EUROPEAN UNION – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN FATTY ALCOHOLS FROM INDONESIA REQUEST FOR THE ESTABLISHMENT OF A PANEL BY INDONESIA
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 13 May 2013
Document codes: WT/DS442/2
Complainant: Indonesia
Respondent: EU
Third parties: India, South Korea, Turkey, U.S., Malaysia, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. 2.3, 2.4, 5.8, 3.1, 3.4, 3.5, 9.4, 9.2  Anti-dumpingArt. X:3(a)  GATT 1994Art. 2.6, 4.1, 3.2, 3.3, 6.7, 6.9, 1, 18  Anti-dumpingArt. VI  GATT 1994

EUROPEAN UNION – ANTI-DUMPING MEASURES ON IMPORTS OF
CERTAIN FATTY ALCOHOLS FROM INDONESIA
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY INDONESIA
 The following communication, dated 1 May 2013, from the delegation of Indonesia to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 27 July 2012, Indonesia requested consultations with the European Union pursuant to
Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the
"DSU"), Article 17.3 of the Agreement on Implementation of Ar ticle VI of the General Agreement
on Tariffs and Trade 1994 (the "Anti-Dumping Agreement" ), and Article XXIII:1 of the General
Agreement on Tariffs and Trade 1994 (the "GATT 1994"). These consultations related to the
imposition of provisional and definitive anti-dumping measures imposed by the European Union on
imports of certain fatty alcohols from Indonesia, as well as to certain aspects of the investigation
underlying those measures.

Consultations were held on 13 September 2012 with a view to reaching a mutually
satisfactory solution. However, these consultations failed to resolve the dispute. Subsequently, the
European Union Commission ("EU Commission") took certain additional administrative and
investigative steps pertaining to the investigation and the measures at issue.
1 F u r t h e r
consultations, relating to these additional administrative and investigative steps, were held on
5 December 2012. These consultations also failed to resolve the dispute. On 21 December 2012,
the European Union authorities published a Regulation amending the determination at issue and
terminating the anti-dumping duties applied to on e of the two investigated Indonesian exporters,
but continued to apply anti-dumping duties to the other exporter. Another meeting between the
parties took place on 10 January 2013. No resolution of the dispute was achieved at that meeting
nor in subsequent communications.

On 28 February 2013, the EU Commission initiated a "partial reopening" of the anti-dumping
determination. The purpose of this "reopening" is to "examine the impact" on the original anti-
dumping determination of the termination of the investigation with respect to one of the
Indonesian exporters. The relevant notice does not appear explicitly to specify a deadline for this
review. In the meantime, the anti-dumping measures at issue remain in place.

Therefore, in accordance with Article 4.7 of the DSU, Indonesia requests that the Dispute
Settlement Body (the "DSB") establish a panel to examine this matter. Pursuant to Article 6.2 of
the DSU, Indonesia proceeds infra to identify the specific measures at issue and to provide a brief
summary of the legal basis of the complaint.

A. THE MEASURES AT ISSUE

 The measures at issues are the definitive and provisional anti-dumping measures imposed
on imports of certain fatty alcohols and their bl ends from Indonesia, and certain aspects of the
underlying investigation and determinations related thereto, as set forth in the following
instruments:

1 Indonesia understands that these additional administrative and investigative steps were not taken
pursuant to or announced in any official published document.

 Council Implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a
definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain fatty alcohols and their blends originating in India, Indonesia, and
Malaysia.
2
 Commission Regulation (EU) No 446/2011 of 10 May 2011 imposing a provisional anti-
dumping duty on imports of certain fatty alcohols and their blends originating in India,
Indonesia, and Malaysia.
3
 Notice of initiation of an anti-dumping proceeding concerning imports of certain fatty
alcohols and their blends originating in India, Indonesia and Malaysia.4
 Council Implementing Regulation (EU) No 1241/2012 of 11 December 2012, amending
Implementing Regulation (EU) No 1138/2011 imposing a definitive anti-dumping duty
and collecting definitively the provisional duty imposed on imports of certain fatty
alcohols and their blends originating in India, Indonesia and Malaysia.5
 Notice concerning a partial reopening of the anti-dumping investigation concerning
imports of certain fatty alcohols and their blends originating in India, Indonesia and
Malaysia (2013/C 58/08).6
In addition to these legal instruments, this request also covers any amendments,
extensions, related instruments or practices, including methodologies, the results of any review
proceedings, whether initiated prior to or followin g this panel request or the establishment of the
panel, as well as modifications of the origin al measures triggered by any proceedings under
European Union law, including proceedings before the European Court of Justice.

In particular, this request includes any and all additional investigative and administrative
steps that have been taken by the EU Commissi on subsequent to the publication of Council
Implementing Regulation (EU) No 1138/2011 of 8 November 2011, as well as the results of such
additional investigative and administrative steps, whether these steps or their results have been
published or not. One such result of these additional investigative and administrative steps is
Council Implementing Regulation (EU) No 1241/2012 of 11 December 2012, as referenced above.

B. LEGAL BASIS OF THE COMPLAINT

 In Indonesia's view, the measures at issue are inconsistent with the European Union's
obligations under the Anti-Dumping Agreement and the GATT 1994 for the following reasons:

 The European Union failed to treat one of the Indonesian exporters' related Singapore
sales office as a single economic entity with its related producer/exporter. Furthermore,
the European Union made adjustments to the export price of this Indonesian exporter to
reflect both the selling expenses of the Singapore sales office as well as an imputed
"commission" paid to the related Singapore sales office. Because it did not have a proper
factual and legal basis for these adjustments, the European Union acted inconsistently
with:
o Articles 2.3 and 2.4 of the Anti-Dumping Agreement, because it inappropriately
adjusted the export price for one of the Indonesian exporters and thereby failed to
conduct a fair comparison between the export price and normal value. Moreover, in
so doing, the European Union treated arbitrarily differently the two investigated
Indonesian exporters, although the releva nt circumstances of these two exporters
are identical;
o Article 5.8 of the Anti-Dumping Agreem ent, because, where the unwarranted
adjustment discussed above is eliminated, the dumping margin for the Indonesian

2 Official Journal L 293, 11.11.2011, p. 1.
3 Official Journal L 122, 11.5.2011, p. 47.
4 Official Journal C 219, 13.8.2010, p. 12.
5 Official Journal L 352, 21.12.2012, p. 1.
6 Official Journal C 58, 28.02.2013, p. 24.

exporter at issue falls below the de minimis threshold, such that no anti-dumping
measures may legally be imposed on this exporter;
o Articles 3.1, 3.4, and 3.5 of the Anti-Dumping Agreement, because the European
Union incorrectly calculated the volume of dumped imports and failed to examine
properly the magnitude of the margin of dumping as an injury factor, thereby also
failing to properly assess the existence of a causal link between dumped imports and
the material injury suffered by the domestic industry;
o Article 9.4 of the Anti-Dumping Agreement, because the European Union incorrectly
calculated the "all others" rate applicable to exports from Indonesia and
inappropriately applies definitive anti-dumping measures to imports from exporters
or producers not included in the examination;
o Article 9.2 of the Anti-Dumping Agreement, because the European Union fails to
collect anti-dumping measures in the "appropriate amounts";
o Article X:3(a) of the GATT 1994, because the European Union failed and continues to
fail to administer its laws, regulations, decisions, and rulings in a uniform, impartial,
and reasonable manner. In particular, the European Union fails to treat equally and
even-handedly the two investigated Indonesian exporters with respect to the
"commission" adjustment, although the relevant circumstances of these two
Indonesian exporters are identical. The European Union also fails to apply its laws,
regulations, decisions and rulings consistently with its previous practice to the
Indonesian exporter that continues to be subject to anti-dumping duties.
 The European Union also inappropriately excluded so-called "branched" fatty alcohols
from the scope of both the product under consideration and the domestic "like" product.
By excluding the production of these "branched" fatty alcohols from the scope of the
domestic industry, the European Union also incorrectly defined the domestic industry.
The European Union thereby acted inconsistently with:
o Article 2.6, Articles 3.1 and 4.1 read with Article 2.6, and Articles 3.4 and 3.5 of the
Anti-Dumping Agreement, because it improperly established the facts, incorrectly
defined the product under consideration as well as the domestic like product, and
failed to provide a reasoned and adequate explanation for its determination;
o Article 4.1 of the Anti-Dumping Agreement, because it improperly established the
facts, incorrectly defined the scope of the domestic industry and failed to provide a
reasoned and adequate explanation for its determination; and,
o Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement, because it failed to
conduct a proper injury and causation analysis, based on a proper determination of
the domestic like product and the domestic industry, and failed to provide a
reasoned and adequate explanation for its determination.
 The European Union acted inconsistently with Articles 3.1 and 3.5 of the
Anti-Dumping Agreement by failing to prov ide a reasoned and adequate explanation,
based on positive evidence and involving an objective examination, of why the injury
suffered by the domestic industry was not attributable to other known factors, including
(but not limited to), the effects of sales of branched fatty alcohols on sales of linear fatty
alcohols and the impact of the financial crisis.
 The European Union acted inconsistently wi th Articles 3.1, 3.3, and 3.4 of the
Anti-Dumping Agreement by cumulating imports from Indonesia, which had negative
price undercutting margins, with imports from other countries, which were at prices that
undercut the domestic product. In this respect, the European Union also failed to
administer its laws, regulations, decisions, and rulings in a uniform, impartial and
reasonable manner, contrary to Article X:3(a) of the GATT 1994.

 The European Union acted inconsistently with Articles 6.7 and 6.9 of the
Anti-Dumping Agreement by failing to provid e the Indonesian exporters with the results
of the EU Commission's verification visits to the exporters and by failing to inform all
interested parties of the essential facts under consideration.
It appears to Indonesia that the foregoing cannot be reconciled with Article VI of the
GATT 1994, Articles 1 and 18 of the Anti-Dumping Agreement, as well as the specific provisions
cited above.

Indonesia considers that the measures described above nullify and impair benefits accruing
to Indonesia under the Anti-Dumping Agreement and the GATT 1994.

C. REQUEST FOR THE ESTABLISHMENT OF A PANEL

In the light of the above, Indonesia requests, pursuant to Articles 4.7 and 6 of the DSU,
Article 17.4 of the Anti-Dumping Agreement and Article XXIII:2 of the GA TT 1994, that the DSB
establish a panel to examine this matter. Indonesia further requests that the panel have the
standard terms of reference, as set forth in Article 7.1 of the DSU.

Indonesia asks that this request be placed on the agenda of the DSB meeting to be held on
24 May 2013.