EUROPEAN UNION – ANTI-DUMPING MEASURES ON BIODIESEL FROM ARGENTINA REQUEST FOR THE ESTABLISHMENT OF A PANEL BY ARGENTINA
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 14 March 2014
Document codes: WT/DS473/5
Complainant: Argentina
Respondent: EU
Third parties: Australia, China, Malaysia, Norway, Russia, Saudi Arabia, Turkey, U.S., Colombia, Indonesia, Mexico
Dispute stage: Appellate Body
Agreements cited: Art. 2.2  Anti-dumpingArt. VI:1  GATT 1994Art. 2.2.1.1, 9.3, 2, 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 2.1, 2.2.2(iii), 2.4  Anti-dumpingArt. VI:2  GATT 1994Art. 3.1, 3.4, 3.5, 1  Anti-dumpingArt. VI  GATT 1994

EUROPEAN UNION – ANTI-DUMPING MEASURES ON BIODIESEL
FROM ARGENTINA
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY ARGENTINA
The following communication, dated 13 March 2014, from the delegation of Argentina to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 19 December 2013, the Government of Argentina ("Argentina") requested consultations with
the European Union pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU"), Article XXII of the General Agreement on Tariffs
and Trade 1994 ("GATT 1994") and Article 17 of the Agreement on Implementation of Article VI of
the GATT 1994 ("Anti-Dumping Agreement") with respect to Article 2(5) of Council Regulation (EC)
No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not
members of the European Community and with respect to the anti-dumping measures imposed on
biodiesel originating in, inter alia, Argentina.
1

Argentina and the European Union held consultation s on 31 January 2014 with a view to reaching
a mutually satisfactory solution. Although the consultations allowed for a better understanding of
the positions of the parties, unfortunately, they have not led to a satisfactory resolution of the
matter.

1. THE MEASURES AT ISSUE

Argentina considers that the measures, as enumerated below, are inconsistent with the obligations
of the European Union under the relevant provisions of the WTO Agreements as set forth below in
detail:

A) Article 2(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on
protection against dumped imports from countries not members of the European
Community
2 as well as any subsequent amendments, replacements, implementing measures
and related instruments or practices.

B) The anti-dumping measures 3 imposed by the European Union on imports of biodiesel
originating in, inter alia, Argentina, as well as the underlying investigation.

1 WT/DS473/1, G/ADP/D101/1, G/L/1062.
2 Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports
from countries not members of the European Community (codified version), OJ L 343, 22.12.2009, p. 51 and
corrigendum to Council Regulation (EC) No 1225/2009, OJ L 7, 12.1.2010, p. 22, as amended, including by
Regulation (EU) No 765/2012 of the European Parliament and of the Council of 13 June 2012, OJ L 237,
3.9.2012, p.1; Regulation (EU) No 1168/2012 of the European Parliament and of the Council of 12 December
2012, OJ L 344, 14.12.2012, p.1 and Regulation (EU) No 37/2014 of the European Parliament and of the
Council of 15 January 2014, OJ L18, 21.1.2014, p.1.
3 Commission Regulation (EU) No 490/2013 of 27 May 2013 imposing a provisional anti-dumping duty
on imports of biodiesel originating in Argentina and Indonesia, OJ L 141, 28.5.2013, p. 6 and Council
Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty
and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and
Indonesia, OJ L 315, 26.11.2013, p. 2.

The imposition of the anti-dumping measures on imports of biodiesel followed the initiation
of an anti-dumping proceeding concerning imports of biodiesel originating in, inter alia ,
Argentina4 by the Commission, after receiving a complaint from the European Biodiesel
Board ("EBB") alleging that imports of biodiesel originating in Argentina and Indonesia were
being dumped and were thereby causing material injury to the Union industry.

The European Union imposed provisional anti-dumping duties on imports of biodiesel
originating in, inter alia, Argentina, pursuant to Commission Regulation (EU) No 490/2013 of
27 May 2013 imposing a provisional anti-dumping duty on imports of biodiesel originating in
Argentina and Indonesia.5

The definitive measures were imposed by the European Union pursuant to Council
Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive
anti-dumping duty and collecting definitively the provisional duty imposed on imports of
biodiesel originating in Argentina and Indonesia.
6

The measures at issue include all those mentioned above as well as any subsequent amendments,
replacements, related measures and implementing measures.

2. LEGAL BASIS FOR THE CLAIMS

A) Article 2(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009
on protection against dumped import s from countries not members of the
European Community (the "Basic Regulation")
7

Article 2(5) of the Basic Regulation inter alia provides that if costs associated with the production
and sale of the product under investigation are not reasonably reflected in the records of the party
concerned, they shall be adjusted or established on the basis of the costs of other producers or
exporters in the same country or, where such info rmation is not available or cannot be used, on
any other reasonable basis, including information from other representative markets.

Pursuant to this provision, when the European Union considers that the costs of manufacturing the
product under consideration actually incurred by the producer under investigation are artificially
low or are otherwise distorted, it does not calculate the costs on the basis of the records of the
producer under investigation although those records are in accordance with the generally accepted
accounting principles of the exporting countries and reasonably reflect the costs associated with
the production and sale of the product under consideration but adjusts those costs or establishes
them on the basis of other data, including data pertaining to markets other than those of the
exporting country.

Argentina considers that Article 2(5) of the Basic Regulation is inconsistent as such with, inter alia,
the following provisions of the Anti-Dumping Agreement, the GATT 1994 and the Marrakesh
Agreement Establishing the World Trade Organization ("Marrakesh Agreement"):

1. Article 2.2 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994, because
these provisions do not permit to adjust or establish the cost of production on the basis of
data or information other than that in the country of origin.

2. Articles 2.2, 2.2.1.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 for
two reasons: first, since these provisions require that the costs be calculated on the basis of
the records kept by the producers under investigation when such records are in accordance
with the generally accepted accounting principl es of the exporting country and reasonably
reflect the costs associated with the production and sale of the product under consideration

4 Notice of Initiation of an anti-dumping proceeding concerning imports of biodiesel originating in
Argentina and Indonesia, OJ C 260, 29.8.2012, p. 8.
5 Commission Regulation (EU) No 490/2013 of 27 May 2013 imposing a provisional anti-dumping duty
on imports of biodiesel originating in Argentina and Indonesia, OJ L 141, 28.5.2013, p. 6.
6 Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive
anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in
Argentina and Indonesia, OJ L 315, 26.11.13, p. 2.
7 As well as any subsequent amendments, replacements, implementing measures and related
instruments or practices.

and do not permit to adjust or replace the costs actually incurred by the producers under
investigation by other costs simply because they are considered to be artificially low or
distorted; secondly, since these provisions require that the costs used be associated with the
production and sale of the product under consideration.

3. Article 9.3 of the Anti-Dumping Agreement since, by failing to construct normal values in
accordance with Articles 2.2 and 2.2.1.1 of th e Anti-Dumping Agreement, the amount of the
anti-dumping duty to be imposed exceeds the ma rgin of dumping if correctly calculated on
the basis of the rules included in Article 2 of the Anti-Dumping Agreement.

4. Article XVI:4 of the Marrakesh Agreement an d Article 18.4 of the Anti-Dumping Agreement,
insofar as the European Union has not taken all steps to ensure the conformity of its laws,
regulations and administrative procedures with the provisions of the GATT 1994 and of the
Anti-Dumping Agreement.

B) The anti-dumping measures imposed by the European Union on imports of
biodiesel originating in, inter alia, Argentina and the underlying investigation

Argentina considers that the anti-dumping measures imposed by the European Union on imports of
biodiesel originating in, inter alia, Argentina
8 and the underlying investigation are inconsistent with
the following provisions of the Anti-Dumping Agreement and of the GATT 1994:

1. Articles 2.1, 2.2 and 2.2.1.1 of the Anti -Dumping Agreement and Article VI:1 of the
GATT 1994 because, when constructing the normal value for the producers under
investigation, the European Union failed to calculate the costs on the basis of the records
kept by the producers under investigation, and because the European Union therefore failed
to properly calculate the cost of production and properly construct normal value.

2. Articles 2.1 and 2.2 of the Anti-Dumping Ag reement because the European Union failed to
construct normal value for the producers under investigation on the basis of the cost of
production in Argentina.

3. Articles 2.1, 2.2 and 2.2.1.1 of the Anti -Dumping Agreement and Article VI:1 of the
GATT 1994 because when constructing the normal value for the producers under
investigation, the European Union included costs that do not reasonably reflect the costs
associated with the production and sale of biodiesel and therefore failed to properly calculate
the cost of production and to properly construct normal value.

Argentina also considers that Article 2(5) of the Basic Regulation as applied in the investigation
underlying the anti-dumping measures is inconsistent with Articles 2.1, 2.2 and 2.2.1.1 of the
Anti-Dumping Agreement as set forth in claims 1, 2 and 3 above.

4. Articles 2.1, 2.2 and 2.2.2(iii) of the Anti-Dumping Agreement because the amounts for
profits established by the European Union were not determined on the basis of a reasonable
method.

5. Article 2.4 of the Anti-Dumping Agreement because, in comparing a constructed normal
value that included a cost of production base d on an average of the FOB reference prices
(international prices) of the raw material with prices that reflect the actual costs of the raw
material incurred by the exporters or producers under investigation, the European Union
failed to make due allowance for differences affecting price comparability, including
differences in taxation, thereby precluding a fair comparison between the export price and
normal value.

6. Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 because the
European Union imposed and levied anti-dumping duties in excess of the margin of dumping
that should have been established in accordance with Article 2 of the Anti-Dumping
Agreement.

8 See footnote 3.

7. Articles 3.1 and 3.4 of the Anti-Dumping Agreement because the European Union's injury
determination is not based on positive evidence and does not involve an objective
examination of the consequent impact of the allegedly dumped imports on domestic
producers of the like product, inter alia, in relation to capacity and capacity utilization of the
domestic industry.

8. Articles 3.1 and 3.5 of the Anti-Dumping Ag reement because the European Union failed to
conduct an objective examination, based on positive evidence, of the causal relationship
between the allegedly dumped imports and the allegedly injury to the domestic industry and
because the European Union failed to conduct an objective examination, based on positive
evidence, of factors other than the allegedly dumped imports which at the same time were
injuring the domestic industry, and thus attributed the injury caused by these other factors
to the allegedly dumped imports. The other factors include, inter alia, the overcapacity of
the domestic industry of the European Union, the imports of biodiesel made by the domestic
industry of the European Union, the effect of the "double-counting" regimes on the domestic
demand for biodiesel in the European Union and the lack of vertical integration and access to
raw materials of the domestic industry of the European Union.

In view of the claims set forth above, Argentina considers that the European Union has also acted
inconsistently with Article VI of the GATT 1994 and Article 1 of the Anti-Dumping Agreement.

The measures at issue also appear to nullify or impair benefits accruing to Argentina directly or
indirectly under the cited Agreements.

For the reasons set forth above, Argentina respectfully requests that a panel be established,
pursuant to Article 4.7 and Article 6 of the DSU, Article XXIII of the GATT and Article 17.4 of the
Anti-Dumping Agreement by the Dispute Settlement Body, with standard terms of reference as set
forth in Article 7.1 of the DSU.

Argentina asks that this request be placed on the agenda for the meeting of the Dispute
Settlement Body to be held on 26 March 2014.