 185 (quoting The New Shorter Oxford English 
Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 2, p. 2381) and 188 (quoting ibid., Vol. 1, 
p. 1670).  WT/DS397/AB/R 
 Page 65 
 
 
  must be representative of the whole.  As support,  China recalls the Appellate Body's finding in US – 
Lamb  that the words "as a whole" and "a major proportion" in Article 4.1(c) of the Agreement on 
Safeguards  address "the representative nature of producers making up the domestic industry"269, as 
well as the panel's finding in that dispute that the words relate to the "representativeness of the data 
pertaining to the condition of the domestic industry".270  China submits that, although the Panel found 
that the word "major" means "important, serious, or  significant", the Panel failed to take into account 
the "representative" requirement under the phase "a major proportion".271   
158. According to China, the reference to "the domestic producers as a whole", which constitutes 
the immediate context of the phrase "a major proportion", indicates that "[t]he reason for permitting the domestic industry to be defined as those pr oducers constituting only a 'major proportion' is to 
address the practical impossibility for investigating authorities in some cases to obtain the requested 
information from all the producers of the like product."
272  China recalls that paragraphs (i) and (ii) of 
Article 4.1 expressly authorize the exclusion from the definition of the domestic industry of two 
categories of producers.  In China's view, it would be superfluous to set out precise conditions for the 
application of the two exclusions if investigating authorities could in any event exclude from the 
definition of the domestic industry any other producers they wish as long as the remaining producers 
still constitute a major proportion.  Moreover, given the requirement under Article 3.1 that an injury 
determination "be based on positive evidence and involve an objective examination", China argues 
that "a major proportion" must be sufficiently re presentative of the domestic production "as a whole" 
to ensure that the examination carried out with r espect to the industry, as defined, is "objective" 
within the meaning of Article 3.1 of the Anti-Dumping Agreement . 
159. Therefore, China submits, whether the requirement of "a major proportion" is met must be 
assessed in the light of the specific circumstances of  a case, including "the practical feasibility for the 
investigating authorities to includ e more producers than those act ually included, the number of 
producers and the exclusion of certain categories of producers from the scope of the domestic 
industry".273 
                                                      
269China's other appellant's submission, para. 185 (quoting Appellate Body Report, US – Lamb , 
para. 91). 
270China's other appellant's submission, para. 186 (quoting Panel Report, US – Lamb , para. 7.73). 
(underlining by China omitted) 
271China's other appellant's submission, para. 190. 
272China's other appellant's submission, para. 195. 
273China's other appellant's submission, para. 201. WT/DS397/AB/R 
Page 66  
 
  (ii) Whether the domestic industry defined in the fasteners 
investigation meets the requirement on "a major proportion" 
160. China maintains that, as indicated in the Defin itive Regulation in the fasteners investigation, 
the EU producers whose output represented 27 pe r cent of the total domestic production constituted 
"the Community industry within the meaning of Articles 4(1) and 5(4) of the [Basic 
AD Regulation]."
274  Articles 4(1) and 5(4) of the Basic AD Regulation are largely similar to 
Articles 4.1 and 5.4 of the Anti-Dumping Agreement , except that Article 4(1) of the Basic AD 
Regulation defines "a major proportion" as bein g equal to 25 per cent of the total domestic 
production, namely, the minimum benchmark for m eeting the standing requirement contained in 
Article 5(4).  Thus, it is "not disputed" that the Commission concluded in the fasteners investigation 
"that the domestic producers making up the domestic industry constituted a 'maj or proportion' solely 
because they represented more than 25% of the total domestic production".275   
161. China contends that Article 5.4 of the Anti-Dumping Agreement  merely lays down a standard 
for determining whether the standing requirement is  met and an investigation may be initiated.  
Article 4.1, in contrast, defines the "domestic industr y" and is therefore a very different exercise than 
that of measuring the degree of support for a complain t within the meaning of Article 5.4.  Therefore, 
in China's view, it is "legally incorrect" to estab lish an automatic link between the requirement on 
"a major proportion" and the 25 per cent mi nimum benchmark for meeting the standing 
requirement.276  Moreover, China submits that whether th e requirement on "a major proportion" is met 
may not be determined in the abstract, on the basi s of a quantitative benchm ark, but depends on the 
facts of the case.  In China's view, by relying on this rule when defining the domestic industry, 
without assessing the specific circumstances in this  case, the Commission acted inconsistently with 
Article 4.1 of the Anti-Dumping Agreement .277  Thus, the Panel "made a fundamental legal error in 
finding that 'the assertion that the Commission re lied on a presumption is not alone sufficient to 
demonstrate, prima facie , that the definition of domestic industr y in this case is inconsistent with 
Article 4.1 of the [ Anti-Dumping Agreement ].'"278 
162. China further maintains that the Panel erred in failing to consider certain non-quantitative 
factors that China argued were relevant to the ex amination of whether the requirement of "a major 
proportion" was met in the fasteners investigation.  Specifically, China argues that, by excluding from 
                                                      
274China's other appellant's submission, para. 211 (quoting Definitive Regulation, supra , footnote 4, 
recital 114). 
275China's other appellant's submission, para. 216. 
276China's other appellant's submission, para. 237. 
277See China's other appellant's submission, paras. 223-228 and 240. 
278China's other appellant's submission, para. 227 (quoting Panel Report, para. 7.225).  WT/DS397/AB/R 
 Page 67 
 
 
  the domestic industry definition the producers who opposed the complaint or remained silent, the 
"domestic industry" as defined by the Commission w as not representative of the whole industry and, 
thus, not "a major proportion" of the production of that industry.279  Furthermore, the Panel erred in 
finding that the possibility or feasibility for the inve stigating authority to include more producers in 
the domestic industry definition, and the reasons why it did not do so, was irrelevant to an examination of whether the requirement on "a major proportion" was met.  As shown by the relevant 
evidence, the Commission had identi fied at the outset of the investigation "at least 114 producers 
representing 45% of the to tal domestic production".
280  However, the Commission ultimately excluded 
more than half of these producers from the domestic industry definition, even though it would have been possible for it to include more producers.  Finally, China asserts that the number of producers 
constituting the domestic industry is relevant to a determination of whether a certain percentage in 
terms of the volume of production constitutes a major pr oportion.  Yet, the Panel failed to take into 
account the fact that, although there were more than 300 producers of fasteners in the European Union, the domestic industry definition only  included 45 producers.  In China's view, "[t]his 
is a very limited proportion which canno t be considered a 'major proportion'".
281 
163. On this basis, China requests the Appellate B ody to reverse the Pane l's finding that, "[e]ven 
assuming non-quantitative factors are relevant to the definition of a domestic industry under 
Article 4.1, we do not consider that the factors China raises in this regard are relevant in this case, or 
in general."282  China further requests the Appellate Body to conclude that, in the light of these 
non-quantitative factors, the domestic producers cons tituting the domestic industry in the fasteners 
investigation did not represent a "major proportion" of the domestic industry. 
(c) The Representativeness of the Sample  of Domestic Producers in the 
Injury Determination 
164. China submits that the Panel erred in rejecti ng China's claim that the European Union acted 
inconsistently with Article 3.1 of the Anti-Dumping Agreement  in the selection of a sample of the 
domestic producers for purposes of the injury determin ation.  China alleges that the Panel made the 
following two specific errors. 
165. First, China asserts that the Panel wrongly rej ected China's contention that, because "only a 
statistically valid sample will be sufficien tly representative for purposes of an injury 
                                                      
279See China's other appellant's submission, paras. 245-249. 
280China's other appellant's submission, para. 254. 
281China's other appellant's submission, para. 258. 
282Panel Report, para. 7.230.  See also China's other appellant's submission, para. 259. WT/DS397/AB/R 
Page 68  
 
  determination"
283, the sample of producers selected by the Commission on the basis of the largest 
volume of production that could reasonably be inv estigated was not representative of the domestic 
industry.  According to China, despite th e absence of a specific provision in the Anti-Dumping 
Agreement  addressing the issue of sampling of the domest ic industry for purposes of assessing injury, 
"the investigating authorities are bound by the obligation laid down in Article 3.1 of the 
[Anti-Dumping Agreement ] that the injury determination invol ve[s] an objective examination and be 
based on positive evidence."284  China asserts that, in the context of the dumping determination, 
pursuant to Article 6.10 of the Anti-Dumping Agreement , limiting a sample to the largest percentage 
of the volume of the exports that can reasonably be investigated may be justified in the light of the 
"possibility for subsequent refunds if an individual producer is not actual[ly] dumping".285  Because 
"there is no similar system which would take into account the absence of injury with respect to certain 
domestic producers", it is "fundamental" that a sa mple in the injury context be sufficiently 
representative of the domestic industry as a whole.286  Therefore, in China's view, a sample cannot 
merely be based on the largest volume that can re asonably be investigated, but should take into 
account other criteria, such as, the use of a statistically valid sample. 
166. Second, China alleges that the Panel erred in  concluding that China had not demonstrated 
"that the EU investigating authority could have carried out the entire injury examination for the 
domestic industry it had defined, or at l east included more producers in the sample".287  China submits 
that, as it demonstrated before the Panel, the Commission examined certa in injury factors with respect 
to the entire domestic industry as defined, that is, the 45 domestic producers.  Thus, contrary to the 
Panel's finding, the Commission could have also an alyzed the other injury factors for the entire 
domestic industry as defined, rather than w ith respect to only the sampled producers. 
167. On this basis, China requests the Appellate Body to reverse the Panel's finding that the 
European Union did not act inconsistently with Article 3.1 of the Anti-Dumping Agreement  in the 
selection of a sample of the domestic industry, and to conclude that the European Union, by selecting 
the sample for the injury determination solely on the basis of the volume of production, and by including in the sample only six producers represen ting 17.5 per cent of total domestic production, 
acted inconsistently with Article 3.1 of the Anti-Dumping Agreement .
288 
                                                      
283China's other appellant's submission, para. 265 (quoting Panel Report, para. 7.239). 
284China's other appellant's submission, para. 270. 
285China's other appellant's submission, para. 272 (quoting Panel Report, EC – Salmon (Norway) , 
footnote 309 to para. 7.132). 
286China's other appellant's submission, para. 272. 
287China's other appellant's submission, para. 276 (quoting Panel Report, para. 7.240). 
288See China's other appellant's submission, paras. 275 and 278;  and Panel Report, para. 7.241.  WT/DS397/AB/R 
 Page 69 
 
 
  2. The Panel's Findings under Article 2.4 of the Anti-Dumping Agreement  
168. China requests the Appellate Body to reverse th e Panel's finding that the European Union did 
not act inconsistently with Article 2.4 of the Anti-Dumping Agreement  with respect to the comparison 
of the export price and normal value in the dumping de termination.  China claims that the Panel also 
acted inconsistently with Article 11 of the DS U by not addressing China's argument that the 
Commission failed to indicate to the interested partie s what information was necessary to ensure a fair 
comparison.  China further submits that the Pane l erred in its interpretation and application of 
Article 2.4, and acted inconsistently with Article 11 of the DSU, in rejecting China's claim that the 
Commission failed to make adjustments for the diffe rences in physical characteristics identified in the 
PCNs.  Finally, China maintains that the Panel erred in the interpretation and application of 
Article 2.4 of the Anti-Dumping Agreement  in rejecting China's claim that the Commission failed to 
make adjustments for quality differences. 
(a) The Panel's Treatment of China's Argument 
169. China recalls that, at the outset of the fast eners investigation, the Chinese producers were 
requested to provide product information on the b asis of the PCNs identified by the Commission, and 
"it was clear"289 that the PCNs would be used for the pur poses of ensuring a fair comparison between 
the export price and the normal value.  Although the Commission later decided not to use the PCNs 
for purposes of price comparison, and instead relied on certain "product types", it did not inform the 
Chinese producers of this change until one worki ng day before the deadline for submitting comments 
on the General Disclosure Document.  Before the Pane l, China claimed that, under the last sentence of 
Article 2.4 of the Anti-Dumping Agreement , the Commission was required to inform the Chinese 
producers of the fact that the comparison was not ma de on the basis of the PCNs and to provide them 
with a sufficient opportunity to comment.  However,  the Panel did not address this argument, noting 
that this was "the main argument China raise[d]  in connection with its claim under Articles 6.2, 
6.4, 6.5 and 6.9 of the [ Anti-Dumping Agreement ]"290, and did not explain why it was not necessary to 
examine the argument in the context of China's claim under Article 2.4 of the Anti-Dumping 
Agreement .  China maintains that the Panel thus failed to address a substantial argument by China that 
was central in the assessment of whether the European  Union acted inconsistent ly with Article 2.4 of 
the Anti-Dumping Agreement .  The Panel's failure to address th is argument "deprive[d] China of a 
                                                      
289China's other appellant's submission, para. 297. 
290China's other appellant's submission, para. 314 (quoting Panel Report, para. 6.98). WT/DS397/AB/R 
Page 70  
 
  complete resolution of the matter at issue" and "would … constitute a false exercise of judicial 
economy".
291 
170. China therefore requests the Appellate Body to find that the Panel acted inconsistently with 
Article 11 of the DSU by failing to address China's ar gument under the last sentence of Article 2.4 of 
the Anti-Dumping Agreement .  In the event the Appellate Body considers that the Panel "implicitly 
rejected China's argument"292, China requests the Appellate Body to  find that the Panel erred in its 
interpretation and application293 of Article 2.4 of the Anti-Dumping Agreement . 
171. China further requests the Appellate Body to  complete the analysis and find that the 
Commission's failure to inform the interested parties of the change in the basis for price comparison 
constitutes a violation of Article 2.4 of the Anti-Dumping Agreement .  China submits that the relevant 
factual findings of the Panel in its examination of China's claim under Articles 6.2 and 6.4 of the 
Anti-Dumping Agreement  provide the factual basis for completing the analysis.  Specifically, the 
Panel found that the "Chinese producers were informed  very late in the proceedings of the product 
types that formed the basis of the comparisons underlying the Commission's dumping determinations" 
and that, despite their request, the Chinese producer s "were not given a timely opportunity to see the 
relevant information by the Commission".294  Moreover, the Panel correctly found that, without the 
information concerning the basis on which the co mparison will actually be made, "it would be 
difficult if not impossible, for foreign producers to re quest adjustments that they consider necessary in 
order to ensure a fair comparison."295  China therefore submits that the Commission was under an 
obligation to inform the interested parties of the basis on which the comparison between the export 
price and the normal value was made, and to provide  sufficient time for the interested parties to 
comment or request adjustments.  Because th e Commission failed to do so, China requests the 
Appellate Body to find that the European Union fa iled to "indicate to the parties in question what 
information is necessary to ensure a fair comp arison" and imposed "an unr easonable burden of proof 
on those parties"296, and thus acted inconsistently with Article 2.4 of the Anti-Dumping Agreement . 
                                                      
291China's other appellant's submission, para. 312. 
292China's other appellant's submission, para. 315. 
293Although China's other appellant's submission allege s that the Panel erred in its interpretation (see 
para. 296), China clarified at the oral hearing that its cl aim also covers the Panel's application of Article 2.4 to 
the facts of the case. 
294China's other appellant's submission, para. 325 (quoting Panel Report, para. 7.492). 
295China's other appellant's submission, para. 326 (quoting Panel Report, para. 7.491). 
296China's other appellant's submission, para. 332.  WT/DS397/AB/R 
 Page 71 
 
 
  (b) Physical Differences 
(i) The Panel's interpretation and application of Article 2.4 
172.  China submits that the Panel erred in its interpretation and application297 of Article 2.4 of the 
Anti-Dumping Agreement  in rejecting China's argument that th e European Union acted inconsistently 
with Article 2.4 of the Anti-Dumping Agreement  by failing to evaluate, and make adjustments for, 
physical characteristics identified in the PCNs. 
173. China submits that, under Article 2.4 of the Anti-Dumping Agreement , the requirement to 
make due allowance for physical differences means that the investigating authority must at least 
evaluate identified differences with a view to determ ining whether or not an adjustment is required.  
China alleges that this is confirmed by relevant findings of the panels in Argentina – Ceramic Tiles  
and EC – Tube or Pipe Fittings .298  In the light of the fact that the Commission initially identified the 
physical characteristics reflected in the PCNs as  "necessary to make a 'fair comparison'" but later 
decided to base the comparison on product types instead299, China contends that Article 2.4 imposes a 
"twofold obligation"300 on the Commission.  Specifically, the Commission was required to:  (i) first 
evaluate all differences in physical characteristics that had been identified in  the PCNs to determine 
whether they affected price comparab ility;  and (ii) conclude, on the basis of such an evaluation, that 
adjustments were indeed required so as to ensure a fair comparison.301  Yet, the Commission failed to 
do either. 
174. China maintains that, in rejecting China's argu ment that the Commission acted inconsistently 
with Article 2.4, the Panel erroneously found that  there was no evidence on the record demonstrating 
that the PCN elements necessarily affected price co mparability.  In China's view, the Panel failed to 
distinguish between the two-step analysis that the Commission was required to conduct, because its 
finding only concerned the second step described a bove.  Indeed, the relevant findings of the Panel 
make it clear that the physical characteristics in the PCNs constitute differences that had been 
identified by the investigating authorities.  Spec ifically, the Panel found that the fact that the 
Commission sought information on the basis of PC Ns "suggest[ed] … that these elements might 
                                                      
297Although China's other appellant's submission allege s that the Panel erred in its interpretation (see 
paras. 296, 344, and 367), China clarified at the oral hearing that its claim also covers the Panel's application of 
Article 2.4 to the facts of the case.  
298See China's other appellant's submission, paras. 353 and 354 (quoting Panel Report, Argentina – 
Ceramic Tiles , para. 6.113;  and Panel Report, EC – Tube or Pipe Fittings , para. 7.157). 
299China's other appellant's submission, para. 337. 
300China's other appellant's submission, para. 346. 
301See China's other appellant's submission, para. 346. WT/DS397/AB/R 
Page 72  
 
  affect price comparability".
302  China further contends that, because the interested parties were under 
the impression that the price comparison was being made on the basis of the PCNs, they made no 
requests for adjustments during the investigation co ncerning the physical characteristics reflected in 
the PCNs.  Nonetheless, as China submitted before the Panel, the interested parties stressed 
throughout the investigation the importance of using the PCNs for purposes of ensuring a fair comparison.  However, the Panel failed to "come to  the logical conclusion" that, because the physical 
characteristics " might  affect price comparability", they had been identified as differences that the 
Commission was required to evaluate.
303 
175. China also takes issue with the Panel's finding that, although information organized on the 
basis of the PCNs may well facilitate the comparison process, "the obligation to make a fair comparison under Article 2.4 does not vary depending on the form in which information is requested 
or received."
304  In China's view, because the Commi ssion had identified certain physical 
characteristics as possibly affecting price comp arability, it was required to evaluate those 
characteristics to determine whether adjustments were necessary to ensure a fair comparison. 
176. On this basis, China requests the Appellate B ody to reverse the Panel's finding that "the 
argument that the Commission should have consid ered whether the elements excluded from the 
comparison nonetheless required adjustments does not amount to a prima facie  case of violation of 
Article 2.4"305, and find that the European Union's failu re to evaluate the differences identified 
through the PCNs constitutes a violation of Article 2.4 of the Anti-Dumping Agreement . 
(ii) The Panel's failure to make an objective assessment of the 
facts 
177. China submits that the Panel failed to make an  objective assessment of the facts in finding 
that China pointed to no evidence that was before the investigating authority in support of its claim 
that the PCN characteristics indicated differences affecting price comparability.  As a preliminary 
matter, China recalls that the Commission, by failing to inform the interested parties of the basis for 
the price comparison, made it impossible for th e Chinese producers to re quest adjustments and 
provide the necessary evidence. 
178. Moreover, China contends that it demonstrated to  the Panel that there was evidence before the 
Commission showing that the PCN characteristics were differences affecting price comparability and 
                                                      
302China's other appellant's submission, para. 359 (quoting Panel Report, para. 7.301). (underlining by 
China omitted) 
303China's other appellant's submission, para. 361. (original emphasis) 
304China's other appellant's submission, para. 365 (quoting Panel Report, para. 7.303). 
305China's other appellant's submission, para. 368 (quoting Panel Report, para. 7.306).  WT/DS397/AB/R 
 Page 73 
 
 
  warranting adjustments.  Specifically, the fact that certain physical characteristics were reflected in 
the PCNs shows that such characteristics affect  price comparability, because reliance on PCNs had 
been identified by the investigating authorities at the beginning of the investigation as being necessary 
to ensure a fair comparison.  In addition, sever al of the PCN characteristics were used by the 
Commission for purposes of the price undercutting analysis between the Chinese and European 
fasteners producers in the injury determination, in cluding the type of coating applied and the use of 
expensive chrome on coating.  China also alle ges that it referred the Panel to the following 
three pieces of additional evidence to demonstrate that the PCN characteris tics necessarily affected 
price comparability:  (i) a statement by the EU producers,  in the context of a discussion on the 
comparability between EU and Chinese fasteners, re garding the fact that raw materials represent 40 
to 55 per cent of the costs and may be lower for produ cts with a little diameter;  (ii) a statement by the 
Chinese Chamber of Commerce, in the same context,  that it was necessary to add to the differences 
reflected in the PCNs a distinction between standard  and special fasteners;  and (iii) a presentation on 
behalf of a Chinese interested party that the PC N characteristics are not sufficiently detailed to 
differentiate interims of the quality of fasteners.  China therefore asserts that, by ignoring the above 
evidence, the Panel failed to make an objective asse ssment of the facts, as required by Article 11 of 
the DSU. 
179. China further maintains that Article 17.6(i) of the Anti-Dumping Agreement  requires the Panel 
to determine whether the Commission's establis hment of the facts was proper and whether its 
evaluation of those facts was unbiased and objectiv e.  Because the Commission "ignored the evidence 
before it that demonstrated that the PCN characteris tics could affect price comparability", "it is clear" 
that the Commission's establishment of the facts w as not proper and its evaluation of those facts was 
not unbiased and objective.306  Thus, the Panel, by finding that it would be inappropriate for it to 
consider whether the PCN charact eristics reflect differ ences affecting price comparability, "ignored 
the duty imposed upon it by Article 17.6 (i)" of the Anti-Dumping Agreement .307 
180. On this basis, China requests the Appellate B ody to reverse the above Panel findings.  China 
further requests the Appellate Body to complete th e analysis and find that the European Union acted 
inconsistently with Article 2.4 of the Anti-Dumping Agreement  by not making the necessary 
adjustments for the differences in physical characteris tics identified in the PCNs.  This is because an 
objective and unbiased investigating authority should ha ve concluded, on the basis of all the elements 
before the Commission, that the PCN characteristi cs described in this case indicate differences 
                                                      
306China's other appellant's submission, para. 387. 
307China's other appellant's submission, para. 386. WT/DS397/AB/R 
Page 74  
 
  affecting price comparability and that, accordingly, these had to be accounted for by means of 
adjustments. 
(c) Quality Differences 
181. China asserts that the Panel erre d in the interpretation and appl ication of Article 2.4 of the 
Anti-Dumping Agreement  in rejecting China's claim that the Eu ropean Union acted inconsistently with 
that provision by not making the necessary adju stments for quality differences affecting price 
comparability. 
182. China recalls that, under Article 2.4, investigati ng authorities must at least evaluate identified 
differences in physical characteristics with a view to determining whether or not an adjustment is 
necessary to ensure a fair comparison of the export pr ice and the normal value.  In this case, "[i]t is 
not disputed that at least one of the Chinese ex porters" sent a letter requesting adjustments for 
differences in quality between Indian and Chinese fasteners.
308  Moreover, the Commission 
"acknowledge[d] the existence of quality differences"  in the Definitive Regulation by stating that 
"[a]ny perceived differences in qua lity, which may subsist from a user's point of view, can be dealt 
with through an adjustment for physical differences".309  The Commission also stated in a letter to 
some Chinese exporters that adjust ments were made for the cost of quality control that "reflects the 
general difference in quality level".310  This, in China's view, also shows that quality differences had 
been identified and that the Commission should have  evaluated such differences.  China therefore 
contends that the Panel erred in not concludi ng that the Commission acted inconsistently with 
Article 2.4 of the Anti-Dumping Agreement  by not evaluating the identified quality differences. 
183. China further submits that, in finding that th e Commission did not act inconsistently with 
Article 2.4 of the Anti-Dumping Agreement , the Panel "ignore[d] the fact" that the Commission 
acknowledged the existence of quality differences.  According to China, there is a duty on the 
investigating authority to request the necessary information if it feels that a claimed adjustment is not 
sufficiently substantiated.  Therefore, "at th e very least, the Commission should have sought 
additional information on this issue."311  China thus maintains that the Panel erred in law by failing to 
conclude that the failure of the Commission to indicate further information that would be necessary to 
                                                      
308China's other appellant's submission, para. 410. 
309China's other appellant's submission, para. 411 (quoting Definitive Regulation, supra , footnote 4, 
recital 52). 
310China's other appellant's submission, para. 413 (quoting Letter dated 21 November 2008 from the 
European Commission to Van Bael & Bellis replying to Van Bael & Bellis' letter dated 17 November 2008 (Panel Exhibit CHN-31), point 5). 
311China's other appellant's submission, para. 420.  WT/DS397/AB/R 
 Page 75 
 
 
  ensure a fair comparison and the failure to make  appropriate adjustments was inconsistent with 
Article 2.4 of the Anti-Dumping Agreement . 
3. The Panel's Findings under Articles 6.5, 6.2, and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the Complainants 
184. China requests the Appellate Body to reverse th e Panel's findings that the European Union did 
not act inconsistently with Articles 6.5, 6.4, and 6.2 of the Anti-Dumping Agreement  when it failed to 
disclose to Chinese producers the identity of the comp lainants and the supporters of the complaint.  
China argues that the complainants' allegation of "potential commercial retaliation" was not sufficient 
to satisfy the requirement to show "good cause" under Article 6.5, and that the Panel violated Article 11 of the DSU in its evaluation of this claim.  Assuming the Appellate Body finds that the 
identity of the complainants and the supporters of  the complaint were not properly treated as 
confidential information, China requests the Appellate Body to complete the analysis to find that the 
European Union therefore also violated Articles 6.4 and 6.2 of the Anti-Dumping Agreement  when it 
failed to disclose this information to Chinese exporters upon request. 
(a) The Complainants' "Good Cause" Showing 
185. China claims that the Panel erred in findi ng that the Commission had established that 
"good cause" existed for the confidential treatment  of the identity of the complainants and the 
supporters of the complaint under Article 6.5 of the Anti-Dumping Agreement .  China observes that 
the requirement to show "good cause" is, in the words of the panel in Mexico – Steel Pipes and Tubes , 
of "critical importance" to preventing parties fro m abusing the privileges of confidential treatment, 
and in "preserving the balance be tween the interests of confidentiality and the ability of another 
interested party to defend its rights th roughout an anti-dumping investigation".
312  In China's view, 
while every request for confidentiality requires an evidentiary showing of "good cause", in the case of 
information that is not "by nature" confidential, such as the identity of the complainants, "a higher 
threshold needs to be met".313 
186. China argues that the Panel erred in its in terpretation of the "good cause" requirement, 
because, in its view, Article 6.5 does not apply to commercial retaliation that is merely hypothetical in nature.  China contends that, in the complaint, domestic producers requested confidential treatment of 
their identity because of a "potential retaliation" that "could" happen, but did not allege or show that 
any "significantly adverse effect" "'would' happen if  confidential treatment [was] not granted".  In 
                                                      
312China's other appellant's submission, para. 447 (quoting Panel Report, Mexico – Steel Pipes and 
Tubes , para. 7.380). 
313China's other appellant's submission, para. 449. WT/DS397/AB/R 
Page 76  
 
  China's view, Article 6.5 refers to situations that " would have a significantly adverse effect" upon the 
parties supplying the information, and that the comp lainants' use of the word "could" suggests that 
"the likelihood of the detrimental ef fect to occur is rather remote".
314 
187. According to China, the complainants failed to provide any evidence to support the assertion 
in the complaint that a threat of potential co mmercial retaliation existed.  The Panel itself 
acknowledged that the " only evidence  before the Commission was the complaint" and that "[t]he 
Commission relied on this statement, although there is no indication that the complainants submitted 
evidence to support their concern in this regard."315  In China's view, the reasoning included in the 
complaint, that retaliation could come from the co mplainants' customers who also bought the subject 
products from China, was a "mere statement" and clear ly does not amount to an evidentiary showing.  
China contends that an interpretation of Article 6. 5 that does not require an evidentiary showing to 
support "good cause" "is contrary to both the text and ratio legis of Article 6.5" and "seriously 
undermines the delicate balance sought in that provis ion to protect the interests of all interested 
parties".316 
188. China further argues that the evidentiary burden of  proof under Article 6.5 rests with the party 
requesting confidential treatment, and that the Panel violated Article 11 of the DSU when it 
impermissibly shifted this burden on China.  The Panel found that China did not "contest the factual 
assertion" contained in the complaint, and had not "p roffered any evidence, or even argued, that this 
assertion was unfounded, unreasonable, or untrue".317  It similarly found that evidence of "potential 
commercial retaliation" is not likely to be obtain able, and that therefore, the allegation of the 
complainants would be sufficient "unless there is some  reason to believe that the fear of retaliation is 
unreasonable, unfounded, or untrue – and China has proffered none".318  In China's view, it was up to 
the complainants in the investigation to present "c ompelling evidence" to support their allegation, and 
it was not China's responsibility to present evid ence before a WTO panel that no "good cause" 
existed.319  Moreover, even if China had an obligatio n to offer evidence agai nst the complainants' 
allegation of potential commercial retaliation, it was prevented from doing so because it was never 
given access to those complainants' identity.320 
                                                      
314China's other appellant's submission, paras. 450-453. 
315China's other appellant's submission, para. 458 (quoting Panel Report, para. 7.453). 
316China's other appellant's submission, para. 463. 
317China's other appellant's submission, para. 464 (quoting Panel Report, para. 7.452). 
318China's other appellant's submission, para. 464 (quoting Panel Report, para. 7.453). 
319China's other appellant's submission, paras. 464 and 467. 
320China's other appellant's submission, para. 468.  WT/DS397/AB/R 
 Page 77 
 
 
  189. Before the Panel, China claimed that the Commission's disclosure of the sampled producers' 
identity in the context of the injury determination demonstrated that good cause could not have 
existed for the Commission's earlier confidentia l treatment of those producers' identity as 
complainants and supporters of the complaint.  By disclosing the names of the sampled producers, 
China submits, the Commission thereby also reveal ed the names of several complainants and/or 
supporters of the complaint.  The fact that the dom estic producers did not request that their identity be 
kept confidential in this context as well, demonstrat es, in China's view, that no "good cause" existed 
to treat their identity as confid ential earlier in the proceedings.321  On appeal, China claims that the 
Panel erred in rejecting this argument because the Panel record contains clear evidence showing that 
the entire domestic industry as defined by the Comm ission, and therefore also the domestic producers 
sampled for purposes of the injury determination, consisted only of complain ants and supporters of 
the complaint.322   
190. China also claims that the Panel erred in fi nding that the identification of companies as 
sampled producers would not cause the same concerns for those companies as their identification as 
complainants and supporters, and that in the fast eners investigation it was not the case that the 
sampled producers were necessarily complainants or supporters of the complaint.  China argues that 
the former argument is "unfounded" because the Pa nel did not explain why sampled producers would 
not have the same concerns as complainants and support ers.  As to the latter, China submits that this 
conclusion was erroneous, because it was based on  the European Union's "mere assertion" that 
"at least one company included in the sample was not, in fact, either a complainant or supporter of the 
complaint".323 
(b) Disclosure under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  
191. Assuming that the Appellate Body reverses th e Panel's finding that the European Union 
properly treated the identity of the complainants as confidential information un der Article 6.5 of the 
Anti-Dumping Agreement , China requests that the Appellate  Body also reverse the Panel's 
consequential findings under Articles 6.4 and 6.2 of the Agreement , and find instead that the 
Commission's failure to disclose the identity of the complainants was inconsistent with both 
provisions.324  To this end, China argues that the identity of the complainants and the supporters of the 
complaint should have been disclosed in complianc e with Article 6.4 because this information was 
"used" by the Commission in their standing determ ination, and was therefore "'relevant' to the 
                                                      
321China's other appellant's submission, para. 471. 
322China's other appellant's submission, paras. 473 and 474. 
323China's other appellant's submission, para. 477 (quoting Panel Report, footnote 940 to para. 7.454). 
324China's other appellant's submission, para. 482. WT/DS397/AB/R 
Page 78  
 
  presentation of [the Chinese produ cers'] cases" in this regard.
325  China also argues th at the identity of 
the complainants should have been disclosed under Article 6.2 of the Anti-Dumping Agreement  in 
order to provide the producers with a "full opportunity for the defence of their interests".326  
According to China, Article 6.2 is "so broad" th at a violation of Article 6.4 "necessarily entails a 
violation of Article 6.2".327  Even independently of a violation of Article 6.4, however, China submits 
that the Commission violated Article 6.2 because, as  a result of the Commission's failure to disclose 
the names of these companies, the Chinese producer s were not given an opportunity properly to 
examine and present arguments regarding the Commission's standing determination.328 
4. The Panel's Findings that the MET/IT Claim Form Was Not a 
"Questionnaire" for Purposes of Article 6.1.1 of the Anti-Dumping Agreement  
192. China requests the Appellant Body to reverse th e Panel's finding that the Commission did not 
act inconsistently with its oblig ations under Article 6.1.1 of the Anti-Dumping Agreement  when it 
allowed Chinese producers only 15 days from the publication of the Notice of Initiation of the 
investigation to submit a claim form requesti ng market economy and/or individual treatment 
("the MET/IT Claim Form").  Specifically, China argues that the Panel erred in finding that the 
30-day time-limit required for the submission of "ques tionnaires" in Article 6.1.1 applies only to "the 
initial comprehensive questionnaire"  issued in an investigation.329  In the alternative, China contends 
that the Panel erred in finding that the MET/IT  Claim Form was not the initial, comprehensive 
questionnaire sent to foreign exporters in an NME investigation. 
193. China submits that the Panel erred in interp reting the term "questionnaires" as referring only 
to "the initial comprehensive questionnaire issued in an anti-dumping investigation to each of the 
interested parties by an investigating authority at or following the initiation of an investigation, which 
questionnaire seeks information as to all relevant issu es pertaining to the main questions that will need 
to be decided (dumping, injury and causation)".330  Instead, China urges the Appellate Body to find 
that the term "questionnaires" includes all information requests made through a series of questions 
that are su30bstantial enough to warrant verifica tion, as long as extending a full 30-day deadline 
would not prevent the investigating authorities from complying with the overall timeframe set out in 
Article 5.10 of the Anti-Dumping Agreement  for the completion of an investigation .331 
                                                      
325China's other appellant's submission, paras. 483 and 484. 
326China's other appellant's submission, para. 487. 
327China's other appellant's submission, para. 487. 
328China's other appellant's submission, para. 488. 
329China's other appellant's submission, para. 501 (quoting Panel Report, para. 7.574). 
330China's other appellant's submission, para. 501 (quoting Panel Report, para. 7.574). 
331China's other appellant's submission, para. 538.  WT/DS397/AB/R 
 Page 79 
 
 
  194. China observes that the ordinary meaning of the term "questionnaire" is quite broad and 
would on its face cover every document used by an investigating authority to seek information in the 
form of "a formulated series of questions".332  China also emphasizes the fact that Article 6.1.1 uses 
the plural form of this term, which suggests that the provision would not only apply to multiple questionnaires, but that each foreign producer ma y receive more than one questionnaire requiring a 
30-day deadline throughout the course of the investigation.
333  China argues that Articles 6.1 and 6.2 
of the  Anti-Dumping Agreement  provide the appropriate context for the interpretation of Article 6.1.1, 
and notes that the Appellate Body has found that  these provisions "set out the fundamental due 
process rights" in anti-dumping investigations a nd provide for "liberal opportunities for respondents 
to defend their interests".334  China claims that the reference to a "questionnair e" in paragraphs 6 and 7 
of Annex I to the Anti-Dumping Agreement  (Procedures for On-the-Spot Investigations pursuant to 
Paragraph 7 of Article 6) shows that  the term refers to information requests that are "so substantial" 
that they require verification by the investigati ng authority—a characterization that would cover the 
MET/IT Claim Form.335  Finally, China argues that the purpose of the time-limit set out in 
Article 6.1.1, that investigating authorities retain th e ability to "control and expedite the investigating 
process", does not imply that the term "questionnaires" can refer to only one document.336  C h i n a  
claims that the Commission's ability to complete the fasteners investigation in a timely manner would not have been frustrated by allowing the Chinese producers a full 30 days to submit the MET/IT Claim Form.
337 
195. Even if the Appellate Body determines that th e Panel was correct in its interpretation of the 
term "questionnaires" in Article 6.1.1, China argues that the Panel violated Article 11 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement  when it failed to find that, for the foreign exporters of 
an NME country, the MET/IT Claim Form is the ini tial, comprehensive questionnaire.  China submits 
that the MET/IT Claim Form includes many of the same issues covered in ot her initial questionnaires, 
and that the Panel's own admission that not all in itial questionnaires will cover the same material, 
suggests that the MET/IT Claim Form need not  have covered all the issues involved in the 
investigation to be considered the "initial questionnaire". 
                                                      
332China's other appellant's submission, para. 509. 
333China's other appellant's submission, para. 510. 
334China's other appellant's submission, para. 513 (quoting Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 241). 
335China's other appellant's submission, para. 526. 
336China's other appellant's submission, para. 533. 
337China's other appellant's submission, para. 536. WT/DS397/AB/R 
Page 80  
 
  D. Arguments of the European Union – Appellee 
1. The Panel's Findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement  
196. The European Union requests the Appellate Body to reject China's appeal against the Panel's 
finding that the European Union did not act inc onsistently with Article s 4.1 and 3.1 of the 
Anti-Dumping Agreement  with respect to the definition of the domestic industry in the fasteners 
investigation.  The European Union maintains that , as the Panel properly found, the European Union 
did not exclude from the definition of the domestic industry those producers who did not support the 
complaint.  Nor did the European Union act inconsistently with Articles 4.1 and 3.1 of the Anti-Dumping Agreement  by not including in the domestic industry definition those producers who 
made themselves known more than 15 days after the publication of the Notice of Initiation of the 
investigation.  The European Union further submits  that the Panel correctly rejected China's assertion 
that the domestic industry defined by the Commi ssion, consisting of those producers whose output 
accounted for 27 per cent of total domestic production,  did not meet the requirement of "a major 
proportion" under Article 4.1 of the Anti-Dumping Agreement .  Finally, with respect to China's claim 
regarding the representativeness of the sample for pur poses of the injury determ ination, the European 
Union contends that the claim was not properly befo re the Panel and therefor e outside the scope of 
appellate review.  In any event, the European Unio n asserts that China's arguments in support of this 
claim are without merit. 
(a) Exclusion of Certain Producers 
197. The European Union submits that China fa ils to demonstrate that the Panel acted 
inconsistently with Article 11 of the DSU and Article 17.6(i) of the Anti-Dumping Agreement  in 
finding that the European Union did not exclude producers who did not support the complaint from 
the definition of domestic industry.  Moreover, China has not demonstrated that the Panel erred in its 
interpretation of Article 4.1 of the Anti-Dumping Agreement , or acted inconsistently with Article 11 of 
the DSU, in rejecting China's allegation that the exclusion of the producers who did not come forward within the 15-day deadline was incons istent with Article 4.1 of the Anti-Dumping Agreement .  In 
addition, China fails to demons trate that the Panel erred in law when it rejected China's 
"consequential"
338 claim under Article 3.1 of the Anti-Dumping Agreement . 
                                                      
338European Union's appellee's submission, para. 107.  WT/DS397/AB/R 
 Page 81 
 
 
  (i) Exclusion of producers who did not support the complaint 
198. The European Union maintains that "[i]t is well established" that a panel, as the trier of facts, 
enjoys a substantial margin of discretion.  The di scretion is not boundless, and there could be a failure 
to make an objective assessment of the facts in th e event of "deliberate disregard" and refusal to 
consider the evidence, or in case of the "wilful distortion" or "misrepresentation" of the evidence.339  
In the European Union's view, the relevant jurisp rudence under Article 11 of the DSU suggests that a 
violation of that provision is not "simply an error of judgment in the appreciation of evidence but rather 'an egregious error that calls in to question the good faith of a panel'".
340 
199. Turning to the facts of the case, the European Union submits that the Panel properly took into 
consideration, as part of the totality of evidence before it, the "information provided by the [European Union] that at least one producer that had remained silent prior to initiation and thus had 
not 'supported the complaint' was included in  the definition of the domestic industry".
341  The Panel 
"was right to assume good faith on the part of the [European Union]"342, and there was no reason to 
doubt the veracity of the information in the light of  the relevant evidence on the record.  Specifically, 
the European Union provided the name of the pro ducer in question, rather than giving "a vague 
reference to an unidentified mysterious  producer that could not be verified".343  Moreover, contrary to 
China's assertion that the European Union should have provided the list of complainants and 
supporters in order to prove the information it provide d, the European Union indicated to the Panel its 
willingness to provide the list, but also highlighted  the fact that the list had been treated as 
confidential.  The Panel did not request to see th e list, and it is not within the Appellate Body's 
mandate to examine now evidence in respect of which factual findings have been made by the Panel.   
200. Moreover, the European Union contends, the in formation it provided to the Panel concerning 
the producer who had not supported the complaint was "mainly to confirm  the [other] information 
already provided by the [European Union] that no producer was excluded for reason of the fact that it 
did not support the complaint".344  Specifically, the European Union maintains that it submitted 
evidence in the form of the sampling forms sent upon the initiation of the investigation to all known 
producers for purposes of defining the domestic indus try, which did not include a question concerning 
support for the complaint.  Moreover, recitals 23 to 25 of the Definitive Regulation also confirm that 
                                                      
339European Union's appellee's submission, para. 50 (quoting Appellate Body Report, EC – Hormones , 
para. 133). (underlining by the European Union omitted) 
340European Union's appellee's submission, para. 50 (quoting Appellate Body Report, EC – Hormones , 
para. 133). (underlining by the European Union omitted) 
341European Union's appellee's submission, para. 53. 
342European Union's appellee's submission, para. 61. 
343European Union's appellee's submission, para. 57. 
344European Union's appellee's submission, para. 58. (original emphasis) WT/DS397/AB/R 
Page 82  
 
  all those producers who responded to the sampling forms within the 15-day deadline and indicated 
their willingness to cooperate were included in the do mestic industry definition,  regardless of whether 
they supported the complaint.  Thus, the European  Union contends, China erroneously suggests that 
the European Union made a "mere assertion"
345 when it provided the name of the producer who had 
not supported the complaint.  On the contrary, this evidence was supported and confirmed by other 
evidence on the record.  The Panel therefore did no t act inconsistently with Article 11 of the DSU 
because it took into account all of the above evidence in its assessment of the facts. 
201. The European Union further submits that ther e is no basis for China's allegation that the 
Commission knew whether the sampled producer who had not supported the complaint at the time of 
initiation actually supported the investigation wh en it came forward after initiation.  In the 
European Union's view, China "speculates" about  what the Commission could have known regarding 
the producer's position in respect of the complaint,  "when it has been established as a matter of fact 
that this was a producer that (i) was silent befo re initiation and (ii) subsequently … return[ed] a 
sampling form in which no question was asked about support for the complaint".346  Therefore, the 
Panel properly found that, "[w]hile China continues to assert that  the Commission inquired as to the 
position of EU producers with respect to the comp laint, the only evidence before the Panel, the 
sampling forms, does not support that assertion."347  The European Union asserts that the "evidence" 
provided by China in this regard was based on "cer tain unfortunate statements in the Information 
Document and in [the Definitive Regulation]".348  Such statements, accordi ng to the European Union, 
were due to certain "confusion"349 between the issue of the standing requirement and the definition of 
the domestic industry, which was caused by the Commission's inquiry, after the initiation of the investigation, concerning the Chinese interested part ies' allegation that the standing requirement had 
not been met.  Although China disagrees with the wei ght given by the Panel to  the alleged "evidence", 
a panel's examination and weighing of the evidence submitted falls within th e scope of the panel's 
discretion as the trier of the facts. 
202. Finally, the European Union maintains that , in alleging that the Panel "disregarded"
350 three 
pieces of evidence and thus acted inconsistently wi th Article 11 of the DSU, China's claim merely 
concerns the Panel's appreciation of the evidence with in the boundary of its discretion as the trier of 
                                                      
345European Union's appellee's submission, para. 59 (quoting China's other appellant's submission, 
para. 66). 
346European Union's appellee's submission, para. 63. 
347European Union's appellee's submission, para. 64 (quoting Panel Report, para. 6.75). 
348European Union's appellee's submission, footnote 47 to para. 65. 
349European Union's appellee's submission, footnote 47 to para. 65. 
350European Union's appellee's submission, para. 68 (quoting China's other appellant's submission, 
para. 85).  WT/DS397/AB/R 
 Page 83 
 
 
  facts.  Specifically, the Panel rightly relied on rec itals 23 to 25 of the Definitive Regulation, which 
show that support for the complaint was not a c ondition for being included in the domestic industry 
definition, despite the reference to "producers s upporting the complaint" in the definition of the 
domestic industry under the Definitive Regulation.  "Similarly", the European Union argues, "the Panel put the confused statements in the informal Information Document in context by pointing to the 
fact that this was a mere working document w ith no legal status in the [European Union]."
351  Finally, 
the European Union asserts that the Panel did not e rr in not expressly addressing the letter referred to 
by China, because a panel "is not required to discuss, in its report, each and every piece of 
evidence".352  In any event, China misinterprets the letter it sought to rely on, which does not state that 
support for the complaint was a condition for in clusion in the domestic industry definition. 
203. On this basis, the European Union submits th at China's allegation that the Panel committed 
egregious error in not giving the same weight to th e evidence as did China, and acted inconsistently 
with Article 11 of the DSU, must fail. 
(ii) Exclusion of producers who did not come forward within 
15 days of the initiation of the investigation 
204. The European Union asserts that China fails to  establish that the Panel erred in the legal 
interpretation, and acted incons istently with Article 11 of the DSU, in finding that the 
European Union did not act inconsistently with Article 4.1 of the Anti-Dumping Agreement  by 
excluding from the domestic industry definition all producers who did not come forward within 15 
days following the initiatio n of the investigation. 
205. The European Union contends that Ch ina accepts that it is "permissible"353 to impose a 
deadline for domestic producers to come forward,  which undermines its assertion that Article 4.1 
prohibits the exclusion of any categories of produ cers except for those provided under paragraphs (i) 
and (ii).  Moreover, there is no basis for Chin a's argument that the imposition of a deadline for 
producers to come forward is "inadmissible if the i nvestigating authorities … consider the inclusion of 
producers that did not come forward within the d eadline and finally decide not to include them".354  
Indeed, China does not explain why it accepts that de adlines may be used, but then objects to the fact 
that such deadlines are actually applied by the authorities.  The European Union submits that 
                                                      
351European Union's appellee's submission, para. 72. 
352European Union's appelles's submission, para. 73 (quoting Appellate Body Report, Brazil – 
Retreaded Tyres , para. 202). 
353European Union's appellee's submission, para. 78 (quoting China's other appellant's submission, 
para. 125). 
354European Union's appellee's submission, para. 81 (quoting China's other appellant's submission, 
para. 126). WT/DS397/AB/R 
Page 84  
 
  investigating authorities are entitled, under Article 6.14 of the Anti-Dumping Agreement , to maintain 
control over the investigations and to impose deadlin es in order to be able to proceed expeditiously 
with the investigation.  Moreover, the authorities are required to impose such deadlines in order to 
comply with their obligation under Article 5.10 of the Anti-Dumping Agreement  to conclude the 
investigation within 12 to 18 months.  The Europ ean Union further submits that, in the fasteners 
investigation, the 15-day deadline excluded producer s irrespective of their support for the complaint 
and was a reasonable and objective way of  defining the domestic industry.   
206. The European Union maintains that there is no basis for China's allegation that the Panel 
acted inconsistently with Article 11 of the DS U in finding that the European Union did not 
deliberately exclude producers that came forward after the 15-day deadline.  The Information 
Document, to which China refers in support of its claim, merely reflects, "in a somewhat confused 
manner"
355, the fact that the Commission accommodated th e Chinese interested parties' allegation, 
that the standing requirement had not been me t, by contacting additional domestic producers 
concerning their production volume and their position re garding the complaint.  Moreover, the Panel 
examined the relevant evidence and found that "the  fact that the Commission considered including 
[the additional producers in] the domestic industry s upports our view that it did not simply exclude 
producers who did not come forward within the 15-day period."356  In the European Union's view, 
China's allegation that the Panel acted inconsistently with Article  11 of the DSU in reaching this 
finding is "based on a wilful misreading of the Panel Report", because the Panel simply "reached the 
factual conclusion that the authorities applied th e deadline they had set for domestic producers but 
that in so doing the authorities had not been deaf to requests from exporters to contact more producers".
357 
207. The European Union argues that China's asserti on that the Panel acted inconsistently with 
Article 11 of the DSU in finding that China had not demonstrated the unreasonableness of the 15-day 
deadline is also without merit.  As the Panel correctly found, China submitted no evidence regarding 
the alleged unreasonable or insufficient nature of the 15-day deadline.  China's mere "speculation" 
that a deadline as short as 15 days makes it more likely that only complainants and supporters would 
come forward does not amount to such evidence.358  Moreover, contrary to China's argument, linking 
the possibility of being included in the domestic indus try to a producer's willingness to be included in 
the sample is unrelated to the question of whether the 15-day deadline is reasonable.  This is because 
the information requested in th e sampling form, concerning the products produced and the volume of 
                                                      
355European Union's appellee's submission, para. 89. 
356European Union's appellee's submission, para. 90 (quoting Panel Report, para. 7.215). 
357European Union's appellee's submission, para. 91. 
358European Union's appellee's submission, para. 96.  WT/DS397/AB/R 
 Page 85 
 
 
  production, was easy to provide, and the indication of willingness to be included in the sample only 
required the ticking of the appropriate box on the fo rm. Finally, the European Union contends that 
China's assertion that the 15-day deadline to res pond to the sampling form is not the same as the 
period in which an interested party was requested  to make itself known under the Notice of Initiation 
is "simply incorrect".  This is so because the No tice of Initiation clearly provides for a 15-day period 
for being included in the domestic industry, and a 40-day period for interested parties to make 
themselves known "unless otherwise specified".359 
208. On this basis, the European Union requests the Appellate Body to reject China's above claims 
and arguments, as well as China's request for completion of the analysis. 
(iii) Inconsistency with Article 3.1 of the Anti-Dumping 
Agreement 
209. The European Union maintains that the Panel co rrectly determined that China failed to make 
a prima facie  case under Article 3.1 of the Anti-Dumping Agreement  because its arguments under that 
provision were dependent on its ar guments under Article 4.1 of the Anti-Dumping Agreement .  In 
support of its appeal under Article 3.1, China simp ly repeats its arguments concerning the alleged 
exclusion of the producers who did not support the co mplaint, and the alleged unreasonableness of the 
15-day deadline.  These are the same arguments China had raised under Article 4.1 of the 
Anti-Dumping Agreement , which the Panel properly rejected.  Thus, given the Panel's findings under 
Article 4.1, and given the fact that China's argu ments under Article 3.1 were identical to those under 
Article 4.1, the Panel did not err in rejecting Ch ina's claim under Article 3.1.  The European Union 
adds that China's appeal does not identify any error of law in the Panel's finding under Article 3.1, but 
merely describes the alleged errors committed by the Commission in its definition of the domestic 
industry.  Thus, the European Union contends that , because China "never developed an independent 
argument under Article 3.1 of the Anti-Dumping Agreement "360, the Appellate Body must also reject 
China's appeal under that provision. 
210. The European Union further submits that Ch ina's argument that the manner in which the 
Commission defined the domestic industry was biased must also be rejected.  China's assertion that 
"[c]ompanies opposing the investigation are much less likely to be willing to be part of the sample 
than companies supporting the investigation"361 is "purely speculative".362  Even if it were true, this 
                                                      
359European Union's appellee's submission, para. 101. (boldface by the European Union omitted) 
360European Union's appellee's submission, para. 108. 
361European Union's appellee's submission, para. 113 (quoting China's second written submission to the 
Panel, para. 548). 
362European Union's appellee's submission, para. 113. WT/DS397/AB/R 
Page 86  
 
  does not mean that an authority cannot use cooperation as a criterion for defining the domestic 
industry.  In the absence of subpoena powers, the Commission was entitled to continue its 
investigation on the basis of facts made available by the cooperating producers, as long as their output 
represented a major proportion of the total domestic production.  Finally, the European Union submits 
that Article 3.1 of the Anti-Dumping Agreement  only requires that the authorities conduct an objective 
examination of positive evidence in respect of th e domestic industry as defined under Article 4.1.  
Article 3.1 thus concerns only the manner in which data from those producers included in the 
domestic industry definition is examined, an issue no t raised in China's appeal under that provision. 
211. On this basis, the European Union requests the Appellate Body to reject China's appeal under 
Article 3.1 of the Anti-Dumping Agreement . 
(b) "A Major Proportion" of the Total Domestic Production 
212. As a preliminary matter, the European Union submits that it wishes to express its concern 
about what it views as a change in China's position w ith regard to the interpretation of the term "a 
major proportion" under Article 4.1 of the Anti-Dumping Agreement .  Before the Panel, China agreed 
with the interpretation of the panel in Argentina – Poultry Anti-Dumping Duties  that "major" means 
"important, serious or significant", with which th e European Union also agreed.  Although China's 
original position had been that "a major proportion"  must be as close as possible to 100 per cent, it 
"clearly abandoned its original position" by acknowle dging that "major" in abstract terms could even 
be a percentage lower than 25 per cent.
363  Thus, noting the agreement between the parties on the 
interpretation of the term "a major proportion", th e Panel focused its examin ation on whether China 
met its burden of proving that, in this dispute, 27  per cent of the total domestic production was not a 
major proportion.  Thus, in the European Union's view, because the Panel "relied on" the agreement 
between the parties regarding the legal interpreta tion in developing its reasoning, it is "simply not 
credible, nor appropriate" for China to assert on app eal that the interpretation put forward by the Panel 
is not permissible.364 
213. The European Union further submits that, as th e Panel correctly found, despite the alleged 
presumption relied on by the Commission in defining  the domestic industry, China failed to establish 
that the output of the domestic industry as defined by the Commission, representing 27 per cent of total domestic production, di d not constitute "a major proportion" w ithin the meaning of Article 4.1 of 
the Anti-Dumping Agreement .  Finally, China's allegation that the Panel erred in rejecting certain 
non-quantitative factors is also unfounded.  Thes e non-quantitative factors include the alleged 
                                                      
363European Union's appellee's submission, para. 138. 
364European Union's appellee's submission, para. 141.  WT/DS397/AB/R 
 Page 87 
 
 
  exclusion of certain producers, the practical possib ility to obtain information from all producers, and 
the number of producers. 
(i) The interpretation of the term "a major proportion" 
214. The European Union submits that, becau se the text of Article 4.1 of the Anti-Dumping 
Agreement  refers to "a major proportion" and does not use terms such as "the majority", this provision 
does not require that the domestic industry consis t of producers representing more than 50 per cent of 
the domestic production.  This interpretati on is supported by the panel's finding in Argentina – 
Poultry Anti-Dumping Duties365, and China does not argue otherwise.  The European Union further 
maintains that, on the basis of its ordinary meaning, the term "a major proportion" means an 
"important, serious or significant" proportion of  total domestic output.  Although the dictionary 
definition relied on by China defines the word "major" as " unusually  important, serious or 
significant"366, the European Union submits that the qualif ying term "unusually" is not particularly 
meaningful. 
215. The European Union agrees with China's argume nt that, in order to represent a "proportion", 
the production of domestic producers concerned must c onstitute a "part" or "share" of the whole.  
However, the European Union asserts that China "m akes an unsubstantiated leap of logic when it 
states that '[ i]n other words , they must be representative of the whole'".367  There is nothing inherently 
"representative" in the term "proportion", because th e term simply refers to a ratio.  Moreover, 
because Article 4.1 refers to the "collective output", the term "a major proportion" is to be examined 
in relation to the quantity of production.  The Euro pean Union further contends that the Appellate 
Body's finding in US – Lamb , to which China refers in suppor t of its position, addresses the meaning 
of "producers as a whole", and not "a major proportion", and therefore does not lend support to 
China's position.368   
216. The European Union submits that, without any basis, China asserts that "[t]he reason for 
permitting the domestic industry to be define d as those producers constituting only a 'major 
proportion' is to address the practical impossibility  for investigating authorities in some cases to 
                                                      
365European Union's appellee's submission, para. 147 (referring to Panel Report, Argentina – Poultry 
Anti-Dumping Duties , paras. 7.341 and 7.342). 
366European Union's appellee's submission, para. 142 (referring to China's other appellant's submission, 
paras. 10, 188 and 189). (emphasis added by the European Union) 
367European Union's appellee's submission, para. 151 (referring to China's other appellant's submission, 
para. 185). (emphasis added by the European Union) 
368European Union's appellee's submission, para. 153 (quoting Appellate Body Report, US – Lamb , 
para. 91). WT/DS397/AB/R 
Page 88  
 
  obtain the requested information from a ll the producers of the like product."
369  The European Union 
maintains that Article 4.1 merely refers to two a lternative options for defining the domestic industry, 
and the word "or" indicates that there is no hi erarchy or preference between these two options.  
Moreover, contrary to China's assertions, paragra phs (i) and (ii) of Article 4.1 do not limit the 
discretion of the investigating authority, but merely  allow the investigating authority to limit the total 
number of eligible producers.  The European Uni on emphasizes that its interpretation would not, as 
China suggests, lead to arbitrary exclusion of categor ies of producers.  Rather, if the authority acts in 
an objective and unbiased manner in defining the domestic industry by, for example, including only those producers willing to cooperate, the definition of  the domestic industry w ill be consistent with 
Article 4.1, even if it consists of producers whose output represents less than 100 per cent of the total 
domestic production.  Finally, the European Union disag rees with China's argument that Article 3.1 of 
the Anti-Dumping Agreement provides contextual support for the proposition that the term "a major 
proportion" requires that the domestic industry so defined must be representative of the domestic 
producers as a whole.  Rather, Article 3.1 imposes oblig ations in respect of injury determination, and 
does not impose any obligations in respect of the definition of the domestic industry. 
(ii) Whether the domestic industry defined in the fasteners 
investigation meets the requirement on "a major proportion" 
217. The European Union submits that it is for Ch ina, as the complaining party, to make a 
prima facie  case that the European Union failed properl y to define the domestic industry in the 
fasteners investigation because the collective output representing 27 per cent of total domestic 
production did not constitute "a major proportion"  within the meaning of Article 4.1 of the 
Anti-Dumping Agreement .  Before the Panel, although China argued that the Commission wrongly 
relied on a presumption that producers accounting for 25 per cent of total domestic production 
constituted a major proportion of domestic producti on, China also accepted that, depending on the 
circumstances, even a percentage of less than 25 per cent could be sufficient.  Thus, the Panel 
correctly required China to provide evidence demonstr ating that, in this dispute, 27 per cent was not 
an important, serious, or significant part of total domestic production. 
218. In the European Union's view, China effec tively alleges that authorities are under an 
independent obligation to explain the basis for thei r conclusion that a certain percentage of production 
is "major" in the circumstances of the case.  Howeve r, Article 4.1 does not impose such an obligation. 
This is confirmed by the panel's finding in Argentina – Poultry Anti-Dumping Duties  that authorities 
are not under an obligation to elucidate how they foun d that a percentage lowe r than 50 per cent could 
                                                      
369European Union's appellee's submission, para. 155 (quoting China's other appellant's submission, 
para. 195).  WT/DS397/AB/R 
 Page 89 
 
 
  be considered "a major proportion".370  The European Union maintains that, before the Panel, China 
did not deny that the domestic industry as define d included large and small companies, as well as 
producers of different types of fasteners.  Moreove r, during the fasteners investigation, the Chinese 
exporters did not question the representativeness of the domestic industry definition, and the 
Commission was therefore under no obligation to addr ess such concerns.  In this regard, China's 
argument on appeal that the Commission relies on a rule that automatically equates "a major 
proportion" with 25 per cent of total domestic production "is in error and entirely irrelevant".371  This 
is because China did not challenge the releva nt provision of the European Union's Basic 
AD Regulation concerning such a "rule".  Thus, th ese provisions are not before the Appellate Body 
and, in any event, there is no evidence on the reco rd demonstrating that the Basic AD Regulation sets 
forth a mandatory rule preventing the Commission fro m concluding, in the specific circumstances of a 
case, that 25 per cent does not amount to a major proportion. 
219. The European Union nonetheless maintains that the Basic AD Regulation reflects its position 
that Article 5.4 of the Anti-Dumping Agreement  provides important contextual guidance concerning 
the meaning of the term "a major proportion" in Article 4.1 of that Agreement.  Specifically, 
Article 5.4 provides that a request for initiation of an anti-dumping investigation must be made "by or 
on behalf of the domestic industry", and that this will be the case when it is established that domestic 
producers supporting the application represent at l east 25 per cent of total domestic production.  
Therefore, it is "permissible to consider that producers that represent 25 [per cent] or more of 
domestic production can legitimately represent a major proportion of total production and that, as 
explained before, this was the case in the fasteners investigation."372 
220. With regard to China's claim that the Panel failed to consid er certain non-quantitative factors, 
the European Union asserts that Ch ina merely repeats the arguments in support of its view that the 
term "a major proportion" requires the domestic i ndustry so defined be representative of the domestic 
producers as a whole.  The European Union agrees that authorities cannot deliberately exclude a 
category of producers.  However, if the exclusion only results from the application of a reasonable 
deadline, or the consequence of the fact that the industry is fragmented, it is  not inconsistent with 
Article 4.1 of the Anti-Dumping Agreement .  Furthermore, contrary to China's assertion, the number 
of producers is not a relevant element in the de finition of the domestic industry, because Article 4.1 
concerns the volume of production. 
                                                      
370European Union's appellee's submission, para. 178 (referring to Panel Report, Argentina – Poultry 
Anti-Dumping Duties , para. 7.343). 
371European Union's appellee's submission, para. 186. 
372European Union's appellee's submission, para. 187. (original emphasis) WT/DS397/AB/R 
Page 90  
 
  221. On this basis, the European Union submits that  the Panel properly found that China failed to 
demonstrate, prima facie , that the definition of domestic industr y in this case is inconsistent with 
Article 4.1 of the Anti-Dumping Agreement , and requests the Appellate Body to reject China's appeal. 
(c) The Representativeness of the Sample  of Domestic Producers in the 
Injury Determination 
222. The European Union alleges, as a preliminary matte r, that China's appeal concerns the Panel's 
rejection of a claim that was not within the Pane l's terms of reference.  In its request for the 
establishment of a panel
373, China alleged that the European Union acted inconsistently with 
Articles 4.1 and 3.1 of the Anti-Dumping Agreement  because the Commission conducted the injury 
determination on the basis of a sample of produ cers accounting for only 17.5 per cent of the total 
European Union production of the like product in 2006.  However, in its second written submission 
before the Panel, China raised the "entirely new cl aim" that the European Union acted inconsistently 
with Article 3.1 of the Anti-Dumping Agreement  by using a sample on the basis of the largest volume 
that can be reasonably investigated, thereby failing to use a sampling technique that guaranteed that 
the sample was sufficiently represen tative of the domestic industry.374  The European Union argues 
that this new claim is in no way related to China's claim under Article 3.1 of the Anti-Dumping 
Agreement  listed in its panel request, and is therefor e not properly before the Appellate Body. 
223. The European Union submits that Ch ina's claim under Article 3.1 of the Anti-Dumping 
Agreement  is in any event without merit.  Article 3.1 does not prescribe any methodology for 
sampling in the injury determination.  Although Article 6.10 of the Anti-Dumping Agreement , 
concerning sampling in the dumping determination, is not  directly applicable in the context of injury 
determinations, the fact that the Commission followed one of the two sampling methodologies provided in that provision indicates that its method was not unreasonable or biased.  Moreover, as the 
Panel correctly found, China failed to present any factors other than volume that should have been 
taken into account.  The European Union further mainta ins that there is no basi s for China's claim that 
the Commission could have included more domestic  producers in the sample.  The Panel properly 
found that the mere fact that certain macro-economic  factors were examined on the basis of data from 
all 45 producers making up the domestic industry does not demonstrate that the Commission could 
have examined all micro-economic factors on the same  basis.  This finding falls within the Panel's 
discretion as the trier of facts, and China makes no claim under Article 11 of the DSU in this regard. 
                                                      
373WT/DS397/3, 13 October 2009. 
374European Union' appellee's submission, para. 214.  WT/DS397/AB/R 
 Page 91 
 
 
  224. On this basis, the European Un ion requests the Appellate Body to reject China's appeal of the 
Panel's finding that the sample selected by the Co mmission was not inconsistent with Article 3.1 of 
the Anti-Dumping Agreement . 
2. The Panel's Findings under Article 2.4 of the Anti-Dumping Agreement  
225. The European Union requests the Appellate Body to reject China's appeal of the Panel's 
finding that the European Union did not act  inconsistently with Article 2.4 of the Anti-Dumping 
Agreement  in respect of the comparison of the export price and normal value in the dumping 
determination.  According to the European Union, each of China's three claims on appeal is without 
merit and should be rejected. 
(a) The Panel's Treatment of China's Argument 
226. The European Union submits that China's allega tion of a violation of Article 11 of the DSU 
by the Panel for its alleged failure to address Ch ina's argument on the EU authorities' lack of 
communication on the information required to ensure a fair comparison is baseless. 
227. The European Union maintains that the "fact ual premise for China's claim is in error"375, 
because China did not make a claim, nor a substa ntial argument, before the Panel concerning the 
Commission's alleged failure to inform interested par ties of the fact that PCNs were not used in price 
comparison.  Rather, China raised this issue before the Panel in it s second written submission merely 
in rebuttal of the European Union's argument that no interested parties had requested adjustments, and 
in support of its claim that adjustments should have  been made. The Panel therefore did not "ignore[] 
a substantial argument put forward by China"376, because the Panel was not requested to opine on 
such an argument.  The European Union further submits that China's references to the Appellate 
Body's findings on "false exercise of judicial economy"  are "completely besides the point", given that 
those findings deal with the decision of a panel not to address certain "claims" before it, not 
"arguments".377  Moreover, because panels have the discr etion to address only those arguments they 
deem necessary to resolve a particular claim, "the f act that a particular argument relating to that claim 
is not specifically addressed in the 'Findings' section of  a panel report will not, in and of itself, lead to 
the conclusion that that panel has failed to make the 'objective assessment of the matter before it' 
                                                      
375European Union's appellee's submission, para. 249. 
376European Union's appellee's submission, para. 252 (quoting China's other appellant's submission, 
para. 306). 
377European Union's appellee's submission, para. 255. WT/DS397/AB/R 
Page 92  
 
  required by Article 11 of the DSU ".
378  Thus, the European Union submits that China fails to 
demonstrate that the Panel acted inconsistently w ith Article 11 of the DSU by not addressing China's 
argument. 
228. The European Union further contends that China fa ils to substantiate its alternative claim that, 
should the Appellate Body consider that the Panel implicitly rejected  China's argument, the Appellate 
Body should find that the Panel erred in its interpretation of Article 2.4 of the Anti-Dumping 
Agreement .  In the European Union's view, given that the Panel did not make a finding in this respect, 
and did not exceed the boundaries of its discretiona ry authority in not addressing China's argument, 
there is no basis for the Appellate Body to review th is alleged error in law in respect of a non-existent 
finding. 
(b) Physical Differences 
(i) The Panel's interpretation and application of Article 2.4 
229. The European Union maintains that China's allega tion of the Panel's error in the interpretation 
and application of Article 2.4 of the Anti-Dumping Agreement , concerning the Commission's 
obligation to evaluate all PCN characteristics and to  make necessary adjustments, is equally without 
merit.  According to the European Union, the Pa nel's legal interpretation of Article 2.4 of the  
Anti-Dumping Agreement  "is in line with the interpretation" advocated by China that an authority 
must evaluate identified differences potentially affecting price comparability.379  This is confirmed by 
the Panel's finding that, under Article 2.4, the author ities "must take steps to achieve clarity as to the 
adjustment claimed and then determine whether and to what extent that adjustment is merited ".380  
230. The European Union submits that China's appeal does not concern an issue of law, but rather 
concerns China's disagreement with the Panel's fact ual finding regarding the role and relevance of the 
PCN characteristics, and fails to "convincingly" challenge this finding under Article 11 of the DSU.381  
The European Union recalls China's argument before  the Panel that, because the PCN characteristics 
had been identified by the authorities themselves as affecting price comparability, the Commission 
had an obligation at least to evaluate whether th ese differences indeed affected price comparability or 
not, and should subsequently have concluded that adjustments were indeed required.  Thus, China's 
argument is premised on the assumption that the Commission had identified PCN characteristics as 
                                                      
378European Union's appellee's submission, para. 255 (quoting Appellate Body Report, EC – Poultry , 
para. 135). 
379European Union's appellee's submission, para. 272. 
380European Union's appellee's submission, para. 271 (quoting Panel Report, para. 7.298, in turn 
quoting Panel Report, EC – Tube or Pipe Fittings , para. 7.158 (boldface added by the Panel)). 
381European Union's appellee's submission, para. 263.  WT/DS397/AB/R 
 Page 93 
 
 
  affecting price comparability.  The Panel, however, disagreed with the "factual premise" of China's 
assertion382, finding, instead, that the fact that th e Commission used the PCNs as a tool for 
information gathering did not imply that the Commi ssion identified each of the PCN characteristics as 
necessarily affecting price comparability.  The Panel further found that China pointed to no evidence 
that was before the investigating authority in su pport of its assertion that the Commission considered 
all PCN characteristics as necessarily affecting pri ce comparability.  In the European Union's view, 
these are factual findings unrelated to whether or not there exists a distinction, as alleged by China, 
between the evaluation of identified differences and the making of adjustments for differences 
affecting price comparability. 
231. The European Union further maintains that, in any event, pursuant to a proper interpretation 
of Article 2.4 of the Anti-Dumping Agreement , the European Union complied with its obligations 
under that provision.  First, Article 2.4 requires an investigating authority to request information that 
may be necessary for ensuring a fair comparison a nd to determine whether any adjustments are 
warranted.  The European Union requested all inte rested parties to organize product information on 
the basis of the PCNs "merely [as] a tool"383 to help matching export sales  to domestic sales in the 
analogue country.  Second, under Article 2.4, it is the obligation of the producers from the country 
under investigation to substantiate their claim for adjustment.  The European Union recalls that the 
interested parties emphasized, thro ughout the fasteners investigation,  the importance of the distinction 
between standard and special fasteners, and the Commission took into account this distinction in the 
product types used for purposes of price comparison.   Third, under Article 2.4, an investigating 
authority is only required to adjust for differences that are demonstrated to affect price comparability, 
and not for any other differences.  Consistent with this obligation,  the Commission determined that 
only one of the PCN characteristics, that is, strength,  was demonstrated to affect price comparability.  
In this respect, the European Un ion argues that China makes an in accurate factual statement that 
"interested parties have stressed throughout the in vestigation that it was of fundamental importance 
that the comparison be made on the PCN basis".384  Therefore, the Commission complied with all of 
the obligations under Article 2.4 of the Anti-Dumping Agreement  and conducted a fair comparison 
between normal value and export price by making a comparison between fast eners on the basis of 
their strength class and whether they were special or standard fasteners. 
232.  On this basis, the European Union requests the Appellate Body to reject China's appeal 
against the Panel's finding that the Commission did not act inconsistently with Article 2.4 of the 
                                                      
382European Union's appellee's submission, para. 267. 
383European Union's appellee's submission, para. 277. 
384European Union's appellee's submission, para. 287 (quoting China's other appellant's submission, 
para. 360). WT/DS397/AB/R 
Page 94  
 
  Anti-Dumping Agreement  in not making adjustments for alle ged differences indicated through the 
PCN characteristics. 
(ii) The Panel's failure to make an objective assessment of the 
facts 
233. The European Union submits that, before addr essing China's specific claims, it may be useful 
to recall the role of the PCNs in the fasteners inv estigation.  According to the European Union, the 
PCNs are an information-gathering tool, consisting of "a very preliminary listing" of potentially 
relevant product features that may or may not affect price comparability.
385  Whether the PCNs will 
ultimately be used depends on numerous factors, including the arguments of the parties, and the practical limitations of the information available.  In the fasteners investiga tion, the European Union 
argues, the failure of the Indian producer to pr ovide the information in the detailed manner required 
by the PCNs implied that a different appro ach based on product types became preferable.  
Furthermore, the evidence on the record indicates  that strength class and the distinction between 
standard and special fasteners, on the basis of wh ich the Commission determined the product types, 
were two main characteristics referred to by the inte rested parties in the course of the investigation, 
including the Chinese interested parties.  The Eu ropean Union further submits that the Chinese 
interested parties did not raise any other char acteristics affecting price comparability during the 
investigation, even after they were informed that the price comparison was done on the basis of 
product types rather than PCNs.  China's argument , that the interested parties did not request 
adjustments because they assumed that any differences affecting price comparability would be taken 
into account by the PCN characteristics, is contradict ed by the fact that the Chinese interested parties 
presented arguments during the investigation regarding the importance of strength class even though strength class was one of the PCN characteristics.   
234. Turning to China's allegation that the Panel acte d inconsistently with Article 11 of the DSU, 
the European Union maintains that China has not po inted to any evidence that was disregarded by the 
Panel.  First, China repeats its erroneous assertion th at the fact that certain physical characteristics 
were reflected in the PCNs provi des evidence that such characteristics affect price comparability.  
Yet, as the Panel correctly found, the use of the PCNs as an information-gathering tool did not mean 
that the characteristics indicated  therein necessarily affect price comparability.  Second, although 
China submitted to the Panel that the Co mmission should have made adjustments for 
PCN characteristics such as the type of coating a nd the use of chrome, it did not made such claims 
before the Commission.  The European Union emphasi zes that the Panel's duty was to review whether 
                                                      
385European Union's appellee's submission, para. 292.  WT/DS397/AB/R 
 Page 95 
 
 
  the Commission's determination was reasonable in th e light of the evidence before the Commission, 
rather than assertions made during the Panel procee dings.  Third, with regard to the three pieces of 
evidence that China alleges it submitted to the Panel, the first two were statements by the EU industry 
made in the context of discussions concerning th e comparability between EU and Chinese fasteners, 
and thus did not concern the issue of price compar ability between Indian and Chinese fasteners.  As 
for the third piece of evidence, it concerns a pr esentation on behalf of a Chinese interested party 
stressing the need to differentiate fasteners based on standard market and niche products, which also 
does not address the alleged importance of the PCN ch aracteristics.  Thus, China fails to demonstrate 
that the Panel wilfully disregarded, distorted, or refused to consider the ev idence submitted by China.  
Rather, the Panel examined all evidence in its to tality, including China's acknowledgement that no 
interested parties raised any factors affecting pri ce comparability other than those taken into account 
by the Commission, and reach ed its conclusion on that basis.  Th e Panel did not violate Article 11 of 
the DSU simply because it did not di scuss every piece of evidence or every argument made by China. 
235. The European Union contends that China neither  substantiates, nor provides any evidence for, 
its allegation that the Panel acted incons istently with Article 17.6(i) of the Anti-Dumping Agreement .  
As the Panel found, China had pointed to no evidence  that was before the i nvestigating authorities in 
support of its assertion that all PCN characteri stics constituted differences affecting price 
comparability.  Because the task of the Panel was to review the reasonablen ess of the Commission's 
determination, the Panel rightly considered that it should not engage in a review of such evidence to 
determine whether it would have reached a different conclusion.  Therefore, China's appeal in this 
respect, as well as its request for completi on of the analysis, must be rejected. 
(c) Quality Differences 
236. The European Union maintains that, although Chin a alleges that the Panel erred in its legal 
interpretation, China's appeal does not point to any legal errors by the Panel in the interpretation of 
Article 2.4 of the Anti-Dumping Agreement .  Rather, the interpretation advanced by China is in line 
with the Panel's finding that an authority must exam ine whether and to what extent adjustments must 
be made.  The European Union further submits th at it agrees that characteristics that have been 
acknowledged to affect price comparability, or for which the requisite evidence has been provided, 
must be evaluated in order to determine whether and to what extent adjustment s may need to be made. 
237. In this dispute, however, there was no evidence of  any difference in quality that affected price 
comparability between Chinese and Indian fasteners.  Specifically, with respect to the letter from one 
Chinese producer requesting adjustments for quality differences, the Panel correctly found that the 
letter was not supported by any evidence.  Moreover, China's assertion that the Commission failed to WT/DS397/AB/R 
Page 96  
 
  evaluate, and make adjustments for, quality diffe rences is based on a misreading of the Definitive 
Regulation.  As the Panel rightly found, the rec ital in the Definitive Regulation to which China 
referred concerns fasteners produced in China and in  the European Union, and does not even mention 
fasteners produced in India.  Moreover, the lette r from the Commission to some Chinese exporters 
does not refer to any quality differences, but indicates  that the only difference for which an adjustment 
was made consisted of the fact that the Indian pr oducer regularly checked the quality before shipping, 
whereas the Chinese producers generally did not do so. 
238. Therefore, the European Union argues, China's claim under Article 2.4 of the Anti-Dumping 
Agreement  is based on the erroneous factual premise that the Commission acknowledged that certain 
quality differences existed.  Given that the Panel correctly found that there was no evidence showing 
that the Commission made such an acknowledgement , the European Union requests the Appellate 
Body to reject China's appeal that the Panel erred in finding that the Commission did not act 
inconsistently with Article 2.4 of the Anti-Dumping Agreement  by not evaluating, and making 
adjustments for, quality differences. 
3. The Panel's Findings under Article 6.5, 6.2, and 6.4 of the Anti-Dumping 
Agreement  Regarding the Disclosure of the Identity of the Complainants 
239. The European Union requests the Appellate Body to uphold the Panel's findings under 
Article 6.5 of the Anti-Dumping Agreement  with respect to the disclosure of the identity of the 
complainants and the supporters of the complaint.  As a preliminarily matter, the European Union 
raises two jurisdictional concerns.  First, th e European Union points out that the claim under 
Article 11 of the DSU brought by China in its othe r appellant's submission was not included in its 
Notice of Other Appeal, and is therefore not properly before the Appellate Body.386  Second, in the 
European Union's view, China's argument regardin g the disclosure of the identity of the sampled 
producers seems to challenge the Panel's weighing of the evidence, and should more properly have 
been raised under Article 11 of the DSU.  As Artic le 11 was not mentioned in China's Notice of Other 
Appeal in this context, this claim too should be dismissed by the Appellate Body as outside the scope 
of appellate review.387  Substantively, the European Union ar gues that the Panel correctly found that 
the European Union acted consistently with Article  6.5 when it treated the complainants' identity as 
confidential in order to prevent co mmercial retaliation by some of their customers.  As a consequence 
of upholding the Panel's finding in this regard, the European Union also requests the Appellate Body 
to uphold the Panel's consequential finding that the European Union acted consistently with 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement . 
                                                      
386European Union's appellee's submission, para. 362. 
387European Union's appellee's submission, para. 363.  WT/DS397/AB/R 
 Page 97 
 
 
  (a) The Complainants' "Good Cause" Showing 
240. The European Union observes, at the outset, that China does not challenge the Panel's 
findings that the Commission's standing determinati on was consistent with its obligations under the 
Anti-Dumping Agreement , and China thereby "confirms" that the identity of these companies was a 
"non-issue from the point of view of the interested parties' rights of defence".388  In response to 
China's specific claims, the European Union disagr ees with China's suggestion that a higher threshold 
must be reached in order to show "good cause" in  the case of information that is not "by nature" 
confidential.  Rather, the European Union concurs with the Panel's determination that the relevant 
issue was "whether the justification based on pot ential commercial retaliation provided by the 
complainants in the fasteners investigation could amo unt to 'good cause' in the sense of Article 6.5".389 
241. Regarding China's claim that the complainants  were required to demonstrate the commercial 
retaliation "would", as opposed to "could", happen, the European Union contends that "China's 
distinction is artificial".390  The use of the term "would" in Article 6.5 appears as part of some 
examples of information that is confidential by nature, and does not imply that in all cases the submitting party must show that ha rm will unavoidably result.  In the European Union's view, China's 
proposition does not appear to cover a "risk" that some harm might occur, and ignores the purpose of 
Article 6.5, which is "precisely to make sure that a feared adverse effect … remains hypothetical and 
does not actually materialise".
391  In the European Union's view, China's interpretation would alter the 
balance under Article 6.5, not in favour of par ties requesting confidential treatment of their 
information, but decidedly against them, and woul d "discourage the initiation of investigations and 
cooperation overall".392 
242. The European Union counters China's claim th at the Panel relied on a "mere assertion" to 
justify "good cause" by arguing that the Panel did examine "the evidence in light of the specific 
justification provided as 'good cause'", and took into c onsideration the "particular  standard of review" 
the Panel had in reviewing decisions  of an investigating authority.393  The European Union asserts that 
commercial retaliation can be carried out in sophis ticated and subtle ways, and therefore a party's 
ability to supply proof that such reta liation might occur is very difficult.394  Given this difficulty, the 
Panel logically looked next for any evidence to show  "that the fear of retaliation was unreasonable, 
                                                      
388European Union's appellee's submission, para. 365. 
389European Union's appellee's submission, para. 369. 
390European Union's appellee's submission, para. 371. 
391European Union's appellee's submission, para. 371. 
392European Union's appellee's submission, para. 372. 
393European Union's appellee's submission, para. 375. 
394European Union's appellee's submission, para. 376. WT/DS397/AB/R 
Page 98  
 
  unfounded or untrue".
395  The Panel did not violate Article 11 of the DSU in expecting that China 
should provide evidence in this respect because, the European Union argues, the normal rules of 
dispute settlement proceedings in fact require the complainant—in this case China—to make a 
prima facie  case of inconsistency.396  In any event, the European Union claims that the Panel did not 
find that "no evidence" existed to  support the complainants' asser tion that their customers also 
purchased the subject product from Chinese producers.  Rather, this assertion itself was "essential" to 
the Panel's findings and "served to substantiate" the complainan ts' concerns about commercial 
retaliation.397  Further, the European Union explains th at the fact that more evidence of potential 
commercial retaliation was not disclosed does not imply that such evidence was not before the 
Commission, particularly with regard to the na ture and operation of the fasteners market itself.398 
243. The European Union considers that China's clai m regarding the disclosure of the identity of 
the sampled domestic producers essentially challenges the Panel's weighing of the evidence and, as an 
Article 11 claim has not been raised, therefore falls outside of the scope of this appeal.399  China's 
claim relies on its own allegation that the evidence before the Panel unequivoca lly demonstrated that 
all sampled producers were also supporters of the co mplaint, and that the disclosure of the sampled 
producers' identity effectively disclosed the identity of the supporters of the complaint as well.  The 
European Union contends, however, that China's pres entation of the evidence is incomplete, and that 
the same document extensively cited by China al so states that the data and figures presented 
"correspond to two different sets of companies ", referring to the sets of companies who either 
supported the complaint or coope rated with the investigation.400  China's claim that the Panel relied 
solely on the European Union's assertion that "at l east one company included in the sample was not, in 
fact, either a complainant or supporter of the comp laint" is, in the European Union's view, not only 
"unfounded", but also "blatantly outsi de the Appellate Body's jurisdiction".401  Finally, the 
European Union emphasizes the fact that it is sp ecifically the identification of a company as an 
initiator of an investigation that would create a ha zard "analogous to the risk of a whistleblower".402 
                                                      
395European Union's appellee's submission, para. 378 (quoting Panel Report, para. 7.453). 
396European Union's appellee's submission, para. 378. 
397European Union's appellee's submission, para. 379. 
398European Union's appellee's submission, para. 380 and footnote 338 thereto. 
399European Union's appellee's submission, para. 363. 
400European Union's appellee's submission, para. 384 (quoting European Union's oral statement at the 
second Panel meeting, paras. 100 and 101). (b oldface added by the Eur opean Union on appeal) 
401European Union's appellee's submission, para. 387. 
402European Union's appellee's submission, para. 385.  WT/DS397/AB/R 
 Page 99 
 
 
  (b) Disclosure under Articles 6.4 and 6.2 of the Anti-Dumping 
Agreement  
244. The European Union raises no substantive argumen ts in response to China's request that the 
Appellate Body complete the analysis to find that , because the identity of the complainants was not 
properly treated as confidential, the Commission's failure to disclose the company names was also 
inconsistent with Article 6.4 and 6.2 of the Anti-Dumping Agreement .  If the Appellate Body 
determines that these claims were within the Panel' s jurisdiction, the European Union requests that the 
Panel's findings that the European Union did not act inconsistently with Articles 6.4 and 6.2 be 
upheld.  Because China's claims under Articles 6.4 and 6.2 are "entirely dependent" on its claim under 
Article 6.5, the European Union maintains that the Pa nel did not err in finding that the identity of the 
complainants was confidential information under Ar ticle 6.5, and therefore cannot have erred in 
finding that the European Union did not violate Articles 6.4 and 6.2. 
4. The Panel's Findings that the MET/IT Claim Form Was Not a 
"Questionnaire" for Purposes of Article 6.1.1 of the Anti-Dumping Agreement  
245. As a preliminary matter, the European Union argues that China can only succeed on its claims 
under Article 6.1.1 of the Anti-Dumping Agreement  if the Appellate Body reverses the Panel's 
interpretation of the term "questionnaires", because China's alternative claim under Article 11 of the 
DSU was not mentioned in its Notice of Other A ppeal and is therefore not properly before the 
Appellate Body.  The European Union requests, how ever, that the Appellate Body uphold the Panel's 
findings under Article 6.1.1, because its interpretati on of the term "questionnaires" is also supported 
by two previous panel reports403, and because the alternative interpretation suggested by China would 
render the meaning of the term "questionnair es" "arbitrary and dependent on a case-by-case 
analysis".404  In fact, the European Union states that it adopts the panel's reasoning in US – 
Anti-Dumping and Countervailing Duties (China) , which dealt with the parallel provision in the 
Agreement on Subsidies and Countervailing Measures  (the " SCM Agreement "), as its own.405 
246. The European Union further argues that the dic tionary definition of the word "questionnaire" 
does not amount to its "ordinary meaning" for pur poses of interpretation, because this can only be 
discerned with reference to its context and in the light of its object and purpose.  As the panel in US – 
Anti-Dumping and Countervailing Duties (China)  found, the broad language in the chapeau of 
Article 6.1 confirms the fact that not every requ est for information will fall under "the specific 30-day 
                                                      
403European Union's appellee's submission, paras. 410-415 (quoting Panel Report, Egypt – Steel Rebar , 
paras. 7.276 and 7.277;  and Panel Report, US – Anti-Dumping and Countervailing Duties (China) , 
paras. 15.23-15.37). 
404European Union's appellee's submission, para. 418. 
405European Union's appellee's submission, para. 416. WT/DS397/AB/R 
Page 100  
 
  'ample opportunity' rule" set out in Article 6.1.1.
406  The European Union conten ds that this contextual 
interpretation of the term "questionnaires" as applyi ng only to the initial, comprehensive questionnaire 
is further supported by the consistent use of th e singular form of the term in footnote 15 of 
Article 6.1.1, and in Annex I to the  Anti-Dumping Agreement .407  The European Union further argues 
that the question of whether or not an informati on request is "so substantial" that it warrants 
verification, or whether allowing 30 days for its return will interfere with the authority's timely 
completion of the investigation, are both issu es that will require a case-by-case determination 
depending on the circumstances in a particular i nvestigation, and should not form part of the 
definition of the term "questionnaires".408 
247. Should the Appellate Body find that China's alte rnative claims are prope rly raised on appeal, 
the European Union asserts that the Panel righ tly found that the MET/IT Claim Form did not 
constitute a "questionnaire" under the Panel's inte rpretation.  Although some of the information 
contained in the MET/IT Claim Form may overlap w ith information requested in more comprehensive 
questionnaires, the European Union argues that the MET/IT Claim Form serves an entirely different 
purpose from such questionnaires, and is much narrower in scope.409  Were the Appellate Body to 
agree with China's suggested application of Article 6.1.1, it would have to find that every information 
request that "plays a role" in the investigation would fall under the term "questionnaire" and require 
30 days for completion410, a result the European Union urges the Appellate Body to reject. 
E. Arguments of the Third Participants 
1. Brazil 
248. Brazil disagrees with the Panel's finding that ther e is solely one exception to the obligation in 
Article 6.10 of the Anti-Dumping Agreement  to determine individual dumping margins to each known 
exporter or producer of the product under investiga tion.  Brazil contends that there are various 
plausible interpretations of the second sentence of Article 6.10 of the Anti-Dumping Agreement .  In 
cases where multiple interpretations of a treaty pr ovision are "possible", the Appellate Body has 
clearly stated that customary rules of interpreta tion require interpreters to avoid assuming that the 
most burdensome obligation was the one intended by the drafters of the treaty.411  In Brazil's view, it 
seems "reasonable" to interpret the second sentence of Article 6.10 as one specific, but not the sole, 
                                                      
406European Union's appellee's submission, para. 420. 
407European Union's appellee's submission, para. 420. 
408European Union's appellee's submission, paras. 421-423. 
409European Union's appellee's submission, para. 429. 
410European Union's appellee's submission, para. 431. 
411Brazil's third participant's submission, para . 12 (referring to Appellate Body Report, EC – Hormones , 
para. 165).  WT/DS397/AB/R 
 Page 101 
 
 
  exception to the first sentence of Article 6.10.  Ind eed, the use of "as a rule" in the first sentence of 
Article 6.10 reveals the general nature of the oblig ation, merely expressing preference for the use of a 
specific methodology.  This conclusion is further c onfirmed by the French and the Spanish versions, 
which begin, respectively, with the expressions " en règle générale " and " por regla general ".  In 
contrast, there are no limiting or restrictive expr essions, such as "unless" or "only in cases where", in 
the second sentence of Article 6.10 of the Anti-Dumping Agreement .412 
249. Brazil contends that one of the situations in  which the general rule of individual dumping 
margin calculation contained in the first sentence of Article 6.10 of the Anti-Dumping Agreement  is 
not applicable is where prices and costs are not established according to market economy rules. This 
conclusion is supported in Article 2.7 of the Anti-Dumping Agreement , which refers to the second 
Ad Note to Article VI:1 of the GATT 1994, and, in  the particular case of China, reinforced by 
paragraph 15(a)(ii) of China's Accession Protocol.  Pursuant to these provisions, investigating 
authorities may use, when determining the dump ing margin, a different methodology for price 
comparability than the one resulting from Articles 2 and 6.10 of the Anti-Dumping Agreement .  Brazil 
notes that, in Korea – Certain Paper , the panel recognized that there may be situations in which 
treating separate legal entities as a single exporte r for determining dumping margins is a proper, 
WTO-consistent methodology.413  Although this precedent refers to an investigation concerning 
companies that operated under market economy conditi ons, it is Brazil's contention that in the case of 
NMEs the motives for "single exporter" treatment are all the more justified.414  The Panel itself 
recognized that it is possible to consider all co mpanies operating under NME conditions as one single 
exporter together with the State, but such a statem ent seems to be in contra diction with the Panel's 
final conclusion that sampling is the only exception to the obligation to determine individual dumping 
margins.415 
250. Regarding the presumption established by Article  9(5) of the Basic AD Regulation with 
respect to the relationship between investigated companies and the State in NMEs, Brazil considers 
that the Panel erred in finding that such a presu mption has no legal basis.  In Brazil's view, 
investigating authorities are permitted under WTO la w to place on Chinese exporters or producers the 
burden of proving that their industry is subject to market economy conditions in its functioning, which 
includes showing that they operate independently fr om the State.  The expressions "can/cannot clearly 
show" in Article 15(a)(i) and (ii) are the key textual element indicating that the treatment accorded to 
                                                      
412Brazil's third participant' s submission, para. 9. 
413Brazil's third participant's submission,  para. 26 (referring to Panel Report, Korea – Certain Paper , 
para. 7.161). 
414Brazil's third participant's submission, para. 28. 
415Brazil's third participant's submission, para. 30. WT/DS397/AB/R 
Page 102  
 
  Chinese exporters or producers is dependent upon their capacity to show that market economy 
conditions prevail in their industry.  Brazil furthe r contends that, since NME conditions constitute a 
factor that Members have recognized to affect pr ice comparability, information on price comparability 
falls into the scope of Article 2.4 of the Anti-Dumping Agreement .  Therefore, placing the burden of 
proof regarding the existence of market economy c onditions on the Chinese exporters or producers is 
permitted under Article 2.4 of the Anti-Dumping Agreement , as long as this burden is reasonable.
416 
251. With respect to Article 9.2 of the Anti-Dumping Agreement , Brazil rejects the Panel's 
conclusion that, given the similarities betw een Article 9.2 and Article 6.10 of the Anti-Dumping 
Agreement , the obligation to name the suppliers corres ponds to the obligation to calculate individual 
dumping margins.417  Brazil submits that the Anti-Dumping Agreement  addresses, in distinct 
provisions, the determination of dumping margins and the imposition of anti-dumping duties, and 
considers that the Panel's parallelism between thes e core provisions is far-fetched.  The textual 
differences between Article 9.2 and Article 6.10 are a clear indication that Members intended them to 
have different scopes.  In addition, both in US – Gasoline  and EC – Hormones , the Appellate Body 
affirmed that a treaty interpreter must not ignore th e choice of different words in the text of treaty 
provisions.418  In referring to the naming of the c oncerned suppliers, Article 9.2 of the Anti-Dumping 
Agreement  does not establish any other obligation than the naming  itself, thus there is no need for the 
investigating authorities to impose different duties on each of them.  In Brazil's view, the investigating 
authorities may rightfully impose the same anti-dumpi ng duty to all known exporters or producers as 
long as it is equal to, or less than, the sma llest dumping margin established to these 
exporters/producers.419 
2. Colombia 
252. With respect to the interpretation of Article 6.10 of the Anti-Dumping Agreement , Colombia 
disagrees with the Panel's finding that the rule in this provision does not admit more exceptions than 
only sampling.  Colombia considers that a single dumping margin can also be determined if, after having assessed the evidence available, the investig ating authorities conclude that the producers and 
exporters in an NME are deemed a single entity with  the State.  Colombia considers, however, that 
there is no direct legal basis within the WTO le gal framework for a general presumption that all 
producers and exporters in an NME are a single entity with the State for the purposes of the 
determination of a dumping margin and the impos ition of anti-dumping duties.  Therefore, the 
                                                      
416Brazil's third participant's submission, para. 40. 
417Brazil's third participant's submission, para. 45. 
418Brazil's third participant's submission, paras. 49 and 50 (referring to Appellate Body Report, US – 
Gasoline , p. 17, DSR 1996:I, 3, at 16;  and Appellate Body Report, EC – Hormones , para. 164). 
419Brazil's third participant's submission, para. 56.  WT/DS397/AB/R 
 Page 103 
 
 
  assessment of a link between the producers/exporters  and the State is a matter of evidence and should 
be done on a case-by-case basis.  Colombia reads Ar ticle 9(5) of the Basic AD Regulation as setting 
out the evidentiary threshold to establish a link be tween producers/exporters and the State in NMEs 
for the purposes of the dumping margin determinati on.  In Colombia's view, as long as this threshold 
provides the elements to collect th e evidence necessary to demonstrate that such a link does not exist, 
it is consistent with Article 6.10 of the Anti-Dumping Agreement .  Colombia further submits that the 
Appellate Body can take into account China's Ac cession Protocol and the Accession Working Party 
Report as guidance in relation to the Members' c oncerns regarding anti-dumping investigations 
concerning products from China.420 
253. Colombia disagrees with the Panel's interpretation of Article 9.2 of the Anti-Dumping 
Agreement  and rejects the Panel's conclusion that Ar ticle 9.2 does not permit the imposition of a 
single country-wide anti-dumping duty in an investigation involving an NME.  In Colombia's view, 
rejecting the European Union's interpretation of th e term "appropriate" in Article 9.2, as referring to 
the duty rate appropriate to the country concerned,  could lead to a situation where, even if the 
"appropriate" amount of anti-dumping duty to be coll ected is a country-wide one, such country-wide 
anti-dumping duty cannot be imposed.  This would limit the possibility for Members to collect the 
appropriate amount of anti-dumping duties in a given case.421  Colombia reiterates its understanding 
that, since there is no legal basis for a general evidentiary presumption that producers and exporters 
act as a single entity under the control of the State in NMEs, an investigating authority needs a factual 
basis to support a conclusion that a single, country-wide anti-dumping duty must be imposed.  
Article 9(5) of the Basic AD Regulation sets out the evidentiary threshold that the European Union applies to determine what type of relationship exis ts between exporters and producers and the State in 
NMEs, and, as long as such threshold provides evidence of a link, this can be considered as a factual 
basis for the imposition of a single, country-wide anti-dumping duty.
422 
254. Colombia agrees with the Panel's finding that th e determination of how to group products by 
product type was the kind of "information" covere d by the requirements of Article 6.4 of the 
Anti-Dumping Agreement .  In EC – Tube or Pipe Fittings , the panel defined the kind of information 
that Article 6.4 requires authorities to disclose as "information that would not initially be in the 
possession of an interested party and would therefor e be unknown or unfamiliar to an interested party 
if it were not disclosed to that part y in the course of an investigation".423  Taking this definition into 
                                                      
420Colombia's third participant's submission, para. 13. 
421Colombia's third participant's submission, para. 23. 
422Colombia's third participant's submission, para. 28. 
423Colombia's third participant's submission, para. 30 (quoting Panel Report, EC – Tube or Pipe 
Fittings , para. 7.208). WT/DS397/AB/R 
Page 104  
 
  consideration, Colombia submits that the qualif ication of how to group the products in the 
investigation falls within the scope of in formation covered by Article 6.4 of the Anti-Dumping 
Agreement , and highlights the fact that product groupi ng defines how the producers and exporters 
under investigation will subs tantiate their defence.
424 
3. Japan 
255. Japan agrees with the Panel's finding that th e first sentence of Article 6.10 establishes an 
obligation to determine an individual dumping ma rgin for each individual exporter or producer 
concerned, with only one exception, namely, th e possibility of sampling specified in the second 
sentence of Article 6.10.  In Japan's view, Article 6. 10 is purely procedural in nature, in the sense that 
it imposes a procedural obligation to determin e individual margins of dumping for each known 
exporter or producer, and it is not concerned with substantive issues regarding the determination of 
individual dumping margins.425  Therefore, provisions covering substantive issues, such as Articles 2 
and 6.8 of the Anti-Dumping Agreement , cannot be deemed exceptions to the rule set out in 
Article 6.10.  In addition, the manner in which an  investigating authority may define "exporter" or 
"producer" within the meaning of the first sent ence of Article 6.10 has nothing to do with the 
relationship between the first and the sec ond sentences of the Article 6.10 of the Anti-Dumping 
Agreement .426 
256. Japan further submits that the Panel's reading of Korea – Certain Paper  may be too narrow, 
especially in its application in the context of NMEs .  In Japan's view, the principles derived from that 
precedent—that is, that distinct legal entities may be  treated as a single exporter or producer if they 
"are in a relationship close enough to support that treatment"427—equally apply to the relationship 
between the State and private legal entities.  In  that sense, Japan has doubts as to whether the 
operation of Article 9(5) of the Basic AD Regulati on is indeed "fundamentally different" from the test 
in Korea – Certain Paper as the Panel concluded.   Japan also queries whether the question of who 
carries the burden of proving whether distinct entities are in a close enough relationship to be 
considered a single exporter or producer is releva nt for the interpretation of Article 6.10 of the 
Anti-Dumping Agreement , insofar as this provision makes no refere nce to the burden of proof.  In any 
event, Japan considers that Article 15(a) and (d) of China's Accession Protocol, which places the 
                                                      
424Colombia's third participant's submission, para. 32. 
425Japan's third participant's submission, para. 8. 
426Japan's third participant's submission, para. 9. 
427Japan's third participant's submission, para. 14 (quoting Panel Report, Korea – Certain Paper , 
para. 7.161).  WT/DS397/AB/R 
 Page 105 
 
 
  burden of proof on the producers under investigation or  on China itself, appears to provide relevant 
context in that respect.428 
257. Japan supports the Panel's finding that "sour ces" and, by implication, "suppliers" in 
Article 9.2 of the Anti-Dumping Agreement  can be interpreted as referring to the State where it is 
demonstrated that the State is the actual producer or exporter of the product in question.429  Likewise, 
Japan supports the European Union's argument that the State can be the source of price 
discrimination.  However, Japan queries whether the Panel provided a sufficient basis to conclude that 
Article 9.2 of the Anti-Dumping Agreement  prohibits Members to presume that the State in an NME is 
the source of price discrimination.  In Japan's view, it is at least questionable whether Members would not, in any event, be allowed to presume that the Chinese State is the source of price discrimination on 
the basis of Article 15(a) and (d) of China's Acce ssion Protocol, read togeth er with paragraph 151 of 
China's Accession Working Party Report.  Japan ma intains, however, that any presumption in that 
regard must be rebuttable.
430 
258. Japan disagrees with the Panel's finding that th e term "impracticable" in Article 9.2 of the 
Anti-Dumping Agreement  must be interpreted as in Article 6. 10, namely, in reference to a large 
number of producers or exporters.  In Japan's view, the impracticability of naming all the suppliers, as 
provided for in the third sentence of Article 9.2, re lates to the collection of the appropriate amount of 
anti-dumping duties, as provided for in the first sentence of Article 9.2.  A high risk of circumvention may be one reason for it to be impracticable to na me each individual producer or exporter for which 
an anti-dumping margin was calculated.
431  Given the context, the scope of the third sentence of 
Article 9.2 could well be given a broader interpretation than the situation described in the second 
sentence of Article 6.10, namely, the sampling excepti on.  Japan notes that there is no reference in the 
text of either Article 9.2 or Article 6.10 indicati ng that the exceptions contained respectively in the 
third and second sentences of each provision must be  read together;  and it adds that whereas 
Article 6.10 explicitly qualifies the "impractic ability" as referring to only one specific situation 
("where the number of exporters, producers, importer s or types of products involved is so large"), 
Article 9.2 provides no such explicit, nor even implicit, limitation.432 
                                                      
428Japan's third participant's submission, para. 18. 
429Japan's third participant's submission, para. 20 (referring to Panel Report, footnote 278 to 
para. 7.103). 
430Japan's third participant's submission, para. 24. 
431Japan's third participant's submission, para. 33. 
432Japan's third participant's submission, para. 36. WT/DS397/AB/R 
Page 106  
 
  4. United States 
259. The United States argues that the Panel erred in  its interpretation that Article 6.10 of the 
Anti-Dumping Agreement  prohibits investigating authoriti es from requiring NME exporters or 
producers to show their independence from the State before providing them with an individual margin 
of dumping.  In the United States' view, the Pane l's interpretation of Article 6.10 as prescribing a 
single rule for how investigating authorities must weigh evidence in all cases does not accord with the 
recognition elsewhere in the WTO Agreements that NMEs may present additional factual complexities in an anti-dumping investigation.
433  The United States maintain s that the interpretative 
second Ad Note to Article VI:1 of the GATT 1994 r ecognizes that price comparisons with domestic 
prices may not be possible in an NME where State interference is pervasive, and allows Members to 
apply an alternative price comparison methodology by basing the normal value on data from an analogue country.  Moreover, China's Accession Protocol recognizes the pervasive government 
interference in the Chinese economy, allowing Members to establish different evidentiary 
requirements for firms operating in China.  Specifically, the Protocol recognizes that, absent a demonstration to the contrary by Chinese producer s, government interference will prevent market 
principles from functioning in the relevant i ndustry producing the product under consideration.
434 
260. The United States further submits that the Panel e rred in its interpretation that Article 6.10 of 
the Anti-Dumping Agreement  prohibits an investigating authority from using criteria, such as those 
established in Article 9(5) of the Basic AD Regulati on, to determine whether a firm is sufficiently 
separate from the State to determine an individual ma rgin of dumping for that entity.  According to 
the United States, the Anti-Dumping Agreement  neither defines "exporter" nor "producer", nor sets out 
criteria for the investigating authority to examine befo re concluding that a part icular firm or group of 
firms constitute an "exporter" or "producer".435  Therefore, the determination of whether a firm 
constitutes the relevant exporter or producer, incl uding the selection of criteria to employ in making 
this determination, would appear to fall within the discretion of the investigating authority.  The 
United States contends that, in a NME such as Ch ina, State interference could exert influence over 
firms and prices, thus making the State analogous to  a parent company that makes business decisions 
for the individual firms.  Furthermore, there is subs tantial evidence that such  State interference exists 
in the Chinese economy, such as concerns express ed by Members in this regard during China's 
accession negotiations.436  Therefore, contrary to the Panel's finding, it is logical for the 
                                                      
433United States' third participant's submission, p. 12. 
434United States' third participant's submission, para. 13. 
435United States' third participant's submission, para. 16. 
436United States' third participant's submission, para. 19 (referring to China' s Accession Working Party 
Report, paras. 50, 51, and 150).  WT/DS397/AB/R 
 Page 107 
 
 
  European Union's investigating authority to confir m that a Chinese company functions as an exporter 
or producer separate from the State before assigning an  individual dumping margin to that company.  
The United States disagrees with China's argument that requiring companies from NMEs to 
demonstrate that they qualify for individual dumping margins results in the application of a rigid and burdensome rule to Chinese firms.  Rather, such a requirement provides inves tigating authorities with 
the necessary flexibility to res pond to changes in these NMEs.
437 
261. The United States maintains that the Panel erre d in its application of Article I:1 of the 
GATT 1994 in finding that Article 9(5) of the Basi c AD Regulation is inconsistent with that 
provision.  In the United States' view, Chinese products pose "methodological challenges to investigating authorities" in determining costs and prices in connection with those products due to 
pervasive State interference.
438  Thus, Article 9(5) of the Basic AD Regulation is designed to address 
a particular condition associated with the nature of  China's economy.  Moreover, several WTO rules, 
including the second Ad Note to Article VI:1 of the GATT 1994 and China's Accession Protocol, 
explicitly recognize that, in the context of anti-dumping and countervailing duty proceedings, 
products from one Member may be treated diff erently from those of another Member.  The 
United States further contends that the Panel misinterpreted Article 9 of the Anti-Dumping Agreement  
when finding that Article 9(5) of the Basic AD Regul ation is inconsistent with Article 9.2 of the 
Anti-Dumping Agreement  because Article 9.2 requires an authority  to "name the supplier or suppliers 
of the product concerned" when imposing a duty.  According to the United States, the imposition of 
anti-dumping duties is always with respect to products, not individual exporters or producers.439  
Thus, the concept of imposing duties on exporters or  producers, on which the Panel relied in reaching 
its finding, has no basis in the Anti-Dumping Agreement .  Moreover, the obligation to "name the 
supplier" under Article 9.2 does not require an aut hority to calculate individual margins of dumping 
for each exporter or producer. 
262. The United States submits that, although it does not take a position on the particular facts at 
issue in this dispute, it agrees with China that a definition of the domestic industry that is narrowly 
limited to those parties who actively support or otherw ise wish to participate in the investigation does 
not permit an "objective examination" of whethe r the domestic industry is experiencing material 
injury, within the meaning of Article 3.1 of the Anti-Dumping Agreement .440  This is because those 
producers most likely to participate are those who supported the complaint who had the "least healthy 
economic performance".  The United States also agr ees with China that the Panel's analysis under 
                                                      
437United States' third participant's submission, para. 21. 
438United States' third participant's submission, para. 23. 
439United States' third participant's submission, para. 26. 
440United States' third participant's submission, para. 41. WT/DS397/AB/R 
Page 108  
 
  Article 3.1 was flawed insofar as it did not account for the European Union's failure to make active 
efforts to collect data on all known EU fastener produ cers.  In this respect, the United States disagrees 
with the Panel's suggestion that the European Uni on's exclusion of most known EU fastener producers 
from its definition of the domestic industry may be ju stified by the fragmented nature of this industry. 
263. The United States disagrees with the Panel's fi nding that the European Union is allowed to 
use a process that favours complainants and suppor ters to be included in the domestic industry 
definition "so long as the producer s that are included account for a sufficient quantity of domestic 
production to be considered a 'major proportion'".
441  In the United States' view, such an interpretation 
renders meaningless the two exceptions covered unde r subparagraphs (i) and (ii), which expressly 
allow investigating authorities to depart from the incl usive standard defined in Article 4.1.  Finally, 
the United States disagrees with the European Un ion's argument that the "major proportion" 
referenced by Article 4.1 should be  interpreted to mean producers accounting for at least 25 per cent 
of total domestic production in the light of the 25 per cent benchmark under Article 5.4 of the 
Anti-Dumping Agreement  for determining the sufficiency of standing.  In the United States' view, the 
25 per cent standing requirement under Article 5.4 sh ould not be read as setting a benchmark for the 
"major proportion" requirement under Article 4.1 fo r defining the relevant domestic industry, given 
that the 25 per cent standing requirement itself mu st be judged against a broader domestic industry 
defined under Article 4.1 as "domestic producers as a whole" or "those of them whose collective 
output … constitutes a major proportion of the total domestic production".442 
264. The United States submits that the Panel co rrectly interpreted Article 6.1.1 of the 
Anti-Dumping Agreement  in finding that the 30 -day response period prescribed in that provision 
applies only to the original anti-dumping questio nnaire.  The United States recalls that, in Egypt – 
Steel Rebar , the panel explained that the term "questionna ire" refers to one particular request for 
information made by the investigating authority.443  Moreover, the panel in US – Anti-Dumping and 
Countervailing Duties (China)  similarly found that the term "questionnaires" in Article 12.1.1 of the 
SCM Agreement  refers to the initial comprehensive questionna ire issued by an investigating authority 
covering the issues on which the investigating authority  will have to make dete rminations in relation 
to subsidization of the investigated product, injury, and causation.444  The United States further 
submits that paragraphs 6 and 7 of Annex I to the Anti-Dumping Agreement  refer to "the 
questionnaire" in the singular.  In the United States' view, given the breadth of information requested 
                                                      
441United States' third participant's submission, para. 46 (quoting Panel Report, para. 7.230). 
442 United States' third participant's submission, para. 47. 
443United States' third participant's submission, para. 32 (referring to Panel Report, Egypt – Steel Rebar , 
para. 7.7276). 
444United States' third participant's submission,  para. 33 (referring to Panel Report, US – Anti-Dumping 
and Countervailing Duties (China) , para. 15.37).  WT/DS397/AB/R 
 Page 109 
 
 
  in the initial anti-dumping questionnaire, it is logical that the Anti-Dumping Agreement  seeks to 
provide a minimum time period for respondent firms to collect the necessary data.  However, the 
opportunity to claim MET or IT is merely a precursor to the issuance of the actual anti-dumping 
questionnaire, and hence not subject to th e obligations in Article 6.1.1 of the Anti-Dumping 
Agreement .445 
III. Issues Raised in This Appeal 
265. The following issues are raised in th e appeal by the European Union: 
(a) whether the Panel erred in finding that Artic le 9(5) of the Basic AD Regulation is 
inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement  and 
with Article I:1 of the GATT 1994, and in particular: 
(i) whether the Panel erred in finding that Article 9(5) of the Basic 
AD Regulation concerns not only the imposition of anti-dumping duties, but 
also the calculation of margins of dumping; 
(ii) whether the Panel erred in its inte rpretation of Article 6.10 of the 
Anti-Dumping Agreement  and in finding that Article 9(5) of the Basic 
AD Regulation is inconsistent  with Article 6.10 of the Anti-Dumping 
Agreement , because it conditions the determination of individual dumping 
margins for exporters or producers from NMEs on the fulfilment of the 
IT test; 
(iii) whether the Panel erred in its inte rpretation of Article 9.2 of the 
Anti-Dumping Agreement  and in finding that Article 9(5) of the Basic 
AD Regulation is inconsistent with Article 9.2 of the Anti-Dumping 
Agreement , because it conditions the imposition of individual duties on 
exporters or producers from NMEs on the fulfilment of the IT test; 
(iv) whether the Panel erred in finding that Article 9(5) of the Basic 
AD Regulation violates the MFN obligation in Article I:1 of the GATT 1994;  
and 
(v) whether, in making the findings that Article 9(5) of the Basic AD Regulation 
is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping 
                                                      
445United States' third participant's submission, para. 35. WT/DS397/AB/R 
Page 110  
 
  Agreement  and with Article I:1 of the GATT 1994, the Panel acted 
inconsistently with its obligati ons under Article 11 of the DSU; 
(b) whether the Panel erred in finding that the European Union acted inconsistently with 
Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping 
Agreement  by failing to ensure the conformity of its laws, regulations, and 
administrative procedures with its oblig ations under the relevant agreements; 
(c) whether the Panel erred in finding that Artic le 9(5) of the Basic AD Regulation is 
inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement  "as applied" 
in the fasteners investigation; 
(d) whether the Panel erred in the interpretati on and application of Article 6.4 of the 
Anti-Dumping Agreement , and acted inconsistently with Article 11 of the DSU, in 
finding that the European Union acted in consistently with Article 6.4 of the 
Anti-Dumping Agreement  by failing to provide a timely opportunity for the Chinese 
exporters to see the product types used by  the Commission for purposes of comparing 
the export price and the normal value in the dumping determination; 
(e) whether the Panel erred in finding that, by failing to provide a timely opportunity for 
the Chinese exporters to see the product t ypes, the European Union also acted 
inconsistently with Article 6.2 of the Anti-Dumping Agreement  by failing to ensure all 
interested parties had a full opportunity  for the defence of their interests; 
(f) whether the Panel erred in its interpretati on and application of Articles 6.5 and 6.5.1 
of the Anti-Dumping Agreement  with regard to the European Union's treatment of 
confidential information, and in particular: 
(i) whether the Panel erred in finding that the European Union failed to ensure 
that the two domestic producers, Agrati and Fontana Luigi, provided 
appropriate statements of the re asons why information provided in 
confidence was not susceptible of summary; 
(ii) whether the claim that the European  Union failed to establish that 
"good cause" existed to support the c onfidential treatment of information 
submitted by the analogue country producer  participating in the investigation, 
Pooja Forge, was within the Panel's te rms of reference under Article 6.2 of 
the DSU;  and if so  WT/DS397/AB/R 
 Page 111 
 
 
  (iii) whether Panel erred in finding that the European Union failed to establish 
that "good cause" existed to support the confidential treatment of information 
submitted by Pooja Forge; 
(iv) whether, in addressing China's claim that no "good cause" supported the 
confidential treatment of information submitted by Pooja Forge, the Panel acted inconsistently with its obliga tions under Article 11 of the DSU, and 
deprived the European Union of its right to due process;  and 
(g) whether the Panel erred in finding that  China's claims before the Panel under 
Articles 6.2 and 6.4 of the Anti-Dumping Agreement  regarding the disclosure of the 
identity of the complainants and the supporters of the complaint were within the Panel's terms of reference under Article 6.2 of the DSU. 
266. The following issues are raised in  the other appeal by China: 
(a) whether the Panel erred in rejecting China' s claim that the domestic industry in the 
fasteners investigation did not include pr oducers whose collective output "constitutes 
a major proportion of the total domestic production" within the meaning of 
Article 4.1 of the Anti-Dumping Agreement , and in particular: 
(i) whether the Commission erroneously relied on a presumption that 25 per cent 
of the total domestic production cons tituted "a major proportion", and 
therefore failed to define the domestic industry in the fasteners investigation 
consistently with Article 4.1;  and 
(ii) whether other specific circumstances of  the fasteners investigation were 
relevant to the examination of the domestic industry definition in the 
fasteners investigation under Article 4.1 of the Anti-Dumping Agreement ; 
(b) whether the Panel erred in rejecting Chin a's claim that the European Union acted 
inconsistently with Article 3.1 of the Anti-Dumping Agreement  by making an injury 
determination on the basis of a sample of producers that was not representative of the domestic industry; 
(c) whether the Panel erred in finding that the European Union did not act inconsistently 
with Articles 4.1 and 3.1 of the Anti-Dumping Agreement  by excluding certain 
producers from the definition of the domestic industry, and in particular: WT/DS397/AB/R 
Page 112  
 
  (i) whether the Panel acted inconsistently with its obligations under Article 11 of 
the DSU and Article 17.6 of the Anti-Dumping Agreement  in finding that the 
European Union did not exclude from the definition of the domestic industry 
those producers who did not support the complaint; 
(ii) whether the Panel erred in the interpreta tion and application of Article 4.1 of 
the Anti-Dumping Agreement , and acted inconsistently with Article 11 of the 
DSU, in finding that the European Union did not act inconsistently with 
Article 4.1 of the Anti-Dumping Agreement  by excluding from the definition 
of the domestic industry producers who did not make themselves known 
within 15 days of the publication of the Notice of Initiation;  and 
(iii) whether the Panel erred in the interpreta tion and application of Article 3.1 of 
the Anti-Dumping Agreement  in rejecting China's claim that the 
European Union acted inconsistently with that provision by excluding certain producers; 
(d) whether the Panel erred in finding that the Commission did not act inconsistently with 
Article 2.4 of the Anti-Dumping Agreement  in the dumping determination in the 
fasteners investigation, and in particular:  
(i) whether the Panel acted inconsistently with Article 11 of the DSU, and erred 
in its interpretation and application of Article 2.4 of the Anti-Dumping 
Agreement , in not addressing China's argument that the Commission failed to 
inform the interested parties of the "product types" it used to compare the 
export price and normal value; 
(ii) whether the Panel erred in the inte rpretation of Article 2.4 of the 
Anti-Dumping Agreement , and acted inconsistently  with Article 11 of the 
DSU, when finding that the Commission did not have to make adjustments 
for the physical differences reflected in the Product Control Number (the 
"PCN");  and 
(iii) whether the Panel erred in the interpreta tion and application of Article 2.4 of 
the Anti-Dumping Agreement  in finding that the European Union did not have 
to make adjustments for alleged quality differences;  WT/DS397/AB/R 
 Page 113 
 
 
  (e) whether the Panel erred in its interpretati on and application of Articles 6.5 and 6.5.1 
of the Anti-Dumping Agreement  with regard to the European Union's treatment of 
confidential information, and in particular: 
(i) whether the Panel erred in finding that the European Union did not act 
inconsistently with its obligations under Article 6.5 when the Commission 
granted the request to treat the identity of the complainants and the supporters 
of the complaint as confidential;  and 
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in its 
evaluation of the above claim when it impermissibly shifted the burden to 
China to show that the "good cause" alle ged for the confidential treatment of 
the complainants' identity was unfounded; 
(f) if the Appellate Body finds that the Panel erred in finding that "good cause" existed to 
support the confidential treatment of the id entity of the complainants and supporters 
of the complaint, whether the European Un ion also violated Articles 6.2 and 6.4 of 
the Anti-Dumping Agreement  when it failed to disclose the identity of the 
complainants and the supporters of th e complaint to the Chinese producers; 
(g) whether the Panel erred in its interpretati on and application of Article 6.1.1 of the 
Anti-Dumping Agreement , and in particular of the term "questionnaire",  when it 
found that the European Union did not act inconsistently with this provision by 
allowing Chinese exporters less than 30 days to submit the Market Economy 
Treatment and/or Individual Treatment Claim Form;  and 
(h) whether the Panel acted inconsistently with  Article 11 of the DSU and Article 17.6 of 
the Anti-Dumping Agreement  when it concluded that the Market Economy Treatment 
and/or Individual Treatment Claim Form  did not fall under the definition of 
"questionnaires" as interpreted by the Panel. WT/DS397/AB/R 
Page 114  
 
  IV. The Panel's Findings Regarding Article 9(5) of the Basic AD Regulation "As Such" 
A. Introduction 
267. Before the Panel, China claimed that Article 9(5) of Council Regulation (EC) No. 1225/2009 
of 30 November 2009 (the "Basic AD Regulation")
446 is inconsistent "as such" with Articles 6.10, 9.2, 
9.3, and 9.4 of the Anti-Dumping Agreement  as well as Articles I:1 and X:3(a) of the GATT 1994.  
China also claimed that, as a consequence of the fact  that Article 9(5) of the Basic AD Regulation is 
inconsistent with the provisions of the Anti-Dumping Agreement  and of the GATT 1994, this measure 
is also inconsistent with Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping 
Agreement . 
268. The Panel found that Article 9(5) of the Basic AD Regulation is inconsistent with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement  because it requires that a country-wide dumping 
margin be determined and a country-wide duty be imposed with respect to producers or exporters 
from non-market economies ("NMEs") unless such producers or exporters show, on the basis of the criteria set out in that provision, that  they are independent of their State.
447  The Panel also found that 
Article 9(5) of the Basic AD Regulation violates the most favoured nation ("MFN") obligation of 
Article I:1 of the GATT 1994 because its application will,  in certain situations, result in imports of the 
same product from different WTO Members being treat ed differently in anti-dumping investigations 
conducted by the European Union.448 
269. As a consequence of its findings that Article 9( 5) of the Basic AD Regulation is inconsistent 
with Articles 6.10 and 9.2 of the Anti-Dumping Agreement , the Panel also found that the 
European Union acted inconsisten tly with Article XVI:4 of the WTO Agreement  and Article 18.4 of 
the Anti-Dumping Agreement  by failing to ensure the conformity of its laws, regulations, and 
administrative procedures with its oblig ations under the relevant agreements.449 
270. The European Union appeals these findings and requests the Appellate Body to:  (i) reverse 
the Panel's finding that Article 9(5) of the Basi c AD Regulation concerns not only the imposition of 
anti-dumping duties, but also the calculation of margins of dumping, and find instead that Article 9(5) 
                                                      
446Official Journal of the European Union , L Series, No. 343 (22 December 2009) 51, and 
Corrigendum, Official Journal of the European Union , L Series, No. 7 (12 January 2010) 23 (Panel Exhibit 
CHN-3). 
447Panel Report, paras. 7.98 and 7.112. 
448Panel Report, para. 7.124. 
449Panel Report, para. 7.137.  Having found that Article  9(5) is inconsistent "as such" with Articles 6.10 
and 9.2 of the Anti-Dumping Agreement  and with Article I:1 of the GATT 1994, the Panel exercised judicial 
economy in respect of China's claims under Articles 9.3 and 9.4 of the Anti-Dumping Agreement  and 
Article X:3(a) of the GATT 1994. ( Ibid., paras. 7.116, 7.118, and 7.133)  WT/DS397/AB/R 
 Page 115 
 
 
  of the Basic AD Regulation, on its face, deals with  only the individual or co untry-wide imposition of 
anti-dumping duties in respect of imports from NM Es;  (ii) reverse the Panel's finding that 
Article 9(5) of the Basic AD Regulation is  inconsistent with Article 6.10 of the Anti-Dumping 
Agreement , since that finding was premised on the Panel's incorrect understanding of the scope of 
Article 9(5) of the Basic AD Regulation;  (iii) rever se the Panel's finding that Article 9(5) of the Basic 
AD Regulation is inconsistent with Article 6.10 of the Anti-Dumping Agreement  because it conditions 
the determination of individual dumping margins for producers or exporters from NMEs on the 
fulfilment of the individual treatment ("IT") test;  (iv) reverse the Panel's finding that Article 9(5) of the Basic AD Regulation is incons istent with Article 9.2 of the Anti-Dumping Agreement  because it 
conditions the imposition of indivi dual duties on producers or exporters from NMEs on the fulfilment 
of the IT test;  (v) reverse the Pa nel's finding that Article 9(5) of the Basic AD Regulation violates the 
MFN obligation under Article I:1 of the GATT 1994;   and (vi) reverse the Panel's consequential 
findings that the European Union acted in consistently with Article XVI:4 of the WTO Agreement  and 
Article 18.4 of the Anti-Dumping Agreement  by failing to ensure the conformity of its laws, 
regulations, and administrative procedures with its  obligations under the relevant agreements. 
271. Before turning to the specific issues on appeal, we consider it useful to  outline the measure at 
issue in this dispute, that is, the Basic AD  Regulation and, in particular, Article 9(5). 
B. The Measure at Issue 
272. Article 9(5) of the Basic AD Regulation pr ovides that "[a]n anti-dumping duty shall be 
imposed in the appropriate amounts in each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except for imports from those 
sources from which undertakings under the terms of th is Regulation have been accepted."  It further 
establishes that the regulation imposing the anti-dumping duty shall specify the duty "for each supplier or, if that is impracticab le, and in general where Article 2( 7)(a) applies, the supplying country 
concerned".  Article 2(7)(a) provides that, in th e case of imports from NMEs, normal value shall not 
be determined based on prices paid or payable in  the ordinary course of trade by independent 
customers in the exporting country, but based on an  alternative methodology, such as the price or 
constructed value in a market economy third country. 
273. To provide the relevant context for Article 9(5), we note that Article 2 of the Basic AD 
Regulation addresses the determination of dumping, including the determination of normal value.  
The rules set out in Article 2(1) to (6) closely mirror the provisions of Article 2.2 of the Anti-Dumping 
Agreement , and concern the determination of normal value in respect of imports from market 
economies.  Article 2(7) of the Basic AD Regulati on contains specific rules on the determination of WT/DS397/AB/R 
Page 116  
 
  normal value in anti-dumping investigations involvi ng NMEs.  It groups NMEs into two categories—
(i) NMEs that are not WTO Members and (ii) NMEs that are WTO Members (and Kazakhstan)—and 
establishes different rules for determining normal value for these categories. 
274. Article 2(7)(a) applies to NMEs that are not Members of the WTO, including Albania, 
Armenia, Azerbaijan, Belarus, Georgia, North Korea, Kyrgyzstan, Moldova, Mongolia, Tajikistan, 
Turkmenistan, and Uzbekistan.
450  It provides that, for these countries, normal value is determined on 
the basis of the price or constructed value in a market economy third country, or the price from such a 
third country to other countries, including the Europ ean Union, or, where this is not possible, on any 
other reasonable basis, including the price actually pa id or payable in the European Union for the like 
product duly adjusted if necessary to include a reas onable profit margin.  Article 2(7)(b), which 
applies to "imports from the People's Republic of  China, Vietnam and Kazakhstan and any [NME] 
country which is a member of the WTO at th e date of the initiation of the investigation"451 provides 
that if it is shown, on the basis of properly subs tantiated claims by one or more producers subject to 
the investigation and in accordance with the criteria and procedures set out in Article 2(7)(c), that 
"market economy conditions prevail" for them, norma l value is determined for those producers in 
accordance with the rules in Article  2(1) to (6) applicable to market economies.  Article 2(7)(b) 
further provides that, when this is not the case, normal value will be determined on the basis of 
Article 2(7)(a), that is, on the basis of the pr ice or constructed value in a market economy third 
country, or the price actually paid or payabl e in the European Union for the like product.  
Article 2(7)(c) sets out the criteria that a foreign prod ucer has to fulfil in order to demonstrate that it 
operates under market economy conditions, and th us that "market economy conditions prevail".  
These criteria are generally referred to as the market economy treatment test ("MET test").452  The  
                                                      
450See corrigendum to Basic AD Regulation, supra , footnote 5. 
451See corrigendum to Basic AD Regulation, supra , footnote 5. 
452Specifically, Article 2(7)(c) sets out the following criteria for the MET test.  To demonstrate that 
they operate under market economy conditions, producers must show that: 
 decisions of firms regarding prices, costs and inputs, including for 
instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply 
and demand, and without significant State interference in this regard, 
and costs of major inputs substantially reflect market values; 
 firms have one clear set of ba sic accounting records which are 
independently audited in line with international accounting standards and are applied for all purposes; 
 the production costs and financial situation of firms are not subject to 
significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other 
write-offs, barter trade and paym ent via compensation of debts; 
 the firms concerned are subject to bankruptcy and property laws which 
guarantee legal certainty and stability for the operation of firms;  and  
 exchange rate conversions are carried out at the market rate.  WT/DS397/AB/R 
 Page 117 
 
 
  determination of export prices to which the normal valu e is compared in order to calculate the margin 
of dumping is dealt with in Article 2(8) and (9).  Article 2(8) provides that the export price shall be 
the price actually paid or payable for the product when sold for export from the exporting country to 
the European Union.  Article 2(9) sets out alterna tive methods for the determination of export prices 
under certain specified circumstances that  are not relevant in this dispute. 
275. Article 9(5) of the Basic AD Regulation sets out the modalities for the imposition of anti-
dumping duties.  Article 9(5) requires that, in principle, a duty be specified for each "supplier" of a 
product found to be dumped.  It then provides for tw o exceptions to this principle:  (i) where it is 
"impracticable" to specify the duty for each supplier;   and (ii) where Article 2(7)(a) of the Basic AD 
Regulation applies—that is, where normal value fo r NME suppliers is determined on the basis of 
market economy third country prices or one of the othe r methods set forth in that provision.  In these 
situations, the regulation imposing the duty shall sp ecify a single duty rate for the supplying country 
concerned, a so-called country-wide duty, which w ill apply to all suppliers and imports from that 
country. 
276. Article 9(5), however, exempts from the country-wide duty rate those NME suppliers that 
qualify for individual treatment ("IT suppliers").  An exporter from an NME may qualify for 
individual treatment and be granted an individual duty if it meets all of the following conditions: 
(a) in the case of wholly or partly foreign owned firms or joint 
ventures, exporters are free to repatriate capital and profits; 
(b) export prices and quantities, and conditions and terms of sale are 
freely determined; 
(c)  the majority of the shares belong to private persons; state 
officials appearing on the board of directors or holding key management positions shall either be in minority or it must be 
demonstrated that the comp any is nonetheless sufficiently 
independent from State interference; 
(d)  exchange rate conversions are ca rried out at the market rate;  and 
(e) State interference is not such as to permit circumvention of 
measures if individual exporters are given different rates of duty. 
277. These criteria are generally referred to as the "IT test".  If an exporter demonstrates that it 
meets these conditions and is thus entitled to indivi dual treatment, the EU authorities will specify an 
individual duty rate for that exporter.  Such an i ndividual rate is determined  by comparing the normal 
value from the market economy third country with th e exporters' actual export prices.  Exporters that 
fail to satisfy the IT test will be subject to the country-wide duty rate. WT/DS397/AB/R 
Page 118  
 
  278. Thus, when an exporter from a WTO Member th at the European Union treats as an NME is 
subject to an anti-dumping investigation, the follo wing possibilities with respect to the determination 
of normal value and the imposition of an anti-dumpi ng duty apply.  If the NME exporter or producer 
satisfies the MET test according to the criteria set out in Article 2(7)(c), then, according to 
Article 2(7)(b), its normal value will be determined  on the same basis as for exporters from market 
economies, that is, prices paid or payable, in the ordinary course of trade, by independent customers 
in the exporting country.  More over, according to Article 9(5), an individual duty rate will be 
specified for that supplier. 
279. If the NME exporter fails to meet the MET test , then its normal value will be determined on 
the basis of an alternative method (u sually on the basis of prices in a market economy third country).  
Whether an individual or a country-wide duty rate  will be specified for that supplier will depend on 
whether the exporter requests and obtains individual tr eatment, pursuant to Article 9(5).  Thus, if the 
NME exporter that has not fulfilled the MET test ma kes such a request and demonstrates that it meets 
the criteria in Article 9(5) of the Basic AD Regulat ion—that is, the IT test—an individual duty rate 
will be specified for the NME exporter on the basis of a comparison of the alternative third country 
normal value with its own export prices.
453 
280. An NME exporter that does not meet the IT test will be subject to a country-wide duty rate.  
The determination of the export price used to calcu late that country-wide dut y rate will depend on the 
level of cooperation on the part of  the non-IT exporters altogether.  If the level of cooperation is 
high—that is, if the cooperating non-IT exporters account for almost 100 per cent of all exports—the 
export price will be based on a weighted average of the actual price of all export transactions effected by these exporters.  If, however, the level of coope ration is low—that is, if the cooperating non-IT 
exporters account for significantly less than 100 pe r cent of all exports—the Commission will resort 
to facts available to complete the missing informa tion.  Recourse to facts available will depend on the 
degree of non-cooperation and may in clude statistical import data.
454 
281. In sum, Article 2(7) of the Basic AD Regula tion determines whether a supplier from an NME 
will receive market economy treatment, that is, wh ether the normal value for its imports will be 
determined on the basis of its domestic prices or co sts or on the basis of an alternative methodology.  
Article 9(5) of the Basic AD Regulation determin es whether a supplier from an NME will receive an 
individual or a country-wide anti-dumping duty.  Acco rding to Article 9(5), NME suppliers that have 
                                                      
453For an NME exporter or producer who meets the ME T test, an individual duty will be specified on 
the basis of a comparison between that exporter's domestic  normal value and its export price;  by contrast, for an 
NME exporter or producer who meets the IT test, an individual duty will be calculated on the basis of a 
comparison between that ex porter's export price and a market economy third country  normal value. 
454Panel Report, para. 7.50.  WT/DS397/AB/R 
 Page 119 
 
 
  fulfilled the MET test under Article 2(7) will automa tically receive individual duties;  NME suppliers 
that have not fulfilled the MET test under Article  2(7) will receive country-wide duties, but will 
receive individual duties if they fulfil the IT test set out in Article 9(5). 
282. In this dispute, China does not challenge th e European Union's alternative methodology to 
determine normal value for imports from NMEs on the basis of a market economy third country, nor does it challenge the criteria to grant market econo my treatment to WTO NME suppliers set forth in 
Article 2(7).  China directs its challenge to the rules regarding the specification of individual and 
country-wide duties for NME suppliers, including the IT test, which are contained in Article 9(5) of the Basic AD Regulation. 
C. Section 15 of China's Accession Protocol 
283. Before addressing the appeal by the Europ ean Union of the Panel's findings under 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement , we address the claim by the European Union 
that the Protocol on the Accession of the People's Republic of China (China's "Accession 
Protocol")
455, and in particular Section 15, allows the European Union to treat China as an NME for 
the purpose of applying anti-dumping rules and, in particular, Article 9(5) of the Basic AD Regulation. 
284. The European Union argues that China's Acce ssion Protocol contains an understanding that 
China is not yet a market economy and that, while it does not speak directly to the issue of whether 
Chinese suppliers must receive individual treatment with respect to the calculation of dumping margins and the imposition of anti-dumping duties, it "does not narrow the universe of situations 
where the Anti-Dumping Agreement  permits a flexible application of the rules".
456  T h e  
European Union highlights that th e reference in paragraph 15(a)(i) and (ii) of China's Accession 
Protocol to "the manufacture, production and sale of  that product" suggests that the term "market 
economy conditions" also "encompasses the situa tion where State intervention in the economy 
including international trade is so substantial that operators cannot act independently from the State in 
their export activities".457  China responds that Section 15 of its Accession Protocol does not contain 
"an official recognition by China" that it is an NME, but only "a temporary and limited derogation 
from the rules in the [ Anti-Dumping Agreement ]" on the determination of the normal value in anti-
dumping investigations initiated w ith respect to imports from China.458 
                                                      
455WT/L/432, 23 November 2001. 
456European Union's appellant's submission, para. 49. 
457European Union's appellant's submission, para. 46. 
458China's appellee's submission, para. 49. WT/DS397/AB/R 
Page 120  
 
  285. We begin by observing that Section 15 of China's Accession Protocol contains a similar 
acknowledgment of the difficulties in determining price comparability as the one contained in the 
second Ad Note to Article VI:1 of the GATT 1994, in respect of imports from China.
459  The second 
Ad Note to Article VI:1 recognizes that, in the cases of imports from countries where the State has a 
complete or substantially complete monopoly of tr ade and where all domestic prices are fixed by the 
State, importing Members may determine that a comparison with domestic prices in such a country 
may not be appropriate due to special difficulties in  determining price comparability.  This provision 
allows investigating authorities to disregard dom estic prices and costs of such an NME in the 
determination of normal value and to resort to prices and costs in a market economy third country.  Article 2.7 of the Anti-Dumping Agreement  states that Article 2 is without prejudice to the second 
                                                      
459Section 15 of China's Accession Protocol, entitled "Price Comparab ility in Determining Subsidies 
and Dumping" , reads in relevant part: 
Article VI of the GATT 1994, the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and the SCM Agre ement shall apply in proceedings 
involving imports of Chinese origin into a WTO Member consistent with 
the following: (a) In determining price comparability under Article VI of the GATT 1994 
and the Anti-Dumping Agreement, the importing WTO Member shall 
use either Chinese prices or costs for the industry under investigation 
or a methodology that is not based on a strict comparison with 
domestic prices or costs in China based on the following rules: 
(i) If the producers under investiga tion can clearly show that market 
economy conditions prevail in the industry producing the like 
product with regard to the manufacture, production and sale of 
that product, the importing WT O Member shall use Chinese 
prices or costs for the industry under investigation in determining 
price comparability; 
(ii) The importing WTO Member may use a methodology that is not 
based on a strict comparison with  domestic prices or costs in 
China if the producers under inve stigation cannot clearly show 
that market economy conditions prevail in the industry producing 
the like product with regard to manufacture, production and sale 
of that product. 
 … 
(d) Once China has established, under the national law of the importing 
WTO Member, that it is a market economy, the provisions of subparagraph (a) shall be terminated provided that the importing 
Member's national law contains market economy criteria as of the date 
of accession.  In any event, the prov isions of subparagraph (a)(ii) shall 
expire 15 years after the date of accession.  In additio n, should China 
establish, pursuant to the national law of the importing WTO Member, 
that market economy conditions prevail in a particular industry or sector, the non-market economy provisions of subparagraph (a) shall 
no longer apply to that industry or sector.  WT/DS397/AB/R 
 Page 121 
 
 
  Ad Note to Article VI:1 of the GATT 1994, and thus incorporates the second Ad Note to Article VI:1 
into the Anti-Dumping Agreement .460 
286. According to paragraph 15(a) of China's Accession Protocol, it is incumbent upon Chinese 
producers to "clearly show" that market economy co nditions prevail in the industry producing the like 
product in order for Chinese prices or costs to be used when determining price comparability.  If 
Chinese producers are not able to "clearly show " that market economy conditions prevail in the 
industry in question, the importing WTO Member may use an alternative methodology that is not 
based on a strict comparison with domestic prices or  costs in China, such as using surrogate third 
country or constructed normal value. 
287. We note that paragraph 15(a) of China's Acce ssion Protocol places the burden on the Chinese 
producers clearly to show that market economy cond itions prevail in the industry producing the like 
product with respect to its manufacture, production,  and sale.  If such a showing is made, the 
importing Member shall use Chinese prices and costs in determining price comparability.  Like the 
second Ad Note to Article VI:1 of the GATT 1994, pa ragraph 15(a) of China's Accession Protocol 
permits importing Members to derogate from a strict comparison with domestic prices or costs in 
China, that is, in respect of the determination of th e normal value.  This is indicated by the text of 
paragraph 15(a), which, in respect of the dete rmination of price comparability, refers to " Chinese  
                                                      
460The second Ad Note to Article VI:1 of the GATT 1994 reads as follows: 
It is recognized that, in the case of  imports from a country which has a 
complete or substantially complete monopoly of its trade and where all 
domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such 
cases importing Members may find it necessary to take into account the 
possibility that a strict comparison with domestic prices in such a country 
may not always be appropriate.  
 We observe that the second Ad Note to Article VI:1 refers to a "country which has a complete or 
substantially complete monopoly of its trade" and "where all domestic prices are fixed by the State".  This 
appears to describe a certain type of NME, where the St ate monopolizes trade and sets all domestic prices.  The 
second Ad Note to Article VI:1 would thus not on its face be applicable to lesser forms of NMEs that do not 
fulfil both conditions, that is, the complete or substantia lly complete monopoly of trade and the fixing of all 
prices by the State. 
 Furthermore, the reference in the second Ad Note to Article VI:1 to a strict "comparison with domestic 
prices" not always being "appropriate" provides flexibility only in respect of the determination of normal value.  
The recognition of special difficulties in determining price comparability in the second Ad Note to Article VI:1 
does not mean that importing Members may depart from the provisions regarding the determination of export prices and the calculation of dumping margins and anti-dumping duties set forth in the Anti-Dumping Agreement  
and in the GATT 1994.  While the second Ad Note to Article VI:1 refers to difficulties in determining price 
comparability in general, the text of this provision clarifie s that these difficulties relate exclusively to the normal 
value side of the comparison.  This is indicated by the operative part in the third sentence of this provision, 
which only allows importing Members to depart from a "strict comparison with domestic  prices". 
The second Ad Note to Article VI:1 was added to the GATT 1947 following the 1954-1955 Review 
Session. (L/334, adopted 3 March 1955, p. 2, para. 6, and Annex I, Section I.B, p. 10;  BISD 3S/222, at 223, 
para. 6) WT/DS397/AB/R 
Page 122  
 
  prices or costs" or "a methodology that is not based on a strict comparison with domestic  prices or 
costs in China".
461 
288. We do not consider that the references in para graph 15(a)(i) and (ii) to producers having to 
show that "market economy conditions prevail … with regard to the manufacture, production and 
sale"462 of a product means that paragraph 15(a) permits  any derogations also with respect to the 
determination of export prices.  We reach this conclusion because, when producers are not able to 
show that market economy conditions pr evail (including with regard to the sale of the product), 
paragraph 15(a) makes it clear that all an impor ting WTO Member is allowed to do as a consequence 
is to "use a methodology that is not based on a strict comparison with domestic prices or costs in 
China ".463 
289. Paragraph 15(d) of China's Accession Prot ocol establishes that the provisions of 
paragraph 15(a) expire 15 years after the date of China's accession (that is, 11 December 2016).  It 
also provides that other WTO Members shall gran t before that date the early termination of 
paragraph 15(a) with respect to China's entire economy or specific sectors or industries if China demonstrates under the law of the importing WTO Member "that it is a market economy" or that 
"market economy conditions prevail in a particular  industry or sector".  Since paragraph 15(d) 
provides for rules on the termination of paragraph 15(a ), its scope of application cannot be wider than 
that of paragraph 15(a).  Both paragraphs concern exclusively the determination of normal value.  In 
other words, paragraph 15(a) contains special ru les for the determination of normal value in anti-
dumping investigations involving Ch ina.  Paragraph 15(d) in turn establishes that these special rules 
will expire in 2016 and sets out cer tain conditions that may lead to  the early termination of these 
special rules before 2016. 
290. In our view, therefore, Section 15 of China's Accession Protocol does not authorize WTO 
Members to treat China differently from other Members except for the determination of price 
comparability in respect of domestic prices and costs in China, which relates to the determination of 
normal value.  We consider that, while Section 15 of China's Accession Protocol establishes special 
rules regarding the domestic price aspect of pric e comparability, it does not contain an open-ended 
exception that allows WTO Members to treat China differently for other purposes under the 
                                                      
461Emphasis added. 
462Emphasis added. 
463Emphasis added.  WT/DS397/AB/R 
 Page 123 
 
 
  Anti-Dumping Agreement  and the GATT 1994, such as the determination of export prices or 
individual versus country-wide margins and duties.464 
291. Finally, we note that China's claim before the Panel concerned the dete rmination of individual 
and country-wide dumping margins and duties, not the possibility of resorting to alternative methodologies in the calculation of normal value in anti-dumping investigations involving China. 
D. The Scope of Article 9(5) of the Basic AD Regulation 
292. We now turn to the European Union's appeal of  the Panel's findings concerning the scope of 
Article 9(5) of the Basic AD Regulation.  The Panel found that "Article 9(5) of the Basic AD 
Regulation concerns not only the imposition of anti-dumping duties but also the calculation of 
margins of dumping".
465  The Panel reasoned that, as a general matter, "there is a close and necessary 
link between the calculation of a margin of du mping and the imposition of an anti-dumping duty"466 
and that "normally, an investigating authority woul d calculate the margin of dumping and impose the 
consequent anti-dumping duty on the same basis", whether this is producer specific or country-
wide.467  Specifically, the Panel found that, "in operation, th e result of the IT test in Article 9(5) of the 
Basic AD Regulation determines the nature of  the margin calculation the EU authorities will 
undertake, either individual or country-wide".468 
293. The European Union claims that Article 9(5) of the Basic AD Regulation, examined on its 
face and based on its text and in the context of othe r Articles of the Basic AD Regulation, shows that 
it "deals exclusively with the imposition of anti-dumping duties"469 and does not address the 
                                                      
464Paragraph 150 of China's Accession Working Party Report states that several WTO Members noted 
that China was continuing the process of transition towards a full market economy and also refers to possible 
special difficulties in determining price comparability and to the possibility that a strict comparison with 
domestic costs and prices in China might not  always be appropriate.  It states: 
Several members of the Working Party noted that China was continuing the 
process of transition towards a full market economy. Those members noted 
that under those circumstances, in the cas e of imports of Chinese origin into 
a WTO Member, special difficulties could exist in determining cost and 
price comparability in the context of anti-dumping investigations and 
countervailing duty investigations.  Those members stated that in such cases, the importing WTO Member might find it necessary to take into 
account the possibility  that a strict comparison  with domestic costs and 
prices in China might not always be appropriate. 
465Panel Report, para. 7.77. 
466Panel Report, para. 7.72. 
467Panel Report, para. 7.74. 
468The Panel found that it is undisputed that, where according to Article 9(5) country-wide duties are 
imposed on NME producers that fail the IT test, the European Commission calculates only a country-wide 
dumping margin for such producers (and not individual margins), while in respect of producers that pass the IT test, an individual margin is calculated and an individual duty is imposed. (Panel Report, para. 7.77) 
469European Union's appellant's submission, para. 90. WT/DS397/AB/R 
Page 124  
 
  calculation of dumping margins or whether such dumping margins should be calculated on an 
individual or a country-wide basis.  According to the European Union, the determination of the 
dumping margin for a supplier entitled to an individu al dumping margin flows from the rule contained 
in Article 9(4) rather than 9(5) of the Basic AD Regulation, which China did not specify as the 
measure at issue in the present dispute. 
294. China contends that the Panel's finding on the "meaning" and "scope" of Article 9(5) of the 
Basic AD Regulation is an issue of fact that the A ppellate Body is not competent to review pursuant 
to Article 17.6 of the DSU.  China submits that the meaning and scope of Article 9(5) is not clear "on 
its face", and its determination involves the Panel's findings on relevant factual elements with which 
the Appellate Body will not lightly interfere.  Ch ina contends that, because the European Union has 
failed to raise a claim under Article 11 of the DSU in  this respect, the Panel's finding regarding the 
meaning and scope of Article 9(5) of the Basic AD Regulation is not subject to our review in this 
case.  In the alternative, assuming that we were to consider ourselves competent to review this issue, 
China submits that the Panel correctly found that Article 9(5) of the Basic AD Regulation concerns 
not only the imposition of anti-dumping duties but also the calculation of dumping margins.
470 
295. We begin by addressing China's preliminary obj ection that the Panel's finding concerning the 
meaning and scope of Article 9(5) of the Basic AD Regul ation is a matter of fact that is not subject to 
appellate review pursuant to Article 17.6 of th e DSU.  We disagree with China and the Panel.471  On 
several occasions, the Appellate Body has clarified that municipal law may serve both as evidence of 
facts and evidence of a Member's compliance or no n-compliance with its in ternational obligations.472  
In particular, in US – Section 211 Appropriations Act , the Appellate Body stated that, when a panel 
examines the municipal law of a WTO Member for the purpose of determining whether that Member 
has complied with its WTO obligations, that examina tion is a legal characterization by a panel and is 
therefore subject to appellate review under Article 17.6 of the DSU.473 
296. In China – Auto Parts , the Appellate Body stated that it could review the panel's findings 
regarding the meaning of municipal law to the ex tent that the panel conduc ted its examination of 
municipal law for purposes of determining whet her the Member had complied with its WTO 
                                                      
470China's appellee's submission, para. 67. 
471At the outset of its analysis of the scope of Article 9(5) of the Ba sic AD Regulation, the Panel stated 
that it fell upon it "to clarify the scope/operation of Artic le 9(5) of the Basic AD Regulation as a factual matter 
before engaging in a substantive analysis of  China's claims". (Panel Report, para. 7.68) 
472Appellate Body Report, India – Patents (US) , paras. 65 and 66;  Appellate Body Report, US – 
Hot-Rolled Steel , para. 200;  Appellate Body Report, China – Publications and Audiovisual Products , 
paras. 177 and 178;  Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 168;  
Appellate Body Report, US – Carbon Steel , paras. 156 and 157. 
473Appellate Body Report, US – Section 211 Appropriations Act , para. 105.  WT/DS397/AB/R 
 Page 125 
 
 
  obligations.  The Appellate Body recognized that there will be instances in which a panel's assessment 
of municipal law will go beyond the text of the instrument on its face, in which case further 
examination may be required, and may involve factua l elements.  The Appellate Body explained that 
it would not lightly interfere with a panel's assessme nt of municipal law that went beyond the text of 
an instrument on its face and involved such factual elements.474  The Appellate Body clarified that the 
examination of a municipal legal instrument will focu s on its text, but may also include the context of 
the provision and the "overall structure and logic"475 of the municipal law.476  In this dispute, the Panel 
did not review factual elements concerning the appl ication of Article 9(5), such as pronouncements by 
EU domestic courts or opinions of legal experts or recognized scholars477, but assessed Article 9(5) of 
the Basic AD Regulation, based on the text of the provision, its context, and its operation.478 
297. Therefore, we conclude that the Panel's assessme nt of the meaning and scope of Article 9(5) 
of the Basic AD Regulation, which is based on the text of the provision, its context within the 
structure of the other relevant provisions of the Regulation, and its operation is not a "factual matter" 
and is not excluded from appellate re view.  Rather, the Panel examined Article 9(5) for the purpose of 
determining its consis tency with a number of provisions of the Anti-Dumping Agreement  and the 
GATT 1994, which, as a matter of lega l characterization, is subject to  appellate review according to 
Article 17.6 of the DSU. 
298. Having clarified that the Panel's findings concer ning the meaning and scope of Article 9(5) of 
the Basic AD Regulation are subject to appellate revi ew, we now turn to the European Union's appeal 
that the Panel erred in finding that Article 9(5)  of the Basic AD Regulation concerns not only the 
imposition of anti-dumping duties but also the calculation of margins of dumping. 
299. The European Union contends that, even if the determination of dumping and the imposition 
of duties are closely related issues, this does not mean that "any consequence of the Article 9(5) 
determination, such as the nature of the dumping margin calculation, was part of the measure at 
                                                      
474Appellate Body Reports, China – Auto Parts , para. 225. 
475Appellate Body Reports, China – Auto Parts , para. 238. 
476Appellate Body Reports, China – Auto Parts , paras. 225-245;  Appellate Body Report, China – 
Publications and Audiovisual Products , para. 177. 
477Appellate Body Report, US – Carbon Steel , para. 157. 
478The Panel stated that: 
… the meaning of national law of a WTO Member is a matter of fact for 
panels to establish.  We note that the European Union has not provided any 
evidence of the meaning of Article 9( 5) of the Basic AD Regulation, such 
as, for instance, an interpretation from the EU courts having relevant 
jurisdiction.  Thus, we consider that it falls upon us to clarify the 
scope/operation of Article 9(5) of the Basic AD Regulation as a factual 
matter  before engaging in a substantive analysis of China's claims. 
(Panel Report, para. 7.68 (emphasis added;  footnotes omitted)) WT/DS397/AB/R 
Page 126  
 
  issue".
479  The European Union contends that provisions of the Basic AD Regulation other than 
Article 9(5) speak directly or indirectly to the separate issue of the determination of dumping margins 
and whether those determinations are individual or country-wide.  In particular, the European Union 
refers to:  (i) Article 2(7), as the basis on which a supplier meeting the MET test would be assigned an 
individual margin of dumping;  (ii) Article 9(4), which establishes the ceiling for the amount of anti-dumping duties by reference to the margin of dumpi ng to be established;  (iii) Article 9(6), which 
addresses the calculation of dumping margins and the imposition of anti-dumping duties in the 
context of sampling;  (iv) Article 11(4), which pr ovides for the calculation of individual margins of 
dumping for new exporters in reviews;  and (v) Ar ticle 11(8), which requires that the dumping margin 
be established on an individual basis in refund pro ceedings.  According to the European Union, these 
provisions address the separate issue of the individual determination of dumping margins.
480 
300. Like the Panel, we note that the text of Ar ticle 9(5) of the Basic AD Regulation does not 
explicitly mention dumping margins.  However, we observe that Article 9(5) requires that an anti-
dumping duty "be imposed in the appropriate amounts in each case" and that such duty be specified for each supplier or in certain circumstances for the supplying country concerned.  We agree with the 
Panel that there is "a close and necessary link" be tween the calculation of a dumping margin and the 
imposition of an anti-dumping duty.
481  In particular, we consider th at the determination of a dumping 
margin is a prerequisite for the imposition of an  anti-dumping duty and that, therefore, a duty cannot 
be imposed unless a margin has been calculated, in  part because the margin sets the ceiling on the 
amount of anti-dumping duty that may be imposed.  Mo reover, the requirement in Article 9(5) that the 
amount of the duty be "appropriate" also pres upposes that an individual duty be based on an 
individual margin, and a country-wide duty be based on a country-wide margin.  It thus follows that, if individual duties are imposed, individual margin s are calculated;  if country-wide duties are 
imposed, country-wide margins are calculated.
482 
301. We are not persuaded that any of the other pr ovisions of the Basic AD Regulation cited by the 
European Union addresses the question of whethe r individual or country-wide dumping margins 
should be calculated.  Article 2 of the B asic AD Regulation, like Article 2 of the Anti-Dumping 
Agreement , is entitled "Determination of Dumping", and contains rules concerning the determination 
of normal value and export price, the comparis on between normal value and export price, and 
methodologies to determine the existence of marg ins of dumping.  Article 2 of the Basic AD 
Regulation, however, like Article 2 of the Anti-Dumping Agreement , does not contain a rule that 
                                                      
479European Union's appellant's submission, para. 108. 
480European Union's appellant's submission, para. 96. 
481Panel Report, para. 7.72. 
482See Panel Report, para. 7.74.  WT/DS397/AB/R 
 Page 127 
 
 
  requires that dumping margins be determined fo r each individual exporter or producer.  More 
specifically, Article 2(7) of the Basic AD Regulation does not establish that individual margins of 
dumping will be calculated for NME suppliers if they  fulfil the MET test.  Article 2(7) only provides 
that, in the case of imports from NMEs, the normal value shall be determined on the basis of an 
alternative methodology and not based on domestic prices or costs, unless exporters from NMEs are able to show that market economy conditions prevail by demonstrating that they fulfil the criteria of 
the MET test.  Article 2(7), however, is silent about the calculation of individual margins and duties.  
It is Article 9(5) of the Basic AD Regulation that  establishes that individual duties will be specified 
for NME suppliers that have fulfilled the MET test;  it also stipulates that, for NME suppliers that did 
not fulfil the MET test, an individual duty will be specified only if they fulfil the IT test. 
302. Furthermore, Article 9(4) of the Basic AD  Regulation, which appears to implement 
Article 9.3 of the Anti-Dumping Agreement , does not address the issue of the type of dumping 
margins that should be calculated for NME supplie rs.  Article 9(4) of the Basic AD Regulation 
concerns another issue, that is, the ceiling amount  of anti-dumping duties, which must not exceed the 
dumping margin.  This ceiling applies regardless of whether dumping margins have been calculated 
for each individual supplier or for all suppliers from a given country.  Indeed, Article 9(4) does not 
mention at all individual margins or duties, as it is  concerned with the maximum ceiling applicable to 
duties, regardless of whether these duties are impo sed on an individual or a country-wide basis. 
303. We observe that Article 9(6) of the Basic AD Regulation, which appears to implement 
Article 9.4 of the Anti-Dumping Agreement , addresses the specific situation of the dumping margins 
and anti-dumping duties that are determined a nd imposed on non-sampled producers, where the 
European Commission resorts to sampling.  It requi res that the anti-dumping duty applied to exporters 
or producers not included in the sample, who ha ve made themselves known and provided sufficient 
information within three weeks of initiation of th e investigation, should not exceed the weighted 
average margin of dumping established for the parties in the sample.  Article 9(6) thus provides that 
the margin of sampled exporters be averaged;  this determination of a weighted average is 
consequential to the calculation of individual margin s for those sampled exporters, which Article 9(6) 
does not regulate. 
304. Article 11(4) of the Basic AD Regulation, whic h appears to implement Article 9.5 of the 
Anti-Dumping Agreement , requires that a review be carried out for the purpose of determining 
individual margins for new exporters.  Article 11(4) does not exclude the application of Article 9(5) to 
new exporters from NMEs.  In other words, an e xporter from an NME that applies for a new exporter 
review under Article 11(4) would neve rtheless have to fulfil the conditio ns of Article 9(5) if it wants WT/DS397/AB/R 
Page 128  
 
  to obtain individual dumping margins and duties.  Moreover, Article 11(4) does not speak to the 
calculation of individual margins for exporters  or producers who are not "new exporters or 
producers".  Finally, Article 11(8) of the Basic AD Regulation allows an impor ter to request refunds, 
and requires that for this purpose the dumping marg in for the relevant exporter be established on an 
individual basis. 
305. All of these provisions of the Basic AD Regul ation presuppose the prior determination of 
dumping margins under a different rule; moreover,  none of these provisions addresses the specific 
question of whether individual or country-wide ma rgins should be determined for exporters or 
producers.  We, therefore, agree with the Panel that none of these other provisions of the Basic AD 
Regulation cited by the European Union implements the requirement contained in Article 6.10 of the 
Anti-Dumping Agreement  that, as a rule, individual margins of  dumping have to be determined for 
each exporter or producer.
483 
306. By contrast, Article 9(5) of the Basic AD Regulation, which establishes the circumstances 
under which anti-dumping duties must be specified on an individual or a country-wide basis, by necessary implication, also requires that dumping marg ins be determined on such a basis.  The fact 
that other provisions of the Basic AD Regula tion cited by the European Union presuppose the 
determination of a dumping margin supports the vi ew that it is Article 9(5) that regulates the 
circumstances under which dumping margins should be  determined on an individual basis.  To 
suggest that no provision in the Basic AD Regulati on implements the requirement of Article 6.10 of 
the Anti-Dumping Agreement  that, as a rule, individual dumping margins be determined for each 
exporter or producer, would result in a lacuna that is  not consistent with the structure and operation of 
the Basic AD Regulation and with the other rules in the Regulation, which presuppose the existence 
of such a rule. 
307. We also consider that the calculation of c ountry-wide margins for non-IT suppliers cannot be 
described as "any consequence"
484 or as merely a potential consequence of the Article 9(5) 
determination, as it is directly and necessarily associated  with the rule in Article 9(5) that requires the 
specification of country-wide duties for non-IT suppliers .  In other words, it seems to us that the 
calculation of dumping margins and of the amount of duties are closely linked, in that the method 
used to determine dumping margins is reflected in the imposition of duties.   As a consequence, 
individual duties presuppose individual margins and country-wide duties presuppose country-wide 
                                                      
483Panel Report, para. 7.75. 
484European Union's appellant's submission, para. 108.  WT/DS397/AB/R 
 Page 129 
 
 
  margins.  Therefore, we do not consider that, as the European Union argues485, by addressing the 
country-wide dumping margin calculation that results  from the operation of Article 9(5), the Panel 
incorrectly expanded the scope of the measure at issue. 
308. In the light of the above, we consider that the Pa nel did not err in finding that Article 9(5) of 
the Basic AD Regulation not only concerns the imposition of anti-dumping duties but also the calculation of dumping margins, and that it could be challenged "as such" under Article 6.10 of the 
Anti-Dumping Agreement , which addresses the calculation of margins of dumping for each exporter 
or producer.
486 
E. Articles 6.10 and 9.2 of the Anti-Dumping Agreement 
309. Having concluded that Article 9(5) of th e Basic AD Regulation regulates not only the 
imposition and collection of anti-dumping duties but also the determination of dumping margins, and 
whether these are determined on an individual or a country-wide basis, we now turn to the Panel's 
interpretation and application of  Articles 6.10 and 9.2 of the Anti-Dumping Agreement . 
310. The Panel ultimately found that Article 9(5) of the Basic AD Regulation is inconsistent with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement  because it requires th e determination of 
country-wide dumping margins for and the imposition of country-wide anti-dumping duties on exporters or producers from NMEs, unless such produ cers or exporters show, on the basis of the 
criteria set out in that provision, that th ey are independent from the State (IT test).
487  We address 
below first the Panel's interpretation of Articles 6.10 and 9.2 and then its application of these 
provisions. 
1. Interpretation of Articles 6.10 and 9.2 of the Anti-Dumping Agreement  
(a) Article 6.10 of the Anti-Dumping Agreement  
311. In its analysis of the consistency of Article 9( 5) of the Basic AD Regulation with Article 6.10 
of the Anti-Dumping Agreement , the Panel observed that "the firs t sentence of Article 6.10 provides 
that the investigating authorities must, 'as a rule ', calculate an individual dumping margin for each 
known exporter or producer of the product under investigation"488 and that "[t]he wording of 
                                                      
485See European Union's appellant's submission, para. 108. 
486Panel Report, para. 7.77. 
487Panel Report, paras. 7.98 and 7.112. 
488Panel Report, para. 7.88. WT/DS397/AB/R 
Page 130  
 
  Article 6.10, particularly the fact that the excepti on is stated immediately after the rule, seems to 
suggest that sampling is the sole excepti on to the rule of individual margins".
489 
312. The European Union claims that  Article 6.10 should not be read as establishing a rule subject 
to a single exception and that it does not impose an unqualified obligation, but rather states a preference for determining individual dumping margins.   The European Union maintains that the term 
"as a rule", which is inserted after the word "shall" , "indicate[s] that the obligation is only a general 
principle and not a strict obliga tion that is to be complied with in any and all circumstances".
490  The 
European Union observes that Article 6.10 refers to one affirmative situation (sampling) where such a 
preference "may" not be followed, and argues that "s ampling" is not the only situation in which a 
Member is not required to determine individual dumping margins.491  According to the 
European Union, that Article 6.10, first sentence, do es not contain a strict rule, as the Panel found, but 
a preference, is borne out by the ex istence of other situations where the preference does not need to be 
followed. 
313. China responds that the use of the word "shall" in the first sentence of Article 6.10 establishes 
the mandatory nature of this provision, and that "s ampling" is the only exception to this rule.  In 
China's view, the expression "as a rule" is necessary to  the extent that it creates a "link between the 
obligation contained in Article 6.10 first sentence wh ich constitutes the rule and the exception to that 
rule included in the second sentence of that provision".492  According to China, if the drafters' 
intention was to allow more exceptions than "sam pling", they would have expressly mentioned that 
the derogation from the general rule  was permitted in situations othe r than the one mentioned in the 
second sentence of Article 6.10.493 
314. We observe that two main interpretative questions  are raised in respect of the Panel's findings 
under Article 6.10.  First, whether the first sentenc e of Article 6.10, through the use of the terms 
"shall" and "as a rule", expresses a mandatory rule or a mere preference to determine individual 
margins of dumping.  Second, whether "sampling" , as permitted by the second sentence, is the only 
exception to the rule formulat ed in the first sentence. 
                                                      
489Panel Report, para. 7.90.  Investigating authorities may resort to sampling when the number of 
exporters, producers, importers or types of products is so large as to make individual dumping margin 
determinations impracticable.  In such cases, the authorities may limit their examination either:  (i) to a 
reasonable number of interested parties or products by usi ng samples, which are statistica lly valid;  or (ii) to the 
largest percentage of the volume of exports from the country in question that can reasonably be investigated. 
490European Union's appellant's submission, para. 114. 
491European Union's appellant's submission, para. 117. 
492China's appellee's submission, para. 114. 
493China's appellee's submission. para. 123.  WT/DS397/AB/R 
 Page 131 
 
 
  315. Article 6.10 of the Anti-Dumping Agreement  reads: 
The authorities shall, as a rule, determine an individual margin of 
dumping for each known exporter or producer concerned of the product under investigation.  In cases where the number of exporters, producers, importers or types of prod ucts involved is so large as to 
make such a determination imprac ticable, the authorities may limit 
their examination either to a reas onable number of interested parties 
or products by using samples which are statistically valid on the basis 
of information available to the auth orities 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.
494 
316. We note that the auxiliary verb "shall" is comm only used in legal texts to express a mandatory 
rule.  In the phrase "[t]he authorities shall , as a rule , determine an individual margin of dumping for 
each known exporter or producer"495, "shall" is followed by the term "as a rule".  The definition of the 
latter term includes "usually" and "more often than not".496  The combination of the terms "shall" and 
"as a rule" does not connote a mere preference.  Ha d the drafters of Article 6.10 wanted to avoid 
formulating an obligation to determine individual dumping margins, they would have used terms such 
as "it is desirable" or "in principle" instead of "shall". 
317. Although the term "shall" renders the rule in the first sentence of Article 6.10 mandatory, this 
obligation is qualified by the term "as a rule", and this qualification must have a meaning.  In our 
view, the term "as a rule" in the first sentence in dicates that this obligation is not absolute, and 
foreshadows the possibility of excep tions.  Absent the insertion of "as a rule" in the first sentence of 
Article 6.10, the obligation to determine individual margins would be difficult to reconcile with other 
provisions of the Anti-Dumping Agreement  that permit derogations fro m the rule to determine 
individual dumping margins.  However, while the term "as a rule" should be read as modifying the 
obligation to determine individual margins, it does not  render it a mere preference.  Otherwise, the use 
of "shall" in the first sentence would be deprived of its ordinary meaning.   
                                                      
494Article 6.10.2 reads: 
In cases where the authorities have limited their examination, as provided 
for in this paragraph, they shall nevertheless determine an individual margin 
of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered 
during the course of the investigation,  except where the number of exporters 
or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the 
investigation.  Voluntary responses shall not be discouraged. 
495Emphasis added. 
496Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 126. WT/DS397/AB/R 
Page 132  
 
  318. The second sentence of Article 6.10 allows i nvestigating authorities to depart from the 
obligation to determine individual dumping ma rgins in cases where the number of exporters, 
producers, importers, or types of products is so la rge as to make such determinations impracticable.  
In such cases, the authorities may limit their examination either:  (i) to a reasonable number of 
interested parties or products by using samples, whic h are statistically valid;  or (ii) to the largest 
percentage of the volume of exports from the country in question that can reasonably be investigated.  
This limited examination is gene rally referred to as "sampling", even where a statistically valid 
sample is not used but the second alterna tive for limiting the examination is used.
497  Sampling is the 
only exception to the determination of individual dumping margins that  is expressly provided for in 
Article 6.10. 
319. According to Article 6.10.2, even if the aut horities have limited their examination based on 
sampling, they are nevertheless required to dete rmine an individual margin of dumping for any 
exporter or producer not initially selected for indi vidual examination if th at exporter submits the 
necessary information in time during the investigatio n.  We observe, however, that Article 6.10.2 also 
permits investigating authorities not to determ ine individual dumping margins for exporters or 
producers who are not initially selected for sampling,  even if they submit the necessary information 
on time, if the number of producers is so large that individual examinations of each of them would be unduly burdensome and prevent the timely completion of  the investigation.  Again, a derogation from 
the rule that an individual margin be determined is  explicitly provided for in Article 6.10.2.  We find 
relevant context to the interpretation of Article 6.10 also in Article 9.5 of the Anti-Dumping 
Agreement .  Article 9.5 requires investigating authoriti es to determine individual dumping margins for 
exporters or producers who have not exported the product during the period of investigation.  
However, when new exporters cannot show that th ey are not related to any of the exporters or 
producers that are subject to the anti-dumping duties, such an individual determin ation is not required.  
Thus, an exception permitting derogation from the rule requiring the determination of individual 
margins for new exporters is again e xpressly provided for in Article 9.5. 
320. By inserting the term "shall, as a rule", the drafte rs of Article 6.10 were careful not to express 
an obligation that would conflict with other provisions in the Anti-Dumping Agreement  permitting 
derogation from the rule to determine indivi dual margins of dumping apart from the sampling 
exception, and would oblige investigating authorities to determine individual margins of dumping in all cases.  However, in our view, such exceptions mu st be provided for in the covered agreements, so 
as to avoid the circumvention of the obligation to determine individual margins of dumping in Article 6.10.  The term "as a rule" in the first sen tence not only anticipates the exception that follows 
                                                      
497Panel Report, para. 7.85.  WT/DS397/AB/R 
 Page 133 
 
 
  in the second sentence of Article 6.10, but also other provisions in the Anti-Dumping Agreement  that 
allow Members to depart from the requirement to determine individual margins of dumping.  At the 
same time, we do not consider that the flexibilit y provided by the term "as a rule" goes as far as 
providing Members with an open-ended possibility to create exceptions, which would erode the obligatory character of Article 6.10.  It would be  incompatible with the existence of such an 
obligation if Members were free to depart from it by unilaterally determining what qualifies as an 
applicable exception.  The general rule, that is, the obligation to determine individual margins of 
dumping for each known exporter or producer, applies,  unless derogation from it is provided for in the 
covered agreements. 
321. In support of its position that sampling is not  the only exception to the determination of 
individual dumping margins and that other exceptions not specified in the Anti-Dumping Agreement  
are allowed, the European Union cites several examples of other situations where the rule to 
determine individual dumping margins of  Article 6.10 need not be observed. 
322. The first example cited by the European Un ion concerns a non-cooperating exporter or 
producer for whom the dumping margin is calculate d based on facts available.  We observe, however, 
that Article 6.8 of the Anti-Dumping Agreement  allows an investigating authority to rely on "facts 
available" if an exporter or producer does not co operate, and that the margin applied to the non-
cooperating exporter or producer woul d still be an individual one even if it is calculated based on facts 
available rather than on information provided by the exporter or producer. 
323. The second example put forward by the European Union, namely, a "mere trader" that exports 
the product of another producer and that is assigned the dumping margin of the actual producer, is clearly based on the first sentence of Article 6.10, which refers to "exporters or producers".  The 
reference to "exporters or producers"
498 allows investigating authorities not to determine a separate 
margin of dumping for the producer and the exporter of the same product, but a single one for both.  
This, however, does not constitute an exception to th e requirement to determine individual margins, 
but rather constitutes an application of this very rule. 
324. The third example cited by the European Union refers to cases where an authority is unable to 
identify the actual producer of the product concerned.  This situation is comp atible with the correct 
interpretation of the first sentence of Article 6.10,  which requires that individual dumping margins be 
determined merely for each "known" exporter or pr oducer.  When an investigating authority is not 
able to identify an exporter or producer, it cannot be considered as "known" within the meaning of 
                                                      
498Emphasis added. WT/DS397/AB/R 
Page 134  
 
  Article 6.10, and thus the authority cannot be exp ected to calculate an individual margin for that 
exporter or producer.   
325. The fourth example provided by the European Union concerns those situations where an 
authority decides to construct normal value and ex port prices for all producers or exporters on the 
basis of the same information because it is unable to  verify all the necessary information.  We observe 
that the possibility of resorting to constructed nor mal value and export price is explicitly provided for 
in Article 2 of the Anti-Dumping Agreement  and, as such, it cannot be characterized as a non-specified 
exception to Article 6.10.  In any event, the fact th at an authority may have to construct normal value 
and/or export price for one or more exporters or producers does not necessarily imply a departure from the rule in Article 6.10.  Dumping margins based on constructed norma l value and export price 
based on the same information for many supplie rs are not the same as a country-wide margin. 
326. Finally, in its fifth example, the European Un ion refers to the situation of a known producer 
that does not export the product during the period of investigation and that will not be entitled to an 
individual dumping margin because it is related to existing exporters or producers.  As noted above
499, 
this situation is expressly provided for in Article 9.5 of the Anti-Dumping Agreement , which 
establishes that new exporters or producers will be en titled to individual duties in a review only if they 
can show that they are not related to any of th e exporters or producers subject to the original 
investigation. 
327. We thus consider that the examples cited by the European Union involve situations that either 
do not constitute departures from the individual margin s rule or are provided for in Article 6.10 itself 
or in other provisions of the Anti-Dumping Agreement .  Indeed, the term "as a rule" in the first 
sentence of Article 6.10 anticipates the possibilit y of departures from the general rule, but as 
explained above, any such exceptions must be provide d for in the covered agreements.  In this respect, 
we consider that the examples cited by the European  Union are consistent with the binding nature of 
the rule set forth in the first sentence of Article 6.10 and, therefore, do not support the European 
Union's claim that Article 6.10 states a mere preference. 
328. Having said that, we do not find any provision in  the covered agreements that would allow 
importing Members to depart from the obligation to  determine individual dumping margins only in 
respect of imports from NMEs .  We have explained above500 that Section 15 of China's Accession 
Protocol permits derogation in respect of the domestic price or normal value aspect of price 
comparability, but does not address the export price asp ect of price comparability.  It, therefore, has 
                                                      
499See supra , para. 319. 
500See supra , section IV.C of this Report.  WT/DS397/AB/R 
 Page 135 
 
 
  no entailment in respect of the obligation in Article 6.10 of the Anti-Dumping Agreement  to determine 
individual dumping margins.  In our view, theref ore, Section 15 of China's Accession Protocol does 
not provide a legal basis for flexibility in respect of  export prices and for justifying an exception to the 
requirement to determine individual dumping margins in Article 6.10 of the Anti-Dumping 
Agreement . 
329. In the light of the above, we interpret Article 6.10 of the Anti-Dumping Agreement  as 
expressing an obligation, rather than a preference, for authorities to determine individual margins of 
dumping.  This obligation is qualif ied and is subject not only to the exception specified for sampling 
in the second sentence of Article 6.10, but also to ot her exceptions to the rule to determine individual 
dumping margins that are provided for in the covered agreements. 
(b) Article 9.2 of the Anti-Dumping Agreement  
330. In its analysis of the consistency of Article 9(5) of the Basic AD Regulation with Article 9.2 
of the Anti-Dumping Agreement , the Panel noted important sim ilarities between Article 9.2 and 
Article 6.10 of the Anti-Dumping Agreement .  Although Article 6.10 concerns dumping margin 
calculations and Article 9.2 concer ns duty imposition, these two provisions  relate to "the same general 
obligation" to "provide individual treatment" to  exporters and producers in the context of anti-
dumping proceedings.501  The Panel interpreted Article 9.2 of the Anti-Dumping Agreement  as 
requiring investigating authorities to name the indivi dual suppliers, that is, th e exporters or producers, 
on whom anti-dumping duties are imposed, except when the number of exporters or producers is so 
large that it would be impracticable to do so, in which case the authorities would be allowed to name 
the supplying country.  Accordingly, the Panel c oncluded that Article 9.2 "does not … allow the 
imposition of a single country-wide anti-dumping duty in an investigation involving [an NME]".502 
331. There are a number of interpretative questions th at arise under Article 9.2.  The first question 
is whether the first and second sentences of Article  9.2 require investigating authorities to specify 
anti-dumping duties for individual suppliers or merely  to specify the names of the suppliers of the 
product concerned.  The second question concerns the scope of the exception to this rule contained in 
the third sentence of Article 9.2 that permits the authorities to name the supplying country concerned 
when it is "impracticable" to name all individual suppliers.  Specifically, the question is whether this 
exception is limited to the sampling scenario or whethe r it also covers situations where it would not be 
"effective" to impose individual duties in resp ect of NMEs, as the European Union suggests. 
                                                      
501Panel Report, para. 7.108. 
502Panel Report, para. 7.112. WT/DS397/AB/R 
Page 136  
 
  332. Article 9.2 of the Anti-Dumping Agreement  provides: 
When an anti-dumping duty is imposed in respect of any product, 
such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted.  
The authorities shall name the supplier or suppliers of the product 
concerned.  If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned.  If several suppliers from more than one country are involved, the authorities 
may name either all the suppliers involved, or, if this is 
impracticable, all the supplying countries involved. 
333. The European Union claims on appeal that, like Article 6.10 of the Anti-Dumping Agreement , 
Article 9.2 does not contain a mandatory rule re garding the imposition of individual anti-dumping 
duties, but merely a principle or a preference.  The European Union argues that Article 9.2 of the 
Anti-Dumping Agreement  reflects a product-wide and country-wide approach in that it refers to the 
imposition of an anti-dumping duty on a "product", not a company.
503 
334. China responds that "the wording of Article 9.2 read in its context" (including Article 6.10) 
"confirms that Article 9.2 contains the obligatio n for investigating authorities to impose anti-dumping 
duties on an individual basis and that the only exception to that rule is the one identified in Article 9.2, 
third sentence".504  China submits that there is no contradiction in acknowledging that the imposition 
of anti-dumping duties is made with respect to "p roducts" as well as for each "producer" or "exporter" 
concerned.  In China's view, the fact that Article  9.2, first sentence, refers to the imposition of 
anti-dumping duties with respect to a "product" does not entail an authorization to impose country-
wide duties.505  
335. We observe that the fact that anti-dumping duti es are imposed on products is not inconsistent 
with the requirement that dumping margins and an ti-dumping duties be specified for each individual 
supplier.  The Anti-Dumping Agreement  contains rules that focus on products as well as importers, 
exporters, and producers.  Article 9.2 itself refers to both products and suppliers .  We do not consider, 
therefore, that a focus on products in certain provisions of the Anti-Dumping Agreement  is 
inconsistent with the requirement that anti-dumping duties be specified by supplier in the appropriate 
amounts in each case. 
                                                      
503European Union's appellant's submission, paras. 160 and 161. 
504China's appellee's submission, para. 238. 
505China's appellee's submission, para. 225.  WT/DS397/AB/R 
 Page 137 
 
 
  336. Article 9.2 states that anti-dumping duties " shall  be collected in the appropriate amounts in 
each case" and that "authorities shall  name the supplier or supplie rs of the product concerned".506  It is 
thus clear from the wording of this provision, which uses the auxiliary verb "shall", that the collection 
in appropriate amounts of anti-dumping duties and the naming of the supplier are of a mandatory 
nature.  The mandatory nature of the first and second  sentences of Article 9.2 can be contrasted with 
the preference expressed in the second sentence of Ar ticle 9.1 for duties lesser than the margin of 
dumping, if lesser duties are adequate to remove the injury to the domestic industry.  To express such 
a preference, Article 9.1 uses the expression "it is desirable". 
337. The European Union claims that Article 9.2 do es not impose an obligation to grant individual 
treatment to exporters or producers, but merely cont ains an obligation to "specify by name" exporters 
or producers.507  According to the European  Union, the term "appropriate" in the first sentence of 
Article 9.2 may be interpreted as referring to "the duty rate appropriate to the country concerned", and 
the "source" found to be dumped and causing injury within the meaning of Article 9.2 "could be the relevant country".
508  China rejects the European Union's reading of the term "appropriate" in 
Article 9.2, first sentence, as referring to the "dut y rate appropriate to the country concerned", and 
submits that the use of the word "appropriate" ra ther "confirms" the rule that "anti-dumping duties 
must be imposed on an individual basis".509 
338. We note that Article 9.2 of the Anti-Dumping Agreement  requires that anti-dumping duties be 
collected on a non-discriminatory basis from "all sources" found to be dumped and causing injury, 
except from "those sources" from which price undertaki ngs have been accepted.  We agree with the 
Panel that the term "sources", which appears twice in  the first sentence of Article 9.2, has the same 
meaning and refers to individual exporters or  producers and not to the country as a whole.510  This is 
indicated by the fact that price undertakings me ntioned in the first sentence of Article 9.2 are 
accepted, according to Article 8 of the Anti-Dumping Agreement , from individual exporters and not 
from countries.  Therefore, the requirement under Ar ticle 9.2 that anti-dumping duties be collected in 
appropriate amounts in each case a nd from all sources relates to th e individual exporters or producers 
subject to the investigation.511 
                                                      
506Emphasis added. 
507European Union's appellant's submission, para. 163. 
508European Union's appellant's submission, para. 161. 
509China's appellee's submission, para. 228. 
510Panel Report, para. 7.103. 
511We address below the situation where an authority can demonstrate that "exporters or producers" 
constitute a single entity with the State. WT/DS397/AB/R 
Page 138  
 
  339. We have concluded above that Article 6.10 of the Anti-Dumping Agreement  contains an 
obligation to determine individual dumping ma rgins for each exporter or producer, except when 
sampling is used or if a derogation is otherwise pr ovided for in the covered agreements.  We observe 
that, where an individual margin of dumping h as been determined, it flows from the obligation 
contained in the first sentence of Article 9.2 that the appropriate  amount of anti-dumping duty that 
can be imposed also has to be an individual one .  We do not see how an importing Member could 
comply with the obligation in the first sente nce of Article 9.2 to collect duties in the appropriate  
amounts in each case if, having determined individu al dumping margins, it lists suppliers by name, 
but imposes country-wide duties.  In othe r words, unless sampling is used, the appropriate  amount of 
an anti-dumping duty in each case is one that is specified by supplier, as further clarified and 
confirmed by the obligation to name supplie rs in the second sentence of Article 9.2.
512 
340. The second sentence of Article 9.2 contains a re quirement that authorities name the supplier 
or suppliers of the product concerne d.  It is not clear from the terms of the second sentence alone what 
the purpose of naming suppliers would be, considering that the term "name" can be defined simply as 
"mention or specify by name".513  However, in our view, the content of the obligation "to name" is 
clarified by the requirements in the first sentenc e that anti-dumping duties be collected in the 
appropriate amounts on a non-discriminatory basis from all sources.   
341. An interpretation of Article 9.2, second sentence, as requiring the specification of 
anti-dumping duties by individual suppliers is also co nfirmed by the context provided by Article 9 of 
the Anti-Dumping Agreement  as a whole.  Article 9 of the Anti-Dumping Agreement  sets forth specific 
rules concerning the imposition of anti-dumping duties.  Paragraph 1 states that it is desirable that the 
duty be less than the margin if a lesser duty would be  adequate to remove injury;  paragraph 2 requires 
that duties be imposed in the appropriate amounts a nd that authorities name suppliers, unless to do so 
would be impracticable;  paragraph 3 states th at the amount of the duty should not exceed the 
dumping margin;  paragraph 4 sets forth rules for the application of anti-dumping duties to imports 
from exporters or producers not included in the sa mple;  and paragraph 5 provides for reviews to 
determine individual margins for new exporters or producers.  All the pa ragraphs of Article 9 set forth 
rules concerning the imposition of anti-dumping duties,  as reflected in the title of this provision, 
"Imposition and Collection of Anti-Dumping Duties".  A ll the paragraphs of Article 9, read together, 
                                                      
512The requirement in Article 9.2 to specify duties by individual suppliers is also consistent with the 
obligation in that provision not to discriminate in the collection of duties on imports from all sources found to be dumped and causing injury.  In this case, if an indi vidual dumping margin has been determined for each 
exporter or producer consistently w ith Article 6.10, the principle of non-discrimination requires that each 
exporter or producer obtains an anti-dumping duty th at corresponds to its individual dumping margin. 
513Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 1887.  WT/DS397/AB/R 
 Page 139 
 
 
  thus suggest that the obligation to name individua l suppliers in the second sentence of paragraph 2 is 
closely related to the imposition of individual anti- dumping duties and that the requirement to name 
suppliers that are subject to imposition and collec tion of anti-dumping duties should be interpreted as 
a requirement to specify duties for each supplier.514 
342. Having concluded that the first and second sente nces of Article 9.2 contain obligations to 
specify individual anti-dumping duties and to name suppliers, we now turn to the third sentence of 
Article 9.2.  It provides for an exception, which allows importing Members to specify duties for the 
supplying country concerned, where specification of individual suppliers is "impracticable". 
343. The European Union claims that the Panel erred in finding that Article 9(5) of the Basic AD 
Regulation does not fall within the exception under Article 9.2, third sentence, of the Anti-Dumping 
Agreement .  It argues that, like Article 6.10, Article 9.2 expressly permits the imposition of duties on 
a country-wide basis in cases other than "sampling", in  particular when it is "impracticable" to impose 
duties and name suppliers on an individual basis, consistently with the notion that these provisions 
"should … be interpreted in a flexible manner".515  China submits that the Panel correctly concluded 
that Article 9.2 requires that anti-dumping duties be imposed on an individual basis and that a 
country-wide duty can only be imposed in the circumst ances described in Article 9.2, third sentence.  
In China's view, however, the third sentence does not  authorize generally the imposition of a country-
wide duty in the case of imports from NMEs.   
344. We observe that there is significant parallelis m between Article 6.10 and Article 9.2 of the 
Anti-Dumping Agreement .  Article 6.10 requires the determinati on of individual margins of dumping, 
which corresponds to the obligation to impose anti-dumping duties on an individual basis in Article 9.2.  We further note that the fact that  the same term "impracticable" is used in both 
Article 6.10 and Article 9.2 to describe when the exception applies provides an indication that both 
exceptions refer to the situation where an author ity determines dumping margins based on sampling. 
345. The interpretative question before us, however , does not concern the precise scope of the 
exception in the third sentence of Article 9.2, and whether it exactly overlaps with the exception for 
sampling in Article 6.10 or it has a broader scope.  Rather, the issue is whether this exception may be 
                                                      
514We also note that Article 9(5) of the Basic AD Regulation, which according to the European Union 
"bring[s] into the EU's legal order" and "mirrors the language of Article 9.2 of the Anti-Dumping Agreement " 
(European Union's appellant's submission, para. 95), appears to interpret the first two sentences of Article 9.2 as containing a requirement to specify anti-dumping duties by individual suppliers.  Article 9(5) of the Basic AD 
Regulation states in relevant part that "[t]he Regulation imposing the duty shall specify the duty for each 
supplier or, if that is impracticable, and in general wh ere Article 2(7)(a) applies, the supplying country 
concerned". (emphasis added)  
515European Union's appellant's submission, para. 168. WT/DS397/AB/R 
Page 140  
 
  interpreted as permitting the situation envisaged in Ar ticle 9(5) of the Basic AD Regulation, that is, 
the imposition of a country-wide duty on suppliers from NMEs that do not fulfil the IT test under 
Article 9(5).  In particular, we need to ascertain  whether it can be considered "impracticable" to 
impose individual anti-dumping duties on suppliers from NMEs that do not meet the IT test.  
346. The European Union contends that the exception in the third sentence of Article 9.2 covers 
situations such as those envisaged in Article 9(5) of the Basic AD Regulation, which provides for the 
imposition of country-wide duties where anti-dumping duties cannot be imposed on an individual 
basis for "practical" reasons.
516  The European Union explains that it would not be "effective" to 
impose individual anti-dumping duties on suppliers that are all related to the State, because this may lead to the circumvention of the higher anti-dum ping duties imposed on some individual exporters by 
channelling exports through related exporte rs with the lowest anti-dumping duties.
517 
347. We observe that the dictionary definition of the word "impracticable" is "[n]ot practicable; 
unable to be carried out or done; impossible in practice".518  The dictionary definition of the word 
"ineffective" is "[n]ot producing any, or the desi red effect; ineffectual, inoperative, inefficient".519  It 
is evident from the dictionary definitions that "i mpracticable" and "ineffective" describe different 
qualities or characteristics of an action.  Thus, the no tion of "ineffective" is not included in the notion 
of "impracticable".  In particular, we observe th at the notion of "ineffective" is concerned with 
bringing about or producing an effect or result, which is absent from the notion of "impracticable", 
which describes the action itself. 
348. The reasons adduced by the European Union to justify the imposition of a country-wide duty 
on non-IT suppliers from NMEs focus on effectiveness rather than on practicability.  In other words, 
if the State in an NME were able to circumvent  individual anti-dumping duties imposed on suppliers 
by channelling exports through the exporter with th e lowest duty rate, this may mean that individual 
anti-dumping duties are "ineffective" to counter dumping,  not that their imposition is "impracticable".  
In our view, Article 9.2, third sentence, allows  Members to name the supplying country concerned 
only when it is impracticable to name individual  suppliers;  it does not permit naming the supplying 
country when the imposition of individual duties is ineffective because it may result in circumvention 
of the anti-dumping duties. 
                                                      
516European Union's appellant's submission, para. 172. 
517European Union's appellant's submission, para. 186.  
518Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1332. 
519Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1363.  WT/DS397/AB/R 
 Page 141 
 
 
  349. We further note that the very content and stru cture of Article 9(5) of the Basic AD Regulation 
reveals that the IT test and "impracticability" in Artic le 9.2 refer to different s ituations.  We recall that 
Article 9(5) of the Basic AD Regulation states in relevant part: 
An anti-dumping duty shall be imposed in the appropriate amounts in 
each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except for 
imports from those sources from wh ich undertakings under the terms 
of this Regulation have been acc epted. The Regulation imposing the 
duty shall specify the duty for each supplier or, if that is impracticable, and in general where Article 2(7)(a) applies, the 
supplying country concerned. (emphasis added) 
350. Thus, Article 9(5) itself distinguishes situations where the imposition of individual duties 
would be "impracticable" from situations where Artic le 2(7)(a) applies, that is, where exporters from 
NMEs will receive a country-wide duty unless they meet  the IT test.  The use of the conjunction "and" 
in Article 9(5) suggests that these are two separate situations justifying depa rture from the individual 
duty rule and that the imposition of country-wide duties on NME suppliers does not fall within the 
"impracticability" exception, because it is reflected as a separate exception. 
351. In the light of the above, we do not consider  that the exception in the third sentence of 
Article 9.2 of the Anti-Dumping Agreement , which permits naming the supplying country where 
naming individual suppliers is "impracticable", authorizes the European Union to impose country-
wide duties on suppliers from NMEs that do not meet  the IT test in Article 9(5) of the Basic AD 
Regulation. 
352. The European Union further submits that its in terpretation of the exception to the individual 
treatment of suppliers in the third sentence of Article 9.2, as permitting the imposition of country-
wide duties on suppliers from NMEs who do not qualif y for individual treatment under Article 9(5), is 
also confirmed by the analysis of supplementary  means of interpretation.  In particular, the 
European Union refers to the negotiating history and the circumstances of the conclusion of the 
Kennedy Round Anti-Dumping Code .
520 
353. We have concluded above, based on the text of the provision read in its context, that 
Article 9.2 of the Anti-Dumping Agreement  requires the imposition of anti-dumping duties on an 
individual basis and that the exception in the third sentence of Article 9.2 does not justify the 
imposition of country-wide duties on non-IT suppliers from NMEs.  We, therefore, consider that we 
do not need to have recourse to supplementary means of interpretation under Article 32 of the Vienna 
                                                      
520European Union's appellant's submission, para. 175. WT/DS397/AB/R 
Page 142  
 
  Convention , such as the preparatory work of the treaty and the circumstances of its conclusion, in 
order to confirm or determine the meaning r esulting from the application of Article 31. 
354. We thus conclude that Article 9.2 of the Anti-Dumping Agreement  requires investigating 
authorities to specify an individual duty for each s upplier, except where this is impracticable, when 
several suppliers are involved.  We reach this conclu sion by reading the first sentence of Article 9.2 in 
conjunction with the second sentenc e of Article 9.2.  The first sentence requires investigating 
authorities to collect anti-dumping duties in the appropriate amounts in each case and on a non-
discriminatory basis on imports from all sources —that is, suppliers—while the second sentence 
requires investigating authorities to name the supplier or suppliers of the product concerned.  We also 
consider that the exception in the third sentence of Article 9.2 does not allow the imposition of a 
single country-wide anti-dumping duty in investiga tions involving NMEs where the imposition of 
individual duties is alleged to be "ine ffective", but is not "impracticable". 
2. Application of Articles 6.10 and 9.2 of the Anti-Dumping Agreement  
355. The European Union claims that, even assumi ng that the Panel correctly interpreted 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement , it erred in the application of Articles 6.10 
and 9.2 and, in doing so, also acted inconsistently with Article 11 of the DSU.  The European Union 
argues that the Panel ignored its contention that the f unction of the IT test in Article 9(5) of the Basic 
AD Regulation is to identify the actual source of pr ice discrimination in the context of imports from 
NMEs, and thus determine if the State and those entities that do not act independently from the State in NMEs should be treated as a single supplier for the purposes of Articles 6.10 and 9.2.
521  T h e  
European Union relies on the findings of the panel in Korea – Certain Paper , which, in its view, stand 
for the proposition that, for the purpose of determ ining individual dumping margins, Article 6.10 
permits investigating authorities to determine that two or more exporte rs and producers are part of the 
same entity.522 
356. The Panel found that, unlike the test in Korea – Certain Paper , the IT test does not serve the 
purpose of establishing whether the State and the exporte rs or producers are in fact a single entity, nor 
does it identify the actual source of price discrimination.523  Moreover, the Panel found that the IT 
test, unlike the test in Korea – Certain Paper , is based on a presumption that in NMEs the State and 
the exporters constitute a single legal entity and th at such a presumption has no legal foundation in the 
covered agreements. 
                                                      
521European Union's appellant's submission, para. 191. 
522European Union's appellant's submission, para. 139 (referring to Panel Report, Korea – Certain 
Paper , paras. 7.163-7.168). 
523Panel Report, paras. 7.94 and 7.106.  WT/DS397/AB/R 
 Page 143 
 
 
  357. In the next sections, we first address the questi ons of whether the presumption in Article 9(5) 
of the Basic AD Regulation that in NMEs all expor ters and producers are related to the State is 
consistent with the provisions of the Anti-Dumping Agreement  and whether the Panel acted 
inconsistently with Article 11 of the DSU because it disregarded evidence submitted by the 
European Union relating to such a presumption.  We then address the question of whether an 
importing Member may determine that the exporter s and producers from an NME constitute a single 
legal entity together with the State for the purposes of applying Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement ;  more specifically, we will explore whether the operation of the IT test 
results in the identification of such a single entity. 
(a) Whether the European Union Is Entitled to Presume that in NMEs 
the State and the Exporters Constitute a Single Entity 
358. The panel in Korea – Certain Paper  found that Article 6.10 could be interpreted as allowing 
the treatment of legally separate entities as a single supplier in "cir cumstances where the structural 
and commercial relationship between the companies in question is sufficiently close to be considered 
as a single exporter or producer".524  The panel then went on to find that the majority shares of the 
three companies in question were owned by the same  parent company, which had thus considerable 
controlling power over the operations of the three co mpanies concerned;  that there were important 
commonalities of management between the three co mpanies where most of the directors of each 
company were present on the board of directors of th e other companies;  and that the three companies 
had the ability to shift production amongst themsel ves, to harmonize commercial activity and basic 
common corporate objectives, and to make their domestic sales through the same company.  Accordingly, the panel concluded that these co mpanies were in a structural and commercial 
relationship that justified treating them as a single exporter or producer for purposes of Article 6.10 of 
the Anti-Dumping Agreement .
525  
359. We recall that under the IT test in Article 9( 5) of the Basic AD Regulation an exporter from 
an NME that did not qualify for market economy trea tment under Article 2(7)(c) is not entitled to an 
individual anti-dumping duty unless it can demonstrate that: 
(a) in the case of wholly or partly foreign owned firms or joint 
ventures, exporters are free to repatriate capital and profits; 
(b) export prices and quantities, and conditions and terms of sale are 
freely determined; 
                                                      
524Panel Report, Korea – Certain Paper , para. 7.162. 
525Panel Report, Korea – Certain Paper , para. 7.168. WT/DS397/AB/R 
Page 144  
 
  (c)  the majority of the shares belong to private persons; state 
officials appearing on the board of directors or holding key management positions shall either be in minority or it must be 
demonstrated that the comp any is nonetheless sufficiently 
independent from State interference; 
(d)  exchange rate conversions are ca rried out at the market rate;  and 
(e)  State interference is not such as to permit circumvention of 
measures if individual exporters are given different rates of duty." 
360. The Panel considered that there is a fundamenta l difference between the IT test and the test 
applied by the panel in Korea – Certain Paper .  In its view, the latter test requires investigating 
authorities to demonstrate the existence of a clos e structural and commercia l relationship between a 
number of producers such that they constitute a si ngle supplier for which a single dumping margin 
may be calculated and a single anti-dumping duty may be  applied.  By contrast, under the IT test, the 
European Union presumes that in NMEs all exporte rs and producers are related to the State (and 
subject to a country-wide dumping margin and anti-dumping duty) unless a producer demonstrates that it has no such relationship with the State and t hus qualifies for individual treatment.  According to 
the Panel, applying such a presumption to NME producers "would seriously undermine the logic of 
Article 6.10", which requires that individual ma rgins be calculated for each known exporter or 
producer.
526 
361. The European Union submits that in the case of market economies, as found by the panel in 
Korea – Certain Paper , the close relationship between separate legal entities has to be established by 
the investigating authority on a case-by-case basis;  by contrast, in NMEs "the presumption of State 
control is the general rule".527  The European Union also contends that the Panel acted inconsistently 
with Article 11 of the DSU, because it disreg arded evidence submitted by the European Union 
concerning the nature of NMEs and China's status as an NME, as well as the fact that China's 
Accession Protocol entitles the European Union to treat China as an NME until 2016.  This evidence, 
which, according to the European Union, was not  contested by China, supports the presumption 
underlying Article 9(5) of the Basic AD Regulatio n that all producers and exporters in an NME 
constitute a single entity together with the State.  
362. China responds that the presumption advocated by the European Union that in NMEs the 
State and exporters constitute a single entity has no le gal basis in the covered agreements and China's 
                                                      
526Panel Report, para. 7.96. 
527European Union's appellant's submission, para. 150.  WT/DS397/AB/R 
 Page 145 
 
 
  Accession Protocol in particular.  China further argues that its Accession Protocol does not reflect a 
general understanding or recognition that China is an  NME.  Paragraph 15(a) merely authorizes WTO 
Members to apply until 2016 a temporary and lim ited derogation from certain rules in the 
Anti-Dumping Agreement  concerning normal value.  Pursuant  to paragraph 15(d), these Members may 
discontinue the application of paragraph 15(a) prior to  that date with respect to certain industries or 
the entire economy.528  In any event, China points out that wh ether China is a market economy or an 
NME is irrelevant for the purposes of this case, be cause there is no basis under Articles 6.10 and 9.2 
of the Anti-Dumping Agreement  to distinguish between imports from market economies and imports 
from NMEs in relation to the determination of individual dumping margins and anti-dumping duties. 
363. We recall that Article 9(5) of the Basic AD Regulation establishes a presumption that 
producers or exporters that operate in NMEs are no t entitled to individual treatment;  in order to 
qualify for such treatment, NME exporters bear the bur den to demonstrate that they satisfy the criteria 
of the IT test.  We observe that under Articles 6.10 and 9.2 of the Anti-Dumping Agreement  it is the 
investigating authority that is called upon to make an objective affirmative de termination, on the basis 
of the evidence that has been subm itted or that it has gathered in the investigation, as to who is the 
known exporter or producer of the product concerned.  It is, therefore, the investigating authority that 
will determine whether one or more exporters have a relationship with the State such that they can be 
considered as a single entity and receive a single dumping margin and a single anti-dumping duty.  In 
other words, where certain exporters or producers are separate legal entities,  that evidence will be 
taken into account in treating them as separate e xporters or producers for purposes of Articles 6.10 
and 9.2 of the Anti-Dumping Agreement .  An investigating authority, however, may also need to 
consider other evidence that demonstrates that le gally distinct exporters or producers are in a 
sufficiently close relationship to constitute a singl e entity and should thus receive a single dumping 
margin and anti-dumping duty.  By contrast, under Ar ticle 9(5) of the Basic AD Regulation, country-
wide dumping margins and country-wide anti-dumpi ng duties are established fo r exporters from NME 
WTO Members unless such exporters request individua l treatment and demonstrate that they satisfy 
all criteria of the IT test.  Failure to meet only on e of those criteria leads to denial of individual 
treatment. 
364. We consider that placing the burden on NME exporters to rebut a presumption that they are 
related to the State and to demonstrate that they are entitled to individual treatment runs counter to 
Article 6.10, which "as a rule" requires that individual dumping margins be determined for each 
known exporter or producer , and is inconsistent with Article 9.2 that requires that individual duties be 
specified by supplier .  Even accepting in principle that th ere may be circumstances where exporters 
                                                      
528China's appellee's submission, para. 195. WT/DS397/AB/R 
Page 146  
 
  and producers from NMEs may be considered as a single entity for purposes of Articles 6.10 and 9.2, 
such singularity cannot be presumed;  it has to be determined by the investigating authorities on the 
basis of facts and evidence submitted or  gathered in the investigation. 
365. We are also of the view that no other provision in the Anti-Dumping Agreement  or in other 
covered agreements provides a legal basis for the Eu ropean Union's presumption in Article 9(5) of its 
Basic AD Regulation that results in exporters and producers from NMEs having to demonstrate that 
they are unrelated to the State in order to qualify for individual treatment.  In particular, we do not 
consider that there is a legal basis in the provisi ons of China's Accession Protocol for a presumption 
that country-wide dumping margins be calculated and country-wide duties be imposed on all Chinese 
exporters of a product under investigation.  We have explained above that Section 15 of China's 
Accession Protocol is silent as to the individual and country-wide determina tion of dumping margins 
and imposition of anti-dumping duties.  Section 15 onl y permits derogations in respect of the use of 
domestic prices and costs—that is, normal value—but not in respect of export prices in the calculation 
of margins and the consequential imposition of duties. 
366. It is true that paragraph 15(a) of China's Accession Protocol places the burden on Chinese 
exporters to "clearly show" that market economy conditions prevail in order for the importing WTO 
Members to be obliged to use Chinese domestic pric es and costs in determining price comparability.  
However, this rule concerns only the normal valu e aspect of price comparability, and does not permit 
derogation from the disciplines of the Anti-Dumping Agreement  regarding export price.  
Paragraph 15(a) of China's Accession Protocol does not provide a legal basis for a presumption that 
an exporter's individual export prices cannot be used  and that, as a consequence, country-wide export 
prices should be used and hence country-wide margin s should be determined and country-wide duties 
should be imposed.  Neither can pa ragraph 15(d) be interpreted as authorizing WTO Members to treat 
China as an NME for matters other than the determ ination of normal value.  As explained above, 
paragraph 15(d) does not pronounce generally on China's status as a market economy or NME.  
Rather, it permits an importing WTO Member to specify when the special rules regarding normal value contained in paragraph 15(a) no longer a pply—that is, either in 2016 or earlier—if China 
establishes that it is a market economy or that mark et economy conditions exist in specific industries.  
In the light of the above, we conclude that there is no legal basis in the covered agreements for the 
general presumption that in an NME the State and al l exporters are sufficiently related to constitute a 
single entity, for which a single export price and hence a single duty can be determined. 
367. In our view, whether the European Union's presumption under Article 9(5) of its Basic AD 
Regulation that in NMEs the State and all export ers constitute a single entity is consistent with  WT/DS397/AB/R 
 Page 147 
 
 
  Articles 6.10 and 9.2 of the Anti-Dumping Agreement  is a legal question, not a factual one that 
depends on the economic structure of a particular WTO Member.  Rather, the economic structure of a 
WTO Member may be used as evidence before an i nvestigating authority to determine whether the 
State and a number of exporters or producers subject to an investigation are sufficiently related to constitute a single entity such that a single margin  should be calculated and a single duty be imposed 
on them.  It cannot, however, be used to imply a legal presumption that has not been written into the 
covered agreements. 
368. The European Union submitted to the Pane l evidence that it claimed supported the 
presumption in Article 9(5) of the Basic AD Regula tion that the State and the exporters are to be 
treated as a single entity.  In particular, the Eur opean Union provided a definition of an NME.  It 
referred to situations where the "State control ove r the means of production and State intervention in 
the economy, including international trade, impl y that all the means of production and natural 
resources belong to one entity, the State" and where "[a]ll imports from non-market economy countries are therefore considered to emanate from a si ngle supplier, the State" so that "[t]he State in 
this sense can be considered as one supplier".
529  The European Union also pointed to paragraph 15(d) 
of China's Accession Protocol which, it argues, allows it to treat China as an NME until 2016 and 
provided other evidence concerning China's interv ention in its economy and international trade.530 
369. We have explained above why we conclude that Section 15 of China's Accession Protocol 
does not provide a legal basis for the European Unio n's presumption in Article 9(5) of the Basic AD 
Regulation.  We are also of the view that the ev idence submitted by the European Union concerning 
NMEs in general and China in particular is not relevant to the legal  question of whether the 
European Union is permitted to presume under Article 9(5) of the Basic AD Regulation that the State 
and the exporters are a single exporter fo r purposes of Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement .  The review of this evidence reveals that it is possible that in specific circumstances an 
investigating authority may reach the conclusion that  the State and certain exporters are so closely 
related that they constitute a single entity.  Howe ver, the evidence submitted  by the European Union 
cannot establish that the economic structure in Chin a justifies a general presumption that the State and 
all the exporters in all industries that might be subject to an anti-dumping investigation constitute a 
single legal entity, where no legal basis for such  a presumption is provided for in the covered 
agreements.  Consequently, whether the Panel consid ered this evidence is of no relevance to the 
                                                      
529European Union's appellant's submission, para. 152 (quoting European Union's first written 
submission to the Panel, para. 61). 
530European Union's appellant's submission, para. 51.  These include publications providing definitions 
of NMEs and describing mechanisms relating to how th e Chinese Government intervenes in the economy and 
international trade.  WT/DS397/AB/R 
Page 148  
 
  question of whether a legal presumption exists or wh ether the Panel made an objective assessment of 
the matter pursuant to Article 11 of the DSU. 
370. We have concluded above that a presumption that  the State and all exporters or producers in 
all industries in NMEs are sufficiently related to constitute a single entity lacks a legal basis in the 
covered agreements.  As such, the European Uni on's presumption is inconsistent with Articles 6.10 
and 9.2 of the Anti-Dumping Agreement , which requires individual treatment for each exporter or 
producer.  Moreover, the evidence the European Unio n submitted to the Panel regarding the operation 
of NMEs in general and China in particular was not relevant to the legal question of whether a 
presumption is permitted.  Therefore, irrespective of the evidence presented by the European Union, 
the Panel did not err in finding that the Europ ean Union had not shown a legal basis for its 
presumption.  Thus, we also find that the Panel did not fail to comply with its duties under Article 11 
of the DSU in its assessment of the evidence submitted by the European Union in support of its 
presumption. 
(b) Whether in NMEs the State and the Exporters Can Be Considered as 
a Single Entity 
371. The Panel understood the panel in Korea – Certain Paper  to have found that Article 6.10 of 
the Anti-Dumping Agreement  does not preclude investigating authorities from treating multiple legally 
distinct entities as a single exporter or producer fo r purposes of an anti-dumping investigation where 
the structural and commercial relationship between th e companies in question is sufficiently close for 
them to be considered as a single exporter or producer.
531  The Panel also stated that it is possible in 
principle for an investigating authority to determin e that "one or more nominally distinct producer(s) 
or exporter(s) is/are, in fact, sufficiently related to th e State to justify concluding that they are a single 
producer or exporter".532 
372. The Panel distinguished the situation before the panel in Korea – Certain Paper  from 
Article 9(5) of the Basic AD Regulation on the ground th at the criteria of the IT test in Article 9(5) do 
not concern the structural and commercial relati onship between distinct legal entities, but are 
concerned with the role of the St ate in the way business is conducte d in a given country.  The Panel 
noted that, under the European Union's approach, the State woul d be considered as a "parent 
company" for potentially thousands of distinct le gal entities producing and exporting a product under 
                                                      
531Panel Report, para. 7.92. 
532Panel Report, para. 7.94.  WT/DS397/AB/R 
 Page 149 
 
 
  investigation.  The Panel considered that this w as not a plausible application of the reasoning of the 
panel in Korea – Certain Paper .533 
373. The Panel also found that the IT test does not aim at ascertaining whether the State is the 
"source of price discrimination" as the European Uni on claims.  According to the Panel, even if an 
exporter from an NME is able to determine its expor t prices—which would suggest that it is not the 
State that is the source of the price discrimination—it would fail the IT test unless it meets all of the 
other criteria.534 
374. In our view, the panel in Korea – Certain Paper  did not develop an interpretation that 
expanded the meaning of the term "each known exporte r or producer", nor did it read new exceptions 
into Article 6.10 of the Anti-Dumping Agreement .  Rather, that panel considered that there may be 
situations where several closely related suppliers may be deemed a single supplier for the purposes of 
Article 6.10 and referred to a "struc tural and commercial relationship".535  In the present dispute, the 
Panel did not exclude the possibility that in a give n investigation the authorities might determine that 
one or more legally distinct exporte r(s) or producer(s) is/are, in fact, su fficiently related to the State to 
justify a conclusion that they are a single exporter or  producer.  In such a situation, the Panel noted, 
the authorities could well treat the exporter(s) or producer(s) and the State as a single exporter and 
calculate a single dumping margin for, and assign a single duty to, that single exporter.536 
375. Articles 6.10 and 9.2 of the Anti-Dumping Agreement  require respectively that individual 
dumping margins be determined for each exporter or producer  and that individual anti-dumping 
duties be imposed on individual suppliers .  These requirements for individual treatment are respected, 
the European Union contends, as long as a single count ry-wide margin and duty is determined for the 
single State entity. 
376. In our view, Articles 6.10 and 9.2 of the Anti-Dumping Agreement  do not preclude an 
investigating authority from determining a single dumping margin and a single anti-dumping duty for 
a number of exporters if it establishes that th ey constitute a single exporter for purposes of 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement .  Whether determining a single dumping margin 
and a single anti-dumping duty for a number of export ers is inconsistent w ith Articles 6.10 and 9.2 
will depend on the existence of a number of situati ons, which would signal that, albeit legally distinct, 
                                                      
533Panel Report, para. 7.93. 
534Panel Report, para. 7.106. 
535That panel report was not appealed and the issue of  whether several suppliers can be considered as a 
single supplier that is assigned an individual margin and duty, if they are in a suff iciently close commercial and 
structural relationship, has not been addressed by any other panel. 
536Panel Report, para. 7.94. WT/DS397/AB/R 
Page 150  
 
  two or more exporters are in such a relationship that they should be treated as a single entity.  These 
situations may include:  (i) the existence of corporat e and structural links between the exporters, such 
as common control, shareholding and management;  (ii)  the existence of corporate and structural links 
between the State and the exporters, such as comm on control, shareholding and management;  and 
(iii) control or material influence by the State in respect of pricing and output.  We note that the Anti-Dumping Agreement  addresses pricing behaviour by exporters;  if the State instructs or 
materially influences the behaviour of several exporte rs in respect of prices and output, they could be 
effectively regarded as one exporter for purposes of the Anti-Dumping Agreement  and a single margin 
and duty could be assigned to that single exporter.  In our view, however, this is not the function of 
the IT test. 
377. The IT test contained in Article 9(5) of the Basic AD Regulation has a different function than 
the determination of whether several distinct exporters constitute a single exporter because of 
structural and commercial integration or due to co ntrol or material influence by the State.  The 
function of the IT test is to determine whether expor ters or producers are sufficiently distinct from the 
State to overcome the presumption of singularity, such that they should be entitled to individual 
treatment pursuant to Article 9(5).  Such a test cannot be used to de termine whether distinct exporters 
are sufficiently integrated with each other or w ith the State to constitute a single exporter.  
Nonetheless, given that the purpose of the IT test is to demonstrate the independence of exporters 
from State interference, we do not exclude that some of its elements would be relevant to the question 
of integration, while others would not. 
378. Only one of the five criteria of the IT test, for example, directly relates to the structural 
relationship of the company with the State:  the re quirement that the majority of the shares belong to 
private persons and that State officials holding ma nagement positions be in the minority.  Another 
criterion relates to the State interference with pr ices and output.  All the other criteria, however, 
appear to be related to State interference with exporters or State intervention in the economy in 
general and are likely to lead to the denial of indivi dual treatment with respect to exporters that have 
little or no structural or commercial relationship with  the State and whose pricing and output decisions 
are not interfered with by the State.  This is beca use the criteria of the IT test apply on a cumulative 
basis and that failure to comply with only one of them will result in the denial of individual treatment 
under Article 9(5). 
379. Moreover, by focusing on State interference w ith exporters and State intervention in the 
economy in general, the IT test captures broader market distortions in the economy and different 
kinds of interferences by the State than that of th e control or material influence by the State over the  WT/DS397/AB/R 
 Page 151 
 
 
  exporters in respect of pricing and output of a particular like product.  As a consequence, the 
cumulative criteria of the IT test are likely to resu lt in the denial of individual treatment where the 
relationship between individual exporters and the Stat e is not such as to justify treating the State and 
one or several exporters as a single entity for the purposes of Articles 6.10 and 9.2 of the Anti-Dumping Agreement . 
380. Therefore, even if, as the European Union argues,  the purpose of the IT test was to identify 
the actual source of price discrimination, we cannot  see why the failure to comply with one of the 
criteria of the IT test provides conclusive evid ence that the price discrimination by individual 
suppliers can be attributed to the State, when some of the criteria do not touch on the question of 
whether an exporter is free to determine its own pri ces.  We thus consider that the IT test is not 
capable of establishing whether, similar to the situation in Korea – Certain Paper , the State and one 
or more exporters can be deemed a single en tity for purposes of Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement .  Nevertheless, the test developed by the panel in Korea – Certain Paper  
may not capture all situations where the State ef fectively controls or materially influences and 
coordinates several exporters such that they can  be considered a single entity.  The panel in Korea – 
Certain Paper  addressed the question of when two or more  legally distinct private companies can be 
deemed a "single exporter" under Article 6.10 of the Anti-Dumping Agreement  due to their 
commercial and structural relationship.  The situation analyzed by the panel in Korea – Certain Paper  
presents some relevance to the determination of wh ether the State and several exporters constitute a 
single entity.  However, the criteria used for de termining whether a single entity exists from a 
corporate perspective, while certainly relevant, w ill not necessarily capture all situations where the 
State controls or materially influences several exporte rs such that they could be considered as a single 
entity for purposes of Articles 6.10 and 9.2 of the Anti-Dumping Agreement  and be assigned a single 
dumping margin and anti-dumping duty. 
381. Criteria relating to corporate structure may in  certain circumstances be relevant to the 
determination of whether the State and certain exporters constitute a single entity.  In other 
circumstances, however, an investigating authorit y might have to take into account factors and 
positive evidence other than those establishing a co rporate or commercial relationship in assessing 
whether the State and a number of exporters are a single entity and that, therefore, the State is the 
source of price discrimination.  These, for inst ance, may include evidence of State control or 
instruction of, or material influence on, the behavi our of certain exporters in respect of pricing and 
output.  These criteria could show that, even in th e absence of formal structural links between the 
State and specific exporters, the State in fact determines and materially influences prices and output.  WT/DS397/AB/R 
Page 152  
 
  382. In the light of the above, we are of the view th at in principle there may be situations where 
nominally distinct exporters may be considered as a single entity for the purpose of determining 
individual dumping margins and anti-dumping duties under Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement , due to State's control or material influen ce in and coordination of these exporters' pricing 
and output.  We reiterate, however, that the IT test in Article 9(5) of the Basic AD Regulation is not 
directed at such an inquiry. 
383. We further note that, even where it could be de termined that particular exporters that are 
related constitute a single supplie r, Articles 6.10 and 9.2 of the Anti-Dumping Agreement  would 
nonetheless require the determination of an indivi dual dumping margin for the single entity, which 
should be based on the average export prices of each individual exporter, and the imposition of a 
corresponding single anti-dumping duty.  Instead, the European Union does not determine such a 
single dumping margin for the State and non-IT s uppliers, but rather calculates a country-wide 
dumping margin and duty.  If cooperating non-IT exporters account for significantly less than 100 per cent of all exports, this duty will be based  on facts available for the missing information.
537  
Such a country-wide dumping margin and duty is a pplicable to all cooperating non-IT exporters as 
well as to all non-cooperating exporters.538 
384. In our view, only a dumping margin that is based on a weighted average of the export prices 
of each individual exporter that forms part of the si ngle entity would be consistent with the obligation 
in Article 6.10 to determine an individual dumping margin for the single entity that is composed of 
several legally distinct exporters.  We also do not consider that a country-wide duty imposed on a 
group of exporters could be considered as being "c ollected in the appropriate amounts in each case" 
within the meaning of Article 9.2 of the Anti-Dumping Agreement , to the extent it is determined for 
the group of fully cooperating non-IT exporters on the basis of facts available because cooperating 
exporters account for significantly less than 100 per cent of all exports. 
3. Conclusions under Articles 6.10 and 9.2 of the Anti-Dumping Agreement  
385. In the light of all of the above, we therefor e uphold, albeit for different reasons, the Panel's 
findings, in paragraphs 7.98 and 7.112 of the Pa nel Report, that Article 9(5) of the Basic AD 
Regulation is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement, 
because it conditions the determination of indivi dual dumping margins for and the imposition of 
individual anti-dumping duties on NME exporters or produ cers to the fulfilment of the IT test.  We 
                                                      
537If the level of co-operation is high, that is, if th e cooperating non-IT export ers account for close to 
100 per cent of all exports, the export price will be based on a weighted average of the actual price of all export 
transactions effected by these exporters. 
538Panel Report, para. 7.50.  WT/DS397/AB/R 
 Page 153 
 
 
  also find that the Panel did not act inconsistent ly with Article 11 of the DSU in finding that 
Article 9(5) of the Basic AD Regulation is inconsis tent "as such" with Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement . 
F. Article I:1 of the GATT 1994 
386. The Panel considered that Article 9(5) of the Basic AD Regulation constitutes a rule or 
formality, maintained by the European Union in conne ction with importation.  According to the Panel, 
Article 9(5) results in imports of the same product from different WTO Members being treated 
differently in anti-dumping investigations.  The Panel reasoned that imports from NMEs may be 
treated differently from imports of like products from market economy countries only to the extent 
that a relevant provision of the covered agreem ents allows for such differential treatment.539  T h e  
Panel found that the European Union had not demonstrated that any provision of the Anti-Dumping Agreement , or any other provision of the WTO covered agreements, allows for the 
specific different treatment of imports from NMEs that  is provided for in Article 9(5) of the Basic AD 
Regulation.  Moreover, the Panel considered that the European Union had not established a sufficient 
factual basis to conclude that there was a relevant  difference in the nature of the imports concerned 
from NMEs as compared to those from other WTO Memb ers, and stated that this argument by the 
European Union was merely an assumption.
540 
387. Regarding Article I:1 of the GATT 1994,  the Panel therefore concluded: 
[I]t is clear that the application of Article 9(5) will, in certain 
situations, result in imports of the same product from different WTO 
Members being treated differently in anti-dumping investigations 
conducted by the European Union.  Thus, we consider that 
Article 9(5) violates the MFN obligation of Article I:1 of the GATT 1994.
541 
388. The European Union claims that the Panel erre d in the interpretation and the application of 
Article I:1 of the GATT 1994, and act ed inconsistently with Article 11 of the DSU, when it found that 
Article 9(5) of the Basic AD Regulation is inconsis tent with the MFN obligation of Article I:1 of the 
GATT 1994.  The European Union contends that the alleged advantage granted to market economies 
was based on the nature of the suppliers involved,  and not on the product itself, and that this means 
that discrimination between like products originati ng in different countries does not arise in this 
                                                      
539The Panel mentioned the second Ad Note to Article VI:1 of the GATT 1994 and Section 15 of 
China's Accession Protocol as examples of relevant provisions allowing for differential treatment in respect of 
the determination of normal value. (Panel Report, footnote 306 to para. 7.125) 
540Panel Report, paras. 7.124 and 7.125. 
541Panel Report, para. 7.124. WT/DS397/AB/R 
Page 154  
 
  case.
542  The European Union argues that it is entitled to grant different treatment to imports from 
market economies and from NMEs because such imports  are different in nature.  The European Union 
adds that the word ''unconditionally'' in Article I: 1 does not preclude an advantage being subjected to 
conditions as long as this does not result in de facto  discrimination.543 
389. China responds that the Panel properly found that Article 9(5) of the Basic AD Regulation is 
inconsistent with Article I:1 of the GATT 1994, b ecause the different treatment that the European 
Union provides in its anti-dumping investiga tions to imports from NME and non-NME WTO 
Members "cannot be justified on the ground that  the origin of the product somehow reflects a 
difference in nature".544  China also submits that the Panel did not fail to comply with Article 11 of the 
DSU and that it did not err in finding that the Anti-Dumping Agreement  does not allow for the 
different treatment of imports from NMEs provided for in Article 9(5) of the Basic AD Regulation. 
390. Article I:1 of the GATT 1994 requires that: 
[w]ith respect to customs duties a nd charges of any kind imposed on 
or in connection with importati on or exportation or imposed on the 
international transfer of payments  for imports or exports, and with 
respect to the method of levying such duties and charges, and with 
respect to all rules and formalities in connection with importation and exportation, and with respect to all ma tters referred to in paragraphs 2 
and 4 of Article III, any advantage, favour, privilege or immunity granted by any Member to any product originating in or destined for 
any other country shall be accorded  immediately and unconditionally 
to the like product originating in or destined for the territories of all other Members. 
391. Article VI:2 of the GATT 1994 states that: 
[i]n order to offset or prevent dumping, a Member may levy on any 
dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this Article, the margin of dumping is the price difference determined 
in accordance with the provisions of paragraph 1. 
                                                      
542European Union's appellant's submission, para. 213. 
543European Union's appellant's submission, para. 212. 
544China's appellee's submission, para. 330.  WT/DS397/AB/R 
 Page 155 
 
 
  392. We observe that Article VI of the GATT 1994 permits the imposition of anti-dumping duties, 
which may otherwise be inconsistent with othe r provisions of the GATT 1994, such as Article I:1.545  
Therefore, in our view, a preliminary question to  be addressed before determining whether an anti-
dumping duty has been imposed inconsistently with Article I:1 of the GATT 1994 is whether the anti-
dumping duty had been imposed consisten tly with Article VI of the GATT 1994. 
393. In Brazil – Desiccated Coconut , the Appellate Body upheld the panel's finding that the 
applicability of Article VI  of the GATT 1994 to a countervailing duty  investigation also determined the 
applicability of Articles I and II of the GATT 1994.  The panel had found that Article VI of the 
GATT 1994 did not apply to a c ountervailing duty measure that was the result of an investigation 
initiated prior  to 1 January 1995.  Moreover, the panel had f ound that, if Article VI of GATT 1994 
does not constitute applicable law, claims under Articles I and II, which derive from claims of 
inconsistency with Article VI of the GATT 1994, cannot succeed.546 
394. Article 9(5) of the Basic AD Regulation re gulates the conditions under which an anti-
dumping duty is to be imposed by the European Uni on.  In its panel request, however, China did not 
raise a claim under Article VI of the GATT 1994 in respect of Article 9(5) of the Basic AD 
Regulation.  Thus, it was not argued before the Pa nel and it is not disputed before us whether 
Article 9(5) of the Basic AD Regulation is applied consistently with the provisions of Article VI of 
the GATT 1994.  This has significant implications fo r the question of whether Article 9(5) of the 
Basic AD Regulation is inconsistent with Article I:1 of the GATT 1994. 
395. The Panel, however, found that Article 9(5) of  the Basic AD Regulation is inconsistent with 
Article I:1 of the GATT 1994, without addressing the pr eliminary question that arises in this case of 
whether Article 9(5) of the Basic AD Regulation w as consistent with Article VI of the GATT 1994.  
The Panel did not engage with the implications of the absence of a claim under Article VI of the 
GATT 1994 for a claim under Article I:1 of the GATT 1994.  Nor did the Panel consider the 
relationship between Article VI of th e GATT 1994 and the provisions of the Anti-Dumping 
Agreement , which according to Article 1 of the Anti-Dumping Agreement  "govern the application of 
                                                      
545This relationship is also reflected in Article  II:2(b) of the GATT 19 94, which states that: 
Nothing in this Article shall prevent any Member from imposing at any time 
on the importation of any product:   … 
(b) any anti-dumping or countervaili ng duty applied consistently with 
the provisions of Article VI. 
546Appellate Body Report, Brazil – Desiccated Coconut , p. 21, DSR 1997:I, 167, at 185;  Panel Report, 
Brazil – Desiccated Coconut , paras. 280 and 281. WT/DS397/AB/R 
Page 156  
 
  Article VI of the GATT 1994".
547  We thus consider that the Pane l's finding under Article I:1 of the 
GATT 1994 lacks an essential step in the sequence of its  legal analysis, that is, the determination of 
whether and under what circumstances an anti-dum ping measure that is inconsistent with the 
Anti-Dumping Agreement  may be reviewed under Article I:1 of the GATT 1994 in the absence of a 
review under Article VI of the GATT 1994. 
396. As we explained above, China did not claim befo re the Panel that Article 9(5) of the Basic 
AD Regulation is inconsistent with Article VI  of the GATT 1994, nor did the parties present 
arguments in this dispute in respect of th e relationship between the provisions of the Anti-Dumping 
Agreement  and those of Articles VI and I of the GATT 1994.  Thus, we do not consider it appropriate 
to explore further ourselves the implications of the absence of a claim under Article VI of the 
GATT 1994 for a claim under Article I:1 of the GATT 1994. 
397. In addition, we have already upheld the Panel' s findings that Article 9(5) of the Basic AD 
Regulation is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement  and 
we consider that a ruling under Article I:1 of the GATT 1994 is unnecessary for purposes of resolving 
this dispute. 
398. Therefore, for the reasons given above, we d ecline to rule on the Panel's finding that 
Article 9(5) of the Basic AD Regulation is inconsis tent with Article I:1 of the GATT 1994 and declare 
this finding moot and of no legal effect.  We see no  need to address the clai m by the European Union 
that the Panel acted inconsistently with Article 11 of the DSU, because we have declared the Panel's 
finding that Article 9(5) of the Basic AD Regulati on is inconsistent with Article I:1 of the GATT 1994 
moot and of no legal effect. 
G. Article XVI:4 of the WTO Agreement an d Article 18.4 of the Anti-Dumping 
Agreement 
399. Article XVI:4 of the WTO Agreement  requires WTO Members to ensure that their laws, 
regulations, and administrative provisions are co nsistent with the provisions of the covered 
agreements.  Article 18.4 of the Anti-Dumping Agreement  requires each Member to take all necessary 
steps to ensure the conformity of its laws, re gulations, and administrative procedures with the 
                                                      
547Article 1 of the Anti-Dumping Agreement  states that "[t]he following provisions govern the 
application  of Article VI of the GATT 1994 insofar as action is taken under anti-dumping legislation or 
regulations." (emphasis added)  We further note that Article 18.1 of the Anti-Dumping Agreement  states that no 
specific action against dumping "can be taken except in accordance with the provisions of  GATT 1994, as 
interpreted by this Agreement".  The Panel did not analyze the implications of the terms "application" in Article 1 and "as interpreted" in Article 18 of the Anti-Dumping Agreement  with respect to the relationship 
between the obligations in the Anti-Dumping Agreement  and Articles VI and I of the GATT 1994.  WT/DS397/AB/R 
 Page 157 
 
 
  provisions of the Anti-Dumping Agreement .  Having concluded that Article 9(5) of the Basic AD 
Regulation is inconsistent with  Articles 6.10 and 9.2 of the Anti-Dumping Agreement  "as such", the 
Panel also found that: 
… the European Union has acted inconsistently with Article XVI:4 
of the WTO Agreement and Article 18.4 of the [ Anti-Dumping 
Agreement ] by failing to ensure the conformity of its laws, 
regulations and administrative pro cedures with its obligations under 
the relevant Agreements.548 
400. As a consequence of the European Union's contention that the Panel wrongly found that 
Article 9(5) of the Basic AD Regulation is inconsis tent "as such" with Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement , the European Union also requests the Appellate Body to reverse the  Panel's 
findings that the European Union acted in consistently with Article XVI:4 of the WTO Agreement  and 
Article 18.4 of the Anti-Dumping Agreement  by failing to ensure the conformity of its laws, 
regulations, and administrative procedures with its  obligations under the relevant agreements. 
401. We have upheld the Panel's findings that Ar ticle 9(5) of the Basic AD Regulation is 
inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement  "as such".  As a consequence, 
we also uphold the Panel's finding, in paragraph 7. 137 of the Panel Report, that the European Union 
has acted inconsistently with Article XVI:4 of the WTO Agreement  and Article 18.4 of the 
Anti-Dumping Agreement  by failing to ensure the conformity of its laws, regulations, and 
administrative procedures with its oblig ations under the relevant Agreements. 
V. The Panel's Findings Regarding Article 9(5) of the Basic AD Regulation "As Applied" 
in the Fasteners Investigation 
402. The Panel considered that the fact that all th e requests for individual treatment were granted 
to all Chinese producers or exporters that requested such treatment in the underlying investigation did 
not preclude it from considering whether the applicati on of Article 9(5) of the Basic AD Regulation in 
the fasteners investigation was inconsistent with the Anti-Dumping Agreement .  The Panel further 
noted that the very existence of Article 9(5) of the Basic AD Regulation as part of the legal framework that applies to anti-dumping investiga tions conducted by the European Union may have 
discouraged other Chinese producers from coming forward and cooperating and from requesting 
individual treatment in the investigation at issue.
549 
403. Thus, having found that Article 9(5) of th e Basic AD Regulation is inconsistent with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement  "as such", the Panel considered that it was 
                                                      
548Panel Report, para. 7.137. 
549Panel Report, footnote 334 to para. 7.148. WT/DS397/AB/R 
Page 158  
 
  "difficult to see how its application in this inves tigation could be consider ed consistent with the 
obligations of the European Union under the [ Anti-Dumping Agreement ]" and found that "for the 
same reasons, its application in the fasteners investigation was also inconsistent with these 
two provisions".
550 
404. The European Union argues that, since the Panel e rred in finding that Article 9(5) of the Basic 
AD Regulation is inconsistent "as such" with the provisions of the Anti-Dumping Agreement , the 
Appellate Body should also reverse the Panel' s "as applied" findings with respect to the 
determinations made in the fasteners investigation.551  Moreover, the European Union claims that the 
Panel found that Article 9(5) "as such" prevents the result that suppliers from NMEs are entitled to 
obtain from the European Union's compliance with the obligations contained in the Anti-Dumping 
Agreement  and the GATT 1994.  However, in a case wh ere all companies requesting individual 
treatment were granted such treatment, there is no basis for a finding of inconsistency "as applied" 
because the result obtained by these companies w as the same as it would have been had the 
European Union complied with its obligation.  Accord ing to the European Union, for the Panel to say 
that there is a possibility that Article 9(5) affected  participation by Chinese exporters in the fasteners 
investigation and/or the quality and quantity of  information Chinese exporters provided to the 
Commission is pure "speculation", and "not based on evidence".552 
405. China submits that a measure that is found to be "as such" inconsistent with WTO obligations 
will also necessarily be inconsistent "as applied".  China argues that Article 9(5) of the Basic AD 
Regulation not only prevents the result that suppliers from NMEs are entitled to obtain but also 
subjects them to an additional burde n by requiring such exporters to re quest and demonstrate that they 
fulfil the conditions laid down in Article 9(5).553 
406. We observe that in the fasteners investigation the European Union applied Article 9(5) of the 
Basic AD Regulation.  Those Chinese suppliers th at were not granted market economy treatment 
under Article 2(7) of the Basic AD Regulation and requested individual treatment pursuant to 
Article 9(5) obtained it, once they had demonstrated that they fulfilled each and every requirement of 
the IT test.  If Article 9(5) would not condition the granting of individual treatment on the fulfilment 
of the IT test, all exporters from NMEs that are WTO Members would be entitled to individual 
treatment, based on Articles 6.10 and 9.2 of the Anti-Dumping Agreement , regardless of whether they 
qualify for market economy treatment under Article  2(7) or not.  Article 9(5) of the Basic AD 
                                                      
550Panel Report, para. 7.148. 
551European Union's appellant's submission, para. 228. 
552European Union's appellant's submission, para. 231. 
553China's appellee's submission, para. 369.  WT/DS397/AB/R 
 Page 159 
 
 
  Regulation subjects the right of NME exporters to individual treatment to a number of conditions, 
which are not provided for under Articles 6.10 and 9.2 of the Anti-Dumping Agreement as a 
prerequisite for obtaining individual treatment.  The fact that in this investigation all suppliers who 
requested individual treatment under Article 9(5) met the burden of demonstrating that they fulfil all 
the conditions set out in Article 9(5) does not, in  our view, render this specific application of 
Article 9(5) consistent with the Anti-Dumping Agreement .   
407. We also disagree with the argument of the Eur opean Union that there are two categories of 
measures that can be found "as such" inconsisten t:  measures whose application will always produce 
an inconsistent result and "measures where the re sult which is found WTO inconsistent may or may 
not take place in an 'as applied' context depending on the configuration of facts".554  In our view, any 
instance of application of a measure that is "as such" inconsistent with a covered agreement will 
produce an inconsistent result even in a situati on where suppliers succeed in demonstrating the 
conditions of the IT test and qualify ultimately fo r individual treatment.  In other words, granting 
individual treatment without conditioning it on the fulf ilment of the IT test would be consistent "as 
applied", while granting or denying individual treatment  subject to the fulfilment of the IT test and the 
administrative burden it imposes rema in inconsistent "as applied". 
408. Granting individual treatment subject to the fulf ilment of the IT test  would produce a result 
that may be less inconsistent than a complete deni al of individual treatment, but it would nevertheless 
fall short of the requirements in Articles 6.10 and 9.2 of the Anti-Dumping Agreement .  We see a 
difference between the granting of individual treat ment without additional obstacles pursuant to 
Articles 6.10 and 9.2 and the granting of individual tr eatment subject to a showing that the conditions 
of the IT test have been fulfilled.  The existence of  the IT test itself, even where exporters succeed in 
demonstrating that they meet its conditions, places an  additional burden on those exporters who apply 
for individual treatment, and it has a potential impact  on those exporters who may be discouraged by 
the administrative burden from cooperating with th e investigating authority and from requesting 
individual treatment.  The very existence of the IT test adversely affected Ch inese exporters who were 
concerned by the fasteners investigation.  These expor ters bore the burden of demonstrating that they 
were entitled to individual treatment, whereas under the Anti-Dumping Agreement  no such 
demonstration is required, and for this reason alone it is possible that some exporters did not apply for 
individual treatment. 
409. In the light of the above, having upheld the Pane l's findings that Article 9(5) of the Basic AD 
Regulation is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement , we 
                                                      
554European Union's appellant's submission, para. 230. WT/DS397/AB/R 
Page 160  
 
  also uphold the Panel's finding, in paragraph 7.148 of  the Panel Report, that Article 9(5) of the Basic 
AD Regulation is inconsistent w ith Articles 6.10 and 9.2 of the Anti-Dumping Agreement  "as applied" 
in the fasteners investigation. 
VI. China's Other Appeal of the Panel's Findings under Articles 4.1 and 3.1 of the 
Anti-Dumping Agreement 
A. Introduction 
410. We turn now to address China's other appeal of  the Panel's findings that the European Union 
did not act inconsistently with Articles 4.1 and 3.1 of the Anti-Dumping Agreement  with respect to the 
definition of the domestic industry in the fasteners investigation.  We begin our analysis with the 
interpretation of these provisions, in particular th e term "a major proportion" in Article 4.1 of the 
Anti-Dumping Agreement .  We then examine China's allegati on that the Panel erred in rejecting 
China's claim that the domestic industry defined in the fasteners investigation did not include 
producers whose collective output "constitutes a majo r proportion of the total domestic production" 
within the meaning of Article 4.1 of the Anti-Dumping Agreement .  Next, we address China's claims 
that the Panel erred in finding that:  (i) the European  Union did not act inconsistently with Article 3.1 
of the Anti-Dumping Agreement  by making an injury determination on the basis of a sample of 
producers that were not representative of the domestic industry;  and (ii) the European Union did not 
act inconsistently with Ar ticles 4.1 and 3.1 of the Anti-Dumping Agreement  by excluding certain 
producers from the definition of the domestic industry. 
B. Interpretation of Articles 4.1 and 3.1 of the Anti-Dumping Agreement 
411. Article 4.1 of the Anti-Dumping Agreement  provides that the term "domestic industry" must 
be defined as referring to the "domestic producers as a whole  of the like product" or "those of them 
whose collective output of the products constitutes a major proportion  of the total domestic 
production", except in two specific circumstance s that are not relevant in this dispute.555  Article 4.1 
thus juxtaposes two methods for defining the term "d omestic industry".  By us ing the term "a major 
proportion", the second method focuses on the question of how much  production must be represented 
by those producers making up the domestic industr y when the domestic industry is defined as less 
                                                      
555Emphasis added.  Under Article 4.1(i), domestic producers that are relate d to the exporters or 
importers or are themselves importers of the allegedly dumped product may be excluded.  Article 4.1(ii) further provides that the domestic industry may be limited to include only those producers within a particular 
geographic region, if certain criteria are met.  WT/DS397/AB/R 
 Page 161 
 
 
  than the domestic producers as a whole.  In answeri ng this question, Article 4.1 does not stipulate a 
specific proportion for evaluating whether a certain percentage constitutes "a major proportion".556 
412. The absence of a specific proportion does not mean , however, that any percentage, no matter 
how low, could automatically qualify as "a major pr oportion".  Rather, the context in which the term 
"a major proportion" is situated indicates that "a  major proportion" should be properly understood as a 
relatively high proportion of the total domestic produc tion.  Specifically, when read in the light of the 
phrase "the domestic producers as a whole", the term "those of them" in the second method for 
defining the domestic industry clearly refers to  those producers among "domestic producers as a 
whole".  Thus, the collective output of "those" pr oducers must be determined in relation to the 
production of the domestic producers as a whole.  Moreover, the term "a major proportion" is 
immediately followed by the words "of the tota l domestic production".  "A major proportion", 
therefore, should be understood as a proportion defi ned by reference to the total production of 
domestic producers as a whole.  "A major proportion" of such total production will standardly serve 
as a substantial reflection of the total domestic produ ction.  Indeed, the lower the proportion, the more 
sensitive an investigating authority will have to be  to ensure that the proportion used substantially 
reflects the total production of the producers as a whole. 
413. In our view, the above interpretation is conf irmed by the purpose of defining the domestic 
industry under the Anti-Dumping Agreement .  As footnote 9 to Article 3 of the Anti-Dumping 
Agreement  indicates557, the domestic industry forms the basis on which an investigating authority 
makes the determination of whether the dumped import s cause or threaten to ca use material injury to 
the domestic producers.  In this respect, Article 3.1 requires that an injury determination be based on 
"positive evidence".  Pursuant to Article 3.4, su ch "positive evidence" includes relevant economic 
factors and indices collected from the domestic industry, which have a bearing on the state of the industry.  Naturally, the "positive evidence" to be used in an injury determination requires 
wide-ranging information concerning the relevant econom ic factors in order to ensure the accuracy of 
an investigation concerning the st ate of the industry and the injury  it has suffered.  Thus, "a major 
proportion of the total domestic production" should be  determined so as to ensure that the domestic 
                                                      
556One panel has found that "Article 4.1 of the [ Anti-Dumping ] Agreement  does not require Members to 
define the 'domestic industry' in terms of domestic producers representing the majority, or 50+ per cent, of total 
domestic production". (Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.341) 
557Footnote 9 states that: 
Under this Agreement the term "injury" shall, unless otherwise specified, be 
taken to mean material injury to a domestic industry, threat of material 
injury to a domestic industry or material retardation of the establishment of such an industry and shall be interp reted in accordance with the provisions 
of [Article 3]. WT/DS397/AB/R 
Page 162  
 
  industry defined on this basis is capable of providi ng ample data that ensure an accurate injury 
analysis. 
414. Moreover, Article 3.1 requires that a determ ination of injury "involve an objective 
examination" of, inter alia , the impact of the dumped imports on domestic producers.  The Appellate 
Body has found that an "objective examination" in accordance with Article 3.1 "requires that the domestic industry, and the effects of dumped imports, be investigat ed in an unbiased manner, without 
favouring the interests of any interested party, or gr oup of interested parties,  in the investigation".
558  In 
other words, to ensure the accuracy of an injury determination, an investigating authority must not act 
so as to give rise to a material risk of distor tion in defining the domestic industry, for example, by 
excluding a whole category of producers of the like product.  The risk of introducing distortion will not arise when no producers are excluded and th e domestic industry is de fined as "the domestic 
producers as a whole".  Where a domestic industry is defined as those producers whose collective 
output constitutes a major proportion of the total dom estic production, it follows that the higher the 
proportion, the more producers will be included, and the less likely the injury determination 
conducted on this basis would be distorted.  Therefor e, the above interpretation is also consistent with 
the requirement under Article 3.1 that an injury determination be based on an objective examination 
of the impact of the dumped imports on domestic producers. 
415. We recognize that obtaining information rega rding domestic producers may be difficult, 
particularly in special market situations, such as a fragmented industry with numerous producers.  In 
such special cases, the use of "a major proportion"  within the meaning of Article 4.1 provides an 
investigating authority with some flexibility to defi ne the domestic industry in the light of what is 
reasonable and practically possible.  The practical constraint on an authority's ability to obtain information regarding the domestic producers may al so mean that, in such  special cases, what 
constitutes "a major proportion of the total domestic pr oduction" may be lower than what is ordinarily 
permissible in a less fragmented market. 
416. Nonetheless, while the proportion of total produc tion that qualifies as "a major proportion" in 
such a special market situation may be lower than  in a normal case, this does not change the purpose 
of defining the domestic industry, that is, to provide the basis for the injury determination.  As in a 
normal case, the domestic industry defined in such a sp ecial case also must ensure that the subsequent 
injury analysis is based on positive evidence a nd involves an objective examination pursuant to 
Article 3.1 of the Anti-Dumping Agreement .  An injury determination regarding a fragmented industry 
must therefore cover a large enough proportion of to tal domestic production to ensure that a proper 
                                                      
558Appellate Body Report, US – Hot-Rolled Steel , para. 193.  WT/DS397/AB/R 
 Page 163 
 
 
  injury determination can be made pursuant to Article  3.1.  Thus, even if what constitutes "a major 
proportion" may be lower in the light of the practical  constraints on obtaining information in a special 
market situation, an investigating authority bears the obligation to ensure that the way in which it 
defines the domestic industry does not introduce a ma terial risk of skewing the economic data and, 
consequently, distorting its analysis of the state of the industry. 
417. Finally, we turn to examine the interpreta tion advanced by the European Union that 
Article 5.4 of the Anti-Dumping Agreement  provides important contextual guidance concerning the 
interpretation of the term "a major proportion" in Ar ticle 4.1 of that Agreement.  Article 5.4, which 
contains the standing requirement for the initiation of an investigation, provides certain numerical 
benchmarks for evaluating whether a complaint to initiate an anti-dumping investigation has sufficient 
support by domestic producers.  Specifically, Article 5.4 states that an investigation "shall not be 
initiated" unless the application "has been made by or on behalf of the domestic industry ".559  It then 
provides that "[t]he application shall be considered to  have been made 'by or on behalf of the domestic 
industry' if it is supported by those domestic  producers whose collective output constitutes more 
than 50 per cent of the total production of the like product produced by that portion of the domestic 
industry expressing either support or opposition to the application."  Furthermore, "no investigation 
shall be initiated when domestic producers expres sly supporting the application account for less 
than 25 per cent of total production of the like product produced by the domestic industry." 
418. According to the European Union,  it is "permissible to consid er that producers that represent 
25% or more of domestic production can legitimately represent a major proportion of total 
production".560  In our view, however, there is no textua l basis for such a proposition.  Articles 4.1 
and 5.4 concern two different aspects of an anti-dumpi ng investigation.  Article 4.1 defines the whole 
universe of the domestic industry relevant to th e injury determination in an anti-dumping 
investigation.  By contrast, Article 5.4 concerns th e question of whether an application is made "by or 
on behalf of the domestic industry", and requir es a minimum benchmark defined as expressions of 
support from those producers representing at least 25 per cent of the "total production … by the domestic industry ".
561  Therefore, the 25 per cent benchmark under Article 5.4 does not address the 
question of how the entire universe of the domestic industry itself  should be defined.  The 
European Union's recourse to the negotiating history regarding Articles 4.1 and 5.4 of the 
Anti-Dumping Agreement  is also unavailing.  Although the European Union asserts that the 
"discussions on major proportion and standing went hand in hand" during the negotiations, this does 
                                                      
559Emphasis added. 
560European Union's appellee's submission, para. 187. (original emphasis) 
561Emphasis added. WT/DS397/AB/R 
Page 164  
 
  not change the fact that no agreement was reach ed in setting a specific proportion for determining 
what, in abstract, constitutes "a major proportion".
562 
419. In sum, a proper interpretation of the term "a  major proportion" under Article 4.1 requires that 
the domestic industry defined on this basis encomp ass producers whose collective output represents a 
relatively high proportion that substantially reflects the total domestic production.  This ensures that 
the injury determination is based on wide-ranging information regarding domestic producers and is 
not distorted or skewed.  In the special case of a fragmented industry with numerous producers, the 
practical constraints on an authority's ability to ob tain information may mean that what constitutes 
"a major proportion" may be lower than what is or dinarily permissible in a less fragmented industry.  
However, even in such cases, the authority bears the same obligati on to ensure that the process of 
defining the domestic industry does not give rise to a material risk of distortion.  A complainant 
alleging an inconsistency under the second method for defining the domestic industry bears the 
burden to prove its claim and to demonstrate that  the domestic industry definition does not meet the 
standard of "a major proportion".  Nonetheless,  a domestic industry defined on the basis of a 
proportion that is low, or defined through a process that involves active exclusion of certain domestic 
producers, is likely to be more susceptible to a finding of inconsistency u nder Article 4.1 of the 
Anti-Dumping Agreement . 
C. Whether 27 Per Cent of Total Domestic Production in the Fasteners Investigation 
Constitutes "a major proportion" within the Meaning of Article 4.1 of the Anti-Dumping Agreement 
420. China appeals the Panel's finding that China did not establish that the domestic industry 
defined in the fasteners investigation did not include domestic producers whose collective output 
constituted a "major proportion" of  the total domestic production.  According to China, the Panel 
erroneously concluded that the fact that the Commission relied on a presumption that 25 per cent of total domestic production constituted "a major proportion" within the meaning of Article 4.1 of the 
Anti-Dumping Agreement  was insufficient to demonstrate that the definition of the domestic industry 
in this dispute was inconsistent with Article 4.1.  Moreover, China alleges that the Panel erroneously 
concluded that certain specific circumstances in the fasteners investigation, such as the possibility of 
including more producers in the domestic i ndustry definition than were included by the 
                                                      
562European Union's appellee's submission, para. 184.  WT/DS397/AB/R 
 Page 165 
 
 
  Commission563, were not relevant to the examination of whether the domestic industry defined by the 
Commission met the requirement of "a major proportion" under Article 4.1. 
421. We recall that, with regard to the definitio n of the domestic industry in the fasteners 
investigation, recital 114 of the Definitive Regulation provided that: 
[t]he production of the Community producers that supported the 
complaint and fully cooperated in the investigation represents 27,0% 
of the production of the product concerned in the Community.  It is therefore  considered that these companies constitute the Community 
industry within the meaning of Articles 4(1) and 5(4) of the basic 
Regulation .
564 (emphasis added) 
422. As the European Union acknowledges565, in relation to the total domestic production, 
27 per cent is at the lower end of the spectrum.  Indeed, a figure as low as 27 per cent can hardly be 
considered a substantial reflection of the total.  Nonetheless, the European  Union alleges that the 
fasteners industry is "known to be" a fragmented industry with many producers566, and China does not 
dispute this.  The practical constraints on obtaini ng information from domestic producers in such a 
market may mean that what normally would not qualify as "a major proportion" may in these circumstances suffice, provided that the process of  defining the domestic industry does not introduce 
material risks of distortion.  Nonetheless, as furt her discussed below, the Co mmission failed to ensure 
that the domestic industry definition would not introdu ce a material risk of distortion to the injury 
analysis by relying on a minimum benchmark irrele vant to the issue of what constitutes "a major 
proportion", and by excluding certain known produ cers on the basis of a self-selection process among 
the producers. 
423. The evidence on the record shows that, in the fasteners investigation, the Commission applied 
a minimum benchmark of 25 per cent in defining th e domestic industry.  As the European Union 
                                                      
563See China's other appellant's submission, paras. 250-254.  Other specific circumstances alleged by 
China include:  (i) whether the produ cers included in the domestic industry definition were representative of the 
entire EU industry;  and (ii) the fact  that the number of producers included in the domestic industry definition 
(45) was much smaller than the total number of known EU producers (318). (See ibid., paras. 247-249 and 
255-258) 
564Definitive Regulation, supra , footnote 4, recital 114.  
565European Union's responses to questioning at the oral hearing. 
566European Union's appellee's submission, para. 1 91.  See also European Union's second written 
submission to the Panel, para. 122. WT/DS397/AB/R 
Page 166  
 
  explains, Articles 4(1) and 5(4) of the Basic AD Regulation
567, which "link[] the 'major proportion' 
requirement to the objective benchmark of Article 5.4 of the Anti-Dumping Agreement  as a legitimate 
presumption"568, reflect its position that producers that represent 25 per cent or more of domestic 
production represent a major proportion of total pr oduction.  We recall that recital 114 of the 
Definitive Regulation provides that the producers whose output represents 27 per cent of the total 
domestic production constitutes the do mestic industry "within the meaning of Articles 4(1) and 5(4)" 
of the Basic AD Regulation.  This indicates th at the Commission considered that producers 
representing 27 per cent of the total domestic produ ction were sufficient to constitute the domestic 
industry simply because they fulfilled the 25 per cent test set out in Articles 4(1) and 5(4) of the Basic AD Regulation.  The European Union confirms this understanding in stating that it is "permissible to 
consider that producers that represent 25% or more of domestic production can legitimately represent 
a major proportion of total production and … this was the case in the fasteners investigation."
569 
424. We note that China has not challenged Articles 4(1) and 5(4) of the Basic AD Regulation, as 
such, and that the meaning and scope of these prov isions were not examined by the Panel.  These 
provisions are therefore not before us.  Noneth eless, China challenges the application of these 
provisions in the fasteners investigation, arguing  that the Commission was not permitted to apply a 
minimum benchmark, but was required to examine the specific circumstances to determine whether 
the standard of "a major proportion" was met.570 
425. The Definitive Regulation indicates, and the Eu ropean Union confirms, that the Commission 
applied the 25 per cent test under Articles 4(1) an d 5(4) of the Basic AD Regulation in the fasteners 
investigation and concluded that the producer s representing 27 per cent of the total domestic 
production constituted the domestic i ndustry.  However, as explaine d above, we disagree with the 
European Union's position that 25 per cent of tota l domestic production can be presumed to meet the 
requirement of "a major proportion" under Article 4.1 of the Anti-Dumping Agreement .  In our view, 
the 25 per cent benchmark in Article 5.4 of the Anti-Dumping Agreement concerns the issue of 
standing and does not address the question of what c onstitutes "a major proporti on" in Article 4.1.  
Thus, the Commission determined that a proportion as small as 27 per cent met the standard of "a 
                                                      
567Specifically, Article 4(1) of the Basic AD Regulation states that "the term 'Community industry' 
shall be interpreted as referring to the Community producers as a whole of the like products or to those of them 
whose collective output of the products constitutes a major proportion, as defined in Article 5(4) , of the total 
Community production of those products". (Basic AD Regulation, supra , footnote 5, Article 4(1) (emphasis 
added))  Article 5(4) of the Basic AD Regulation, in turn, transcribes the standing requirement provided in 
Article 5.4 of the Anti-Dumping Agreement , including the minimum benchmark of "25% of total production of 
the like product produced by the Community industry". ( Ibid., Article 5(4)) 
568European Union's appellee's submission, para. 186. 
569European Union's appellee's submission, para. 187. (original emphasis)  See also European Union's 
response to Panel Question 32, para. 98. 
570See China's other appellant's submission, paras. 223-243.  WT/DS397/AB/R 
 Page 167 
 
 
  major proportion" simply because it exceeded a benchm ark that was irrelevant to the issue of the 
definition of the domestic industry.  As a result of the application of a benchmark wholly unrelated to 
the proper interpretation of the term "a major proportion", the domestic industry defined in the 
fasteners investigation covered a low proportion of domestic production, which significantly restricted 
the data coverage for conducting an accurate  and undistorted injury determination. 
426. Moreover, as noted above, recital 114 of th e Definitive Regulation defines the domestic 
industry as including "the Community producers that supported the complaint and fully cooperated in 
the investigation".  We note that the issue of whether the domestic industry, as defined, included only those "producers that supported the complaint" is disputed between the parties, and we will address 
that issue in the next subsection.  It is not disputed, however, that the Commission limited the definition of the domestic industry to those producers who "fully cooperated in the investigation".  In 
this respect, the Definitive Regulation provides that: 
… in view of the large number of producers, sampling of the 
domestic industry was proposed. ...  In order to enable the Commission to decide whether sampling would be necessary, and if 
so to select a sample, Community pr oducers were requested to make 
themselves known within 15 days from the date of the initiation of the investigation and to provide basic information on their production 
and sales, and the names and activitie s of all their related companies 
involved in the production and/or se lling of the product concerned … 
46 Community producers that produced  the product concerned in the 
Community during the investigation period and expressed a wish to be included in the sample with in the aforesaid period were 
considered as cooperating companies and were taken into account in 
the selection of the sample  ... These Community producers 
represented over 30% of the estimated production in the Community 
in 2006.  These producers are considered to constitute the 
Community industry as mentioned in recital 114 .
571 (emphasis added) 
427. In our view, by defining the domestic industry on the basis of willingness to be included in 
the sample, the Commission's approach impo sed a self-selection process among the domestic 
producers that introduced a material risk of distortion.  First, we fail to see the reason why a 
producer's willingness to be included in the sample  should affect its eligibility to be included in the 
domestic industry , which is a universe of producers that is by definition wider than the sample.  As 
China argues on appeal, the Commission's approach  "confuses two different steps", because the 
                                                      
571Panel Report, para. 7.212 (quoting Definitive Regulation, supra , footnote 4, recitals 23-25).  As 
noted above, one producer among the 46 cooperating producers was later found not to be cooperating and was dropped from the definition of the domestic industry, reducing the proportion of the total domestic production 
represented by the domestic industry to 27 per cent. WT/DS397/AB/R 
Page 168  
 
  domestic industry should be define d first, before a sample may be selected from the producers 
included in the domestic industry.
572 
428. We note that the Panel expressed "sympathy for the European Union's view that producers 
who do not support the complaint are not likely to  cooperate, and thus cannot effectively be 
considered as part of the dom estic industry unless they specifically come forward and agree to 
participate in the investigation."573  However, the evidence on th e record shows more producers 
"specifically [came] forward"574 than were ultimately included in th e domestic industry definition.  As 
the European Union explained before the Pane l, the Commission contacted 318 known producers 
requesting certain basic information, and 70 companies responded by providing the requested 
information within the 15-day deadline, including information on their production and sales.575  Thus, 
as China submits, the Commission identified, and ob tained information from, more producers than 
those it ultimately included in the domestic industry definition.576 
429. According to the European Union's explan ation, the Commission excluded 25 of these 
70 producers from the domestic industry definiti on for various reasons, one of which was the 
producers' expressed unwillingness to be part of the sample.577  However, as noted above, the sample 
of domestic producers is a smaller universe than the domestic industry, and the unwillingness to be 
part of the sample should not affect whether a producer  should be part of the domestic industry.  This 
is confirmed by the relevant facts in the fast eners investigation.  Specifically, the Commission 
                                                      
572China's other appellant's submission, para. 163. 
573Panel Report, para. 7.215.  Although we also r ecognize the potential difficulty in obtaining 
information from non-cooperating companies, we note that the Commission was not entirely without any ability to solicit information.  Article 6(3) of the Basic AD Regulation, for instance, provides that "[t]he Commission 
may request Member States to supply information, and Member States shall take whatever steps are necessary in 
order to give effect to such requests."  Article 6(4) further provides that "[t]he Commission may request 
Member States to carry out all necessary checks and inspections, particularly amongst importers, traders and 
Community producers, and to carry out investigations in third countries, provided that the firms concerned give their consent and that the government of the country in question has been officially notified and raises no 
objection." 
574Panel Report, para. 7.215. 
575Upon the Panel's request, the European Union provid ed the list of the 70 EU producers, including the 
names of the related companies involved in the production and/or selling of th e product concerned. (See List of 
"Sampling Form for Community Producers" for inspection by interested parties (Panel Exhibit EU-19)) 
576China alleges on appeal that 114 producers, whose output represented 45 per cent of total domestic 
production, came forward and provided relevant information.  China also alleges that the Commission could 
have included these 114 producers in the domestic indust ry definition. (See China's other appellant's submission, 
paras. 253 and 254)  This is a factual issue disputed between the parties and on which we make no finding.  
Section VI.E of this Report contains our detailed analysis of the participants' dispute on appeal concerning 
certain factual issues before the Panel. 
577The European Union explained before the Panel that the Commission disregarded 25 of the 
70 producers who responded because they:  (i) did not produce the product concerned;  (ii) did not wish to be 
included in the sample;  or (iii) refused to provide, or did not send, an open version of their reply. (See European Union's response to Panel Question 31, para. 93)  We found no evidence on the record regarding how many of 
these producers were excluded for the sole reason th at they were unwilling to be included in the sample.  WT/DS397/AB/R 
 Page 169 
 
 
  selected six producers as part of the sample, obtained relevant information from them, and verified the 
information on their premises.578  The Commission then used the information obtained from the 
sampled producers for its analysis of the "microeconom ic" injury factors, but conducted its analysis of 
the "macroeconomic" injury factors on the basis of  information obtained from all of the 45 producers 
included in the domestic industry definition.579  Thus, by including only those willing to be part of the 
sample  in the domestic industry definition, the Co mmission's approach shrank the universe of 
producers whose data could have been used for part of  the injury determination.  Even though, due to 
the fragmented nature of the fasteners industry, th e practical constraints on obtaining information may 
justify the inclusion of a smaller proportion of  domestic production in the domestic industry 
definition, the Commission's approach in excluding those who provided relevant  information but were 
unwilling to be part of the sample was unrelated to, and cannot be justified by, such practical 
constraints. 
430. In sum, in the fasteners inves tigation, the collective output of those producers included in the 
domestic industry definition, which accounted fo r 27 per cent of the total domestic production, 
represented a low proportion in relation to the total.  The fragmented nature of the fasteners industry, 
however, might have permitted such a low proporti on due to the impracticality of obtaining more 
information, provided that the process with which the Commission defined the industry did not give 
rise to a material risk of distortion.  Yet, we  note that the Commission ap plied a minimum benchmark 
of 25 per cent in defining what constituted "a ma jor proportion of total domestic production", even 
though this benchmark does not address the standard of "a major proportion" or the practicality of 
achieving a higher proportion.  Moreover, by limiti ng the domestic industry definition to those 
producers willing to be part of the sample, the Co mmission excluded producers that provided relevant 
information.  In so doing, the Commission reduced th e data coverage that coul d have served as a basis 
for its injury analysis and introduced  a material risk of distorting the injury determination.  Therefore, 
we consider that the Panel erred in finding that "t he European Union did not act inconsistently with 
Article 4.1 of the [ Anti-Dumping Agreement ] in defining a domestic industry comprising producers 
accounting for 27 per cent of total estimated EU production of fasteners."580 
                                                      
578See Definitive Regulation, supra , footnote 4, recitals 27, 28, 36, and 37. 
579The "microeconomic" factors were stocks, prof itability and cash flow, investment, return on 
investments, ability to raise capital, and wages.  Th e "macroeconomic" factors were production, production 
capacity, capacity utilisation, sales, market share, average prices, employment, and productivity. (See Panel 
Report, para. 7.385) 
580Panel Report, para. 7.230. WT/DS397/AB/R 
Page 170  
 
  D. The Consistency of the Sample with Ar ticle 3.1 of the Anti-Dumping Agreement 
431. China alleges that the Panel erred in rejecti ng its claim that the European Union violated 
Article 3.1 of the Anti-Dumping Agreement  because the Commission made an injury determination 
with respect to a sample of producers that was not representative.
581  China argued before the Panel 
that, even assuming that the domestic industry was correctly defined, the sample selected by the 
Commission for purposes of the injury determina tion was inconsistent w ith Article 3.1 of the 
Anti-Dumping Agreement  because it was not representative of th e domestic industry.  According to 
China, the sample was selected on the sole basis of production vo lume of the like product rather than 
on the basis of a statistically valid sample.582  China also argued that the Commission could have 
carried out the examination of all injury factors with respect to the entire domestic industry it had 
defined, or at least with respect to more producers than those included in the sample. 583 
432. The Panel rejected these arguments.  The Panel found that, "in the absence of any arguments 
concerning relevant factors either ignored or dismis sed by the investigating authority, and given that 
the sample selected does appear to  include producers whose production is representative of that of the 
industry defined in the investigation, … China has not  demonstrated that the sample selected is not 
representative of the domestic industry solely because it was selected on the basis of volume of 
production."584  Moreover, the Panel stated that it " cannot accept the contention that only a 
statistically valid sample will be sufficien tly representative for purposes of an injury 
determination".585  The Panel also found that the fact th at the Commission examined certain injury 
factors with respect to the entire domestic industry did not, as China contended, demonstrate that the 
Commission could have carried out its examination of  all injury factors with respect to the entire 
domestic industry it had defined, or  could have at least included more producers in the sample.  On 
appeal, China claims that the Panel erred in its in terpretation and application of Article 3.1 of the 
Anti-Dumping Agreement  in reaching these findings.586 
433. As a preliminary matter, we note the European Union's assertion that China's appeal concerns 
a claim that was not included in China's panel re quest and therefore is not properly before the 
Appellate Body.587  According to the European Union, China' s claim that the European Union violated 
Article 3.1 of the Anti-Dumping Agreement  by failing to use a sampling technique that guarantees that 
                                                      
581China's other appellant's submission, paras. 267 and 278. 
582See Panel Report, para. 7.237. 
583See Panel Report, para. 7.240. 
584Panel Report, para. 7.238. 
585Panel Report, para. 7.239. 
586See China's other appellant's submission, para. 267. 
587European Union's appellee's submission, para. 213.  WT/DS397/AB/R 
 Page 171 
 
 
  the sample is sufficiently representative of the dom estic industry was "suddenly" raised at the second 
substantive meeting before the Panel and constitutes a new claim not included in the request for 
consultations or for Panel establishment.588 
434. In its panel request, China claimed that the European Union violated Article 3.1 of the 
Anti-Dumping Agreement  by conducting the injury determination on the basis of a sample of 
producers accounting for only 17.5 per cent of the total domestic production.589  China's claim in its 
panel request thus alerted the European Union to th e fact that China consid ered that the sample was 
deficient for conducting a proper injury analysis, at l east in terms of the volume of production.  Thus, 
like the Panel, we consider that China merely de veloped a new argument in support of its claim under 
Article 3.1 of the Anti-Dumping Agreement  when alleging that the selected sample was also not 
representative of the domestic industry.  Therefore,  we agree with the Panel's finding that China's 
argument did not constitute an entirely new claim, as alleged by the European Union, but was rather a 
newly developed argument in support of China's cl aim that the European Union "failed to make a 
determination of injury with respect to the rele vant domestic industry, in part because the sample 
included producers accounting for only 17.5 per cent of domestic production".590 
435. Turning to the substance of China's claims, we note that the Anti-Dumping Agreement  is 
silent on the issue of whether sampling may be used  for purposes of the injury determination.  The 
Agreement thus does not prevent an authority from using samples to determine injury, and China does 
not contest this view.591  In the fasteners investigation, the Commission selected a sample 
comprising six producers, whose output accounted fo r approximately 65 per cent of the production of 
the 45 domestic producers defined by the Commissi on as the domestic industry.  The Commission 
chose these producers on the basis of their produ ction volumes, "so as to achieve the largest 
representative volume of production of the like pr oduct produced in the Community which could 
reasonably be investigated within the time available".592  China submits that a sample that is selected 
merely on the basis of the "largest volume that can reasonably be investigated" is not appropriate to 
satisfy the requirement under Article 3.1 of the Anti-Dumping Agreement  that an injury determination 
involve an objective examination of the effects of  the dumped imports, because such a sample is not 
                                                      
588European Union's appellee's submission, para. 214.  The European Union raised the same objection 
before the Panel. (See Panel Report, footnote 509 to para. 7.237) 
589WT/DS397/3, para. (ii)(k)(iv). 
590Panel Report, footnote 509 to para. 7.237. 
591See Panel Report, para. 7.239. 
592Panel Report, para. 7.216 (quoting Definitive Regulation, supra , footnote 4, recital 27). WT/DS397/AB/R 
Page 172  
 
  representative of the domestic industry.
593  Rather, China argues, other methods, such as a statistically 
valid sample, should be used. 
436. We note that, because the Anti-Dumping Agreement  does not specify whether sampling is 
allowed for purposes of an injury determination,  it also does not contain guidance on how sampling 
should be conducted.  Thus, we see no basis for China's argument that a sample selected on the basis 
of the largest volume that can reasonably be invest igated, rather than a statistically valid sample, 
necessarily means that an injury determination conduct ed on this basis is inconsistent with Article 3.1 
of the Anti-Dumping Agreement .  Although we do not disagree with the view that a sample must be 
properly representative of the domestic industry define d by the investigating authority, we disagree 
with China's contention that the only way to ensu re representativeness is through a statistically valid 
sample.  In our view, as long as the domestic industry is defined consistently with the Anti-Dumping 
Agreement , and that the sample selected is representative of the domestic industry, an investigating 
authority has discretion in deciding the method with which it selects a sample.  A statistically valid 
sample is a proper way to ensure the representativeness of the sample.  Yet, the Anti-Dumping 
Agreement  imposes no obligation on an investigating author ity always to resort to statistically valid 
samples. 
437. China further argues that, as it demonstrated  to the Panel, the Commission conducted its 
analysis of the "macroeconomic" injury factor s on the basis of the information from all of 
the 45 producers included in the domestic industry de finition.  China therefore asserts that, if the 
Commission was in a position to analyze the macroe conomic injury factors for the domestic industry 
as defined, it could also have analyzed the "mic roeconomic" injury factors for the domestic industry 
as defined rather than only for the sampled domestic  producers.  However, as the Panel correctly 
found, China has not provided any arguments or evidence to substantiate its assertion.594 
438. On this basis, we decline to uphold China's claims that the Panel erred in rejecting the 
contention that only a statistically valid sample w ould be sufficiently representative of the domestic 
industry, and in finding that China had not demons trated that the Commission could have carried out 
its entire injury examination for the domestic industr y it had defined, or coul d have at least included 
more producers in the sample.  We note that China' s above claims concern the issue of whether the 
sample itself  selected in the investigation was consistent with Article 3.1 of the Anti-Dumping 
Agreement .  In declining to uphold China's claim, ther efore, our finding is limited to the issue of 
                                                      
593China's other appellant's submission, para. 271. 
594Moreover, we note that China has not appealed the Panel's finding that the European Union did not 
act inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement  by basing its examination of 
"microeconomic" injury factors on the sampled producers. (See Panel Report, para. 7.395)  WT/DS397/AB/R 
 Page 173 
 
 
  whether the sample  was inconsistent with Article 3.1 of the Anti-Dumping Agreement , and does not 
address the issue of whether the domestic industry defined by the Commission  in the fasteners 
investigation was consiste nt with this provision. 
E. Exclusion of Certain Producers 
1. The Exclusion of Producers Who Did Not Support the Complaint 
439. China claims that, in finding that the Eur opean Union did not act inconsistently with 
Article 4.1 of the Anti-Dumping Agreement , the Panel failed to conduct an objective assessment of the 
facts, as required by Article 11 of the DSU and Article 17.6595 of the Anti-Dumping Agreement , in 
finding that the European Union did not exclud e from the definition of domestic industry those 
producers who did not support the complaint lodged against imports of fasteners from China.  
Specifically, China claims that the Panel:  (i) "disregarded"596 certain evidence submitted by China, 
that is, the Information Document597 issued by the Commission during the investigation, and a letter 
sent by the Commission;  (ii) accepted an "unsubstantiated"598 factual assertion by the 
European Union that at least one producer include d in the domestic industry definition did not support 
the investigation;  and (iii) drew an in correct inference from that factual assertion. 
440. Article 11 of the DSU states, in relevant part, that: 
… a panel should make an objective assessment of the matter before 
it, including an objective assessment of the facts of the case and the applicability of and conformity with  the relevant covered agreements, 
and make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements. 
441. Pursuant to Article 11 of the DSU, a panel, as a trier of facts, must base its findings on a 
sufficient evidentiary basis on the record
599, may not apply a double standard of proof600, and its 
                                                      
595China did not provide any arguments specifically regarding Article 17.6 of the Anti-Dumping 
Agreement  in support of its claim under Article 4.1 of that Agreement.  Moreover, we recall that the Appellate 
Body has found that "it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective  'assessment of the facts of the matter'." (Appellate Body Report, US – Hot Rolled Steel , para. 55 
(original emphasis))  In the light of these findings, and the absence of arguments by China concerning 
Article 17.6 of the Anti-Dumping Agreement , we do not separately address, in our analysis, China's claim under 
this provision. 
596China's other appellant's submission, p. 47, heading (F). 
597European Commission, Anti-dumping proceeding co ncerning imports of certain iron or steel 
fasteners originating in the People's Republic of Chin a, Non-imposition of provisio nal anti-dumping measures, 
4 August 2008 (Panel Exhibit CHN-17). 
598China's other appellant's submission, p. 38, heading (D). 
599See Appellate Body Report, US – Continued Zeroing , para. 338. 
600See Appellate Body Report, Korea – Dairy , para. 137. WT/DS397/AB/R 
Page 174  
 
  treatment of the evidence mu st not "lack even-handedness".
601  Moreover, the duty to make an 
objective assessment of the facts of the case "requir es a panel to consider evidence before it in its 
totality, which includes consideration of s ubmitted evidence in relation to other evidence"602, and a 
panel should not disregard evidence that is relevant to the case of one of the parties.603  The Appellate 
Body has also clarified, however, that a panel is "entitled, in the exercise of its discretion, to 
determine that certain elements of evidence should be accorded more weight than other elements".604  
In doing so, a panel "is not required to discuss, in its report, each and every piece of evidence."605  
Moreover, "in view of the distinction between the re spective roles of the Appe llate Body and panels", 
the Appellate Body will not "interfere light ly" with the panel's fact-finding authority606, and "cannot 
base a finding of inconsistency under Article 11 simply  on the conclusion that [it] might have reached 
a different factual finding from the one the panel reached".607 
442. Thus, not every error allegedly committed by a panel amounts to a violation of Article 11 of 
the DSU.  It is incumbent on a participant rais ing a claim under Article 11 on appeal to explain why 
the alleged error meets  the standard of review under that provisi on.  An attempt to make every error of 
a panel a violation of Article 11 of the DSU is an appr oach that is inconsistent with the scope of this 
provision.  In particular, when alleging that a pane l ignored a piece of evidence, the mere fact that a 
panel did not explicitly refer to that evidence in its reasoning is insufficient to support a claim of violation under Article 11.  Rather, a participant must  explain why such evidence is so material to its 
case that the panel's failure explicitly to address a nd rely upon the evidence has a bearing on the 
objectivity of the panel's factual assessment.  It is  also unacceptable for a pa rticipant effectively to 
recast its arguments before the panel under the guise of an Article 11 claim.  Instead, a participant 
must identify specific errors regarding the objectivity of the panel's assessment.  Finally, a claim that a 
panel failed to comply with its duties under Article  11 of the DSU must stand by itself and should not 
be made merely as a subsidiary argument or claim in support of a claim that the panel failed to apply 
correctly a provision of the covered agreements.
608  With these considerations in mind, we turn to 
review China's appeal against the Panel's finding regarding the alleged exclusion of certain producers 
from the definition of the domestic industry. 
                                                      
601Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 292. 
602Appellate Body Report, US – Continued Zeroing , para. 331. 
603Appellate Body Reports, US/Canada – Continued Suspension , paras. 553 and 615. 
604Appellate Body Report, EC – Asbestos , para. 161. 
605Appellate Body Report, Brazil – Retreaded Tyres , para. 202. 
606See Appellate Body Report, US – Wheat Gluten , para. 151;  Appellate Body Report, EC – Sardines , 
para. 299;  and Appellate Body Report, US – Carbon Steel , para. 142. 
607Appellate Body Report, US – Wheat Gluten , para. 151. 
608See Appellate Body Report, US – Steel Safeguards , para. 498;  and Appellate Body Report, Chile – 
Price Band System (Article 21.5 – Argentina) , para. 238.  WT/DS397/AB/R 
 Page 175 
 
 
  443. The Panel noted the European Union's explan ation that, at the time of initiation, the 
Commission sent sampling forms to 318 EU producer s of fasteners, requesting them to provide 
certain information within 15 days, and to indicate whether they would be willing to be included in 
the sample.609  The Panel also noted that the sampling forms do not contain any questions concerning 
whether the producers supported or opposed the application.610  On the basis of the sampling forms 
received, the Commission defined the domestic industry in the fasteners investigation as 
including 45 EU producers, representing 27 per cent of the total EU production, all of whom 
responded to the request for information within the 15-day deadline and indicated that they would be 
willing to be part of the sample.611  According to recital 114 of  the Definitive Regulation, these 
EU producers "supported the complaint and fully cooperated in the investigation".612  T h e  
European Union explained that, despite the stipulati on in recital 114, the issue of support was in fact 
only relevant to the determination of whether the complaint for the initiation of the fasteners 
investigation had met the standing requirement.  The sampling forms sent for purposes of defining the 
domestic industry did not concern the issue of st anding.  Rather, they concerned the issue of 
cooperation, that is, whether a producer woul d be willing to be part of the sample.613 
444. In the Panel's view, "by using the term 'p roducers that supported the complaint'", the 
Definitive Regulation "suggest[ed]" that only pro ducers expressing support for the complaint were 
included in the domestic industry.614  Notwithstanding recital 114 of the Definitive Regulation, the 
Panel did not immediately reach a finding that produc ers not supporting the complaint were excluded.  
Rather, the Panel went on to review several other pieces of evidence as well as the parties' relevant 
arguments.  The Panel noted China's contention that  the Commission was aware of the positions of 
the EU producers with regard to the investigati on and defined the domestic industry on the basis of 
the producers' support for the investigation.  Accord ing to China, the Information Document, sent to 
the parties at the time the Commission decided not to issue a provisional measure615, indicates that, of 
the 114 domestic producers who came forward with re levant information, 86, representing 36 per cent 
                                                      
609Panel Report, para. 7.213 (referring to European Union's response to Panel Question 88, para. 17). 
610Panel Report, para. 7.213 (referring to Non-conf idential Sampling Form of Agrati (Panel Exhibit 
EU-30) and Non-confidential Sampling Form of  Fontana Luigi (Panel Exhibit EU-31)). 
611Panel Report, paras. 7.212 (referring to Definitive Regulation, supra , footnote 4, recitals 22-25) 
and 7.216. 
612Panel Report, para. 7.212 (quoting Definitive Regulation, supra , footnote 4, recital 114). 
613See European Union's response to Panel Question 31, para. 97;  and European Union's response to 
Panel Question 89, para. 18. 
614Panel Report, para. 7.214 (referring to European Union's response to Panel Question 30, para. 88). 
615Definitive Regulation, supra , footnote 4, recital 5;  Information Document , supra , footnote 81. WT/DS397/AB/R 
Page 176  
 
  of estimated EU production, supported the compla int, while 25, accounting for 9 per cent of EU 
production, opposed the complaint, and three did not express an opinion.
616 
445. The Panel did not rely on the Information Document, but accepted the European Union's 
contention that the Information Document was "a working document reflecting progress in the investigation to that point, with no legal status in  EU law, which was made available to the parties 
despite there being no obligation to do so, and is not the measure before us".
617  Therefore, the Panel 
"[did] not consider the representations in the In formation Document as constituting part of the 
measure which [it] must evaluate."618  Moreover, the Panel noted the European Union's explanations 
that: 
… based on arguments made by Chinese exporters, it continued to 
consider the question of standing after the initiation, that this continued examination confused the question of the definition of the 
domestic industry, and that the "unfortunate standard formulation" in 
the Definitive Regulation (referring to the use of the term "producers 
that supported the complaint" w ith respect to the domestic industry) , 
did not affect the definition of the domestic industry, with respect to 
which no distinction was made betw een producers who supported the 
complaint and those that did not.
619 (emphasis added; footnotes 
omitted) 
446. The European Union further explained before th e Panel that revisiting the issue of standing 
was a "mistake" because it caused "confusion"620, as demonstrated by certain inaccuracies in the 
Information Document.  Specifically, the Europ ean Union submitted that 70 companies (rather 
than 114 companies indicated in the Information Document) came forward after initiation and 
provided the information requested in the No tice of Initiation within the 15-day deadline.621  Only 46 
of these 70 producers were considered as cooperati ng and were included in the domestic industry 
definition, as confirmed by recital 25 of the Definitive Regulation.622  In making this determination, 
the issue of support was not considered by the Co mmission.  However, as a result of the parallel 
processes on the determination of the domestic in dustry definition and on the determination of 
                                                      
616Information Document, supra , footnote 81, pp. 5-6. 
617Panel Report, para. 7.214 (referring to European Union's response to Panel Question 30, para. 88). 
618Panel Report, para. 7.214. 
619Panel Report, para. 7.214 (referring to European Un ion's response to Panel Question 89, para. 18;  
and the European Union's response to Panel Question 34, para. 105).  
620Panel Report, footnote 357 to para. 7.170 (quoting European Union's response to Panel Question 31). 
621Upon the Panel's request, the European Union provid ed the list of the 70 EU producers, including the 
names of the related companies involved in the production and/or selling of th e product concerned. (See List of 
"Sampling Form for Community Producers" for inspection by interested parties (Panel Exhibit EU-19)) 
622European Union's response to Panel Question 31, paras. 92-94.  As noted above, one producer 
among the 46 cooperating producers was later found not to be cooperating and was dropped from the definition 
of the domestic industry. (See supra , footnote 571)  WT/DS397/AB/R 
 Page 177 
 
 
  standing, all of the companies that submitted inform ation, before and after the 15-day deadline, were 
"wrongly grouped together in the 114 companies that the Information [D]ocument refers to".623 
447. On appeal, China alleges that the Panel vi olated Article 11 of the DSU because it 
"disregarded and ignored evidence submitted by Ch ina", including the Information Document, even 
though such evidence demonstrated that the Commission excluded from the domestic industry all 
producers who did not support the complaint.624  China submits that, although the Information 
Document did not constitute part of the measure at issue, it was nonetheless a piece of evidence and 
"plainly relevant" for purposes of examining the i ssue of the definition of the domestic industry.625 
448. We have sympathy for China's argument that whether the Information Document could be 
taken into account as a piece of relevant evidence shoul d not depend on its legal status under EU law.  
Although this document is not part of the measure at issue as a document issued by the Commission 
during the investigation, it could nonetheless shed light  on aspects of the investigation.  At the same 
time, we note that the Panel did pose certain qu estions to the European Union concerning the 
Information Document626, and therefore did not simply disregard or ignore the evidence submitted by 
China.  Moreover, the European Union's explan ation regarding the "confused" and "parallel" 
processes between the determination of the domest ic industry definition and the determination of 
standing cast doubt on the reliability of the representa tions regarding the domestic industry contained 
in the Information Document.  We do not, therefore,  consider that the Panel exceeded its margin of 
discretion under Article 11 of the DSU in deciding to attribute less weight than China did to the 
Information Document in reaching its finding. 
449. China claims that the Panel also disregarded a letter sent by the Commission to two Chinese 
exporters in response to their request for clarif ication regarding certain production figures contained 
in the Definitive Regulation.627  Specifically, the letter explains that the figure on production volume 
by the domestic industry in recital 128 of the De finitive Regulation corresponds to "the Community 
producers that supported the complaint and fully cooper ated in the investigation".  China asserts that, 
                                                      
623European Union's response to Panel Question 31, para. 97. 
624China's other appellant's submission, p. 47, heading (F). 
625China's other appellant's submission, para. 93. 
626For example, the Panel asked the European Union to clarify whether the number of producers who 
came forward within the 15 -day deadline was 114, as indicated by th e Information Docume nt, and whether the 
number of producers expressing willingness to be included in the sample was 86, as indicated by the 
Information Document, or 46, as indicated in the Definitive Regulation. (See Panel Question 31) 
627Letter from the European Commission dated 18 November 2008 to Van Bael & Bellis in response to 
letter from Van Bael & Bellis dated 12 November 2008 (Panel Exhibit CHN-39). WT/DS397/AB/R 
Page 178  
 
  even though this letter "unambiguously demonstr ates" that only producers supporting the complaint 
were included in the domestic industry
628, the Panel "totally ignored and disregarded"629 this evidence. 
450. The reference in the letter to "the Community  producers that supported the complaint and 
fully cooperated in the investigation" repeats th e same phrase contained in recital 114 of the 
Definitive Regulation.  As discussed above, the Eu ropean Union explained to the Panel that this 
"unfortunate standard formulation" remained in the Definitive Regulation as a result of the confusion 
between the issue of standing and the domestic industry definition.630  Moreover, as the trier of facts, 
"[a] panel enjoys discretion in assessing whether a given piece of evidence is relevant for its 
reasoning, and is not required to discuss, in its report, each and every piece of evidence".631  Given 
that the information in the letter essentially repli cates the information in the Definitive Regulation, 
and in the light of the European Union's explanation regarding the background of such evidence, we 
do not consider that the Panel erred in not explicitly mentioning or relying on this letter in reaching its 
finding. 
451. Finally, China alleges that the Panel err oneously accepted as a fact the unsubstantiated 
statement of the European Union that at least one producer who did not support the complaint was 
included in the domestic industry and in the sample.  According to China, in asserting this fact, the 
European Union was required to present relevant evidence by, for example, providing the list of 
complainants and supporters who had come forward before the initiation.632  Since the 
European Union did not do so, China claims that the Panel failed to make an objective assessment of 
the facts as required by Article 11 of the DSU by merely accepting the European Union's factual 
assertion. 
452. The European Union made the above statement in response to the Panel's question regarding 
whether support for the investigation was used as a criterion in determining the definition of the domestic industry.  The European Union maintained that support was not used as a criterion, and 
named a producer included in the sample who "had  not supported the complaint", because it "was not 
a complainant, nor a supporter of the complaint" and "had remained silent at the pre-initiation 
phase".
633  The Panel, on the basis of this explanation by the European Union, found that "the fact that 
at least one producer who did not affirmatively state support for the complaint was included in the 
domestic industry" "demonstrated" that the Co mmission did not exclude producers not supporting the 
                                                      
628China's other appellant's submission, para. 98. 
629China's other appellant's submission, para. 99. 
630Panel Report, para. 7.214 (quoting European Union's response to Panel Question 89, para. 18). 
631Appellate Body Report, Brazil – Retreaded Tyres , para. 202. 
632China's other appellant's submission, para. 65. 
633European Union's response to Panel Question 89, para. 19.  WT/DS397/AB/R 
 Page 179 
 
 
  complaint from the domestic industry.634  We note that, before the initiation of the investigation, the 
Commission sent forms to all producers listed in the complaint brought by certain EU producers 
against imports of fasteners from China, so as to  verify whether they supported or opposed the 
complaint (the "standing forms").635  On appeal, the European Uni on clarifies that the producer it 
referred to before the Panel had not returned the standing form, and that the Commission was simply 
not aware of whether that producer supported, op posed, or was neutral to, the investigation on 
fasteners from China.  Thus, in our view, there is  evidence that the Commission had no knowledge of 
this particular producer's position regarding the complaint. 
453. Moreover, we note that, subsequent to the initia tion of the investigation, this producer was 
sent a sampling form and returned the form within the 15-day deadline.  It is noteworthy that the 
sampling forms sent upon initiation did not contain an y questions relating to support for or opposition 
to the complaint, and that th e sampling forms were sent to all EU fasteners producers known to the 
Commission when the investigation was initia ted.  This evidence lends support to the 
European Union's contention that the only relevant criterion for inclusion in the domestic industry definition was that a producer must return the comp leted form within 15 days and indicate that it 
would be willing to be included in the sample.  In the light of the above analysis, there is no basis to 
interfere with the Panel's assessment of the facts. 
454. In sum, the Panel had before it several pieces of  evidence relating to the issue of whether the 
Commission excluded producers who did not supp ort the complaint from the definition of the 
domestic industry.  There was evidence that s upported China's position that only those producers who 
supported the complaint were included in the domest ic industry definition.  Such evidence included 
recital 114 of the Definitive Regulation and a letter sent by the Commission to the Chinese interested 
parties.  There was also  evidence that indicated that support was not a condition for inclusion in the 
domestic industry definition.  Such evidence include d recitals 22 to 25 of the Definitive Regulation, 
which explain, inter alia , the process of defining the domestic industry and the fact that sampling 
forms were sent to all known producers at the begi nning of the investigation for purposes of defining 
the domestic industry.  As the Panel found, no qu estion was asked in the sampling form regarding 
support for or opposition to the investigation.  In  addition, the Panel accepted, with reason, the 
European Union's factual representation that one producer who did not affirmatively express a 
position regarding the complaint was nonetheless sent the sampling form and included in the domestic 
industry definition.  The Panel ex amined and engaged with the above  evidence, and ultimately came 
                                                      
634Panel Report, para. 7.215. 
635See Extract from the Non-Confidential File:  To Be Integrated in the File for Inspection by Interested 
Parties: Note for the File dated 8 November 2007 and attached documents (Panel Exhibit EU-6). WT/DS397/AB/R 
Page 180  
 
  to the conclusion that China had not demonstrat ed that the Commission excluded producers who did 
not support the complaint from the domestic industry it defined.  Our review of the Panel's reasoning 
does not indicate that the Panel exceeded its margin of discretion in its weighing of various pieces of 
evidence and in drawing its conclusions on this basis.   Although the Panel attributed different weight 
to certain evidence than did China,  this is insufficient to demonstrate that the Panel's assessment of 
the facts was not objective.  Moreover, even if we  might have reached a different conclusion had we 
been asked to revi ew such evidence de novo , we are mindful that we "cannot base a finding of 
inconsistency under Article  11 simply on the conclusion that we  might have reached a different 
factual finding from the one the panel reached".
636  We therefore decline to uphold China's appeal in 
this regard. 
2. The Exclusion of Producers Who Did Not Respond within 15 Days 
455. China claims that the Panel erred in th e interpretation of Article 4.1 of the Anti-Dumping 
Agreement  when finding that "nothing in Article 4.1 … would preclude investigating authorities from 
establishing deadlines for companies to come forward in  order to be considered for inclusion in the 
domestic industry".637  Moreover, China asserts that the Panel failed to conduct an objective 
assessment of the facts, as required by Article 11 of  the DSU, when finding that the Commission "did 
not act to exclude" producers that did not make  themselves known within 15 days following the 
initiation of the investigation638, and that the 15-day deadline was not insufficient or unreasonable.   
456. In the finding challenged by China, the Panel stated that: 
… while it seems clear that produ cers who did not make themselves 
known within the 15-day period established at initiation were not included in the domestic industry, we find that the investigating 
authority did not act to exclude such producers.  There seems to have 
been a process of considering additional producers  for inclusion in 
the domestic industry, based on arguments made by the exporters.
639 
(emphasis added) 
457. Relevant evidence before the Panel noneth eless indicates that the Commission excluded 
producers who did not make themselves known within  the 15-day deadline from the definition of the 
domestic industry.  Before the Panel, the Eu ropean Union submitted that, upon initiation of the 
fasteners investigation, the Commission invited all known producers to come forward and indicate 
willingness to participate within 15 days, and did not include producers w ho made themselves known 
                                                      
636Appellate Body Report, US – Wheat Gluten , para. 151. 
637China's other appellant's submission, para. 123 (quoting Panel Report, para. 7.219). 
638China's other appellant's submission, para. 117 (quoting Panel Report, para. 7.215). 
639Panel Report, para. 7.215.   WT/DS397/AB/R 
 Page 181 
 
 
  after the 15-day deadline.640  As noted above, the European Union also explained before the Panel that 
the Commission revisited the issue of standing after initiation in response to comments by the Chinese 
interested parties.  Thus, subsequent to the 15- day deadline, the Commissi on collected information 
concerning additional producers, including data on their production volumes and their views on the 
complaint.641  This process, according to the European Un ion, was confused with the issue of the 
domestic industry definition in the Information Do cument.  This confusion was clarified under the 
Definitive Regulation, which makes it clear that "the domestic producers that … constitute[d] the 
domestic industry [were] those that ma[d]e th emselves known within 15 days following initiation, 
provide[d] the requested information and expres s[ed] their willingness to participate in the 
investigation".642  The European Union repeated these expl anations several times during the Panel 
proceedings.643  On appeal, the European Union simila rly states that, after receiving information 
provided by the additional producers contacted after the 15-day deadline, the Commission "decided to 
simply stick to the objective and reasonable deadline of  15 days it had set at the time of initiation in a 
transparent and predictable manner".644 
458. Thus, the evidence on the record, incl uding the Definitive Regulation and the 
European Union's explanations, shows that the Commission excluded producers who did not make 
themselves known within the 15-day deadline from the de finition of domestic industry.  The Panel, in 
reaching its finding that the Commission "did not act to exclude" such producers, stated that "[t]here 
seems to  have been a process of considering additiona l producers for inclusion in the domestic 
industry, based on arguments made by the exporters".645  On the basis of the European Union's 
explanations, this "process of considering add itional producers" was conducted for purposes of 
re-examining the issue of standing, and was not done in order to define the domestic industry. 
459. Nonetheless, even though the Panel mistakenly concluded that the Commission did not 
exclude producers not responding within the 15-day deadline, this did not affect the Panel's final 
conclusion.  The Panel found that "none of the prod ucers [considered after th e deadline] were in the 
                                                      
640See European Union's first written submission to the Panel, para. 302. 
641See European Union's response to Panel Question 31, para. 97. 
642European Union's response to Panel Question 31, para. 97. 
643For example, in response to questions posed by China after the first Panel meeting, the European 
Union stated that "[i]t is clear that this determination was based on those producers that came forward within the 
15-day deadline and indicated  their willingness to cooperate (see recita l 24 of Council Regulation No 91/2009)". 
(European Union's response to China's Question 4 after the first Panel meeting, para. 10)  In response to the 
Panel's question following the second Panel meeting, the European Union maintained that "[a]ll known 
producers were contacted regardless of whether they supported or opposed the complaint and all were invited to come forward.  Those that did so within the deadline,  and that indicated a willingness to cooperate with the 
authorities were considered as part of the domestic industry." (European Union's response to Panel Question 89, 
para. 18) 
644European Union's appellee's submission, para. 92. 
645Panel Report, para. 7.215. (emphasis added) WT/DS397/AB/R 
Page 182  
 
  end included in the domestic industry".
646  Moreover, the Panel found it "reasonable for investigating 
authorities to impose deadlines for domestic producers to make themselves known and then define the 
domestic industry on the basis of those th at come forward within that deadline".647  The Panel also 
found that there was "no basis for concluding that the 15-day period was necessarily insufficient" for purposes of defining the domestic industry.
648  The Panel therefore found that the European Union did 
not act inconsistently with Article 4.1 of the Anti-Dumping Agreement , even if it did not include 
producers not responding within 15 days. 
460. In our view, in applying Article 4.1 to the fact s of the case, the Panel correctly found that it 
was reasonable for the Commission to set a dead line by which producers were required to make 
themselves known.  Given the multiple steps that must  be carried out in an anti-dumping investigation 
and the time constraint on an investigation, an inv estigating authority must be allowed to set various 
deadlines to ensure an orderly conduct of the investigation.  Indeed, as Article 5.10 of the 
Anti-Dumping Agreement  provides, "[i]nvestigations shall, except in special circumstances, be 
concluded within one year, and in no case more th an 18 months, after their initiation."  Moreover, 
Article 6.14 states that the rules of procedures set out in Article 6 of the Anti-Dumping Agreement  
"are not intended to prevent the authorities of a Member from proceeding expeditiously ".649  In this 
regard, the Appellate Body has found that: 
[i]nvestigating authorities must be able to control the conduct of their 
investigation and to carry out the multiple steps in an investigation required to reach a final determination.  Indeed, in the absence of time-limits, authorities would effectively cede control of 
investigations to the interested parties, and could find themselves 
unable to complete their investigations within the timelimits mandated under the Anti-Dumping Agreement .
650 
We therefore disagree with China's assertion that th e Panel erred in the interpretation of Article 4.1 
when finding that "nothing in Article 4.1 … would preclude investigating authorities from establishing deadlines for companies to come forward in  order to be considered for inclusion in the 
domestic industry".
651 
461. China further submits that, even if the im position of a deadline for domestic producers to 
come forward may be permissible for reasons of ne cessity, any deadline granted by the investigating 
                                                      
646Panel Report, para. 7.215. 
647Panel Report, para. 7.219. 
648Panel Report, para. 7.219. 
649Emphasis added. 
650Appellate Body Report, US – Hot-Rolled Steel , para. 73 (quoting Panel Report, US – Hot-Rolled 
Steel , para. 7.54). 
651Panel Report, para. 7.219.  WT/DS397/AB/R 
 Page 183 
 
 
  authorities to domestic producers to come forwar d must be "reasonable" and "sufficient".652  In this 
respect, China submits that the Panel acted inconsis tently with Article 11 of the DSU by "ignor[ing] 
the 'evidence'" submitted by China in order to de monstrate that the 15-day deadline was insufficient 
and unreasonable.653  First, China maintains that, as it argued before the Panel, the 15-day deadline 
was "very short and makes it much more likel y that complainants and [supporters of] the 
investigation", rather than producers opposing th e investigation, will come forward within the 
deadline.654  China submits that, in support of this ar gument, it referred the Panel to the Information 
Document, which shows that, among the 114 producer s who made themselves known up to the date 
the Information Document was published, 25 produ cers representing 9 per cent of EU production 
opposed the complaint.  Yet, Chin a argues, because of the 15-day deadline, these 25 producers were 
not included in the domestic industry.655 
462. We note that China again sought to rely on the Information Document in support of this 
claim.  As discussed above, in the light of the Eu ropean Union's explanation as to the inaccuracies 
contained in the Information Document, we do no t consider that the Panel failed to conduct an 
objective assessment of the facts in not relying on the Information Document for its decision.  
Moreover, even assuming that the representations in  the Information Document could be relied upon, 
we fail to see how these representations demonstrate that the imposition of a 15-day deadline influenced whether the producers opposing the complaint would respond to the request for 
information.  Indeed, the Information Docume nt states that, among the 114 producers who "came 
forward and provided the requested information within the deadline "
656, 25 were opposed to the 
complaint.  It does not state that all of these 25 pr oducers came forward after the 15-day deadline, and 
therefore does not support China's assertion that, because of the deadline , those who opposed the 
complaint were excluded from the definition of the domestic industry. 
463. China further argues that, by requiring producers to come forward within 15 days and express 
willingness to be included in the sample within th at deadline, the Commission adopted an approach 
that was "fundamentally non-objective", because producers opposing the investigation were less 
likely to be willing to be part of the sample.657  China, however, has not subs tantiated this assertion.  
                                                      
652China's other appellant's submission, para. 125. 
653China's other appellant's submission, para. 130. 
654China's other appellant's submission, para. 135. 
655China's other appellant's submission, para. 136;  China's first written submission to the Panel, 
para. 244. 
656Information Document, supra , footnote 81, p. 5. (emphasis added)  We recall the European Union's 
assertion that these 114 producers actually include those who came forward after the 15-day deadline. (See 
supra , para. 446)  However, China has not expressed its di sagreement with these factua l assertions, and instead 
seeks to rely on certain representations made in the Information Document. 
657China's other appellant's submission, para. 137. WT/DS397/AB/R 
Page 184  
 
  In any event, China's argument does not c oncern the reasonableness of the 15-day deadline per se .  
Rather, it concerns the question of whether the defin ition of the domestic industry was consistent with 
the Anti-Dumping Agreement when it was determined on the basis of producers' willingness to 
cooperate by being included in the sample. 
464. In sum, we do not consider that the Panel er red in its interpretati on or application of 
Article 4.1 of the Anti-Dumping Agreement , or acted inconsistently with Article 11 of the DSU, when 
finding that "the mere fact that the domestic  industry as ultimately defined does not include any 
particular proportion of producers expressing different views with respect to the complaint, or producers who did not come forward within the 15-day period, does not demonstrate that the European Union acted inconsistently with Article 4.1 of the [ Anti-Dumping Agreement ] in defining 
the domestic industry."
658  We therefore decline to uphold China's appeal in this respect. 
3. The Exclusion of Producers under Article 3.1 of the Anti-Dumping 
Agreement  
465. China claims that the Panel erred in its interpretation of Article 3.1 of the Anti-Dumping 
Agreement  by dismissing China's claim under that provision that the Commission erroneously 
excluded from the domestic industry definition t hose producers who did not support the complaint 
and did not come forward within the 15-day dead line simply because it had rejected China's same 
claim under Article 4.1 of the Anti-Dumping Agreement . 
466. Before the Panel, China argued that, "by de fining the domestic industry as including only 
those producers that supported the complaint and excluding those who did not, the [European Union] 
conducted a biased analysis favouring the interests of the complainants", and that "[s]uch an analysis 
is not 'objective' as required by Article 3.1 of the [ Anti-Dumping Agreement ]".659  China also argued 
that, by setting the 15-day period granted to domes tic producers for indicating their willingness to be 
included in the sample, the Commission "acted in a non-objective manner in that only producers 
supporting the investigation were included in the domestic industry".660  China then repeated the  
arguments it had made under Article 4.1 as to  why the 15-day period was insufficient and 
unreasonable for purposes of defining the domestic industry.661  The Panel rejected China's claim, 
finding, instead, that: 
China asserts that it is only possible to undertake an objective 
examination pursuant to Article 3.1 if the result of the examination is 
                                                      
658Panel Report, para. 7.219. 
659China's first written submission  to the Panel, para. 244. 
660China's second written submission to the Panel, para. 577. 
661See China's second written submission to the Panel, paras. 578-580.  WT/DS397/AB/R 
 Page 185 
 
 
  not predetermined by the way the domestic industry is defined.  We 
do not disagree.  However, we have rejected China's position with respect to this aspect of its claim challenging the domestic industry definition in this case.  China ma kes no other allegations in support 
of its claim of violation of Article 3.1, and we therefore dismiss that 
aspect of China's claim.
662 (footnote omitted) 
467. In our analyses in the preceding two subsections, we have declined to uphold China's appeal 
of the Panel's findings that the European Union di d not act inconsistently with Article 4.1 of the 
Anti-Dumping Agreement  by excluding producers from the domestic industry definition who did not 
support the complaint and who did not respond to th e sampling forms within 15 days.  Given that, 
with regard to these aspects of the fasteners investigation, China has not provided arguments under 
Article 3.1 that differ from those under Article 4.1, we also decline to uphold China's appeal of the 
Panel's finding that the European Union did not act inconsistently with Article 3.1 of the 
Anti-Dumping Agreement  by excluding these producers from the domestic industry. 
F. Conclusion 
468. In sum, with regard to China's other appeal of the Panel's findings under Articles 4.1 and 3.1 
of the Anti-Dumping Agreement , we have reached the following findings.  We find that the Panel 
erred in finding that "the European Union did not act inconsistently with Article 4.1 of the 
[Anti-Dumping Agreement ] in defining a domestic industry comprising producers accounting for 
27 per cent of total estimated EU production of fasten ers" on the basis that the collective output of 
these producers represented "a major proportion" of the total domestic production.663  However, we 
find that the Panel did not err in finding that Chin a failed to establish that the European Union acted 
inconsistently with Article 3.1 of the Anti-Dumping Agreement  by making an injury determination on 
the basis of a sample of producers that was allegedly not representative.  We also do not consider that 
the Panel erred in its interpretation or a pplication of Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement , or acted inconsistently with Article 11 of the DSU, when finding that "the mere fact that 
the domestic industry as ultimately defined does not  include any particular proportion of producers 
expressing different views with respect to the complaint, or producers who did not come forward 
within the 15-day period, does not demonstrate that  the European Union acted inconsistently with 
Article 4.1 of the [ Anti-Dumping Agreement ] in defining the domestic industry"664 or acted 
inconsistently with Article  3.1 of that Agreement. 
                                                      
662Panel Report, para. 7.221. 
663Panel Report, para. 7.230. 
664Panel Report, para. 7.219. WT/DS397/AB/R 
Page 186  
 
  VII. Appeal of the Panel's Findings Regarding As pects of the Dumping Determination in the 
Fasteners Investigation under Articles 6.4, 6.2, and 2.4 of the Anti-Dumping Agreement  
A. Introduction 
469. We turn now to address the European Union' s and China's appeals of the Panel's findings 
regarding certain aspects of the Commission's dumping determination in the fasteners investigation.  
Specifically, the European Union appeals the Panel's finding that it acted inconsistently with 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement  by not providing a timely opportunity for 
Chinese interested parties to see the product types used by the Commission for purposes of comparing 
export price and normal value in the dumping determin ation.  China appeals the Panel's finding that 
the European Union did not act inconsistently with Article 2.4 of the Anti-Dumping Agreement  by 
failing to make a "fair comparison" between the export price and the normal value in the dumping determination.  We begin our analysis with a description of the relevant factual background 
underlying both the European Union's and China's cl aims.  We then discuss the relevant interpretation 
of the provisions of the Anti-Dumping Agreement  under which the European Union's and China's 
claims are raised.  Next, we address the specific claims and arguments raised on appeal. 
B. The Relevant Factual Background 
470. The Panel found that, in the questionnaires sent to the producer in India, Pooja Forge
665, and 
to the Chinese producers, the Commission requested th at information on the investigated products be 
reported on the basis of categories defined by Product Control Numbers ("PCNs").666  The Panel 
noted that the following six elements made up the PCNs identified by the Commission:  type of 
fasteners (by CN code);  strength/hardness;  coating;  presence of chrome on coating;  diameter;  and length/thickness.  All but two of these elements, in turn, are further divided into sub-categories, each 
of which is assigned a code in the form of a number  or a letter.  The elements contained in the PCNs 
thus represent 38 narrowly defined specifications of fasteners.  The questionnaire provided, as an 
example, a product having the following characteris tics:  "self-tapping screw, case hardening, not 
coated, diameter 4,2 millimeters, length 13 millimete rs".  On the basis of the corresponding numbers 
and letters assigned to each of the characteristic s, this product would ha ve a PCN of 2XNR042013.
667 
                                                      
665We recall that, due to the European Union's designa tion of China as an NME, and the fact that MET 
was not granted to the Chinese producer s in the fasteners investigation, the Commission established the normal 
value on the basis of the prices of fasteners sold in the analogue country, India.  The Commission identified two Indian companies that produced the fasteners that were the subject of the investigation, and one of them, Pooja 
Forge, cooperated with the investigation. (See Definitive Regulation, supra , footnote 4, recitals 38 and 92) 
666See Panel Report, para. 7.292 (referring to European Commission, Anti-Dumping Questionnaire for 
Chinese Exporters/Producers (Panel  Exhibit CHN-51), pp. 11-13). 
667See Panel Exhibit CHN-51, supra , footnote 666, pp. 11-13.  WT/DS397/AB/R 
 Page 187 
 
 
  471. The questionnaire sent to Pooja Forge also requested that information be provided on the 
basis of the same PCNs.  However, Pooja Forge di d not provide information categorized on the basis 
of the PCNs as requested.  Because the normal valu e in the fasteners investigation was established on 
the basis of the information provided by Pooja Forge, the Commission could not base its comparison between the normal value and export price on full PCNs.
668  Therefore, it resorted to the use of 
"product types" defined by two factors, strength cl ass and the distinction between standard and special 
fasteners, in the price comparisons for the dumping determination.669 
472. The Panel found that the Chinese producers were info rmed very late in the proceedings of the 
product types that formed the basis of the comparisons underlying the Commission's dumping determinations.  Specifically, the General Disclo sure Document, issued towards the end of the 
investigation on 3 November 2008, indicated that the Commission based its normal value 
determination on product types, but did not specify the number of, or relevant characteristics of, the 
product types or how they were determined.
670   
473. On 8 November 2008, two Chinese producers sought clarification from the Commission 
regarding the product types used, and specifically ask ed for a linkage between the PCNs on which the 
Chinese producers based their questionnaire submissions  and the product types eventually used by the 
Commission.  According to the Panel, this letter "clearly convey[ed] these two Chinese 
producers' request to see information regarding th e product types that established the basis of the 
Commission's normal value determination and the relationship between these product types and the 
PCNs pertaining to the Chinese producers' products".671  The Commission replied on 13 November 
2008, stating that, "beside[s] product characteristi cs as specified in the PCN, a distinction was 
introduced between standard and special products sin ce this was found to have a significant impact on 
prices".672  It went on to say that, for these two Chin ese producers, "their entire export volume was 
considered as being standard products".673  The Panel found that this response did "not explain how 
                                                      
668See Panel Report, para. 7.293 (referring to European Union's response to Panel Question 43(b)). 
669See Panel Report, para. 7.293 (referring to Definitive Regulation, supra , footnote 4, recital 102;  and 
Panel Exhibit CHN-31, supra , footnote 310, p. 2). 
670See Panel Report, para. 7.485.  In addition, unde r the heading "Comparison", the General Disclosure 
Document stated that the price compar ison between the fasteners from China and those sold by Pooja Forge on 
the Indian market was "made by distinguishing between standard and special fastener types". (General 
Disclosure Document, supra , footnote 73, para. 93)  The same statement is also contained in recital 102 of the 
Definitive Regulation. 
671Panel Report, para. 7.486. 
672Panel Report, para. 7.487 (quoting Email Message dated 13 November 2008 from the European 
Commission to Van Bael & Bellis (Panel Exhibit CHN-29), p. 1). 
673Panel Report, para. 7.487 (quoting Panel Exhibit CHN-29, supra , footnote 672, p. 1). WT/DS397/AB/R 
Page 188  
 
  the product types were established in the determinatio n of normal value, or the relevant characteristics 
of those product types".
674 
474. On 17 November 2008, the Chinese producers again sought clarification.  They noted that the 
non-confidential version of Pooja Forge's ques tionnaire response contained no indication that 
Pooja Forge reported sales on the basis of PCNs.  Thus, the Chinese producers asked: 
In abstract terms, was normal value established on a PCN basis, or 
were more general types of [the Indian producer's] fasteners matched 
with groups of PCNs from  our clients?  In that context, it would still 
be very useful for us if we could have a listing simply of which type 
of fastener or which PCNs of [t he Indian producer] were matched 
with the PCNs of our clients.675 
The Panel described this letter as "clearly rep eat[ing] these Chinese produ cers' request to see 
information on the basis of which product typ es for the Indian producer were established".676 
475. The Commission replied in a letter dated 21 November 2008 that the comparison "was not 
made on the basis of the full PCN, but on part [ sic] of the characteristics of the product, namely the 
strength class as well as the abovementioned distin ction between special and standard products".677  
The Panel found that this was the first time the Commission clearly informed the Chinese producers 
that it did not make its findings based on PCNs, but on the characteristics of strength class and the 
distinction between standard and special fastener s.  The letter came one working day before the 
deadline to make comments on the General Disclosure Document.678 
476. The Panel record indicates that, on 24 Novemb er 2008, two days after the deadline for 
comments, one Chinese producer sent another letter to the Commission, expressing the view that it 
was not possible for it to comment on the Commission's dumping determination without knowing what types or groups of products of Pooja Forge were actually matched with the Chinese products.
679 
                                                      
674Panel Report, para. 7.487. 
675Panel Report, para. 7.488 (quoting Letter dated 17 November 2008 from Van Bael & Bellis to the 
European Commission concerning the Definitive Disclosure Document: Request for Information II on behalf of Kunshan Chenghe Standard Component Co. Ltd and Ningbo Jinding Fastening Piece Co. Ltd. (Panel Exhibit 
CHN-30), p. 2). (emphasis omitted) 
676Panel Report, para. 7.488. 
677Panel Report, para. 7.489 (quoting Panel Exhibit CHN-31, supra , footnote 310, p. 2). 
678Panel Report, para. 7.489. 
679Letter dated 24 November 2008 from Van Bael & Bellis on behalf of Kunshan Chenghe Standard 
Component Co. Ltd. to the European Commission, Comm ents on the Definitive Disclosure Document (Panel 
Exhibit CHN-59), p. 4.  WT/DS397/AB/R 
 Page 189 
 
 
  477. Thus, the Panel's factual findings, as well as th e Panel record, indicate the following timeline 
relating to the relevant events that occurre d in the context of the Commission's dumping 
determination: 
Timeline of Relevant Events 
9 November 2007 Notice of Initiation 
3 November 2008 General Disclosure Document 8 November 2008 First request for clarification 13 November 2008 Commission response 
17 November 2008 Second request for clarification 
21 November 2008 Commission response clarifying product types 22 November 2008 Deadline for comment s on General Disclosure Document 
24 November 2008 Comments by the Chinese producer 
 
C. The Relevant Interpretation of Articles 6.4 and 2.4 of the Anti-Dumping Agreement 
478. Article 6.4 of the Anti-Dumping Agreement  provides: 
The authorities shall whenever practicable provide timely 
opportunities for all interested parties to see all information that is 
relevant to the presentation of thei r 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. 
479. The Appellate Body has found that Article 6.4 re fers to "provid[ing] timely opportunities for 
all interested parties to see all informati on that is relevant to the presentation of their  cases", and that 
the possessive pronoun "their" "clearly refers to the earlier reference in that sentence to 'interested 
parties'".
680  Therefore, it is the interested parties, rath er than the authority, who determine whether the 
information is in fact "relevant" for the purposes of Article 6.4.681  Moreover, according to the 
Appellate Body, whether the information was "used" by the authority does not depend on whether the 
authority specifically relied on that information.  Rather, it depends on whether the information is 
related to "a required step in the anti-dumping investigation".682  Thus, Article 6.4 concerns 
information relating to "issues which the investigat ing authority is required to consider under the 
[Anti-Dumping Agreement ], or which it does, in fact, consider, in the exercise of its discretion, during 
the course of an anti-dumping investigation."683 
                                                      
680Appellate Body Report, EC – Tube or Pipe Fittings , para. 145. (original emphasis) 
681See Appellate Body Report, EC – Tube or Pipe Fittings , para. 145. 
682Appellate Body Report, EC – Tube or Pipe Fittings , para. 147. 
683Panel Report, EC – Salmon (Norway) , para. 7.769. (footnotes omitted) WT/DS397/AB/R 
Page 190  
 
  480. The interested parties' right under Article 6.4, therefore, is to see  all non-confidential  
information relevant to the presentation of their cases and used by the investigating authority.  
Article 6.4 thus applies to a broad range of informat ion that is used by an investigating authority for 
purposes of carrying out a required step in an anti -dumping investigation.  We note the European 
Union's view that the term "information" in Artic le 6.4 "concerns facts and raw data rather than 
factual determinations a nd conclusions by the investigating authorities".
684  In our view, there is no 
textual basis in Article 6.4 for limiting information "relevant to the presentation of [parties'] cases" 
and "used by the authorities" to facts or raw data  unprocessed by the authorities.  Indeed, the broad 
range of information subject to the obligation un der Article 6.4 may take various forms, including 
data submitted by the interested parties, and in formation that has been processed, organized, or 
summarized by the authority.  We do not see why only  facts and raw data would be relevant to the 
parties' presentation of their cases.  A proper in terpretation of Article 6.4 does not mean, however, 
that an investigating authority's reasoning or internal  deliberation in reaching its final determination is 
also subject to the obligation under Article 6.4.  Artic le 6.4 concerns the informa tion that is used by an 
authority, rather than an authority's detailed anal ysis of the information,  or the determination it 
reaches based on such information. 
481. The European Union also argues that the cont ext of Article 6.4, as provided by the other 
paragraphs of Article 6, confirms that the oblig ation under Article 6.4 only concerns facts and raw 
data submitted by interested parties.  The Europe an Union submits that Articles 6.1 to 6.3 provide 
parties the right to submit their own information, and Articles 6.6 and 6.7 impose an obligation on 
investigating authorities to verify the information subm itted by the parties.  Article 6.8, in turn, allows 
the use of "facts available" when an inter ested party does not provide necessary information.685  Thus, 
the European Union asserts, Article 6.4 is limited to addressing "the parties'  right to know what other 
interested parties have submitted  in terms of evidence and information".686  In our view, however, the 
European Union's recourse to the other paragr aphs under Article 6 is unavailing.  The only 
qualification on the term "information" under Article 6. 4 is that it is "relevant to the presentation of 
their cases", "not confidential as defined in para graph 5", and "used by the authorities in an 
anti-dumping investigation".  Article 6.2 further c onfirms that access to all such information is 
important because, without such information, the in terested parties may not have "a full opportunity 
for the defence of their interests".  Moreover, wher e the term "information" is to be specifically 
qualified, the relevant paragraphs under Article 6 clearly provide so.  For example, Article 6.3 refers 
to "oral information", Article 6.5 applies to in formation that is "by na ture confidential", and 
                                                      
684European Union's appellant's submission, para. 253. 
685European Union's appellant's submission, paras. 258, 259, 262, and 263. 
686European Union's appellant's submission, para. 260. (original emphasis)  WT/DS397/AB/R 
 Page 191 
 
 
  Article 6.6 concerns information "s upplied by interested parties".  W ithout such qualifications, we see 
no textual basis in Article 6.4, or contextual basi s under Article 6, for limiting the term "information" 
in Article 6.4 to only that provided by other interested parties. 
482. The European Union further argues that, pursuant to Article 6.9, the authorities must inform 
all interested parties of "the essential facts under c onsideration which form the basis for the decision" 
before a final determination is made.  In the Eu ropean Union's view, the use of the phrase "essential 
facts" rather than the word "information" in Artic le 6.9 indicates that Articles 6.1 to 6.8 concern the 
information-gathering process.  The European Union also argues that Article 6.9 marks the end of the 
process and requires a disclosure of the authority's essential factual conclusions687, and that the 
"product types" used to compare export price a nd normal value fall into the category of essential 
facts.688  The European Union further contends that  the differences between the obligations under 
Articles 6.4 and 6.9 are "well established in WTO ju risprudence".  For example, the European Union 
argues that in Guatemala – Cement II  the panel found that Article 6.4 generally provided an "access to 
the file"689 right, whereas Article 6.9 required more and c ould not be satisfied "simply by offering to 
provide interested parties with copies of all information in the file".690 
483. The differences alleged by the European Union be tween Article 6.9 and the other paragraphs 
of Article 6 do not, in our view, restrict the meaning of the word "information" in Article 6.4 to the narrow scope the European Union attributes to it.  As discussed above, Article 6.4 refers broadly to 
"all information that is relevant to the presentati on of [the interested parties'] cases".  Such 
information may come in different forms, including not only "facts or raw data" submitted by the 
other parties, but also information that an inves tigating authority organizes, processes, or summarizes 
at each stage of an anti-dumping investigation.  Although Article 6.9 refers to "the essential facts 
under consideration which form the basis" for the au thority's final determina tion, we do not consider 
that what the terms "information" and "essential f acts" refer to must be mutually exclusive.  
Depending on the specific circumstances of a case, th e "information" relevant to the presentation of an 
interested party's case can be a broader concept than  the essential facts relied on by the authority, or it 
may overlap with such "essential f acts".  The "essential facts" under Article 6.9, which form the basis 
for a final determination, are those that are material for the authority's decision, whereas 
"information" that is relevant to the presentation of a party's case, and used by the authority, is not 
necessarily what the authority relies on in reaching its final determination.  Moreover, information 
                                                      
687European Union's appellant's submission, paras. 264 and 265. 
688European Union's responses to questioning at the oral hearing. 
689European Union's appellant's submission, para. 261 (quoting Panel Report, Guatemala – Cement II , 
para. 8.133). 
690Panel Report, Guatemala – Cement II , para. 8.230. WT/DS397/AB/R 
Page 192  
 
  within the meaning of Article 6.4 has to be pr ovided to interested parties in a timely fashion 
throughout the investigation.  It is not sufficient to provide such information only "before a final 
determination is made" within the meaning of Ar ticle 6.9.  In sum, we consider that the 
European Union's reliance on the context of Article 6.4 is unavailin g to its position. 
484. The European Union refers to the panel's finding in  Korea – Certain Paper  to point out that 
what had to be disclosed upon request in that disput e were the actual figures for cost of manufacture, 
expenses or profits used in the calcu lation of the constructed normal value.
691  The European Union 
further submits that the Appellate Body's finding in EC – Tube or Pipe Fittings , that the 
European Communities was required to disclose a document containing a summary of the "raw 
data"692 on some of the injury factors under Article 3.4 of the Anti-Dumping Agreement , also supports 
its understanding of the term "informati on" in Article 6.4.  However, the fact that the findings in prior 
disputes under Article 6.4 may have concerned su ch "raw data" only shows that that was the 
"information" at issue in those disputes.  The particular "information" found to be subject to Article 6.4 in specific disputes, however, does not  limit the scope of the term in Article 6.4 in all 
disputes arising under that provision.  Moreover, with regard to the Appellate Body's finding in EC – 
Tube or Pipe Fittings , to the extent that the European  Union uses the term "raw data"
693 to mean 
information submitted by the parties and not processed by the investigating authority, we note that 
this view is contradicted by the facts at issue in th at dispute.  Rather, the "information" relevant to the 
Appellate Body's finding under Article 6.4 in that ca se consisted of data that had been aggregated and 
summarized by the Commission as well as the Comm ission's evaluation of this data.  More 
specifically, the "information" contained worksheets pr epared by the European investigating authority 
regarding the injury factors listed in Article 3.4 on the basis of evidence submitted by the interested 
parties.694 
485. In sum, under Article 6.4 of the Anti-Dumping Agreement , what information is considered 
"relevant to the presentation of [the interested pa rties'] cases" and "used by the authorities" would 
depend on the specific "step" of the anti-dumping inv estigation and the particular issue before the 
investigating authority.  We recall that, in this dispute, China claims that the Commission failed to 
provide timely opportunities for the Chinese producer s to see certain information relevant to the 
comparison between the export price and normal va lue for purposes of the dumping determination in 
                                                      
691European Union's appellant's submission, para. 253 (referring to Panel Report, Korea – Certain 
Paper , para. 7.199). 
692European Union's appellant's submission, para. 254 (referring to Appellate Body Report, EC – Tube 
or Pipe Fittings , paras. 138-141). 
693European Union's appellant's submission, para. 254. 
694Panel Report, EC – Tube or Pipe Fittings , para. 7.307 and footnote 256 thereto.  See also China's 
appellee's submission, para. 397.  WT/DS397/AB/R 
 Page 193 
 
 
  the fasteners investigation.  We therefore focus our analysis on the type of "information" covered 
under Article 6.4 and when it has to be disclosed, in  the context of the comparison between the export 
price and normal value within the meaning of Article 2.4 of the Anti-Dumping Agreement . 
486. Article 2.4 of the Anti-Dumping Agreement provides, in relevant part: 
A fair comparison shall be made between the export price and the 
normal value.  This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time.  Due allowance shall be made in 
each case, on its merits, for differences which affect price 
comparability, including differences in conditions and terms of sale, 
taxation, levels of trade, quantities,  physical characteristics, and any 
other differences which are also demonstrated to affect price comparability. … The authorities shall indicate to the parties in 
question what information is necessar y to ensure a fair comparison 
and shall not impose an unreasonable burden of proof on those parties. (footnote omitted) 
487. As the Appellate Body has explained: 
[U]nder Article 2.4, the obligation to ensure a "fair comparison" lies 
on the investigating authorities , and not the exporters.  It is those 
authorities which, as part of their investigation, are charged with comparing normal value and expor t price and determining whether 
there is dumping of imports.
695 (original emphasis) 
488. However, this does not mean that the interested  parties do not have a role to play in the 
process of ensuring a fair comparison.  Rather, pane ls in previous disputes have found that exporters 
bear the burden of substantiating, "as constructively as possible"696, their requests for adjustments 
reflecting the "due allowance" within the meaning of  Article 2.4.  If it is not demonstrated to the 
authorities that there is a difference affecting pri ce comparability, there is no obligation to make an 
adjustment.697  Moreover, the fair comparison obligati on does not mean that the authorities must 
accept each request for an adjustment .  The authorities "must take steps to achieve clarity as to the 
adjustment claimed and then determine whether and to what extent that adjustment is merited".698 
489. The process of making a fair comparison must also be understood in the light of the last 
sentence of Article 2.4, which requires an investiga ting authority to "indicate to the parties in question 
what information is necessary to ensure a fair  comparison and shall not impose an unreasonable 
burden of proof on those parties".  The last sentence of Article 2.4 thus adds a procedural requirement 
                                                      
695Appellate Body Report, US – Hot-Rolled Steel , para. 178.  
696Panel Report, EC – Tube or Pipe Fittings , para. 7.158. 
697Panel Report, Korea – Certain Paper , para. 7.147. 
698Panel Report, EC – Tube or Pipe Fittings , para. 7.158.  WT/DS397/AB/R 
Page 194  
 
  to the general obligation of investigating author ities to ensure a fair comparison.  The sentence 
imposes an obligation on the investigating authority to  tell the parties what information the authority 
will need in order to ensure a fair comparison.  Thus, whereas the exporters may be required to 
"substantiate their assertions concerning adjustments"
699, the last sentence of Article 2.4 requires the 
investigating authorities to "indicate to the parties"  what information these requests should contain, so 
that the interested parties will be in a position to make a request for adjustme nts.  This process has 
been described as a "dialogue"700 between the authority and the interested parties. 
490. In our view, as a starting point for the dialogue between the investigating authority and the 
interested parties to ensure a fair comparison, the authority must, at a minimum, inform the parties of 
the product groups with regard to which it will c onduct the price comparisons.  For example, the 
authority may choose to make comparisons of tr ansaction prices for a number of groups of goods 
within the like product that share common characteris tics, thus minimizing the need for adjustments, 
or it may choose to make adjustments for each diffe rence affecting price comparability to either the 
normal value or the export price of each transaction to be compared.701  Without knowing which 
particular method the authority will use to categori ze the products for purposes of price comparison, it 
would not be possible for the interested parti es to know what information will be necessary for 
purposes of ensuring a fair comparison, and to request adjustments accordingly.  Thus, as the Panel correctly found in its analysis of China's claim under Article 6.4 of the Anti-Dumping Agreement : 
Ensuring that the comparison of normal value and export price is 
based on comparable goods is, as pr ovided for in Article 2.4, an 
obligation on investigating authorities.   Foreign producers have a role 
in that process, by requesting due allowance for differences 
demonstrated to affect price comparability.  In order to fulfil their 
role, and thus ensure that their in terest in a fair comparison is 
protected, however, it is necessary that they know the basis on which the investigating authority undertakes to make the comparison of normal value and export price, and in sufficient time to allow the 
exporters to make and substan tiate requests for due allowance.
702 
491. Furthermore, in an anti-dumping investiga tion of imports from NMEs, where the normal 
value is not established on the basis of the foreign producers' domestic sales, but is established on the 
basis of the domestic sales in an analogue country, the investigating authority's obligation to inform 
the interested parties of the basis of the price co mparison is even more pertinent for ensuring a fair 
comparison.  This is because foreign producers are unlikely to have knowledge of the specific 
products and pricing practices of the producer in an analogue country.  Unless the foreign producers 
                                                      
699Panel Report, EC – Tube or Pipe Fittings , para. 7.158. 
700Panel Report, Egypt – Steel Rebar , para. 7.352. 
701See Panel Report, para. 7.297. 
702Panel Report, para. 7.491.  WT/DS397/AB/R 
 Page 195 
 
 
  under investigation are informed of the specific pr oducts with regard to which the normal value is 
determined, they will not be in a position to  request adjustments they deem necessary. 
492. With the above interpretation in mind, we turn  to review the European Union's and China's 
claims and arguments raised on appeal. 
D. The European Union's Appeal of the Panel's Findings under Articles 6.4 and 6.2 of 
the Anti-Dumping Agreement 
493. The European Union appeals the Panel's finding that the European Unio n acted inconsistently 
with Articles 6.4 and 6.2 of the Anti-Dumping Agreement when the Commission failed to disclose 
information regarding the product types to Chin ese producers until one working day before the 
deadline for submitting comments.  Specifically, the Panel found that, by failing to disclose 
information regarding the product types, "the Europ ean Union failed to provide a timely opportunity 
for the Chinese [interested parties] to see information"703 pertaining to the basis on which the 
Commission made the comparison of normal value and e xport price, in violation of Article 6.4 of the 
Anti-Dumping Agreement .  Because the Commission failed to disclose the product types on a timely 
basis, the Panel also found that it had denied the Chinese interested parties a "full opportunity for the 
defence of their interests", in violation of Article 6.2 of the Anti-Dumping Agreement .704 
494. The European Union's appeal under Article 6.4 is based on the following two grounds.  First, 
the European Union maintains that the grouping of products into product types was a "factual determination" made by the Commission and was not "i nformation" as that term is used in Article 6.4 
of the Anti-Dumping Agreement .
705  Second, the European Union argues that the Panel violated 
Article 11 of the DSU in making its determinati on under Article 6.4 because it refused to consider 
certain evidence regarding the "timeliness" of th e Commission's disclosure, and therefore did not 
consider the evidence in its totality.706 
495. With respect to the first ground of appeal, as discussed above, we disagree with the 
European Union's view that the term "information" in Article 6.4 only "concerns facts and raw data 
rather than factual determinations and c onclusions by the investigating authorities".707  Rather, 
Article 6.4 applies to a broad range of information th at is relevant to the presentation of the interested 
parties' cases and is used by an investigating author ity for purposes of carrying out a required step in 
an anti-dumping investigation.  Such informati on includes evidence submitted by the interested 
                                                      
703Panel Report, para. 7.492. 
704Panel Report, para. 7.495. 
705European Union's appellant's submission, para. 248. 
706European Union's appellant's submission, para. 279. 
707European Union's appellant's submission, para. 253. WT/DS397/AB/R 
Page 196  
 
  parties, as well as data processed, organized, or summarized by the authority.  An authority's 
reasoning or internal deliberation in reaching a determination, however, does not constitute 
"information" subject to the obligation under Article 6.4. 
496. In this dispute, the product types used by  the Commission concerned "a required step"
708 in an 
anti-dumping investigation, namely, the compar ison between export price and normal value for 
purposes of the dumping determination.  The produc t types used by the Commission for purposes of 
the dumping determination were partic ularly relevant to the interested parties' cases, given the factual 
background of this case.  We recall that the questio nnaire sent to the Chinese producers and the Indian 
producer requested that products be identified on the basis of PCNs, thus leav ing at least two Chinese 
exporters709 with the impression that such PCNs wo uld be used for purposes of the comparison 
between export price and normal value.  As the Panel noted, "it appears from the structure of the 
questionnaires that [requests for adjustments to ensure a fair comparison] will not be necessary 
because of the categorization of th e product according to PCN groups".710  Indeed, by using the PCNs 
as the organizing principle when gathering produc t information from the interested parties, the 
Commission's approach created a reasonable expect ation that price comparisons would be conducted 
on a very particular basis.  Moreover, in the lig ht of the very precise nature of the physical 
characteristics listed under the PCNs, it was also reas onable to assume that few adjustments would be 
necessary, as prices of narrowly defined produc ts by the Chinese producers would have been 
compared to prices of equally narrowly defi ned products in the analogue country, India. 
497. Nonetheless, although the Chinese producers provi ded information on the basis of PCNs, the 
Indian producer, Pooja Forge, did not provide information on that basis.  Consequently, the 
Commission decided to use a different method of product grouping to conduct the comparison, namely, what it called "product types", which it defined on the basis of two factors:  strength class and the distinction between standard and special fasten ers.  The product types used by the Commission 
were thus a critical piece of information relating to  a required step in the investigation, and these 
product types were in turn established on the basis of  the product information provided by the Indian 
producer.  They were not simply the Commission's reasoning in reaching its final determination. 
498. Moreover, we recall that the PCNs include six elements further divided into 38 specifications, 
which could have resulted in hundreds of different  combinations.  Yet, the PCN characteristics and 
the product types overlap only with regard to one element, na mely, the strength class.  Thus, the 
                                                      
708Appellate Body Report,  EC – Tube or Pipe Fittings , para. 147. 
709These two producers later requested the Commission to  clarify the meaning of "product types" used 
in the dumping determination. 
710Panel Report, para. 7.491.  WT/DS397/AB/R 
 Page 197 
 
 
  differences between the PCNs and the product types used by the Commission could have prompted 
the Chinese producers to request that adjustments be made for any differences that might have 
affected price comparability between the Chinese a nd Indian fasteners, within the meaning of 
Article 2.4 of the Anti-Dumping Agreement .  Indeed, without knowi ng what constituted "product 
types", "it would be difficult if not impossible, for foreign producers to request adjustments that they 
consider necessary in order to ensure a fair comparison."711  Thus, the information concerning the 
product types, including their characteristics and how  they were determined, constituted "information" 
within the meaning of Article 6.4 of the Anti-Dumping Agreement , because they were used in the 
dumping determination made by the Commission712, and were indispensible to the parties' 
presentation of their cases concerning the dumping determination. 
499. Turning to the European Union' s claim that the Panel violated Article 11 of the DSU, we 
recall that, as discussed above in section VI.E , not every error allegedly committed by a panel 
amounts to a violation of Article 11 of the DSU.  Rather, a participant claiming that a panel ignored certain evidence, and hence acted inconsistently with  Article 11, must explain why the evidence is so 
material to its case that the panel's failure to addr ess such evidence has a bear ing on the objectivity of 
the panel's factual assessment. 
500. In this regard, we note the Eur opean Union's assertion that "[o]ne might wrongly conclude 
from the Panel's findings" that the Chinese producers requesting to see the product types were unable 
to make any presentations due to time constraints.
713  According to the European Union, one Chinese 
producer "did submit comments" on the requested information in a letter dated 24 November 2008714 
and, in that letter, it did not request an extension of the time for making presentations.715  T h e  
European Union argues that this  letter shows that "timing was not the problem for the interested 
parties", but the letter was not mentioned by the Panel in its reasoning.716  In our view, the assertion 
that the Panel's findings "might" give a certain impression does not explain why the Panel's alleged 
"disregard" of a piece of evidence calls into questi on the objectivity of the Panel's factual assessment.  
                                                      
711Panel Report, para. 7.491. 
712See Panel Report, EC – Salmon (Norway) , para. 7.769. 
713European Union's appellant's submission, para. 291. (emphasis added) 
714European Union's appellant's submission, para. 291. (emphasis omitted) 
715European Union's appellant's submission, para. 292. 
716European Union's appellant's submission, para. 294. (original emphasis) WT/DS397/AB/R 
Page 198  
 
  On its face, such a claim simply does not rise to the level of egregiousness that a violation of 
Article 11 of the DSU requires.
717 
501. The European Union further submits that the Panel disregarded the Information Document, 
which "signall[ed] the use of 'product types'" thr ee months prior to the issuance of the General 
Disclosure Document.718  Thus, in the European Union's view , any "problem with the timing of the 
disclosure" regarding product types "was in large part due to the fact that the Chinese interested 
parties never requested to see the basis for th e product type groupings until very late in the 
proceedings."719 
502. Although the European Union's argument suggests that the Information Document was an 
important piece of evidence supporting its position, a review of the relevant evidence indicates the 
contrary.  The Information Document, like the Ge neral Disclosure Document, stated that the 
Commission based its normal value determination on product types, but did not specify the relevant 
characteristics of the product typ es or how they were determined.720  Moreover, as the Panel properly 
found, the correspondence between the Commi ssion and the two Chinese producers requesting 
clarification regarding the product types showed th at "until the receipt of the General Disclosure 
Document, the Chinese producers were under the im pression that the Commission would make its 
dumping determinations on the basis of PCNs, as re quested in the questionnaires sent to the Chinese 
and the Indian producers".721  It should also be recalled that the "information" sought by the Chinese 
producers was a clarification of what constituted "product types" as referenced in the General 
Disclosure Document.  Thus, the fact that the In formation Document referred to the concept of 
product types does not alter the Panel's ultimate fi nding that the Commission did not disclose the 
requested clarification until one working day before  the deadline for comments.  We therefore do not 
agree with the European Union's assertion that the Panel erroneously ignored the evidence contained 
in the Information Document in reaching its finding. 
503. The European Union also claims that, becau se some Chinese producers submitted information 
describing certain characteristics that, they believed,  distinguished different types of fasteners, and 
                                                      
717In any event, we note that, in the letter referred to by the European Union, the Chinese producer 
expressed the view that it was not possible to comment on the Commission's dumping determination without 
knowing what types or groups of products of Pooja Forge were actually matched with the Chinese products. The letter thus shows that the Chinese producers still considered the information provided by the Commission 
insufficient for them to comment properly on the dumping determination.  This letter, therefore, does not lend 
support to the European Union's position, and the Panel acted properly in not relying on this evidence for reaching its finding. 
718European Union's appellant's submission, para. 284. 
719European Union's appellant's submission, para. 286. 
720Information Document, supra , footnote 81, p. 12.  
721Panel Report, para. 7.490.  WT/DS397/AB/R 
 Page 199 
 
 
  because the product types used for purposes of the dumping determination reflected the same 
characteristics, the Chinese producers "clearly were  able to make presentations based on this 
'information'".722  Specifically, the European Union refers to a submission made on 22 February 2008 
by Jiaxing Association of Fastener Import & Expo rt Companies ("Jiaxing Association") describing 
the difference between fasteners produced by  Chinese producers and those produced by 
EU producers.  Jiaxing Association argued that the Chinese companies mostly produced standard 
fasteners in lower strength classes, while EU producers mostly produced non-standard fasteners in 
higher strength classes723, and that fasteners by Chinese and EU producers were not competitive with 
each other.  The European Union asserts that "the  Panel's conclusion that Chinese producers were not 
given a timely opportunity to 'see information relevant  to the presentation of their cases' is flawed as 
the alleged 'information' was no other than what th e Chinese interested parties had been presenting as 
being the main characteristics for distingu ishing between product types throughout the 
investigation."724 
504. However, the evidence that th e European Union claimed the Panel "disregarded" was not 
apposite to the issue examined by the Panel under Article 6.4 of the Anti-Dumping Agreement .  As 
discussed, what information may be considered "r elevant for the presentation" of the interested 
parties' cases under Article 6.4 depends on the par ticular stage of the anti-dumping investigation and 
the specific issue before the investigating author ity.  China's claim and the Panel's finding under 
Article 6.4 concern the information on product typ es that the Commission used for purposes of price 
comparisons between fasteners produced by the Indi an producer (rather than EU producers) and by 
the Chinese producers in its dumping determination.  Thus, the information contained in Jiaxing 
Association's submission, which was made in a cont ext unrelated to the issue of price comparisons 
between the Indian and Chinese fasteners, cannot be considered as informati on that the two Chinese 
producers requested as relevant to the presen tation of their cases regarding the dumping 
determination.  Therefore, we do not consider that  the Panel erred in not relying on the evidence 
concerning Jiaxing Association's submission in making its finding under Article 6.4. 
505. In sum, we consider that the product ty pes used by the Commission for purposes of 
comparing the export price and normal value in th e fasteners investigation constituted "information 
relevant to the presentation" of the Chinese parties'  case.  This is because, without such information, 
"it would be difficult if not impossible, for foreign producers to request adjustments that they consider 
                                                      
722European Union's appellant's submission, para. 288. 
723Jiaxing Association of Fasteners Import & Export Companies, Submission of 22 February 2008 
(Panel Exhibit EU-13), p. 4.  The two Chinese producers requesting clarification regarding product types were not part of this association. 
724European Union's appellant's submission, para. 288 (referring to Panel Report, para. 7.492). WT/DS397/AB/R 
Page 200  
 
  necessary in order to ensure a fair comparison."
725  We further consider that the Panel correctly found 
that the European Union violated Article 6.4 of the Anti-Dumping Agreement  "by not providing a 
timely opportunity for Chinese producers to see information regarding the product types on the basis 
of which normal value was established".726  We therefore decline to  accept the European Union's 
appeal of these findings. 
506. With regard to the Panel's finding under Article 6.2 of the Anti-Dumping Agreement , the 
European Union maintains that, because it has demons trated that the Panel's finding under Article 6.4 
was flawed, the Panel's "purely consequential"  finding under Article 6.2 was also in error.727  In the 
light of our finding that the Panel did not err in re aching its finding under Article 6.4, we also disagree 
with the European Union's assertion that the Pane l's finding under Article 6.2 was in error. 
507. The European Union further submits that the firs t sentence of Article 6.2, which provides that 
all interested parties "shall have a full opportunity fo r the defence of their interests", cannot "be read 
as a catch-all due process provision" because doing so "would effectively render redundant all of the 
other provisions of Article 6 which impose speci fic obligations on investigating authorities".728  We 
recall that, in the fasteners investigation, the Ch inese producers could not make relevant requests for 
adjustment in order to ensure a fair compar ison within the meaning of Article 2.4 of the Anti-Dumping 
Agreement , because they were not informed, in a tim ely manner, of the basis on which the export 
price and normal value was compared.  Consequently , they did not have a full opportunity to defend 
their interests in relation to the Commission's dumping determination.  Thus, contrary to the 
European Union's assertion, the Panel did not simp ly treat Article 6.2 as a "catch-all due process 
provision".  Rather, the Panel's finding is consiste nt with the Appellate Body's interpretation, in EC – 
Tube or Pipe Fittings , that the "presentations" referred to in  Article 6.4 "logically are the principal 
mechanisms through which an exporter subject to an anti-dumping investigation can defend its 
interests" within the meaning of Article 6.2.729  On this basis, we consider that the Panel properly 
found that "the Chinese exporters c ould not defend their interests in  this investigation because the 
Commission only provided information concerning the product types used in the determination of the 
normal value at a very late stage of the proceedings " and that, therefore, "the European Union acted 
inconsistently with Article 6.2" of the Anti-Dumping Agreement .730 
                                                      
725Panel Report, para. 7.491. 
726Panel Report, para. 7.494. 
727European Union's appellant's submission, para. 275. 
728European Union's appellant's submission, para. 277. (original emphasis) 
729Appellate Body Report, EC – Tube or Pipe Fittings , para. 149. 
730Panel Report, para. 7.495.  WT/DS397/AB/R 
 Page 201 
 
 
  E. China's Other Appeal of the Panel's Findi ngs under Article 2.4 of the Anti-Dumping 
Agreement 
508. China alleges that the Panel erred in finding th at the European Union did not fail to conduct a 
fair comparison between the export price and normal value within the meaning of Article 2.4 of the 
Anti-Dumping Agreement .  Specifically, China asserts that the Panel erred in not addressing a 
"substantial argument"731 that China raised on the basis of th e last sentence of Article 2.4, which 
requires that the authorities indicate to the parti es what information is necessary to ensure a fair 
comparison.  China also contends that the Panel's fa ilure to address its arguments is inconsistent with 
a correct interpretation and application of Article 2.4.732  China therefore requests the Appellate Body 
to complete the analysis by applying Article 2.4 to the facts, and to find th at the Commission's failure 
to indicate to the Chinese producers the information necessary to ensure a fair comparison constituted 
a violation of Article 2.4 of the Anti-Dumping Agreement .733  Furthermore, China alleges that the 
Panel erred in its interpreta tion of Article 2.4 of the Anti-Dumping Agreement , and acted 
inconsistently with Article 11 of the DSU, when finding that the Commission did not have to make 
adjustments for the physical differences reflected in  the PCN characteristics.  Finally, China maintains 
that the Panel erred in its interpretati on and application of Article 2.4 of the Anti-Dumping Agreement  
when finding that the Commission did not have  to make adjustments for quality differences.734  We 
turn now to address each of these claims. 
509. China alleges that, contrary to its duty under Article 11 of the DSU, the Panel failed to 
address "one of China's main arguments concerning its claim of violation of Article 2.4" of the 
Anti-Dumping Agreement , that is, the argument with regard to the Commission's failure to inform the 
interested parties of the "product types" on the b asis of which the comparison was made between the 
normal value and export price.735  We note that, in its first written submission to the Panel, China 
maintained that the Commission fa iled to disclose "the list of product types on the basis of which 
normal value had been determined and how these produc t types had been compared with the PCNs of 
the Chinese exporting producers"736, although China did not specifically refer to the last sentence of 
Article 2.4.  In its second written submission, China, fo r the first time before the Panel, referenced the 
last sentence of Article 2.4 and argued that, because the Commission failed to indicate to the parties in 
                                                      
731China's other appellant's submission, para. 306. 
732Although China's other appellant's submission allege s that the Panel erred in its interpretation (see 
para. 296), China clarified at the oral hearing that its cl aim also covers the Panel's application of Article 2.4 to 
the facts of the case. 
733See China's other appellant's submission, paras. 315-334. 
734Although China's other appellant's submission allege s that the Panel erred in its interpretation (see 
paras. 296 and 367), China clarified at the oral hearing that its claim also covers the Panel's application of 
Article 2.4 to the facts of the case. 
735China's other appellant's submission, para. 311. 
736China's first written submission  to the Panel, para. 372. WT/DS397/AB/R 
Page 202  
 
  question what information was nece ssary to ensure a fair comparis on, the European Union violated 
Article 2.4.
737 
510. The Panel did not address this argument in its findings under Article 2.4 of the Anti-Dumping 
Agreement .  Regarding China's request during the interi m review stage that the Panel address this 
argument, the Panel responded: 
With respect to China's concern that  the Panel failed to address its 
argument that, by failing to info rm the Chinese producers of its 
decision not to base the dumping determinations on full PCNs, the European Union violated Article 2.4 of the [ Anti-Dumping 
Agreement ], we recall that this is the main argument China raises in 
connection with its claim under Articles 6.2, 6.4, 6.5 and 6.9 of the 
[Anti-Dumping Agreement ], which is addressed in the Report at 
paragraphs 7.477-7.483.
738 
511. The above review of China's arguments before the Panel indicates that China did not raise a 
separate claim under the last sentence of Article 2.4,  but referred to that sentence in support of its 
claim that the Commission acted inconsistently with  the obligation to conduct a fair comparison under 
Article 2.4 of the Anti-Dumping Agreement .  On appeal, China has also characterized its allegation 
under the last sentence of Article 2.4 as an "argument put forward by China".739  Thus, we disagree 
with China's view that the Panel's failure to a ddress this argument constitutes "a false exercise of 
judicial economy"740, because the issue of judicial economy is only relevant to the manner in which a 
panel deals with a party's claims .  Moreover, as the Appellate Body has found, a panel has the 
discretion "to address only those arguments it deems necessary to resolve a particular claim" and "the 
fact that a particular argument relating to that cl aim is not specifically addressed in the 'Findings' 
section of a panel report will not, in and of itself, le ad to the conclusion that that panel has failed to 
make the 'objective assessment of the matter be fore it' required by Article 11 of the DSU".741 
512. Although the Panel's failure to address China' s argument does not rise to the level of a 
violation of Article 11 of the DSU, we nonetheless consider that, in the light of its findings under 
Article 6.4 of the Anti-Dumping Agreement , the Panel should have considered China's argument under 
the last sentence of Article 2.4 of the Anti-Dumping Agreement  in reaching its finding.  As discussed 
above, Article 2.4 obliges investigating authorities to indicate to the parties what information is 
necessary to ensure a fair comparison and requires an investigating authority, at a minimum, to inform 
the parties of the products or product groups used for purposes of the price comparison.  This will 
                                                      
737China's second written submission to the Panel, paras. 778-787 and 796. 
738Panel Report, para. 6.98. 
739China's other appellant's submission, para. 306. 
740China's other appellant's submission, para. 312. 
741Appellate Body Report, EC – Poultry , para. 135. (emphasis omitted)  WT/DS397/AB/R 
 Page 203 
 
 
  then allow the parties to decide whether a request  for adjustment regarding any differences affecting 
price comparability should be made. 
513. We recall that, in the fasteners investigation,  the structure of the questionnaire sent to the 
Chinese producers suggested that  requests for adjustments woul d not be necessary because of the 
categorization of the product under investiga tion according to PCN groups.  However, the 
Commission decided to use a different method of product grouping to conduct the comparison, 
namely, the "product types" defined on the basis of strength class and the dis tinction between standard 
and special fasteners.  As noted above, significant differences existed between PCNs and the "product 
types" defined by the Commission.  Had the Ch inese producers known that these product types were 
used instead of PCNs, such differences could have prompted the Chinese producers to request 
adjustments within the meaning of Article 2.4.  In  this respect, the Panel correctly found, in its 
analysis under Article 6.4, that, without knowing wh at "product types" were used by the Commission, 
"it would be difficult if not impossible, for foreign producers to request adjustments that they consider 
necessary in order to ensure a fair comparison."742  Thus, the facts of the case indicate that, because 
the Commission did not clearly indicate the produc t types used for purposes of price comparisons 
until very late in the proceedings, the European Un ion acted inconsistently with its obligations under 
Article 2.4 by depriving the Chinese producers of th e ability to request adjustments for differences 
that could have affected price comparability. 
514. The Panel found, however, that the European Uni on acted consistently with Article 2.4 of the 
Anti-Dumping Agreement .  In so finding, the Panel analyzed China's claim under Article 2.4 in 
isolation from its analysis under Article 6.4 of th at Agreement.  Specifically, in disagreeing with 
China's argument that the Commission should have ma de adjustments for differ ences reflected in the 
PCN codes, the Panel stated that, "in the course of  the investigation at issue, none of the Chinese 
producers argued that there were factors which aff ected price comparability within the meaning of 
Article 2.4 other than those used by the Comm ission to categorize the product for comparison 
purposes, that is, strength class (which was an element of the PCNs) and the distinction between standard and special fasteners (which was not an element of the PCNs)".
743  The Panel further stated 
that, "[g]iven the absence of su ch a request [for adjustments for differences affecting price 
comparability] from the Chinese exporters, and any showing that there was a factor which affected 
                                                      
742Panel Report, para. 7.491. 
743Panel Report, para. 7.306. WT/DS397/AB/R 
Page 204  
 
  price comparability which should have been appa rent to the Commission", China's claim was 
unfounded and must be rejected.
744 
515. Yet, as the Panel found in the context of Article  6.4, "[i]n a case such as this one, where it 
appears from the structure of the questionnaires th at such requests will not be necessary because of 
the categorization of the product according to PCN groups, we consider that it is not unreasonable for 
exporters to not request specific adjustments which are already reflected in those PCN groups ."745  
The Panel further found that "Chinese producers were informed very late in the proceedings of the 
product types that formed the basis for the comparisons underlying the Commission's dumping determinations."
746  Thus, because of the Commission's failure to provide a timely opportunity to see 
the information concerning the basis of the pric e comparisons, the Chinese producers were precluded 
from requesting any adjustments for purposes of ensuring a fair comparison.  The "absence"747 of a 
request from the Chinese producers for adjustments on th e basis of the PCN characteristics, therefore, 
should not have prevented a finding of inconsistency under Article 2.4.  On the contrary, it further 
demonstrates that, due to the Commission's failure to indicate what information was necessary for a 
fair comparison, the Chinese producers were unable to exercise their rights under Article 2.4 to ensure 
that the Commission conducted a fair comparison of th e export price and the normal value.  Thus, in 
failing to consider the last sentence of Article 2.4 in  the light of the relevant facts of the case and its 
finding under Article 6.4, the Panel erred in  its application of Article 2.4 of the Anti-Dumping 
Agreement . 
516. China further maintains that the Panel erred in the interpretation of Article 2.4 of the 
Anti-Dumping Agreement  by failing to distinguish between tw o obligations encompassed under that 
provision:  first, the obligation for an investigati ng authority to evaluate identified differences that 
might affect price comparability;  second, the obligation of the authority to make adjustments if it finds that the differences indeed affected price comp arability.  In this dispute, China argues, because 
the Commission requested information on the basis of PCNs at the beginning of the investigation, the 
physical characteristics indicated in th e PCNs were identified by the Commission.
748  Thus, even in 
the absence of a request, the Commission should ha ve evaluated whether any of the identified 
differences could have had an impact on the prices compared. 
517. The Panel, quoting the panel's finding in EC – Tube or Pipe Fittings , found that the 
investigating authorities "must take steps to achieve  clarity as to the adjustment claimed and whether 
                                                      
744Panel Report, para. 7.306. 
745Panel Report, para. 7.491. (emphasis added) 
746Panel Report, para. 7.492. 
747Panel Report, para. 7.306. 
748China's other appellant's submission, para. 360.  WT/DS397/AB/R 
 Page 205 
 
 
  and to what extent that adjustment is merited".749  Logically, as a step "to achieve clarity as to the 
adjustment claimed", authorities must first evaluate  the differences identified to assess whether they 
affect price comparability.  Therefore, we do not cons ider that the Panel's interpretation of Article 2.4 
differs from China's view that an investigating auth ority must evaluate identified differences and then 
make adjustments.750  We are less convinced, however, by China's assertion that the authority must 
evaluate any identified differences, regardless of wh ether a request for adjustment has been made.  It 
is likely that, in an anti-dumping investigation, the differences between the products sold in the 
foreign producer's domestic and export markets would be numerous.  Di fferences between the 
products, however, would not alwa ys affect price comparability a nd require adjustments by the 
authorities.  China's assertion may place an undue bur den on an investigating authority to assess each 
difference in order to determine whether adjustment  is needed in every case, even without a request 
by the interested party. 
518. China further argues that the Panel failed to c onduct an objective assessment of the facts, as 
required by Article 11 of the DSU, in finding that China did not provide evidence in support of its claim that the PCN characteristics nece ssarily affected price comparability.
751  In addition, according 
to China, the Panel acted inconsistently with Article 17.6(i) of the Anti-Dumping Agreement  when it 
found that, because the Commission did not conclude that the PCN characteristics indicated differences affecting price comparability, it was ina ppropriate for the Panel to consider this issue 
itself.
752  China requests the Appellate Body to comple te the analysis and find that "an unbiased and 
objective investigating authority in this situation c ould only have concluded that such adjustments had 
to be made."753 
519. We emphasize that our finding above, that the Panel failed properly to a pply Article 2.4 of the 
Anti-Dumping Agreement , does not suggest that the PCN characteristics necessarily  reflect 
differences that affect price comparability.  Neither does it suggest that the Commission, had it 
examined the characteristics, would have made adju stments.  Rather, the authorities "must take steps 
to achieve clarity as to the adjustment claimed and then determine whether and to what extent that 
adjustment is merited".754  Thus, it is the investigating authority's duty to review the requested 
adjustments in order to determine whether any physi cal differences identified before it are differences 
that affect price comparability within the meaning of Article 2.4. 
                                                      
749Panel Report, para. 7.298 (quoting Panel Report, EC – Tube or Pipe Fittings , para. 7.158). 
750See also European Union's appellee's submission, para. 272. 
751See China's other appellant's submission, para. 383. 
752See China's other appellant's submission, para. 386.  See also Panel Report, para. 7.302. 
753China's other appellant's submission, para. 400. 
754Panel Report, EC – Tube or Pipe Fittings , para. 7.158.  WT/DS397/AB/R 
Page 206  
 
  520. In this dispute, because the Chinese producers were not able to claim adjustments, the 
Commission did not examine the issue of whether an y of the PCN characteristics, when compared to 
the product types used to establish the normal value,  were differences that affect price comparability.  
The numerous PCN characteristics were thus not co mpared with the product types chosen by the 
Commission and discussed for purposes of price comparison.  In this context, it was therefore reasonable for the Panel to state that, "while it may be plausible that the PCN characteristics described 
in this case indicate differences affecting price comparability"
755, there is no evidence on the Panel 
record that would support this conclusion.  Mo reover, it was the Commission's duty to review any 
requested adjustments to determine whether the re quest would be warranted.  As the Panel rightly 
found, absent any discussion during the investigation at issue, it was not appropriate, nor feasible, for 
the Panel to assume the role of an investigating authority and analyze the differences between each of 
the narrowly defined PCN characteristics a nd the product types used by the Commission.756  
Similarly, it is not within our mandate to revi ew whether the various PCN characteristics reflect 
physical differences that would have affected price comparability in the fasteners investigation, in the 
absence of any factual findings in this regard by the Commission or by the Panel.  Therefore, we 
decline to accept China's claim that  the Panel acted inconsistently with Article 11 of the DSU, or 
Article 17.6(i) of the Anti-Dumping Agreement , and, consequently, we also  decline China's request for 
completion of the analysis. 
521. Finally, China alleges that the Panel erred in its  interpretation and appli cation of Article 2.4 of 
the Anti-Dumping Agreement in disagreeing with China's argument that the European Union violated 
that provision because the Commission failed to evaluate, and make adjustments for, quality 
differences757 between Indian and Chinese fasteners, ev en though China demonstrated to the Panel 
that one Chinese producer requ ested such an adjustment.758  According to China, the Commission was 
under a duty at least to evaluate the claimed diffe rences in quality between the Indian and Chinese 
products.  Moreover, because "the quality differen ces affected price comparability, the Commission 
was required to make the necessary adjustments".759 
                                                      
755Panel Report, para. 7.302.  The Panel recalled that the PCN characteristics were:  type of fasteners 
(by CN code);  strength/hardness;  coating;  presence of chrome on coating;  diameter;  and length/thickness. 
(Ibid., footnote 617 to para. 7.302) 
756See Panel Report, para. 7.302. 
757We recall that quality is not one of the characteristics identified in the PCNs. 
758China's other appellant's submission, paras. 405 and 406. 
759China's other appellant's submission, para. 408.  WT/DS397/AB/R 
 Page 207 
 
 
  522. In reaching the finding challenged by China, the Panel noted China's assertion that, at 
recital 52 of the Definitive Regulation, the Comm ission "acknowledged" that there were quality 
differences between Indian and Chinese fasteners.760  Recital 52 states, in relevant part: 
The submission from the PRC authorities mentioned in recital 48 
enclosed an analysis report de tailing alleged qua lity differences 
between fasteners of a given standard (DIN 933 is used as an 
example) manufactured in the Community and the PRC.  … Any 
perceived differences in quality, which may subsist from a user's point of view, can be dealt with through an adjustment for physical differences (see recital 103) but do not mean that the two products are not comparable. 
523. In reviewing recital 52, the Panel found that China's argument was based on a misreading of 
that recital.  Specifically, the Panel found that "r ecital 52 relates to the issue of like product, not 
dumping determinations", and that "it refers to an analysis of differences between fasteners produced 
in China, and fasteners produced in the European Union", which China alleged in support of its 
argument that Chinese and EU fasteners are not comp arable, and therefore should not be considered 
"like".
761  Furthermore, the Panel noted that "China's argument seem[ed] to rest on the premise that 
the Commission stated in recital 52 that any perceive d quality differences would be dealt with through 
adjustments, and that therefore such  adjustments should have been made."762  The Panel observed, 
however, "that recital 52 says that any perceived di fferences in quality can be dealt with through 
adjustments", and "it is clear th at this recital does not even ad dress any differences between Indian 
and Chinese fasteners."763  On the basis of its review, therefore, the Panel concluded: 
Thus, despite the reference to recital 103 [in recital 52], where the 
Commission explains the adjustment made for differences in the cost 
of quality control between Indian and Chinese producers, we do not 
see what relevance recital 52 has to th e issue raised by China, that the 
Commission should have made an adjustment for quality differences between Chinese and Indian fasteners.
764 
524. On appeal, although China claims that the Panel erred in its interpretation and application of 
Article 2.4 of the Anti-Dumping Agreement  in finding that the Commission was not required to make 
adjustments for quality differences, it does not provi de any specific argument that addresses such an 
error in legal interpretation.  Rather, China's appeal hinges on its disagreement with the Panel 
concerning the meaning and scope of the above recital in the Definitive Regulation.  In our view, the 
Panel's finding, that recital 52 of the Definitive Regulation did not support the view that the 
                                                      
760Panel Report, para. 7.307. 
761Panel Report, para. 7.308. 
762Panel Report, para. 7.309 (referring to China's response to Panel Question 94). (original underlining) 
763Panel Report, para. 7.309. (original underlining) 
764Panel Report, para. 7.309. WT/DS397/AB/R 
Page 208  
 
  Commission acknowledged quality differences between Indian and Chinese fasteners, was based on a 
reasoned analysis of the text of the measure at is sue.  As the Panel correctly found, recital 52 "does 
not even address any differences between Indian and Chinese fasteners".
765  Moreover, China has not 
identified any specific differences in quality th at had been identified during the fasteners 
investigation.  We therefore see no basis for Chin a's argument that Recital 52 of the Definitive 
Regulation demonstrates that these quality differences were "identified".766 
525. China further argues that it submitted to the Pane l a letter sent by the Commission in reply to 
questions by certain Chinese exporters, in which th e Commission stated that "[p]hysical differences 
are addressed by … adjustment for the cost of quality  control which reflects the general difference in 
quality level."767  China maintains that this letter demons trated that the Commission was aware of a 
"general difference in quality level".768 
526. The Panel dismissed the relevance of the letter, finding that "nothing in this letter indicates 
that any evidence was proffered to the Commission to demonstrate that this alleged difference in 
quality affected price comparability", and that the letter did not clearly show that the Commission 
acknowledged that there were quality diffe rences affecting price comparability.769  In our view, the 
Panel's finding is properly premised on the content of the letter.  The letter clearly shows that it 
concerns adjustments for "cost of quality control"  rather than any differences in quality of the 
fasteners by Chinese and Indian producers.  More over, on appeal, China did not raise any claims 
under Article 11 of the DSU alleging that the Pane l's above review of a piece of evidence submitted 
by China was inconsistent with its obligation to condu ct an objective assessment of the facts.  Thus, it 
is not for us to second-guess the Panel's conclusion on the basis of its assessment  of this evidence.  
We consider, therefore, that China's claim is not properly substantiated and should therefore be 
dismissed.  Consequently, China's allegation that  the Commission should have made adjustments for 
such "acknowledged" difference s in quality also cannot stand.770 
F. Conclusion 
527. In sum, with respect to the Panel's findings on certain aspects of the dumping determination, 
we find that the Panel correctly found that the Eu ropean Union violated Article 6.4 of the 
Anti-Dumping Agreement  "by not providing a timely opportunity for Chinese producers to see 
                                                      
765Panel Report, para. 7.309.  
766China's other appellant's submission, para. 412. 
767China's other appellant's submission, para. 413 (quoting Panel Exhibit CHN-31, supra , footnote 310, 
point 5). 
768China's other appellant's submission, para. 414. 
769Panel Report, para. 7.311. 
770China's other appellant's submission, para. 418.  WT/DS397/AB/R 
 Page 209 
 
 
  information regarding the product types on the basis of which normal value was established".771  The 
Panel also correctly found that, in view of the Commission's failure to disclose the information on the 
product types on a timely basis, the European Un ion denied the Chinese producers a "full opportunity 
for the defence of their interests", in violation of Article 6.2 of the Anti-Dumping Agreement .772  We 
further find that, in failing to take into account the last sentence of Article 2.4 in the light of the 
relevant facts of the case and its finding under Article 6.4 of the Anti-Dumping Agreement , the Panel 
erred in its application of Article  2.4 of that Agreement.  We find, instead, that, in not disclosing the 
information on the product types on a timely basis,  the European Union acted inconsistently with 
Article 2.4 of the Anti-Dumping Agreement by failing to indicate to the parties in question what 
information was necessary to ensure a fair comparison. 
528. However, we do not find that the Panel erred in its interpretation of Article 2.4 of the 
Anti-Dumping Agreement  by failing to distinguish between an investigating authority's obligation to 
evaluate identified differences that might affect pr ice comparability, and to make adjustments if it 
finds that the differences indeed affected price comp arability.  Neither do we find that the Panel acted 
inconsistently with Article 11 of the DSU or Article 17.6 of the Anti-Dumping Agreement  in finding 
that the Commission was not required to make adjust ments for the physical differences between the 
characteristics reflected in the PCNs a nd the product types.  Finally, we find that the Panel did not err 
in the interpretation and application of Article 2.4 of the Anti-Dumping Agreement  in rejecting China's 
argument that the Commission acted inconsistently with  that provision by failing to evaluate, and to 
make adjustments for, quality differences. 
VIII.  Confidential Treatment and the Disclosure of Information under Articles 6.5 and 6.5.1 
and Articles 6.2 and 6.4 of the Anti-Dumping Agreement  
A. Introduction 
529. We will now turn to the participants' various appeals regarding the Commission's treatment of 
confidential information under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement , and the 
disclosure of information under Articles 6.2 and 6.4 of the Anti-Dumping Agreement . 
530. According to Article 6.5 of the Anti-Dumping Agreement , information that is "by nature" 
confidential or that is "provided on a confidential b asis" shall, upon "good cause" shown, be treated as 
such by the investigating aut horities.  Article 6.5.1 of the Anti-Dumping Agreement  requires that 
parties submitting confidential information also furnish a non-confidential summary thereof, in 
sufficient detail to permit a reasonable understanding of the substance of the information submitted in 
                                                      
771Panel Report, para. 7.494. 
772Panel Report, para. 7.495. WT/DS397/AB/R 
Page 210  
 
  confidence.  In exceptional circumstances, parties may indicate that confidential information is not 
susceptible of summary, and a statement of the reasons why summarization is not possible must be 
provided.   
531. The participants raise on appeal  several issues under Articles 6.5 and 6.5.1.  We will address 
first the European Union's appeal of the Panel's fi nding that the European Union acted inconsistently 
with Article 6.5.1 because two domestic producers
773 provided insufficient statements of the reasons 
why they could not provide non-confidential summari es of information submitted in confidence.  The 
European Union claims on appeal that Article 6.5.1 does not require investigating authorities to ensure that producers provide "appropriate" stat ements of the reasons why summarization is not 
possible, because, in the European Union's view , this provision imposes only a "best endeavours" 
obligation on investigating authorities.   
532. Next, we will address the European Union's second claim under Article 6.5 regarding the 
confidential treatment of the "product type" info rmation submitted by the analogue country producer, 
whose data the Commission used for the determination of normal value in lieu  of Chinese domestic 
prices.  We begin by addressing the European Unio n's preliminary objection that this claim was not 
within the Panel's terms of reference, and that the Panel's consideration and ruling on this claim 
deprived the European Union of its due process right s.  Then, we will address the issue raised by the 
European Union as to whether the requirement in Article 6.5 to show "good cause" for confidential 
treatment applies to an analogue country producer  not designated as an "interested party" under 
Article 6.11 of the Anti-Dumping Agreement . 
533. We will then turn to the claims raised by Ch ina in its Notice of Other Appeal regarding the 
Panel's finding that "potential commercial retaliati on" justified the confidential treatment of the 
identity of the complainants and supporters of the co mplaint.  China claims that the complainants did 
not make a sufficient "good cause" showing for treating the identity of the complainants and 
supporters as confidential, and that the Panel erred in both its applica tion of the burden of proof and in 
its rejection of China's argument that the Commissi on's disclosure of the co mplainants' identity in 
another context undermined the "good cause" alleged. 
534. Finally, we will address the European Union's appeal under Article 6.2 of the DSU that the 
Panel erred in finding that China's claims under Articles 6.2 and 6.4 of the Anti-Dumping Agreement 
challenging the non-disclosure of the identity of the complainants and supporters were within the 
Panel's terms of reference, despite the lack of an  explicit reference in the panel request to China's 
                                                      
773EU producers A. Agrati S.p.A. and Fontana Luigi S.p.A.  WT/DS397/AB/R 
 Page 211 
 
 
  claim regarding the non-disclosure of the id entity of the complainants and supporters.774  Since in 
China's view no "good cause" was shown under Article 6.5 to treat the identity of the complainants 
and the supporters of the complaint as confidential,  China claimed that the non-disclosure of their 
identity to the Chinese exporters and producers was inconsistent with the transparency and due 
process requirements of Articles 6.2 and 6.4.  The European Union contends on appeal that China's claims under Articles 6.2 and 6.4 with respect to the non-disclosure of the identity of the complainants 
were not within the Panel's terms of reference b ecause they were not included in the panel request. 
B. Confidential Treatment of Information under Articles 6.5 and 6.5.1 of the 
Anti-Dumping Agreement 
535. We begin with an interpretation of Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement .  
Articles 6.5 and 6.5.1 set out specific rules govern ing an investigating authority's acceptance and 
treatment of confidential informati on.  The provisions read as follows: 
6.5 Any information which is by nature confidential (for example, 
because its disclosure would be of significant competitive advantage to a competitor or b ecause its disclosure would have 
a significantly adverse effect upon a person supplying the 
information or upon a person fro m whom that person acquired 
the information), or which is provided on a confidential basis 
by parties to an investigation shall, upon good cause shown, be treated as such by the authorities.  Such information shall not be disclosed without specific permission of the party 
submitting it. 
6.5.1 The authorities shall require interested parties providing 
confidential information to furnish non-confidential summaries thereof.  These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in 
confidence.  In exceptional ci rcumstances, such parties 
may indicate that such information is not susceptible of summary.  In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided. 
536. Under Article 6.5, authorities must treat info rmation submitted by parties to an investigation 
as confidential if it is "by nature" confidential, or  if it is "provided on a confidential basis" and 
"upon good cause shown".  The confidentiality of in formation that is "by nature" confidential will 
often be readily apparent.  Article 6.5 provides illust rative examples of information that falls into the 
category of "by nature" confidential, including info rmation that is sensitive "because its disclosure 
                                                      
774We recall that Article 6.2 of the Anti-Dumping Agreement  provides that interested parties be given a 
full opportunity to defend their interests throughout an i nvestigation.  Article 6.4 in turn requires that the 
authorities provide timely opportunities for interested parties to see all non-co nfidential information relevant to 
the presentation of their cases. (See supra , paras. 478 and 507) WT/DS397/AB/R 
Page 212  
 
  would be of significant competitive advantage to a competitor or because its disclosure would have a 
significantly adverse effect upon a person supplying the information or upon a person from whom that 
person acquired the information".  One type of  such information is commercially sensitive 
information not typically disclosed in the normal course of business, and which would likely be regularly treated as confidential in anti-dumping investigations.
775  The question of whether 
information is "by nature" confidential depends on the content  of the information.  Information that is 
"provided on a confidential basis" is not necessarily confidential by reason of its content, but rather, 
confidentiality arises from the circumstances in whic h it is provided to the authorities.  These two 
categories may, in practice, overlap. 
537. The requirement to show "good cause" for confid ential treatment applies to both information 
that is "by nature" confidential and that which is provided to the authority "on a confidential basis".776  
The "good cause" alleged must constitute a reason suffi cient to justify the withholding of information 
from both the public and from the other parties inter ested in the investigation, who would otherwise 
have a right to view this information under Article 6 of the Anti-Dumping Agreement .  Put another 
way, "good cause" must demonstrate the risk of a potential consequence, the avoidance of which is 
important enough to warrant the non- disclosure of the information.  "Good cause" must be assessed 
and determined objectively by the investigating aut hority, and cannot be determined merely based on 
the subjective concerns of the submitting party. 
538. We find that the examples provided in Article 6.5 in the context of information that is 
"by nature" confidential are helpful in interpreting "good cause" generally, because they illustrate the 
type of harm that might result from the disclosur e of sensitive information, and the protectable 
interests involved.  Article 6.5 states that the discl osure of such information "would be of significant 
competitive advantage to a competitor" or "would have a significantly adverse effect upon a person 
supplying the information or upon a person from whom  that person acquired the information".  These 
examples suggest that a "good cause" which could justify the non-disclosure of confidential 
information might include an advantage being best owed on a competitor, or the experience of an 
adverse effect on the submitting party or the part y from which it was acquired.  These examples are 
only illustrative, however, and we consider that a wide range of other reasons could constitute 
"good cause" justifying the treatment of info rmation as confidential under Article 6.5.  
                                                      
775This could be the case, for example, for certain  profit or cost data or proprietary customer 
information. 
776See Panel Report, para. 7.451;  Panel Report, Korea – Certain Paper , para. 7.335;  and Panel Report, 
Guatemala – Cement II , para. 8.219.  WT/DS397/AB/R 
 Page 213 
 
 
  539. In practice, a party seeking confidential treatment  for information must make its "good cause" 
showing to the investigating authority upon submi ssion of the information.  The authority must 
objectively assess the "good cause" alleged for conf idential treatment, and scrutinize the party's 
showing in order to determine whether the submitting party has sufficiently substantiated its request.  
In making its assessment, the investigating author ity must seek to balance the submitting party's 
interest in protecting its confidential information777 with the prejudicial effect that the non-disclosure 
of the information may have on the transparency a nd due process interests of other parties involved in 
the investigation to present their cases and defend thei r interests.  The type of evidence and the extent 
of substantiation an authority must require will depe nd on the nature of the information at issue and 
the particular "good cause" alleged.  The obligati on remains with the investigating authority to 
examine objectively the justification given for the n eed for confidential treatment.  If information is 
treated as confidential by an authority without such a "good cause" showing having been made, the 
authority would be acting inconsistently with its ob ligations under Article 6.5 to grant such treatment 
only "upon good cause shown". 
540. In examining the scope of Article 6.5, we note that it extends the need to request confidential 
treatment to information submitted by "parties to an i nvestigation" rather than those in the specifically 
defined group of "interested parties".  As such, Article 6.5 does not limit the protection afforded to sensitive information to the "interested parties" expressly listed under Article 6.11 of the Anti-Dumping Agreement .
778  In our view, the term "parties to an  investigation" refers to any person 
who takes part or is implicated in the investigation.779  Moreover, Article 6.11 does not contain an 
exhaustive list of "interested parties", but states that "'interested parties' shall include " the persons or 
groups listed in that Article.  In our view, the pe rsons expressly listed in Article 6.11 are those who 
are in every case considered to be "interested pa rties", but are not the only persons who may be 
considered "interested parties" in a particular inves tigation.  We do not believe that an investigating 
                                                      
777Where necessary, the authority must also consider the submitting party's relationship with the source 
of the confidential information. 
778Article 6.11 of the Anti-Dumping Agreement  reads: 
For the purposes of this Agreement,  "interested parties" shall include: 
(i) an exporter or foreign producer or the importer of a product subject to 
investigation, or a trade or business association a majority of the members of 
which are producers, exporters or importers of such product; 
(ii) the government of the exporting Member;  and (iii) a producer of the lik e product in the importing Member or a trade and 
business  association a majority of  the members of which produce the 
like product in the territory of the importing Member. 
This list shall not preclude Members from allowing domestic or foreign 
parties other than those mentioned above to be included as interested parties. 
779The panel in Argentina – Poultry Anti-Dumping Duties  analyzed a similar term in Article 6.1.2 of the 
Anti-Dumping Agreement , that is, "other interested parties particip ating in the investigation", and developed a 
similar interpretation of th is term. (Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.153) WT/DS397/AB/R 
Page 214  
 
  authority is relieved of its obligations under Ar ticle 6.5 merely because a participant in the 
investigation does not appear on the list of "interested parties" in Article 6.11.
780  Rather, once 
"good cause" is shown, confidential treatment of se nsitive information must be afforded to any party 
who takes part or is implicated in the investigation or  in the provision of information to an authority.  
Pursuant to Article 6.5 such parties include pe rsons supplying information, persons from whom 
confidential information is acquired, and parties to an investigation. 
541. Whenever information is treated as confidential,  transparency and due process concerns will 
necessarily arise because such treatment entails th e withholding of information from other parties to 
an investigation.  Due process requires that inte rested parties have a right to see the evidence 
submitted or gathered in an inves tigation, and have an adequate oppor tunity for the defence of their 
interests.781  As the Appellate Body has stated, "that opportunity must be meaningful in terms of a 
party's ability to defend itself".782 
542. Articles 6.5 and 6.5.1 accommodate the concerns  of confidentiality, transparency, and due 
process by protecting information that is by nature confidential or is submitte d on a confidential basis 
and upon "good cause" shown, but establishing an alternative method for communicating its content 
so as to satisfy the right of other parties to the investigation to obtain a reasonable understanding of 
the substance of the confidential information, and to defend their interests.  As the Panel found, 
"Article 6.5.1 serves to balance the goal of ensuring that the availability of confidential treatment does 
not undermine the transparency of the investigative process".783  In respect of information treated as 
confidential under Article 6.5, Article 6.5.1 obliges  the investigating authority to require that a 
non-confidential summary of the information be furnis hed, and to ensure that the summary contains 
"sufficient detail to permit a reas onable understanding of the substance of the information submitted 
                                                      
780We note, in this respect, the European Union's argument that the "good cause" requirement for 
confidential treatment of information in Article 6.5 does not apply to analogue country producers like 
Pooja Forge, because they do not fall within the definition of "interested parties" under Article 6.11 of the 
Anti-Dumping Agreement . (European Union's appellant's submission, paras. 349-354)  In the fasteners 
investigation, the Commission did not determine normal value on the basis of the information from Chinese 
producers and exporters, and decided to seek inform ation from analogue country producers.  The Indian 
company Pooja Forge participated in  the investigation at the request of the Commission, and provided 
substantial amounts of information that was used as the basis for determining normal value.  In our view, the 
decision by the Commission to determine normal value based on information from an analogue country 
producer, and the participation of Pooja Forge in the investigation, require that Pooja Forge be afforded the protection of sensitive information upon "good cause" show n and the obligations of both Articles 6.5 and 6.5.1 
apply. 
781Appellate Body Report, Australia – Salmon , para. 272. 
782Appellate Body Report, US – Gambling , para. 270. 
783Panel Report, para. 7.515.  WT/DS397/AB/R 
 Page 215 
 
 
  in confidence".784  The sufficiency of the summary provid ed will therefore depend on the confidential 
information at issue, but it must permit a reasonabl e understanding of the substance of the information 
withheld in order to allow the other parties to the investigation an opportunity to respond and defend 
their interests. 
543. Article 6.5.1 contemplates that in "exceptiona l circumstances" confidential information may 
not be "susceptible of summary".  In such excep tional circumstances, a party may indicate that it is 
not able to furnish a non-confidential summary of the information submitted in confidence, but it is 
nevertheless required to provide a "statement of  the reasons why summarization is not possible".  
Article 6.5.1 relieves a party of its duty to provide a non-confidential summary of information submitted in confidence only if doing so "is not possibl e".  It is not enough for a party simply to claim 
that providing a summary would be burdensome or co stly.  Summarization of information will not be 
possible where no alternative method of presenting that  information can be developed that would not, 
either necessarily disclose the sensitive information,  or necessarily fail to provide a sufficient level of 
detail to permit a reasonable unde rstanding of the substance of the information submitted in 
confidence. 
544. Where information is kept confidential upon " good cause" shown, and it is not possible to 
provide a non-confidential summary of the informa tion that permits a reasonable understanding of its 
substance, the balance struck under Articles 6.5 an d 6.5.1 is altered, and the due process rights of 
other parties to the investigation are not fully respect ed.  Therefore, when it is not possible to furnish a 
non-confidential summary, Article 6.5.1 requires a party to identify the exceptional circumstances and 
provide a statement explaining the reasons why summarization is not possible.  For its part, the investigating authority must scrutinize such st atements to determine whether they establish 
exceptional circumstances
785, and whether the reasons given a ppropriately explain why, under the 
                                                      
784The panel in Mexico – Steel Pipes and Tubes  made a similar finding: 
We consider that the conditions set out in Article 6.5, chapeau, and 6.5.1 are 
of critical importance in preserving th e balance between the interests of 
confidentiality and the ability of another interested party to defend its rights 
throughout an anti-dumping investigation.  For precisely this reason, we 
consider it paramount for an investigating authority to ensure that the conditions in these provisions are fu lfilled.  We consider it equally 
important for a WTO Panel called upon to review an investigating 
authority's treatment of confidential information strictly to enforce these conditions, while remaining cognizant of the applicable standard of review. 
(Panel Report, Mexico – Steel Pipes and Tubes , para. 7.380) 
785The panel in Mexico – Olive Oil  came to a similar conclusion in its interpretation of the parallel 
provisions of the SCM Agreement , finding that: 
… the investigating authority should examine the reasons given for not 
summarizing the confidential information and determine whether, indeed, these reasons constitute "exceptional" circumstances. 
(Panel Report, Mexico – Olive Oil , para. 7.92) WT/DS397/AB/R 
Page 216  
 
  circumstances, no summary that pe rmits a reasonable understanding of the information's substance is 
possible.
786  As the Panel found, "in the absence of scru tiny of non-confidential summaries or stated 
reasons why summarization is not possible by the i nvestigating authority, the potential for abuse 
under Article 6.5.1 would be unchecked unless and until the matter were reviewed by a panel."787  
This "would obviously defeat the goal of maintaining transparency during the course of the investigation itself that is one of the purposes of Article 6.5".
788  In sum, Article 6.5.1 imposes an 
obligation on the investigating authorities to en sure that sufficiently detailed non-confidential 
summaries are submitted to permit a reasonable unde rstanding of the substance of the confidential 
information;  and, in exceptional circumstances,  to ensure that parties provide a statement 
appropriately explaining the reasons why particul ar pieces of confidential information are not 
susceptible of summary. 
C. Domestic Producers' Statements of the Re asons Why Summarization of Confidential 
Information Was Not Possible 
545. We turn next to the European Union's appeal of the Panel's finding that the Commission 
failed to ensure that two domestic producers complied  with the requirements of Article 6.5.1 of the 
Anti-Dumping Agreement , and thus the European Union acted inconsistently with that provision.789  In 
the fasteners investigation, two domestic  producers, A. Agrati S.p.A ("Agrati") and 
Fontana Luigi S.p.A. ("Fontana Luigi"), submitte d a substantial amount of information to the 
Commission on a confidential basis.  As required by Article 6.5.1, each producer provided, in addition 
to the non-confidential version of its questionnaire response, summaries for most of the information 
submitted in confidence.  For certain categories of information, however, no non-confidential 
summaries were provided, and only limited statements  were provided relating to the lack of such 
summaries.   
546. The Panel found that the statements provided by the two producers were not sufficient to 
comply with the requirement under Article 6.5.1 that, in the exceptional circumstance in which 
confidential information is not susceptible of summary , parties provide a statement of the reasons why 
summarization is not possible.  The Panel found that the statements submitted by these producers did not "relate to any of the specific information fo r which no non-confidential summary [was] provided, 
                                                      
786We note that various methods of summarization are used by parties and investigating authorities in 
anti-dumping investigations, such as indexing data, providing trends analysis, and aggregating data from 
multiple producers.  Where a certain method might be expe cted to be used for the speci fic type of information in 
question, it would be incumbent on the submitting party to explain, inter alia , why present circumstances 
prevent it from employing that method. 
787Panel Report, para. 7.515. 
788Panel Report, para. 7.515. 
789Panel Report, paras. 7.516 and 7.517.  WT/DS397/AB/R 
 Page 217 
 
 
  or to anything having to do with [the producer] itself, the party supplying it".790  Specifically, the 
Panel found that Agrati's statement simply asserte d that the confidential information could not be 
summarized.  The Panel further noted that, in certain cases, Agrati's assertion that it could not 
summarize the information was undermined by the f act that other domestic producers were able to 
produce summaries of the same types of information.791  In the case of Fontana Luigi, the Panel found 
that the producer did not even assert that the in formation was not susceptible of summary, but only 
stated that the various questionnaire r esponses were "by nature confidential".792  The Panel further 
found that there was no evidence "that would even suggest that the Commission ever considered 
whether [the producers'] stated reason for the l ack of a non-confidential summary of such 
information … was more than pro forma ", and concluded that the European Union thereby violated its 
obligations under Article 6.5.1 to ensure that an appropriate statement of reasons was provided.793 
547. On appeal, the European Union contends that Articles 6.5 and 6.5.1 impose only two 
requirements on investigating authorities, that is, to treat information as confidential, upon good cause 
shown, and to require parties to provide non-c onfidential summaries of information submitted in 
confidence.  The second, third, and fourth senten ces of Article 6.5.1 impose only a "best endeavours" 
obligation on the investigating authority to ensu re that non-confidential summaries provided include 
"sufficient detail to permit a r easonable understanding" of the underly ing information, or to require 
that a statement of reasons be provided where summarization is not possible.794  There is no basis, in 
the European Union's view, for the Panel's finding th at investigating authorities must ensure that 
parties provide "appropriate" non-confidential summar ies or "appropriate" statements of the reasons 
why summarization is not possible.795  According to the European Union, had the drafters intended 
Article 6.5.1 to impose a strict obligation on inv estigating authorities in these respects, the provision 
would have given authorities the power to pena lize non-compliance, for example, by disregarding 
confidential information when no non-confidential summary, or no statement of reasons explaining 
why summarization is not possible, is provided.796 
548. In response, China submits that, as the Panel found,  Article 6.5.1 entails a two-part obligation.  
First, Article 6.5.1 obliges an investigating au thority to require non-confidential summaries of 
confidential information, or, where applicable, st atements of the reasons why summarization is not 
possible.  Second, an investigating authority must further require that these summaries or statements 
                                                      
790Panel Report, paras. 7.516 and 7.517. 
791Panel Report, para. 7.516. 
792Panel Report, para. 7.517. 
793Panel Report, paras. 7.516 and 7.517. (original emphasis) 
794European Union's appellant's submission, para. 317. 
795European Union's appellant's submission, paras. 298 and 321. 
796European Union's appellant's submission, para. 319. WT/DS397/AB/R 
Page 218  
 
  be "appropriate" to satisfy the requirements of Article 6.5.1.
797  In China's view, interpreting this 
provision in a way that would allow less than "a ppropriate" summaries and statements would render 
the obligation "useless", and would violate the interp retative principle that an interpreter should not 
adopt a reading that reduces the provisions of a treaty "to redundancy or inutility".798 
549. As we have found above, contrary to the Eur opean Union's contention, Article 6.5.1 imposes 
an obligation on investigating authorities to ensure  that parties to an investigation provide non-
confidential summaries in sufficien t detail to permit a reasonable understanding of the substance of 
the information submitted in confidence;  and,  in the exceptional circumstances in which 
summarization of confidential information is not possi ble, that statements be provided appropriately 
explaining the reasons why this is so.799  The European Union is correct that the Anti-Dumping 
Agreement  does not provide for specific sanctions to penalize parties if they fail to provide a sufficient 
non-confidential summary or a statement of the r easons why summarization is not possible.  The 
Anti-Dumping Agreement  places a number of obligations on investigating authorities to make a fair 
and objective assessment of particular issues in ev ery investigation and to balance the rights and 
obligations of the interested parties subject to that investigation, with limited power to impose 
sanctions on a non-complying party.  However, this  does not derogate from the obligatory nature of 
the requirements.  It does not mean, as the Europ ean Union argues, that an investigating authority 
must merely make best efforts to ensure that such  summaries or statements of reasons are provided.  
The obligation rests on the Members to comply with th e requirements of Article 6.5.1, and it is left to 
each Member to determine how they will do so.   
550. In this instance, the Panel found that the non-confidential version of the questionnaire 
response submitted by Agrati cont ained non-confidential summaries of information submitted in 
confidence relating to some injury factors, but not others.800  For those where a non-confidential 
summary was not provided, the following statement was included:  "[t]he information cannot be 
summarized without disclosing confidential informat ion which can cause a damage to our company.  
The information has been provided as limited."801 
                                                      
797China's appellee's submission, para. 523. 
798China's appellee's submission, paras. 524 and 527. 
799See supra , paras. 542-544. 
800Agrati included a non-confidential summary for em ployment, sales and re-sales of the subject 
product, inventories, production, capacity and capacity utilization.  No summary was provided for factors such 
as return on investment, investments, profitability, cash fl ows, cost of production, suppliers of direct (raw) 
materials, volume of raw materi als used in production, extraordinary items with respect to costs, list of all sales 
to unrelated domestic customers, and allocation of different cost elements among different types of products. (See Panel Report, para. 7.516) 
801Panel Report, para. 7.516.  WT/DS397/AB/R 
 Page 219 
 
 
  551. In respect of the second domestic producer, F ontana Luigi, while the initial questionnaire 
response contained "almost no non-confidential summar ized information regarding injury factors", a 
follow-up response based on a specific request by the Commission contained non-confidential 
summaries for the majority of the information submitted in confidence.802  However, no summaries 
were provided for information regarding distributi on systems and price settings.  The reason given as 
to why a summary could not be provided was simply th at "[the] information is by nature confidential 
because its disclosure would be of significan t competitive advantage to a Competitor."803 
552. As we have found above, where a party clai ms that it cannot provide a non-confidential 
summary of information submitted in confidence, Artic le 6.5.1 requires an investigating authority to 
ensure that, in the exceptional circ umstances in which confidential in formation is not susceptible of 
summary, a submitting party provide instead a stat ement appropriately expl aining the reasons why 
summarization of that particular information is not  possible.  As we have also found, summarization 
of confidential information will not be possi ble where no alternative method of presenting the 
information can be developed that  would not, either necessarily discl ose the sensitive information, or 
necessarily fail to provide a sufficient level of detail to permit a reas onable understanding of the 
substance of the information submitted in confidence. 
553. Neither of the statements provided by Agrati or  Fontana Luigi indicated  why the information 
for which no non-confidential summary was provide d presented an "exceptional circumstance" to 
justify the lack of a summary, nor did either stat ement provide reasons explaining why summarization 
of a particular category of information was not possible.  With respect to Agrati, its statement 
asserting for each category that "[t]he information cannot be summarized without disclosing confidential information" speaks to a justification for providing confidential treatment in the first 
place.  It does not address the issue of why summarization of the information is not possible, or why the particular information presents exceptional circum stances that would justify a failure to provide a 
non-confidential summary.  Nor can the single statem ent repeated by Agrati be read as adequate 
justification for treating a number of different pieces of information as equally unsusceptible to 
summarization.  Furthermore, Agrati's assertion that it could not summarize information was undermined by the fact that Fontana Luigi was ab le to produce summaries of the same types of 
                                                      
802These non-confidential summaries relate to information concerning volume of production, 
production capacity, capacity utilization, total purchases in volume and value, stocks in volume of finished 
goods, sales and re-sales in value and volume both to related and unrelated companies, captive use, cost of production, consumption of raw material, profitab ility for the product in question and total company 
profitability, cash flows, investments, returns on net assets, and employment and labour costs both for the 
product concerned and for the company. (See Panel Report, para. 7.517 (referring to Annexes to Fontana Luigi's Non-confidential Questionnaire Response (Panel Exhibit EU-28)) 
803Panel Report, para. 7.517. WT/DS397/AB/R 
Page 220  
 
  information.
804  We agree with the Panel that Agrati's st atement did not "relate to any of the specific 
information for which no non-confidential summary [w as] provided or to anything having to do with 
Agrati itself".805  Therefore, we consider that the Commissi on failed to ensure that Agrati provided an 
appropriate statement of why summarization of certa in portions of its questionnaire response was not 
possible. 
554. With respect to Fontana Luigi, we note th at its statement that the non-summarized 
information is "by nature confidential because it s disclosure would be of significant competitive 
advantage to a Competitor" also addresses the reaso ns for seeking confidential treatment in the first 
place rather than demonstrating that summarization of the information is not possible.  Indeed, Fontana Luigi did not even assert that the confiden tial information could not be summarized, much 
less make the case that the information at issu e qualified as an "exceptional circumstance" under 
Article 6.5.1.  In the complete absence of an y statement of reasons why summarization of the 
confidential information was not possible, we agr ee with the Panel that the European Union, in 
accepting these statements as sufficient, did not meet its obligations under Article 6.5.1. 
555. Moreover, the Panel record does not indicate th at the Commission examined these statements 
to evaluate their consistency with Article 6.5.1.
806  In its appellant submission, the European Union 
states that it had requested improved non-confiden tial summaries from the domestic producers, and 
that, because interested parties did not complain further about the non-confidential file, "the authorities considered that there was no need to insist further".
807  The European Union further states 
that "no further investigation was conducted in resp ect of the few pieces of information for which no 
summary was provided and for which a statement of reasons was offered."808  Article 6.5.1 of the 
Anti-Dumping Agreement  requires an investigating authority to  scrutinize the reasons given by the 
party to determine whether they establish exceptiona l circumstances, and whether the reasons given 
appropriately explain why summarization is no t possible.  We do not consider that the 
European Union did so in this case. 
556. For these reasons, we uphold  the Panel's findings, in paragra phs 7.516 and 7.517 of the Panel 
Report, that the European Union acted inconsistent ly with its obligations under Article 6.5.1 of the 
Anti-Dumping Agreement  when it failed to ensure that  the domestic producers Agrati and 
                                                      
804Panel Report, para. 7.516. 
805Panel Report, para. 7.516. 
806For both producers, the Panel stated that "[t]here is nothing in the Definitive Regulation, or any other 
evidence that has been prof fered, that would even suggest that th e Commission ever considered whether [the 
parties'] stated reason for the lack of a non-confidential summary … was more than pro forma ." (Panel Report, 
paras. 7.516 and 7.517) 
807European Union's appellant's submission, para. 332. 
808European Union's appellant's submission, para. 332.  WT/DS397/AB/R 
 Page 221 
 
 
  Fontana Luigi provide appropriate statements as to why summarization of confidential information 
was not possible. 
D. Confidential Treatment of Information S ubmitted by the Analogue Country Producer, 
Pooja Forge 
557. We turn next to the European Union's appeal of the Panel's finding that the European Union 
acted inconsistently with its obligations under Article 6.5 of the Anti-Dumping Agreement  "with 
respect to the treatment of the confidential info rmation in Pooja Forge's questionnaire response".809  
558. In the fasteners investigation, the Commission applied Article 2(7) of its Basic AD 
Regulation to China and therefore did not determ ine normal value on the basis of the information 
from Chinese producers and exporters.  Rather , the Commission sought information from analogue 
country fastener producers and ultimately found one company in India, Pooja Forge, that was willing 
to respond to requests for information from the Commission.  Pooja Forge provided substantial amounts of information that was used as the basis fo r determining normal value.  When it returned its 
questionnaire, Pooja Forge submitted a non-confidential version of its response, in which it designated 
large portions as confidential, or left them blank.
810  China contended that this information should not 
have been granted confidential treatment by the Commission.  The Panel determined that "China 
[had] not put forward any evidence or arguments wi th respect to the confidential treatment of any 
other category of information than that concerning product types", and limited its analysis to that category.
811  The Panel went on to find that Pooja Forg e did not assert or show any "good cause" for 
treating such "product type" information as conf idential, nor did it provide a non-confidential 
summary or a statement of why summarization of the confidential information was not possible.812  
On this basis, the Panel concluded that the Europ ean Union acted inconsistently with its obligations 
under Article 6.5 of the Anti-Dumping Agreement  because it treated "product type" information as 
confidential without requiring Pooja Forge to show "good cause" for such treatment.813 
                                                      
809Panel Report, para. 7.525. 
810The Panel found that the non-confidential response contained information on company turnover, 
production, capacity and capacity utilization, but did not include information on sales to independent customers, costs or profits. (Panel Report, para. 7.518) 
811The Panel noted in this respect th at, in its second written submission to the Panel, China claimed that 
the non-confidential summary of Pooja Forge's questionnaire response "does not contain any information , and in 
particular information on the 'product types' on the basis of which the information has been provided by this 
producer", and the Panel decided to limit its analysis to the confidential treatment of "product types". (Panel 
Report, para. 7.524 and footnote 1041 thereto (quotin g China's second written submission to the Panel, 
para. 1110 (original emphasis))  We recall that the term "p roduct types", as used in the fasteners investigation, 
refers to the product categories upon which the Commission based its comparison between normal value and 
export price. 
812Panel Report, para. 7.525. 
813Panel Report, para. 7.525. WT/DS397/AB/R 
Page 222  
 
  559. The European Union appeals the Panel's findi ngs regarding the confidential treatment of 
Pooja Forge's questionnaire response on proce dural and substantive grounds.  First, the 
European Union contends that China's claim rega rding the Commission's confidential treatment of 
information submitted by Pooja Forge was not  within the Panel's terms of reference
814, or, in the 
alternative, that the manner in which China and the Panel dealt with this claim over the course of the 
proceedings deprived the European Union of its ri ghts to due process, and that the Panel made the 
case for the complainant.815  Second, the European Union claims that the Panel erred in finding that 
the requirement to show "good cause" for confidential treatment of information in Article 6.5 applies 
also to analogue third country producers.  In the European Union's view, the requirements of 
Article 6.5 apply only to "interested parties", as that term is defined in Article 6.11 of the 
Anti-Dumping Agreement , and a third country producer like Pooja Forge is not an "interested party" 
under that provision.816  The European Union further argues that  this interpretation makes sense in the 
context of an investigation involving an analogue co untry producer, because it would be too difficult 
to recruit companies willing to participate in such an investigation if they had to comply with the 
requirements of Articles 6.5 and 6.5.1.817 
560. China contends that its claim under Article 6.5 challenging the Commission's confidential 
treatment of information submitted by Pooja Forge w as within the Panel's terms of reference.  China 
argues that the Appellate Body should in any case reject the European Un ion's appeal, because the 
European Union did not raise this issue "promptly" be fore the Panel, and thereby waived its rights to 
have such an objection considered on appeal.818  China further contends that Article 6.2 of the DSU 
requires a party to list its claims  in the panel request, but does not require a party to include its 
arguments  explaining how the identified measure violates the responding party's obligations under a 
provision.819  On the substance of the European Union's cl aim, China points out that, by its own terms, 
Article 6.5 applies to "parties to an investigation", and not to "interested parties", and that the former 
term is a more inclusive concept that w ould also cover an analogue country producer.820  China argues 
that, due to the broad discretion investigating auth orities have in determining an alternative normal 
value for NME countries, it is particularly important  that the transparency requirements contained in 
Article 6.5 are strictly enforced.821  Finally, China argues that, even if Article 6.5 applies only to 
"interested parties" within the meaning of Article 6.11, it should nevertheless apply to Pooja Forge, 
                                                      
814European Union's appellant's submission, paras. 335 and 336. 
815European Union's appellant's submission, paras. 343 and 344. 
816European Union's appellant's submission, paras. 349-353. 
817European Union's appellant's submission, para. 356. 
818China's appellee's submission, paras. 572-575. 
819China's appellee's submission, para. 578. 
820China's appellee's submission, paras. 599-603. 
821China's appellee's submission, para. 606.  WT/DS397/AB/R 
 Page 223 
 
 
  because the Commission designated the company an "i nterested party" by virtue of Pooja Forge's 
involvement in the investigation.822 
561. Regarding the Panel's terms of reference, th e European Union acknowledges that it did not 
raise its challenge in this respect before the Panel.823  The Appellate Body has found that parties are 
required to raise procedural objections "promptly"824, but also that matters going to the jurisdiction of 
a panel are "fundamental" and can therefore be raised at any stage in a proceeding, including on 
appeal.825  If a claim is not within a panel's terms of reference, the panel does not have the jurisdiction 
to hear the claim.  Moreover, a party's failure to  raise a timely jurisdicti onal objection cannot operate 
to cure such a jurisdictional defect.  We therefore find that the European Union's failure to raise its 
terms of reference claim promptly before the Pa nel does not bar it from bringing this challenge on 
appeal. 
562. Article 6.2 of the DSU lays out the key requireme nts for a panel request and, by implication, 
the establishment of a panel's terms of reference unde r Article 7.1 of the DSU.  The complaining party 
must identify the specific measure at issue and provide a brief summary of the legal basis of the complaint, sufficient to present the problem clearl y.  The Appellate Body has found that the panel 
request "assists in determining the scope of the dispute" in respect of each measure, and 
"consequently, establishes and delimits  the jurisdiction of the panel".
826  The panel request also serves 
the important due process objective of notifying the respondent of the nature of the case it must defend.
827  As the Appellate Body stated in EC and certain member States – Large Civil Aircraft , 
"[t]his due process objective is not constitutive of, bu t rather flows from, the proper establishment of a 
panel's jurisdiction".828  The panel request must therefore be examined "as it existed at the time of 
filing" in order to determine whether a particular claim falls within the panel's terms of reference.829  
For its part, a panel must "scrutinize carefully the panel request, read as a whole, and on the basis of 
                                                      
822China's appellee's submission, paras. 608-611. 
823European Union's appellant's submission, para. 337. 
824Appellate Body Report, US – Carbon Steel , para. 123;  Appellate Body Report, Mexico – Corn 
Syrup (Article 21.5 – US) , para. 50;  Appellate Body Report, US – FSC , para. 166;  Appellate Body Report, 
US – 1916 Act , para. 54. 
825Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 791;  Appellate 
Body Report, US – Carbon Steel , para. 123;  Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , 
para. 36;  Appellate Body Report, US – 1916 Act , para. 54. 
826Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 640. 
827See Appellate Body Report, US – Carbon Steel , para. 126 (referring to Appellate Body Report, 
Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186).  Appellate Body Report, EC – Chicken Cuts , 
para. 155;  and Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108. 
828Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 640. 
829Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 642. WT/DS397/AB/R 
Page 224  
 
  the language used"
830, in order to determine whether it is "sufficiently precise"831 to comply with 
Article 6.2 of the DSU.  A party's later submissi ons may be referenced where the meanings of the 
terms used in the panel request are not clear on their face, but the content of these subsequent 
submissions "cannot have the effect of curi ng the failings of a deficient panel request".832 
563. Turning to the European Union's appeal, we note that China stated  in its panel request that the 
European Union had violated: 
… Articles 6.2, 6.4, 6.5 and 6.5.1 of the [ Anti-Dumping Agreement ] 
because the EC failed to ensure that domestic producers provided 
non-confidential summaries of confidential information they submitted or because the EC wrongly treated information as being confidential, thereby preventing Ch inese producers to have the full 
opportunity for the defence of their interests.
833 
We read China's panel request as containing the claims  that:  (i) the European Union failed to ensure 
that domestic producers provided non-confiden tial summaries of information submitted as 
confidential;  or (ii) the European Union wrongl y treated information as being confidential, and 
thereby prevented Chinese producers from having a full opportunity to defend their interests. 
564. The claim subject to the European Union's te rms of reference challenge is whether the 
European Union wrongly treated information submitt ed by Pooja Forge in its questionnaire response 
regarding "product types" as confidential.  Because Pooja Forge is not a domestic producer, this claim 
cannot fall under the first phrase in the panel requ est.  However, the language of the second phrase, 
"the [European Union] wrongly treated information as being confidential", is broad enough to capture 
China's claim regarding the confidential treatment of information submitted by Pooja Forge.  A claim 
that "the [European Union] wrongly treated in formation as confidential" implies that the 
European Union did so in circum stances where "good cause" was not s hown, and so falls within the 
scope of Article 6.5 of the Anti-Dumping Agreement .  The fact that the first phrase refers to "domestic 
producers" does not, in our view, limit or reduce the scope of the second phrase.  We therefore find 
that China's claim under Article 6.5 of the Anti-Dumping Agreement regarding the Commission's 
confidential treatment of information submitted by  Pooja Forge was within the Panel's terms of 
reference. 
                                                      
830Appellate Body Report, US – Carbon Steel , para. 127;  Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , paras. 164 and 169;  Appellate Body Report, US – Continued Zeroing , 
para. 161;  Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108. 
831Appellate Body Report, EC – Bananas III , para. 142;  Appellate Body Report, US – Zeroing (Japan) 
(Article 21.5 – Japan) , para. 108. 
832Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 642;  Appellate 
Body Report, EC – Bananas III , para. 143;  Appellate Body Report, US – Carbon Steel , para. 127.  
833WT/DS397/3, p. 5.  WT/DS397/AB/R 
 Page 225 
 
 
  565. As we have found that this claim was properly be fore the Panel, we turn to the substantive 
arguments and claims raised by the European Un ion on appeal.  The European Union submits that, 
through the manner in which the Panel dealt with it s claim under Article 6.5, the Panel deprived it of 
its due process rights and thus acted inconsistently with Article 11 of the DSU.  The European Union 
further claims that the Panel violated Article 11 of the DSU also because it impermissibly "made the 
case" for China through its questioning durin g the proceedings related to this claim.834  Specifically, 
the European Union argues that, but for the Panel's questioning, China would not have articulated its 
argument, or established a prima facie  case, that "good cause" had not been shown to justify the 
Commission's treatment of information submitted by Pooja Forge as confidential.   
566. We note at the outset that the burden rests on the complainant to substantiate its claims with 
legal arguments and evidence in its written and oral  submissions to the panel.  While the DSU, and 
Article 11 in particular, require a panel to make an  objective assessment of the matters that are before 
it, the panel must turn its attention to and direct its  questions at claims and arguments that the parties 
have articulated.  Where a complainant has failed to  set forth arguments in its submissions before a 
panel sufficient to substantiate its claims, a pane l may not use its interrogative powers to make good 
the absence of relevant substantiating arguments and evidence.835  We should not be understood to 
suggest, however, that, where arguments have been affirmatively raised  by the parties, the panel 
should not fully scrutinize such evidence and argumentation.  Where there is an absence  of 
argumentation, however, a panel cannot intervene to raise arguments on a party's behalf and make the 
case for the complainant. 
567. We recall that, in reviewing the European Uni on's argument that China failed to substantiate 
its claim under Article 6.5, the Panel stated that "t he way in which China had pursued this claim in 
this dispute is far from ideal", and that it was "partic ularly troubled by the fact that the claim was not 
developed at all in China's first written submission".836  The Panel explained that China's "fail[ure] to 
put forward a fuller explanation of and argument in support of its claim … left the European Union in 
a difficult position in attempting to respond to a claim that was unclear".837  The Panel determined, 
however, that China ultimately provided, "in its second written submission and its answer to [Panel] 
question 71, a sufficiently clear argument in suppor t of its claim to allow the European Union an 
adequate opportunity to respond".838 
                                                      
834European Union's appellant's submission, paras. 340-347. 
835See also Appellate Body Report, US – Continued Zeroing , para. 343; Appellate Body Report, 
Japan – Agricultural Products II , para. 129. 
836Panel Report, para. 7.522. 
837Panel Report, para. 7.522. 
838Panel Report, para. 7.522. WT/DS397/AB/R 
Page 226  
 
  568. We too are troubled by the way in which Chin a pursued its claim under Article 6.5 regarding 
the confidential treatment of "product type" inform ation submitted by Pooja Forge.  As the Panel 
found, China did not articulate a "good cause" claim or argument under Article 6.5 in its first written 
submission.  The arguments China did make in its fi rst submission were limite d to the deficiency of 
the non-confidential version of Pooja Forge's questionnaire response, which is a claim under 
Article 6.5.1, and not related to the issue of whether "good cause" for confidential treatment was 
shown under Article 6.5. 
569. The Panel record indicates that, at the first mee ting of the parties, the claims regarding Pooja 
Forge were not addressed by either party in its oral statement.  After the first meeting of the parties, 
referring to China's first written submissi on, the Panel asked China the following: 
Question 71: The Panel notes that in the heading of its claim 
regarding alleged deficiencies in questionnaire responses, China also refers to questionnaire responses by  the producer in the analogue 
third country.  The body of China' s argumentation in this regard, 
however, does not make reference to this issue.  Please elaborate. 
China submitted its response to this question on  the same day that it filed its second written 
submission.  China's answer to Panel Question 71 stated, in part: 
In China's view, a lot of (if not all) information was considered as 
confidential although no "good cause" was shown .  In this respect, 
China inter alia  refers to the fact that not even the categorizations 
("product types") used for the provision of the data were disclosed. 
This information is obviously not confidential and China therefore 
fails to see any "good cause" for the confidential treatment of this information. Indeed, no "good cause" can be shown for treating the product types applied for the data to  be provided, as confidential. By 
granting confidential treatment to these data, the EU violated 
Article 6.5 of the [ Anti-Dumping Agreement ].
839 (original boldface) 
570. Although China mentioned, for the first time, the issue of "good cause" in its above response, 
it did not provide any further arguments or evidence in this respect.  In its second written submission, 
China stated that it had not dropped its claim under Article 6.5 "as far as it relates to the deficient 
character of the questionnaire response of the producer in the analogue country".840  China then stated 
that the non-confidential version of Pooja Forge's questionnaire response "does not contain any 
information , and in particular information on the "p roduct types" on the basis of which the 
information has been provided by this producer which is obviously not confidential".841  These 
arguments, however, addressed the issue of whet her the non-confidential summary provided by 
                                                      
839China's responses to Panel Question 71, p. 113.  
840China's second written submission to the Panel, para. 1110. 
841China's second written submission to the Panel, para. 1110. (original emphasis)  WT/DS397/AB/R 
 Page 227 
 
 
  Pooja Forge met the requirement of Article 6.5.1.  They were not relevant to the issue of whether 
"good cause" was shown under Article 6.5 for treating the information submitted by Pooja Forge in its 
questionnaire response as confidential.842 
571. The Panel record further indicates that, at th e second meeting of the parties, China merely 
repeated the same argument it had put forward in  its second written submission, that Pooja Forge's 
non-confidential questionnaire response was inadequate.843  China did not raise the issue of the lack of 
a "good cause" showing in its oral statement at that meeting.  Following the second meeting of the 
parties, the Panel asked China to clarify whethe r it "expect[ed] a finding" regarding the issue of 
"good cause" under Article 6.5, or a finding rega rding the consistency of the non-confidential 
summary of Pooja Forge's questionnaire response with Article 6.5.1.844 
572. In response, China stated that it sought, first, a finding under Article 6.5, and second, if the 
Panel concluded that the information was pr operly treated as confidential, a finding under 
Article 6.5.1 that the European Union failed to require Pooja Forge to furnish a "non-confidential 
summary" of such information "in sufficient de tail to permit a reasonable understanding of the 
substance of the information submitted in confidence".845  However, in support of these claims, China 
again merely reiterated its argument that Pooja Fo rge's questionnaire response "[did] not contain any 
information at all and, in particular, concerning the 'product types'". 
573. Thus, as the Panel record clearly shows, the only time that China used  the term "good cause" 
was in its response to Panel Question 71, and there it was used in a cursory manner that only asserted 
a claim, without providing substantiating arguments  or evidence.  Throughout the Panel proceedings, 
China focused on the lack of information regarding "product types" in the non-confidential version of 
                                                      
842Although addressed to China, the European Union submitted its own comments in response to Panel 
Question 71, stating that, to the extent that China maintains its claims with regard to Pooja Forge, "the Panel 
should simply rule that China has failed to make a prima facie  case", because it "failed to provide any evidence 
in accordance and within the deadlin es set out in paragraph 16 of the Panel's working procedures".  
(European Union's response to Panel Question 71 after the first Panel meeting, para. 170) 
843In response, the European Union stated that the Panel's Working Procedures prevented it from 
allowing China to articulate its argume nts so late in the proceedings, and a sserted that "the Panel should not go 
any further because China had its opportunity to try to make its case but it failed to even try". (Panel Report, 
para. 7.520) 
844Panel Question 103, which reads in full:   
With respect to the claim regarding the non-confidential versions of the 
questionnaire responses of the two EU producers and that of the Indian 
producer, the Panel notes that, in its written submissions, China refers to 
Article 6.5 only but in its response to Question [71] from the Panel it refers 
to Article 6.5.1.  China's panel request refers both to Article 6.5 and 6.5.1.  
Please explain whether China expect s a finding under the chapeau of 
Article 6.5 or under Article 6.5.1 from the Panel with respect to this claim. 
845China's response to Panel Question 103 after the second Panel meeting, p. 24. WT/DS397/AB/R 
Page 228  
 
  the questionnaire response, rather than the lack of a "good cause" showing for confidential treatment 
in the first place. 
574. Rule 4 of the Panel's Working Procedures  requires that, "[b]efore the first substantive meeting 
of the panel with the parties, the parties to the dispute shall transmit to the panel written submissions 
in which they present the facts of the case and their arguments."  As described above, the Panel record 
shows that China asserted its claim under Article 6.5 regarding the lack of a "good cause" showing for 
the confidential treatment of Pooja Forge's ques tionnaire response only in response to questions from 
the Panel, and articulated this claim only afte r the parties had provided the Panel with written 
submissions and had attended a subs tantive meeting.  We do not find that assertions made so late in 
the proceedings, and only in response to questioning by  the Panel, can comply with either Rule 4 of 
the Panel's Working Procedures, or the requirements of due process of law.  The late assertion of a 
claim under Article 6.5 with respect to the lack of  a "good cause" showing for confidential treatment 
of Pooja Forge's "product type" information, a nd the absence of proper argumentation and of the 
provision of relevant evidence in support of this assertion, demonstrates that the European Union was 
not called upon to respond to China's claim under Article 6.5. 
575. In the light of the above, we find that China failed to substan tiate its claim under Article 6.5 
of the Anti-Dumping Agreement  that the confidential treatment of the "product type" information 
submitted by Pooja Forge in its questionnaire response was improper.  Therefore, we reverse  the 
Panel's finding, in paragraph 7.525 of the Panel Repor t, that the European Un ion acted inconsistently 
with its obligations unde r Article 6.5 of the Anti-Dumping Agreement "with respect to the treatment of 
confidential information submitted by Pooja Forge".  Having reversed the Panel's finding on this 
basis, we see no need to make a separate finding u nder Article 11 of the DSU that the Panel, as argued 
by the European Union, deprived it of its due process rights and impermissibly made the case for 
China.
846 
E. Confidential Treatment of the Identity of the Complainants 
576. We now turn to China's other appeal of the Panel's findings under Article 6.5 of the 
Anti-Dumping Agreement  that the European Union did not err in treating the identity of the 
complainants and supporters of the complaint as c onfidential.  In the fasteners investigation, the 
complainants and supporters of the complaint requ ested the Commission to grant such treatment in 
order "to avoid a potential retaliation which could be carried out by some of their Customers who also 
                                                      
846European Union's appellant's submission, paras. 340-347.  WT/DS397/AB/R 
 Page 229 
 
 
  buy products directly from P.R. China".847  The complainants alleged that, if these customers knew 
which European producers had requested or supported the initiation of this investigation, they might 
discontinue purchasing fasteners from those producer s.  The Commission accepted this request and 
granted confidential treatment.  
577. The Panel found that, although the complainants ' "good cause" showing was limited to the 
allegation contained in the complaint, this was not a "fatal lack of evidence" under Article 6.5.848  In 
the Panel's view, the reason for the confidential treatment provided in the complaint, that the 
retaliation could be carried out by customers who also bought products from Chinese producers, 
"substantiated their assertion to a certain degree by explaining the circumstances which they thought 
showed that commercial retaliation could happen".849  The Panel stated that "unless there is some 
reason to believe that the fear of retaliation is  unreasonable, unfounded, or untrue—and China has 
proffered none—we consider that the allegation of th e complainants in this case is a sufficient basis 
for the Commission's conclusion."850  The Panel therefore concluded that the European Union had not 
acted inconsistently with Article 6.5 when it treat ed the complainants' iden tity as confidential based 
on their allegation of potential commercial retaliation.851 
578. On appeal, China argues that the Panel erre d in finding that the "potential commercial 
retaliation" alleged by the complainants satisfied th e "good cause" requirement of Article 6.5.  China 
claims that the commercial retaliation asserted by th e complainants was not sufficient to constitute 
"good cause", because it was "merely hypothetical".852  China further submits that the complainants 
failed to provide any evidence to support the asserti on of potential commercial retaliation contained in 
the complaint.853  Moreover, China claims that the Panel erre d in the interpretation of Article 6.5, and 
acted inconsistently with Article 11 of the DSU, wh en it shifted the burden to China to show that the 
complainants' assertion of potential commercia l retaliation was "unfounded, unreasonable, or 
untrue".854  China contends that it demonstrated that this assertion was unfounded when it argued that 
the same producers' identity were in fact disclos ed as sampled producers in the context of the 
Commission's injury determination.855  Finally, should the Appellate Body find that no "good cause" 
existed to treat the identity of the complainants a nd supporters as confidential under Article 6.5, China 
asks the Appellate Body to complete the an alysis under Articles 6.2 and 6.4 of the Anti-Dumping 
                                                      
847Panel Report, para. 7.448. 
848Panel Report, para. 7.453. 
849Panel Report, para. 7.453. 
850Panel Report, para. 7.453. 
851Panel Report, para. 7.455. 
852China's other appellant's submission, paras. 450-453. 
853China's other appellant's submission, paras. 458 and 459. 
854China's other appellant's submission, paras. 464-467 (referring to Panel Report, para. 7.453). 
855China's other appellant's submission, paras. 471-477. WT/DS397/AB/R 
Page 230  
 
  Agreement  and find that the European Union's failure to  disclose the identity of the complainants and 
supporters was also inconsistent with these provisions.
856  
579. In response, the European Union argues that Chin a's claim ignores the f act that the purpose of 
protecting confidential information under Article 6.5 is to ensure that any adverse consequences 
resulting from the disclosure of sensitive information remain hypothetical.857  According to the 
European Union, the Panel did not rely on a "mere assertion", but evaluated the evidence in the light 
of the specific justification given.858  In addition, the European Unio n points out that the claim China 
raises under Article 11 of the DSU was not included in its Notice of Other Appeal, and that it is therefore not properly before the Appellate Body.
859  In any event, the Eur opean Union asserts that the 
Panel did not err in shifting the burden of proof to  China, because, having brought the claim before 
the Panel, it was up to China to make out a prima facie  case of inconsistency.860  Regarding the 
disclosure of the identity of the sampled producers later in the investigation, the European Union 
contends that China's claim relate s to the Panel's weighing of the ev idence, and therefore should have 
been brought under Article 11 of the DSU, which China did not do.861  On the substance of the 
argument, the European Union counters that not all of the sampled producers were supporters of the 
complaint, and that the sampled producers that mere ly cooperated in the investigation did not face the 
same risks in having their identit y disclosed as the complainants.862 
580. As a preliminary matter, we address the Europ ean Union's challenge that China's claim under 
Article 11 of the DSU in relation to the Panel's finding that "good cause" had been shown for the 
confidential treatment by the Commission of the comp lainants' identity is not properly before us 
because that claim was not mentioned in China's No tice of Other Appeal.  China contends that the 
language of its Notice of Other Appeal was sufficien t to notify the European Union of the nature of 
China's claim despite the absence of an explicit listing of  Article 11 of the DSU in this respect.  China 
further observes that, under the new Working Procedures  that entered into force on 
15 September 2010, the Notice of Other Appeal and the other appellant's submission are filed on the 
same day.  Therefore, any doubt about whether a cl aim was raised in China' s Notice of Other Appeal 
would have been easily dispelled by  its other appellant's submission.863   
                                                      
856China's other appellant's submission, paras. 482-488. 
857European Union's appellee's submission, para. 371. 
858European Union's appellee's submission, para. 375 (referring to China's other appellant's submission, 
para. 462). 
859European Union's appellee's submission, para. 362. 
860European Union's appellee's submission, para. 378. 
861European Union's appellee's submission, para. 363. 
862European Union's appellee's submission, para. 385. 
863China's responses to questi oning at the oral hearing.  WT/DS397/AB/R 
 Page 231 
 
 
  581. We are not convinced by China's arguments.  Rules 20(2)(d)(ii) and 23(2)(c)(ii)(B) of the 
Working Procedures require a participant to include in its No tice of Appeal or Notice of Other Appeal 
"a list of the legal provision(s) of the covered agreem ents that the panel is al leged to have erred in 
interpreting or applying".  The Appellate Body h as recognized the due process function that a Notice 
of Appeal fulfils, emphasizing: 
… the important balance that must be maintained between the right 
of Members to exercise the right of appeal meaningfully and effectively, and the right of appellees to receive notice through the Notice of Appeal of the findings under appeal, so that they may exercise their right of defence effectively.
864 
582. If an appellee is not notified of the claims rais ed by the appellant or other appellant in the 
Notice of Appeal or Other Appeal, those claims are not properly within the scope of the appeal, and 
the Appellate Body will not make findings thereon.865  China failed to list Article 11 of the DSU in its 
Notice of Other Appeal with regard  to the confidential treatment of  the identity of the complainants 
and supporters of the complaint, and we therefore find that this claim under Article 11 is not properly 
before us.  Thus, absent a claim under Article 11 of the DSU, we are not called upon to evaluate 
whether the Panel made an objective assessment of th e facts or to examine the Panel's weighing of the 
evidence before it.   
583. We recall that, in addition to its claim under Artic le 11, which we find to be outside the scope 
of our review, China also raises the following four arguments as to why the Panel erred in finding that 
confidential treatment of the identity of the comp lainants and supporters of the complaint was not 
inconsistent with Article 6.5 of the Anti-Dumping Agreement .  First, China alleges that the Panel 
relied upon the hypothetical character of commercial retaliation that "could" happen, rather than that 
"would" happen.866  Second, China argues that the Panel relied on a mere assertion contained in the 
complaint, and did not require any evidence in support of this assertion.867  Third, China maintains 
that the Panel shifted the burden to China to show  that the assertion contained in the complaint was 
"unfounded, unreasonable, or untrue".868  Fourth, China asserts that th e Panel erroneously rejected 
China's argument that the later disclosure of the complainants' and supporters' identity as sampled 
                                                      
864Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 62.   
865See Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 72;  
Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US) , 
para. 285;  and Appellate Body Report, Japan – Apples , paras. 124-128. 
866China's other appellant's submission, para. 454. 
867China's other appellant's submission, para. 455. 
868China's other appellant's submission, para. 464 (referring to Panel Report, para. 7.453). WT/DS397/AB/R 
Page 232  
 
  producers undermined the allegation that "good cause"  existed for the non-disclosure of the identity of 
the same producers as complainants.
869 
584. On this basis, we do not understand China to argue that "commercia l retaliation" may not 
constitute a "good cause" justification for confidential  treatment.  In this r espect, we agree with the 
Panel that "nothing in Article 6.5 … would excl ude potential commercial retaliation from constituting 
good cause for the confidential treatment of any inform ation, including the identity of complainants", 
and China does not challenge this finding.870 
585. Rather, we understand China to argue that the Commission erred in concluding that a showing 
of "good cause" was made by the complainants and that the Panel erred in upholding the Commission's conclusion.  We have set out above that the standard of "good cause" requires that a 
balance be struck between the proprietary interest s of those seeking protection of information and the 
transparency and due process that should be accorded  to parties that require access to information to 
defend their interests.  On the basis of this test, it is for the investigating authority to strike that 
balance and to make an objective determination of whether "good cause" has been shown.  Based on 
this test, a panel may review such a determination on the basis of relevant facts and legal arguments.  
Thus, China's appeal requires us to examine wh ether the Panel, in reviewing the Commission's 
determination, made an error in its  legal interpretation of Article 6.5 or incorrectly applied Article 6.5 
to the ascertained facts on record in this case.  With this in mind, we turn to review China's four 
arguments set out above. 
586. First, China contends that a party requesting confidential treatment must demonstrate that 
potential commercial retaliation "w ould" happen if the information was disclosed, and it is 
insufficient merely to show that such retaliation "coul d" happen.  The question before us, therefore, is 
whether the Panel made an error in the interpretati on and application of Article 6.5 because a request 
to treat information as confidential requires a demons tration that disclosure "would" give rise to the 
potential for retaliation, and not simply that it "could" do so. 
587. As we have found above, "good cause" can be shown when the party requesting confidential 
treatment demonstrates the risk of a potential adverse consequence.  The purpose of granting 
confidential treatment in this situation is "precisely to  make sure that the feared adverse effect, in this 
case 'potential commercial retaliation', remains hypo thetical, and does not actually materialize".
871  
We consider that China's argument that the complainants had to demonstrate that potential 
                                                      
869China's other appellant's submission, para. 471. 
870Panel Report, para. 7.452. 
871Panel Report, para. 7.453.  WT/DS397/AB/R 
 Page 233 
 
 
  commercial retaliation "would" happen—rather than  "could" happen—mistakes the nature of the 
inquiry.  Rather, China's claim relates to the gravit y and likelihood of the risk of the occurrence of 
potential commercial retaliation that a complainant a lleges, which is a question of degree.  We do not 
consider that the degree of risk of commercial retali ation is an issue of law.  The degree of risk does 
not define what constitutes "good cause" within the m eaning of Article 6.5.  Nor do we consider the 
degree of risk to be an application of the "good cau se" standard to ascertained facts.  Rather, it is a 
matter relevant to the extent and nature of the evidence required by an investigating authority to 
support a showing of "good cause".  In reviewing the authority's determination of "good cause", the 
Panel's assessment of the likelihood that comme rcial retaliation will occur goes to the Panel's 
weighing of the evidence.  Thus, we consider that  China's challenge is directed at the Panel's 
assessment of whether the kind and extent of ev idence before the Commission  was sufficient for the 
Commission to have reached the conclusion that a showing of "potential commercial retaliation" as 
"good cause" had been made.   
588. Absent a claim that the Panel failed to conduct an objective assessment of the facts, this is not 
a matter to be reviewed by us on appeal.  The leve l of risk and, more particularly, the likelihood or 
probability that such risk may come about are matters  of degree and must be assessed on the facts, and 
the Panel conducted such an assessme nt in reaching its finding.  No claim under Article 11 of the 
DSU has been properly raised on appeal, and theref ore the question before us is whether the Panel 
made an error of legal interpretati on or application.  No such error, however, has been demonstrated.  
Consequently, this factual de termination by the Panel warrants no interference by us. 
589. Second, with regard to China's claim that th e Panel relied on a mere assertion in reaching its 
finding, we recall that the Panel noted that the comp lainants alleged in the complaint that confidential 
treatment of the complainants' and supporters' iden tity was necessary because retaliation "could be 
carried out by some of their Customers who also buy products directly from P.R. China".872  
According to the Panel, "'potential commercial retali ation' is not a sufficiently concrete phenomenon 
that evidence of its existence is likely to be obtainable".873  The Panel considered that the Commission 
could rely on the factual circumstance of havi ng customers in common with Chinese suppliers who 
might be negatively affected by the complainan ts' actions as evidence of a risk of commercial 
retaliation.  The Panel went on to state that, "unless there is some reason to believe that the fear of 
retaliation is unreasonable, unfounded or untrue—and China has proffered none—we consider that the 
                                                      
872Panel Report, para. 7.448 (quoting European Industrial Fasteners Institute (EIFI), Complaint against 
Imports of Carbon Steel Fasteners from China, 24 September 2007 (Panel Exhibit CHN-15)). 
873Panel Report, para. 7.453. WT/DS397/AB/R 
Page 234  
 
  allegation of the complainants in this case is a sufficient basis for the Commission's conclusion".
874  
The Panel concluded that "China [did] not contest th e factual assertion that some of the customers of 
the complainants and the supporters of the applicat ion also bought the subject product from Chinese 
producers."875  The Panel found that, "by stating that their customers were also themselves importers 
of the subject product from China, the complainants  substantiated their assertion to a certain degree 
by explaining the circumstances which they th ought showed that commercial retaliation could 
happen."876 
590. We do not believe that the Panel, in making th ese findings, misinterpreted Article 6.5 of the 
Anti-Dumping Agreement  or misapplied the correct interpretati on of that provision to the ascertained 
facts before it.  Rather, the Panel found that th e assertion contained in the complaint demonstrated 
"good cause" for treating the complainants' iden tity confidential, because potential commercial 
retaliation could occur due to the uncontested fact that the complainants had customers in common 
with Chinese suppliers.  Moreover, we do not think th at China's argument is directed at whether the 
Panel erred in its interpretation of Article 6.5 or application of that provision to the facts of the case.  
Rather, China's argument that the Panel relied on this "mere assertion"877 in reaching its finding 
concerns the Panel's weighing of the evidence before  it.  Yet, as stated above, we are not called upon 
to assess whether the Panel exceeded its authority as the trier of facts in reviewing the Commission's 
decision to keep the identity of the complainants and supporters c onfidential, because no claim under 
Article 11 of the DSU has properly been raised in this respect. 
591. Third, China argues that the Panel shifted th e burden to China to show that the assertion 
contained in the complaint was "unfounded, unreasonable, or untrue".878  We recall that, before the 
Panel, China claimed that the European Union had acted inconsistently with Article 6.5 by accepting 
the assertion of "potential commercial retaliation" in  the complainants' request as a sufficient showing 
of "good cause" for the confidential treatment of their identity.  In raising this claim before the Panel, 
it was for China to make out a prima facie  case that no "good cause" had been demonstrated by the 
complainants, and that the Commission's decision to  grant the complainants' request to treat their 
identity as confidential was inconsistent with Article 6.5.  The Panel did not err, therefore, in asking 
China to present legal and factual arguments to s ubstantiate its claim that "good cause" was not 
shown, or, as the Panel put it, China had to s how that the complainants' assertion of potential 
                                                      
874Panel Report, para. 7.453. 
875Panel Report, para. 7.452. 
876Panel Report, para, 7.453. 
877China's other appellant's submission, para. 455. 
878China's other appellant's submission, para. 464 (referring to Panel Report, para. 7.453).  WT/DS397/AB/R 
 Page 235 
 
 
  commercial retaliation was "unreasonable, unfounded, or untrue".879  We thus do not find that the 
Panel shifted the burden of proof to China by requ esting it to do so.  As described above, the Panel 
reviewed the Commission's determination, and expl ained why it considered that the complainants' 
assertion of "potential commercial retaliation" provid ed a sufficient showing of "good cause" for 
confidential treatment of the complainants' identity.  In our view, the thrust of China's challenge 
regarding these findings is again directed mainly at the Panel's weighing of the evidence.  As no claim 
under Article 11 of the DSU has been properly raised in this regard, we decline to examine further 
these findings of the Panel. 
592. Finally, we recall that the Panel rejected Chin a's argument that the disclosure of the identity 
of the complainants and supporters as sampled pr oducers undermined the allegation that "good cause" 
existed for the non-disclosure of the identity of th e same producers or supporters.  China's argument 
on appeal relies on its challenge of the Pa nel's finding under Article 4.1 of the Anti-Dumping 
Agreement  that the domestic industry from which the sampled producers were drawn were not all 
complainants or supporters of the complaint, because the view of at least one of the sampled 
producers regarding support or  opposition to the complaint was unknown to the Commission.880  We 
have found above that the Panel did not err in finding that at least one producer who did not 
affirmatively state support for the complaint was in cluded in the domestic industry and selected for 
the sample.881  Therefore, China's contention that all producers included in the sample were 
complainants or supporters of th e complaint has not been established before the Panel, nor did the 
Panel make a factual finding to that effect.  Hence, we also do not agree that the disclosure of the 
identity of the sampled producers demonstrates, as  China contends, that no "good cause" was shown 
for keeping the identity of the complainants and supp orters confidential.  Moreover, we find again that 
China's challenge concerns the Panel's factual findi ngs and its weighing of the evidence.  We recall 
that China did not properly raise a claim under Ar ticle 11 of the DSU with respect to the Panel's 
disposition of its argument that the later disclosur e of the complainants' identity as sampled producers 
undermined the allegation that "good cause" exis ted for the non-disclosure of their identity as 
complainants.  Moreover, China has not pointed to an y specific error in the Panel's legal interpretation 
or application of Article 6.5 to the facts of the c ase.  We therefore decline to address further China's 
argument in this regard. 
593. Based on the foregoing, we uphold  the Panel's finding, in paragraph 7.455 of the Panel 
Report, that the European Union did not act inconsis tently with its obligations  under Article 6.5 of the 
                                                      
879Panel Report, para. 7.453. 
880See supra , para. 451. 
881See supra , para. 452. WT/DS397/AB/R 
Page 236  
 
  Anti-Dumping Agreement  when the Commission granted the requ est to treat the identity of the 
complainants and supporters as confidential.
882 
F. Whether China's Claim under Articles 6. 2 and 6.4 of the Anti-Dumping Agreement 
Regarding the Non-Disclosure of the Identity  of the Complainants Was within the 
Panel's Terms of Reference 
594. The European Union appeals the Panel's finding that China's claims under Articles 6.2 and 6.4 
of the Anti-Dumping Agreement  with respect to the non-disclosure of the identity of the complainants 
and supporters were within th e Panel's terms of reference.883  The European Union raises this 
procedural challenge in its Notice of Appeal indepe ndently of China's substantive claims in its Notice 
of Other Appeal that the confidential treatment of the identity of the complainants and supporters is 
inconsistent with Article 6.5.  The European Un ion appeals the Panel's terms of reference finding 
notwithstanding the fact that the Panel subsequen tly found that the confidential treatment of the 
complainants' identity was not inconsistent with  Article 6.5 and that, as a consequence, the 
European Union had not acted inconsistently with Article 6.2 or 6.4.884  
595. As we have discussed above, Article 6.2 of the DSU requires a complaining party to identify 
in its panel request the specific measure at issue a nd provide a brief summary of the legal basis of the 
complaint, sufficient to " present the problem clearly ".885  If a party fails in its panel request to 
"present the problem clearly", the claim in question is outside the panel's jurisdiction, and cannot be 
heard. 
                                                      
882China requests us to complete the analysis under Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  regarding the alleged failure to disclose the identity of the complainants only if we reverse the 
Panel's finding under Article 6.5 that a "good cause" s howing of "potential commercial retaliation" had been 
made.  Having upheld this finding of the Panel under Article 6.5, we consider China's request for completion of the analysis under Articles 6.2 and 6.4 moot. 
883European Union's appellant's submission, para. 361 (referring to Panel Report, para. 7.458). 
884The Panel reached this finding because information that is properly treate d as confidential under 
Article 6.5 is not subject to the requirement in Article  6.4 to provide timely opportunities for all interested 
parties to see all information that is relevant to the pr esentation of their cases.  Moreover, the Panel found that 
the requirement in Article 6.2 that interested parties have a full opportunity for the defence of their interests throughout the anti-dumping investigation is also conditional upon the need to preserve confidentiality. 
885Emphasis added.  As we have also stated above, the panel request "establishes and delimits the 
jurisdiction of the panel" and also serves the important due process objective of notifying the respondent of the nature of the case it must defend. (Appellate Body Report, EC and certain member States – Large Civil Aircraft , 
para. 640.  See Appellate Body Report, US – Carbon Steel , para. 126 (referring to Appellate Body Report, 
Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186;  also Appellate Body Report, EC – Chicken Cuts , 
para. 155;  and Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108))  This request 
must be examined as it existed at the time of submission an d, if deficiencies exist, they cannot be cured through 
the examination of the party's subsequent submissions. (Appellate Body Report, EC and certain member 
States – Large Civil Aircraft , para. 642;  Appellate Body Report, EC – Bananas III , para. 143;  Appellate Body 
Report, US – Carbon Steel , para. 127)  WT/DS397/AB/R 
 Page 237 
 
 
  596. China's panel request states that the De finitive Regulation was inconsistent with: 
… Articles 6.2 and 6.4 of the [ Anti-Dumping Agreement ] and 
paragraph 151(c)(e) of the Working Party Report on the Accession of 
China  because the EC failed to ensure throughout the investigation to 
Chinese producers/exporters the full opportunity for the defence of their interests and failed to provide  timely opportunities for them to 
see all information that is relevant to the presentation of their cases, 
including, but not limited to the composition of the domestic 
industry, data concerning normal va lue determination, information on 
the adjustments for differences affecting price comparability, Eurostat data on the basis of which are based the total EC production and EC consumption figures.
886 
China's panel request contains four cl aims under Articles 6.2 and 6.4 of the Anti-Dumping Agreement  
relating to:  (i) the composition of the domestic industry;  (ii) data concerning normal value 
determination;  (iii) information on the adjustment s for differences affecting price comparability;  and 
(iv) Eurostat data on which total EU production and consumption figures are based. 
597. We find that China's claim regarding the disclos ure of the identity of the complainants and 
supporters does not fall within the scope of any of th e four above descriptions.  The Panel did not find 
otherwise, but considered that China's panel request  should not be read as being limited to the specific 
descriptions contained in the request because they  are preceded by the phrase "including, but not 
limited to".887  The Appellate Body has previously found,  however, that this phrase cannot operate to 
include any and all other claims not specifically included in the request.888  Rather, each claim must be 
presented in a manner that "presents the problem clearly" within the meaning of Article 6.2 of the 
DSU.  China emphasizes the distinction between "cla ims" and "arguments", and asserts that the above 
descriptions represent "arguments" that need not be  included in a panel request at all pursuant to 
Article 6.2.  This, however, does not mean that the mere listing of Articles 6.2 and 6.4 of the 
Anti-Dumping Agreement , without more, succeeded in "present[ing] the problem clearly" in respect of 
the alleged failure to disclose the identity of the complainants and the supporters of the complaint. 
598. Therefore, we disagree with the Panel that th e "nature" of the obligations in Articles 6.2 
and 6.4 of the Anti-Dumping Agreement  is such that a complaining party need only list these Articles 
in order to satisfy the requirements  in Article 6.2 of the DSU to "provide a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly", and to notify the respondent and third 
parties of the nature of the case raised.  We ar e of the view that the obligations contained in 
Articles 6.2 and 6.4 of the Anti-Dumping Agreement  are relatively broad in scope and apply on a 
                                                      
886China's panel request (Panel Report, Annex G, p. G-9). 
887Panel Report, para. 7.458. 
888Appellate Body Report, India – Patents (US) , para. 90. WT/DS397/AB/R 
Page 238  
 
  continuous basis throughout an investigation.  The variety of claims contained in the panel request 
itself attests to this fact.  It may be possible in some circumstances to refer to the initial written 
submissions of the parties to clarify the meaning of  the terms used in a panel request.  In this case, 
however, we do not believe that China's claim under Articles 6.2 and 6.4 challenging the non-
disclosure of the complainants' and supporters' identity can be read into the terms actually used in the 
panel request by recourse to clarification found in China's submissions. 
599. We therefore reverse  the Panel's finding, in paragraph 7.458 of the Panel Report, that China's 
claims under Articles 6.2 and 6.4 of the Anti-Dumping Agreement  regarding the non-disclosure of the 
identity of the complainants and the supporters of the complaint were within the Panel's terms of 
reference.  As a consequence, we declare moot th e Panel's subsequent finding, in paragraph 7.459 of 
the Panel Report, that the European Union did not act  inconsistently with Articles 6.2 and 6.4 of the 
Anti-Dumping Agreement  by not disclosing the identity of the complainants and the supporters of the 
complaint. 
IX. Time-Limit for Submission of the MET/IT Claim Form 
600. We turn now to address China's appeal of  the Panel's finding that the "Market Economy 
Treatment and/or Individual Treat ment Claim Form" (the "MET/IT Claim Form") in the fasteners 
investigation was not subject to the 30-day peri od for reply provided in Article 6.1.1 of the 
Anti-Dumping Agreement .  To provide the relevant background,  we recall that, when an anti-dumping 
investigation involves an NME, the European Uni on applies an alternative method for calculating 
normal value, pursuant to Article 2(7) of the Basi c AD Regulation, using data from a market economy 
third country or using a constructed value and also  calculates a country-wide anti-dumping duty for all 
exporters pursuant to Article 9( 5) of the Basic AD Regulation.
889  However, if they satisfy certain 
criteria, NME exporters can individually establish that they operate under market conditions (under 
the "MET test"), or, in the alternative, that their export prices are free from State intervention (under the "IT test").
890  If an exporter satisfies the MET test, both normal value and export price will be 
calculated based on its own domestic sales data, and it will receive an individual dumping margin and 
individual duty, thereby receiving the same treatment as market economy exporters.891  If an exporter 
does not fulfil the MET test, but satisfies the IT test, its dumping margin will be calculated based on a 
comparison of an alternative normal value calculation and that particular exporter's export price, such 
                                                      
889Panel Report, para. 7.47. 
890See supra , section IV.B of this Report for a detailed description of the MET and IT tests contained in 
the Basic AD Regulation. 
891Panel Report, para. 7.47.  WT/DS397/AB/R 
 Page 239 
 
 
  that it will receive an individual dumping margin  and duty rather than a country-wide duty.892  For 
purposes of determining what kind of treatment NME exporters will receive dur ing the investigation, 
the Commission distributes to each exporter a single form entitled "Market Economy Treatment 
and/or Individual Treatment Claim Form" (the ME T/IT Claim Form).  The Commission distributed 
these forms in the fasteners investigation, and gave Chinese producers 15 days from the date of 
publication of the Notice of Initiation of the investigation to complete them.893 
601. China argued before the Panel that  the European Union acted inco nsistently with Article 6.1.1 
of the Anti-Dumping Agreement  because the Commission failed to allow the Chinese exporters and 
producers at least 30 days to complete the MET/IT Claim Forms, counted one week from the date on which they were sent out by the investigating authorit y.  The Panel rejected China's claim.  It found 
that the 30-day period stipulated in Article 6.1.1 applies only to "questionnaires", which it defined as 
"the initial comprehensive questionnaire issued in  an anti-dumping investigation to each of the 
interested parties by an investigating authority at  or following the initiation of an investigation, 
which … seeks information as to all relevant issues pe rtaining to the main questions that will need to 
be decided (dumping, injury and causation)".
894  The Panel examined the MET/IT Claim Form and 
concluded that the form was not a "questionnaire" w ithin the meaning of Article 6.1.1, and that the 
European Union was not obliged to give producers at least 30 days for its submission.895 
602. On appeal, China claims that the Panel erred in  its interpretation of the term "questionnaires" 
in Article 6.1.1 of the Anti-Dumping Agreement , as well as in its application of this interpretation to 
the MET/IT Claim Form.  China argues that the pr oper interpretation of the term "questionnaires" 
covers all "information requests … which are so s ubstantial that they deserve verifications being 
carried out and [which] do not prevent the investig ating authorities from complying with the time-
frames set out in the [ Anti-Dumping Agreement ]".896  In the alternative, if the Appellate Body upholds 
the Panel's interpretation of the te rm "questionnaires", China argues that  the Panel acted inconsistently 
with Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement  when it found that the 
MET/IT Claim Form did not fall within its definition of that term.897 
603. The European Union requests the Appellate Body to uphold the Panel's interpretation of 
Article 6.1.1 of the Anti-Dumping Agreement  and argues that China's interpretation "would make the 
                                                      
892Panel Report, paras. 7.48 and 7.49. 
893Panel Report, para. 7.567. 
894Panel Report, para. 7.574. 
895Panel Report, para. 7.577. 
896China's other appellant's submission, para. 538. 
897China's other appellant's submission, para. 544. WT/DS397/AB/R 
Page 240  
 
  meaning of the term 'questionnaires' arbitr ary and dependent on a case-by-case analysis".
898  T h e  
European Union also argues that the Panel's dete rmination that the MET/IT Claim Form was not a 
"questionnaire" for purposes of Article 6.1.1 was correct, because the MET/IT Claim Form is narrow 
in scope and serves a different purpose from "the in itial comprehensive questionnaire" distributed in 
an anti-dumping investigation.899  The European Union further s ubmits that China's claims under 
Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement  are not properly before the 
Appellate Body because they are not incl uded in China's Notice of Other Appeal.900 
604. As a preliminary matter, we agree that Chin a's Notice of Other Appeal does not explicitly 
mention claims under Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement901 in 
connection with its claim that the Panel erred in its application of Article 6.1.1 of the Anti-Dumping 
Agreement .  In its Notice of Other Appeal, China " seeks review of the Panel's conclusions and 
findings concerning China's claim that the European Union violated Article 6.1.1 of the 
[Anti-Dumping Agreement ]".  China asserts that "the Panel er red in its interpretation of the term 
'questionnaire' in Article 6.1.1", and that "even assu ming that the Panel did not err in its interpretation 
of the term 'questionnaire' … the Panel erroneously  concluded that the MET/IT claim form was not a 
'questionnaire' according to this definition".  Chin a also requests the Appellate Body "to reverse the 
Panel's findings and to conclude that the 'MET/IT claim form' is a questionna ire within the meaning 
of Article 6.1.1 of the [ Anti-Dumping Agreement ] and to complete the anal ysis by finding that the 
[European Union] violated Article 6.1.1 of the [ Anti-Dumping Agreement ]".  
605. Accordingly, it is clear from the face of th e Notice of Other Appeal that this ground of 
China's other appeal was raised only under Article 6.1.1 of the Anti-Dumping Agreement .  As 
discussed above902, under Rules 20(2)(d)(ii) and 23(2)(c)(ii) of the Working Procedures , only claims 
under those provisions of the covered agreements sp ecifically listed in a Notice of Appeal or Other 
Appeal are properly raised on appeal.  Therefore,  as China's claims under Article 11 of the DSU and 
Article 17.6 of the Anti-Dumping Agreement  regarding the MET/IT Claim Form were not included in 
its Notice of Other Appeal, we decline to make fi ndings upon them.  We proceed next to address the 
remaining issues raised in China's other appeal under Article 6.1.1 of the Anti-Dumping Agreement . 
                                                      
898European Union's appellee's submission, para. 418. 
899European Union's appellee's submission, para. 429. 
900European Union's appellee's submission, para. 405. 
901We note that the European Union has not raised this challenge in its appellee's submission, but we 
recall that matters going to the jurisdiction of a panel are fundamental and can therefore be raised at any stage in 
a proceeding. (See Appellate Body Report, EC and certain Member States – Large Civil Aircraft , para. 791;  
and Appellate Body Report, US – Carbon Steel , para. 123) 
902See supra , paragraphs 581 and 582.  WT/DS397/AB/R 
 Page 241 
 
 
  606. Articles 6.1 and 6.1.1 of the Anti-Dumping Agreement  read as follows: 
6.1 All interested parties in an anti-dumping investigation shall be 
given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.  
 6.1.1 Exporters or foreign producers receiving questionnaires 
used in an anti-dumping investigation shall be given at 
least 30 days for reply.[*]  Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should 
be granted whenever practicable. 
[* original footnote 15] As a general rule, the time-limit for exporters shall 
be counted from the date of receipt of the questionnaire, which for this 
purpose shall be deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate 
diplomatic representative of the ex porting Member or, in the case of a 
separate customs territory Member of th e WTO, an official representative of 
the exporting territory. 
607. The Panel began its interpretation of the term " questionnaires" in Article 6.1.1 by referring to 
a dictionary definition, namely "a formulated seri es of questions by which information is sought from 
a selected group".903  The Panel determined that this definition "[did] not suffice to answer the 
question before [it]", because applying such a de finition "could make it impossible for the authorities 
to obtain necessary information while still respecti ng the time limits on investigation set forth in 
Article 5.10 of the [ Anti-Dumping Agreement ]".904 
608. The Panel went on to analyze the context of the term "questionnaires" in Article 6.1.1 
provided by other provisions of the Anti-Dumping Agreement that contain the term, including Annex I 
on Procedures for On-the-Spot Investigations  Pursuant to Paragraph 7 of Article 6.905  Annex I states, 
in paragraphs 6 and 7 respectively, that "[v]isits to explain the questionnaire should only be made at 
the request of an exporting firm" and that such vi sits "should be carried out after the response to 
the questionnaire has been received".  The Pane l found that these references suggest that "'the 
questionnaire' is a substantial enough information request to warrant a visit to verify the information", 
"that it is sent early in the investigation", and that a verification visit is "a significant event" not likely 
to be repeated with respect to multiple "questionnaires".906  In addition to Annex I, the Panel also 
emphasized the use of the singular form of the term in footnote 15 of Article 6.1.1, which states that 
                                                      
903Panel Report, para. 7.571 (quoting The New Shorter Oxford English Dictionary , 4th edn, L. Brown 
(ed.) (Clarendon Press, 1993), Vol. 2, p. 2447). 
904Panel Report, para. 7.571. 
905Panel Report, para. 7.572 (quoting Panel Report, Egypt – Steel Rebar , para. 7.276). 
906Panel Report, footnote 1122 to para. 7.574. WT/DS397/AB/R 
Page 242  
 
  "the time-limit for exporters shall be counted from the date of receipt of the questionnaire".
907  The 
Panel opined that, if the drafters ha d intended the obligation in Article 6.1.1 to apply to more than one 
questionnaire, they might have used a plural or inde finite formulation in the footnote, such as, "'any' 
or 'a' 'questionnaire'".908  Instead, in the Panel's view, the language of the footnote suggests that a 
single questionnaire is sent to each recipient.  Th e Panel found that the term "questionnaires" in the 
first sentence of Article 6.1.1 refers to: 
… one kind of document in an investigation.  Turning to the question 
of what that document might be, we note that the considerations of 
context … suggest that it refers to the initial comprehensive questionnaire issued in an anti-dumping investigation to each of the interested parties by an investigating authority at or following the initiation of an investigation, wh ich questionnaire seeks information 
as to all relevant issues pertaining to the main questions that will 
need to be decided (dumping, injury and causation).[*] 
[* original footnote 1123] We recognize that there may be differences in the 
initial comprehensive questionnaires sent to the different interested parties, 
reflecting their different activities and interests in the investigation.  
Moreover, depending on how a Member organizes the conduct of anti-
dumping investigations, there may be separate and distinct initial questionnaires concerning the issues of dumping and injury and causation.  
These circumstances do not affect ou r fundamental conclusion, that the 
initial comprehensive document, or set of documents, covering all of these 
issues are encompassed by the term  "questionnaires" in Article 6.1.1.909 
609. The question before us is whether the Panel er red in defining the term "questionnaires" in 
Article 6.1.1 in this manner.  The interpretation of Article 6.1.1 requires that the provision be read in 
its proper context, in particular Ar ticle 6.1, which it follows.  Article 6.1 states that "[a]ll interested 
parties in an anti-dumping investigation shall be gi ven notice of the information which the authorities 
require and ample opportunity to present in writing all evidence which they consider relevant in 
respect of the investigation in question."  Article 6. 1 thus requires an investigating authority to give 
interested parties:  (i) notice of the information the authority requires;  and (ii) "ample opportunity" to present their evidence in writing.  Where a speci fic request for information is made by an 
investigating authority, what constitutes "ample  opportunity" to respond will depend upon the specific 
nature and scope of the request.
910  Along with Article 6.2 of the Anti-Dumping Agreement , the 
Appellate Body has found that the language in Artic le 6.1 provides for the "fundamental due process 
                                                      
907Panel Report, para. 7.573. (emphasis added by the Panel) 
908Panel Report, para. 7.573. 
909Panel Report, para. 7.574. 
910See Panel Report, US – Anti-Dumping and Countervailing Duties (China) , para. 15.23, where that 
panel made a similar finding.  WT/DS397/AB/R 
 Page 243 
 
 
  rights" of interested parties in an anti-dumping investigation.911  Together, these provisions "suggest 
there should be liberal opportunities for respondents to defend their interests".912 
610. Read in this context, Article 6.1.1 is concerned with the circ umstance in which "[e]xporters or 
foreign producers" are asked to complete "questionna ires", and requires the investigating authority to 
allow these responding parties at least 30 days from th e date of receipt to submit responses.  Domestic 
producers can control the timing of the submission of a request for initiation of an anti-dumping 
investigation because it is their complaint that tri ggers the authority's investigative process.  The 
complaining producers therefore have an opportunity  to gather much of the evidence necessary to 
support their complaint in advance.  The responding parties, on the other hand, typically receive no notice until the initiation of the investigation.  Ar ticle 6.1.1 protects exporters and foreign producers 
by requiring investigating aut horities to provide them with at least 30 days to reply to 
"questionnaires", and by allowing that extensions should be granted whenever practicable, upon cause 
shown.  This indicates to us that the specific due pr ocess interest of exporters and foreign producers to 
be afforded an ample opportunity to respond has been expressly provided for.
913 
611. The proper interpretation of Article 6.1.1 must al so take into considerations the interests of 
investigating authorities in contro lling their investigative process and bringing investigations to a 
close within a stipulated period of time.  Article 5.10 of the Anti-Dumping  Agreement  requires that 
investigations be completed within 12 months or, in  special circumstances, no more than 18 months.  
In this vein, Article 6.14 of the Anti-Dumping Agreement  states that none of the procedures set out 
under Article 6 is intended "to prevent the authoriti es of a Member from proceeding expeditiously" in 
reaching their determinations.  The balance between a party's "ample opportunity" and the 
investigating authority's interest in controlling the investigative process was articulated by the 
Appellate Body in Mexico – Anti-Dumping Measures on Rice , where it found that: 
… the due process rights in Article 6 of the Anti-Dumping 
Agreement—which include the right to 30 days for reply to a questionnaire—"cannot extend indefinitely" but, instead, are limited by the investigating authority's need "to 'control the conduct' of its inquiry and to 'carry out the multiple steps' required to reach a timely 
completion" of the proceeding.  As such, the time-limits for 
completing an investigation serve to circumscribe the obligation in 
                                                      
911Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241. 
912Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241. 
913Footnote 15 of Article 6.1.1 ensu res that foreign exporters receive a full 30 days for completion and 
submission of the questionnaires, by speci fying that this period "shall be counted from the date of receipt of the 
questionnaire, which for this purpose sh all be deemed to have been receive d one week from the date on which it 
was sent". WT/DS397/AB/R 
Page 244  
 
  Article 6.1.1 to provide all interested parties 30 days to reply to a 
questionnaire.
914 (emphasis omitted;  footnotes omitted) 
612. Therefore, while Article 6.1.1 captures a specif ic due process concern as indicated above, the 
"questionnaires" referred to in that Article do not refer to every request for information made by an 
investigating authority to exporters or foreign producers.  Rather, the "questionnaires" must be 
substantial requests, distributed early in the inv estigation, when a 30-day timeframe for the response 
would not lead to a delay in the completion of th e investigation.  They afford the investigating 
authority an early opportunity to solicit relevant information from exporters and foreign producers on 
key aspects of the investigation that is to be conducted by the authority.   
613. Based on these considerations, we conclude that the meaning and scope of the term 
"questionnaires" in Article 6.1.1 of the Anti-Dumping Agreement , and its application to specific kinds 
of documents, must reflect a balance between the due process requirement to provide parties with an "ample opportunity" to submit all information they consider responsive to a questionnaire request in 
an anti-dumping investigation, and the overall timeframe imposed on the investigation under 
Article 5.10, along with the need for authoriti es to proceed expeditiously as contemplated in 
Article 6.14.  We therefore find that the "questionna ires" referred to in Article 6.1.1 are a particular 
type of document containing substantial requests for in formation, distributed early in an investigation, 
and through which the investigating authority solic its a substantial amount of  information relating to 
the key aspects of the investigation that is to be conducted by the authority (that is, dumping, injury, 
and causation).  While in many investigations one "questionnaire" may be employed to solicit such 
information on these aspects of the investigation,  we consider that, de pending on how different 
Members organize the conduct of the investigation process, a party may receive several substantial 
requests soliciting such comprehensive information th at are "questionnaires" within the meaning of 
Article 6.1.1. 
614. Having defined the kind of information requests that qualify as "questionnaires", we now turn 
to examine the MET/IT Claim Form at issue in this case.  The European Commission distributes 
MET/IT Claim Forms to exporters and foreign producers in countries specified as NMEs under Article 2(7) of its Basic AD Regulation.  The form  is 14 pages long and contains questions regarding 
corporate identity and other corporate information, primary materials and other cost components for 
the product concerned, industrial property right s, labour rights and working conditions, production 
facilities and production, sales prices, financial stat ements, and accounting principles and practice.  
                                                      
914Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 282.  See also Appellate 
Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 241 and 242;  and Appellate Body 
Report, US – Hot-Rolled Steel , para. 73.  WT/DS397/AB/R 
 Page 245 
 
 
  The purpose of the MET/IT Claim Form is to dete rmine whether a particular exporter or producer 
from an NME country should be treated as a market economy exporter or producer, despite the 
exporting country's designation as an NME;  or, if a particular exporter cannot satisfy this MET test, 
whether that exporter should nonetheless be granted "individual treatment" in the determination of 
margins and duties because it is sufficiently inde pendent from the State to satisfy the IT test.915  The 
Panel found that questions contained in the M ET/IT Claim Form "are not relevant in all 
investigations, and are not directly related to th e determinations of dumping, injury and causation".916  
Rather, the information solicited is necessary for the determination of whether an exporter or foreign 
producer operates under market economy conditions, or whether its export activities are independent 
from State intervention.917   
615. We recall that Article 6.1 of the Anti-Dumping Agreement  requires investigating authorities to 
give all interested parties "ample opportunity" to su bmit evidence that they consider relevant to the 
investigation, and that this obligation applies also to information requests that cannot be considered "questionnaires".  In our view, the determinati ons made regarding MET and IT treatment are 
important for NME exporters and foreign producers.
918  The MET/IT Claim Form was the first request 
for information received by the Chinese exporters in the fasteners investigation, and their responses 
were subject to verification.919  While much of the information requested would seem to be readily 
accessible to the responding party, the form request s certain production and sales data for "the product 
concerned" that may need to be collected and report ed in a form that is not regularly kept by the 
company, and could therefore involve a certain amount of time and effort for completion.920  Given 
the consequences of MET/IT status for exporte rs and foreign producers, and the amount of 
information solicited in the MET/IT Claim Form , we consider that, under the requirements of 
Article 6.1, a deadline of 15 days from the date of  publication of the Notice of Initiation was too short 
and did not provide parties with "ample opportu nity" to submit all evidence in support of their 
requests for MET or IT treatment.  However, China has not invoked Article 6.1 in this case.  Rather, 
China has limited its claim to the specific time pe riod required for the submission of "questionnaires" 
under Article 6.1.1, and it is under this provisi on that we are called upon to make findings. 
                                                      
915European Commission, Market Economy Treatment and/or Individual Treatment Claim Form 
(MET/IT Claim Form) (Panel Exhibit CHN-72). 
916Panel Report, para. 7.577. 
917Panel Report, para. 7.576. 
918Panel Report, para. 7.577.  See supra , paragraphs 600 and 614. 
919Panel Report, para. 7.577. 
920For example, the MET/IT Claim Form requests Chinese exporters to submit monthly production 
figures for the product concerned, or, if foreign owned, total volume of production during the investigation period, a list of average unit costs of primary materials, and an explanation of how these materials are procured, 
including a list of suppliers. (See Panel Exhibit CHN-72) WT/DS397/AB/R 
Page 246  
 
  616. In determining whether an information request is a "questionnaire" under Article 6.1.1, as we 
have defined this term above, an investigating au thority must ascertain whether it is a substantial 
request seeking to elicit from exporters and foreig n producers comprehensive information regarding 
the key aspects of the anti-dumping determination, that is, dumping, injury, and causation.  While the length and complexity of the request are not irrele vant, the determination of whether a particular 
request for information constitutes a "questionna ire" depends on the content and purpose of the 
request for information. 
617. In order to make determina tions on the key aspects of dumping, injury, and causation, 
pursuant to Articles 2 and 3 of the Anti-Dumping Agreement , investigating authorities need to collect, 
among other things, information on exporters' products, domestic a nd export sales, production and 
production capacity, cost of production, and factors relevant to adjustments to carry out a fair 
comparison.  The typical anti-dumping questionnaire used by the Commission for exporters therefore 
solicits information relating to all of these factor s.  More specifically, the questionnaire solicits 
information regarding specifications of export and domestic products, comp arison of export and 
domestic products, turnover, total quantity and va lue of sales, production and capacity statistics, 
stocks, employment, investments, export sales to related and unrelated customers in the 
European Union, domestic sales to related and unr elated customers, accounting system and policies, 
production process and cost of production, allowa nces on export sales, and allowances on domestic 
sales.
921 
618. By contrast, the MET/IT Claim Form is employed by the Commission for a different 
specifically defined purpose:  to select those e xporters or producers that operate under market 
economy conditions or that are sufficiently independe nt from the State to justify different treatment 
from non-qualifying NME exporters or producers.  In determining whether an exporter or foreign 
producer operates under market conditions under th e MET test, the Commission examines factors 
including:  (i) the "decisions of firms regarding prices, costs and inputs";  (ii) their accounting 
standards;  (iii) the extent to which production cost s are "subject to significant distortions";  (iv) the 
applicability of "bankruptcy and property laws whic h guarantee legal certainty and stability";  and 
(v) whether "exchange rate conversions are carried out at the market rate".922  In order to establish 
whether an exporter or foreign producer is sufficiently independent from the State under the IT test, 
the Commission will determine whether:  (i) it is " free to repatriate capital and profits";  (ii) "export 
prices and quantities, and conditions a nd terms of sale are freely determined";  (iii) "the majority of 
                                                      
921For purposes of this discussion, we refer to the anti-dumping questionnaire sent to exporters and 
producers of farmed salmon from Norway, which was provided to the Panel by China as Exhibit CHN-63. 
922Basic AD Regulation, supra , footnote 5, Article 2(7)(c).  WT/DS397/AB/R 
 Page 247 
 
 
  the shares belong to private persons";  (iv) "exchang e rate conversions are carried out at the market 
rate";  and (v) "State interference [would] permit circumvention of measures if individual exporters 
are given different rates of duty".923   
619. China argues that much of the information solicited in the MET/IT Claim Form is also 
relevant to the determinations of dumping, injury , and causation, and that it is therefore similar 
enough to the European Union's typical anti-dumpi ng questionnaire discussed above to constitute a 
"questionnaire" for purposes of Article 6.1.1.  However, a comparison of these two information 
requests shows that a typical anti-dumping questi onnaire solicits different information and for a 
different purpose than the MET/IT Claim Form.  The latter form solicits inform ation regarding factors 
such as what bankruptcy or property laws are app licable, whether companies are free to repatriate 
capital and profits, or whether the majority of the shares belong to private parties that may be of 
relevance for determining whether exporters operate  independently from the State;  however, such 
information is not relevant for the purpose of determining dumping, injury, or causation.   
620. Even where the MET/IT Claim Form and th e typical "questionnaire" solicit similar 
information, that information is used for a diffe rent purpose.  For example, in making its dumping 
determination, the Commission examines in detail an d on a product-by-product basis, factors such as 
product specifications, sales, and prices in order to make its comparison between export price and 
normal value.  In order to do so, the Commi ssion collects data from exporters to determine actual  
export quantities and prices, production costs, and capacity.924 
621. By contrast, the MET/IT Claim Form requests production information for the different and 
specific purpose of determining whether "the produc tion costs and financial situation of firms" are 
"subject to significant distortions", and whethe r the "decisions" of NME exporters and producers 
regarding prices, costs, and inputs are "made in response to market signals reflecting supply and 
demand, and without significant State interferenc e", such that its production costs "substantially 
reflect market values".925  If the MET test is not satisfied, the Commission analyzes the production 
                                                      
923Basic AD Regulation, supra , footnote 5, Article 9(5). 
924For example, the typical questionnaire sent by the Commission to exporters in an anti-dumping 
investigation requests submission of, inter alia , total production and purchases of the product concerned, 
capacity and capacity utilization including how these factors are calculated, the country of origin and specific sources of purchases of the product, descriptions of production lines and major components, and descriptions of 
the manufacturing process a nd production facilities used for each prod uct, including the raw materials used, 
relationship to the supplier, other products manufactured in the same facilities, other companies involved in the manufacturing process, and the number of days the product concerned is on average held in inventory before 
sale.  All product information must be submitted on the basis of PCNs, which the exporter must create "for each 
unique combination of product characteristics" using a table provided by the Commission. (See Panel Exhibit CHN-63, supra , footnote 921)  
925Basic AD Regulation, supra , footnote 5, Article 2(7)(c). WT/DS397/AB/R 
Page 248  
 
  data submitted to determine, under the IT test , whether export prices and quantities "are freely 
determined"
926 for the purpose of assessing whether the exporter operates independently from the 
State.  The MET/IT Claim Form requests much less detailed information than the typical anti-
dumping questionnaire;  it requests that exporters  submit monthly production figures for the product 
concerned, or, if foreign owned, total volume of pr oduction during the investigation period, a list of 
average unit costs of primary materials, and an explanation of how these materials are procured, 
including a list of suppliers.927  The MET/IT Claim Form does not request this data to be submitted 
based on narrowly defined PCNs or other product categor ies, but only requests that it be submitted for 
the "product concerned".  This information c ould not serve as the basis for the Commission's 
determination of actual export prices, as required for a dumping determination. 
622. In sum, the categories of information solicite d by the MET/IT Claim Form relate to the 
factors used under the MET and IT tests for the pur pose of determining whet her an exporter operates 
under market conditions or, if not, whether it opera tes independently from the State.  The factors 
examined by the Commission, such as restrictions  on repatriation of capita l and profits, composition 
of board members and shareholders , and exchange rate conversions928, are not relevant to the 
Commission's dumping, injury, and causation determin ations.  Nor is information solicited in the 
MET/IT Claim Form regarding restrictions on th e import of raw materials used, required business 
authorizations, and information regardi ng relevant barter or counter trade929 relevant to the 
determinations of dumping, injury, and causation.  We conclude that the content of the information 
requested under the MET/IT Claim Form is qualitative ly different from the content of the information 
requested in a typical anti-dumping questionnaire.930 
623. Therefore, based on the content of the MET/IT  Claim Form and the purpose for which it is 
used, we find that the MET/IT Claim Form is not an information request soliciting from the Chinese 
exporters and producers a substan tial amount of information upon which the Commission would base 
its determinations regarding the key asp ects of an anti-dumping investigation.931  We therefore uphold  
the Panel's finding, in paragraph 7.579 of the Pane l Report, that the MET/IT Claim Form is not a 
"questionnaire" within the meaning of Article 6.1.1 of the Anti-Dumping Agreement  and, that, 
                                                      
926Basic AD Regulation, supra , footnote 5, Article 9(5)(b). 
927MET/IT Claim Form, supra , footnote 915, pp. 8 and 10. 
928Basic AD Regulation, supra , footnote 5, Article 9(5). 
929MET/IT Claim Form, supra , footnote 914, pp. 8, 10, 13, and 14. 
930We find that China's further arguments regarding the length and substantial nature of the request, as 
well as its importance to Chinese expor ters and producers, are similarly unava iling.  As we have found above, 
these factors should be taken into consideration when determining whether a party was given "ample opportunity" to present evidence under Article 6.1. 
931Panel Report, para. 7.577.  WT/DS397/AB/R 
 Page 249 
 
 
  therefore, the European Union did not act inconsiste ntly with its obligations under Article 6.1.1 when 
it did not provide Chinese exporters with 30 days to submit their responses. 
X. Findings and Conclusion 
624. For the reasons set out in this Report, the Appellate Body: 
(a) with respect to Article 9(5) of the Basic AD Regulation932: 
(i) upholds the Panel's finding, in paragra ph 7.77 of the Panel Report, that 
Article 9(5) of the Basic AD Regula tion concerns not only the imposition of 
anti-dumping duties, but also the calculation of dumping margins, and that it 
could be challenged "as such" under Article 6.10 of the Anti-Dumping 
Agreement , which addresses the calculation of margins of dumping for each 
exporter or producer; 
(ii) upholds, albeit for different reasons, the Panel's finding, in paragraph 7.98 of 
the Panel Report, that Article 9(5) of the Basic AD Regulation is inconsistent 
"as such" with Article 6.10 of the Anti-Dumping Agreement , because it 
conditions the determinati on of individual dumping margins for exporters or 
producers from NMEs on the fulfilment of the IT test; 
(iii) upholds, albeit for different reasons, the Panel's finding, in paragraph 7.112 
of the Panel Report, that Article 9(5) of the Basic AD Regulation is 
inconsistent "as such" with Article 9.2 of the Anti-Dumping Agreement , 
because it conditions the imposition of individual duties on exporters or producers from NMEs on the fulfilment of the IT test; 
(iv) finds that, in making the findings that Article 9(5) of the Basic AD 
Regulation is inconsistent "as such" with Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement , the Panel did not act inconsistently with Article 11 
of the DSU; 
(v) declares moot and of no legal effect the Panel's finding, in paragraph 7.127 of 
the Panel Report933, that Article 9(5) of the Basic AD Regulation is 
inconsistent with the MFN obligation in Article I:1 of the GATT 1994; 
                                                      
932See also Panel Report, para. 8.2(a). WT/DS397/AB/R 
Page 250  
 
  (vi) upholds the Panel's finding, in para graph 7.137 of the Panel Report
934, that 
the European Union has acted inconsistently with Article XVI:4 of the 
WTO Agreement  and Article 18.4 of the Anti-Dumping Agreement  by failing 
to ensure the conformity of its laws, regulations, and administrative 
procedures with its obligations under the relevant agreements; 
(vii) upholds the Panel's finding, in para graph 7.148 of the Panel Report935, that 
Article 9(5) of the Basic AD Regulati on is inconsistent with Articles 6.10 
and 9.2 of the Anti-Dumping Agreement  "as applied" in the fasteners 
investigation; 
(b) with respect to the Panel's findings under Articles 4.1 and 3.1 of the Anti-Dumping 
Agreement936: 
(i) finds that the Panel erred in finding, in  paragraph 7.230 of the Panel Report, 
that "the European Union did not act in consistently with Article 4.1 of the 
[Anti-Dumping Agreement ] in defining a domestic industry comprising 
producers accounting for 27 per cent of  total estimated EU production of 
fasteners" on the basis that the collective output of these producers 
represented "a major proportion" of the total domestic production; 
(ii) finds that the Panel did not err in fi nding, in paragraph 7.241 of the Panel 
Report, that China failed to establis h that the European Union acted 
inconsistently with Article 3.1 of the Anti-Dumping Agreement  in the 
selection of a sample of the domestic industry for purposes of making an injury determination;  and 
(iii) finds that the Panel did not err in its interpretation or application of 
Articles 4.1 and 3.1 of the Anti-Dumping Agreement , or acted inconsistently 
with Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement , 
when finding, in paragraph 7.219 of the Pa nel Report, that "the mere fact that 
the domestic industry as ultimately defined does not include any particular proportion of producers expressing different views with respect to the 
complaint, or producers who did not come forward within the 15 day period, 
                                                                                                                                                                     
933See also Panel Report, para. 8.2(a). 
934See also Panel Report, para. 8.2(a). 
935See also Panel Report, para. 8.2(b). 
936See also Panel Report, para. 8.3(b).  WT/DS397/AB/R 
 Page 251 
 
 
  does not demonstrate that the European Union acted inconsistently with 
Article 4.1 of the [ Anti-Dumping Agreement ] in defining the domestic 
industry"  or acted inconsistently with Article 3.1 of that Agreement; 
(c) with respect to the Panel's findings regarding certain aspects of the dumping 
determination in the fasteners investigation: 
(i) finds that the Panel did not err in fi nding, in paragraph 7.494 of the Panel 
Report937, that the European Union violated Article 6.4 of the Anti-Dumping 
Agreement  "by not providing a timely opportunity for Chinese producers to 
see information regarding the product types on the basis of which normal value was established"; 
(ii) finds that the Panel did not err in fi nding, in paragraph 7.495 of the Panel 
Report938, that "the Chinese exporters could not defend their interests in this 
investigation because the Commission onl y provided information concerning 
the product types used in the determinati on of the normal value at a very late 
stage of the proceedings" and that, therefore, "the European Union acted 
inconsistently with Article 6.2" of the Anti-Dumping Agreement ; 
(iii) finds that the Panel did not act inconsis tently with Article 11 of the DSU in 
not addressing China's argument that th e European Union failed to inform the 
interested parties of the "product types" it used to compare the export price 
and normal value; 
(iv) finds that the Panel erred in its application of Article 2.4 of the Anti-Dumping 
Agreement  by failing to take into account the last sentence of Article 2.4 in 
the light of the relevant facts of the case and of its finding under Article 6.4 
of the Anti-Dumping Agreement ;  and finds, instead, that, in not disclosing 
the information on the product types on a timely basis, the European Union 
acted inconsistently with Article 2.4 of the Anti-Dumping Agreement  by 
failing to indicate to the parties in question what information was necessary 
to ensure a fair comparison; 
(v) finds that the Panel did not err in its  interpretation of Article 2.4 of the 
Anti-Dumping Agreement  when finding, in paragraph 7.306 of the Panel 
                                                      
937See also Panel Report, para. 8.2(e). 
938See also Panel Report, para. 8.2(e). WT/DS397/AB/R 
Page 252  
 
  Report, that the European Union did not act inconsistently with Article 2.4 of 
that Agreement by not making adjustments for every element of the PCN; 
(vi) finds that the Panel did not act incons istently with Article 11 of the DSU, 
when finding, in paragraph 7.302 of the Panel Report, that there is no 
inherent reason to conclude that every element of the PCN necessarily reflects a difference that affects price comparability;  and 
(vii) finds that the Panel did not err in its interpretation and application of 
Article 2.4 of the Anti-Dumping Agreement  in finding, in paragraph 7.311 of 
the Panel Report, that the European Union did not have to make adjustments for alleged quality differences; 
(d) with respect to Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement : 
(i) upholds the Panel's findings, in paragr aphs 7.516 and 7.517 of the Panel 
Report939, that the European Union failed to ensure that the domestic 
producers, Agrati and Fontana Luigi, pr ovide appropriate statements of the 
reasons why information provided in  confidence was not susceptible of 
summary; 
(ii) finds that China's claim under Article 6.5 that the European Union failed to 
establish that "good cause" existed to support the confidential treatment of 
information submitted by the analogue country producer participating in the 
investigation, Pooja Forge, was within the Panel's terms of reference;  but 
finds that China failed to substantiate this claim;  and therefore 
(iii) reverses the Panel's finding, in pa ragraph 7.525 of the Panel Report940, that 
the European Union acted inconsistently  with its obligations under Article 6.5 
with respect to the treatment of confidential information submitted by 
Pooja Forge;  and 
(iv) upholds the Panel's finding, in para graph 7.455 of the Panel Report941, that 
the European Union did not act inconsistently with its obligations under 
                                                      
939See also Panel Report, para. 8.2(f). 
940See also Panel Report, para. 8.2(f). 
941See also Panel Report, para. 8.3(h).  WT/DS397/AB/R 
 Page 253 
 
 
  Article 6.5 when the Commission granted the request to treat the identity of 
the complainants and the supporters of the complaint as confidential;  and 
(v) finds that China's claim under Article 11 of the DSU regarding the 
confidential treatment of the identity of  the complainants and the supporters 
of the complaint is not within the sco pe of this appeal because it was not 
included in China's Notice of Other Appeal; 
(e) reverses the Panel's finding, in paragra ph 7.458 of the Panel Report, that China's 
claims under Articles 6.2 and 6.4 of the Anti-Dumping Agreement  regarding the 
non-disclosure of the identity of the complain ants were within its  terms of reference 
under Article 6.2 of the DSU;  and therefore, declares moot the Panel's finding, in 
paragraph 7.459 of the Panel Report942, that the European Union did not act 
inconsistently with Articles 6.2 and 6.4 of the Anti-Dumping Agreement  by not 
disclosing the identity of the complainants and the supporters of the complaint;  and 
(f) with respect to Article 6.1.1 of the Anti-Dumping Agreement : 
(i) upholds the Panel's finding, in para graph 7.579 of the Panel Report943, that 
the "'Market Economy Treatment and/or Individual Treatment claim form' is 
not a 'questionnaire' within the meaning of  Article 6.1.1";  and that, therefore, 
the European Union did not act inconsistently with its obligations under Article 6.1.1 of the Anti-Dumping Agreement  when it did not provide the 
Chinese exporters with 30 days to  submit their responses;  and 
(ii) finds that China's claims under Article  11 of the DSU and Article 17.6 of the 
Anti-Dumping Agreement regarding the Market Economy Treatment and/or 
Individual Treatment Claim Form are not  within the scope of this appeal 
because these claims were not included  in China's Notice of Other Appeal. 
625. The Appellate Body recommends that the DSB request the European Union to bring its 
measures, found in this Report and in the Panel Report as modified by this Report, to be inconsistent 
with the Anti-Dumping Agreement  and the WTO Agreement , into conformity with its obligations 
under those Agreements. 
                                                      
942See also Panel Report, para. 8.3(h). 
943See also Panel Report, para. 8.3(k).  WT/DS397/AB/R 
 Page 255 
 
 
  ANNEX I 
WORLD TRADE  
ORGANIZATION   
WT/DS397/7 
29 March 2011 
 (11-1542) 
 Original:   English 
 
 
 
EUROPEAN COMMUNITIES1 – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA  
 
Notification of an Appeal by the European Union  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
 
 
 The following notification, dated 25 March 2011, from the Delegation of the European 
Union, is being circulated to Members.  
_______________ 
  
 Pursuant to Article 16.4 and Article 17.1 of the DSU  the European Union hereby notifies to 
the Dispute Settlement Body its decision to appeal  to the Appellate Body certain issues of law 
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel in the dispute 
European Communities – Definitive Anti-Dumping Meas ures on Certain Iron or Steel Fasteners from 
China  (WT/DS397).  Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the 
European Union simultaneously files this Notice of  Appeal with the Appellate Body Secretariat. 
  For the reasons to be further elaborated in  its submissions to the Appellate Body, the 
European Union appeals, and requests the Appellate  Body to reverse and/or modify the findings, 
conclusions and recommendations of the Panel, with  respect to the following errors of law and legal 
interpretations containe d in the Panel Report. 
                                                      
1On 1 December 2009, the Treaty of Lisbon ame nding the Treaty on European Union and the Treaty 
establishing the European Community (done at Lisbon, 13 December 2007) entered into force.  On 29 November 2009, the WTO received a Verbal Note (WT/L/779) from the Council of the Eu ropean Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the "European Union" replaces and  succeeds the "European Commun ity".  On 13 July 2010, 
the World Trade Organization received a Verbal Note (WT/Let/679) from the Counc il of the European Union 
confirming that, with effect from 1 December 2009, the European Union re placed the European Community and 
assumed all the rights and obligations of the European Community in respect of all Agreements for which the Director-General of the World Trade Organization is the depositary and to which the European Community is a 
signatory or a contracting party. WT/DS397/AB/R 
Page 256  
 
  I. C
OUNCIL REGULATION NO. 1225/2009  ("T HE BASIC AD REGULATION ") 
 
 The Panel erred in its interpretation and appl ication of Articles 6.10, 9.2 and 18.4 of the 
Anti-Dumping Agreement , Article I:1 of the GATT 1994  and Article XVI:4 of the WTO Agreement 
and failed to make an objective assessment pursuant to Article 11 of the DSU  when it concluded that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with those provisions.2  In particular: 
 
(a) the Panel erred in the application of Article 6.10 of the Anti-Dumping Agreement  
when finding that Article 9(5) of the Basic AD Regulation concerns not only the imposition of anti-dumping duties but also the calculation of margins of dumping.
3  
Based on its incorrect understanding of the scope of Article 9(5) of the Basic AD 
Regulation, the Panel wrongly concluded that Article 9(5) of the Basic AD 
Regulation, as such, is inconsis tent with Article 6.10 of the Anti-Dumping 
Agreement4; 
(b) the Panel erred in the interpretation a nd application of Article 6.10 of the 
Anti-Dumping Agreement and also violated Article 11 of the DSU  when finding that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with Article 6.10 of 
the Anti-Dumping Agreement in that it conditions the calculation of individual 
margins for producers from non-market economy countries on the fulfilment of the Individual Treatment (IT) test
5; 
(c) the Panel erred in the interpretation a nd application of Article 9.2 of the 
Anti-Dumping Agreement  and also violated Article 11 of the DSU  when finding that 
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with the obligation 
laid down in Article 9.2 of the Anti-Dumping Agreement , which does not allow the 
imposition of a single country-wide anti-dumping duty in an investigation involving a non-market economy country
6; 
(d) the Panel erred in the interpretation an d application of Article I:1 of the GATT 1994  
and also violated Article 11 of the DSU when finding that Article 9(5) of the Basic 
AD Regulation violates the MFN obligation of Article I:1 of the GATT 1994 .7  
Moreover, the Panel erred when concluding that the Anti-Dumping Agreement  does 
not allow for the different treatment of  imports from non-market economy countries 
provided for in Article 9(5) of the Basic AD Regulation8;  and 
(e) the Panel erred when finding that the EU act ed inconsistently with Article XVI:4 of 
the WTO Agreement  and Article 18.4 of the Anti-Dumping Agreement  by failing to 
ensure the conformity of its laws, regula tions and administrative procedures with its 
obligations under the relevant agreements.9 
 
                                                      
2Panel Report, para. 8(2)(a). 
3Panel Report, para. 7.77. 
4Panel Report, para. 7.98. 
5Panel Report, paras. 7.96 and 7.98. 
6Panel Report, para. 7.112 and footnote 278. 
7Panel Report, paras. 7.124, 7.126 and 7.127. 
8Panel Report, para. 7.125 and footnote 307. 
9Panel Report, para. 7.137.  WT/DS397/AB/R 
 Page 257 
 
 
  II. C OUNCIL REGULATION NO. 91/2009  (FASTENERS INVESTIGATION ) 
 
 The Panel erred in the interpretation and appli cation of Articles 6.2, 6.4, 6.5, 6.5.1, 6.10 
and 9.2 of the Anti-Dumping Agreement  and also violated Articles 6.2, 7.1 and 11 of the DSU  when it 
concluded that the EU acted inconsis tently with those provisions of the Anti-Dumping Agreement  in 
the fasteners investigation.10  In particular: 
 
(a) the Panel erred in its interpretation and a pplication of Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement  when finding that, having found that Article 9(5) of the 
Basic AD Regulation is, as such, inconsistent with those provisions, its application in 
the fasteners investigation was, for the same reasons, inconsistent with these two 
provisions11; 
(b) the Panel erred in the interpretation and a pplication of Articles 6.2 and 6.4 of the 
Anti-Dumping Agreement  and violated Article 11 of the DSU  when finding that the 
EU violated these provisions by not providing a timely opportunity for Chinese 
producers to see information regarding the product types on the basis of which 
normal value was established, information relevant to the presentation of their case12; 
(c) the Panel erred in the interpretation a nd application of Article 6.5.1 of the 
Anti-Dumping Agreement  when finding that the European investigating authorities 
had violated that provision in that they fa iled to ensure Agrati's and Fontana Luigi's 
compliance with the requirements of Article 6.5.113; 
(d) the Panel acted inconsistently with Articles 6.2, 7.1 and 11 of the DSU  when 
addressing in substance China's claim under Article 6.5 of the Anti-Dumping 
Agreement  in connection with Pooja Forge14; 
(e) the Panel erred in the interpretation a nd application of Article 6.5 of the 
Anti-Dumping Agreement  when it considered that, absent a showing of "good cause", 
the European investigating authorities were not entitled to grant confidential 
treatment to information submitted by P ooja Forge, the analogue country producer15;  
and 
(f) the Panel acted inconsistently with Article 6.2 of the DSU  when considering that the 
issue of "the identity of the complainants and supporters" was properly identified in China's Panel Request under its claims referring to Article 6.2 and 6.4 of the 
Anti-Dumping Agreement .
16 
_______________ 
 
                                                      
10Panel Report, paras. 8(2)(b), 8(2)(e) and 8(2)(f). 
11Panel Report, para. 7.148. 
12Panel Report, paras. 7.494 and 7.495. 
13Panel Report, paras. 7.516 and 7.517. 
14Panel Report, paras. 7.518-7.526. 
15Panel Report, para. 7.525. 
16Panel Report, para. 7.458. WT/DS397/AB/R 
Page 258  
 
  ANNEX II 
WORLD TRADE  
ORGANIZATION   
WT/DS397/8 
5 April 2011 
 (11-1682) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES
1 – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
 
Notification of an Other Appeal by China  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
 
 
 The following notification, dated 30 Ma rch 2011, from the Delegation of the People's 
Republic of China, is being circulated to Members.  
_______________ 
 
 
 Pursuant to Article 16.4 and Article 17 of the DSU, the People's Republic of China hereby 
notifies to the Dispute Settlement Body its decision to  appeal to the Appellate Body certain issues of 
law covered in the Report of the Panel and certain le gal interpretations developed by the Panel in its 
Report in the dispute European Communities – Definitive Anti-Dumping Measures on Certain Iron or 
Steel Fasteners from China  (WT/DS397/R).  Pursuant to Rule 23(1) of the Working Procedures for 
Appellate Review , China simultaneously files this Notice of  Other Appeal with the Appellate Body 
Secretariat.   China seeks review by the Appellate Body of th e following aspects of the Report of the Panel: 
 1. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 4.1 and 3.1 of th e AD Agreement with respect to the definition of 
domestic industry in the fasteners investigation by excluding from the definition of the domestic 
industry the producers that made themselves known after the 15-day deadline following the 
                                                      
1On 1 December 2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty 
establishing the European Community  (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the World Trade Or ganization received a Verbal Note (W T/L/779) from the Council of the 
European Union and the Commission of the European Communities stating that, by virtue of the Treaty of 
Lisbon , as of 1 December 2009, the "European Union" replaces and  succeeds the "European  Community".  On 
13 July 2010, the World Trade Organi zation received a second Verbal Note  (WT/Let/679) from the Council of 
the European Union confirming that , with effect from 1 December 2009 , the European Union replaced the 
European Community and assumed all the rights and obligations of the European Community in respect of all Agreements for which the Director-Gen eral of the World Trade Organization is the depositary and to which the 
European Community is a signatory or a contracting party.  WT/DS397/AB/R 
 Page 259 
 
 
  publication of the Notice of Initiation and the producers that did not support the complaint 
(paragraphs 7.209 – 7.221 and para graph 8.3(b) of the Panel Report).  China has identified, inter alia , 
the following errors in the issues of law and legal interpretations de veloped by the Panel: 
 The Panel failed to make an objective assessment of the facts in violation of, inter 
alia, Article 11 of the DSU and Article 17.6 of the AD Agreement in connection with 
China's claim that the EU violated Artic les 4.1 and 3.1 of the AD Agreement by 
excluding from the definition of the domestic industry producers that did not support the complaint, since: 
 
- the Panel erroneously accepted as a "fact" the unsubstantiated statement of the 
EU that "at least one producer which was not a complainant, and had 
remained silent prior to initiation, was not only included in the domestic 
industry, but was selected for the sample"
2; 
- the Panel erroneously concluded that the fact that "at least one producer which 
was not a complainant, and had remained silent prior to initiation, was not only included in the domestic industry, but was selected for the sample" 
demonstrated that "the EU investigating authority, in this case, did [not], in 
fact, exclude producers that did not support the complaint from the domestic industry"
3 and erroneously ignored the e xplanation put forward by China 
pointing out that such conclusion cannot be and was not correct; 
- the Panel disregarded and ignored the evidence submitted by China which 
demonstrated that the EU excluded from the domestic industry all producers 
that did not support the complaint. 
 China requests the Appellate Body to reverse th e Panel's findings and to complete the analysis 
by finding that it has been demonstrated that the EU excluded from the definition of the domestic 
industry the producers that did not support the compla int.  China further requests the Appellate Body 
to complete the analysis by finding that the excl usion from the definition of the domestic industry of 
the producers that did not support the complaint is in consistent with Article 4.1 of the AD Agreement. 
 
 The Panel erred in its interpretation of  Article 4.1 of the AD Agreement when 
examining China's claim that the exclusi on from the domestic industry of producers 
that did not come forward within 15 days as of the date of publication of the Notice of 
Initiation was inconsistent with Article  4.1 and failed to make an objective 
assessment of the facts in violation of Artic le 11 of the DSU in connection with that 
claim: 
 
- the Panel failed to make an objective assessment of the facts as required by 
Article 11 of the DSU when it concluded that the "EU did not act to exclude"4 
producers that did not make themselves known within 15 days as of the date 
of initiation of the investigation; 
- the Panel erred in its interpretation of  Article 4.1 of the AD Agreement when 
concluding that there is nothing in Article 4.1 which would preclude investigating authorities from establishi ng deadlines for companies to come 
forward in order to be considered fo r inclusion in the domestic industry; 
                                                      
2Panel Report, para. 7.214. 
3 Panel Report, para. 7.215. 
4 Panel Report, para. 7.215. WT/DS397/AB/R 
Page 260  
 
  - the Panel failed to make an objective assessment of the facts as required by 
Article 11 of the DSU  when concluding that China has not demonstrated that 
"the 15 days allowed by the Commission was insufficient".
5 
 China requests the Appellate Body to reverse th e Panel's findings and to complete the analysis 
by finding that, on the basis of the facts before the Panel, it has been demonstrated that the EU acted 
to exclude from the definition of the domestic i ndustry the producers which did come forward within 
15 days as of the date of publication of the Notice of Initiation and that, therefore, the EU acted in 
violation of Article 4.1 of the AD Agreement.  China furthermore requests the Appellate Body to 
conclude that it has been demonstrated that the 15-day period granted to the domestic producers to 
come forward was not "reasonable" or "sufficient" and that therefore the EU acted in violation of 
Article 4.1 of the AD Agreement. 
 
 The Panel erred in dismissing China's claim that the EU violated Article 3.1 of the 
AD Agreement by excluding from the domestic industry the producers which did not come forward within 15 days as of the date of the Notice of Initiation and the producers which did not support the complaint. 
 
 China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 3.1 since it failed to make an injury determination which is based on an "objective 
examination" as required by Article 3.1 of the AD Agreement.  2. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 4.1 and 3.1 of th e AD Agreement with respect to the definition of 
domestic industry in the fasteners investigation because the domestic industry as defined by the EU did not include domestic producers whose collect ive output of the like product constitutes a major 
proportion of the total domestic production (paragra phs 7.222 – 7.230 and para. 8.3(b) of the Panel 
Report).  China has identified, inter alia , the following errors in the issues of laws and of legal 
interpretations developed by the Panel: 
 The Panel failed to make a correct interp retation of the terms "major proportion" 
which is based on the ordinary meaning of these terms and in light of their context, 
pursuant to the principles of treaty interpretation of the Vienna Convention on the Law of Treaties, and, as a result, ma de the following erroneous findings and 
conclusions: 
 
(i) the Panel erroneously concluded that the fact that the Commission relied on 
a presumption is not alone sufficient to demonstrate, prima facie , that the 
definition of the domestic industry in  this case is inconsistent with 
Article 4.1 of the AD Agreement; 
 
(ii) the Panel erroneously concluded that  the non-quantitative factors raised by 
China are not relevant in this case or in general. 
  China requests the Appellate Body to reverse the Panel's findings and to conclude that, by 
considering that producers accounting for 25% of total domestic production necessarily constitute a 
major proportion, the EU violated Article 4.1 of  the AD Agreement and that the "non-quantitative 
factors" identified by China are relevant for th e purposes of determining whether the major proportion 
requirement is satisfied and had to  be considered by the Commission in the fasteners investigation.  
China further requests the Appellate Body to concl ude that, in light of these non-quantitative factors, 
                                                      
5 Panel Report, para. 7.219.  WT/DS397/AB/R 
 Page 261 
 
 
  the domestic producers constituting the domestic industry in the f asteners investigation did not 
represent a "major proportion" of the domestic industry.  3. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 3.1 and 4.1 of the AD Agreement since it made an injury 
determination with respect to a sample of producer s that was not representative (paragraphs 7.234 to 
7.241 and 8.3(b) of the Panel Report).  China identified, inter alia , the following errors in the issues of 
law and of legal interpretati ons developed by the Panel: 
 The Panel erroneously concluded that " it cannot accept the contention that only a 
statistically valid sample will be sufficientl y representative for purposes of an injury 
determination"; 
 
 the Panel erroneously concluded that China has not demonstrated that the 
EU investigating authority could have ca rried out its injury examination for the 
domestic industry it had defined, or at l east include more producers in the sample. 
  China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 3.1 of the AD Agreement. 
 4. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Article 2.4 of the AD Agre ement with respect to the dumping determination 
in the fasteners investigation (paragraphs 7.291 – 7.311 and para. 8.3(d) of the Panel Report).  China 
has identified, inter alia , the following errors in the issues of la ws and legal interpretations developed 
by the Panel: 
 The Panel failed to make an objective assessment of the matter as required by 
Article 11 of the DSU by failing to address China's argument that the EU violated 
Article 2.4 since the Commission failed to indicate to the interested parties what information was necessary to ensure a fair comparison and made it impossible for them to claim adjustments for differences affecting price comparability and, to the 
extent the Panel would have implicitly concluded that such a failure was not 
inconsistent with Article 2.4 of the AD Agre ement, the Panel failed to make a correct 
interpretation of Article 2.4 of the AD Agreement; 
 
 the Panel erred in its interpretation of Article 2.4 of the AD Agreement when it 
rejected China's argument that the EU violated Article 2.4 by failing to evaluate 
whether the characteristics identified in th e PCNs affected price comparability and 
whether adjustments for these differences in  physical characteristics were warranted; 
 
 the Panel did not make an objective assessment of the facts as required by Article 11 
of the DSU and Article 17.6 of the AD Ag reement when it concluded that China has 
pointed to no evidence supporting the conclusion that the PCN characteristics 
indicated differences affecting price comp arability and when claiming that "it would 
be inappropriate for us, under the standa rd of review to consider it ourselves"; 
 
 the Panel erred in its interpretation of Article 2.4 of the AD Agreement when it 
rejected China's claim that the EU viol ated Article 2.4 of the AD Agreement by 
failing to make the necessary adjustments for quality differences. 
 WT/DS397/AB/R 
Page 262  
 
   China requests the Appellate Body to reverse th e Panel's findings and to conclude that, on the 
basis of the facts before the Panel, it has been dem onstrated that the EU violated Article 2.4 of the 
AD Agreement with respect to each of the identified issue mentioned above. 
 5. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
EU violated Articles 6.5, 6.4 and 6.2 of the AD Agreement in connection with the non-disclosure of 
the identity of the complainants and of the suppor ters of the complaint (paragraphs 7.445 – 7.459 and 
para. 8.3(h) of the Panel Report).  China has identified, inter alia , the following errors in the issues of 
laws and legal interpretations de veloped by the Panel in its findings concerning China's claim under 
Article 6.5 of the AD Agreement: 
 The Panel erred in its interpretation of the "good cause" requirement when ignoring 
the difference between a hypothetical poten tial retaliation which "could" happen and 
a retaliation which "would" happen; 
 
 the Panel erred in law in considering that  the "good cause" requirement was satisfied 
without supporting evidence provided by the parties requesting confidential treatment; 
 
 the Panel erred in rejecting China's argument that no good cause was established 
since the seven EU producers that made up the sample for purposes of the Commission's injury determination were al so complainants and supporters and that 
they did not ask the Commission to treat their identity as confidential information. 
 
 China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 6.5 of the AD Agreement through the non-disclosure of the identity of the complainants and of the supporters of the complain t.  China also requests the Appellate Body to 
reverse the Panel's findings concerning China's cl aim under Articles 6.4 and 6.2 of the AD Agreement 
and to complete the analysis by finding that the EU's failure to disclose the identity of the 
complainants and of the supporters of the complaint is also inconsistent with Articles 6.4 and 6.2 of 
the AD Agreement. 
 6. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
EU violated Article 6.1.1 of the AD Agreement by limiting the time period for the submission of MET/IT claim form to 15 days as of the date of publication of the Notice of Initiation 
(paragraphs 7.566 – 7.579 and 8.3(k) of th e Panel Report).  China has identified, inter alia , the 
following errors in the issues of law and le gal interpretations developed by the Panel: 
 The Panel erred in its interpretation of the te rm "questionnaire" in Article 6.1.1 of the 
AD Agreement by adopting an interpretati on which is not consistent with the 
ordinary meaning of that word in light of its context and the object and purpose as required by the principles of treaty interp retation included in the Vienna Convention 
on the Law of Treaties; 
 
 even assuming that the Panel did not e rr in its interpretation of the term 
"questionnaire" in that it would refer to "the initial comprehensive questionnaire 
issued in an anti-dumping investigation to  each of the interested parties by an 
investigating authority at or following the initiation of an investigation, which seeks 
information as to all relevant issues pertaini ng to the main questions that will need to 
be decided (dumping, injury and causation) ", the Panel erroneously concluded that 
that the MET/IT claim form was not a "qu estionnaire" according to this definition. 
  WT/DS397/AB/R 
 Page 263 
 
 
   China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
"MET/IT claim form" is a questionnaire within th e meaning of Article 6.1.1 of the AD Agreement 
and to complete the analysis by finding that the EU violated Article 6.1.1 of the AD Agreement.  
__________