COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY AND THE NETHERLANDS NOTIFICATION OF AN APPEAL BY COLOMBIA UNDER ARTICLE 25 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), PARAGRAPH 5 OF THE AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU (THE "AGREED PROCEDURES") AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: PARAGRAPH 5 OF THE AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU (THE "AGREED PROCEDURES") AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 10 October 2022
Document codes: WT/DS591/7
Complainant: EU
Respondent: Colombia
Third parties: Brazil, China, Honduras, India, Japan, Russia, Turkey, U.S.
Dispute stage: Panel
Agreements cited: Art. 1, 2.1, 2.4, 2.4.1, 2.6, 3, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.3, 5.8, 6.1.2, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2, 9.3, 11.1, 12.2, 12.2.2, 18.1, Annex II  Anti-dumpingArt. 10  Customs valuationArt. VI  GATT 1994

COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES
FROM BELGIUM, GERMANY AND THE NETHERLANDS
NOTIFICATION OF AN APPEAL BY COLOMBIA UNDER ARTICLE 25 OF THE UNDERSTANDING ON
RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
PARAGRAPH 5 OF THE AGREED PROCEDURES FOR ARBITRATION
UNDER ARTICLE 25 OF THE DSU (THE "AGREED PROCEDURES")
AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 6 October 2022, from the delegation of Colombia, is b eing
circulated to Members.

Notification of an Appeal by Colombia under Article 25 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU"), paragraph 5 of the Agreed Procedures
for Arbitration under Article 25 of the DSU (the "Agreed Procedures") and Rule 20 of the Working
Procedures for Appellate Review

Pursuant to paragraph 5 of the Agreed Procedures1, Colombia hereby notifies the Dispute Settlement
Body of its decision to initiate an arbitration under Article 25 of the DSU with regard to certain issues
of law and legal interpretation covered in the Panel Report in the dispute Colombia – Anti-Dumping
Duties on Frozen Fries from Belgium, Germany and the Netherlands.
Pursuant to paragraph 5 of the Agreed Procedures and Rule 20(1) of the Working Procedures for
Appellate Review, Colombia simultaneously files this Notice of Appeal and its Appellant Submission
with the European Union and the third parties in the panel proceedings and with the WTO Secretariat.
The Notice of Appeal includes the final report of the Panel in the working languages of the WTO.
For the reasons elaborated in its Appellant Submission to the Arbitrators, Colombia appeals and
requests the Arbitrators to reverse the findings, conclusions and recommendations of the Panel, with
respect to the following errors of law and legal interpretation contained in the Panel Report2:
1. The Panel erred in the interpretation and application of Article 5.3 as well as Article 5.2(ii),
as requiring an applicant that presents third -country sales price as a basis for determining
normal value to explain why it is “appropriate” that the application does not rely on domestic
sales prices.3 The Panel similarly erred in finding that an investigating authority must, under
Articles 5.2(iii) and 5.3, examine whether the use of third -country sales prices, instead of
domestic sales prices, was "appropriate" in the specific facts and circumstances of the
investigation, in order to satisfy the “accuracy ” and “adequacy” requirement in Article 5.3.
Accordingly, Colombia requests the Arbitrators to reverse the Panel’s findings in paragraphs
7.75, 7.78, 7.79, and 8.1.a.iii.

1 WT/DS591/3/Rev.1, 22 April 2021.
2 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, which apply mutatis
mutandis pursuant to paragraph 11 of the Agreed Procedures, this Notice of Appeal includes an indicative list of
the paragraphs of the Panel Report containing the alleged errors, without prejudice to Colombia's ability to
refer to other paragraphs of the Panel Report during the arbitration proceedings.
3 Panel Report, paras. 7.75, 7.78, 7.79, and 8.1.a.iii.

2. The Panel erred in the interpretation and application of Article 6.5 of the Anti -Dumping
Agreement by finding that the investigating authority treated certain information in the
revised application for the investigation as "confidential" without receiving a showing of
"good cause".4 As that information was never treated as confidential, the Panel erred in
finding that the authority was under an obligation to require and assess a showing of "good
cause" within the meaning of Article 6.5. Accordingly, Colombia requests that the Arbitrators
reverse the Panel's finding in paragraphs 7.126, 7.152.a., and 8.1.b.i. of its Report that the
investigating authority acted inconsistently with Article 6.5 of the Anti-Dumping Agreement.
3. The Panel erred in the interpretation and application of Article 6.2 of the DSU by finding that
the European Union’s claim under Article 2.4 of the Anti -Dumping Agreement pertaining to
packaging costs was within the Panel’s terms of reference.5 The Panel incorrectly held that
the claim developed by the European Union before the Panel was the same as the claim
pertaining to an exporter's packaging costs that was contained in the panel request (but not
developed before the Panel). By treating these two issues as different arguments regarding
the same claim in the panel request, rather than as different claims, the Panel e rred under
Article 6.2. Colombia requests that the Arbitrators reverse the Panel’s finding under Article
6.2 of the DSU and consequently also declare moot and of no legal effect the Panel’s
substantive finding under Article 2.46.
Should the Arbitrators agree with Colombia under Article 6.2 of the DSU, but consider that
part of the Panel’s substantive finding still stands because it is based also on the European
Union’s claim pertaining to the adjustment request, Colombia requests the Arbitrators to
reverse the Panel’s finding under Article 2.4 of the Anti -Dumping Agreement based on the
packaging adjustment issue 7, on the ground that the Panel improperly made the case for
the European Union and relieved it of its burden of proof. The European Union made no
prima facie case under Article 2.4 on the packaging adjustment issue.
4. The Panel erred in the interpretation and application of Articles 3.1, 3.2, 3.4, and 3.5 of the
Anti-Dumping Agreement by finding that the term "dumped imports" (importaciones objeto
de dumping, in Spanish) does not include the imports from exporters that have a positive, de
minimis dumping margin.8 The Panel ignored the ordinary meaning of the term "dumped
imports" based on the definition of "dumping" in Article 2.1 of the Anti-Dumping Agreement.
The Panel also ignored the immediate context provided in Article 3.5 and, instead, placed
undue reliance on Article 5.8 to conclude that the term "dumped imports" does not include
imports with de minimis dumping margins. Accordingly, Colombia requests the Arbitrator to
reverse the Panel's finding in paragraphs 7.303, 7.307, and 8.1.e.i. of its Report that the
investigating authority acted inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -
Dumping Agreement by including in its in jury and causation determination imports from
those exporters subject to positive, de minimis dumping margins.
Pursuant to Rule 20(2)(c) of the Working Procedures for Appellate Review, the service address,
telephone and facsimile numbers of Colombia are:
Permanent Mission of Colombia to the WTO
Rue de Lausanne 80-82
1202 Geneva
Tel: + 41 22 919 05 10
Fax: + 41 22 734 60 94

COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM
BELGIUM, GERMANY AND THE NETHERLANDS
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures o f the Panel concerning Business Confidential
Information
11
Annex A-3 Additional Working Procedures of the Panel for virtual participation at the
first substantive meeting
13
Annex A-4 Additional Working Procedures of the Panel for virtual participation at the
second substantive meeting
16
Annex A-5 Additional Working Procedures of the Panel to f acilitate arbitration under
Article 25 of the DSU
19
Annex A-6 Interim Review 20
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the European Union 24
Annex B-2 Integrated executive summary of the arguments of Colombia 33
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 62
Annex C-2 Integrated executive summary of the arguments of Japan 64
Annex C-3 Integrated executive summary of the arguments of the United States 69

CASES CITED IN THIS REPORT

Short Title Full Case Title and Citation
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of
Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515
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, p. 1727
Canada – Welded Pipe Panel Report, Canada – Anti-Dumping Measures on Imports of Certain Carbon
Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu , WT/DS482/R and Add.1, adopted 25 January 2017, DSR
2017:I, p. 7
China – Broiler Products
(Article 21.5 – US)
Panel Report, China − Anti-Dumping a nd Countervailing Duty Measures on
Broiler Products from the United States – Recourse to Article 21.5 of the DSU
by the United States , WT/DS427/RW and Add.1, adopted 28 February 2018,
DSR 2018:II, p. 839
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless
Steel Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/AB/R
and Add.1 / WT/DS460/AB/R and Add.1, adopted 28 October 2015, DSR
2015:IX, p. 4573
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Panel Reports, China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan /
China – Measures Imposing Anti -Dumping Duties on High -Performance
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union,
WT/DS454/R and Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted
28 October 2015, as modified by Appellate Body Reports WT/DS454/AB/R /
WT/DS460/AB/R, DSR 2015:IX, p. 4789
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, p. 2077
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, p. 9157
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti -Dumping
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China , WT/DS397/R and Corr.1, adopted
28 July 2011, as modified by Appellate Body Re port WT/DS397/AB/R, DSR
2011:VIII, p. 4289
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti -Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat and
Meat Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
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, p. 3
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, p. 2701
EU – Cost Adjustment
Methodologies II (Russia)
Panel Report, European Union – Cost Adjustment Methodologies and Certain
Anti-Dumping Measures on Imports from Russia (Second Complaint) ,
WT/DS494/R and Add.1, circulated to WTO Members 24 July 2020 [appealed;
adoption pending]
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear
from China, WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585
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,
p. 5295
Japan – Alcoholic
Beverages II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
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, p. 10637
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,
p. 3

Short Title Full Case Title and Citation
Korea – Pneumatic Valves
(Japan)
Appellate Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves from
Japan, WT/DS504/AB/R and Add.1, adopted 30 September 2019, DSR 2019:XI,
p. 5637
Korea – Pneumatic Valves
(Japan)
Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan ,
WT/DS504/R and Add.1, adopted 30 September 2019, as modified by Appellate
Body Report WT/DS504/AB/R, DSR 2019:XI, p. 5935
Korea – Stainless Steel
Bars
Panel Report, Korea – Sunset Review of Anti-Dumping Duties on Stainless Steel
Bars, WT/DS553/R and Add.1, circulated to WTO Members 30 November 2020
[appealed; adoption pending]
Mexico – Anti-Dumping
Measures on Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and
Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup
(HFCS) from the United States, WT/DS132/R, adopted 24 February 2000, and
Corr.1, DSR 2000:III, p. 1345
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, p. 1207
Morocco – Definitive AD
Measures on Exercise
Books (Tunisia)
Panel Report, Morocco – Definitive Anti-Dumping Measures on School Exercise
Books from Tunisia , WT/DS578/R and Add.1 , circulated to WTO Members
27 July 2021 [appealed; adoption pending]
Pakistan – BOPP Film
(UAE)
Panel Report, Pakistan – Anti-Dumping Measures on Biaxially Oriented
Polypropylene Film from the United Arab Emirates , WT/DS538/R and Add.1,
circulated to WTO Members 18 January 2021 [appealed; adoption pending]
Russia – Commercial
Vehicles
Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from
Germany and Italy, WT/DS479/R and Add.1, adopted 9 April 2018, as modified
by Appellate Body Report WT/DS479/AB/R, DSR 2018:III, p. 1329
US – Countervailing
Measures (China)
Appellate Body Report, United States – Countervailing Duty Measures on Certain
Products from China, WT/DS437/AB/R, adopted 16 January 2015, DSR 2015:I,
p. 7
US – Differential Pricing
Methodology
Panel Report, United States – Anti-Dumping Measures Applying Differential
Pricing Methodology to Softwood Lumber from Canada, WT/DS534/R and Add.1,
circulated to WTO Members 9 April 2019 [appealed; adoption pending]
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Large Civil Aircraft
(2nd complaint)
Appellate Body Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012, DSR
2012:I, p. 7
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on Softwood Lumber
from Canada, WT/DS264/R, adopted 31 August 2004, as modified by Appellate
Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the
DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, DSR
2006:XI, p. 4865
US – Steel Plate Panel Report, United States – Anti-Dumping and Countervailing Measures on
Steel Plate from India , WT/DS206/R and Corr.1, adopted 29 July 2002, DSR
2002:VI, p. 2073
US – Tuna II (Mexico)
(Article 21.5 – Mexico)
Appellate Body Report, United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the
DSU by Mexico , WT/DS381/AB/RW and Add.1, adopted 3 December 2015,
DSR 2015:X, p. 5133
US – Upland Cotton
(Article 22.6 – US I)
Decision by the Arbitrator, United States – Subsidies on Upland Cotton –
Recourse to Arbitration by the United States under Article 22.6 of the DSU and
Article 4.11 of the SCM Agreement , WT/DS267/ARB/1, 31 August 2009, DSR
2009:IX, p. 3871
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting I mports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and
Corr.1, DSR 1997:I, p. 323

EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short Title
(if any)
Description/Long title
COL-1 (BCI) Mydibel's comments on the
essential facts technical
report
Comments by interested parties on the essential facts
technical report
COL-8 Decree No. 1750 of 2015
regulating the application of
anti-dumping duties
MINCIT, Decree No. 1750 of 2015 regulating the
application of anti-dumping duties (1 September 2015)
COL-10 (BCI) Technical report on the
initiation
MINCIT, Technical report on the initiation of the
investigation, confidential version (August 2017)
COL-11 Annex 10 of the revised
application
Annex 10 of the revised application, non -confidential
version
COL-12 Political Constitution of Colombia
COL-13 Law No. 1437 of 2011 establishing the Code of
Administrative Procedure and Administrative Disputes
COL-15 (BCI) Technical report on essential
facts (confidential version)
MINCIT, Technical report on essential facts, confidential
version (27 August 2018)
COL-16 (BCI) Final technical report
(confidential version)
MINCIT, Final technical report, confidential version
(9 November 2018)
COL-35-B Annexes to FEDEPAPA's
application
Annexes to FEDEPAPA's application for the initiation of
an investigation
COL-36-A (BCI) Annex 1 of the revised
application
Annexes 1-12 to FEDEPAPA's revised application dated
19 July 2017
COL-41 (BCI) Agrarfrost's export
transactions
Export transactions provided by Agrarfrost and data
corresponding to the DIAN database
COL-42 (BCI) Aviko's export transactions Export transactions provided by Aviko an d data
corresponding to the DIAN database
COL-43 (BCI) Mydibel's export transactions Export transactions provided by Mydibel and data
corresponding to the DIAN database
COL-67 Revised application
(confidential version)
Solicitud revisada de FEDEPAPA de 19 de julio de 2017
EU-1a Notice of initiation MINCIT, Resolution No. 121 of 2 August 2017 ordering
the initiation of an administrative investigation with a
view to determining the existence, degree and effect on
the domestic industry of alleged dumping in imports of
potatoes, prepared or preserved otherwise than by
vinegar or acetic acid, frozen, originating in Belgium, the
Netherlands (Holland) and Germany (2 August 2017)
EU-2a Preliminary determination MINCIT, Decision No. 191 of 1 November 2017 adopting
the preliminary determination in the administrative
investigation initiated by means of Resolution No. 121 of
2 August 2017 (1 November 2017)
EU-3a Final report on essential facts
(public version)
MINCIT, Final technical report on essential facts,
Investigation of alleged dumping in imports of potatoes
prepared or preserved (otherwise than by vinegar or
acetic acid, frozen) classified under tariff subheading
2004.10.00.00, originating in Belgium, the Netherlands
(Holland) and Germany (27 August 2018)
EU-4a Final technical report (public
version)
MINCIT, Final technical report, public version
(9 November 2018)
EU-5a Final determination (public
version)
MINCIT, Resolution No. 257 of 9 November 2018
adopting the final determination in the administrative
investigation initiated by means of Decision 121 of
2 August 2017 (9 November 2018)
EU-6a MINCIT's revocation decision MINCIT, Resolution No. 093 of 13 May 2019 settling
several applications for direct revocation (13 May 2019)
EU-8a FEDEPAPA's application Communication dated 22 June 2017 from FEDEPAPA to
MINCIT requesting the initiation of an investigation and
the imposition of provisional measures
EU-9a MINCIT's deficiency letter to
FEDEPAPA
Communication dated 29 June 2017 from MINCIT to
FEDEPAPA requesting additional information
EU-10 Revised application Letter dated 19 July 2017 from FEDEPAPA to MINCIT
responding to the MINCIT's deficiency letter
EU-12a Preliminary technical report MINCIT, Preliminary technical report, public version
(October 2017)

Exhibit Short Title
(if any)
Description/Long title
EU-14 FEDEPAPA's certificate of
existence and legal
representation
Certificate of existence and legal representation of the
non-profit entity FEDEPAPA, issued by the Chamber of
Commerce of Bogota (6 July 2017)
EU-15 FEDEPAPA's responses to
questions raised during the
hearing
Letter dated 6 December 2017 from FEDEPAPA to
MINCIT, responses to questions raised during the
hearing
EU-17a Responses to comments on
essential facts
MINCIT's responses to comments on essential facts
EU-18a European Commission's
observations on essential
facts
European Commission's observations on the essential
facts (10 September 2018)
EU-22 (BCI) Mydibel's questionnaire response, photos demonstrating
packaging materials
EU-23a Dumping investigation
questionnaire for foreign
producers and/or exporters
MINCIT's questionnaire for foreign producers and/or
exporters
EU-25a (BCI) Agrarfrost's comments on essential facts
EU-26a (BCI) Aviko's comments on essential facts
EU-28a (BCI) Agrarfrost's questionnaire
response
Agrarfrost's questionnaire response, confidential version
EU-28.1 (BCI) Agrarfrost's questionnaire
response, Excel workbook
"ventas domésticas"
Agrarfrost's questionnaire response , confidential
version, Excel workbook "ventas domésticas"
EU-29a (BCI) Aviko's questionnaire
response
Aviko's questionnaire response, confidential version
EU-29.1 (BCI) Aviko's questionnaire
response, Excel workbook
"ventas domésticas"
Aviko's questionnaire response, confidential version,
Excel workbook "ventas domésticas"
EU-29.2 (BCI) Aviko's questionnaire
response, Excel workbook
"ventas en Colombia"
Aviko's questionnaire response, confidential version,
Excel workbook "ventas en Colombia"
EU-30a (BCI) Mydibel's questionnaire
response
Mydibel's questionnaire response, confidential version
EU-30.1 (BCI) Mydibel's questionnaire response, annex 3.2.1.2,
3rd workbook "costes de manufactura"
EU-34a (BCI) Agrarfrost's submission to MINCIT dated
1 December 2017
EU-35a (BCI) Agrarfrost's submission to MINCIT dated
22 December 2017
EU-36a Agrarfrost verification visit
report
Agrarfrost verification visit report (17 May 2018)
EU-36.1a (BCI) Agrarfrost verification visit
report, annex 9
Agrarfrost verification visit report, annex 9 "Adjustment
for type of oil"
EU-37 (BCI) MINCIT's response to
Agrarfrost dated
30 August 2018
Letter dated 30 August 2018 from MINCIT to Agrarfrost
responding to the request for information on essential
facts
EU-41 (BCI) Agrarfrost's submission to MINCIT dated 28 August 2018

ABBREVIATIONS USED TO IN THIS REPORT
Abbreviation Description
Agrarfrost Agrarfrost GMBH & CO
Agristo Agristo N.V.
Anti-Dumping Agreement Anti-Dumping Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Aviko Aviko B.V.
BCI business confidential information
Clarebout Clarebout Potatoes N.V.
Congelagro Congelados Agrícolas S.A.
Customs Valuation
Agreement
Agreement on Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994
DIAN National Tax and Customs Directorate
DIAN database Customs database of the Colombian National Directorate for Taxes and
Customs
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Ecofrost Ecofrost S.A.
F.o.b. free on board
Farm Frites Farm Frites International N.V.
FEDEPAPA Colombian Federation of Potato Producers
Frozen Express Productos Alimenticios Frozen Express S.A.S.
GATT 1994 General Agreement on Tariffs and Trade 1994
MINCIT Ministry of Trade, Industry and Tourism
Mydibel Mydibel S.A.
PUC product under consideration
Soraca Procesadora y Comercializadora de Alimentos Soraca S.A.
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155
UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization

1 INTRODUCTION
1.1 Complaint by the European Union
1.1. On 15 November 2019, the European Union requested consultations with Colombia pursuant
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), Article 17 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (Anti -Dumping Agreement), Article 19 of
the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994
(Customs Valuation Agreement), and Article XXIII of the General Agreement on Tariffs an d
Trade 1994 (GATT 1994) with respect to the measures and claims set out below.9
1.2. Consultations were held on 15-16 January 2020, but were unsuccessful in resolving the dispute.
1.2 Panel establishment and composition
1.3. On 17 February 2020, the European Union requested the establishment of a panel pursuant to
Articles 4.7 and 6 of the DSU, Article 17.4 of the Anti-Dumping Agreement, Article 19 of the Customs
Valuation Agreement, and Article XXIII of the GATT 1994, to examine the matter based on the
standard terms of reference, as set out in Article 7.1 of the DSU. 10 Pursuant to the
European Union's request, the Dispute Settlement Body (DSB) established the Panel at its meeting
on 29 June 2020, in accordance with Article 6 of the DSU.11
1.4. Under its terms of reference, the Panel is required:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by the European Union in
document WT/DS591/2 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.12
1.5. Based on an agreement between the parties, the Panel was composed on 24 August 2020 as
follows:
Chairperson: Mr Hanspeter TSCHAENI
Members: Ms Leane Cornet NAIDIN
 Ms Margarita TRILLO-RAMOS
1.6. Brazil, China, Honduras, India, Japan, the Russian Federation, Türkiye, and the United States
notified their interest in participating in the Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.7. Upon the parties' request, the Panel commenced the organizational process in these
proceedings on 3 December 2020 and, in light of the challenges posed by the COVID-19 pandemic,
decided to conduct the organizational process through written consultations with the parties. Based
on these consultations, the Panel adopted its Working Procedures13 as well as a partial timetable for
these proceedings on 8 February 2021.14

9 Request for consultations by the European Union, WT/DS591/1, G/ADP/D133/1, G/VAL/D/14,
G/L/1339 (European Union's consultations request). The measures and claims are set out in sections 2-3
below.
10 Request for the establishment of a panel by the European Union, WT/DS591/2
(European Union's panel request).
11 DSB, Minutes of the meeting held on 29 June 2020, WT/DSB/M/442.
12 Constitution note of the Panel, WT/DS591/4.
13 Working Procedures of the Panel (Annex A-1).
14 The timetable proposed by the Panel to the parties on 21 December 2020 envisaged that the
European Union and Colombia would file their first written submissions by 26 February 2021 and

1.8. In light of subsequent developments and multiple requests by the parties, the Panel further
revised and updated the timetable for these proceedings on:
• 21 June 202115;
• 28 June 202116;
• 1 July 202117;
• 4 August 202118;
• 26 October 202119;
• 7 February 202220;
• 30 May 202221;

26 March 2021, respectively. On 12 January 2021, Colombia requested the Panel to extend the deadline for
filing its first written submission to 21 May 2021. On the same date, the European Union requested the Panel
to extend the deadline for filing its first written submission to a date not before 7 March 2021. After
considering the parties' requests, the Panel fixed 8 March 2021 as the date for the European Union's first
written submission and 7 May 2021 for Colombia's first written submission.
15 On 27 May 2021, the Panel proposed 27-29 July 2021 for its first substantive meeting with the
parties. On 31 May 2021, Colombia requested the Panel to organize the first substantive meeting either during
the month of June through 9 July 2021 or, alternatively, during the first week of September 2021. On 2 June
2021, the European Union communicated its availability for the first substantive meeting with the Panel from
7-9 July 2021. On 9 June 2021, having considered the parties' positions, and taking account of certain
technological constraints and the then-prevailing pandemic-related restrictions that precluded a meeting from
being held in June or early July, the Panel maintained its originally proposed dates of 27-29 July 2021. On
10 June 2021, Colombia requested the Panel to: (a) provide sufficient time (not earlier than
17 September 2021) to respond to the Panel's questions; and (b) circulate at least some of the questions in
advance of the first substantive meeting. The Panel partially granted Colombia's request and adopted a revised
timetable on 21 June 2021 that set: (i) 16 July 2021 as the date for issuing advance questions to the parties;
(ii) 4 August 2021 as the date for issuing post-hearing questions to the parties; and (iii) 3 September 2021 as
the date for receiving the parties' written responses to the questions posed by the Panel at the first substantive
meeting.
16 On 23 June 2021, the European Union also requested the Panel to extend the deadline for filing its
responses to the Panel's questions from 3 September to 17 September 2021. On 28 June 2021, given the
parties' shared position, the Panel granted the European Union's request and revised the timetable accordingly.
17 On 1 July 2021, the Panel communicated to the parties and the third parties the following
dates: (a) 27-29 July 2021 as the date for the first substantive meeting of the Panel with the parties;
(b) 28 July 2021 as the date for the Panel's session with the third parties; (c) 4 August 2021 as the date for
issuing written questions to the third parties; and (d) 17 September 2021 as the date for receiving
third-parties' written responses to the questions posed by the Panel. The timetable was updated accordingly.
18 On 4 August 2021, the Panel communicated to the parties and third parties 24 September 2021 as
the date for submitting the integrated executive summaries of the third parties. On the same date, the Panel
also communicated to the parties 29 October 2021 as the date for submitting their second written submissions.
The timetable was updated accordingly.
19 On 14 October 2021, the Panel proposed 19-20 January 2022 for its second substantive meeting with
the parties. On 18 October 2021, Colombia requested the Panel to postpone this meeting to the week of
7-11 February 2022. In a communication dated 21 October 2021, the European Union did not oppose
Colombia's request and indicated its preference to hold the second substantive meeting on
9-10 February 2022. Having considered the parties' positions and the availability of the Panel, the Panel
revised the timetable on 26 October 2021 and set 1-2 February 2022 as the dates for the second substantive
meeting with the parties. On 10 December 2021, Colombia further requested the Panel to postpone the dates
of the second substantive meeting, on a tentative basis, to mid-April 2022. On 14 December 2021, the
European Union opposed Colombia's request. Having considered the parties' positions, the Panel rejected
Colombia's request on 15 December 2021 and maintained 1-2 February 2022 as the dates for the second
substantive meeting with the parties.
20 On 2 February 2022, at the end of the second substantive meeting with the parties, both parties
requested the Panel for additional time for filing their responses to the questions posed and their written
comments on each other's responses. Having considered the parties' positions, the Panel granted this request
and revised the timetable on 7 February 2022 changing the two deadlines from 18 February to
21 February 2022 and from 25 February to 1 March 2022, respectively. On the same date, the Panel also
communicated to the parties the following dates: (a) 4 March 2022 as the date for submitting the integrated
executive summaries of the parties; (b) 14 March 2022 as the date for issuing the descriptive part of its
report; and (c) 28 March 2022 as the date for submitting comments on the descriptive part of the
Panel's report. The timetable was updated accordingly.
21 On 19 May 2022, with a view to completing its work in this matter by the end of July, the Panel
communicated to the parties the following dates: (a) 10 June 2022 for the issuance of the interim report;
(b) 24 June 2022 for parties to request review of part(s) of the report and to request an interim review
meeting; and (c) 1 July 2022 for the parties to submit their comments on the requests for review. On
23 May 2022, Colombia requested the Panel to grant a "short extension to comment on the interim report,
having in mind that its issuance is going to happen" on 10 June 2022, "just before the [12th] WTO Ministerial"

• 9 June 202222; and
• 22 June 2022.23
1.9. On 21 December 2020, with a view to ensuring that these proceedings are conducted in an
expeditious manner in the face of the challenges posed by the COVID -19 pandemic, the Panel
proposed to pursue a round of written questions and answers with the parties following the receipt
of their first written submissions, and to hold the substantive meeting with the parties as well as the
third parties' session after the filing of the parties' rebuttal submissions.24 On 12 January 2021, the
European Union stated that, for reasons of due process, it did not consider it appropriate to deviate
from the normal practice of two substantive meetings in this present dispute. On the same date,
Colombia stated that, in light of the universal practice under the DSU to hold two substantive
meetings, and because one substantive meeting would not allow it to present its defence in an
adequate manner , the maintenance of two substantive meetings was essential. Given the
parties' shared position, the Panel planned and organized these proceedings with two substantive
meetings with the parties.
1.10. The European Union and Colombia informed the Panel on 7 December 2020 that they intended
to present their written submissions and their oral arguments during the substantive meetings in
English and Spanish, respectively. 25 In light of the travel and organizational restrictions presented
by the COVID -19 pandemic, and as acknowledged by both parties in their communications dated
12 January 2021, the Panel decided to conduct the first substantive meeting virtually by means of
a novel software solution that allowed for both remote participation and secure simultaneous
interpretation, while respecting the confidentiality of these proceedings. Consistent with the
then-prevailing health guidelines, the Panel allowed a limited numbe r of the parties' delegates to
participate in this virtual meeting from the WTO premises. On 14 July 2021, the Panel adopted the
Additional Working Procedures for virtual participation at the first substantive meeting. 26 The Panel

Conference. On 24 May 2022, the European Union informed the Panel that it had no comments to offer on
Colombia's request. On 30 May 2022, the Panel partially granted Colombia's request and communicated to the
parties the following dates: (a) 9 June 2022 for the issuance of the interim report; (b) 28 June 2022 for the
parties to request review of part(s) of the report and to request an interim review meeting; and (c) 5 July 2022
for the parties to submit their comments on the requests for review. The timetable was updated accordingly.
22 On the morning of 9 June 2022, the parties "jointly request[ed] the Panel not to issue its Interim
Report to the Parties today and to postpone the issuance of the Interim Report until Thursday 16 June 2022",
when the parties "will have finished" with the 12th WTO Ministerial Conference. Granting their joint request on
the same date, the Panel informed the parties that the Interim Report would be issued on 16 June 2022 and
that the subsequent dates for the interim review process that had already been communicated to the parties
would remain unchanged. The timetable was updated accordingly.
23 On the night of 15 June 2022, the European Union stated that it was "considering whether to request
the Panel to modify again its timetable and to delay the issuance of the Interim Report". The European Union
stated that such a request could be submitted in the morning of 16 June 2022. On 16 June 2022, Colombia and
the European Union jointly requested the Panel, inter alia, "not to issue its Interim Report to the parties
today," and to "modify its Timetable in order to provide that the Interim Report will not be issued to the parties
before Thursday 30 June 2022." In light of this joint request, the Panel informed the parties on 16 June 2022
that it would not issue its Interim Report that day, and that it would issue a revised timetable in due course.
On 22 June 2022, the Panel communicated to the parties the following dates: (a) 30 June 2022 for the
issuance of the Interim Report; (b) 14 July 2022 for the parties to request review of part(s) of the report and
to request an interim review meeting; and (c) 21 July 2022 for the parties to submit their comments on the
requests for review. The timetable was updated accordingly.
24 The draft Working Procedures initially proposed by the Panel indicated that, "[u]pon request by either
party, or should the Panel consider it necessary, the Panel may, after consultation with the parties, decide to
hold a second substantive meeting with the parties."
25 We note that the record of the underlying investigation is in Spanish and so are materials from that
record that the parties placed as exhibits on the Panel's record. For certain exhibits, the European Union
provided, in addition to the original Spanish document (typically labelled as Exhibit EU-[…]a), a courtesy
English translation (typically labelled as Exhibit EU-[…]b). Colombia, for its part, did not "endorse[]" or
"object[]" to the "accuracy" of the English translations provided by the European Union and requested the
Panel to conduct its analysis "on the basis of the official version of the exhibits, that is to say, the Spanish
version". (Colombia's first written submission, paras. 4.2-4.3). Where necessary, the Panel has relied on its
own understanding of the Spanish texts of the original exhibits and of Colombia's submissions that are a part
of the Panel record. The English language version of this Panel Report contains the Panel's English translations
of the original, Spanish texts, which can be found in the Spanish language version of this Panel Report.
26 Additional Working Procedures of the Panel for virtual participation at the first substantive meeting
(Annex A-3).

held its first substantive meeting with the parties on 27-29 July 2021. A session with the third parties
was convened on 28 July 2021.
1.11. In light of the prevailing epidemiological situation and the stricter pandemic-related
restrictions in place at the time, the Panel decided to hold the second substantive meeting virtually,
without the possibility for in -person attendance at the WTO premises. Accordingly, the entire
meeting was convened using a secure software platform and, on 17 January 2022, the Panel adopted
the Additional Working Procedures for virtual participation at the second substantive meeting.27 The
Panel held its second substantive meeting with the parties on 1-2 February 2022.
1.12. On 14 March 2022, the Panel issued the descriptive part of its Report to the parties. The Panel
issued its Interim Report to the parties on 30 June 2022 . The Panel issued its Final Report to the
parties on 29 August 2022.
1.3.2 Working Procedures on Business Confidential Information
1.13. Following written consultations with the parties, the Panel adopted the A dditional Working
Procedures for the protection of Business Confidential Information (BCI) in these proceedings on
8 February 2021.28
1.3.3 Agreed procedures for arbitration under Article 25 of the DSU
1.14. On 13 July 2020, Colombia and the European Union notified to the DSB their mutual
agreement, "pursuant to Article 25.2 of the [DSU] to enter into arbitration under Article 25 of the
DSU to decide any appeal from any final panel report as issued to the parties" in this dispute.29 In its
Working Procedures for these proceedings, the Panel took "note of the Agreed Procedures for
Arbitration under Article 25 of the DSU in this dispute notified by the parties on 13 July 2020
(WT/DS591/3) and of the joint requests of the parties to the Pan el formulated therein". 30
On 29 August 2022, the Panel, having consulted with the parties, adopted the Additional Working
Procedures to facilitate arbitration under Article 25 of the DSU.31
2 FACTUAL ASPECTS: THE MEASURES AT ISSUE
2.1. The European Union's panel request challenges the WTO -consistency of the
anti-dumping duties imposed by Colombia on imports of potatoes, prepared or preserved (otherwise
than by vinegar or acetic acid), frozen, classified under tariff subheading 2004.10.00.00 originating
in Belgium, Germany, and the Netherlands, as set forth in the following documents32:
a. Ministry of Trade, Industry and Tourism Resolution Number 191 of 1 November 2017
adopting the preliminary determination on the administrative investigation initiated by
means of Decision 121 of 2 August 2017, published in the Official Journal No . 50.406 of
3 November 201733, page 4;
b. Ministry of Trade, Industry and Tourism Resolution Number 257 of 9 November 2018
adopting the final determination on the administrative investigation init iated by
Decision 121 of 2 August 2017, published in the Official Journal No . 50.772 of
9 November 2018, page 9;

27 Additional Working Procedures of the Panel for virtual participation at the second substantive meeting
(Annex A-4).
28 Additional Working Procedures of the Panel concerning Business Confidential Information
(Annex A-2).
29 Agreed procedures for arbitration under Article 25 of the DSU, WT/DS591/3 (fn omitted). The parties
revised these procedures on 20 April 2021, WT/DS591/3/Rev.1.
30 Working Procedures of the Panel (Annex A-1), para. 33.
31 Additional Working Procedures of the Panel to facilitate arbitration under Article 25 of the DSU
(Annex A-5).
32 European Union's panel request, pp. 1-2.
33 The date of publication of the preliminary determination indicated in the European Union's panel
request is 9 November 2018. However, as indicated in MINCIT's revocation decision, (Exhibit EU-6a), the
preliminary determination was published in the Official Journal No. 50.406 on 3 November 2017.

c. Responses to the comments on the essential facts in the investigation of dumping of
imports of potatoes, prepared or preserved, classified under tariff subheading
2004.10.00.00 originating in Belgium, the Netherlands and Germany;
d. Final technical report, public version, investigation of alleged dumping of imports of
potatoes, prepared or preserved (otherwise than by vinegar or acetic acid), classified
under tariff subheading 2004.10.00.00 originating in Belgium, the Netherlands
(Holland) and Germany; and
e. Ministry of Trade, Industry and Tourism Resolution Number 093 of 13 May 2019
addressing some requests for administrative review, pub lished in the Official Journal
No. 50.956, page 18.
2.2. The European Union also challenges any annexes thereto, as well as notices, preliminary
findings, reviews, amendments, supplements, replacements, renewals, extensions, implementing
measures or any other related measures.34
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The European Union requests the Panel to make the following findings35:
a. Colombia acted inconsistently with its obligations under Article 5.3 of the
Anti-Dumping Agreement by initiating the anti -dumping investigation on the basis of
insufficient evidence of dumping, injury, and causal link between the dumped imports and
the alleged injury;
b. Colombia acted inconsistently with its obligations under Article 5.8 of the
Anti-Dumping Agreement by failing to reject the application submitted by the Colombian
Federation of Potato Producers (FEDEPAPA), which did not include sufficient evidence to
justify proceeding with the investigation;
c. Colombia acted inconsistently with its obligations under Article 6.5 of the
Anti-Dumping Agreement by providing confidential treatment, on its own initiative, to the
information supplied by the applicant, without any showing of good cause;
d. Colombia acted inconsistently with its obligat ions under Article 6.5.1 of the
Anti-Dumping Agreement by failing to require the applicant to furnish non -confidential
summaries in sufficient detail to permit a reasonable understanding of the substance of
the information submitted in confidence, or by failing to require a statement of reasons in
support of a claim that the information was not susceptible of summary;
e. Colombia acted inconsistently with its obligations under Articles 2.1 and 6.8, and
paragraphs 3 and 6 of Annex II, of the Anti -Dumping Agreement, by not using, in the
calculation of the dumping margins, the information on export prices provided by the
cooperating investigated companies, and instead using information from its customs
database (Customs database of the National Customs and Excise Directorate
(DIAN database));
f. Colombia acted inconsistently with its obligations under Article 2.4 of the
Anti-Dumping Agreement by not making due allowances for differences impacting price
comparability (differences in product mix and differences in oil u sed in the preparation),
by making undue adjustments (for packaging costs), and by not informing interested
parties about the information required for the fair comparison;
g. Colombia acted inconsistently with its obligations under Articles 3.1, 3.2, 3.4, and 3.5 of
the Anti-Dumping Agreement by erroneously including non -dumped imports in its injury
and causation analyses;

34 European Union's panel request, p. 2.
35 European Union's first written submission, paras. 331-332; second written submission, para. 143.

h. Colombia acted inconsistently with its obligations under Articles 3.1 and 3.2 of the
Anti-Dumping Agreement by not conducting an objective examination, based on positive
evidence, by failing to properly establish the effect of the dumped imports on prices in the
domestic market for the like product, and by failing to adequately justify its findings;
i. Colombia acted inconsistently wit h its obligations under Articles 3.1 and 3.4 of the
Anti-Dumping Agreement by not conducting an objective examination, based on positive
evidence, by failing to properly consider all relevant economic factors and indices having
a bearing on the state of the industry, and by failing to adequately justify its findings; and
j. Colombia acted inconsistently with its obligations under Articles 3.1 and 3.5 of the
Anti-Dumping Agreement by not conducting an objective examination, based on positive
evidence, by failin g to demonstrate a causal link between the dumped imports and the
injury to the domestic industry, and by failing to adequately justify its findings.
3.2. The European Union further requests the Panel to recommend, pursuant to Article 19.1 of the
DSU, that Colo mbia bring its measures into conformity with the GATT 1994 and the
Anti-Dumping Agreement.36
3.3. Having presented arguments in response to each of the European Union's claims, Colombia
requests the Panel to reject the European Union's claims under Articles 2.1, 2.4, 3.1, 3.2, 3.4, 3.5,
5.3, 5.8, 6.5, 6.5.1 and 6.8, as well as paragraphs 3 and 6 of Annex II, of the
Anti-Dumping Agreement, asserting, inter alia, that the European Union has failed to make a
prima facie case that Colombia acted inconsistently with its obligations under these provisions.
Colombia therefore also considers it inappropriate for the Panel to issue any recommendations under
Article 19.1 of the DSU.37
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Brazil, Japan, and the United States are reflected in their executive
summaries, provided in accordance with paragraph 26 of the Working Procedures adopted by the
Panel (see Annexes C-1, C-2, and C-3). China, Honduras, India, the Russian Federation, and Türkiye
did not make written or oral submissions before the Panel.
6 INTERIM REVIEW
6.1. The Panel issued its Interim Report to the parties on 30 June 2022. On 14 July 2022, Colombia
submitted a written request seeking a review of precise aspects of the Interim Report, and the
European Union informed the Panel that it "ha[d] no commen ts on the Interim Report". 38 On
21 July 2022, the European Union submitted comments on Colombia's request for review. Neither
party requested an interim review meeting.
6.2. The request and comments made at the interim review stage as well as the Panel's discussion
and disposition thereof are set out in Annex A-6.

36 European Union's first written submission, para. 333; second written submission, para. 144.
37 Colombia's first written submission, paras. 13.231-13.232; second written submission,
paras. 14.1-14.2.
38 European Union's communication (14 July 2022).

7 FINDINGS
7.1 General issues relating to treaty interpretation, the standard of review, and burden
of proof
7.1.1 Treaty interpretation
7.1. In Article 3.2 of the DSU, WTO Members "recognize" that the dispute settlement system serves,
inter alia, to "clarify" the existing provisions of the covered agreements "in accordance with
customary rules of interpretation of public international law". 39 Article 17.6(ii) of the
Anti-Dumping Agreement similarly requir es panels to "interpret the relevant provisions of
[that] Agreement in accordance with customary rules of interpretation of public international law".
It is generally accepted that the principles enumerated in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties (Vienna Convention) are such customary rules.40
7.1.2 Standard of review
7.2. Panels examining the WTO -consistency of a challenged measure are generally bound by
Article 11 of the DSU, which provides, 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[.]
7.3. In addition, with respect to "matter[s]" concerning claims under the Anti-Dumping Agreement,
Article 17.6 of the Agreement provides that:
(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their
evaluation of those facts was unbiased and objective. If the establishment of the
facts was proper and the evaluation was unbiased and objective, even though the
panel might have reached a different conclusion, the evaluation shall not be
overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance
with customary rules of interpretation of public international law. Where the panel
finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the pan el shall find the authorities' measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations.41
7.4. In light of these provisions, a panel examining an investigating authority's determination should
not conduct a de novo review of the evidence, nor substitute its own judgment for that of the
investigating authority. The exact standard of review to be applied by a panel in examining an
investigating authority's determination in a given case is a "function of the substantive provisions of
the specific covered agreements that are at issue in the dispute" 42 as well as the "specific claim(s)
put forth by a complainant".43

39 We also note that Article 3.2 of the DSU provides that "[r]ecommendations and rulings of the DSB
cannot add to or diminish the rights and obligations provided in the covered Agreements".
40 See e.g. Appellate Body Reports, US – Gasoline, DSR 1996:I, pp. 15-16; and Japan – Alcoholic
Beverages II, DSR 1996:I, p. 104.
41 Article 17.6 of the Anti-Dumping Agreement is identified in Article 1.2 and Appendix 2 of the DSU as
one of the "special or additional rules and procedures" which prevail over the DSU "[t]o the extent that there is
a difference" between those provisions and the provisions of the DSU.
42 Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada), para. 95;
43 See e.g. Appellate Body Report, US – Countervailing Measures (China), para. 4.182.

7.1.3 Burden of proof
7.5. The DSU does not contain any specific rules concerning the allocation of the burden of proof in
WTO dispute settlement proceedings . We agree with the observation that the "generally accepted
canon of evidence in … most jurisdictions, that the burden of proof rests upon the party … who
asserts the affirmative of a particular claim or defence" is also followed in WTO dispute settlement.44
As such, the complainant – i.e. the European Union in these proceedings – must "establish a
prima facie case of inconsistency with [the] provision [invoked] before the burden of showin g
consistency with that provision is taken on by the defending party". 45 A prima facie case is one
which, "in the absence of effective refutation by the defending party ", requires a panel to find in
favour of the complaining party.46
7.2 Claims under Article 5.3 of the Anti -Dumping Agreement: the initiation of the
investigation
7.2.1 Introduction
7.6. In the underlying proceeding, the Colombian Federation of Potato Producers (FEDEPAPA) – the
applicant – filed an application before MINCIT – the Colombian investigating authority – requesting,
on behalf of the domestic industry, the initiation of an anti -dumping investigation into alleged
dumping of imports of "potatoes, prepared or preserved (otherwise than by vinegar or acetic acid)"
and exported to Colombia under "tariff subheading 2004.10.00.00 ".47 After reviewing this filing ,
MINCIT sent a deficiency letter to FEDEPAPA requesting certain supplementary information and
clarifications.48 The applicant responded to MINCIT's request by submitting a revised application.49
Thereafter, MINCIT issued a "technical report" that analysed the application and explained the basis
for its decision to initiate the investigation.50 A resolution to initiate the investigation concerning the
allegedly dumped import s from Belgium, the Netherlands, and Germany, was issued by MINCIT
on 2 August 2017.51
7.7. The European Union claims that Colombia acted inconsistently with its obligations under
Article 5.3 of the Anti -Dumping Agreement because the evidence examined and reli ed upon by
MINCIT was insufficient for an unbiased and objective investigating authority to justify the initiation
of the investigation. 52 Specifically, the European Union challenges the manner in which
MINCIT's notice of initiation considered: (a) the definition of the product under consideration; (b) the
representativeness of the applicant; ( c) the evidence used to calculate the normal value; ( d) the
evidence relied upon for the injury analysis; and ( e) the evidence concerning the causal
relationship.53
7.8. Colombia asserts that the European Union's claims should be rejected in their entirety because
they are based on a "misunderstanding" of the facts and of the disciplines of the

44 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 335.
45 Appellate Body Report, EC – Hormones, para. 104. Colombia argues that, in light of paragraphs 3(1)
and 5(1) of the Panel's Working Procedures, a prima facie case must be established by the European Union no
later than its first written submission. (See e.g. Colombia's second written submission, fn 88; and response to
Panel question No. 1.17, paras. 96-97 and fn 52). We note, however, that neither paragraph 3(1) nor
paragraph 5(1) contains any such requirement with respect to the demonstration of a "prima facie" case by the
complainant.
46 Appellate Body Report, EC – Hormones, para. 104.
47 FEDEPAPA's application, (Exhibit EU-8a), para. 1.
48 MINCIT's deficiency letter to FEDEPAPA, (Exhibit EU-9a).
49 Revised application, (Exhibit EU-10).
50 Technical report on the initiation, (Exhibit COL-10 (BCI)).
51 MINCIT elected to exclude imports from France from the investigation on the grounds that "there
have been no imports since 2015" and that therefore "it [was] not appropriate to link these imports to the
investigation". (Notice of initiation, (Exhibit EU-1a), section 1.4).
52 European Union's first written submission, paras. 50 and 66-67; second written submission,
paras. 41-42.
53 European Union's first written submission, paras. 51-67; second written submission, paras. 4-41.

Anti-Dumping Agreement.54 Colombia also maintains that the European Union fail s to make a
prima facie case in respect of certain claims.55
7.9. We begin our analysis by recalling the applicable requirements of Article 5.3 of the
Anti-Dumping Agreement (section 7.2.2). Subsequently, we consider whether, in light of the specific
facts and circumstances of this dispute, Colombia acted inconsistently with Article 5.3 in respect of:
(a) the definition of the product under consideration (section 7.2.3); (b) the representativeness of
the applicant (section 7.2.4); (c) the evidence used to calculate the normal value (section 7.2.5);
(d) the evidence relied upon for the injury analysis (section 7.2.6); and (e) the evidence on the
causal relationship (section 7.2.7).
7.2.2 Applicable requirements under Article 5.3 of the Anti-Dumping Agreement
7.10. Article 5.3 of the Anti-Dumping Agreement states that:
The authorities shall examine the accuracy and adequacy of the evidence provided in
the application to determine whether there is sufficient evidence to justify the initiation
of an investigation.
7.11. Article 5.3 requires investigating authorities to determine whether there is "sufficient"
evidence to justify the initiati on of an investigation and requires that, in making such a
determination, the investigating authorities "examine" the "accuracy" and "adequacy" of the
"evidence" provided "in the application ".56 The dictionary meanings of the words "accuracy" and
"adequacy" include "the state or quality" of being "accurate" and "adequate", respectively. 57
The dictionary meaning of the word "accurate" includes "exact, precise; conforming exactly with the
truth or with a given standard; free from error".58 The dictionary meaning of "adequate" comprises
"fully satisfying what is required; quite sufficient, suitable, or acceptable in quality or quantity ."59
The dictionary meaning of the word "sufficient" includes "enough for a particular purpose".60
7.12. Article 5.3 requires authorities to examine the evidence "in the application". We observe that
Article 5.2 requires an "application" for initiation to include , inter alia, evidence of "(a) dumping,
(b) injury … and (c) a causal link between the dumped imports and the alleged injury". We also
observe that Article 5.6, which concerns initiation by an investigating authority without having
received a written application, requires an authority to determine w hether there is "sufficient
evidence of dumping, injury and a causal link" to justify the initiation of an investigation. These
textual and contextual elements in Article 5 of the Anti -Dumping Agreement suggest that the
"evidence" in an application that authorities must examine under Article 5.3 is evidence relating to
the three elements necessary for the imposition of an anti -dumping measure, namely, evidence of
dumping, injury, and a causal link between the two .61 That said, we recognize that the initiation
stage of an investigation is distinct from the "subsequent investigation".62 In this regard, we consider

54 Colombia's first written submission, paras. 5.3 and 6.2.
55 See e.g. Colombia's second written submission, paras. 3.3 and 2.60-2.62; and response to Panel
question No. 1.17, paras. 96-97.
56 In this regard, we agree that "inherent in the very meaning of evidence [in the context of Article 5.3]
is its relationship to the facts that it tends to establish, i.e. its relevance" and that the context provided by
Article 5.2 confirms that "the evidence in the application must be 'relevant'". (Panel Report, Pakistan – BOPP
Film (UAE), para. 7.19 [appealed; adoption pending]).
57 Oxford Dictionaries online, definitions of "accuracy"
https://www.oed.com/view/Entry/1281?redirectedFrom=accuracy#eid and "adequacy"
https://www.oed.com/view/Entry/2298?redirectedFrom=adequacy#eid (accessed 10 May 2022), meaning 1,
respectively.
58 Oxford Dictionaries online, definition of "accurate"
https://www.oed.com/view/Entry/1283?redirectedFrom=accurate#eid (accessed 10 May 2022), meaning 3.
59 Oxford Dictionaries online, definition of "adequate"
https://www.oed.com/view/Entry/2299?rskey=MTPVBE&result=1&isAdvanced=false#eid (accessed
10 May 2022), adj., meaning 3a.
60 Cambridge dictionary online, definition of "sufficient"
https://dictionary.cambridge.org/dictionary/english/sufficient (accessed 10 May 2022), adj., meaning 1.
61 See e.g. Panel Reports, Guatemala – Cement II, para. 8.35; Argentina – Poultry Anti-Dumping
62 See e.g. Article 5.7 and the heading of Article 5 of the Anti-Dumping Agreement.

that the "quantity and quality" of the evidence needed to initiate an investigation are generally lesser
than what is required to impose anti-dumping measures.63
7.13. Article 5.3 thus requires investigating authorities to "examine" whether an application
contains "enough", "precise", and "suitable" evidence of dumping, injury, and causation to justify
the initiation of an investigation. At the same time, we agree with a prior adopted DSB report that
the provision "says nothing regarding the nature of the examination to be carried out. Nor does it
say anything requiring an explanation of how that examination was carried out."64 Any review of an
investigating authority's conduct under Article 5.3 must therefore be carried out on a case-by-case
basis, in light of the specific facts and circumstances at issue.65
7.14. The applicable standard of review for examining the European Union's claims under Article 5.3
therefore requires us to consider whether an unbiased and objective investigating authority could
have determined that the application and the revised application that FEDEPAPA submitted to
MINCIT contained "sufficient" evidence – based upon an exami nation of the "accuracy" and
"adequacy" of the evidence – to justify the initiation of an anti -dumping investigation into imports
of frozen fries from Belgium, Germany, and the Netherlands.66
7.2.3 Definition of the product under consideration
7.2.3.1 Introduction
7.15. In its application of initiation, FEDEPAPA defined the product under consideration (PUC) based
on a narrative description that, among other things, described the subject imports as: "potatoes,
with or without skin, that are cut in any way, processed in som e way (normally precooked and
pre-fried), frozen and stored at low temperatures". This narrative further stated that these products
are "most commonly known in the market as 'precooked, pre-fried and frozen potatoes ' with the
emphasis on them being ready for final preparation and subsequent consumption". The narrative
also indicated that these products are exported to Colombia "already precooked, pre -fried and
frozen, under subheading 2004.10.00.00" and that "[t]he main raw materials used in the production
of precooked, pre-fried and frozen potatoes are fresh (unprocessed) potatoes, followed to a lesser
degree by vegetable oil, disodium pyrophosphate stabilizer (INS 450I), and certain other chemical
elements."67
7.16. MINCIT drew upon this nar rative description when initiating the underlying investigation.
Specifically, MINCIT's notice of initiation defined the PUC to be "potatoes prepared or preserved
(otherwise than by vinegar or acetic acid ), frozen, classified under tariff subheading
2004.10.00.00".68
7.17. The European Union claims that, by initiating the investigation on the basis of an
"over-inclusive definition" of the PUC, MINCIT failed to discharge its "duty to verify whether that
definition was appropriate "69, and to ensure that " there was sufficient evidence to launch an
investigation with respect to the broad range of products covered" by that definition.70 According to
the European Union, the fact that the definition of the PUC includes tariff subheading 2004.10.00.00
("potatoes, prepared or preserved otherwise than by vinegar or acetic acid, frozen") means that the
PUC "covers a wide range of potato preparations".71 According to the European Union, this definition
was over-inclusive and unsupported by evidence because it include d: (a) products that were not
imported (or were only imported in very small quantities) into Colombia; and (b) products for which

63 See e.g. Panel Reports, Guatemala – Cement II, para. 8.35; Mexico – Steel Pipes and Tubes,
64 Panel Report, EC – Bed Linen, para. 6.198. See also Mexico – Corn Syrup, paras. 7.105 and 7.110.
65 See e.g. Panel Report, Mexico – Steel Pipes and Tubes, para. 7.24.
66 See e.g. Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.60. See also Panel Reports,
Mexico – Steel Pipes and Tubes, paras. 7.26 and 7.32; US – Softwood Lumber V, para. 7.79; and
Guatemala – Cement II, para. 8.31.
67 Revised application, (Exhibit EU-10), section 8. (emphasis original)
68 Notice of initiation, (Exhibit EU-1a), section 1.2.
69 European Union's response to Panel question No. 1.2, para. 2.
70 European Union's response to Panel question No. 1.2, para. 7.
71 European Union's response to Panel question No. 1.2, para. 3. See also European Union's opening
statement at the first meeting of the Panel, para. 9.

it was unclear whether they were produced by the domestic industry.72 The European Union asserts
that an "investigating authority should not limit itself to accepting whatever definition is used in the
application", but, rather, should "determine independently if there is sufficient evidence to justify
the initiation of an investigation in respect of the alleged dumping of a particular product."73
7.18. Colombia responds, inter alia, that the definition of the PUC cannot be challenged under
Article 5.3 as this provision does not set out any relevant obligations. Recalling previous panels,
Colombia adds that the Anti -Dumping Agreement also contains no provision defining the PUC but
focuses, instead, on the definition of the "like" product, which in turn must reflect the PUC selected
by the investigating authority. According to Colombia, it therefore follows that an investigat ing
authority enjoys "material discretion" to define the PUC and that the Anti-Dumping Agreement does
not envisage a challenge against this definition.74
7.2.3.2 Analysis
7.19. The European Union's Article 5.3 claim concerning the PUC requires us to consider whether
an unbiased and objective investigating authority could have determined that the evidence that
FEDEPAPA provided in its application and revised application was "sufficient" to initiate an
investigation on imports of frozen fries based on the definition of the PUC that identified the subject
imports as "potatoes, prepared or preserved otherwise than vinegar or acetic acid, frozen, classified
under tariff subheading 2004.10.00.00".
7.20. At the outset, we observe that the European Union makes somewhat contradictory statements
as part of its submissions to the Panel on this claim. On the one hand, the European Union asserts
that MINCIT's "definition of the [PUC] was over-inclusive".75 On the other hand, the European Union
maintains that it " does not challenge the definition of the 'product under consideration' under
Articles 2.1 and 2.6 "76; nor does it allege " that Article 5.3 contains any requirement limiting the
investigating authority's discretion in defining the product under consideration".77
7.21. Notwithstanding this, we understand the European Union to, in essence, argue that, for its
claim under Article 5.3, "[t]he evidence supporting the description of the alleged dumped product "
was "lacking", because, "if it had existed", it "would have shown" that the product imported into
Colombia from the countries concerned "consisted quasi exclusively of the so-called 'traditional chips
or fries'", such that "the inclusion of other categories of prepared or frozen potatoes in the definition
of the [P UC] was therefore unjustified and unwarranted". 78 Specifically, we understand the
European Union to assert that MINCIT's definition of the PUC was over -inclusive and unsupported
by evidence because it included within its scope: (a) products that were not imported (or were only
imported in very small quantities) into Colombia; and (b) products for which it was unclear whether
they were produced by the domestic industry.79
7.22. Although the European Union attempts to couch its arguments in evidentiary terms to fit
within the scope of Article 5.3, its position appears to presuppose and imply that the provisions of
the Anti-Dumping Agreement, in fact, limit the definition of the PUC to include only those specific
product categories: (a) that are actually imported into another country; and, (b) that are "like" the
products actually produced by the domestic industry. 80 In our view, ther efore, the
European Union's arguments are related to the legal question of the obligations, if any, that the
Anti-Dumping Agreement imposes with respect to the scope of the definition of the PUC. The
European Union's arguments also raise the issue of the k ind of evidence that is required as part of

72 European Union's opening statement at the first meeting of the Panel, para. 9. See also
European Union's response to Panel question No. 1.2, para. 3; and first written submission, para. 51.
73 European Union's response to Panel question No. 1.2, para. 4.
74 See e.g. Colombia's first written submission, paras. 5.11-5.16 (referring to Panel Reports,
Mexico – Steel Pipes and Tubes, para. 7.21; and EC – Salmon (Norway), para. 7.43); opening statement at the
first meeting of the Panel, para. 2.4; and second written submission, paras. 2.4, 2.11, and 2.15.
75 European Union's second written submission, para. 4. (emphasis added)
76 European Union's response to Panel question No. 1.2, para. 5. (emphasis added)
77 European Union's second written submission, para. 7. (emphasis added)
78 European Union's response to Panel question No. 1.2, para. 7.
79 European Union's opening statement at the first meeting of the Panel, para. 9. See also
European Union's response to Panel question No. 1.2, para. 3; and first written submission, para. 51.
80 European Union's opening statement at the first meeting of the Panel, para. 9. See also
European Union's response to Panel question No. 1.2, para. 3; and first written submission, para. 51.

the application in support of the definition of the PUC and, specifically, whether the applicant needs
to include evidence demonstrating that all the specific categories of products within the scope of the
definition of the PUC are, in fact, imported into another country and are also produced by the
domestic industry. In this sense, the European Union's arguments that are couched in evidentiary
terms for the purpose of Article 5.3 also appear to be related to the interpretative issue of the
obligations, if any, concerning the definition of the PUC and the evidence in support thereof at the
initiation stage of an investigation.
7.23. With respect to the legal basis of its claim, we note that t he European Union asserts "that
MINCIT failed to draw the appropriate conclusions from the fact that FEDEPAPA 's application and
subsequent reply to a request for clarification did not contain all the information required by
Article 5.2 subparagraphs (i) and (ii) of the Anti -Dumping Agreement".81 Article 5.2(ii) states, in
relevant part, that:
An application … shall include evidence of (a) dumping, (b) injury … and (c) a causal
link between the dumped imports and the alleged injury. … The application shall contain
such information as is reasonably available to the applicant on the following:
…
a complete description of the allegedly dumped product[.]
7.24. Although Article 5.2(ii) requires an application to contain a "complete description" of the
"allegedly dumped product ", the provision does not otherwise define what may constitute a
"complete" description or definition of the "allegedly dumped product" or the PUC .82 In this respect,
we note that the European Union "does not argue that Article 5.3 contains any requirement limiting
the investigating authority's discretion in defining the product under consideration".83 We also agree
with prior adopted DSB reports that there is "no specific provision in the AD Agreement concerning
the selection, description, or determination, of a product under consideration".84 As such, we are of
the view that the treaty text does not require an applicant to ensure that the definition of the PUC
that it submits to an investigating authority excludes all those specific product categories: that are
not imported into its country; and that are not produced by the domestic industry . In the absence
of such a definitional requirement, we cannot see how Article 5.2(ii) can be read to require an
applicant to provide supporting evidence demonstrating that al l the specific categories of products
within the range of products covered by the definition of the PUC are, in fact, imported into another
country and are produced by the domestic industry. Consequently, there is no basis, under
Article 5.3 read in light of Article 5.2(ii), to fault an investigating authority for not examining the
sufficiency of such evidence which is not required in the first place.
7.25. With respect to Article 5.2(i), the European Union contends that MINCIT initiated the
investigation based on insufficient evidence regarding the extent to which the PUC "corresponded"
to the "like" product manufactured by the domestic industry. 85 In particular, the European Union
argues that while Article 5.2(i) requires the applicant to "correctly describe" the domestic production
of the "like" product, FEDEPAPA requested MINCIT to initiate the investigation in respect of a range
of products that was wider than the range of "like" products manufactured by domestic Colombian

81 European Union's second written submission, para. 5.
82 We note that Article 5.2(ii) uses the term "allegedly dumped product" and not "product under
consideration". Other provisions of the Anti-Dumping Agreement, such as, e.g. Article 2.2.1.1, use the term
"product under consideration". In the present proceedings, we understand the parties to use these terms
interchangeably, using various formulations, including the "product under consideration", the "product
concerned", the "product in respect of which dumping was alleged", and "the product under investigation".
(See e.g. European Union's first written submission, para. 51; European Union's response to Panel
question No. 1.2, paras. 2-3 and 5; Colombia's first written submission, paras. 5.9 and 5.13;
Colombia's second written submission, paras. 2.4 and 2.10). See also Panel Report, US – Softwood Lumber V,
para. 7.152 (noting that "the allegedly dumped product … is generally referred to in the AD Agreement as the
'product under consideration'". (emphasis omitted)).
83 European Union's second written submission, para. 7.
84 Panel Report, EC - Salmon (Norway), para. 7.43. See also Panel Report, US – Softwood Lumber V,
para. 7.153.
85 European Union's opening statement at the first meeting of the Panel, para. 9.

producers.86 Thus, according to the European Union, MINCIT failed to verify the "accuracy" and
"adequacy" of the evidence provided by the applicant in support of its "description of the domestic
production" of the "like" product for purposes of Article 5.3 read in light of Article 5.2(i).87
7.26. Noting that the Anti-Dumping Agreement does not require an authority to ensure that the
PUC includes only those exact "models" that are produced by the domestic industry, Colombia argues
that any such "rule" has no basis in the treaty text.88 Colombia also notes that, as Article 2.6
expressly contemplates that the PUC and the domestic like product may not be identical, it is
"perfectly possible" for the PUC to be defined to contain elements or models that are not produced
by the domestic industry.89
7.27. As we see it, the crux of the European Union's claim is that the applicant did not provide
sufficient evidence demonstrating that the PUC "corresponded" to the "like" product produced by
the domestic industry, and that this omission led to MINCIT using an over-inclusive definition of the
PUC.90 According to the European Union, the applicant was required to provide such information
because: Article 5.2(i) requires a "correct description" of the domestic production of the "like"
product; and, it is "reasonable" to expect that an applicant will provide "detailed and comprehensive"
information about the range of products that are manufactured by the domestic industry that are
"like" the PUC.91
7.28. Article 5.2(i) states, in relevant part, as follows:
The application shall contain such information as is reasonably available to the applicant
on the following:
…
the identity of the applicant and a description of the volume and value of the domestic
production of the like product by the applicant. Where a written application is made on
behalf of the domestic industry, the application shall identify the industry on behalf of
which the application is made by a list of all known domestic producers of the like
product (or associations of domesti c producers of the like product ) and, to the extent
possible, a description of the volume and value of domestic production of the like
product accounted for by such producers[.]
7.29. Article 5.2(i) requires "a description of the volume and value of the domestic production of
the like product by the applicant ". In the case of an application made on behalf of the domestic
industry, the provision requires , "to the extent possible, a description of the volume and value of
domestic production of the like product acco unted for by [the domestic] producers". We note that
Article 5.2(i) does not use the terms "product under consideration" or "allegedly dumped product".
We also note that the provision does not concern the issue of defining, describing, or determining
the PUC. Rather, it focuses, inter alia, on information concerning the "domestic production of the
like product". As such, we are of the view that Article 5.2(i) does not require an applicant to provide
evidence demonstrating that the scope of the definition of the PUC "correspond[s]" exactly to the
scope of the "like product manufactured by the domestic industry".92

86 Specifically, the European Union asserts that MINCIT's definition of the PUC contained within its
scope products for which it was unclear whether they were produced by the domestic industry. (See e.g.
European Union's, second written submission, para. 4).
87 European Union's response to Panel question No. 12.1, para. 7; opening statement at the first
meeting of the Panel, para. 9. See also European Union's response to Panel question No. 1.2, paras. 2-3.
88 Colombia's second written submission, para. 2.7.
89 Colombia also argues that limiting the PUC only to models also produced by the domestic industry
would result in a "circumvention" of the disciplines of the Anti-Dumping Agreement, because this approach
would effectively require importing countries to leave "gaps" in anti-dumping measures, thereby allowing for
the entry of product models sold at dumped prices that compete with the domestic industry's products despite
being slightly different. (Colombia's second written submission, paras. 2.20-2.21).
90 European Union's opening statement at the first meeting of the Panel, para. 9.
91 European Union's opening statement at the first meeting of the Panel, para. 10. See also
European Union's first written submission, para. 51; and response to Panel question No. 1.2, paras. 2-3.
92 European Union's opening statement at the first meeting of the Panel, para. 9.

7.30. We further note that Article 2.6 defines the term "like product" as follows:
Throughout this Agreement the term "like product" (" produit similaire ") shall be
interpreted to mean a product which is identical, i.e. alike in all respects to the product
under consideration, or in the absence of such a product, another product which,
although not alike in all respects, has characteristics closely resembli ng those of the
product under consideration.
7.31. The provision thus defines the "like product" by comparing it to the "product under
consideration", i.e. a product which is either "identical" to the "product under consideration", or in
the absence of such a product, another product which has characteristics "closely resembling" those
of the "product under consideration". In this regard, we note and agree with the finding of a prior
panel that:
[T]he definition of "like product" implies a comparison with another product … the
starting point can only be the "other product", being the allegedly dumped product.
Therefore, once the product under consideration is defined, the "like product" to the
product under consideration has to be determined on the basis of Article 2.6. However,
in our analysis of the AD Agreement, we could not find any guidance on the way in
which the "product under consideration" should be determined.93
7.32. In relying on Article 5.2(i) to challenge the manner in which MINCIT defined the PUC for the
purpose of initiation, the European Union suggests that the specific products that are produced by
the domestic industry should serve as the "starting point" for defining the PUC and that the definition
of the PUC (or, in this case , the allegedly dumped product) should correspond exactly to the "like"
products produced by the domestic industry. This line of inquiry, in our view, effectively reverses
the logic underlying the definition of the term "like product" and finds no basis in the text of
Articles 5.2(i) and 2.6.94 We thus disagree with the Europe an Union's argument that the range of
products covered by MINCIT's definition of the PUC at the stage of initiation was inconsistent with
Article 5.3 because it contained certain products that were not produced by the domestic industry.
7.33. The European Union presents two additional supporting arguments. First, the European Union
contends that, because Article 5.3 governs the obligations of the investigating authority at the phase
of initiation, it is at this stage that the investigating authority is required to examine "critically" the
definition of the PUC and determine whether it is "appropriate".95 We note that while an investigating
authority, at the time of initiation, has to make an initial decision as to the scope of the investigation,
and give "public notice" of the "product involved " pursuant to Article 12.1.1(i), the
Anti-Dumping Agreement does not preclude an authority from continuing to adjust or to refine the
scope of the PUC during the course of an investigation.96
7.34. Second, the European Union notes that adopting an "over-inclusive" definition of the PUC has
repercussions for the subsequent conduct of an investigation. According to the European Union, the
fact that MINCIT adopted an "over-inclusive" definition of the PUC erroneously caused sales prices
of higher-value products in the domestic markets of the countries of origin to be included in the
calculation of the normal value and the inclusion of these sales artificially inflated the margins of
dumping found by MINCIT during the investigation. 97 Colombia responds that the fact that the

93 Panel Report, US – Softwood Lumber V, para. 7.153.
94 See e.g. Panel Report, EC – Salmon (Norway), para. 7.51 (noting that, "[i]t is clear that the subject
of Article 2.6 is not the scope of the product that is the subject of an anti-dumping investigation at all. Rather,
the purpose of Article 2.6, apparent from its plain language, is to define the 'like product'").
95 European Union's response to Panel question No. 1.2, para. 4.
96 See e.g. Panel Report, Mexico – Steel Pipes and Tubes, para. 7.343 (observing that nothing in the
Anti-Dumping Agreement "prevent[s] an investigating authority from adjusting the definition of the product
under investigation", and that, "in certain circumstances, it might be necessary or highly appropriate for an
investigating authority to adjust or refine its product definition in light of information collected and analysed in
the course of the investigation that was not available to the IA at the time of initiation").
97 European Union's response to Panel question No. 12.1, para. 8. See also European Union's response
to Panel question No. 1.3, paras. 10-11; and opening statement at the second meeting of the Panel, para. 8.

definition of the PUC has implications for other steps in the investigation does not mean that this
definition can be challenged under Article 5.3.98
7.35. We agree that the manner in which the PUC is defined at the initiation stage can have
implications for an investigating authority's subsequent analysis. The WTO-consistency of any such
subsequent analysis is, however, a distinct issue that wo uld have to be examined in light of the
specific claims and provisions that may be presented by a complainant. As such, we share the view
of a prior panel that the mere possibility that an authority's decision at one stage of an investigation
might lead to an error in its subsequent analysis is " not enough to persuade us to read obligations
into the AD Agreement for which we can find no basis in the text of the Agreement".99
7.2.3.3 Conclusion
7.36. For the reasons set out above , we find that the European Union has not e stablished that
Colombia acted inconsistently with Article 5.3 of the Anti-Dumping Agreement because MINCIT failed
to conclude "that the application did not provide sufficient evidence to justify opening an
investigation on the alleged dumping of the full range of products falling under tariff subheading
2004.10.00.00."100
7.2.4 Representativeness of the applicant
7.2.4.1 Introduction
7.37. When initiating the underlying investigation MINCIT determined , inter alia, that "the party
[represented by FEDEPAPA] accounts for 69% of the total volume of domestic production", and that
this fulfilled "the requirement … that it must account for over 50% [of the total production of the
like product] in order for the investigation to be initiated." 101 In addition, MINCIT noted th at
FEDEPAPA attached to its revised application "a list of 45 'non applicant companies', in respect of
which it stated that steps were being taken to obtain a written document demonstrating the support
of the entire domestic industry."102
7.38. The European Union claims that, in initiating the investigation, MINCIT acted inconsistently
with Article 5.3 because the application did not include sufficient evidence of the
applicant's representativeness of the domestic industry that manufactures the "like" product . The
European Union presents three grounds in support of its claim. First, the European Union asserts
that an apparent discrepancy exists between statements that FEDEPAPA made in section 3 of its
revised application (stat ing that the domestic potato -processing industry represented 69% of the
domestic market, not of the total production) and statements that MINCIT made in its decision of
initiation (stat ing that FEDEPAPA 's members account for some 69% of the total volume of the
domestic industry).103 Second, the European Union submits that it is "not clear" that the applicant
actually represented potato-processing companies, both because FEDEPAPA's certificate of existence
and legal representation do es not specifically note that the federation's objectives include "the
representation, defence, and protection of the interests of the potato -processing industry" ; and
because this certificate does not indicate whether the potato-processing industry could be members
of the Colombian federation of potato grower s.104 Finally, the European Union asserts that it was
"not clear" , at the time of initiation, whether FEDEPAPA represented at least 25 % of the total
production of the like product as required by Article 5.4 of the Anti-Dumping Agreement.105

98 Colombia's second written submission, para. 2.4. See also Colombia's first written submission,
para. 5.13.
99 Panel Report, EC – Salmon (Norway), para. 7.58.
100 European Union's second written submission, para. 5.
101 Notice of initiation, (Exhibit EU-1a), section 1.1 (emphasis added); Decree No. 1750 of 2015
regulating the application of anti-dumping duties, (Exhibit COL-8), Article 21.
102 Notice of initiation, (Exhibit EU-1a), section 1.1.
103 European Union's first written submission, para. 55.
104 See e.g. European Union's first written submission, para. 57; and second written submission,
paras. 9-12.
105 European Union's first written submission, para. 56; opening statement at the first meeting of the
Panel, paras. 11-12.

7.39. Colombia responds , inter alia, that the alleged discrepancy between the use of the term
"domestic market" and the term "domestic production" is a small "semantic error by FEDEPAPA".106
Moreover, according to Colombia, the European Union "seeks to interpret Colombian law by
questioning whether FEDEPAPA represented, in a legitimate manner in accordance with Colombian
law, the petitioning firms." For Colombia, nothing in the Anti-Dumping Agreement limits the entities
which, under the applicable domestic legislation, are entitled to represent petitioning firms, nor the
manner in which they wish to be represented, and as such, any determination of
"representativeness" by an investigating authority is fully within the discretion of each Member.
Colombia also asserts that the record indicates that MINCIT evaluate d – in light of the regulations
in force and all relevant facts – FEDEPAPA's capacity to represent the petitioning firms and
determined that it was empowered to do so under Colombian law 107, and that MINCIT properly
determined that the petitioning firms accounted for 69% of domestic production, thus satisfying the
minimum thresholds of 25% and 50% required by Article 5.4. In any event, Colombia asserts that
the European Union's "representativeness" claim must fail because (a) the
European Union's arguments relate to Article 5.4 but it has failed to identify Article 5.4 among its
claims; and (b) the issue of industry support "does not form part of the matter of 'evidence' under
Article 5.3".108
7.2.4.2 Analysis
7.40. The European Union's "representativeness" claim requires us to consider whether an unbiased
and objective authority could have determined that the evidence that FEDEPAPA provided in the
application (and revised application) regarding its ability to represent the producers of the domestic
"like" product was sufficient to initiate the investigation in accordance with Article 5.3 of the
Anti-Dumping Agreement.
7.41. We recall that Article 5.3 requires an investigating authority to examine the "accuracy" and
"adequacy" of the evidence of dumping, injury, and causal link between them, provided in the
application, and to determine, on this basis, whether there is "sufficient" evidence to initiate an
investigation.109
7.42. As we see it, t here are three key points of contention between the parties regarding the
representativeness of the applicant: first, an alleged discrepancy in the relevant evidence between
"domestic market" and "domestic production"; second, whether the applicant was authorized to
represent the domestic industry ; and third, whether FEDEPAPA's members accounted for at least
25% of total production of frozen fries in Colombia. We examine each of these points, in turn.
7.43. As to the alleged discrepancy in the relevant evidence, the parties do not dispute that there
is an inconsistency between section 3 of the revised application, which state s that the domestic
potato-processing industry represented 69% of the domestic market, and section 1.1 of the decision
of initiation, which st ates that FEDEPAPA's members account for 69 % of the total volume of the
domestic production.
7.44. Section 3 of FEDEPAPA's revised application reads, in relevant part, as follows:
3 REPRESENTATIVENESS
Decree 1750 of 2015 sets out the provisions applicable to investigations concerning
imports of products originating in WTO member countries that generate or cause
dumping while affecting a significant portion of the domestic industry.
Article 21 thereof states that " for the purposes of initiating an investigation, an
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% of the total production of the like product produced by that

106 Colombia's first written submission, paras. 5.19-5.20.
107 See e.g. Colombia's first written submission, paras. 5.27-5.29 and 5.34.
108 See e.g. Colombia's first written submission, paras. 5.25-5.29; closing statement at the first meeting
of the Panel, para. 4; and second written submission, paras. 2.26 and 2.28-2.30.
109 See paragraph 7.12 above.

portion of the domestic industry expressing either support for or opposition to the
application".
That said, the following facts should be highlighted in relation to representativeness:
…
b. The national processing industry, in accordance with "Annex 4", accounts for 69%
of the domestic market, exceeding the threshold laid down in the above-mentioned
decree.110
7.45. In support of its position, t he European Union highlights the last part of the above excerpt,
wherein FEDEPAPA states that "[t]he national processing industry" accounts for 69 % of "the
domestic market" instead of referring to domestic production as stated by MINCIT in the notice of
initiation.111 The European Union, however, does not explain how this discrepancy demonstrates an
alleged lack of evidence regarding the applicant 's representativeness of the total domestic
production. Moreover, we consider that the passages cited above could reasonably be read to infer
that the applicant wanted to refer to 69% of domestic production. This is because the figure of 69%
in this passage refers explicitly to the "threshold laid down [in Article 21 of the Decree No. 1750 of
2015]" which requires compliance with the requirement of "more than 50% of the total production
of the like product produced by that portion of the domestic industry expressing either support for
or opposition to the application". 112 We thus agree with Colombia that this discrepancy appears to
be a simple "semantic error by FEDEPAPA". 113 For this reason, we reject the
European Union's argument that FEDEPAPA's use of the term "domestic market" (in section 3 of the
revised the application) rather than the term "domestic production" demonstrates that the revised
application did not include sufficient evidence of the applicant 's representativeness of the domestic
industry that manufactures the "like" product.
7.46. Turning to the question of whether the applican t was authorized to act on behalf of the
domestic industry, we note that the parties' disagreement concerns the basis on which the applicant
claimed to represent the potato-processing industry. The parties do not dispute that FEDEPAPA relied
on its certificate of existence and legal representation to demonstrate its ability to represent the
potato-processing industry. 114 Specifically, in its revised application, FEDEPAPA quoted this
certificate, in relevant part, as follows:
1 INFORMATION CONCERNING THE APPLICANT
…
CORPORATE PURPOSE: The Colombian Federation of Potato Producers
(Fedepapa) has the following objectives: (a) … (b) to represent, defend and protect the
interests of potato growers before the national government and other public and private
entities in all areas related directly or indirectly to the potato production system; …

110 Revised application, (Exhibit EU-10), section 3. (italics and bold type original; underlining added)
111 Specifically, the European Union refers to the notice of initiation, which in relevant part, reads as
follows:
1.1 Representativeness
The legal representative of the applicant FEDEPAPA states that the party it represents accounts
for 69% of the total volume of domestic production and would therefore fulfil the requirement of
Article 21 of Decree No. 1750 of 2015 that it must account for over 50% in order for the
investigation to be initiated.
(Notice of initiation, (Exbibit EU-1a), section 1.1 (bold type original; italics added))
112 Decree No. 1750 of 2015 regulating the application of anti-dumping duties, (Exhibit COL-8),
Article 21. (emphasis added)
113 Colombia's first written submission, paras. 5.19-5.21.
114 See e.g. Colombia's first written submission, para. 5.31; and European Union's opening statement at
the second meeting of the Panel, para. 11.

(k) to reaffirm the economic, social and political importance of potatoes and the potato
industry before government agencies and private entities[.]115
7.47. The European Union contends that the basis on which the applicant claimed to represent the
potato-processing industry was "not clear" because none of the objectives listed in
FEDEPAPA's certificate refer specifically to "the representation, defence, and pr otection of the
interests of the potato-processing industry", and the wording of objective (k) is "vague and generic",
in contrast to the precise wording of objective (b), which explicitly refers to "the representation,
defence, and protection of the inter ests of the potato growers". 116 Colombia responds that the
Anti-Dumping Agreement does not "limit" the types of entities that may represent petitioning firms,
nor the manner in which they wish to be represented, and as such, this determination of
"representativeness" is fully within the "discretion" of each Member. 117 Colombia also notes that
MINCIT evaluated – in light of the regulations in force and all relevant facts – FEDEPAPA's capacity
to represent the three petitioning firms (Congelagro, Frozen Express , and Soraca) and determined
that it was empowered to do so under Colombian law.118
7.48. Article 5.1 of the Anti-Dumping Agreement recognizes that an application may be made "on
behalf" of the domestic industry. Article 5.2(i) of the Anti-Dumping Agreement also states that an
"application shall contain such information as is reasonably available to the applicant" concerning
"the iden tity of the applicant" and , where the application is made "on behalf" of the domestic
industry, the application shall also "identify the industry on behalf of which the application is made
by a list of all known domestic producers of the like product (or a ssociations of domestic producers
of the like product)".
7.49. We note that nothing in the text of these provisions, or elsewhere in the
Anti-Dumping Agreement, provides guidance as to how the representation of domestic producers in
an anti-dumping investigation should be established by an applicant.119 The Agreement is thus silent
as to the form or manner in which an applicant, acting "on behalf" of the domestic industry, must
demonstrate that it has the capacity to represent domestic producers of the like produc t
(or associations of domestic producers of the like product).
7.50. The European Union does not assert that FEDEPAPA 's certificate of existence and legal
representation could per se not be used to demonstrate that FEDEPAPA has the capacity to represent
the potato-processing industry. Rather, the European Union simply argues that it was "not clear"
from the objectives listed in this certificate that FEDEPAPA could represent the producers of the
potato-processing industry because none of these objectives expressly refer to "the representation,
defence, and protection of the interests of the potato-processing industry", in contrast to the precise
wording of objective (b) with respect to the representation of potato growers.
7.51. We note, however, that the European Union has not pointed the Panel to any evidence in
support of its argument that the fact that FEDEPAPA's certificate does not "explicitly" authorize it to
represent the potato-processing industry before MINCIT prevents it from doing so. Specifically, the
European Union has not explained, much less demonstrated on the basis of evidence , (i) how the
allegedly "vague and generic" wording of objective (k) precludes FEDEPAPA from representing the
potato-processing industry , or (ii) how the fact that objective (b) explicitly refers to the
"representation, defence, and protection of the interests of the potato growers" precludes FEDEPAPA
from representing potato-processing producers. We also observe that the European Union has

115 Revised application, (Exhibit EU-10), section 1 (bold type original). See also FEDEPAPA's certificate of
existence and legal representation, (Exhibit EU-14), p. 498.
116 See e.g. European Union's first written submission, para. 57; response to Panel question No. 1.5,
paras. 14-15; and second written submission, paras. 9 and 12.
117 Colombia's first written submission, paras. 5.27-5.29 and 5.34-5.35; second written submission,
para. 2.32.
118 Colombia's first written submission, para. 5.34.
119 In this regard, we note Colombia's assertion that "[t]he Anti-dumping Agreement does not contain
any provision, rule or requirement as to when and how and under what conditions an entity can represent
domestic producers and act on 'behalf of' them", indicating therefore that it is within the "investigating
authorities['] full discretion to determine, under the national legislation in force and, in each particular case,
under what conditions an entity or person may validly represent domestic producers". (Colombia's response to
Panel question No. 1.3 paras. 4-5 (fn omitted)). Apart from indicating the limitations imposed by Article 5.4 on
industry support, the European Union does not appear to have disputed this assertion.
(European Union's response to Panel question No. 1.4, para. 13).

neither argued, nor pointed to any evidence that demonstrates that the petitioning firms are not, in
fact, members of FEDEPAPA.120
7.52. Absent specific guidance in the Anti-Dumping Agreement indicating how an applicant, acting
"on behalf" of domestic producers, must establish that it has the capacity to represent these
producers, as well as the lack of argument or evidence presented by the European Union for
demonstrating that these producers were not members of FEDEPAPA, we fail to see the basis for the
European Union's argument that there was no evidence that FEDEPAPA represented the domestic
industry that produced the domestic like product.121
7.53. The final issue concerns whether the evidence that FEDEPAPA provided in its application was
sufficient to establish that the application was expressly supported by at least 25% of the domestic
producers of the "like" product. Colombia asserts that , while the European Union's argument is
related to Article 5.4, the European Union has failed to identify Article 5.4 among its claims, and
therefore the subject of industry support is outside the Panel's terms of reference.122 In response to
questioning by the Panel, the European Union clarified that it does not raise a claim under
Article 5.4.123
7.54. Even assuming (quod non) that the obligations of Article 5.3 apply to the issue of industry
support referred to in Article 5.4, we are of the view that the European Union has not established
that MINCIT failed to examine the accuracy and adequacy of the information in the application
concerning the issue of industry support. In particular, the European Union has not demonstrated,
with supporting evidence, that the information provided by FEDEPAPA was insufficient to establish
that the application was supported by at least 25% of the domestic producers of the "like" product,
and was therefore insufficient to justify initiating the investigation.124
7.55. In support of its argument, the European Union refers to section 1.1 of MINCIT's notice of
initiation entitled "Representativeness", which reads as follows:
1.1 Representativeness
The legal representative of the applicant FEDEPAPA states that the party it represents
accounts for 69% of the total volume of domestic production and would therefore fulfil
the requirement of Article 21 of Decree No. 1750 of 2015 that it must account for over
50% in order for the investigation to be initiated.125
In addition, the applicant attached a list of 45 "non applicant companies", in respect of
which it stated that steps were being taken to obtain a written document demonstrating
the support of the entire domestic industry.126

120 We also note Colombia's assertion, which the European Union has not countered, that the three
companies represented by FEDEPAPA cooperated actively in the submission of documents and information to
MINCIT. (Colombia's second written submission, para. 2.24; opening statement at the second meeting of the
Panel, para. 2.17).
121 For the same reasons, we also decline to accept the European Union's argument that
FEDEPAPA's certificate of existence and legal representation does not indicate "in any form" that
potato-processing companies could be members of this federation. (See e.g. European Union's first written
submission, para. 57). In particular, the European Union has not demonstrated that this certificate precludes
FEDEPAPA from representing potato-processing producers.
122 Colombia adds that the issue of industry support does not form part of the matter of "evidence"
under Article 5.3 of the Anti-Dumping Agreement. (Colombia's response to Panel question No. 1.8,
paras. 19-20; closing statement at the first meeting of the Panel, para. 4; and second written submission,
paras. 2.26-2.30).
123 European Union's response to Panel question No. 1.7(a), para. 18. See also European Union's second
written submission, para. 13.
124 European Union's response to Panel question No. 1.7(a), para. 19; second written submission,
para. 14.
125 Decree No. 1750 of 2015 regulating the application of anti-dumping duties, (Exhibit COL-8),
Article 21. We note that Article 21 of Decree No. 1750 of 2015 refers to both the minimum thresholds of 50%
and 25% required by Article 5.4 of the Anti-Dumping Agreement.
126 Notice of initiation, (Exhibit EU-1a), section 1.1.

7.56. According to the European Union, the industry support of at least 25 % was "far from clear"
from the text of the passages cited above .127 In our view, however, a c areful reading of these
passages shows that the application was supported by "69% of the total volume of domestic
production", indicating therefore that the application met the minimum threshold of 25% of the total
production of the like product. We also recall that nothing in Article 5.3 sets out obligations with
respect to how the examination of the evidence is to be undertaken or needs to be explained by
investigating authorities. 128 As a consequence, we do not see the basis for the
European Union's argument that it was "unclear" that the application was supported by at least 25%
of the total production of the like product . Moreover, a mere allegation of a "lack of clarity" in an
investigating authority 's determination does not demonstrate a lack of "sufficient" evidence for
purposes of initiation within the meaning of Article 5.3. In fact, the European Union recognizes that
MINCIT did not fail to make a determination with regard to the degree of support of the application
by the domestic industry.129
7.57. The European Union also argues that because the application did not "clearly" identify the
producers of the like product and included potato growers among the domestic industry, there were
legitimate "doubts" about the extent to which FEDEPAPA represented the producers of the like
product at the time of initiation. 130 First, we note that section 3 of the revised application, which
refers to the "representativeness" of FEDEP APA, states that "[t]he national processing industry …
accounts for 69% of the domestic [production]". 131 Second, annex 1 of the revised application
provides a list of the domestic processing industry. 132 Finally, as noted in section 7.2.6 below, the
record evidence shows that the data considered by MINCIT in its injury analysis relates explicitly to
frozen precooked potatoes and to the potato -processing industry, indicating therefore that potato
growers were not included in the definition of the domestic industry. Thus, the
European Union's assertions that the application did not "clearly" identify the producers of the "like"
product and included potato growers among the domestic industry do not correspond to the facts
on the record . As such, we fail to see how th ese arguments can demonstrate the alleged lack of
sufficient evidence establishing that the application was expressly supported by at least 25% of the
domestic producers of the "like" product.
7.2.4.3 Conclusion
7.58. For the foregoing reasons, we find that the European Union has not established that Colombia
acted inconsistently with its obligations under Article 5.3 because MINCIT did not have suff icient
evidence demonstrating that FEDEPAPA represented the domestic producers of the "like" product so
as to justify initiating the underlying investigation.
7.2.5 Evidence used to determine the normal value
7.2.5.1 Introduction
7.59. As part of its revised application for t he initiation of the underlying investigation , FEDEPAPA
stated that "the export price for frozen precooked potatoes exported from Belgium, the Netherlands
(Holland), Germany and France to the United Kingdom during the period July 2014-June 2016 was
used as the basis for the normal value."133 In its notice of initiation, MINCIT determined the normal

127 European Union's response to Panel question No. 1.7(a), para. 18.
128 We agree with prior adopted DSB reports that Article 5.3 does not speak to "the nature of the
examination to be carried out", nor does it require "an explanation of how that examination was carried out".
(Panel Report, EC – Bed Linen, para. 6.198); nor does Article 5.3 "impose an obligation on the investigating
authority to set out its resolution of all underlying issues considered in making [its determination of whether
there is sufficient evidence to justify initiation]". (Panel Report, Mexico – Corn Syrup, para. 7.102
(emphasis original)).
129 See e.g. European Union's second written submission, para. 13.
130 European Union's second written submission, para. 14. According to the European Union, this "in
itself" indicates that the evidence supporting the application was "sketchy" and "insufficient". (Ibid. para. 15).
131 As noted in paragraph 7.45 above, we understand that the applicant referred to 69% of "domestic
production".
132 Revised application, (Exhibit EU-10), section 11; Annex 1 of the revised application,
(Exhibit COL-36-A (BCI)).
133 Revised application, (Exhibit EU-10), section 10(a). As noted in fn 51 above, MINCIT elected to
exclude imports from France from the investigation at issue on the grounds that "there have been no imports
since 2015" and that therefore "it [was] not appropriate to link these imports to the investigation". (Notice of
initiation, (Exhibit EU-1a), section 1.4).

value "based on the information provided by the applicant", noting that the " applicant proposed"
taking "the export price of frozen precooked potatoes from Belgium, the Netherlands (Holland),
Germany and France to the United Kingdom" during "the period from July 2014 [to] June 2016" as
the basis for the normal value.134
7.60. The European Union claims that, by relying exclusively on the export price of frozen precooked
potatoes from Belgium, the Netherlands, and Germany , to the United Kingdom – i.e. a
"third country" – for determining the normal value , MINCIT acted inconsistently with Article 5.3 of
the Anti-Dumping Agreement because it did not examine the "adequacy" of the evidence provided
in the application.135 Although the European Union accepts that an investigating authority can rely
on sales prices to a third country to calculate the normal value for purposes of initiation136, it submits
that under Article 5.2(iii) of the Anti -Dumping Agreement, information on sale s prices in the
domestic markets of the country or countries of origin is to be "preferred" for this purpose. 137
Highlighting the use of the term "where appropriate" in Article 5.2(iii), the European Union argues
that recourse to sales prices in third countries should "only occur where information on the price of
sales in the domestic market of the country or countries of origin is not reasonably available to the
applicant, or where, in accordance with … Articles 2.2 and 2.2.1 of the Anti -Dumping Agreement,
the investigating authority determines that the sales in the domestic market of the exporting country
do not permit a proper comparison with the export price", such as in cases "where there are no such
domestic sales in the ordinary course of trade, they are not representative or where, for other
reasons, a proper comparison is not possible. "138 Emphasizing that there was no indication of the
existence of any of these conditions in the underlying inv estigation139, the European Union claims
that MINCIT acted inconsistently with Article 5.3 because it did not question the "adequacy" of the
evidence submitted by FEDEPAPA.140
7.61. Colombia responds that, although the European Union focuses on the term "where
appropriate" in Article 5.2(iii), it does not explain the relevance of that provision in the context of a
claim under Article 5.3.141 For Colombia, the use of the term "where appropriate" in Article 5.2(iii)
highlights that the applicant has the flexibility and the "free choice" to submit the information on
normal value that appears to the applicant to be the "most" appropriate and "relevant".142 Colombia
takes issue with the European Union's reliance on Articles 2.2 and 2.2.1, noting that the strict criteria
and hierarchies under those provisions do not apply at the stage of the initiation of an
investigation.143 According to Colombia, the European Union's position means effectively that the
initiation of an investigation requires a full investigation beforehand and that, therefore, this
approach incorrectly mixes the key elements of an "investigation" with the requirements of an
"initiation".144
7.2.5.2 Analysis
7.62. As discussed above, under Article 5.3, the determination as to whether there is "sufficient
evidence to justify the initiation of an investigation" must be based on an examination of the
"accuracy" and "adequacy" of the "evidence provided in the applicatio n". Article 5.3 thus requires
authorities to examine the evidence "in the application" . Article 5.2, in turn, specifies what
"evidence" and "information" is to be provided in the "application". Specifically, the provision
requires an "application" to include evidence of "(a) dumping, (b) injury … and (c) a causal link

134 Notice of initiation, (Exhibit EU-1a), section 2.1.3.
135 European Union's response to Panel question No. 12.6, paras. 25-26 (noting that "[t]he
European Union does not express an opinion on whether that information was accurate or not. However, the
European Union considers that information on the export price of frozen precooked potatoes from Belgium, the
Netherlands, and Germany to the United Kingdom was not adequate evidence to serve as a basis for normal
value calculations in the context of initiation.")
136 European Union's second written submission, para. 16; response to Panel question No. 1.9(a),
para. 29.
137 European Union's first written submission, para. 58; response to Panel question No. 12.6, para. 26.
138 European Union's second written submission, para. 16; response to Panel question No. 1.9(a),
139 European Union's second written submission, para. 17.
140 European Union's response to Panel question No. 12.6, paras. 25-26.
142 Colombia's response to Panel question No. 1.9(b), paras. 37-39.
143 Colombia's second written submission, para. 2.41; response to Panel question No. 1.9(b),
paras. 42-43 and 45-66.
144 Colombia's second written submission, paras. 2.49-2.53.

between the dumped imports and the alleged injury".145 With respect to normal value, Article 5.2(iii)
further requires that the "application shall contain such information as is reasonably available to the
applicant on":
[P]rices at which the product in question is sold when destined for consumption in the
domestic markets of the country or countries of origin or export (or, where appropriate,
information on the prices at which the product is so ld from the country or countries of
origin or export to a third country or countries, or on the constructed value of the
product) and information on export prices or, where appropriate, on the prices at which
the product is first resold to an independent b uyer in the territory of the importing
Member[.]
7.63. The reference to evidence provided "in the application" in Article 5.3 and the requirements of
Article 5.2(iii), specifying in detail what evidence and information is to be included in "the
application", establish, in our view, an explicit connection or link between these two provisions. As
we see it, an examination of the accuracy and adequacy of the evidence in the application with a
view to determining whether it is sufficient for initiation cannot be und ertaken in the abstract or in
a vacuum. Rather, such an examination under Article 5.3 is informed by Article 5.2, including
Article 5.2(iii).146 For this reason, we disagree with Colombia insofar as it argues that "the terms of
Article 5.2 are not in principle relevant to assessing the European Union's claim" under Article 5.3.147
7.64. Examining the context provided by Article 5.2(iii) for purposes of our assessment of
MINCIT's conduct under Article 5.3 in this dispute, we note that the provision envisages that the
application shall contain certain information relating to the prices of the "product in question".
Specifically, Article 5.2(iii) requires the application to contain "such information" as is "reasonably
available" to the applicant "on prices at which the product in question is sold when destined for
consumption in the domestic markets of the country or countries of origin or export (or, where
appropriate, information on the prices at which the product is sold from the country or countries of
origin or export to a third country or countries, or on the constructed value of the product)".148
7.65. Article 5.2(iii) thus envisages the possibility of providing three types of pricing information in
the application: (a) information on prices at which the product in question is sold when destined for
consumption in the domestic markets of the country or countries of origin or export ("domestic sales
prices"); or, "where appropriate", (b) information on the prices at which the product is sold from the
country or countries of origin or export to a third country or countries ("third-country sales prices");
or, also "where appropriate", (c) on the constructed value of the product ("constructed value"). The
possibility of providing third -country sales prices and constructed value is, unlike the case of
domestic sale s prices, textually limited to "where" this is "appropriate" and forms part of a
parenthetical text.
7.66. The parties differ in their interpretation of the term "where appropriate" in Article 5.2(iii). The
European Union argues that the phrase "where appropriate" allows an applic ation to provide
information on third-country sales prices only: (a) when information on domestic sales prices in the
countries of origin is not "reasonably available" to the applicant; or (b) when, "in accordance with
the detailed rules in Articles 2.2 and 2.2.1 of the Anti -Dumping Agreement, the investigating
authority determines that the sales in the domestic market of the exporting country do not permit
a proper comparison with the export price ".149 With respect to the second situation, the

145 See paragraph 7.12 above.
146 See e.g. Panel Report, Guatemala – Cement II, para. 8.35; see also Panel Report,
Morocco – Definitive AD Measures on Exercise Books (Tunisia), para. 7.355 [appealed; adoption pending]
(noting that "Article 5.2 determines the content of the complaint submitted by the domestic industry and does
not therefore create directly an obligation for the investigating authority. It is Article 5.3 that … sets the criteria
for the review that the authority must undertake to determine whether the evidence contained in the complaint
is sufficient to justify the initiation of an investigation. We therefore agree … that Article 5.2 describes the
evidence and information that an applicant must include in its complaint, but that the relevant obligations that
apply to the investigating authority are set out in Article 5.3.")
147 Colombia's response to Panel question No. 1.9(d), para. 71; first written submission, para. 5.43; and
second written submission, para. 2.41.
148 This is to be read in light of the qualification in the chapeau Article 5.2 that "such information" be
"reasonably available to the applicant".
149 European Union's response to Panel question No. 1.9(a), para. 29; response to Panel question
No. 12.3(c), para. 21.

European Union further explains that this is "the case where there are no such domestic sales in the
ordinary co urse of trade, they are not representative or where, for other reasons, a proper
comparison is not possible."150
7.67. Colombia responds that the term "where appropriate" " indicates and underscores the free
choice of the applicant to submit the information on nor mal value that appears to the applicant to
be the most appropriate and relevant. "151 According to Colombia, the term "where appropriate"
means that "if the applicant deems it appropriate, it may choose to submit information not on sales
in the domestic mark et, but information on production costs or prices of exports to a
third country."152 Colombia avers that "the drafters included this phrase … most likely to indicate
that, in the context of initiation … the Article 2.2 hierarchy of methods for determining normal value
does not apply". 153 Colombia submits that, e ven assuming that the term "where appropriate"
requires "some form of explanation or explicit enquiry", this can be limited only to the question of
whether "the third market data is 'appropriate' or 'suited' to be used as evidence of normal value".154
7.68. We note, first, that Articles 5.2(iii) and 5.3 concern the contents of an application to initiate
an investigation and an investigating authority's exami nation thereof with a view to determining
whether they "justify the initiation of an investigation". In other words, the two provisions, by their
terms, concern the initiation stage of an investigation, which is distinct from the "subsequent
investigation".155 Furthermore, as discussed above, Article 5.2 requires an "application" to include
evidence of "(a) dumping, (b) injury … and (c) a causal link between the dumped imports and the
alleged injury" .156 Thus, initiation requires evidence of the same three el ements (i.e. dumping,
injury, and the causal link between them) as those whose existence must be ultimately determined
in order to impose anti -dumping measures.157 At the same time, we note the absence of a textual
link between Article 5.2(iii), on the one hand, and Articles 2.2 and 2.2.1, on the other hand. 158
We also recall that the "quantity and quality" of the evidence needed to initiate an investigation are
generally lesser than what is required to impose anti-dumping measures.159
7.69. As noted above, the poss ibility of providing third -country sales prices in an application is,
unlike the case of domestic sales prices , textually limited in Article 5.2 to "where" this is
"appropriate". The dictionary definition of the word "where" includes "[i]n a or the case in which …;

150 European Union's response to Panel question No. 1.9(a), para. 29; second written submission,
para. 16.
151 Colombia's response to Panel question No. 1.9(b), para. 37.
152 Colombia's response to Panel question No. 1.9(b), para. 39.
153 Colombia's response to Panel question No. 1.9(b), para. 40. See also Colombia's response to Panel
question No. 1.9(b), paras. 42-64.
154 Colombia's closing statement at the second meeting of the Panel, paras. 1.9-1.11. Colombia
maintains that MINCIT addressed this question. (Ibid. para. 1.11).
155 See e.g. Article 5.7 of the Anti-Dumping Agreement and the heading of Article 5.
156 Similarly, Article 5.6 states that if an investigating authority decides to initiate an investigation
without having received a written application, i.e. on its own initiative, it "shall proceed only if [it] ha[s]
sufficient evidence of dumping, injury and a causal link, as described in paragraph 2 [of Article 5], to justify the
initiation of an investigation".
157 See e.g. Panel Reports, Guatemala – Cement II, para. 8.35; Mexico – Steel Pipes and Tubes,
158 We note that several third parties in this dispute highlight the limited relevance of Articles 2.1
and 2.2 for purposes of Article 5.2(iii). Brazil considers that the expression "where appropriate" in Article 5.2
should not be interpreted based on Articles 2.1 and 2.2, which concern later stages in the investigation to
which a higher threshold of assessment applies. (Brazil's third-party response to Panel question No. 1.3(c),
para. 11). For Japan, the term "where appropriate" does not refer to situations provided under Article 2.2 and
is not limited to those situations, as there may be other situations that could satisfy the "where appropriate"
requirement. (Japan's third-party response to Panel question No. 1.3(c), para. 12). The United States takes the
position that, unlike Articles 2.1 and 2.2, Article 5.2 does not indicate that an applicant must establish normal
value based on the comparable price for the like product when destined for consumption in the export country,
nor does this provision indicate that an application must establish that there are no sales of the like product
when destined for consumption in the export country before the applicant may rely on information about
third-country sales or constructed value. Moreover, the information provided in an application need not be of
the same quantity or quality that would be necessary to make a preliminary or final determination.
(United States third-party response to Panel question No. 1.3(c), para. 8).
159 See paragraph 7.12 above. See also Panel Reports, Guatemala – Cement II, para. 8.35; and Mexico
– Steel Pipes and Tubes, paras. 7.22 and 7.27.

in the circumstances … in which". 160 The word "appropriate" is defined, inter alia, as "[s] pecially
fitted or suitable".161 These definitions convey to us the notion of being "suitable" to the particular
situation or circumstances at hand.162 For purposes of an investigating authority's examination under
Article 5.3, therefore, the use of the term "where appropriate" implies, at a minimum, the exercise
of judgment as to the fitness , suitability, or "appropriateness", of using third-country sales prices,
instead of domestic sales prices , in light of the specific situation at hand. As relevant context, we
also note that the chapeau of Article 5.2 states that "[s]imple assertion, unsubstantiated by relevant
evidence, cannot be considered sufficient to meet the requirements of this paragraph. " Relatedly,
we note that Article 5.2(iii) uses the term "where appropriate" 163, and not the t erm "where the
applicant considers or deems it appropriate".
7.70. For these reasons, we disagree with Colombia's interpretation that the use of the term "where
appropriate" indicates that an applicant enjoys complete " free choice" to submit any information
that it desires for calculating normal value. Accepting Colombia's interpretation would deny any
effect to the meaning or placement of the term "where appropriate", contrary to the principle of
effectiveness in treaty interpretation. Rather, as we see it, an investigating authority's examination,
under Article 5.3, of the "adequacy" and sufficiency of the evidence for determining normal value
for purposes of initiation requires, at the very least, an exercise of judgment as to the suitability or
appropriateness of using third-country sales prices, instead of domestic sales prices, in the specific
situation before it. Finally, while Article 5.3 requires investigating authorities to examine the
accuracy and adequacy of the evidence provided in the application for purposes of initiation in a
given case, we agree with prior adopted DSB reports that the provision says nothing regarding the
nature of the examination to be carried out in the abstract. Nor does it say anything requiring an
explanation of how that examina tion was carried out. 164 Any review of an investigating
authority's conduct under Article 5.3 must therefore be carried out on a case-by-case basis.165
7.71. In light of these requirements and the attendant standard of review, we turn to examine the
facts of the underlying investigation.
7.72. In its application, FEDEPAPA stated that "[t]he implicit export prices from Belgium to Colombia
compared with other countries nearer to Belgium are relatively low, with the United Kingdom and
Denmark standing out as countries particularly close to Belgium."166 MINCIT subsequently requested
the applicant to submit information on, inter alia, "[a] definition of the normal value selected for the
purpose of determining the dumping margin, as shown in Figure 3, that is to say, the price of the
product under consideration set by Belgium, the destination country chosen, as well as the period
that should correspond to June 2016 to June 2017."167
7.73. Responding to MINCIT's query, FEDEPAPA, in its revised application, did not address why it
elected to provide third -country sales prices rather than domestic sales prices as the basis for the
normal value calculation. Instead, it simply stated that the " export price for frozen precooked
potatoes exported from Belgium, the Netherlands (Holland), G ermany and France to the
United Kingdom during the period July 2014-June 2016 was used as the basis for the normal
value."168 The only further explanation offered by FEDEPAPA relates to its specific choice of the
United Kingdom for the third-country sales prices:

160 Oxford Dictionaries online, definition of "where"
https://www.oed.com/view/Entry/228210?redirectedFrom=where#eid (accessed 6 May 2022), adv.,
meaning 10b.
161 Oxford Dictionaries online, definition of "appropriate"
https://www.oed.com/view/Entry/9870?rskey=F8CcMO&result=1&isAdvanced=false#eid (accessed
5 May 2022), adj., meaning 5.
162 See e.g. Decision by the Arbitrator, US – Upland Cotton (Article 22.6 – US I), para. 4.46; and
Panel Report, EC – Tube or Pipe Fittings, para. 7.240.
163 We note that the term "where appropriate" appears in the co-authentic Spanish and French texts of
the Anti-Dumping Agreement as "cuando proceda" and "le cas échéant", respectively.
164 Panel Report, EC – Bed Linen, para. 6.198. See also Mexico – Corn Syrup, paras. 7.105 and 7.110.
165 See e.g. Panel Report, Mexico – Steel Pipes and Tubes, para. 7.24.
166 FEDEPAPA's application, (Exhibit EU-8a), clause 10.
167 MINCIT's deficiency letter to FEDEPAPA, (Exhibit EU-9a), numeral 2.
168 Revised application, (Exhibit EU-10), section 10(a). (emphasis added)

This country was chosen because other applications have already identified it as a major
producer, importer and consumer of frozen precooked potatoes, and it is perhaps the
largest market in Europe.
The United Kingdom and the countries covered by this application are members of the
European Union and therefore subscribe to the free movement of goods within the
common market, which would make the prices of exports from these countries to the
British market very close to those in the domestic market of the country that is the
subject of this application.169
7.74. In its notice of initiation of the investigation, MINCIT determined the normal value "based on
the information provided by the applicant", noting that the " applicant" proposed taking "the export
price of frozen precooked potatoes from Belgium, the Netherlands (Holland), Germany and France
to the United Kingdom during the period from July 2014 to June 2016" as the basis for the normal
value.170 The notice of initiation further stated that:
The applicant clarifies that the United Kingdom is the chosen country due to the fact
that, in other applications, it has already been identified as a major producer, importer
and consumer of frozen precooked potatoes and is perhaps the largest market in
Europe. Moreover, the United Kingdom and the countries named in the application are
members of the European Union and therefore benefit from the free movement of goods
through the common market, which would make the export prices of these countries to
the British market very close to those found on the domestic market of the countries
being studied.171
7.75. Thus, the applicant did not offer, and MINCIT accordingly did not examine, any reasons as to
why information on domestic sales prices was not provided in the application for initiation. As part
of its decision to initiate, MINCIT simply recited – without any further "examination" – the reasons
provided by FEDEPAPA for choosing third -country sales prices to the Unite d Kingdom as the basis
for determining normal value for purposes of initiation. 172 In our view, the record thus indicates a
complete absence of any explanation by FEDEPAPA or examination thereof by MINCIT as to why
domestic sales prices were not contained i n the application and could not be used for purposes of
initiation in the specific situation at hand.173
7.76. Colombia submits that the reference to "other applications" in FEDEPAPA's application and
MINCIT's notice of initiation "refers to Brazil's initiation of an anti-dumping investigation on imports
of the same product from Germany, Belgium, France and the Netherlands."174 The decision to initiate
an anti -dumping investigation on frozen potatoes by the Brazilian investigating authority was
included as an annex to FEDEPAPA's application. 175 As Colombia acknowledges, the Brazilian
authority's initiation decision contains not only a discussion as to the appropriateness of using
United Kingdom sales prices as the basis of normal value, but also the reasons as to how and why
the applicant in that investigation unsuccessfully attempted to obtain domestic sales prices in the
first place.176

169 Revised application, (Exhibit EU-10), section 10(a).
170 Notice of initiation, (Exhibit EU-1a), section 2.1.3.
171 Notice of initiation, (Exhibit EU-1a), section 2.1.3.
172 Any explanations that may have been provided after initiation are, in our view, not relevant to a
claim under Article 5.3.
173 Contrary to Colombia's arguments, this does not mean that MINCIT was necessarily required "to
provide explanations as to how the authority attempted to obtain information on the domestic market from the
applicant". (Colombia's response to Panel question No. 12.2, para. 30).
174 Colombia's response to Panel question No. 12.8, para. 58.
175 FEDEPAPA's application, (Exhibit EU-8a), annex 5. See also Colombia's response to Panel question
No. 12.2(a), para. 55; and Annexes to FEDEPAPA's application, (Exhibit COL-35-B).
176 Colombia points out that, "with regard to the calculation of the normal value, the applicant included
as an annex in its application the Brazilian investigating authority's initiation decision in its anti-dumping
investigation on frozen potatoes, in which it was explained that the Brazilian applicant was unable to obtain the
internal price within the relevant European Union member States, but was able to obtain information on the
United Kingdom's prices through the Eurostat service. The Brazilian application also explained that the
United Kingdom was one of the largest frozen potato markets and, as part of the European Union's single
market, an appropriate basis for the normal value.". (Colombia's response to Panel question No. 12.2,
para. 55).

7.77. Based on the reference to "other applications" in the initiation decision above, Colombia
submits that MINCIT " relied upon this inf ormation in essentially the same way as the Brazilian
authority did."177 We note however that there is nothing on the record before us indicating that
FEDEPAPA made any attempt to obtain domestic sales prices (like the applicant in the Brazilian
investigation) or that it otherwise faced any difficulties (similar to those that were faced by the
Brazilian applicant) in obtaining this information.178 In the absence of any such indication, and given
our understanding of "where appropriate" as requiring the exercise of judgment and a case-by-case
assessment by the investigating authority, we disagree with Colombia that the mere reference to
and inclusion of the Brazilian initiation decision suffices to establish MINCIT's compliance with
Article 5.3 in the investigation at issue.
7.78. We therefore consider that MINCIT did not examine whether the use of third -country sales
prices, instead of domestic sales prices, was "appropriate" in the specific facts and circumstances of
the investigation at issue. Accordingly, we find that MINCIT acted inconsistently with Article 5.3 of
the Anti-Dumping Agreement because it did not examine the "adequacy" of the evidence contained
in the application to determine whether there is "sufficient evidence" to justify initiation.
7.2.5.3 Conclusion
7.79. For the reasons set out above, we find that the European Union has established that Colombia
acted inconsistently with Article 5.3 of the Anti-Dumping Agreement because, by failing to examine
whether the use of third-country sales prices, instead of domestic sales prices, was "appropriate" in
the specific facts and circumstances of the investigation at issue, MINCIT did not examine the
"adequacy" of the evidence in the application to determine whether there is "sufficient" evidence to
justify the initiation of the investigation.
7.2.6 Evidence relied upon for the injury analysis
7.2.6.1 Introduction
7.80. MINCIT determined that "there were grounds" to initiate the underlying investigation "taking
into account the existence of evidence of dumping and injury to the domestic industry caused by
the low import prices and reflected in the negative performance in terms of market share, installed
capacity and domestic profitability."179
7.81. The European Union alleges that the evidence of injury examined and relied upon by MINCIT
was insufficient to justify initiating the investigation because it is "clear" from both
FEDEPAPA's application and the notice of initiation that MINCIT relied, "to a large extent", on the
impact of the allegedly dumped imports on "farmers and on the prices for fresh potatoes", instead
of the impact of the imports on the price of the domestic "like" product and on the domestic
potato-processing industry manufacturing the "like " product. On this basis, the European Union
contends that MINCIT did not respect "the limits" of the "domestic industry", as required by
Article 3.1 of the Anti-Dumping Agreement.180
7.82. Colombia responds, inter alia, that the European Union misunderstands the facts because, for
the material injury analysis (at the initiation, preliminary , and final stages), MINCIT considered
"exclusively" the relevant data of producers of precooked frozen potatoes, and the discussion of the
fresh potato sector simply provides the more general economic context for the investigation .181
Colombia also indicates that the notice of initiation mentions potato producers because they "are

177 Colombia's response to Panel question No. 12.2, para. 38.
178 Given our terms of reference, we do not make any findings on the WTO-consistency of the Brazilian
authority's initiation decision.
179 Notice of initiation, (Exhibit EU-1a), section 3. See also ibid. section 2.2 on "Analysis of Material
Injury".
180 European Union's first written submission, paras. 60 and 63; response to Panel question No. 1.13(b),
para. 43; second written submission, paras. 29 and 33; and opening statement at the first meeting of the
Panel, para. 18. The European Union further indicates that it was not clear whether the applicant had
established that the injury is a material injury, a threat of material injury, or a significant delay in the
development of the domestic industry.
181 Colombia's first written submission, para. 5.55.

also victims of the injury caused to the local processing industry ".182 Colombia argues that, in any
event, MINCIT's examination respects "the limits" of the PUC and, consequently, the scope of the
domestic industry.183 Finally, Colombia recalls that Article 5.3 requires only that the record at the
time of initiation contain sufficient evidence to demonstrate the existence of, inter alia, injury, and
considers that nothing in this provision requires the authority to publish any analysis of this
evidence.184
7.2.6.2 Analysis
7.83. In our view, the central question that arises with respect to this claim is whether an unbiased
and objective investigating authority could have determined that the evidence of injury that
FEDEPAPA had submitted to MINCIT in its application and revised application was sufficient to justify
the initiation of the investigation pursuant to Article 5.3 of the Anti-Dumping Agreement.
7.84. We recall that the text and context of Article 5.3 requires the investigating authority to
examine the accuracy and adequacy of the evidence of, inter alia, injury that is provided in the
application.185 Article 5.2(iv), which specifies the evidence of injury that an application must contain,
requires an applicant to provide such information, "as is reasonably available" to it, on the "evolution
of the volume of the a llegedly dumped imports", the "effect of these imports on prices" of the
domestic like product, and the "consequent impact of the imports" on the performance of the
domestic industry, in terms of relevant domestic factors, such as those listed in Article 3.2 and
Article 3.4 of the Anti-Dumping Agreement.186
7.85. The parties do not dispute that the injury analysis that MINCIT conducted as part of its
decision to initiate refers to both potato -processors and fresh potato producers. Thus, the
parties' arguments raise two questions: first, whether MINCIT did, in fact, focus its injury analysis
mainly – or, "to a large extent" – on fresh potato producers and on prices of fresh potatoes rather
than on producers of precooked potatoes and on prices of frozen precooked potatoes; and second,
if this was indeed the case, whether this focus by MINCIT was inconsistent with Article 5.3.
7.86. We note that MINCIT examined the injury to the domestic industry in section 2.2 of its notice
of initiation entitled "Analysis of Material Injury". The text of this section indicates, inter alia, that
MINCIT examined the "import performance" of the allegedly dumped imports by evaluating the
volume, trends, and market share of "potatoes prepared or preserved otherwise than by vinegar or
acetic acid, frozen, imported under subheading 2004.10.00.00 ".187 This section also indicates that
MINCIT examined the impact of these imports on the performance of the potato-processing industry.
In particular, we note that MINCIT examined certain economic factors and indices, namely, the

182 Colombia's first written submission, paras. 5.57-5.58; second written submission, para. 2.55 and
fn 39.
183 Colombia's first written submission, paras. 5.61-5.62.
184 Colombia's second written submission, paras. 2.57-2.59. Colombia notes that the evidence that the
authority had before it at the time of initiation is that contained in FEDEPAPA's application and its revised
application (together with its annexed documents), which comprised the relevant evidence for establishing the
existence of injury and causation for initiation purposes.
185 See paragraph 7.12 above.
186 Article 5.2(iv) of the Anti-Dumping Agreement, in relevant part, reads as follows:
The application shall contain such information as is reasonably available to the applicant on the
following:
…
information on the evolution of the volume of the allegedly dumped imports, the effect of these
imports on prices of the like product in the dom estic market and the consequent impact of the
imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing
on the state of the domestic industry, such as those listed in paragraphs 2 and 4 of Article 3.
187 For instance, MINCIT noted that the volume of these imports had increased in absolute terms during
the period under review and that the F.o.b. prices of these imports registered a decrease during the same
period. (Notice of initiation, (Exhibit EU-1a), section 2.2.3). See also Technical report on the initiation,
(Exhibit COL-10 (BCI)), sections 2.2.1 and 2.2.2.

market share, capacity utilization, cost of production, profitability, and structure , of the
potato-processing industry.188
7.87. MINCIT also referred to the injury to potato farmers, by indicating that "if 100,000 tonnes of
frozen precooked potatoes were to enter and potentially lead to the restructuring and/or
disappearance of the domestic industry", there would be a displacement of "625,000 tonnes of fresh
potatoes for industrial use ", affecting " 10,417 farmers".189 MINCIT concluded that, based on the
information provided by the applicant, "there were grounds" to initiate an investigation into imports
of "potatoes, prepared or preserved otherwise than by vinegar or acetic acid, frozen, classified under
tariff subheading 2004.10.00.00", originating in Belgium, the Netherlands , and Germany, "taking
into account the existence of evidence" of "injury to the domestic industry."190
7.88. The European Union does not dispute these facts, but rather contends that it is "clear" from
the notice of initiation that, in reaching its conclusion, MINCIT relied, "to a large extent", on the
impact of the allegedly dumped imports on potato farmers and on the prices for fresh potatoes
(i.e. instead of data associated with the producers of precooked potatoes and on prices of frozen
precooked potatoes).
7.89. In support of its position, the European Union refers to sections 2.2 and 2.2.2 of the notice of
initiation191 which, in relevant part, read as follows:
2.2 ANALYSIS OF MATERIAL INJURY
The Colombian Federation of Potato Producers stated that both the potato -processing
industry and Colombian farmers have suffered injury, which is reflected in various
indicators such as market share, installed capacity and profitability, due to the low prices
of the imported product.
…
2.2.2 Potato farmers
The application mentions that in order to produce 1 kg of frozen precooked potatoes,
2 kg of fresh potatoes are required with a 32% use of production per hectare. Therefore,
with the Belgian market surpluses, if 100,000 tonnes of frozen precooked potatoes were
to enter and potentially lead to the restructuring and/or disappearance of the domestic
industry, 625,000 tonnes of fresh potatoes for industrial use would be displaced, which
would be equivalent to 15,625 hectares and 10,417 farmers affected, each with
1.5 hectares on average.192
7.90. In our view, and contrary to the European Union's assertion, these excerpts reveal that
MINCIT did not conduct an injury analysis with respect to the producers of fresh potatoes.
In particular, we note that the second passage cited above (entitled " 2.2.2 Potato farmers ") does
not identify or evaluate volume trends of the allegedly dumped imports but considers the
hypothetical scenario of "100,000 tonnes of frozen precooked potatoes " imported from Belgium.
Moreover, this passage does not examine the effect of these hypothetical imports on the prices of
fresh potatoes, by evaluating, for instance, whether the prices of fresh potatoes were undercut,

188 Notice of initiation, (Exhibit EU-1a), section 2.2.1. The technical report on the initiation shows that
MINCIT also examined the competitiveness of the potato-processing industry, and stresses that the half-yearly
statements of results and production cost, as well as the table of injury variables of frozen potatoes, were also
evaluated. (Technical report on the initiation, (Exhibit COL-10 (BCI)), sections 2.2.1 and 2.2.3).
189 Notice of initiation, (Exhibit EU-1a), section 2.2.2. See also Technical report on the initiation,
(Exhibit COL-10 (BCI)), section 2.2.3.
190 Notice of initiation, (Exhibit EU-1a), section 3.
191 European Union's response to Panel question No. 1.13(a), para. 39. The European Union considers it
"apparent" from the notice of initiation, which relied exclusively on the statements made by FEDEPAPA in its
application, that the impact of the imports of frozen fries on the economic situation of Colombian potato
farmers played a "prominent" role in the injury analysis at the stage of initiation. (European Union's second
written submission, para. 33). See also European Union's response to Panel question No. 1.13(a),
paras. 40-42.
192 Notice of initiation, (Exhibit EU-1a), sections 2.2 and 2.2.2 (emphasis added). These sections are the
only instances where MINCIT's injury analysis at the time of initiation refers to producers of fresh potatoes.

depressed, or suppressed by these hypothetical imports. Likewise, nothing in this passage analyses
the consequent impact of these hypothetical imports on the producers of fresh potatoes. Indeed,
nothing in this passage shows that MINCIT evaluated economic factors and indices such as actual
and potential decline in sales, profits, or market share of the producers of fresh potatoes.
7.91. Moreover, in our view, it can reasonably be inferred from the text of the passage in question
that the "injury" alleged to the fresh potatoes producers is phrased as a consequence of the
"restructuring and/or disappearance of the domestic industry " (by displacing "625, 000 tonnes of
fresh potatoes for industrial use") which could potentially occur "if 100,000 tonnes of frozen
precooked potatoes were to enter" into the Colombian domestic market. In other words, in our view,
the alleged injury to the fresh potatoes producers is discussed as a consequence of the alleged injury
to the potato-processing industry, further suggesting that MINCIT's injury analysis concerned only
this industry.193 This is also confirmed by the fact that, as discussed in paragraph 7.86 above, the
record indicates that in considering whether the application contained sufficient evidence of injury,
MINCIT focused its analysis on the alleged injury to the potato-processing industry.194
7.92. The European Union acknowledges that the injury examination that appears in
MINCIT's notice of initiation " explicitly" referred to the potato -processing industry, but maintains
that "it is not less true " that this analysis also referred to potato farmers and, therefore, that "the
limits" of the domestic industry as defined in Article 3.1 of the Anti -Dumping Agreement were not
respected.195 However, for the reasons set forth above, we disagree with the premise of the
European Union's contention that MINCIT relied, "to a large extent", on the impact of the allegedly
dumped imports on "farmers and on the prices for fresh potatoes". We therefore see no factual basis
for the European Union's contention that the definition of the domestic industry was not respected
as required by Article 3.1 because, according to the European Union, it included the potato producers
within its scope.196
7.2.6.3 Conclusion
7.93. Based on the foregoing, we reject the European Union's arguments that it is "clear" from the
notice of initiation that MINCIT relied, "to a large extent", on the impact of the allegedly dumped
imports on "farmers and on the prices for fresh potatoes", and that, for this reason, MINCIT did not
respect "the limits" of the "domestic industry".197 Accordingly, we find that the European Union has

193 In this regard, we note Colombia's assertion that potato producers were mentioned in the notice of
initiation "only to give a complete picture of the entire potato sector". Colombia also indicates that the mention
of these producers is "similar" to the analysis of domestic economic interest in other jurisdictions, for instance,
the "Union interest" in the European Union. (Colombia's first written submission, para. 5.58; second written
submission, fn 39). The European Union disagrees with Colombia's "public interest" defence for a number of
reasons. (European Union's opening statement at the first meeting of the Panel, paras. 19-21). We do not
consider it necessary to address the arguments of the parties in this regard because, as already noted, we are
of the view that MINCIT did not conduct an injury analysis with respect to the producers of fresh potatoes.
194 Specifically, as noted in paragraph 7.86 above, MINCIT examined the evolution of imports of the
allegedly dumped product and evaluated the consequent impact of those imports (in terms of relevant
economic factors and indices) only with respect to the potato-processing industry. See also Notice of initiation,
(Exhibit EU-1a), sections 2.2.1 and 2.2.3; and Technical report on the initiation, (Exhibit COL-10 (BCI)),
sections 2.2.1-2.2.3.
195 European Union's response to Panel question No. 1.13(b), para. 43; second written submission,
para. 33.
196 European Union's first written submission, para. 60; second written submission, paras. 29 and 33. In
any event, we note that nothing in the record appears to indicate that the domestic industry in the underlying
investigation included producers of fresh potatoes, and the European Union has provided no evidence
demonstrating otherwise. In particular, we note that although MINCIT did not specifically set out a definition of
the "domestic industry" at initiation, its views on the subject are clear from the notice of initiation where
MINCIT: (a) defined the PUC as "potatoes prepared or preserved otherwise than by vinegar or acetic acid,
frozen, imported under subheading 2004.10.00.00"; (b) considered that "the product under investigation that
is allegedly sold at dumping prices in Colombia and the product manufactured by the applicant firm supporting
the application corresponds to: potatoes, prepared or preserved otherwise than by vinegar or acetic acid,
frozen, classified under tariff subheading 2004.10.00.00, originating in Belgium, the Netherlands (Holland) and
Germany", and also "stressed" that "the differences between the domestic and imported product, apart from
usable yield and the colour of the pulp, tend to be null"; and (c) determined that the party represented by the
applicant accounted "for 69% of the total volume of domestic production". (Notice of initiation, (Exhibit EU-1a),
sections 1.1-1.3).
197 We do not agree with the European Union's assertion that Colombia's submission of annexes 10-12
of FEDEPAPA's revised application after the first meeting of the Panel is not in accordance with

not established that Colombia acted inconsistently with its obligations under Article 5.3 because the
evidence of injury examined and relied upon b y MINCIT was insufficient to justify the initiation of
the investigation.
7.2.7 Evidence concerning causation
7.2.7.1 Introduction
7.94. MINCIT determined that, "based on the information provided by the applicant ", "there were
grounds" for ordering the initiation of the underlying investigation, "taking into account the existence
of evidence of dumping and injury to the domestic industry caused by the low import prices and
reflected in the negative performance in terms of market share, installed capacity and domestic
profitability."198
7.95. The European Union claims that Colombia acted inconsistently with Article 5.3 because
MINCIT did not examine whether the evidence provided by the applicant was sufficient to establish
a causal link between the European imports and the alleged inju ry for purposes of initiating the
underlying investigation.199 Alleging that the evidence of causal link in the application was limited to
a single assertion by the applicant200, the European Union contends that such an assertion, together
with the evidence on the evolution of imports originating in Belgium, Germany and the Netherlands,
was insufficient to establish a causal link between those imports and the alleged injury suffered by
the domestic industry.201
7.96. Colombia maintains that the European Union has failed to discharge its burden of proof
because its " superficial" allegation, "without proof or reference, does not suffice to establish a
prima facie case".202 Noting that there is no obligation under Article 5.3 to pro vide an analysis or
explanation of the evidence, Colombia submits that, in any case, MINCIT's analysis is "sufficiently
clear and rigorous" to meet any requirement for an explanation .203 Colombia also asserts that the
application contain ed information that was "fully sufficient " to justify the initiation of the
investigation.204
7.2.7.2 Analysis
7.97. Before addressing the substance of its claim, we note that, in its first written submission, the
European Union alleged that "there was no separate analysis [in MINCIT's notice of initiation] of the
existence of a causal link between the alleged injury and the volumes of imports".205 Subsequently,
in response to questioning by the Panel, the European Union clarified that this allegation in its first
written submission "merely supports the claim … that the applicant provided no evidence of a causal
link between the imports originating in Belgium, Germany a nd the Netherlands and the alleged
injury".206 Given the European Union's clarification, we limit ourselves to examining its claim as it
relates to the evidence concerning the causal link that was provided by the applicant and
MINCIT's examination thereof.

paragraph 5(1) of the Working Procedures of the Panel. (European Union's response to Panel question
No. 12.9, para. 33). We note, in this regard, that paragraph 5(1) of the Working Procedures of the Panel allows
for the submission, after the first substantive meeting, of factual evidence necessary for purposes of answering
questions posed by the Panel.
198 Notice of initiation, (Exhibit EU-1a), section 3. See also Technical report on the initiation,
(Exhibit COL-10 (BCI)), section 2.4.
199 European Union's opening statement at the first meeting of the Panel, para. 23. See also
European Union's second written submission, para. 40.
200 The European Union asserts that the evidence of causal link, "on the basis on which MINCIT took its
initiation decision", was "limited to an assertion by the applicant that '[o]wing to the low prices of the imported
product … the domestic product loses share compared to the European product'". (European Union's second
written submission, para. 36).
201 European Union's second written submission, paras. 36-37; opening statement at second meeting of
the Panel, paras. 20-21.
202 Colombia's first written submission, paras. 5.70-5.71.
203 Colombia's first written submission, paras. 5.67-5.69.
204 Colombia's response to Panel question No. 1.17(a), para. 87; first written submission, para. 5.72.
See also Colombia's response to Panel question No. 1.17(a), paras. 88-91.
205 European Union's first written submission, para. 65.
206 European Union's response to Panel question No. 1.16(a), para. 46.

7.98. We recall that Article 5.3 requires the investigating authority to examine the "accuracy" and
"adequacy" of the evidence of dumping, injury, and the causal link between them, that is contained
in the application in order "to determine whether there is sufficient evidence to justify the initiation
of an investigation ".207 We also recall that Article 5.3 does not prescribe any specific requirement
with respect to the manner in which an investigating authority is to examine the evidence provided
in the application. Nor does Article 5.3 require any specific explanation of how such examination was
conducted.208 Any review of an inve stigating authority 's examination under Article 5.3 must
therefore be conducted on a case-by-case basis.
7.99. The central question we must consider with respect to this claim is whether an unbiased and
objective investigating authority could have determined that the evidence of causal link that was
contained in FEDEPAPA's application and revised application to MINCIT was sufficient to justify the
initiation of the investigation pursuant to Article 5.3.
7.100. The European Union's claim that MINCIT failed to examine the sufficiency of evidence of a
causal link is grounded on two contentions. First, the European Union highlights that the evidence
in the application was "limited" to an assertion by the applicant that "[o]wing to the low prices of
the imported product … the domestic product loses share compared to the European product" .209
Second, for the European Union, this assertion, together with the evidence on the evolution of
imports originating in Belgium, Germany and the Netherlands , is insufficient to establish a causal
link between those imports and the injury alleged by the domestic industry. 210 Colombia responds
that the evidence and allegations in the application and revised application wer e "more than
sufficient" to justify the initiation of the investigation.211
7.101. We note, first, that, as Colombia points out, the evidence in the application concerning the
causal link goes beyond the single "assertion" identified by the European Union.212 For example, the
application contains a graph depicting the "quarterly evolution of market shares" of imports in
comparison to the domestic industry for 2014 -2015 and observes that "the share of imports in the
past three years has grown by 63%, with that of the domestic industry declining by 15% ".213 The
application also states, together with supporting data, that the "decline in the share of the domestic
industry along with a static market has resulted in a loss (idle capacity) of 60% compared with the
installed capacity of 90,000 tonnes/year, with actual production only being
36,000 tonnes/month."214 The revised application further states that the "low prices of the imported
product have caused significant changes in the market, leading the consumer to seek out low-priced
products and causing the domestic product to lose its share to Europe. In some ca ses, the
low-margin volume has increased, unlike for traditional potato products, which ends up affecting
profitability, capacity and structure."215 Nowhere in its submissions does the European Union address
these statements and the information that was con tained in the application and the revised
application or explain their alleged shortcomings. As a factual matter, therefore, we are unable to
agree with the European Union's argument that the evidence in the application pertaining to the
causal link was limited to a single assertion made by the applicant.
7.102. We now turn to the European Union's argument that a single assertion by the applicant,
together with the evidence on the evolution of imports originating in the three countries in question,
was "insufficient" to establish a causal link .216 In support, the European Union points out that, as
acknowledged by FEDEPAPA, "the Colombian market for frozen fries grew by 33% between 2014
and 2016"217 and that " Colombia does not deny that there were other sources of imp orts of the
product, it only confirms that FEDEPAPA singled out the three European countries in its letter of

207 See paragraph 7.12 above.
208 See paragraph 7.13 above. See also Panel Report, EC – Bed Linen, para. 6.198.
209 European Union's second written submission, para. 36.
210 See e.g. European Union's second written submission, para. 37.
211 See e.g. Colombia's response to Panel question No. 1.17(a), paras. 87-91.
212 Colombia's first written submission, para. 5.72. See also Colombia's response to Panel question
No. 1.17(a), paras. 88-91.
213 FEDEPAPA's application, (Exhibit EU-8a), clause eight and graph 3.
214 FEDEPAPA's application, (Exhibit EU-8a), clause nine and table 2. (emphasis added)
215 Revised application, (Exhibit EU-10), section 10(d)(i) (emphasis added; fn omitted). See also fn 229
below.
216 European Union's second written submission, para. 37.
217 European Union's second written submission, para. 37.

19 July 2017 supplementing the application".218 While we agree that the application notes the growth
of the Colombian market 219, we also note that t he application indicates that, notwithstanding the
fact that "the [Colombian] market grew by 33%", "the imported product [grew] by 66% while the
domestic product grew by 13%", "result[ing]" in an "alarming projection for the domestic product"
by "losing domestic competitiveness and [market] share".220 The European Union does not address
this information contained in the application.
7.103. As to the European Union's argument concerning the existence of "other sources of imports"
of the like product into Colombia221, we note that while the application and revised application include
data of imports originating in countries other than Belgium, the Netherlands, and Germany222, they
also contain specific data regarding the imports originating in the three countries in qu estion.223
The information considered by MINCIT with respect to the condition of the domestic industry also
focuses on the data of the countries concerned.224 Besides its mere assertion that there were "other
sources of imports"225 the European Union does not offer any further explanation of why it considers
this to be problematic in light of the information actually contained in the application and revised
application.
7.104. Finally, we note that MINCIT did not determine that the domestic industry was injured solely
because of a decline in market share. 226 Rather, we observe that, in initiating the investigation,
MINCIT stated that it took "into account the existence of evidence of dumping and injury to the
domestic industry caused by the low import prices and reflected in the negative performance in
terms of ma rket share, installed capacity and domestic profitability. "227 We further note that
MINCIT's causation determination referred to the allegations presented by the applicant228, and that
the applicant provided information and argument re lating to the causal link between the allegedly
dumped imports and the alleged injury, including (in addition to the factors above) structure,
competitiveness, and growth decline.229 In the absence of any discussion by the European Union of
these aspects of MINCIT's examination, we are unable to find, as asserted by the European Union,

218 European Union's second written submission, para. 37.
219 Revised application, (Exhibit EU-10), section 10(d)(i).
220 Specifically, the applicant indicated that "in 2016, the market grew by 33% compared to 2014, with
the imported product growing by 66% while the domestic product grew by 13%, losing competitiveness and
share. This has resulted in an alarming projection for the domestic product." (Revised application,
(Exhibit EU-10), section 10(d)(i)).
221 See e.g. European Union's second written submission, para. 37; and opening statement at the
second meeting of the Panel, para. 21.
222 See e.g. FEDEPAPA's application, (Exhibit EU-8a), clause six, graph 1; and clause eight, graph 3; and
Revised application, (Exhibit EU-10), section 9(b), tables 2-3 and graph 7.
223 See e.g. Revised application, (Exhibit EU-10), section 9(b) tables 2-3 and graph 8, section 10(b)(i)
table 5, and section 10(b)(iii) table 7. We also note MINCIT's observation in its notice of initiation that "[t]he
share of the countries exporting frozen precooked potatoes to Colombia has changed dramatically over the
period under review, with the rapid growth of imports from Belgium standing out above all. The share of these
imports rose from 23% in the first half of 2014 to 57% in the second half of 2016, which means that the
country's share of Colombia's imports has increased by 148% (197% in the first half of 2017)". (Notice of
initiation, (Exhibit EU-1a), section 2.2.3.
224 Notice of initiation, (Exhibit EU-1a), sections 2.2.1 and 2.2.3.
225 European Union's opening statement at the first meeting of the Panel, para. 22; second written
submission, para. 37.
226 We note in particular MINCIT's statement in its notice of initiation that:
In line with what has been demonstrated and submitted by FEDEPAPA, the investigating authority
notes that there is evidence of dumping and injury and, in addition, the applicant considers that
the facts presented above significantly compro mise the sector 's efforts to, inter alia, substitute
imports of frozen precooked potatoes, increase the industrialization of domestic production and
contribute to stabilizing domestic market prices. This is the result of the imports at dumping prices
from Belgium, the Netherlands (Holland) and Germany.
(Notice of initiation, (Exhibit EU-1a), section 2.3)
227 Notice of initiation, (Exhibit EU-1a), section 3. (emphasis added)
228 Notice of initiation, (Exhibit EU-1a), section 2.3.
229 The applicant alleged that "in some cases" the "low-margin has increased" and that this "affect[ed]
profitability, capacity and structure". (Revised application, (Exhibit EU-10), section 10(d)(i)). In particular, as
observed by MINCIT in its notice of initiation, the applicant explained that "the volume of the food service
sector (the sector on which import penetration has been concentrated) has fallen by 4%", and that such
decrease "would have had the greatest impact on traditional products, which are three times more
profitable than the products created to compete with the importers", affecting therefore the "profitability,
capacity and structure" of the potato-processing industry. (Notice of initiation, (Exhibit EU-1a), section 2.2.1).

that this analysis was "limited" to the applicant's assertion that market share decline was caused by
the low prices of the imported product.230
7.2.7.3 Conclusion
7.105. In light of the allocation of the burden of proof in these proceedings and the limited
arguments presented by European Union, we find that the European Union has not established that
Colombia acted inconsistently with its obligations under Article 5.3 because the evidence of causal
link examined and relied upon by MINCIT was insufficient to justify the initiation of the investigation.
7.2.8 Overall conclusion under Article 5.3
7.106. For the reasons set out above, we find that:
a. the European Union has not established that Colombia acted inconsistently with Article 5.3
of the Anti-Dumping Agreement because MINCIT failed to verify that there was sufficient
evidence to initiate the investigation with respect to the full range of products covered by
tariff subheading 2004.10.00.00;
b. the European Union has not established that Colombia acted inconsistently with its
obligations under Article 5.3 because MINCIT did not have sufficient evidence
demonstrating that FEDEPAPA represented the domestic producers of the "like" product
so as to justify initiating the underlying investigation;
c. the European Union has established that Colombia acted inconsistently with Article 5.3 of
the Anti -Dumping Agreement because, by failing to examine whether the use of
third-country sales prices, instead of domestic sales prices, was " appropriate" in the
specific facts and circumstances of the investigation at issue, MINCIT did not examine the
"adequacy" of the evidence in the application to determine whether there is "sufficient"
evidence to justify the initiation of the investigation;
d. the European Union has not established that Colombia acted inconsistently with its
obligations under Article 5.3 because the evidence of injury examined and relied upon by
MINCIT was insufficient to justify the initiation of the investigation; and
e. the European Union has not established that Colombia acted inconsistently with its
obligations under Article 5.3 because the evidence of causal link examined and relied upon
by MINCIT was insufficient to justify the initiation of the investigation.
7.3 "Consequential" claim under Article 5.8 of the Anti-Dumping Agreement
7.107. The European Union claims that, "[a]s a consequence of the lack of sufficient evidence to
justify initiating the anti-dumping investigation"231, Colombia also acted inconsistently with the first
sentence of Article 5.8 of the Anti -Dumping Agreement .232 For the European Union, having
determined that the application did not contain sufficient evidence of either dumping or injury to
justify initiation, MINCIT should have rejected FEDEPAPA's application and terminate d the
investigation.233
7.108. Colombia responds that the European Union's consequential claim under Article 5.8 is
without factual or legal basis 234, and adds that the European Union has not clearly explained why,

230 For the same reason, we are also unable to find, as asserted by the European Union, that
MINCIT's analysis of causal link was "extremely limited" and was based on "the statements submitted by
FEDEPAPA". Besides the issue that we have addressed in this paragraph, the European Union does not explain
why it considers MINCIT examination to be "extremely limited" for purposes of Article 5.3.
(European Union's opening statement at the second meeting of the Panel, para. 20).
231 European Union's first written submission, para. 68.
232 European Union's first written submission, para. 68.
233 See e.g. European Union's first written submission, paras. 70-71. The European Union adds that
because the initiation of the investigation is inconsistent with Articles 5.3 and 5.8, the whole investigation
procedure is vitiated and cannot lead to a lawful imposition of anti-dumping duties on the subject imports.

in its view, MINCIT violated Article 5.8 and how this violation relates to the alleged violation of
Article 5.3. Observing that the European Union has not included this explanation in either its first
written submission or its first oral statement, Colombia contends that the European Union has not
made a prima facie case on a timely basis, and therefore the Panel "must" reject the
European Union's claim under Article 5.8.235
7.109. The European Union does not present any independent bases for the alleged breach of
Article 5.8 of the Anti -Dumping Agreement; instead, its claim under th is provision is dependent
entirely upon a finding that Colombia acted inconsistently with Article 5.3 of the
Anti-Dumping Agreement.236 In these circumstances – and having already found that Colombia acted
inconsistently with Article 5.3 – we do not consider it necessary to make additional findings
concerning the European Union's Article 5.8 claim in order to provide a positive resolution to the
dispute before us.237
7.4 Claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement:
MINCIT's confidential treatment of certain information
7.4.1 Introduction
7.110. Following the receipt of the "application for the initiation of an investigation into alleged
dumping in imports of potatoes, prepared or preserved (otherwise than vinegar or acetic acid ),
frozen, classified under tariff subheading 2004.10.0 0.00 originating in Belgium, the Netherlands
(Holland), France and Germany "238, MINCIT sent a deficien cy letter to the applicant , requesting,
inter alia, "[t]he identification and justification of confidential documents and a summary or
non-confidential version of these documents".239 The applicant, in its revised application, stated that
"[t]he specific na mes of the domestic industry companies, all their financial information, and in
general numerical, and any data that is classified as a trade secret, are confidential."240 The applicant
submitted annex 10 of its revised application as confidential informati on.241 The applicant also
redacted certain information in section d(i) of the revised application, entitled "injury for the
potato-processing industry" .242 MINCIT granted c onfidential treatment to " anything related to
financial information or data considered to be part of trade secrets ", but stated that the specific
names of the companies in the domestic industry cannot be considered confidential.243
7.111. The European Union claims that Colombia acted inconsistently with its obligations under
Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement when MINCIT elected to grant confidential
treatment to the information in section d(i) and annex 10 of FEDEPAPA 's revised application 244
because:

235 Colombia's second written submission, para. 3.3.
236 European Union's second written submission, para. 43; response to Panel question No. 2.1, para. 50.
237 See e.g. Panel Reports, EU – Footwear (China), para. 7.935; Argentina – Poultry Anti-Dumping
Duties, para. 7.369; and US – Steel Plate, para. 7.103. See also Panel Report, US – Differential Pricing
Methodology, paras. 7.114-7.115.
238 Notice of initiation, (Exhibit EU-1a), p. 1. As noted in fn 51 of this Report, MINCIT elected to exclude
imports from France when it initiated the investigation because "there have been no imports since 2015" and
therefore "it [was] not appropriate to link these imports to the investigation". (Notice of initiation,
(Exhibit EU-1a), section 1.4).
239 MINCIT's deficiency letter to FEDEPAPA, (Exhibit EU-9a), numeral 5.
240 Revised application, (Exhibit EU-10), section 11.
241 We note Colombia's clarification that annex 10 of the revised application, (Exhibit COL-11), refers to
three separate annexes (i.e. annex 10, annex 11, and annex 12), which contain confidential information of the
three domestic companies on whose behalf the applicant filed its application, and that were provided directly to
MINCIT by these companies in accordance with MINCIT's instructions (i.e. by dividing it into annex 10,
annex 11, and annex 12). (Colombia's response to Panel question No. 1.1, para. 3). For ease of reference, we
will refer to these three annexes as "annex 10 of the revised application" or "annex 10".
242 Revised application, (Exhibit EU-10), section 10 d(i).
243 Notice of initiation, (Exhibit EU-1a), section 1.5.
244 In response to questioning by the Panel, the European Union confirmed that the information treated
as confidential that forms the factual basis of its Articles 6.5 and 6.5.1 claims is the redacted information in
section d(i) of FEDEPAPA's revised application and the confidential information contained in annex 10 thereto.
(European Union's response to Panel question No. 3.1, para. 55).

a. the applicant did not "actually show" the necessary "good cause" to treat the information
at issue as confidential;
b. MINCIT did not objectively determine whether the justification provided by the applicant
constituted "good cause";
c. the applicant did not provide non -confidential summaries of the confidential information
at issue; and
d. to the extent that the confidential information was not susceptible to summary, a
statement of reasons supporting such claim was not provided.245
7.112. Requesting the Panel to reject these claims, Colombia asserts, inter alia, that
MINCIT's "methodology" for the confidential treatment of the information at issue complied with the
requirements under Articles 6.5 and 6.5.1 and that none of the European Union's allegations have
any factual basis.246
7.113. We begin our analysis by recalling the applicable requirements under Articles 6.5 and 6.5.1
of the Anti-Dumping Agreement (section 7.4.2). We then turn to consider whether, in light of the
specific facts and ci rcumstances of this dispute, Colombia acted inconsistently with the applicable
requirements under Articles 6.5 and 6.5.1 in respect of: (a) the redacted information in
section d(i) of FEDEPAPA's revised application ( sections 7.4.3 and 7.4.4); and (b ) the information
contained in annex 10 of the revised application (sections 7.4.5 and 7.4.6).
7.4.2 Applicable requirements under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement
7.114. Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement read as follows:
Any information which is by nature confidential (for example, because its disclosure
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 o r
upon a person from 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 withou t
specific permission of the party submitting it.17

17 Members are aware that in the territory of certain Members disclosure pursuant to a
narrowly-drawn protective order may be required.
The authorities shall require interested parties providing confiden tial 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 circumstances, such parties may i ndicate 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.
7.115. Article 6.5 addresses the confidential treatment of certain information submitted by
interested parties to an investigation. It envisages the confidential treatment by investigating
authorities of two categories of information: (a) information that is "by nature confidential", or
(b) information that is submitted "on a confidential basis by parties to an investigation". These two
categories of information are not mutually exclusive and, in practice, may often overlap.247 "[U]pon
good cause shown", Article 6.5 requires an investigating authority to: (a) treat such information as
confidential; and (b) not disclose such information without the specific permission of the submitter.
We agree with prior adopted DSB reports that the showing of "good cause" is a "condition precedent

245 European Union's first written submission, paras. 73-74 and 87. See also European Union's second
written submission, paras. 45-55; closing statement at the first meeting of the Panel, para. 6; and closing
statement at the second meeting of the Panel, para. 3.
246 Colombia's first written submission, paras. 7.3, 7.15-7.16, and 7.43-7.44; second written
submission, paras. 4.4-4.5 and 4.28; and opening statement at the first meeting of the Panel, paras. 5.1-5.3.
247 Appellate Body Report, EC – Fasteners (China), para. 536.

for according confidential treatment to information submitted to an authority"248 and applies to both
information that is by nature confidential as well as information that is submitted on a confidential
basis.249
7.116. The text of Article 6.5 provides limited illustrative guidance on what constitutes "good
cause"250 as well as the manner in which such good cause is to be "shown".251 We agree with previous
DSB reports that "good cause" refers to "a reason sufficient to justify the withholding of information
from both the public and from the other parties interested in the investigation" such that there is a
"risk of a potential consequence, the avoidance of which is important enough to warrant the
non-disclosure of the information".252
7.117. We also agree with related findings in prior DSB reports that, in determining the showing of
"good cause", investigating authorities are required to objectively assess the alleged "good cause"
offered as the basis of the request for confidential treatment, and to examine the showing of such
"good cause" in order to determine whether the request is sufficiently substantiated.253 Article 6.5
does not prescribe how the sufficiency of a showing of "good cause" is to be assessed by an
investigating authorit y.254 Nonetheless, we recall that in examining the WTO -consistency of an
investigating authority's assessment, panels must not engage in a de novo review of the record of
the investigation to determine for themselves whether the existence of "good cause" has been
sufficiently substantiated by the party requesting confidential treatment .255 This means that the
examination by panels of claims relating to the showing of "good cause" and its assessment by an
investigating authority ought to be made "on the basis of the investigating authority's published
report and its related supporting documents, a nd in the light of the nature of the information at
issue and the reasons given by the submitting party for its request for confidential treatment."256
7.118. Moreover, the type of evidence and the extent of substantiation required to demonstrate the
existence of "good cause" will necessarily depend upon the nature of the information at issue and
the "good cause" alleged to exist .257 The confidentiality of certain kinds of information may be

248 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.38. See also, Panel
Reports, EU – Cost Adjustment Methodologies II (Russia), para. 7.635; Russia – Commercial Vehicles,
249 See e.g. Appellate Body Report, EC – Fasteners (China), para. 537; and Panel Report,
Guatemala – Cement II, para. 8.219.
250 Article 6.5 provides examples of information that is "by nature" confidential, including information
that is sensitive "because its disclosure 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". We agree with prior DSB findings that these
examples "are helpful in interpreting 'good cause' generally, because they illustrate the type of harm that
might result from the disclosure of sensitive information, and the protectable interests involved". Specifically,
these illustrative examples suggest that "a 'good cause' which could justify the non-disclosure of confidential
information might include an advantage being bestowed on a competitor, or the experience of an adverse
effect on the submitting party or the party from which it was acquired." We also agree that the "confidentiality
of information that is 'by nature' confidential will often be readily apparent" and that one such type of
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", including for example,
"certain profit or cost data or proprietary customer information". (Appellate Body Report, EC – Fasteners
(China), paras. 536 and 538, and fn 775). We note that a prior DSB report likewise considered that "sales price
data may, in principle, constitute information 'by nature confidential'". (Panel Report, EU – Footwear (China),
para. 7.744).
251 See e.g. Panel Report, EU – Footwear (China), para. 7.684 (observing that Article 6.5 contains no
guidance as to how good cause should be established, and that nothing in Article 6.5 requires "any particular
form or means of showing good cause, or any particular type or degree of supporting evidence which must be
provided"). See also Appellate Body Report, Korea – Pneumatic Valves (Japan), para. 5.399.
252 Appellate Body Report, EC – Fasteners (China), para. 537. See also Panel Reports, China – HP-SSST
(Japan) / China – HP-SSST (EU), para. 7.291; Russia – Commercial Vehicles, para. 7.241; Korea – Pneumatic
Valves (Japan), para. 7.423; and EU – Cost Adjustment Methodologies II (Russia), para. 7.636.
253 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), paras. 5.39-5.40. See also
Panel Report, Korea – Pneumatic Valves (Japan), paras. 7.427 and 7.440.
254 Panel Report, EU – Footwear (China), para. 7.728. See also Appellate Body Reports,
China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.97.
255 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.97.
256 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.97.
257 Appellate Body Report, EC – Fasteners (China), para. 539. See also, Panel Reports, EC – Fasteners

"readily apparent"258 and this may be a relevant factor for panels to consid er when examining the
showing of "good cause" by the applicant and its subsequent assessment by an investigating
authority.259
7.119. Article 6.5.1 obliges an investigating authority – using the term "shall" – to require the party
providing confidential information to furnish a "non-confidential summary" of such information. The
provision stipulates that such summaries shall contain "sufficient detail to permit a reasonable
understanding of the substance" of the confidential information. "In exceptional circumstances", the
submitting parties are allowed to indicate that the confidential information at issue is not susceptible
of summary. However, in such exceptional circumstances, a statement of the reasons as to why
summarization is not possible must be provided. I n this regard, we agree with prior DSB reports
that "Article 6.5.1 imposes an obligation on the investigating authorities to ensure that sufficiently
detailed non -confidential summaries are submitted to permit a reasonable understanding of the
substance of the confidential information; and, in exceptional circumstances, to ensure that parties
provide a statement appropriately explaining the reasons why particular pieces of confidential
information are not susceptible of summary."260
7.4.3 Whether Colombia acted inconsistently with Article 6.5 with respect to the redacted
information in section d(i) of FEDEPAPA's revised application
7.120. Section d(i) of the revised application concerns the injury alleged by the applicant with
respect to the Colombian potato-processing industry . As noted, certain information in this
section was redacted by the applicant. This redacted information concerns, inter alia, the following
data: (i) in the main text of sec tion d(i) of the revised application : (a) injury indicators of the
domestic industry (i.e. idle and installed capacity as well as actual production); (b) market share
trends during the period 2014-2015; and (c) domestic industry summary data (i.e. capacity of the
domestic industry; average production cost for frozen precooked potatoes in Colombia; domestic
industry share in the frozen precooked potato market in Colombia; domestic industry installed
capacity utilization; and idle capacity); and, (ii) in foot note 3 of section d(i) of the revised
application: the volume decrease of the distributors of frozen potatoes (food service).261
7.121. The European Union argues that MINCIT granted confidential treatment to this information
"on its own initiative", without good cause having been shown by the applicant .262 Colombia raises
three main arguments in defence of its position that, even in the absence of a showing of "good
cause by the applicant", there is no violation of Article 6.5.263 First, with respect to the redacted
information in footnote 3 of section d(i) of the revised application, Colombia argues that since this
information was not presented in any other document, and as co nfidential treatment was not
requested, MINCIT decided not to use this information in the investigation, and it "simply"
disregarded it pursuant to Article 6.5.2 of the Anti-Dumping Agreement.264 Second, with respect to
the redacted information in the main text of section d(i) of the revised application , Colombia
contends that confidential treatment was not granted to this information because such treatment
was not requested, and in any event, the information appeared in "full" in the public record.
Therefore, Colombia argues that the obligations under Article 6.5 do not apply to this information.265
Third, Colombia maintains that confidentiality obligations do not apply to information for which no
confidential treatment has been granted.266

258 Appellate Body Report, EC – Fasteners (China), para. 536.
259 Appellate Body Report, EC – Fasteners (China), para. 537.
260 Appellate Body Report, EC – Fasteners (China), para. 544 (emphasis added). See also Panel Reports,
EC – Fasteners (China), para. 7.515; Mexico – Steel Pipes and Tubes, para. 7.379; and
Guatemala – Cement II, para. 8.213.
261 Revised application, (Exhibit EU-10), section d(i); Revised application (confidential version),
(Exhibit COL-67), section d(i).
262 See e.g. European Union's first written submission, para. 73.
263 See e.g. Colombia's second written submission, paras. 4.8-4.23.
264 Specifically, Colombia alleges that given the lack of a specific request for confidential treatment of
the information contained in fn 3 of the revised application, MINCIT decided "not to take it into account" and
"simply" disregarded it under Article 6.5.2. Colombia adds that this information "neither had an impact on nor
was of any use in subsequent stages of the investigation". (Colombia's response to Panel question No. 13.2,
paras. 60 and 64-67).
265 Colombia's second written submission, paras. 4.16-4.17; response to Panel question No. 13.3,
paras. 69-71 and 76; and comments on the European Union's response to Panel question No. 13.1, para. 1.51.
266 See e.g. Colombia's response to Panel question No. 13.3, para. 69.

7.122. We note that nothing on the record indicates that the applicant showed "good cause" for the
confidential treatment of any of the information contained in section d(i), nor is there any indication
that MINCIT specifically requested that such "good cause" be shown. Indeed, Colombia concedes
that the applicant did not request confidential treatment of this information .267 The parties thus do
not dispute that the applicant did not attempt to show "good cause" for the confidential treatment
of this information. We recall that the showing of "good cause" is a condition precedent for according
confidential treatment to information submitted to an authority . In the present case, as discussed
in paragraph 7.126 below, it is apparent that MINCIT treated this information as confidential, even
in the absence of a showing of "good cause" by the applicant. As noted, Colombia raises three
general arguments in defence of its position that in spite of the absence of a showing of good cause,
it did not act inconsistently with its obligations under Article 6.5.
7.123. Turning to Colombia's first defence with respect to the treatment of the information in
footnote 3 of section d(i) of the revised application , Article 6.5.2 envisages that investigating
authorities may take the following actions if they "find that a request for confidentiality [of
information] is not warranted": (a) to disregard such information; or (b) to take it into account on
a confidential basis provided that "it can be demonstrated" that "the information is correct." 268
Colombia asserts that MINCIT disregarded the redacted information contained in footnote 3 of the
revised application in accordance with this provision. As noted above, however, Colombia
acknowledges that the applicant did not make a request for the confidential treatment of this
information.269 Moreover, there is no evidence before us indicating that MINCIT determined that
confidential treatment of this information was "not warranted", and Colombia has not demonstrated
otherwise.270 Finally, contrary to Colombia 's assertion that this information was disregarded under
Article 6.5.2, the record evidence indicates that MINCIT 's injury analysis and determination did, in
fact, consider the redacted information that was contained in footnote 3 of the revised application.271
In these circumstances, we consider that Article 6.5.2 does not apply to the factual circumstances
of this case. We therefore reject Colombia's defence that this information was disregarded pursuant
to Article 6.5.2.
7.124. Colombia's second argument as part of its defen ce is concerned with the redacted
information in the main text of the revised application. Colombia argues essentially that the
availability of this redacted information elsewhere on the record discharges it from complying with
its obligations under Article 6.5. Colombia contends that a "reasonable reading" of both the revised
application and the original application enables "any reader" to see that it is the same information.272
According to Colombia, a joint reading of the original and revised application "cl early shows" that
the redacted information at issue was recorded "in full" in the original application .273 For Colombia,
certain elements, such as the structure and content of the respective paragraphs, as well as the
titles, the source of information, the structure, and the coordinates of each of the relevant tables,
enable any reader to see (or to "easily infer") that it is, "in reality", the same information .274

267 Colombia's response to Panel question No. 13.2, para. 67.
268 Article 6.5.2 of the Anti-Dumping Agreement reads as follows:
If the authorities find that a request for confidentiality is not warranted and if the supplier of the
information is either unwilling to make the information public or to au thorize its disclosure in
generalized or summary form, the authorities may disregard such information unless it can be
demonstrated to their satisfaction from appropriate sources that the information is correct.
(fn omitted)
269 Colombia's response to Panel question No. 13.2, para. 67.
270 In fact, as Colombia acknowledges, the only information for which MINCIT determined that no
confidential treatment was warranted, is the information concerning the names of the petitioning firms.
(Colombia's response to Panel question No. 13.2, para. 62).
271 For instance, section 2.2 of the notice of initiation, entitled "Analysis of Material Injury", states that
"the volume of the food service sector (the sector on which import penetration has been concentrated) has
fallen by 4% in relation to 2015, which would have had the greatest impact on traditional products, which are
three times more profitable than the products created to compete with the importers. According to the
application, this has an effect on profitability, capacity and structure." (Notice of initiation, (Exhibit EU-1a),
section 2.2.1). See also Technical report on the initiation, (Exhibit COL-10 (BCI)), section 2.2.3.
272 Colombia's response to Panel question No. 13.3, para. 73.
273 Colombia's second written submission, para. 4.16.
274 Colombia's second written submission, paras. 4.10-4.15; response to Panel question No. 13.3,
para. 73.

The European Union maintains that it could not know that the information redacted from one
document was "identical" to the information made public in another document.275
7.125. Absent any clear indication suggesting that the content of the redacted information was
made available elsewhere in the record, we cannot see how the "reasonable" or "joint" reading
advocated by Colombia could have enabled other interested parties in the investigation to become
aware about the availability of the redacted information elsewhere on the record .276 Moreover, the
elements identified by Colombia are, in our view, not enough to demonstrate that the information
at issue was the same. In particular, the fact that the relevant tables share the same title, structure,
and source of information does not, alone, demonstrate (or make it easy to "infer") that the specific
"values" or "trends" redacted in one table are the same as the "values" or "trends" allegedly available
in another table. We therefore disagree with Colombia's argument that a joint reading of both
applications "clearly shows", and enables a reader to "easily infer", that the redacted information in
the revised application was, "in reality", the same as the relevant information contained in the
original application.
7.126. Finally, we turn to Colombia's argument that t he premise of Article 6.5 is centred on
information that has been granted confidential treatment , and given that the applicant never
requested that the redacted information in the main text of the revised application be treated as
confidential, MINCIT did not grant such treatment to this information, and therefore Article 6.5 does
not apply. 277 We are not convinced by Colombia's argument that no confidential treatment was
granted to the redacted information in the main text of the revised application. Colombia has not
pointed to any evidence indicating that MINCIT found that confidential treatment of this information
was not warranted, let alone that it considered whether such treatment was justified. 278 Moreover,
the fact that the applicant did not request confidential treatment for the information in question says
nothing about whether MINCIT did, in fact, afford confidential treatment to this information. To the
contrary, in our view, the fact that the applicant submitted information on a redacted basis without
a showing of "good cause" – coupled with the fact that MINCIT treated this information
confidentially – demonstrates a lack of compliance with Article 6.5. Colombia's argument would
render ineffective the requirement of showing "good cause" by allowing (a) interested parties to
submit redacted information without a showing of "good cause" for confidential treatment; and
(b) investigating authorities to maintain confidentiality of such information without "good cause"
being shown.279 Accordingly, having received redacted information that was not accompanied by a
showing of "good cause", we find that MINCIT granted confidential treatment to such information
inconsistently with Article 6.5.280

275 European Union's opening statement at the second meeting of the Panel, para. 27; response to Panel
question No. 13.1, para. 34.
276 Colombia asserts that interested parties had "full" access to the redacted information at issue, to the
point that it was the European Union itself that submitted this information to these proceedings in
FEDEPAPA's application, (Exhibit EU-8a). (Colombia's second written submission, para. 4.16; response to Panel
question No. 13.3, para. 70). We fail to see how the submission of an exhibit in these proceedings establishes
the "full access" alleged by Colombia as well as compliance by the Colombian investigating authorities in the
underlying investigation with the requirement under Article 6.5.
277 Colombia's response to Panel question No. 13.3, paras. 69-71 and 75. Colombia adds that, in any
event, this information was available in the public record. We have already addressed and rejected
Colombia's arguments in this regard. (See paragraphs 7.124-7.125 above).
278 As Colombia acknowledges, MINCIT granted confidential treatment to the information contained in
annex 10 of the revised application and rejected it for the specific names of the companies in the domestic
industry. (Colombia's response to Panel question No. 13.2, para. 62. See also Notice of initiation,
(Exhibit EU-1a), section 1.5).
279 We note that in its revised application, the applicant submitted certain information in a redacted
manner without a showing of good cause. Having received redacted information that was not accompanied by
a showing of good cause, MINCIT nevertheless extended confidential treatment to this information.
280 Colombia alleges that since the redacted information in question was not treated as confidential, the
issue the Panel should evaluate is whether the record allowed for a correct understanding of the factual aspects
relevant to the investigation as per Article 6.2 of the Anti-Dumping Agreement. (Colombia's response to Panel
question No. 13.3, paras. 73-75; comments on the European Union's response to Panel question No. 13.1,
para. 1.47). Colombia's submission refers to Article 6.2 while quoting the text of Article 6.4 of the
Anti-Dumping Agreement. It appears therefore that Colombia intended to refer to Article 6.4. However, we
note that Article 6.4 applies to information relevant to the presentation of the interested parties' cases, used by
the authorities, and not confidential within the meaning of Article 6.5. Thus, having found that MINCIT treated
the relevant redacted information as confidential, we do not consider it necessary to address this argument by
Colombia.

7.4.4 Whether Colombia acted inconsistently with Article 6.5.1 with respect to the
redacted information in section d(i) of FEDEPAPA's revised application
7.127. We recall that Article 6.5.1 of the Anti -Dumping Agreement requires an investigating
authority, when granting confide ntial treatment to information submitted by interested parties, to
ensure that the party submitting such information provides a non-confidential summary thereof, or,
in exceptional circumstances, provides a statement of the reasons as to why such summariza tion
was not possible.
7.128. The European Union alleges that the applicant did not provide non -confidential summaries
of the confidential information at issue and did not explain why this information could not be
summarized in a manner that allowed other interested parties to understand its substance .281
Colombia rejects the European Union's claims on the ground that this information was not treated
as confidential and therefore Article 6.5.1 does not apply.282
7.129. Article 6.5.1 applies in respect of information properly treated as confidential under
Article 6.5. We have already found that Colombia acted inconsistently with Article 6.5 with respect
to MINCIT's confidential treatment of the redacted information in section d(i) of the revised
application. In these circumstances, we do not consider it necessary to make further findings on the
European Union's Article 6.5.1 claim concerning the provision of non-confidential summaries for that
information, or an explanation as to why such summarization was not possible, in order to provide
a positive resolution to the dispute before us.283
7.4.5 Whether Colombia acted inconsistently with Article 6.5 with respect to the
information in annex 10 of FEDEPAPA's revised application
7.130. Annex 10 of the revised appl ication, entitled "Table on Injury Variables", contains certain
economic and financial information about the three petitioning companies (Congelagro, Soraca, and
Frozen Express) on behalf of whom FEDEPAPA filed its application. Specifically, annex 10 contains
the following information, presented in a tabular form: (a) sales revenue; (b) sales costs; (c) gross
profit; (d) gross profit margin; (e) gross nominal price; (f) production volume; (g) consumption by
producers; (h) sales volume; (i) initial and final inventory; (j) installed capacity and use; (k) direct
employment; (l ) export volume; and (m ) wages.284 While the table in annex 10 of the revised
application lists these categories of information, the exact individual values for each category are
redacted for all petitioning companies.285
7.131. The parties do not dispute that the applicant requested confidential treatment for this
information and that it provided an explanation as to why this information ought to be treated as
confidential. The part ies also do not dispute that MINCIT granted confidential treatment to the
information in annex 10. Rather, the parties' arguments centre around two main issues: (a) whether
the applicant demonstrated the necessary "good cause" to protect the annex 10 information286; and

281 European Union's first written submission, para. 87.
282 Colombia's opening statement at the second meeting of the Panel, para. 3.2.
283 We recall that prior DSB reports have found that, where an investigating authority errs in its
treatment of confidential information, it is not necessary to address claims concerning the provision of
non-confidential summaries or an explanation as to why such summarization was not possible in order to
provide a positive resolution to the dispute. (See e.g. Panel Reports, Russia – Commercial Vehicles,
284 Annex 10 of the revised application, (Exhibit COL-11).
285 As noted in fn 241 above, annex 10 of the revised application refers to three separate annexes
(i.e. annex 10, annex 11, and annex 12), which contain confidential information of the three domestic
companies on whose behalf the applicant filed its application, and that were provided directly to MINCIT by
these companies in accordance with MINCIT's instructions (i.e. by dividing it into annex 10, annex 11, and
annex 12). (Colombia's response to Panel question No. 1.1, para. 3).
286 In its first written submission, the European Union argues that "MINCIT did not require the applicant
to show good cause for keeping confidential the information supplied". However, in response to Panel question
No. 3.2, the European Union acknowledges that "MINCIT requested that the applicant substantiates the
reasons that justify the confidential treatment of the information submitted." From the last statement, we thus
understand that the European Union is not further pursuing its claim that MINCIT "did not require the applicant
to show good cause". (European Union's first written submission, para. 87; response to Panel question No. 3.2,
para. 56).

(b) whether MINCIT objectively assessed the "good cause" that the applicant provided to MINCIT
when MINCIT elected to grant confidential treatment to the annex 10 information.
7.132. On the first issue, we recall that the applicant requested confid ential treatment of the
information contained in annex 10 on the grounds that "[t]he specific names of the domestic industry
companies, all their financial information, and in general numerical, and any data that is classified
as a trade secret, are confid ential".287 The European Union asserts that not hing in the record
indicates that the applicant "actually showed" the necessary "good cause " for the confidential
treatment sought, and, in particular, argues that the "simple assertion " that all the information
relating to the domestic industry constituted "business secrets" does not amount to a showing of
"good cause".288 Colombia maintains that the European Union's position is factually unfounded.289
7.133. We recall that our examination of whether "good cause" has been shown should be
undertaken in light of the nature of the information at issue. The European Union alleges that "it is
not at all certain that all commercial and financial information deserves confidential treatment and
even less that it constitutes a 'business secret'". 290 We note, h owever, that the
European Union's argument does not concern the showing of good cause for " all commercial and
financial information" in the abstract. Rather, the European Union's argument relates to the showing
of "good cause" for the specific information contained in annex 10.
7.134. We observe that, apart from making a general assertion that not "all commercial and
financial information " deserves confidential treatment or constitutes a "business secret" , the
European Union has not explained why the precise reason provided by the applicant (namely, that
the information in annex 10 constitutes a "trade secret" ) cannot amount to a showing of "good
cause" for the specific types of information that are actually contained in annex 10.291 In addition to
observing that it does not challenge the showing of good cause by, for example, allegi ng that the
specific information in annex 10 does not constitute a "trade secret", we also note that the
European Union agrees that some of the information contained in annex 10 could, in fact, constitute
a trade or business secret.292 In these circumstances, and given the allocation of the burden of proof
as noted in paragraph 7.5 of this Report, we find that the European Union has not established that
the applicant failed to show "good cause" as to why the information in annex 10 should be accorded
confidential treatment.293
7.135. We now turn to the second issue as to whether MINCIT objectively assessed the "good cause"
invoked by the applicant for the confidential treatmen t of the information in annex 10. The
European Union claims that MINCIT did not objectively examine whether the reasons provided by
the applicant constituted "good cause" because: (a) MINCIT "simply accepted" the
applicant's assertion that the financial in formation in annex 10 constituted "business secrets" and
determined that information of a commercial and financial nature is confidential "by its very nature";
and (b ) MINCIT treated the commercial information provided by the domestic industry as
confidential, while disclosing similar information provided by the European exporters. 294 Colombia
disagrees with th e European Union's understanding of the facts, and maintains that its assertions
constitute unsubstantiated allegations.295

287 Revised application, (Exhibit EU-10), section 11. As noted in paragraph 7.110 of this Report, MINCIT
revealed the "specific names of the domestic industry companies".
288 European Union's first written submission, para. 73; response to Panel question No. 3.2, para. 56;
and opening statement at the first meeting of the Panel, para. 26.
289 See e.g. Colombia's second written submission, paras. 4.4 and 4.19.
290 European Union's response to Panel question No. 3.4(d), para. 64. (emphasis added)
291 For example, the European Union does not explain why, and which of, the specific information in
annex 10 (i.e. sales, profits, prices, production, consumption, inventories, installed capacity, employment,
exports, and wages) cannot constitute a "trade secret" and should therefore not be treated confidentially.
292 Specifically, the European Union stated that "[it] does not exclude that some of the information
contained in [annex 10], which MINCIT treated as confidential, could constitute a trade or business secret".
(European Union's opening statement at the second meeting of the Panel, para. 29).
293 In reaching this conclusion, we express no views as to whether FEDEPAPA's statement did, in fact,
constitute "good cause" shown for purposes of Article 6.5.
294 European Union, response to Panel question No. 3.4(d), paras. 63-64; second written submission,
para. 49; and opening statement at the second meeting of the Panel, para. 29.
295 Colombia's second written submission, paras. 4.4 and 4.20-4.23; response to Panel question
No. 3.4(c), para. 132; and opening statement at the second meeting of the Panel, paras. 3.3-3.4. Colombia
also argues that given that the European Union's arguments regarding MINCIT's lack of "objective assessment"

7.136. We recall that our task of reviewing whether MINCIT objectively assessed the alleged "good
cause" is informed by the investigating authority 's published documents, the nature of the
information at issue, and the reasons given by the party seeking confident ial treatment. In this
instance, we note that, in its notice of initiation, MINCIT accepted the applicant 's request for
confidentiality on the grounds that " anything related to financial information or data considered to
be part of trade secrets can be reg arded as confidential, since it is considered to be sensitive
information that is protected by law, the disclosure of which would seriously damage the companies
involved."296 In light of the above, and in accordance with relevant Colombia n domestic law297,
MINCIT concluded that it "shall, as requested, restrict access to the confidential information
submitted by the applicant, in order to protect the applicant 's economic, financial and industrial
trade secrets".298
7.137. While some interested parties, including the European Commission, subsequently objected
to MINCIT's decision to grant confidential treatment to the annex 10 information299, we note that
MINCIT explained its decision to continue to treat the information at issue as confidential by stating
that: "[t]his information was submitted as confidential in compliance with the requirements of the
Anti-Dumping Agreement and [the relevant Colombian domestic law]" 300, and because its content,
"under constitutional or legal provisions must be subject to restriction, in particular the economic
and financial figures which, due to their nature, were submitted in confidence by the Colombian
producers, given that their disclosure could give a significant advantage to a competitor."301 MINCIT
also observed that no specific legal reasons that would oblige the investigating authority to consider
that such information should be made public were specified by interested parties, nor was there any
recourse to the administrative process envisa ged by Article 26 of the Code of Administrative
Procedure and Administrative Disputes.302
7.138. Based on the above, and contrary to the European Union's argument, we do not consider
that MINCIT "simply" accepted the reasons presented by the applicant when it determined to provide
confidential treatment to the annex 10 information .303 To the contrary , MINCIT's published
statements reveal that it took into account various factors as part of its examination,
including: (a) the fact that the information under annex 10 was submitted "in confidence" by the
Colombian producers; ( b) the "economic and financial" nature of the figures in annex 10; (c) the
need to "protect the applicant's economic, financial and industrial trade secrets"; (d) the harm that
would be caused to the submitters of the information by the disclosure of this information304; and
(e) the status of the information under Colombian domestic law. MINCIT 's examination was
therefore not limited solely to whether "commercial and financial information " is confidential
information "by its very nature" or whether such information is protected under domestic law. 305

form the basis for the European Union's argument regarding "good cause", these arguments should have been
provided in the first written submission in accordance with paragraph 3(1) of the Working Procedures.
(Colombia's response to Panel question No. 3.4(b), fn 88). For the reasons explained in fn 45 of this Report, we
decline to accept this argument.
296 Notice of initiation, (Exhibit EU-1a), section 1.5.
297 Namely, Political Constitution of Colombia, (Exhibit COL-12); Articles 15 and 74; Law No. 1437 of
2011 establishing the Code of Administrative Procedure and Administrative Disputes, (Exhibit COL-13),
Article 24.1; and Decree No. 1750 of 2015 regulating the application of anti-dumping duties, (Exhibit COL-8),
Article 24.11, para. 1, and Articles 41 and 75. We note that the European Union does not challenge the
consistency of any of these provisions with the Anti-Dumping Agreement.
298 Notice of initiation, (Exhibit EU-1a), section 1.5. The technical report on the initiation, the preliminary
technical report, the final technical report, and the final report on essential facts confirm MINCIT's confidential
treatment determination and repeat much of the assessment set out in the notice of initiation. (Technical
report on the initiation, (Exhibit COL-10 (BCI)), section 1.7; Preliminary technical report, (Exhibit EU-12a),
section 1.7; Final technical report (public version), (Exhibit EU-4a), section 1.7; and Final report on essential
facts (public version), (Exhibit EU-3a), section 1.7).
299 See e.g. European Commission's observations on essential facts, (Exhibit EU-18a), pp. 2-3. See also
Responses to comments on essential facts, (Exhibit EU-17a), p. 17.
300 See e.g. Responses to comments on essential facts, (Exhibit EU-17a), p. 21.
301 See e.g. Final determination (public version), (Exhibit EU-5a), p. 2.
302 Final determination (public version), (Exhibit EU-5a), p. 2. See also Preliminary technical report,
(Exhibit EU-12a), p. 37.
303 European Union's response to Panel question No. 3.4(d), para. 63.
304 Specifically, MINCIT noted the "serious[] damage to the companies involved" by potentially
conferring "a significant advantage to a competitor". (See paragraph 7.136 above).
305 According to the European Union, the "fact that the financial information may be protected under
domestic law is not sufficient to establish 'good cause' within the meaning of Article 6.5 of the
Anti-Dumping Agreement, as the type of information protected by domestic law may vary widely among

In our view, MINCIT's published statements demonstrate that it considered these factors, together
with others, in arriving at its conclusion.
7.139. Turning to the nature of the information at issue, we recall that the table in annex 10
contains information concerning: (a) sales revenue; (b) sales costs; (c) gross profit; (d) gross profit
margin; (e) gross nominal price; (f ) production volume; (g ) consumption by producers; (h ) sales
volume; (i ) initial and final inventory; (j ) installed capacity and use; (k ) direct employment;
(l) export volume; and (m ) wages.306 Although the European Union seeks to challenge
MINCIT's decision to treat this information as confidential by making a general argument that "it is
not at all certain that all commercial and financial information deserves confidential treatment an d
even less that it constitutes a 'business secret'"307, we note that the European Union concedes that
the type of information contained in annex 10 could, in fact, constitute a trade or business secret.308
Indeed, as we note above, the European Union has not attempted to demonstrate that the specific
information in annex 10 does not – or could not – constitute a "trade secret". Furthermore, we note
Colombia's argument that the type of information in annex 10 for which confidential treatment was
sought is protected as confidential in every anti-dumping investigation worldwide, including by the
European Commission.309 The European Union, for its part, does not counter Colombia's assertion
by explaining, for example, why the specific types of operational and financial information in
annex 10 concerning domestic producers cannot be confidential.310 Given the above, we are unable
to find that MINCIT 's examination of the explanation provided by the applicant was deficient for
purposes of Article 6.5 of the Anti-Dumping Agreement.
7.140. The European Union also argues that MINCIT disclosed similar information provided by the
European exporters and that such disparate treatment undermines Colombia's assertion that all such
information is confidential "by nature".311 Colombia responds that the European Union fails to specify
what "similar information" it refers to, and in any event, it cannot be argued that information ceases
to be confidential merely because an investigating authority "inappropriately" disclosed similar
information.312
7.141. We note that, irrespective of whether the information at issue is confidential "by nature" or
is "submitted to authorities on a confidential basis ", the granting of confidentiality is generally
triggered by a party 's request accompanied by a showing of "good cause ".313 In this instance,
however, the European Union has neither alleged nor demonstrated that the investigated exporters
requested confidential treatment for any information that they provided to MINCIT that was allegedly

different municipal laws", but the "term 'good cause' must be given an autonomous interpretation in its context
and in the light of the object and purpose of the Anti-Dumping Agreement." (European Union's response to
Panel question No. 3.4(a), para. 59 (emphasis added)). In this regard, however, we note that the justification
provided by the applicant was that the information at issue constituted a "trade secret". (Revised application,
(Exhibit EU-10), section 11). The domestic law upon which MINCIT relied in its assessment shows only one of
the reasons why MINCIT accepted such justification. (Notice of initiation, (Exhibit EU-1a), section 1.5).
306 Annex 10 of the revised application, (Exhibit COL-11).
307 European Union's response to Panel question No. 3.4(d), para. 64.
308 European Union's opening statement at the second meeting of the Panel, para. 29.
309 Colombia's first written submission, para. 7.34; second written submission, para. 4.22; and response
to Panel question No. 3.4(b), para. 127.
310 We note Colombia's argument that "given the importance and sensitivity" of the information
contained in annex 10, the European Union should have at least indicated which of the numerous information
elements contained in annex 10 it considers could not be deemed a "business secret", in order to demonstrate
the merits of its submission. (Colombia's second written submission, para. 4.21).
311 European Union's response to Panel question No. 3.4(d), para. 64; second written submission,
para. 49; and opening statement at the second meeting of the Panel, para. 29. The European Union argues
that MINCIT disclosed individualized information on sales prices provided by the investigated exporters, but
kept confidential all information on prices provided by the domestic industry, including aggregated prices,
averages, and trends. (European Union's first written submission, para. 86).
312 In particular, Colombia argues that "by complaining about the alleged disclosure of certain
confidential information of European exporters, the European Union seems to call into question, rather than its
confidential nature, the fact that it was disclosed", and adds that "[t]his could give rise, if anything, to an
independent violation of the obligation of confidentiality of that information", but "in no case can the
European Union argue that certain information loses its confidential character merely because an authority has
inappropriately disclosed similar information." (Colombia's opening statement at the second meeting of the
Panel, para. 3.4 (emphasis original)).
313 See e.g. Appellate Body Report, EC – Fasteners (China), para. 537 (finding that "the requirement to
show 'good cause' … applies to both [categories of] information [information that is confidential by nature, and
information that has been submitted to authorities on a confidential basis]".)

similar to the domestic producers' annex 10 information. Given this important fact, we fail to see
how the European Union's "disparate treatment" argument is relevant to – or can support – its
assertion that MINCIT did not objectively determine whether the explanation provided by the
applicant constitutes a showing of "good cause".314
7.142. Based on the foregoing, we find that the European Union has not demonstrated, with respect
to the information contained in annex 10 of the revised application: (a) that the applicant failed to
show the necessary "good cause" for the confidential treatment requested; and (b) that MINCIT did
not objectively assess the showing of "good cause" as the basis of granting confidential treatment .
Accordingly, we find that the European Union has not established that Colombia acted inconsistently
with Article 6.5 of the Anti-Dumping Agreement in respect of the information contained in annex 10
of the revised application.
7.4.6 Whether Colombia acted inconsistently with Article 6.5.1 with respect to the
annex 10 information in FEDEPAPA's revised application
7.143. The parties do not dispute that MINCIT requested the applicant to provide "a summary or
non-confidential version" of all information for which confidential treatment was requested. 315 The
parties also do not dispute that the applicant d id not provide a non -confidential summary of the
confidential information contained in annex 10.316
7.144. The European Union, however, argues that it is the task of the investigating authority to
"ensure" that parties provide meaningful summaries of the confiden tial information submitted by
them (e.g. through indexation or ranges) .317 Colombia responds that it did not act inconsistently
with Article 6.5.1 because the Article does not require a summary to be provided in "exceptional
circumstances" and the applicant explained why the information contained in annex 10 was not
susceptible of summary.318
7.145. We recall that, whenever an authority elects to accord confidential treatment to a particular
piece of information, Article 6.5.1 mandates that the authority "shall require" the party that provided
the information to also "furnish" a non -confidential summary of tha t information. 319 This
non-confidential summary need not be provided in "exceptional circumstances", provided that the
party that submitted the information indicates that it "is not susceptible of summary" and provides
a "statement of the reasons why summarization is not possible ". The question we must therefore
consider is whether the applicant provided a statement of the reasons as to why summarization was
not possible.
7.146. Colombia's position on this question is grounded in the following statements made by t he
applicant:

314 For the same reasons, we disagree with the European Union's argument that this "disparate"
treatment demonstrates that MINCIT did not objectively assess whether the content of the non-disclosed
information could have a prejudicial effect on the transparency and due process interests of other parties
involved in the investigation. (See e.g. European Union's second written submission, para. 49).
315 MINCIT's deficiency letter to FEDEPAPA, (Exhibit EU-9a), para. 5.
316 Colombia's response to Panel question No. 3.5(a), para. 133; European Union's second written
submission, para. 50.
317 European Union's second written submission, para. 54.
318 Colombia's responses to Panel questions No. 3.5(b), para. 137 and No. 3.5(c), paras. 138-141;
second written submission, para. 4.4.
319 To the extent that Colombia argues that MINCIT acted consistently with Article 6.5.1 because it
"requested" a non-confidential summary of the confidential information, we disagree. (Colombia's first written
submission, para. 7.38). Using the mandatory "shall", Article 6.5.1 obliges an investigating authority to
"require" that a non-confidential summary be "furnished" by the concerned party. The dictionary definition of
"require" includes "to … insist on having (something) from or of someone". (Oxford Dictionaries online,
definition of "require" https://www.oed.com/view/Entry/163258?rskey=teYJjL&result=2#eid (accessed
21 April 2022), v. meaning 6.b)). In our view, a single request by MINCIT, and the fact that such summaries
were ultimately not "furnished" in the underlying investigation, are insufficient to bring Colombia into
conformity with the obligation under Article 6.5.1. Our view is supported by the Spanish and French versions of
the treaty text, which read, respectively, as follows: "[l]as autoridades exigirán a las partes interesadas que
faciliten información confidencial que suministren resúmenes no confidenciales de la misma" and "[l]es
donnent des résumés non confidentiels." (emphasis added)

a. The applicant's request for confidential treatment, which states, in relevant part: "all the
[domestic industry companies'] financial information, and in general numerical, and any
data classified as a trade secret, are confidential".320
b. The applicant's response, to a question posed at the public hearing as to why it d id not
provide the figures of the companies it represents for assessment by all interested parties,
that: "[t]he Federation has provided the information nec essary for assessment by the
interested parties. However, it has always stated that financial information, and in general
numerical, classified as a trade secret must be kept confidential."321
7.147. According to Colombia, these statements demonstrate that summarization was not possible
because the financial information submitted in confidence was "numerical". In particular, Colombia
argues that this "numerical" claim should be read in the relevant context that annex 10 was
individually submitted by each of three petitioning companies and therefore the financial information
was directly related to each of the companies. Thus, Colombia contends that this information could
not have been summarized without revealing it to at least the other stakeholders in the domesti c
industry.322
7.148. The European Union, however, maintains that : (a) the applicant 's indication of what
information it considers confidential does not amount to an explanation as to why that information
is not susceptible of summar y; and ( b) the alleged "numeric al" reason does not constitute a
"sufficient" explanation of why "all" the information contained in annex 10 was not susceptible of
summary since most numerical information can be summarized through indexation or indication of
ranges.323
7.149. In our view, the three sentences that are cited by Colombia324 reflect the explanation that
the applicant provided for requesting confidential treatment, but they do not indicate why the specific
information contained in annex 10 could not be summarized, or why the situation constituted
"exceptional circumstances" that would have justified the absence of summarization. In addition, we
recall that annex 10 concerns different elements of information (i.e. sales, profits, price, production,
consumption, inventories, installed capacity, employment, exports, and wages). These statements,
however, do not refer to any specific elements of this information for which non -confidential
summaries were not provided. Moreover, we note that, while various methods of summari zation
may be used by parties in anti-dumping investigations325, nothing in the above statements indicates
why "exceptional circumstances" prevented the applicant from employing a ny particular method of

320 Revised application, (Exhibit EU-10), section 11. (emphasis added)
321 FEDEPAPA's responses to questions raised during the hearing, (Exhibit EU-15), p. 3007.
(emphasis added)
322 See e.g. Colombia's first written submission, paras. 7.40-7.41; and response to Panel question
No. 3.5(c), paras. 138-141 and fn 105. Colombia adds that such justification was provided in good time and in
the correct form, and was sufficient for treating as confidential the information contained in annex 10.
(Colombia's second written submission, para. 4.27).
323 See e.g. European Union's opening statement at the second meeting of the Panel, para. 31; and
second written submission, paras. 53-54. In light of the European Union's arguments, we reject
Colombia's contention that the "sufficiency" of the justification given by FEDEPAPA is not part of the
European Union's position. (Colombia's second written submission, paras. 4.26-4.27 and fn 88; response to
Panel question No. 3.5(c), para. 142). For the reasons explained in fn 45 of this Report, we also reject
Colombia's contention that this argument should have been submitted by the European Union in its first written
submission as required by paragraph 3(1) of the Working Procedures of the Panel. (Colombia's second written
submission, fn 88).
324 See paragraph 7.146 above.
325 Colombia disagrees with the European Union that the information at issue could be summarized
through indexation. (Colombia's closing statement at the second meeting of the Panel, para. 1.21). However,
Colombia does not counter the European Union assertion that this information could be summarized through an
indication of ranges. Moreover, nothing in the record indicates that any efforts were made to explore the
possibilities or potential alternatives for the summarization of the confidential information at issue (or for
certain pieces of such confidential information).

summarization.326 We thus fail to see how these stateme nts support Colombia's assertion that the
applicant explained why the information contained in annex 10 was not susceptible of summary.327
7.150. Finally, we note Colombia's argument that MINCIT explained the "obvious" reasons why this
information could not be summarized, and that based on the explanation by FEDEPAPA 328, and the
very "nature" of that information, MINCIT was convinced that it could not be summarized as it could,
even in summary for m, "cause irreversible harm ".329 While we note that MINCIT discussed the
confidentiality of the information at issue under Colombian domestic law330, we do not consider that
this reflects the explanation that is now provided by Colombia in these panel proceedings as to why
summarization of such information was not possible. In any event, as we have found above, a
"statement of the reasons why summarization is not possible" – which is a " must" under
Article 6.5.1 – was not provided in the underlying investigation.
7.151. In light of the foregoing, we find that the European Union has established that Colombia
acted inconsistently with its obligations under Article 6.5.1 because: (a) MINCIT did not "require"
the applicant to "furnish" non-confidential summaries of the i nformation contained in annex 10 to
which confidential treatment was granted; and (b ) to the extent that this information was not
susceptible of summary, a statement of the reasons as to why summarization was not possible was
not provided.
7.4.7 Conclusion
7.152. Based on the foregoing, with respect to the European Union's claims under Articles 6.5
and 6.5.1 of the Anti-Dumping Agreement challenging MINCIT's confidential treatment of the certain
information in section d(i) and annex 10 of FEDEPAPA's revised application, we find that:
a. the European Union has established that Colombia acted inconsistently with its obligations
under Article 6.5 with respect to the redacted information in section d(i) of
FEDEPAPA's revised application because MINCIT granted confidential treatment to th is
information without a showing of "good cause " by the applicant. Given our finding of

326 We agree with findings from a prior adopted DSB report that while "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", it is incumbent "on
the submitting party to explain, inter alia, why present circumstances prevent it from employing [a given]
method." (Appellate Body Report, EC – Fasteners (China), fn 786).
327 We note that prior adopted DSB reports have considered that a statement of why summarization is
not possible cannot be considered an appropriate statement if: it "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 circumstances that would
justify a failure to provide a non-confidential summary"; and it is a "single statement" which repeats a
"justification for treating a number of different pieces of information as equally unsusceptible to
summarization." (Appellate Body Report, EC – Fasteners (China), para. 553. See also Panel Reports,
EC – Fasteners (China), para. 7.516; and China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.326).
328 Specifically, Colombia states that "FEDEPAPA indicated on at least two occasions, [that] the
information for which confidential treatment was requested is of a 'numerical' nature and cannot therefore be
summarized. Moreover, the trends in each producer's different variables cannot be summarized without
disclosing their confidential information. For example, if indexed values are used to describe the trend of such
variables, other interested parties will not learn the actual values, but will learn of the trend, which is also
confidential as its disclosure could be used commercially by other companies. In the words of [MINCIT], its
disclosure could 'cause irreversible harm'". (Colombia's first written submission, para. 7.41 (referring to
Revised application, (Exhibit EU-10), folio 521; FEDEPAPA's responses to questions raised during the hearing,
(Exhibit EU-15), folio 3006; and Responses to comments on essential facts, (Exhibit EU-17a), pp. 11-12)).
329 Colombia's first written submission, paras. 7.41-7.43 (referring to Responses to comments on
essential facts, (Exhibit EU-17a), pp. 11-12).
330 In support of its position, Colombia refers to MINCIT's statements that "[r]egarding the lack of
non-confidential summaries … it should be mentioned that, in accordance with the provisions of the WTO
Anti-Dumping Agreement and Decree 1750 of 2015, the right of defence and due process has not been
violated, given the company's confidentiality rights under [Colombian domestic law] protecting the
confidentiality of company economic and financial data where disclosure thereof may cause irreparable harm."
Moreover, "[w]ith regard to the provision of information about injury, it is reported that the economic and
financial figures, due their nature, were provided by the Colombia producers as confidential information, since
their disclosure could generate a significant competitive advantage to a competitor. This confidentiality was
maintained in accordance with Colombian laws and Article 6.5 of the Anti-Dumping Agreement." (Responses to
comments on essential facts, (Exhibit EU-17a), p. 11 (emphasis added)).

inconsistency, we do not consider it necessary to make further findings on the
European Union's claim under Article 6.5.1 concerning the information in s ection d(i) of
the revised application in order to provide a positive resolution to the dispute before us;
b. the European Union has not established that Colombia acted inconsistently with its
obligations under Article 6.5 in respect of the information contai ned in annex 10 of the
revised application because the European Union has not demonstrated: (a) that the
applicant failed to show the necessary "good cause " for the confidential treatment
requested; and (b) that MINCIT did not objectively assess the showing of "good cause" as
the basis of granting confidential treatment; and
c. the European Union has established that Colombia acted inconsistently with its obligations
under Article 6.5.1 with respect to the information contained in annex 10 of
FEDEPAPA's revised application because : MINCIT did not "require" the applic ant to
"furnish" non -confidential summaries of the confidential information contained in
annex 10; and, to the extent that this information was not susceptible of summary, a
statement of the reasons as to why summarization was not possible was not provided.
7.5 Claims under Article 2.1, Article 6.8, and Annex II of the Anti -Dumping Agreement:
MINCIT's alleged use of facts available
7.5.1 Introduction
7.153. In calculating the margins of dumping for the exporters subject to the investigation, including
Agrarfrost, Aviko, and Mydibel, MINCIT used export pricing information that it extracted from
Colombia's official import statistics (the "DIAN database" or "DIAN data"331).332 MINCIT did not base
its dumping determination on the export prices that exporters submitted to the authority in their
respective questionnaire responses.333
7.154. The European Union claims that, in so doing, MINCIT "in fact" applied facts available without
being entitled to do so and thus acted inconsistently with Article 6.8 and paragraph 3 of Annex II of
the Anti -Dumping Agreement, and, relatedly, Article 2.1 and paragraph 6 of Annex II of the
Anti-Dumping Agreement.334
7.155. The European Union supports these claims by asserting that: (a) an authorit y may only
resort to facts available in accordance with the requirements of Article 6.8; (b) none of the
requirements under Article 6.8 were fulfilled in the underlying investigation because the exporters
fully responded to MINCIT's request for information; and (c) the export price data that the exporters
provided to MINCIT satisfied all the criteria set forth in paragraph 3 of Annex II335 and MINCIT did
not find to the contrary .336 As such , the European Union contends that , in making its dumping
determination, MINCIT was required to use the pricing data that the exporters provided to the
authority as it had no basis under Article 6.8 or paragraph 3 of Annex II to use the DIAN data.337
7.156. The European Union also contends that MINCIT did not inform the exporters of the reasons
as to why it elected to disregard the pricing information that they had supplied , contrary to

331 DIAN is the acronym for Colombia's National Tax and Customs Directorate (Dirección de Impuestos y
Aduanas Nacionales).
332 Final technical report (public version), (Exhibit EU-4a), sections 2.1, 2.5, and 2.5.1-2.5.3.
333 MINCIT used export price information extracted from the DIAN database to determine dumping
margins for the individually investigated exporters (i.e. Agristo, Clarebout, Ecofrost, Mydibel, Farm Frites,
Aviko, and Agrarfrost – all of which responded to MINCIT's exporter questionnaire) and any "other"
non-responding exporters from Belgium, Germany and the Netherlands. (Final technical report (public version),
(Exhibit EU-4a), sections 2.1, 2.5, and 2.5.1-2.5.3). MINCIT applied definitive anti-dumping duties on imports
from Agrarfrost, Aviko, and Mydibel as well as on imports from any "other" exporters from the Netherlands.
334 European Union's first written submission, paras. 99, 120, and 131.
335 European Union's first written submission, para. 128.
336 European Union's first written submission, paras. 93 and 102.
337 European Union's first written submission, paras. 110 and 128.

paragraph 6 of Annex II.338 Finally, the European Union asserts that, as a consequence of infringing
Article 6.8 and Annex II, MINCIT also acted inconsistently with Article 2.1.339
7.157. Colombia, for its part, responds that MINCIT did not resort to facts available when it elected
to use the DIAN data, and that, therefore, the facts available disciplines do not apply to
MINCIT's determination.340 Specifically, Colombia presents two arguments in this regard. First,
Colombia argues that the DIAN data do not constitute facts available, "best information available",
or "secondary [source] information".341 Rather, these data represent what Colombia describes as
"primary [source] information".342 In Colombia's view, this is because the DIAN data pertain directly
to the exporters concerned343 and are "identical, in essence and origin" 344 to – or "essentially the
same"345 as – the data that the exporters provided in their questionnaire responses. Given this,
Colombia argues that it was within MINCIT's discretion to select the DIAN data as being "more
appropriate" for its calculations.346
7.158. Second, Colombia notes that MINCIT never made any express facts available finding
pursuant to Article 6.8 and paragraph 3 of Annex II – for instance, by observing that the exporters
did not provide the requested "necessary" information.347 According to Colombia, the absence of an
explicit and formal determination by MINCIT in this regard indicates that MINCIT did not use facts
available in determining export prices and that, therefore, the rules concerning the use of facts
available do not apply in the present context.348
7.159. In sum, Colombia contends that, given that MINCIT did not use facts available, the
European Union's claims under Article 6.8 and Annex II, as well as its consequential Article 2.1
claim, must fail.
7.160. Notwithstanding the above, Colombia argues that, in the e vent that the Panel were to find
that the DIAN data constituted facts available, MINCIT nonetheless complied with Article 6.8 and
Annex II. In this regard, Colombia asserts that MINCIT took into account the information that the
exporters had provided and i nformed them of its decision to use the DIAN data. 349 Colombia also
contends that MINCIT afforded the exporters an opportunity to comment on this issue and that the
authority explained the reasons for its decision in response to the comments that were made by
several exporters.350
7.161. We begin our examination by recalling the applicable requiremen ts under Article 6.8 and
paragraphs 3 and 6 of Annex II (section 7.5.2). Next, we consider whether MINCIT used "facts
available" within the meaning of Article 6.8 a nd, if so, whether it acted in accordance with the
requirements that govern an investigating authority's resort to facts available (section 7.5.3).
7.5.2 Applicable requirements under Article 6.8 and paragraphs 3 and 6 of Annex II
7.162. Article 6.8 of the Anti-Dumping Agreement provides that:

338 European Union's first written submission, para. 130.
339 European Union's first written submission, para. 129; response to Panel question No. 4.8, para. 100.
340 Colombia's first written submission, paras. 8.3, 8.36, and 8.39.
341 Colombia's first written submission, paras. 8.2, 8.37, 8.52, and 8.56; second written submission,
paras. 5.1-5.18.
342 Colombia's first written submission, paras. 8.2, 8.7, 8.37, 8.40, and 8.46-8.47; second written
submission, para. 5.9.
343 Colombia's first written submission, paras. 8.2, 8.37, and 8.46-8.47.
344 Colombia's first written submission, paras. 8.2, 8.7, 8.37, 8.47, 8.51, and 8.59.
345 Colombia's second written submission, paras. 5.3, 5.9, and 5.11.
346 Colombia's first written submission, paras. 8.2-8.3, 8.7, 8.36, 8.38, 8.52, 8.88-8.89, and 8.96;
second written submission, para. 5.3.
347 Colombia's first written submission, paras. 8.39 and 8.63-8.78.
348 Colombia's opening statement at the first meeting of the Panel, para. 3.7.
349 Colombia's opening statement at the first meeting of the Panel, para. 3.9; response to Panel
question No. 14.2(a), paras. 81-85.
350 Colombia's opening statement at the first meeting of the Panel, para. 3.9; response to Panel
question No. 14.2(a), para. 85.

In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be
made on the basis of the facts available. The provisions of Annex II shall be observed
in the application of this paragraph.
7.163. The first sentence of Article 6.8 lists three types of circumstances in which an investigating
authority may elect to use "facts" that are otherwise "available" in order to make its
"determinations". Recourse to facts available is thus limited to situations in which an interested party
refuses access to, or otherwise d oes not provide necessary information, or where it significantly
impedes the investigation.
7.164. The second sentence of Article 6.8 sets out the relationship between Article 6.8 and
Annex II, entitled "Best information available in terms of paragraph 8 of Article 6", and stipulates
that the "provisions of Annex II shall be observed in the application of" Article 6.8. Paragraph 3 of
Annex II provides, in relevant part, that "[a]ll information which is verifiable, which is appropriately
submitted so that it can be used in the investigation without undue difficulties, [and] which is
supplied in a timely fashion … should be taken into account when determinations are made".
Paragraph 6 of Annex II requires, inter alia, that "[i]f evidence or information is not accepted, the
supplying party should be informed forthwith of the reasons therefore, and should have an
opportunity to provide further explanations within a reasonable period".
7.5.3 Analysis
7.165. The parties disagree as to whether MINCIT resorted to the use of facts available and, if so,
whether it acted inconsistently with the requirements of Article 6.8 and Annex II by electing not to
use the export prices provided by the exporters in their questionnaire responses and, instead, using
the DIAN data. As we see it, a key question in this regard is whether the DIAN data constitute "facts
available" within the meaning of Article 6.8 and Annex II.
7.166. In considering this question, we recall that Article 6.8 permits an investigating authority to
use "facts available" as the "basis" of its determinations when an "interested party refuses access
to, or otherwise does not provide, necessary information within a reasonable period or significantly
impedes the investigation". We also note that Annex II similarly contains several requirements that
regulate the circumstances in which an investigating authority may resort to, and use, facts
available – e.g. by regulating, inter alia, the manner in which an authority may request necessary
information – and the conditions under which an authority should take information into account.
7.167. As part of our analysis below (paragraphs 7.168-7.185), we discuss six considerations that
we deem relevant to our evaluation of the European Union's claim: (a) MINCIT's request for export
price information ; (b) the exporters' question naire responses containing the requested export
prices; (c) the DIAN data as the basis for MINCIT's determination; (d) the origin of the DIAN data;
(e) the dissimilarity between the DIAN data and the exporters' export prices; and (f) the absence of
a facts available determination pursuant to the Article 6.8 criteria . Having reviewed these
considerations, we undertake an overall evaluation of the matter, including the question of whether
the DIAN data constitute facts available and, if so, whether MINCIT act ed inconsistently with the
requirements of Article 6.8 (paragraphs 7.186-7.192).
First consideration – MINCIT's request for export price information
7.168. We note that , at the outset of the investigation , MINCIT issued a questionnaire to the
investigated exporters in which the authority asked for, inter alia, company-specific information,
including sales prices per export transaction to Colombia during the period of investigation.351
Second consideration – The exporters' questionnaire responses with the requested export prices
7.169. The three exporters at issue – Agrarfrost, Aviko, and Mydibel – were among the companies
that provided questionnaire responses and supplied the requested export price information to

351 Dumping investigation questionnaire for foreign producers and/or exporters, (Exhibit EU-23a),
section 5.

MINCIT.352 MINCIT's final technical report notes that these exporters "participated" and
"collaborated" in the investigation, including by providing "timely" questionnaire responses.353
Third consideration – The DIAN data as the basis for MINCIT's determination
7.170. Article 6.8 permits investigating authorities to make determinations "on the basis of the facts
available" in the three situations envisaged thereunder. In the circumstances of the present dispute,
we note that MINCIT made its dumping determination "on the basis of" export price information that
was necessary for the calculation of the margins of dumping. However, in making this determination,
MINCIT did not use the pricing information that the exporters provided in the ir questionnaire
responses and used the DIA N data instead. 354 The latter data thus constituted the actual export
price information that MINCIT used as the "basis" of its dumping determination.
7.171. We note that, while not disputing that MINCIT relied on the DIAN data to make its dumping
determination, Colombia argues that it would be incorrect to state that MINCIT rejected, or did not
use, the export price information that exporters provided in the questionnaire responses.355 Rather,
Colombia asserts that MINCIT proceeded in two steps. First, Colombia asserts that MINCIT used the
DIAN data as a "starting point" in its calculations to determine "initial" F.o.b. (free on board) export
prices.356 Second, Colombia asserts that MINCIT then used the cost information con tained in the
exporters' questionnaire responses to adjust F.o.b. export prices to ex -factory levels. Therefore, in
Colombia's view, MINCIT used, and took into account, information that the exporters had provided
when the authority calculated ex-factory export prices.357 We note, however, that MINCIT's reliance
on the exporters' cost information for calculating deductions or adjustments does not alter the fact
that MINCIT used – and based its determination on – the export prices extracted from the DIAN
database, rather than the export prices that the exporters had provided in their questionnaire
responses.
Fourth consideration – The origin of the DIAN data
7.172. With respect to the operation of its domestic import regime, Colombia explains that
importers provide th e National Tax and Customs Directorate (DIAN) with information on import
transactions when they complete and submit their import declarations. 358 DIAN collects this
information in its DIAN database. Colombia adds that, in the circumstances of this dispute, the
importers of the product under investigation supplied, inter alia, exporter -specific export price
information to DIAN in their import declarations. 359 In our view, therefore, the data that MINCIT
extracted from the DIAN database in the underlying investigation did not originate from export price
information that the exporters provided during the investigation, for instance, as part of their
responses to MINCIT's specific questionnaire request for export prices. 360 Rather, the importers
provided the DIAN data in an administrative procedure – and to an administrative authority – that
was unrelated to the anti-dumping investigation conducted by MINCIT.
7.173. Notwithstanding the fact that the DIAN data did not originate directly from the exporters,
we note that Colo mbia refers to two elements that, in its view, establish a "link" between the
importers and the exporters. 361 First, Colombia argues that the importers relied on data and
documents from the exporters when they provided export price information to the DIAN d atabase
in their import declarations. 362 Second, Colombia contends that according to domestic Colombian
law the information in the import declarations had to match the information in the underlying

352 Final technical report (public version), (Exhibit EU-4a), sections 2.1, 2.5, and 2.5.1-2.5.3.
353 Final technical report (public version), (Exhibit EU-4a), sections 2.1, 2.5, and 2.5.1-2.5.3.
354 Final technical report (public version), (Exhibit EU-4a), sections 2.1, 2.5, and 2.5.1-2.5.3.
355 Colombia's response to Panel question No. 14.2(a), paras. 81-82.
356 Colombia's first written submission, paras. 8.5, 8.21-8.22, and 8.30-8.31; responses to Panel
357 Colombia's response to Panel question No. 14.2(a), paras. 81-82.
358 Colombia's first written submission, paras. 8.13-8.14.
359 Colombia's first written submission, paras. 8.14-8.15 and 8.47; response to Panel question
No. 4.3(b), para. 151.
360 Colombia's first written submission, paras. 8.14-8.15 and 8.47; response to Panel question
No. 4.3(b), para. 151.
361 Colombia's response to Panel question No. 4.4, para. 162.
362 Colombia's first written submission, para. 8.15; response to Panel question No. 4.4, para. 162.

supporting documents, such as the invoices. 363 In response t o questioning by the Panel seeking
further clarification on the relationship between the importers and the exporters, and the
documentation provided to the DIAN database, Colombia, however, acknowledges that the importers
did not submit to the DIAN database any documents with export price information that the exporters
had issued and, in particular, they did not provide any invoices .364 We also note
Colombia's statement that the importers were not agents of the exporters, and therefore did not act
in their name and at their direction, when submitting the import declarations. 365 Moreover, and
significantly, not only did the two data sets stem from different entities (impor ters and exporters,
respectively) and different administrative procedures (customs procedures and anti -dumping
investigation, respectively), but they were, in any event, not the same. 366 We address this latter
point in the following paragraphs.
Fifth consideration – The dissimilarity between the DIAN data and the exporters' export prices
7.174. Colombia argues that MINCIT did not use facts available in the circumstances of this case
because the export prices extracted from the DIAN database and the export prices that the exporters
provided in the questionnaire responses were (essentially) the same. In this regard, Colombia
variously refers to the data sets as being " identical, in essence and origin" 367, "equivalent"368, and
"essentially the same"369, other than for "small differences" in "technical details".370 This being the
case, Colombia argues, MINCIT had discretion to elect to use the DIAN data without resorting to
facts available.371
7.175. The European Union disagrees with Colombia and argues that the data sets differed
significantly, both in terms of the prices for specific export transactions and the overall composition
of the sets of export transactions. 372 In particular, the European Union describes in detail the
differences as they relate to the content, form, structure, and the source of the data.373
7.176. Irrespective of the various ways in which Colombia characterizes the similarities between
the data, we consider that, based on both parties' factual descriptions provided to the Panel, the
data sets did, in fact, differ in several respects.374 In particular:

363 Colombia's first written submission, para. 8.15; responses to Panel questions No. 4.4, para. 162; and
364 Colombia's responses to Panel questions Nos. 4.5(a) and 4.5(b), para. 168 and fn 118. According to
Colombia, importers were under a legal obligation to keep relevant documentation for five years in case of an
audit.
365 Colombia's response to Panel question No. 4.4, para. 161.
366 The European Union argues that, irrespective of the fact whether the data sets were the same or not,
MINCIT was only permitted to use the export price data that the exporters provided in and for the purpose of
the investigation. (European Union's opening statement at the first meeting of the Panel, para. 36; second
written submission, paras. 57 and 60; responses to Panel questions No. 4.3(a), paras. 73-75 and 77, and
No. 14.2(b), paras. 39-40; comments on Colombia's response to Panel question No. 14.2(a), para. 15). In the
European Union's view, MINCIT could not properly use data that was collected from a different source outside
the investigation, and for a different purpose, absent a finding that the conditions in Article 6.8 and Annex II
for recourse to the facts available mechanism were met. (European Union's second written submission,
paras. 57 and 60). In paragraphs 7.172-7.173, we discuss these aspects of the DIAN data. Our discussion of
this issue is among the elements that we consider in our overall assessment in paragraphs 7.168-7.192 in
order to resolve the European Union's claim.
367 Colombia's first written submission, paras. 8.2, 8.7, 8.37, 8.47, 8.51, and 8.59.
368 Colombia's responses to Panel questions No. 4.2(a), para. 145, No. 4.2(b), para. 148, and
No. 4.2(c), para. 149.
369 Colombia's second written submission, paras. 5.3, 5.9, and 5.11. We note that when asked by the
Panel, Colombia acknowledged that the data sets were "not 'identical' in the strict sense of the word".
(Colombia's responses to Panel questions No. 4.3(a) and No. 4.3(b), para. 151).
370 Colombia's second written submission, paras. 5.9 and 5.11.
371 Colombia's first written submission, paras. 8.2-8.3, 8.7, 8.36, 8.38, 8.52, 8.88-8.89, and 8.96;
written submission, para. 5.3.
372 European Union's response to Panel question No. 4.3(a), paras. 78-79; second written submission,
para. 61; and opening statement at the second meeting of the Panel, paras. 36-37.
373 European Union's response to Panel question No. 4.3(c), paras. 81-95; second written submission,
paras. 62-66.
374 Colombia's responses to Panel questions No. 4.3(b), para. 151, No. 4.3(d)(i), paras. 152-157
(referring to Agrarfrost's export transactions, (Exhibit COL-41 (BCI)); Aviko's export transactions,

a. the numerical export price values in the two data sets differed both in terms of currency
denomination and level of trade (INCOTERMS).375 Moreover, the exporters provided export
prices per product type, whereas the data set extracted from the DIAN database contained
prices of merchandise imported under subheading 2004.10.00.00, without differentiating
between product types;
b. further, as per MINCIT's questionnaire request, the exporters provided export prices for
individual sales transactions.376 By contrast, each export price in the DIAN database was
calculated as an average price of several invoices and several sales transactions. 377
Individual transaction-specific prices and average prices are, in our view, not the same; and
c. as regards Agrarfrost, Aviko, and Mydibel, the two data sets were also partially composed
of different export transactions. 378 The data set that MINCIT extracted from the DIAN
database included certain transactions, and corresponding export prices, that were not
contained in the exporters' data in their questionnaire responses, and vice versa.379 This
was mainly because the exporters and MINCIT selected relevant export transactions
differently. The exporters reported export transactions for which the sale (by invoice date)
occurred during the period of investigation. By contrast, MINCIT selected transactions for
which the DIAN database indicated that the customs declaration was made during the
period of investigation.380
7.177. Therefore, when questioned by the Panel about its assertion that the two sets of data were
(essentially) the same, Colombia did not sufficiently substantiate its position.381 To the contrary, as
explained above, the parties' statements, including those by Colombia, indicate that the data sets
differed significantly in their scope and content.

(Exhibit COL-42 (BCI)); and Mydibel's export transactions, (Exhibit COL-43 (BCI))), and No. 4.3(d)(ii),
paras. 158-159; European Union's response to Panel question No. 4.3(c), paras. 81-95; second written
submission, paras. 62-66.
375 Exporters reported their export prices in EUR and on a CIF basis, while the export prices in the DIAN
database were expressed in USD and at F.o.b. level. MINCIT thus made the necessary conversions when using
the DIAN data. (Colombia's first written submission, paras. 8.16 and 8.51, and fn 121; Colombia's responses to
Panel questions No. 4.3(b), para. 151, and Nos. 4.5(a) and 4.5(b), paras. 165-166; European Union's first
written submission, para. 106 and fn 140; and European Union's response to Panel question No. 4.3(c),
paras. 86-90).
376 Dumping investigation questionnaire for foreign producers and/or exporters, (Exhibit EU-23a),
section 5.
377 According to Colombia, the DIAN database is fed with information from import declarations. Each
import declaration typically aggregates the prices from several invoices. Each invoice, in turn, may relate to
one or several sales transactions. Each export price extracted from the DIAN database thus represents an
average price of the invoices covered by a given import declaration where each of the invoices concerned may
relate to several sales transactions. (Colombia's response to Panel question No. 4.3(b), para. 151).
378 Colombia notes that the data sets for the exporter Clarebout, whose exports were not subject to
definitive anti-dumping duties, were composed of the same transactions. (Colombia's response to Panel
379 Colombia's response to Panel question No. 4.3(d)(i), paras. 152-157 (referring to Agrarfrost's export
transactions, (Exhibit COL-41 (BCI)); Aviko's export transactions, (Exhibit COL-42 (BCI)); and Mydibel's export
transactions, (Exhibit COL-43 (BCI))).
380 Colombia's first written submission, paras. 8.19 and 8.26; response to Panel question No. 4.3(d)(ii),
para. 158; European Union's response to Panel question No. 4.3(e)(ii), para. 95. Colombia also notes that
MINCIT selected export transactions from the DIAN database according to the date on which the merchandise
was cleared from the customs procedures and released on the domestic market. (Colombia's response to Panel
381 Colombia responded only by outlining the differences in the data but not by showing that the data
were indeed (essentially) the same. (Colombia's responses to Panel questions No. 4.3(b), para. 151, and
No.4.3(d)(i), paras. 152-157).

Sixth consideration – The absence of a facts available determination pursuant to the Article 6.8
criteria
7.178. Turning to the reasons provided by MINCIT for using the DIAN data (as reflected in the
investigation record), we note that the authority provided the following reply in response to queries
by certain interested parties concerning, in their view, the unjustified use of facts available382:
With regard to the unjustified rejection of information duly submitted by the companies,
in our investigations Colombia's official source for import data is the National Tax and
Customs Directorate (DIAN). The DIAN obtains its data from information reported by
the importer, which is supported by documents issued by the exporter and is used to
calculate the FOB export price to Colombia.
Under the Colombian Customs Code, import declarations must match the information
contained in the documents on which they were based, failing which the declarant shall
be held liable as specified in Article 40 of Decree 390 of 2016 (Customs Code), which
states, inter alia: " The declarant shall be responsible for submitting the
documents required to support the customs declaration, in compliance with
the legal requirements, as well as for the authenticity of the documents. The
declarant shall also be responsible for the payment of duties and taxes, interest, the
value of the recovery fee and any penalties that may be incurred." (Underlining and
bold type added).
Accordingly, the sales listed by each of the compani es must be strictly related to what
is stated in the customs declaration, which means that the information in the DIAN
database can be considered useful, reliable and effective evidence for calculating the
export price.383
7.179. Based on the excerpt above, we und erstand MINCIT's reasoning justifying its use of the
DIAN data to proceed as follows: the DIAN database was of an official nature; importers provided
information to the DIAN database based on documents from the exporters; the information in the
import decl arations had to match the information in the underlying supporting documents; the
export prices in the exporters' questionnaire responses therefore had to accord with the information
in the customs declarations; and the DIAN data was thus "useful, reliable and effective evidence".
7.180. We note that MINCIT provided no further reasoning on this matter in its determination.
Hence, our review of the record of the investigation indicates that the authority did not state explicitly
that it resorted to facts available in order to determine the export price information that it used to
calculate the margins of dumping. Specifically, it made no express findings concerning the
circumstances that would permit an authority to resort to the use of facts available pursuant to
Article 6.8, such as the exporters refusing access to, or otherwise not providing the requested export
price information, or significantly impeding the investigation. MINCIT also did not find explicitly that
the exporters' reported export price information was not verifiable, was not appropriately submitted
such that it could not be used in the investigation without undue difficulties, or was not supplied in
a timely fashion, as envisaged under paragraph 3 of Annex II for proper recourse to facts available.
7.181. Elaborating on these facts, Colombia argues that MINCIT cannot be considered to have
resorted to facts available because it did not explicitly and formally decide to use facts available,
pursuant to the criteria in Article 6.8 and paragraph 3 of Annex II.384 Colombia contends that such
a decision would, however, be necessary for the facts available disciplines in Article 6.8 and Annex II
to apply.385 Colombia also states that "it obviously does not propose" that an investigating authority
has unfettered discr etion to decide whether the facts available disciplines apply by simply
characterizing its conduct as recourse to facts available or not.386 According to Colombia, "[h]owever,

382 Agrarfrost's comments on essential facts (Exhibit EU-25a (BCI)), section III.4;
European Commission's observations on essential facts, (Exhibit EU-18a), section 2.1(a).
383 Responses to comments on essential facts (Exhibit EU-17a), p. 13. (emphasis original)
384 Colombia's first written submission, paras. 8.39 and 8.63-8.78. See also Colombia's opening
statement at the first meeting of the Panel, para. 3.7.
385 Colombia's first written submission, paras. 8.39 and 8.63-8.78. See also Colombia's opening
statement at the first meeting of the Panel, para. 3.7.
386 Colombia's opening statement at the first meeting of the Panel, para. 3.7.

the exact opposite position can also not be correct. It cannot be irrelevant if a n investigating
authority explicitly invokes or not the relevant secondary information provisions during the
investigation".387
7.182. The European Union agrees that MINCIT made no explicit facts available determination.
According to the European Union, however, an objective assessment of MINCIT's determination
indicates that the authority nonetheless used facts available and that Article 6.8 and Annex II apply
in the circumstances of this case.388 The third parties that expressed a view on this matter agree
with the European Union that, depending on the circumstances, an investigating authority may be
considered to use facts available even if it does not state so explicitly.389
7.183. We note Colombia's arguments that "[t]he rules on the 'best information available' are also
not applicable because … an explicit finding by an investigating authority is a condition for applying
the[se] provisions"390 and that "it cannot be irr elevant" whether or not an authority made such a
determination.391
7.184. We accept that the absence of an explicit determination pursuant to the criteria in Article 6.8
and paragraph 3 of Annex II may be relevant in assessing whether an investigating authority ha d
recourse to facts available. However, we do not consider that this fact alone is necessarily conclusive
for our analysis. In fact, it would be inappropriate to define the nature of an investigating
authority's conduct solely by reference to the fact that the authority did or did not expressly engage
in the kind of evaluation that is required by Article 6.8 and paragraph 3 of Annex II. To do so would
risk conflating the question of whether an authority resorted to facts available with the separate
issue of the authority's alleged (non -) compliance with the substantive requirements for a proper
use of facts available.
7.185. In our view, therefore, a case -by-case analysis that takes into account all relevant
circumstances is required to determine whether an investi gating authority , in fact, used facts
available. Depending on the circumstances, such analysis may indicate that an investigating
authority had de facto recourse to the use of facts available, despite its omission to state so explicitly.
Overall evaluation based on the six considerations discussed above
7.186. In paragraphs 7.168-7.185 above, we have discussed six considerations that are relevant to
our analysis of the case at hand. To recall, our review of the specific circumstances of the case
indicates that (a) MINCIT requested the exporters at issue to provide company-specific information
concerning their export prices; (b) the exporters provided the solicited information fully and on a
timely basis in direct response to MINCIT's request; (c) MINCIT used export price information as the
basis of its dumping margin calculations but in doing so did not use the export prices that MINCIT
had requested and that exporters had provided in their questionnaire responses and, instead, used
the DIAN data; (d) the DIAN data were no t provided by the exporters as part of the investigation
but were sourced from information provided by importers as part of their customs procedures;

387 Colombia's opening statement at the first meeting of the Panel, para. 3.7. (emphasis added)
388 European Union's opening statement at the first meeting of the Panel, paras. 32-34; response to
Panel question No. 4.7, para. 99.
389 Brazil's response to Panel question No. 3.2, paras. 25-26; Japan's third-party submission, para. 18;
Japan's response to Panel question No. 3.2, para. 31; and United States' response to Panel question No. 3.2,
para. 21.
390 Colombia's first written submission, para. 8.39. See also ibid. paras. 8.64 ("an explicit determination,
by an investigating authority, is one of the key conditions for applying the WTO rules on the use of the best
information available. In fact, the rules on the best information available rely on the authority making such a
determination."), 8.66 ("if the investigating authority does not determine that an investigated company has
failed to provide the necessary information (incomplete, unverifiable, etc.) or that the company refuses to
cooperate with the investigation, the rules on the best information available do not apply."), and 8.68 ("an
investigating authority's explicit determination of whether use was made of the best information available is
the key criterion for determining whether, legally, such use has been made.").
391 Responding to Japan's submission that "Article 6.8 and Annex II apply regardless of whether the
investigating authority chooses to categorize its approach as 'recourse to the 'facts available' mechanism'"
(Japan's third-party submission, para. 18), Colombia denies "that an investigating authority may decide, on its
own and with total discretion, whether certain information constitutes secondary information or not" but
asserts that "the exact opposite position can also not be correct. It cannot be irrelevant if an investigating
authority explicitly invokes or not the relevant secondary information provisions during the investigation."
(Colombia's opening statement at the first meeting of the Panel, para. 3.7 (emphasis original)).

(e) the DIAN data and the export prices that the exporters had provided were not the same but
differed sig nificantly; and (f) MINCIT did not determine affirmatively that one or more of the
conditions in Article 6.8 and paragraph 3 of Annex II for recourse to facts available were satisfied.
7.187. Consistent with our task to take into account all the relevant circumstances of a proceeding
when determining whether an authority resorted to facts available 392, we consider that in the
particular facts of this dispute, the DIAN data constitute "facts available" for the purposes of
Article 6.8.393 We recall that Article 6.8 pe rmits the use of "facts available" in cases where an
"interested party refuses access to, or otherwise does not provide, necessary information within a
reasonable period or significantly impedes the investigation" . The parties agree that MINCIT made
no such finding concerning the exporters in the underlying investigation. To the contrary, MINCIT
indicated in its determination – and the parties do not dispute – that the exporters at issue had fully
participated and cooperated in the investigation, including by providing a complete and timely
response to MINCIT's request for export price information. Therefore, absent a determination that
the exporters refused access to, or otherwise did not provide, necessary information concerning
export prices within a reasonable period of time, or significantly impeded the investigation, we are
of the view that MINCIT did not comply with the requirements of Article 6.8 in basing its
determination on the DIAN data rather than the export prices that the exporters had provided in
their questionnaire responses.
7.188. Colombia argues that, even if the Panel were to find that the DIAN data constituted facts
available, MINCIT complied with Article 6.8 and Annex II because: the authority informed the
exporters of its decision to use the D IAN data in the essential facts disclosure; the exporters
subsequently had ample opportunity to comment on this matter and several exporters provided
comments; and, MINCIT explained the reasons for its decision in response to those comments. 394
Colombia's factual assertions about the exchange of information and comments between MINCIT
and the exporters do not, however, change our assessment that MINCIT used facts available without
the requisite determination that the exporters ref used access to, or otherwise did not provide,
necessary information concerning export prices within a reasonable period of time, or significantly
impeded the investigation.
7.189. In its closing statement at the second meeting of the Panel and in its response to the
Panel's written question s following that meeting, Colombia makes two additional points. First, it
asserts that it made "initial arguments" in its opening statement at the first meeting of the Panel to
the effect that MINCIT complied with the substantive requirements of Article 6.8 and Annex II,
should the Panel consider that these provisions apply.395 Second, Colombia argues that principles of
due process oblig e the Panel to afford Colombia a specific opportunity to present additional
arguments on this matter in the event that the Panel were to consider that the DIAN data constituted
"facts available".396
7.190. With respect to Colombia 's first point, we note that in par agraph 7.188 above we have
already considered what Colombia characterizes as "initial arguments" concerning MINCIT's alleged
compliance with Article 6.8 and Annex II and have found that they do not change our assessment
that MINCIT used facts available without determining that the requisite Article 6.8 conditions existed
to do so.
7.191. As to Colombia 's second point, we also reject Colombia's demand for a separate and
additional opportunity to elaborate further on its alternative arguments in the event that we were to
disagree with Colombia on the legal characterization of the DIAN data. We make three remarks in
this regard. First, we note that due process does not mandate a panel to "test" its intended reasoning

392 See paragraph 7.185 above.
393 We need not, and do not, take any position on the question of whether MINCIT would not have used
facts available if the data sets had, in fact, been the same.
394 Colombia's opening statement at the first meeting of the Panel, para. 3.9. See also
Colombia's response to Panel question No. 14.2(a), para. 85.
395 Colombia's closing statement at the second meeting of the Panel, para. 1.19 (referring to its opening
statement at the first meeting of the Panel, para. 3.9). See also Colombia's response to Panel
question No. 14.2(a), para. 85.
396 Colombia's closing statement at the second meeting of the Panel, para. 1.19; response to Panel
question No. 14.2(a), para. 84.

with the parties in advance. 397 Second, we recall that, at least since the receipt of the
European Union's first written submission, Colombia was on notice of the European Union's claim
that MINCIT acted inconsistent ly with Article 6.8 and several provisions of Annex II.398
Subsequently, Colombia had ample opportunity to present its defence in two written submissions,
during two substantive meetings, and in two sets of responses to the Panel's questions. In fact, we
note that Colombia presented several (what it now describes as "initial") arguments on this matter
in its opening statement at the first meeting of the Panel. 399 Colombia quotes these arguments in
full in its response to the Panel's written questions after th e second substantive meeting. 400
Moreover, we observe that, in its opening statement at the second substantive meeting, Colombia
stated that, in respect of the facts available claim, "[t]he different approaches – both factual and
legal – of Colombia and the European Union have been sufficiently explored in the parties' previous
communications".401 Third, our determination that MINCIT did not comply with the requirements of
Article 6.8 rests on Colombia's statements that MINCIT did not find that the exporters concerned
refused access to, or otherwise did not provide, necessary information or significantly impeded the
investigation.402 As noted in paragraph 7.187 above, the use of facts available in a WTO-consistent
manner would, however, require the authority to find that one or more of these Article 6.8 criteria
are satisfied. Colombia's own arguments thus present the elements that are necessary and sufficient
to find that MINCIT did not respect the conditions under Article 6.8. Given this, we do not see the
need to provide Colombia with another opportunity to further clarify and elaborate its position on
this issue.
7.192. Based on the discussion in paragraphs 7.186-7.191 above, we find that MINCIT did not
comply with the requirements of Article 6.8 because: (a) the DIAN data constituted facts available
for the purposes of Article 6.8; and (b) MINCIT used that data without determining that the criteria
under Article 6.8 for proper recourse to facts available were satisfied.
7.193. The European Union also advances claims of inconsistency under paragraphs 3 and 6 of
Annex II.403 These claims are premised on the view that MINCIT improperly resorted to facts
available and thus concern essentially the same factual issues already addressed in the context of
its Article 6.8 claim. In addition, the European Union pursues a consequential claim under Article 2.1
that depends on a finding of inconsistency of Article 6.8.404 Having already found in favour of the
European Union with respect to its claim under Article 6.8, we do not consider it necessary to make
further findings concerning the se additional claims in order to provide a positive resolution to the
dispute before us.
7.5.4 Conclusion
7.194. Based on the above, we find that the European Union has established that Colombia acted
inconsistently with its obligations under Article 6.8 because MINCIT disregarded the export prices
that the exporters had provided in their questionnaire responses and, instead, elected to use export
prices extracted from the DIAN database to make its dumping determination. In light of this finding,
we do not consider it n ecessary to make additional findings as to whether Colombia also acted
inconsistently with its obligations under paragraphs 3 and 6 of Annex II and Article 2.1 in order to
provide a positive resolution to the dispute before us.

397 In this respect we agree with the approach taken in Appellate Body Reports, US – Large Civil Aircraft
(2nd complaint), para. 1137; US – Tuna II (Mexico) (Article 21.5 – Mexico), para. 7.177; and Panel Report,
China – Broiler Products (Article 21.5 – US), Addendum, Annex A-3, para. 1.1.
398 European Union's first written submission, paras. 127-130.
399 Colombia's opening statement at the first meeting of the Panel, para. 3.9.
400 Colombia's response to Panel question No. 14.2(a), para. 85.
401 Colombia's opening statement at the second meeting of the Panel, para. 4.1.
402 Colombia's first written submission, paras. 8.39, 8.63, 8.72, and 8.77; responses to Panel questions
403 European Union's first written submission, paras. 128-130 and 332.
404 European Union's response to Panel question No. 4.8, para. 100.

7.6 Claims under Article 2.4 of the Anti-Dumping Agreement: MINCIT's assessment of the
exporters' requests for adjustments
7.6.1 Introduction
7.195. The European Union claims that Colombia acted inconsistently with its obligations under the
first and third sentences of Article 2.4 of the Anti -Dumping Agreement to make a fair comparison
between export price and normal value, and to make due allowances for differences affecting price
comparability.405 According to the European Union, MINCIT did not make several necessary
adjustments to account for differ ences between the products that the European producers sold
domestically and the products that they exported to Colombia. Specifically, the European Union
asserts that MINCIT 's price comparison was not fair because MINCIT improperly: (a) declined all
requests to make adjustments to account for the fact that the exporters sold different product mixes
in the domestic and Colombian markets406; (b) denied Mydibel's request to make an adjustment to
account for differences in packaging costs, and, instead, deducted certain (other) packaging costs
from the export price, but not the normal value 407; and (c) declined Agrarfrost's request to make
certain cost adjustments to account for the fact that Agrarfrost primarily used more expensive oil to
prepare potato products sold in the domestic market than it used to prepare potato products that
were exported to Colombia.408
7.196. The European Union also claims that Colombia acted inconsistently with its obligations under
the last sentence of Article 2.4 of the Anti-Dumping Agreement because MINCIT "failed to indicate
to the [exporters] what information it considered necessary to make a fair comparison and imposed
an unreasonable burden of proof on them".409
7.197. In response, Colombia asserts, inter alia, that MINCIT was entitled to deny the adjustments
because the exporters did not sufficiently substantiate their requests.410
7.198. Colombia also asserts that certain elements of the European Union's Article 2.4 claims fall
outside the Panel 's jurisdiction because the European Union's request for the establishment of a
panel (panel request) did not provide a "brief summary of the legal basis of the complaint sufficient
to present the problem clearly", contrary to the requirements of Article 6.2 of the DSU.411
7.199. We begin by recalling the applicable requirements of Article 2.4 (section 7.6.2). Next, we
examine each of the European Union's claims regarding the manner in which MINCIT assessed the
exporters' adjustment requests (sections 7.6.3-7.6.6).
7.6.2 Applicable requirements under Article 2.4 of the Anti-Dumping Agreement
7.200. Article 2.4 of the Anti-Dumping Agreement provides, in part:
A fair comparison shall be made between the export p rice 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 differe nces which affect price
comparability, including differences in … physical characteristics, and any other
differences which are also demonstrated to affect price comparability. … The authorities

405 European Union's first written submission, paras. 132-134, 179, 192, 205, and 332; second written
submission, paras. 69-82.
406 European Union's first written submission, paras. 133 and 149-179; second written submission,
paras. 70-72.
407 European Union's first written submission, paras. 133 and 180-192; second written submission,
paras. 73-75.
408 European Union's first written submission, paras. 133 and 193-205, second written submission,
paras. 76-82.
409 European Union's first written submission, paras. 133 and 206-208.
410 Colombia's first written submission, paras. 9.1-12.4; second written submission, paras. 6.1-8.27.
411 Colombia's first written submission, paras. 10.3-10.22.

shall 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.412
7.201. Article 2.4 requires investigating authorities to make a "fair comparison" between the export
price and the normal value, and imposes certain re quirements on authorities to achieve this
objective. In particular, Article 2.4 requires investigating authorities to make "[d]ue allowance … in
each case, on its merits, for differences which affect price comparability". The provision provides an
illustrative list of the types of differences that may affect price comparability, including "differences
in … physical characteristics" and "any other differences" that may be relevant in this regard.
7.202. While Article 2.4 requires authorities to ensure that the comparison is fair, the provision only
requires an allowance to be made for differences that are "demonstrated to affect price
comparability". Thus, parties seeking the adjustments bear the burden of substantiating – through
arguments and evidence – their requests to account for differences affecting price comparability.
Investigating authorities are not obliged to make the adjustments if the parties requesting such
adjustments do not demonstrate that the differences underlying their request affect p rice
comparability.413
7.6.3 MINCIT's assessment of the exporters' requests for product mix -related
adjustments
7.6.3.1 Introduction
7.203. The European Union claims that MINCIT did not make the "fair comparison" required by
Article 2.4 because the authority did not account for alleged differences in the mix of products sold
in the home market compared to the Colombian market .414 Specifically, the European Union notes
that Agrarfrost, Aviko, and Mydibel415 claimed that their export sales consisted mostly of "traditional"
potato products that have lower production costs and thus sell at lower prices, while their home
market sales comprised a significant volume of "speciality" potato products with higher production
costs and sales prices.
7.204. The European Union asserts that the exporters substantiated their adjustment requests with
arguments and evidence establishing the existence of physical differences between the product
types, the cost and price impact of these differences, and disparate sales volumes of each product
type in the domestic and export markets.416 The European Union thus argues417 that MINCIT rejected
the adjustment requests as unsubstantiated without any proper basis.418
7.205. Colombia responds that MINCIT was entitled to reject the exporters ' product mix
adjustments because the companies did not sufficiently substantiate their requests.419 Specifically,

412 Fn omitted.
413 A similar conclusion was reached in, for example, Appellate Body Reports, EC – Fasteners (China),
para. 488; EC – Fasteners (China) (Article 21.5 – China), paras. 5.163 and 5.204; and Panel Reports,
414 European Union's first written submission, paras. 133 and 149-179; second written submission,
paras. 70-72.
415 In setting out the contents of its product mix-related claim in its first written submission, the
European Union refers to three companies whose exports were subject to definitive anti-dumping duties
(Agrarfrost, Aviko, and Mydibel) and three companies whose exports were not (Agristo, Clarebout, and
Ecofrost). (European Union's first written submission, paras. 156-161 and 172). In response to a question from
the Panel, the European Union clarified that it does not request the Panel to make separate findings concerning
MINCIT's treatment of the latter group of exporters and that its arguments in this regard are intended as
supporting its principal assertions concerning Agrarfrost, Aviko, and Mydibel. (European Union's response to
Panel question No. 5.1, para. 101).
416 European Union's first written submission, paras. 133, 149, 151-161, 167-169, and 171; responses
to Panel questions No. 5.2, paras. 108-112 and No. 5.3, paras. 113-119.
417 European Union's first written submission, paras. 163, 165, 172, and 174-178.
418 We note that MINCIT performed a single comparison of weighted average export price and weighted
average normal value for the product under investigation, rather than a type-by-type comparison with multiple
averaging.
419 Colombia's first written submission, paras. 9.5, 9.13, 9.41, 9.47, and 9.50; opening statement at the
first meeting of the Panel, para. 4.1; second written submission, para. 6.2; and opening statement at the
second meeting of the Panel, para. 5.1.

Colombia asserts that the materials provided by the exporters in support of their requests contained
contradictory, implausible, inconsistent and unsupported information.420
7.6.3.2 Analysis
7.206. The European Union asserts that Agrarfrost, Aviko , and Mydibel requested product
mix-related adjustments in a timely manner and provided all necessary data, explanations and
evidence to substantiate their requests. 421 Colombia does not dispute that the exporters sought
product mix adjustments but contends that MINCIT appropriately denied the adjustments because
the exporters did not sufficiently substantiate their requests.422 As we see it, the parties' arguments
raise the following two key issues:
a. first, whether MINCIT did, in fact, deny the exporters' product mix adjustments on the
basis that the requests were, as Colombia asserts, not sufficiently substantiated423; and
b. second, insofar as MINCIT declined the requests because they were not sufficiently
substantiated, whether MINCIT's record findings indicate that the authority had an
adequate basis for its decision.
7.207. As to the first issue, based solely on MINCIT's response to Aviko's comments on the essential
facts disclosure 424, Colombia asserts that the authority denied Agrarfrost's, Aviko's and
Mydibel's product-mix adjustments because it determined that none of these exporters had
sufficiently substantiate d their requests. 425 Specifically, Colombia notes 426 that MINCIT's reply to
Aviko's comments on the essential facts disclosure states, in relevant part, as follows:
[T]he panel in [ EC – Fasteners (China)] … made the following observations, among
others: … "If it is not demonstrated to the authorities that there is a difference affecting
price comparability, there is no obligation to make an adjustment."427
…
In accordance with the foregoing, the Investigating Authority does not consider it
necessary to calculate the dumping margin by type of product as Aviko requests, and
considers that the way in which the calculation was performed by Colombia is
suitable and represents the value of the product being investigated.428
7.208. Although MINCIT did not develop its reasoning in detail, we are of the view that these
statements indicate that MINCIT's rationale for denying Aviko's adjustment request was related to
the matter of insufficient substantiation ("'If it is not demonstrated to the authorities that there is a
difference affecting price comparability' … In accordance with the foregoing, …"). We therefore find
sufficient evidence on the record of the investigation indicating that MINCIT denied Aviko's request
because it considered that the company did not properly substantiate its product -mix adjustment
request.

420 Colombia's first written submission, paras. 9.11-9.50; second written submission, para. 6.2.
421 European Union's first written submission, paras. 149, 154-160, and 171-172; second written
submission, para. 71.
422 Colombia's first written submission, paras. 9.5, 9.13, 9.41, 9.47, and 9.50; opening statement at the
first meeting of the Panel, para. 4.1; second written submission, para. 6.2; and opening statement at the
second meeting of the Panel, para. 5.1.
423 We note the European Union's position that the allegation of insufficient substantiation was "ex-post
rationalisation" and a "post-facto claim". (European Union's first written submission, para. 207; opening
statement at the first meeting of the Panel, para. 59).
424 Colombia's first written submission, para. 9.13.
425 Colombia's first written submission, para. 9.13 (referring to Responses to comments on essential
facts, (Exhibit EU-17a), section 4).
426 Colombia's first written submission, para. 9.13.
427 Responses to comments on essential facts, (Exhibit EU-17a), section 4 (quoting Panel Report,
EC – Fasteners (China), para. 7.298, in turn quoting Panel Report, Korea – Certain Paper,
para. 7.147). (emphasis added by MINCIT omitted)
428 Responses to comments on essential facts, (Exhibit EU-17a), section 4.

7.209. We note, however, that MINCIT's statements are made in the context of, and are limited to,
MINCIT's assessment o f Aviko's request and do not appear to respond to either Agrarfrost's or
Mydibel's request. We also observe that Colombia has not pointed to any other material on the
record of the underlying investigation that would indicate that MINCIT denied Agrarfrost's and
Mydibel's product mix adjustments because it found that these companies did not sufficiently
substantiate their requests.
7.210. Our assessment of the first issue thus indicates that MINCIT's reason to deny
Aviko's adjustment was related to the issue of ins ufficient substantiation, but that MINCIT did not
deny Agrarfrost's and Mydibel's adjustments for the same reason.
7.211. As Colombia has not established that MINCIT did, in fact, determine that Agrarfrost and
Mydibel had not sufficiently substantiate d their requests for product -mix adjustments, we reject
Colombia's arguments in this regard as ex post explanations. We also note that Colombia does not
argue – and the record of the investigation does not indicate – that MINCIT denied Agrarfrost's and
Mydibel's adjustments for any other reason. Given this, we consider that the authority did not have
any proper basis to deny Agrarfrost's and Mydibel's requests. Consequently, we focus the remainder
of our analysis on MINCIT's assessment of Aviko's request.
7.212. Turning to the second issue, we next examine whether MINCIT had an adequate basis for
its decision to deny Aviko's adjustment because the exporter did not sufficiently substantiate its
request. We assess this question in light of MINCIT's findings on the record of the investigation and
the parties' arguments in these proceedings.
7.213. With respect to MINCIT's findings on the record of the investigation, we recall that
MINCIT's assessment of Aviko's request is limited to a few elements: a quote from the WTO pan el
report in EC – Fasteners (China); a statement that Aviko's requested adjustment was not
"necessary"; and a finding that MINCIT's own calculation was "suitable" and "represent[ative of] the
value of the product being investigated ".429 To us, however, nothing in these statements indicates
why MINCIT determined that Aviko did not sufficiently substantiate its adjustment request.
7.214. The European Union asserts that MINCIT had no basis for its denial decision because Aviko
sufficiently substantiated its request wi th arguments and information, including information
concerning the differences in physical characteristics between the product types, the corresponding
impact on costs and prices, and the sales volumes by product types for domestic and export sales.430
In response, Colombia takes issue with certain allegedly flawed elements in Aviko's arguments and
information.431 Specifically, Colombia asserts that MINCIT had reason to determine that Aviko did
not substantiate its request because the exporter's statements and information were: (a) "illogical"
and "confusing "432; (b) made in response to a question in the exporter's questionnaire that was
unrelated to the issue of adjustments 433; (c) unsupported by factual evidence 434; and
(d) inconsistent with Aviko's comments on essential facts435 and with statements on the record made
by other exporters .436 We note, however, that Colombia does not point to anything on the
investigation record that would indicate that any of the alleged "deficiencies "437 that Colombia now
claims before us as vitiating Aviko's request were part of MINCIT's own assessment. In fact, based
on the record of the investigation before us (including MINCIT's determinations and other

429 See paragraph 7.207 above.
430 European Union's first written submission, para. 157 and fn 198 (referring to Aviko's questionnaire
response, (Exhibit EU-29a (BCI)), sections 3.1 and 3.4, annexes 1-12; Questionnaire response, Excel
workbook "ventas domésticas", (Exhibit EU-29.1 (BCI)); Questionnaire response, Excel workbook "ventas en
Colombia", (Exhibit EU-29.2 (BCI)); and Aviko's comments on essential facts, (Exhibit EU-26a (BCI)),
section III).
431 Colombia's first written submission, paras. 9.15-9.33.
432 Colombia's first written submission, paras. 9.17, 9.21, 9.23, and 9.26.
433 Colombia's first written submission, paras. 9.22 and 9.24.
434 Colombia's first written submission, paras. 9.25 and 9.28.
435 Colombia's first written submission, para. 9.31.
436 Colombia's first written submission, paras. 9.29 and 9.32.
437 Colombia's second written submission, paras. 6.5 and 6.9.

documents438), MINCIT does not appear to identify or explain any reasons for its conclusion that
Aviko did not sufficiently substantiate its adjustment request.
7.215. We therefore consider that MINCIT denied Aviko's request without , on the record of the
investigation, engaging with, and evaluating the substance of, the arguments and information that
Aviko provided in support of its adjustment request, let alone providing the reasons underlying its
conclusion that the exporter did not sufficiently substantiate its request. Absent such elements in
MINCIT's determination, we consider that MINCIT lacked an adequate basis to determine that Aviko
did not sufficiently substantiate its adjustment request.
7.6.3.3 Conclusion
7.216. Based on the above, we consider that the record of the investigation does not indicate that
MINCIT had any proper basis for its decision to deny Agrarfrost's and Mydibel's product mix-related
adjustment requests. Separately, we conclude that MINCIT had no proper basis for its finding that
Aviko had not sufficiently substantiated its product mix -related adjustment request. In sum, we
therefore find that the European Union has established that Colombia acted inconsistently with its
obligation under Article 2.4 to make a "fair comparison" because MINCIT denied the product
mix-related adjustments that Agrarfrost, Aviko, and Mydibel had requested.
7.6.4 MINCIT's assessment of Mydibel's request for a packaging cost-related adjustment
7.6.4.1 Introduction
7.217. In its questionnaire response, the Belgian exporter Mydibel requested an adjustment to
account for what it claimed to be differences in packaging costs that varied depending on product
types and customer specifications .439 MINCIT did not make the requested adjustment , but instead
deducted certain export packaging costs from the export price, without making any corresponding
adjustment to the normal value.440
7.218. The European Union claims that Colombia acted inconsistently with the requirement under
Article 2.4 to make a fair comparison because MINCIT did not grant Mydibel's adjustment request
and, instead, elected to exclude certain packaging costs from the export price but retained packaging
costs on the normal value side.441
7.219. Colombia responds that this claim falls outside the Panel's terms of reference because the
European Union's panel request does not comply with the requirements of Article 6.2 of the DSU.442
Colombia also argues that the claim must, in any event, fail on its merits because MINCIT made the
necessary adjustment consistently with Article 2.4.443
7.6.4.2 Analysis
7.220. The parties' arguments raise the following two key issues:
a. whether the Panel has jurisdiction over the European Union's packaging cost -related
claim; and, if so,

438 Final report on the essential facts (public version), (Exhibit EU-3a), section 2.4.2; Responses to
comments on essential facts, (Exhibit EU-17a), section 4; Final technical report (public version),
(Exhibit EU-4a), section 2.4.2; and Final technical report (confidential version), (Exhibit COL-16 (BCI)),
section 2.4.2.
439 European Union's first written submission, paras. 182-183; Mydibel's questionnaire response,
(Exhibit EU-30a (BCI)), section 5.
440 Responses to comments on essential facts, (Exhibit EU-17a), section 7.
441 European Union's first written submission, paras. 133, 181, 183-184, 186, 189, and 191.
442 Colombia's first written submission, paras. 10.3-10.22.
443 Specifically, Colombia argues that (a) MINCIT deducted the cost for export packaging from the
export price but retained the cost for "normal", or "base", packaging material on the export price and normal
value sides given that the latter cost item was common to export and domestic sales; and (b) the cost for
"base" packaging was part of the manufacturing costs, and, as such, should not be deducted from the
ex-factory price. (Colombia's first written submission, paras. 10.24 and 10.26-10.27; responses to Panel
questions No. 5.5(a), paras. 184-186, and No. 5.6, para. 190).

b. whether the European Union has established that MINCIT lacked a proper basis to decline
the requested adjustment and to deduct, instead, certain packaging costs from the export
price but not from the normal value.
7.6.4.2.1 The Panel's terms of reference
7.221. Article 6.2 of the DSU reads, in relevant part, as follows:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
7.222. The requirement to "provide a brief summary of the legal basis of the complaint sufficient to
present the problem clearly" is central to establishing a panel's jurisdiction. The legal basis of the
complaint – i.e. the claim – is one of the elements constituting the "matter referred to the DSB"444,
which, in turn, forms the basis of a panel's terms of reference.
7.223. Colombia argues that the European Union's panel request does not provide the requisite
brief summary of the legal basis of the complaint because the European Union's description of this
claim in its first written submission is substantively different from what is in its panel request .445
Specifically, Colombia points out that paragraph 5 of the panel request refers to MINCIT's alleged
disregard of "differences in packaging", whereas in its first written submission the European Union
challenges MINCIT's decision to deduct packaging costs from the export price but not from the
normal value.446
7.224. The European Union counters that paragraph 5 of the panel request provides the requisite
brief summary of the legal basis of its complaint because that paragraph refers to "differences in
packaging".447
7.225. In order to assess whether, in light of Colombia's specific contentions, the
European Union's panel request p resents a brief summary of the legal basis of the complaint, we
review both the panel request and the statement of claim contained in the European Union's first
written submission.
7.226. Paragraph 5 of the European Union's panel request states that the challenged measures
appear to be inconsistent with Colombia's obligations under Article 2.4 of the
Anti-Dumping Agreement because:
Colombia did not make a fair comparison between the export price and the normal
value. In particular, Colombia did not make due allowances for differences which affect
price comparability, including for differences in physical characteristics and/or any other
differences between the products sold on the domestic markets in Belgium, Germany
and the Netherlands, and the products u nder investigation sold on the export market ,
which were demonstrated to affect price comparability. Inter alia, Colombia disregarded
the differences between the types of products, the different proportions of high and low
value products exported to Colombia, as compared to domestic sales in Belgium,
Germany and the Netherlands, as well as differences in packaging and differences
resulting from the use of different types of oils.448
7.227. In paragraph 5 of the panel request, the European Union describes the elements of its
Article 2.4 complaint as being: (a) the alleged failure to "make a fair comparison between the export
price and the normal value"; (b) "[i]n particular", the alleged failure to "make due allowances for
differences … affect[ing] price comparability"; and (c) as an example (" inter alia"),
Colombia's alleged disregard for "differences in packaging".

444 Article 7.1 of the DSU.
445 Colombia's first written submission, paras. 10.3-10.22.
446 Colombia's first written submission, paras. 10.10, 10.12, and 10.14.
447 European Union's opening statement at the first meeting of the Panel, paras. 54-55.
448 Emphasis added.

7.228. The European Union develops its claim in the first written submission by stating, inter alia,
that:
While Mydibel had claimed some adjustments relating to slight differences in packaging
costs depending on the product type and client, MINCIT not only ignored this claim, but
even worse, included the full packaging costs on the normal value side and none on the
export price side.449
7.229. The European Union's statement of its claim in its first written submission thus focuses on
MINCIT's decision to deny Mydibel's request to account for asserted variations in packaging costs
and to deduct, instead, packaging costs from the export price without making any deduction on the
normal value side.
7.230. Colombia argues that there is a substantive difference between the
European Union's statement in its panel request, which relates to MINCIT's disregard of "differences
in packaging", and the claim that it makes in its first written submission that MINCIT deducted
packaging costs from the export price only.450
7.231. We recall that Article 6.2 of the DSU states that the panel request need only provide a "brief
summary" of the "legal basis of the complaint" – i.e., the claim. Therefore, a complainant need not
include the arguments in support of a claim in its panel request but it must do so in its submissions
during the panel proceedings.451 Moreover, we consider that a complainant's arguments relate to,
inter alia, the precise reasons as to how and why a respondent is alleged to have acted
WTO-inconsistently. Accordingly, the European Union's panel request did not need to engage in
detail with all the factual aspects of the calculation that led to Colombia's alleged failure to perform
a fair comparison. In particular, it was not necessary for the panel request to outline which specific
adjustment was allegedly not – or incorrectly – made and why.
7.232. Consequently, t he European Union's assertions that MINCIT disregarded "differences in
packaging" and only deducted packaging costs from the export price constitute arguments, not
claims. We therefore consider that Article 6.2 of the DSU does not require the European Union to
include its "unilateral deduction" argument in the panel request in order to provide a brief summary
of the legal basis of the complaint.
7.233. Based on the above, we find that Colombia has not established that the
European Union's panel request does not satisfy the requirements of Article 6.2 of the DSU and that,
therefore, its packaging cost-related claim falls outside the Panel's terms of reference.
7.6.4.2.2 MINCIT's basis for declining Mydibel's adjustment request
7.234. Turning to the second issue, we note that Mydibel requested an adjustment to account for
certain differences in packaging costs. Mydibel stated that it used the same packaging materials
(i.e. bags, cardboard boxes, pallets, and shrink -wrap foil) in all of its sales, but the costs of these
common components differed between products made for export and domestic sales (due to
differences in product types and customer specifications).452 In particular, Mydibel submitted that,
unlike in the Colombian market, customers in its domestic market requested packaging material that
incurred higher costs.453
7.235. The European Union claims that MINCIT erred in declining the requested adjustment for
differences in the cost of the common packaging components. In the European Union's view,
MINCIT's decision to deduct packaging costs from the export price but not from the normal value
compounded the error.454 Colombia asserts that Mydibel's export and domestic sales both incurred
the same costs for an equally applicable "normal", or "base", pac kaging component, while the

449 European Union's first written submission, para. 183.
450 Colombia's first written submission, paras. 10.10-10.14.
451 The same view was taken in Appellate Body Report, Korea – Pneumatic valves (Japan), paras. 5.6
and 5.31.
452 Mydibel's questionnaire response, (Exhibit EU-30a (BCI)), section 5; Mydibel's comments on the
essential facts technical report, (Exhibit COL-1 (BCI)), pp. 10-11 and 21.
453 Mydibel's comments on the essential facts technical report, (Exhibit COL-1 (BCI)), p. 21.
454 European Union's first written submission, para. 183.

company's export sales incurred extra costs for "export" packaging .455 For Colombia, therefore,
MINCIT appropriately deducted export packaging costs from the export price but retained "base"
packaging costs as part of the export price and the normal value.456
7.236. The European Union disagrees with Colombia's distinction between "export" and "base"
packaging, and the corresponding packaging costs .457 According to the European Union,
Mydibel's products did not require any unique or different type of export packaging material for its
sales to Colombia, and thus did not incur what Colombia claims to be additional "export" packaging
costs.458 Accordingly, the European Union suggests that when MINCIT deducted the purported
"export" packaging costs, MINCIT, in fact, deducted the full amount of normal packaging costs from
the export price but none from the normal value.459
7.237. The parties' arguments, as we understand them, address different types of packaging costs
and, hence, distinct and unrelated types of adjustments. On the one hand, the
European Union's arguments focus on the fact that Mydibel asked MINCIT to make an adjustment
to account for alleged cost differences that (as a result of differences in product types and customer
specifications) arise when using the same types of packaging materials for products that are either
sold domestically or exported to Colombia. On the other hand, Colombia's rebuttal arguments relate
to an adjustment that MINCIT made to account for the fact that Mydibel's export sales allegedly
incurred additional – and different – packaging costs than its domestic sales. In our view, this
disconnect between the parties' arguments is reflected in the statements that Mydibel and MINCIT
made on the record of the investigation.
7.238. In paragraph 7.234 above, we described the nature of Mydibel's packaging cost adjustment
request, including the fact that the company asserted that it utilized the same packaging material
for its domestic and export sales460 and that the cost of these common packaging components varied
depending on product types and customer specifications. 461 To account for this difference, in
annex 3.2.1.2 of its questionnaire response, Mydibel listed the cost of "packaging material" as one
of the elements of the cost of manufacture and, for each product type, identified the amount incurred
for packaging.462 In Mydibel's submissions to MINCIT placed on the Panel's record, the company did
not identify expressly any separate categories of, on the one hand, what Colombia describes as
"base" packaging costs applicable to all export and domestic sales and, on the other hand, "export"
packaging costs that export sales incurred additionally. Mydibel also did not request any adjustment
to account for differences related to such types of packaging costs. To the contrary, Mydibel noted
explicitly that its exports did not incur any additional packaging costs distinct from those incurred in
its domestic sales and that the packaging costs as well as the cost of manufacture more generally,
as listed in annex 3.2.1.2 of the questionnaire response, did not differ as such between export and
domestic sales.463

455 Colombia's first written submission, para. 10.24; response to Panel question No. 5.5(a),
paras. 184-186.
456 Colombia's first written submission, paras. 10.25-10.26; response to Panel question No. 5.6,
para. 190.
457 European Union's opening statement at the first meeting of the Panel, para. 56; second written
submission, para. 74.
458 European Union's first written submission, para. 182; opening statement at the first meeting of the
Panel, para. 56; second written submission, para. 74; and opening statement at the second meeting of the
Panel, para. 44. According to the European Union, "the packaging for a product shipped overseas or sold
domestically uses exactly the same elements: bags, cardboard boxes, pallets, shrinkwrap foil. Packaging costs
are only those costs needed to package the product until it is a collection of boxes on a pallet, with plastic foil
around. The only thing needed in addition for overseas sales is a container in which the pallets are loaded. The
costs for such containers are not packaging costs; they are freight costs." (European Union's opening
statement at the first meeting of the Panel, para. 56).
459 European Union's second written submission, para. 74; opening statement at the second meeting,
para. 44.
460 Mydibel's questionnaire response, photos demonstrating packaging materials, (Exhibit EU-22 (BCI));
Mydibel's comments on the essential facts technical report, (Exhibit COL-1 (BCI)), pp. 12 and 14-16.
461 Mydibel's questionnaire response, (Exhibit EU-30a (BCI)), section 5; Mydibel's comments on the
essential facts technical report, (Exhibit COL-1 (BCI)), pp. 10-11 and 21.
462 Mydibel's questionnaire response, (Exhibit EU-30a (BCI)), section 5; Mydibel's questionnaire
response, annex 3.2.1.2, 3rd workbook "costes de manufactura", (Exhibit EU-30.1 (BCI)).
463 Mydibel's comments on the essential facts technical report, (Exhibit COL-1 (BCI)), pp. 14 and 17.

7.239. In its response to Mydibel's comments on the essential facts disclosure, MINCIT stated that
it deducted " export packaging material" from the export price. 464 In this context, MI NCIT also
determined that it did not make any normal value adjustment for packaging costs because it
considered that " packaging costs … are part of the production … costs of the product, and are
therefore already included in the ex-factory price".465
7.240. While MINCIT did not expressly use the terms "normal" or "base" packaging in its response,
Colombia claims that MINCIT's distinction between "export" and "base" packaging is reflected in
MINCIT's reference to "export packaging materia l".466 Colombia also asserts that, by separately
referring to "packaging costs", MINCIT intended to refer to " base" packaging costs that were an
"integral part" of the production costs and, as such, should not be deducted from the ex -factory
price.467
7.241. Based on the above, for Colombia, therefore, MINCIT explained that it adjusted for "export"
packaging costs but declined to make a normal value adjustment for "base" packaging costs. We
need not determine conclusively whether MINCIT's record supports Colombia's assertions on this
issue, specifically, as they relate to the alleged findings on "base" packaging. Even in the event that
Colombia's assertions were supported by MINCIT's record, it would follow from
Colombia's arguments and the record of the investigation that MINCIT 's adjustment f or export
packaging costs and its alleged findings concerning "base" packaging costs were unconnected
to – and did not address – Mydibel's specific request for an adjustment for variations in packaging
costs related to differences in product types and customer specifications.
7.242. We also observe that the rationale offered by MINCIT concerning "export" and, as Colombia
asserts, "base" packaging costs does not appear to be linked to information on the investigation
record that might support making such a distinction. To the contrary, as discussed in
paragraph 7.238 above, Mydibel's arguments and evidence on the investigation record appear to
contradict this distinction and remain uncontested. In these Panel proceedings, the European Union
also disagrees with the alleged distinction, pointing to relevant evidence that Mydibel had adduced
in the underlying investigation. 468 In response to questioning by the Panel, Colombia neither
substantiated its assertions concerning the existence of export and b ase packaging costs, nor
attempted to rebut the European Union's arguments to the contrary.469
7.243. Based on the above, we consider that MINCIT addressed a packaging cost adjustment that
was of a different type and of a different nature than the one that Mydibel had requested and that,
in any event, does not appear to be supported by the facts on the record of the underlying
investigation. MINCIT's consideration of packaging costs thus did not respond to the substance of
Mydibel's specific packaging cost -related adjustment and failed to provide a proper basis to deny
that request.
7.6.4.3 Conclusion
7.244. In light of the foregoing, we disagree with Colombia that the European Union's claim
under Article 2.4 concerning packaging cost adjustment falls outside the Panel's terms of reference.
We also conclude that the European Union has established that MINCIT had no proper basis to deny
Mydibel's adjustment request and to deduct certain other packaging costs from the export price
instead. Consequently, we find that the European Union has established that Colombia acted
inconsistently with Article 2.4 because, by denying Mydibel's packaging cost adjustment request,
MINCIT failed to make a "fair comparison".

464 Responses to comments on essential facts, (Exhibit EU-17a), section 7. (emphasis added)
465 Responses to comments on essential facts, (Exhibit EU-17a), section 7. (emphasis added)
466 Colombia's response to Panel question No. 5.6, para. 190.
467 Colombia's first written submission, para. 10.27; response to Panel question No. 5.6, para. 190.
468 European Union's opening statement at the first meeting of the Panel, para. 56; second written
submission, para. 74.
469 Colombia's response to Panel question No. 5.5(b), paras. 187-189; second written submission,
para. 7.3; and opening statement at the second meeting of the Panel, para. 5.1.

7.6.5 MINCIT's assessment of Agrarfrost's request for an oil cost-related adjustment
7.6.5.1 Introduction
7.245. In its questionnaire response, the German exporter Agrarfrost requested an adjustment to
account for the fact that it primarily used more expensive sunflower oil to prepare potato products
sold domestically , while using only cheaper palm oil to prepare potato products exported to
Colombia.470
7.246. The European Union claims that Colombia acted inconsistently with the requirement under
Article 2.4 to make a "fair comparison" because MINCIT improperly denied
Agrarfrost's adjustment request. Specifically, the European Union argues that MINCIT erred in
concluding that Agrarfrost did not provide the underlying invoices necessary to substantiate the
adjustment.471 In the European Union's view, Agrarfrost substantiated its request with arguments
and evidence , including the underlying invoices, establishing the existence of the oil -related
differences and the effect that these differences had on Agrarfrost's costs and price s.472 The
European Union asserts that Agrarfrost provided the necessary invoices to MINCIT during
verification, and that the verification report establishes that the authority accepted and verified these
documents together with all other supporting information.473 Separately, the European Union notes
that MINCIT, in its decision on Agrarfrost's subsequent request for direct revocation (revocation
decision), referred to the exporter's alleged failure to substantiate its adjustment claim. 474 The
European Union also observes that MINCIT issued its revocation decision in an administrative review
proceeding after the investigation had been completed. The European Union thus considers that the
"lack of substantiation" argument constituted an ex post rationalization and a post facto
justification.475
7.247. Colombia responds that MINCIT was permitted to reject Agrarfrost 's oil cost adjustment
because, as MINCIT stated in the preliminary determination and in its post-investigation revocation
decision476, the exporter did not provide documentary evidence to support its assertions and thus
did not substantiate its request .477 Specifically, Colombia contends that, throughout the
investigation, including during the verification visit, Agrarfrost failed to provide invoices related to
the purchase of the different types of oil and that, despite the European Union's assertions to the
contrary, the record of the investigation contains no such materials.478
7.6.5.2 Analysis
7.248. The parties' arguments raise the following two key issues for our consideration:
a. first, whether Agrarfrost's alleged failure to substantiate its request with invoices was , in
fact, the reason provided by MINCIT for denying the adjustment request when the
authority made its final determination on this matter during the underlying investigation;
and

470 Agrarfrost's questionnaire response, (Exhibit EU-28a (BCI)), section 6.
471 European Union's first written submission, paras. 196, 200-201, and 204; opening statement at the
first meeting of the Panel, paras. 57-59; and response to Panel question No. 5.10, paras. 145-146.
472 European Union's first written submission, paras. 133, 193-195, 197, and 203; response to Panel
question No. 5.10, paras. 136-141; and second written submission, para. 76.
473 European Union's first written submission, paras. 198-199; opening statement at the first meeting of
the Panel, para. 58; second written submission, para. 79; responses to Panel questions No. 5.9,
paras. 128-134; No. 5.10, paras. 142-144; and No. 15.3(a), para. 47; and comments on Colombia's response
to Panel question No. 15.2, paras. 17-18.
474 European Union's first written submission, paras. 201 and 204.
475 European Union's first written submission, para. 207; opening statement at the first meeting of the
Panel, para. 59.
476 Colombia's first written submission, para. 11.9; responses to Panel questions No. 5.7,
paras. 192-196 and No. 5.8, paras. 198-199.
477 Colombia's first written submission, para. 11.6; second written submission, paras. 8.23-8.25;
response to Panel question No. 15.4, para. 106; and comments on the European Union's response to Panel
question No. 15.3, para. 1.61.
478 Colombia's first written submission, para. 11.6; second written submission, paras. 8.23-8.25;
response to Panel question No. 15.4, para. 106; and comments on the European Union's response to Panel
question No. 15.3, para. 1.61.

b. second, insofar as MINCIT declined the adjustment request on grounds of insufficient
substantiation, whether the record of the investigation indicates that the authority had an
adequate basis for its decision.
7.249. We begin by considering the first question and review, in turn, the relevant facts and findings
from (a) the preliminary stage of the investigation ; (b) the final stage of the investigation; and
(c) the post-investigation administrative review procedure.
7.250. As to the preliminary stage of the investigation, we note that i n its questionnaire response
dated 28 September 2017, Agrarfrost asked for three cost-related adjustments, including one for oil
cost-related differences.479 In its exporter questionnaire, MINCIT requested respondents to provide
relevant evidence justifying any claimed adjustments 480 and Agrarfrost provided certain
explanations, data, and quantifications for its requested oil adjustment. 481 However, the exporter
did not, in its questionnaire response, provide MINCIT with any actual invoices that corroborated the
alleged oil-related cost differences.482
7.251. In its preliminary determination of 1 November 2017, MINCIT disregarded all investigated
exporters' home market sales data, including all requests for adjustme nts, because they were not
sufficiently substantiated, including by supporting evidence such as commercial invoices .483 At the
preliminary stage of the investigation, Agrarfrost's oil adjustment was therefore among the entire
set of home market sales information that MINCIT considered to be insufficiently substantiated.
7.252. In submissions to MINCIT dated 1 and 22 December 2017, Agrarfrost noted that the relevant
underlying invoices comprised a very large volume of documents; asserted that it was therefore
unable to translate and submit these materials; and requested MINCIT to conduct an on -site
verification visit to verify and confirm the existence and accuracy of the invoices supporting the
three adjustments.484
7.253. MINCIT conducted a verification visit at Agrarfrost 's facilities on 15-17 May 2018. The
parties agree that the oil adjustment was among the topics covered during the verification .
Section 2.5 of MINCIT 's verification report and annex 9 appended to the report address the oil
cost-related adjustment.485 The European Union asserts that the oil cost-related statements in the
verification report and in annex 9 demonstrate that during the verification visit Agrarfrost provided,
and MINCIT verified, all requested underlying invoices.486 Colombia disagrees and contends that the
statements in both documents reflect Agrarfrost's own unsubstantiated and unsupported arguments
and assertions.487 Specifically, Colombia asserts that MINCIT included these statements in the record
of the verification visit for transparency purposes and did not endorse or otherwise subscribe to their
content.488
7.254. While we note the parties' disagreement, our line of inquiry discussed in
paragraphs 7.248-7.249 above does not require us to determine whether the verification report and

479 Agrarfrost's questionnaire response, (Exhibit EU-28a (BCI)), section 6.
480 Dumping investigation questionnaire for foreign producers and/or exporters, (Exhibit EU-23a),
section 6.
481 Agrarfrost's questionnaire response, (Exhibit EU-28a (BCI)), section 6; Agrarfrost's questionnaire
response, Excel workbook "ventas domésticas", (Exhibit EU-28.1 (BCI)).
482 European Union's response to Panel question No. 15.3(a), para. 43.
483 Preliminary determination, (Exhibit EU-2a), section 2.1.1.
484 Agrarfrost's submission to MINCIT dated 1 December 2017, (Exhibit EU-34a (BCI));
Agrarfrost's submission to MINCIT dated 22 December 2017, (Exhibit EU-35a (BCI)), pp. 2 and 8-10.
485 Agrarfrost verification visit report, (Exhibit EU-36a); Agrarfrost verification visit report, annex 9,
(Exhibit EU-36.1a (BCI)).
486 European Union's first written submission, paras. 198-199; opening statement at the first meeting of
the Panel, para. 58; second written submission, paras. 77 and 79-82; opening statement at the second
meeting of the Panel, paras. 45-55; and responses to Panel questions No. 5.9, paras. 128-133; No. 5.10,
paras. 142-143; and No. 15.3(b), para. 48; and comments on Colombia's responses to Panel questions
No. 15.2, paras. 16-18 and No. 15.4, paras. 19-20.
487 Colombia's first written submission, para. 11.8; second written submission, paras. 8.3-8.22;
responses to Panel questions No. 5.9(a), paras. 200-201; and No. 15.2, paras. 87-101; and comments on the
European Union's responses to Panel questions No. 15.1, paras. 1.53-1.54; and No. 15.3(a), paras. 1.55-1.62.
488 Colombia's first written submission, para. 11.8; second written submission, paras. 8.3-8.22;
responses to Panel questions No. 5.9(a), paras. 200-201; and No. 15.2, paras. 87-101; and comments on the
European Union's responses to Panel questions No. 15.1, paras. 1.53-1.54; and No. 15.3(a), paras. 1.55-1.62.

annex 9 demonstrate that Agrarfrost provided the requested invoices to MINCIT during the
verification visit. Rather, at this stage of the analysis, we turn to MINCIT's statements from the final
stage of the investigation in order to assess whether MINCIT did, in fact, deny the adjustment
because it found that the request was insufficiently substantiated.
7.255. On 27 August 2018, MINCIT issued the essential facts disclosure. The disclosure document
indicates that MINCIT explicitly accepted two of Agrarfrost's three adjustment requests, namely, the
adjustments for marketing and sales costs, and packaging costs. 489 While the document
acknowledges that Agrarfrost also requested an oil adjustment 490, it neither made explicit the
decision to deny the adjustment, nor explained the reasons for such a denial. Following a separate
inquiry from Agrarfrost491, MINCIT subsequently confirmed that it had not granted the oil adjustment
but still did not explain the reasons underlying its decision.492
7.256. In its comments on the essential facts disclosure dated 10 September 2018, Agrarfrost
contested MINCIT's denial of the requested adjustment.493 The exporter referred to the information
provided in its questionnaire response and the elements that MINCIT had verified during the on-site
verification visit.
7.257. MINCIT subsequently issued a separate document responding to the interested
parties' comments on the essential facts disclosure, addressing Agrarfrost's remarks on the oil
adjustment as follows:
With regard to the adjustments to the normal value requested by Agrarfrost concerning
a product type named WP since it is not exported to Colombia, as well as by type of oil
used, we clarify that the dumping margin was not determined by type of product s in
the investigation, since types of products were not identified in the export database
from DIAN. In any event, these requests will be su bmitted for consideration by the
Committee.494
7.258. We understand MINCIT's response to mean that the authority declined the oil adjustment
because the price data contained in the DIAN database that MINCIT used to calculate the dumping
margins did not distinguish between product types but instead comprised aggregate data.
7.259. In response to questioning by the Panel on the content of MINCIT's response to
Agrarfrost's essential facts comments, Colombia asserts that:
There appears to be a drafting error in this paragraph , since the reference to the
adjustment requested on the basis of oil type does not seem relevant in this context.
Therefore, the explanation provided in the above-mentioned paragraph, referring to the
types of products and the DIAN database, is not releva nt to the issue of the oil
cost-related adjustment.
Rather, [MINCIT] rejected this request for the reason that Colombia has been giving
since the beginning of this dispute : The company could not back up its factual
allegations and claims with relevant docu ments, whether verifiable or verified during
the verification visit.495
7.260. In our view, Colombia's arguments concerning the content and meaning of
MINCIT's response to Agrarfrost's comments are not persuasive for three reasons. First, while we
accept that "dra fting errors" can and do occur, we are of the view that Colombia's assumptions
(i.e. "[t]here appears to be a drafting error in this paragraph, since the reference to the adjustment

489 Final report on essential facts (public version), (Exhibit EU-3a), section 2.4.3; Technical report on
essential facts (confidential version), (Exhibit COL-15 (BCI)), section 2.4.3.
490 Final report on essential facts (public version), (Exhibit EU-3a), section 1.10.6; Technical report on
essential facts (confidential version), (Exhibit COL-15 (BCI)), section 1.10.6.
491 Agrarfrost's submission to MINCIT dated 28 August 2018, (Exhibit EU-41 (BCI)), item 1(d).
492 MINCIT's response to Agrarfrost dated 30 August 2018, (Exhibit EU-37 (BCI)), item 1(d).
493 Agrarfrost's comments on essential facts, (Exhibit EU-25a (BCI)), section III.2.
494 Responses to comments on essential facts, (Exhibit EU-17a), section 4.
495 Colombia's response to Panel question No. 15.5, paras. 108-109. (fn omitted)

requested on the basis of oil type does not seem to be relevant"496), in and of themselves, do not
provide a sufficient basis to disregard the clear text of MINCIT's findings. Second, we note that
MINCIT's stated reason for denying the oil adjustment is consistent with the authority's general line
of reasoning during the investigation that the format of the DIAN data did not allow a type -based
analysis.497 Third, had there been an error in the drafting of MINCIT's response to
Agrarfrost's comments, MINCIT had opportunities to rectify that error in its final determination and
in the accompanying final technical report. MINCIT, however, did not correct or revise any aspect of
its prior reasoning on this issue when it issued these final documents on 9 November 2018.
7.261. To the contrary, MINCIT's assessment of the oil adjustment in the fin al technical report is
identical to the assessment in the essential facts disclosure, discussed in paragraph 7.255 above.
Thus, MINCIT acknowledged the existence of Agrarfrost's request but did not make the adjustment;
it neither made explicit the decision to deny the adjustment, nor explained the reasons for that
(implicit) decision.498
7.262. In our view, therefore, during the final stage of the investigation, MINCIT appears to have:
either provided a conclusory statement that the adjustment was not made499; or acknowledged – but
implicitly refused – the request without explaining the reasons for its decision.500 However, when it
replied directly to Agrarfrost's comments, MINCIT justified its decision to reject the request based
on the fact that its decision to use the DIAN database did not permit the authority to conduct a
product-level cost comparison.501
7.263. Having reviewed the relevant facts and findings from the investigation, we now consider
Colombia's arguments relating to the contents of MINCIT's post-investigation revocation decision .
In this regard, we note that on 1 and 11 March 2019 – i.e. several months after MINCIT had issued
the final determination in the underlying investigation – the European Commission and Agrarfrost
lodged requests for direct revocation of MINCIT's final determination. These requests sought at a
review by MINCIT, inter alia, of its decision to deny Agrarfrost's oil cost adjustment request.502 On
13 May 2019, MINCIT issued its decision rejecting the requests for administrative review and
upholding, inter alia, its earlier decision to deny the oil cost adjustment request.
7.264. Colombia explains that , under its domestic law, the direct revocation procedure is an
administrative review procedure conducted by the same authority that issued the contested
decision.503 It serves the limited purpose of : determining, upon request, whether the act of the
authority is manifestly contrary to law or to public or social interest, or causes undue harm ; and
revoking the challenged decision if one of these conditions is met.504
7.265. In dismissing the request for revocation of the decision to deny the oil adjustment, MINCIT
stated in the revocation decision that it could not establish the adjustment because
Agrarfrost's questionnaire response had failed to supply supporting evidence, including invoices,
necessary to substantiate its adjustment claim.505 MINCIT's revocation decision also stated that while
Agrarfrost indicated on the record of the verification visit that it had provided oil -related invoices,
such materials were, in fact, absent from the record of the investigation.506

496 Emphasis added.
497 See e.g. Final technical report (public version), (Exhibit EU-4a), sections 1.10.8.2 and 1.10.13.2;
Final technical report (confidential version), (Exhibit COL-16 (BCI)), sections 1.10.8.2 and 1.10.13.2; and
Responses to comments on essential facts, (Exhibit EU-17a), section 7.
498 Final technical report (public version), (Exhibit EU-4a), sections 1.10.6 and 2.4.3; Final technical
report (confidential version), (Exhibit COL-16 (BCI)), sections 1.10.6 and 2.4.3.
499 MINCIT's response to Agrarfrost dated 30 August 2018, (Exhibit EU-37 (BCI)), item 1(d).
500 Final report on essential facts (public version), (Exhibit EU-3a), section 2.4.3; Technical report on
essential facts (confidential version), (Exhibit COL-15 (BCI)), section 2.4.3; Final technical report (public
version), (Exhibit EU-4a), sections 1.10.6 and 2.4.3; and Final technical report (confidential version),
(Exhibit COL-16 (BCI)), sections 1.10.6 and 2.4.3.
501 Responses to comments on essential facts, (Exhibit EU-17a), section 4.
502 European Union's first written submission, para. 15.
503 Colombia's first written submission, para. 11.11.
504 Colombia's first written submission, fn 211; response to Panel question No. 5.7, para. 193.
505 MINCIT's revocation decision, (Exhibit EU-6a), section II.6.2. See also ibid. section II.5.3.
506 MINCIT's revocation decision, (Exhibit EU-6a), section II.6.2. See also ibid. section II.5.3.

7.266. Colombia argues that the "lack of substantiation" argument in the revocation decision
demonstrates that MINCIT denied the adjustment for the same reason in the investigation .507
According to Colombia, the content of MINCIT's revocation decision clarifies, elaborates upon, and
"complement[s]" the record of the investigation, such that the Panel must read the record of the
underlying investigation "in conjunction with" the revocation decision when evaluating
MINCIT's rationale for declining Agrarfrost's oil adjustment.508
7.267. The European Union responds, inter alia, that any "lack of substantiation" explanation that
MINCIT may have provided must be regarded as an "ex post rationalisation" because it was raised
only in MINCIT's revocation decision after the underlying investigation was completed.509
7.268. The parties' arguments raise the question of whether the Panel should consider the events
and explanations following the completion of the investigation (in this instance, the contents of
MINCIT's post-investigation revocation decision) to evaluate whether, in the investigation's final
determination, MINCIT implicitly denied the oil cost adjustment because of insufficient
substantiation. We note, in this r egard, Colombia's clarification that, under its domestic law,
MINCIT's revocation proceeding and the underlying investigation are formally separate from one
another and serve different purposes.510 Colombia has also indicated that, in the circumstances of
this case, the findings that appear in the revocation decision are not a part of the record of the
underlying investigation, are not incorporated into the final determination, and do not supplement,
alter, or otherwise supersede any reasoning contained in the final determination.511
7.269. In light of Colombia's statements that the underlying investigation and the revocation
proceeding, as well as their respective records, are separate and distinct from one another, we do
not consider it appropriate to rely on the content of the revocation decision to conclude that the
record of the investigation demonstrates that MINCIT rejected Agrarfrost's adjustment because of
insufficient substantiation. This is particularly true given that the reason that MINCIT offered for
rejecting Agrarfrost's adjustment in the revocation decision differs entirely from the reason MINCIT
provided in response to Agrarfrost's comments on the essential facts disclosure (namely, that the
DIAN database did not permit the authority to conduct a product -level cost comparison ). We are
therefore of the view that, contrary to Colombia's assertion, MINCIT's revocation decision does not
"complement", and thus cannot "be read in conjunction with", the statements made by MINCIT on
this issue during the final stage of the investigation.
7.270. The above review of the relevant facts and findings indicates that MINCIT's reasons for
denying the requested adjustment evolved during the underlying investigation . In the preliminary
determination, MINCIT denied the reques t on grounds that it was insufficiently substantiated.
Subsequently, in its responses to the comments on essential facts, MINCIT no longer asserted that
it had denied the adjustment because of insufficient substantiation but stated, instead, that the
adjustment was incompatible with t he format of MINCIT's preferred pricing data. 512
MINCIT's explanations in the responses to the comments on essential facts marked the last instance
during the investigation when the authority expressly considered the matter at issue; the final
determination does not contain any new or different reasoning on this issue, nor does it indicate that
MINCIT reversed or modified the reasoning set forth in its responses to the comments on essential
facts.
7.271. In light of the above , we consider that, contrary to Colombia 's assertions, MINCIT's stated
reason for ultimately declining the adjustment in the investigation appears to have been different
from – and unrelated to – the alleged failure to substantiate and provide supporting invoices.
Therefore, we consider that Col ombia's assertions in this regard constitute ex post rationalization
that we cannot rely upon for our present assessment. Moreover, we recall that Colombia's "lack of

507 Colombia's first written submission, para. 11.9; response to Panel question No. 5.8, para. 199.
508 Colombia's response to Panel question No. 5.7, paras. 194-195; oral response to Panel question
No. 5.7 at the first meeting of the Panel.
509 European Union's first written submission, paras. 204 and 207; opening statement at the first
510 Colombia's response to Panel question No. 5.7, para. 193.
511 Colombia's oral response to Panel question No. 5.7 at the first meeting of the Panel.
512 This is consistent with the fact that, where appropriate, MINCIT made a specific and express "lack of
substantiation" determination in response to the adjustment-related comments on the disclosure of essential
facts. Specifically, as discussed in paragraphs 7.207-7.210 above, MINCIT did so with respect to certain
(Aviko) but not all (Agrarfrost and Mydibel) of the exporters' product mix adjustments.

substantiation" argument is the only ground on which it seeks to rebut the European Union's claim.
Given that we reject this argument, and absent any other rebuttal arguments, we are unable to
conclude that MINCIT had a proper basis to deny Agrarfrost's oil cost-related adjustment request.
7.6.5.3 Conclusion
7.272. Based on the above, we find that the Europe an Union has established that Colombia acted
inconsistently with Article 2.4 because, by denying Agrarfrost's oil cost-related adjustment request,
MINCIT failed to make a "fair comparison".
7.6.6 Alleged failure to specify necessary information and imposition of an unreasonable
burden of proof
7.273. The European Union argues that Colombia acted inconsistently with its obligations under the
last sentence of Article 2.4 of the Anti-Dumping Agreement because MINCIT failed both to indicate
to the exporters what information was necessary to support their adjustment requests, and imposed
an unreasonable burden of proof on the exporters to substantiate these requests .513 In particular,
the European Union contends that despite the exporters ' submissions containing e xplanations and
corroborating data, MINCIT rejected the requested adjustments without seeking clarifications or
information from the exporters.514
7.274. Colombia responds that this claim is purely consequential and must fail because it has
rebutted the European Union's principal claim that MINCIT acted inconsistently with the "fair
comparison" requirement of Article 2.4.515
7.275. In our view, the facts underlying the European Union's claim at hand are not materially
different from those that serve as the basis for its claim that MINCIT did not make a "fair comparison"
as required by the first sentence of Article 2.4. Having already found that MINCIT acted
inconsistently with the "fair comparison" requirement of Article 2.4, we do not consider it necessary
to make further findings on the European Union's claim under the last sentence of Article 2.4 in
order to provide a positive resolution to the dispute before us.
7.6.7 Conclusion
7.276. Based on the fore going, we find that our terms of reference encompass the
European Union's packaging cost-related adjustment claim under Article 2.4. Further, we conclude
that the European Union has established that Colombia acted inconsistently with its Article 2.4
obligation to make a "fair comparison" by denying:
a. the product mix-related adjustments requested by Agrarfrost, Aviko and Mydibel;
1. Mydibel's packaging cost-related adjustment request; and
b. Agrarfrost's oil cost-related adjustment request.
7.277. We do not consider it necessary to make additional findings as to whether Colombia also
acted inconsistently with its obligations under the last sentence of Article 2.4 in order to provide a
positive resolution to the dispute before us.
7.7 Claims under Articles 3.1, 3. 2, 3.4, and 3.5 of the Anti -Dumping Agreement:
MINCIT's injury and causation determinations
7.7.1 Introduction
7.278. The European Union claims that MINCIT 's determinations concerning the existence of
material injury as well as the causal link are inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the
Anti-Dumping Agreement on several grounds. The European Union argues that MINCIT's entire

513 European Union's first written submission, paras. 133 and 206-208.
514 European Union's first written submission, para. 207.
515 Colombia's first written submission, paras. 12.3-12.4.

injury and causation analysis is invalidated by an "overarching " error or flaw because it included
imports from the countries unde r investigation that were not found to have been "dumped" in its
evaluation ("non-dumped imports").516 According to the European Union, this error in the "global
approach"517 adopted by MINCIT is "of such magnitude and is so intrinsic to the remainder of the
injury and causation analysis" that it leads to an "independent violation" of Article 3.1 as well as
"consequential violations" of Articles 3.2, 3.4, and 3.5518 of the Anti-Dumping Agreement.
7.279. Separately – and in addition to its "overarching error" claim – the European Union also
presents other discrete grounds in support of its claims challenging MINCIT's analysis of: "price
effects" under Articles 3.2 and 3.1519; impact on the domestic industry under Articles 3.4 and 3.1520;
and the causal link under Articles 3.5 and 3.1.521
7.280. Colombia, for its part, responds to each of the European Union's claims and maintains,
ultimately, that the European Union has failed to make a prima facie case that MINCIT acted
inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement in the underlying
investigation.522
7.281. We begin our analysis by examining the European Union's claim of an "overarching" error
under Articles 3.1, 3.2, 3.4, and 3.5 and subsequently address the other grounds presented by the
European Union in support of its claims under Articles 3.1, 3.2, 3.4, and 3.5.
7.7.2 The European Union's "overarching" error claim under Articles 3.1, 3.2, 3.4, and 3.5
of the Anti-Dumping Agreement
7.282. As a factual matter, the parties agree 523 and the record confirms524 that MINCIT based its
injury and causation determinations on all investigated imports, including those from exporters for
whom it determined: (a) de minimis final margins of dumping (Clarebout (Belgium), Agristo
(Belgium), and Other Companies (Belgium) ) ("de minimis margin imports"); and (b) negative final
margins of dumping (Ecofrost (Belgium ) and Farm Frites (the Netherlands) ) ("negative margin
imports").
7.283. The European Union claims that MINCIT acted inconsistent ly with Articles 3.1, 3.2, 3.4,
and 3.5 by erroneously treating de minimis and negative margin imports as "dumped imports" for
purposes of its injury and causation analyses .525 Colombia presents a two -pronged response,
maintaining, first, that the term "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 includes within
its scope de minimis margin imports.526 Second, as to negative-margin imports, Colombia appears
to accept that they do not constitute "dumped imports" for purposes of Article 3, but it nevertheless

516 European Union's first written submission, para. 248.
517 European Union's opening statement at the second meeting of the Panel, paras. 56-57.
518 European Union's first written submission, para. 212.
519 The European Union argues that MINCIT's "price effects" analysis is inconsistent with Articles 3.2
and 3.1, inter alia, because it did not include adequate data relating to domestic prices and did not adequately
examine whether there had been significant price undercutting, price depression, or price suppression by the
dumped imports. See e.g. European Union's first written submission, para. 213; and second written
submission, paras. 106-128.
520 The European Union considers MINCIT's "impact" analysis to be inconsistent with Articles 3.4
and 3.1, inter alia, because it only examined 7 of the 15 economic factors and indices having a bearing on the
state of the industry and failed to conduct an objective examination of all the relevant factors. (See e.g.
European Union's first written submission, para. 214; and second written submission, paras. 129-138).
521 For the European Union, MINCIT failed to adequately examine the causal link between the alleged
material injury and the alleged dumping thus acting inconsistently with Articles 3.5 and 3.1. (See e.g.
European Union's first written submission, para. 215; and second written submission, paras. 139-142).
523 Colombia's response to Panel question No. 6.1; European Union's response to Panel question
No. 6.1; European Union's first written submission, paras. 245-246; and Colombia's first written submission,
para. 13.11.
524 Final technical report (public version), (Exhibit EU-4a), pp. 81-84 and 89-90.
525 European Union's response to Panel question No. 6.2, para. 165.
526 Colombia's first written submission, para. 13.14.

maintains that the treatment of a "small volume" of negative margin imports as "dumped imports"
by MINCIT does not undermine its injury and causation determinations.527
7.284. As we see it, the first point of disagreement between the parties relates to whether imports
from exporters that have been assigned a de minimis dumping margin can be considered to be
"dumped imports" within the meaning of Article 3, such that an authority may include such
"de minimis margin imports" in its analysis of injury and causation.528
7.285. Colombia argues that MINCIT 's interpretation of the term "dumped imports" as including
de minimis margin imports is a "permissible" interpretation within the meaning o f the second
sentence of Article 17.6(ii) of the Anti -Dumping Agreement.529 The second sentence of
Article 17.6(ii) concerns situations "[w]here the panel finds that a relevant provision of the
Agreement admits of more than one permissible interpretation". The first sentence of
Article 17.6(ii) requires that panels "shall interpret the relevant provisions of the Agreement in
accordance with customary rules of interpretation of public international law".
7.286. The question of whether a relevant provision admits of more than one "permissible"
interpretation – the situation contemplated under the second sentence – thus depends on whether
more than one such interpretation emerges when the Panel examines the provision in accordance
with the "customary rules of interpretation of public international law" – that is, when the Panel
applies the first sentence of Article 17.6(ii). As the starting point of our interpretative analysis, we
must therefore interpret the term "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 in accordance
with the customary rules of interpretation of public international law, as reflected in Articles 31
and 32 of the Vienna Convention.530
7.287. Article 3.1 requires that a "determination of injury … shall be based on positive evidence and
involve an objective examination of both (a ) the volume of the dumped imports and the effect of
the dumped imports on prices in the d omestic market for like products, and (b ) the consequent
impact of these imports on domestic producers of such products" .531 Article 3.2 focuses on the
volume and price effects of "dumped imports". With respect to "the volume of the dumped
imports"532, the provision requires that "the investigating authorities shall consider whether there
has been a significant increase in dumped imports, either in absolute terms or relative to production
or consumption in the importing Member" . With regard to the "effect of the dumped imports on
prices"533, Article 3.2 requires that "the investigating authorities shall consider whether there has
been a significant price undercutting by the dumped imports as compared with the price of a like
product of the importing Member, or whether the effect of such imports is otherwise to depress
prices to a significant degree or prevent price increases, which otherwise would have occurred, to a
significant degree". 534 Article 3.4 stipulates certain requirements for an investigating
authority's "examination of the impact of the dumped imports on the domestic industry concerned".
Finally, Article 3.5 requires the "demonstration of a causal relationship between the dumped imports
and the injury to the domestic industry".535
7.288. The text of Articles 3.1, 3.2, and 3.4 indicates that an inves tigating authority 's ultimate
determination of injury is focused on the volume of the "dumped imports" and their effect on prices
in the domestic market, as well as the impact of "dumped imports" on the domestic industry.

527 Colombia's first written submission, para. 13.41. According to Colombia, a "contextual analysis" of
Article 3 of the Anti-Dumping Agreement, in light of Articles 2 and 17.6(i) of the Anti-Dumping Agreement and
Article 11 of the DSU, "confirms that the objective of the injury disciplines is to ensure the objectivity of the
authority's analysis" and reveals "that not every error or inaccuracy gives rise to a violation of Article 3.1 of the
Anti-Dumping Agreement, but rather only those errors or inaccuracies that are of such magnitude that they
undermine the objectivity of the overall injury and causation examination." (Colombia's response to Panel
question No. 6.6, para. 223 (emphasis original); first written submission, paras. 13.32-13.37).
528 In the event that we conclude, as a matter of treaty interpretation, that imports from exporters with
a de minimis margin of dumping do not fall within the scope of the term "dumped imports" in Article 3, we
agree with the findings of the panel in EC – Salmon (Norway) that the factual issue of "the volume of such
imports is irrelevant". (Panel Report, EC – Salmon (Norway), fn 763).
529 Colombia's response to Panel question No. 6.4, para. 218.
530 See paragraph 7.1 above.
531 Emphasis added.
532 Emphasis added.
533 Emphasis added.
534 Emphasis added.
535 Emphasis added.

Article 3.5 requires investigating authorities to further examine whether the "dumped imports" are
"causing" injury to the domestic industry. Given that all of these provisions are aimed at an
investigating authority's determination of injury caused by "dumped imports", we consider that the
term "dumped imports" carries the same meaning across these provisions.
7.289. Article 3 does not define the term "dumped imports". For Colombia, the ordinary meaning
of the term "dumped imports" is set out in Article 2.1536, which provides, in relevant part, th at "a
product is to be considered as being dumped, i.e. introduced into the commerce of another country
at less than its normal value, if the export price of the product exported from one country to another
is less than the comparable price, in the ordinary course of trade, for the like product when destined
for consumption in the exporting country." According to Colombia "had the drafters of the
Anti-Dumping Agreement wanted to limit the scope of the term 'dumped imports' in Articles 3.1,
3.2, 3.4, and/or 3.5, they could have readily done so in an explicit manner", e.g. by inserting a
"qualifier" or a "footnote". In contrast to these provisions, Colombia notes that, in Articles 3.3 and
9.4 of the Anti -Dumping Agreement, the drafters "ex plicitly" limited dumping margins as those
above the de minimis threshold.537
7.290. The European Union, for its part, responds that Colombia's "approach ignores the role and
function of the investigation in the overall framework established by the Anti -Dumping Agreement
which contain s guarantees to protect both [the] domestic industry and companies subject to
investigations".538 Questioning the relevance of the contextual elements identified by Colombia, the
European Union submits, instead, that it "follows from the logic of Article 1 read together with
Article 5 of the Anti -Dumping Agreement that any determination of injury under Article 3 of the
Anti-Dumping Agreement leading to the imposition of an anti -dumping measure can only be made
in respect of imports which have been the subject of an investigation ".539 For the European Union,
this "necessarily precludes consideration of th ose imports in respect of which an investigation was
or ought to have been immediately terminated in accordance with the terms of Article 5.8 of the
Anti-Dumping Agreement", and "[h]ence it excludes imports in respect of which the dumping margin
was de minimis".540
7.291. We note that the parties identify different textual and contextual elements in support of their
positions. Our task, under the applicable rules of interpretation as reflected, inter alia, in
Article 31(1) of the Vienna Convention, is to interpret the Anti-Dumping Agreement "in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in
light of its object and purpose". Furthermore, the interpretative principle of effectiveness which flows
from Article 31 of the Vienna Convention, requires us to seek to interpret the treaty as a whole and
to read all applicable provisions in a way that gives meaning to all of them, harmoniously.541 We are
thus not free to adopt a reading that would result in reduci ng treaty provisions to redundancy or
inutility.542
7.292. In this case, we consider that Article 5.8 provides important context for the interpretation of
the term "dumped imports" in Article 3. Article 5 is entitled "Initiation and Subsequent
Investigation". Article 5.1 refers to "an investigation to determine the existence, degree and effect
of any alleged dumping". Article 5 thus regulates an investigating authority 's initiation and
subsequent investigation to determine the "existence, degree and effect of any alleged dumping".543
Therefore, in addition to other provisions such as Article 2.1, the relevant sub-paragraphs of Article 5

536 Colombia's second written submission, paras. 9.9-9.11.
537 Colombia's second written submission, para. 9.31; response to Panel question No. 6.3, para. 206.
538 European Union's response to Panel question No. 6.2, para. 168.
539 European Union's response to Panel question No. 6.2, para. 165.
540 European Union's response to Panel question No. 6.2, para. 165.
541 See e.g. Appellate Body Reports, Argentina – Footwear (EC), para. 81; and Korea – Dairy, para. 81.
We are not persuaded by Colombia that the question before us is "whether the 'contextual' reading of other
provisions of the Anti-Dumping Agreement could contradict the ordinary meaning of a term" that is reflected,
in this instance, in Article 2.1 of the Anti-Dumping Agreement. (Colombia's second written submission,
para. 9.15). In our view, the ordinary meaning of treaty terms is linked inextricably with context and we agree
with prior adopted DSB reports that "[i]nterpretation pursuant to the customary rules codified in Article 31 of
the Vienna Convention is ultimately a holistic exercise that should not be mechanically subdivided into rigid
components". (Appellate Body Report, EC – Chicken Cuts, para. 176).
542 See e.g. Appellate Body Report, US – Gasoline, p. 23.
543 Emphasis added.

are applicable to and regulate the entire investigation to determine the existence, degree, and effect
of any alleged dumping.544 The second and third sentences of Article 5.8 provide that:
There shall be immediate termination in cases where the authorities determine that the
margin of dumping is de minimis, or that th e volume of dumped imports, actual or
potential, or the injury, is negligible. The margin of dumping shall be considered to be
de minimis if this margin is less than 2 per cent, expressed as a percentage of the
export price.
7.293. The definition of the word "immediate" includes "occurring, accomplished, or taking effect
without delay or lapse of time; done at once; instant"545, and the definition of the word "termination"
includes the "action of putting an end to something or of bringing something to a close ".546
An "investigation", as discussed above, is aimed at determining the "existence, degree and effect of
any alleged dumping". The requirement to "immediate[ly] terminat[e]"547 an investigation pursuant
to Article 5.8 thus requires an authority to end its investigation without delay – or immediately – as
soon as it determines that the margin of dumping is de minimis, i.e. less than 2 % of the export
price. Furthermore, the use of the term "dumped imports" in Article 3 indicates that the
determination of injury u nder that provision concerns the effects of any dumping that has been
found to exist. In this sense, the determination of injury follows – and takes into account – the
determination of the existence and degree of any alleged dumping (i.e. the determination of the
margin of dumping).548
7.294. Once a producer or exporter has been assigned a de minimis margin of dumping, the
continued treatment of any imports from that producer or exporter as "dumped imports" , in any
subsequent injury and causation analyses under Article 3, would render ineffective the requirement,
under Article 5.8, to "immediate[ly] terminate" the investigation.549 Article 5.8 thus provides useful
context for the interpretation of the term "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 as
excluding all imports from producers or exporters that have been assigned a de minimis margin of
dumping.
7.295. In support of its position that there is "no link" between Article 5.8 and Article 3, Colombia
refers to Articles 9.4 and 3.3 to stress that when drafters did decide to qualify the dumping margins
as those above the de minimis threshold, they did so expressly.550
7.296. Article 3.3 states, in relevant part, as follows:
Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they determine that (a ) the margin of du mping
established in relation to the imports from each country is more than de minimis as
defined in paragraph 8 of Article 5 and the volume of imports from each country is not
negligible.

544 We note that Article 1 of the Anti-Dumping Agreement states that an "anti-dumping measure shall
be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations
initiated and conducted in accordance with the provisions of this Agreement". (fn omitted)
545 Oxford Dictionaries online, definition of "immediate"
https://www.oed.com/view/Entry/91838?redirectedFrom=immediate#eid (accessed 4 May 2022), adj.,
meaning 4.b.
546 Oxford Dictionaries online, definition of "termination"
https://www.oed.com/view/Entry/199427?redirectedFrom=termination#eid (accessed 4 May 2022),
meaning 2.a.
547 Emphasis added.
548 This is supported by Article 3.4, which states that the "examination of the impact of the dumped
imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and
indices … including … the magnitude of the margin of dumping". (emphasis added)
549 See e.g. Panel Report, EC – Salmon (Norway), para. 7.627 (noting that there is "no rational basis on
which the imports which are not legally cognizable as 'dumped' because a de minimis margin has been
calculated for the producer/exporter in question could be included in the volume of dumped imports taken into
account in assessing the question of injury. In our view, the consequences from a determination that there is
no legally cognizable dumping must be taken into account in the injury analysis").
550 Colombia's response to Panel question No. 6.3, para. 204; second written submission, para. 9.23.

The provision addresses the specific circumstances under which inve stigating authorities may
cumulatively assess the effects of imports of a product from more than one country that are
simultaneously subject to anti -dumping investigations. While both parties rely on Article 3.3 as
context for purposes of interpreting Arti cles 3.1, 3.2, 3.4, and 3.5, neither contends that the
provision is directly applicable to the case at hand. Moreover, we note that Article 3.3 is limited to
enumerating the specific conditions for cumulation of the effects of the imports from more than one
country and, in this sense, has a narrower scope than Articles 3.1, 3.2, 3.4, and 3.5.551
7.297. Article 9.4, together with Article 6.10, imposes certain requirements on investigating
authorities when they limit their examination to a reasonable number o f interested parties or
products by using samples in cases where the number of exporters, producers, importers or types
of products involved is so large as to make the determination of individual margins of dumping
"impracticable". In such cases, Article 9.4 prescribes certain limits on the anti -dumping duties
applied to imports from exporters or producers that are not included in the examination (the
so-called "all-other's" rate). For determining these limits, the provision clarifies that "the authorities
shall disregard for the purpose of this paragraph any zero and de minimis margins and margins
established under the circumstances referred to in paragraph 8 of Article 6". Similar to Article 3.3,
Article 9.4 therefore also has a different scope than Articles 3.1, 3.2, 3.4, and 3.5. The latter
provisions concern an investigating authority's determination of injury caused by "dumped imports"
from producers and exporters that are examined by an investigating authority. By contrast,
Article 9.4 focuses on the determination of the so-called "all others" rate, i.e. the anti-dumping duty
that is applied to imports from exporters or producers that are not examined by an investigating
authority.
7.298. Given that the specific situations contemplated under Articles 9.4 and 3 .3 have a
considerably different – and narrower – scope than an investigating authority's overall determination
of injury and causation pursuant to Articles 3.1, 3.2, 3.4, and 3.5, we disagree with Colombia that
the context provided by Articles 9.4 and 3.3 establishes that there is "no link" between Article 5.8
and Article 3. Rather, the fact that Articles 9.4 and 3.3 refer to Article 5.8 and "de minimis margins",
and make Article 5.8 operational in the specific situations contemplated u nder these provisions
highlights to us the contextual relevance of Article 5.8 for purposes of the general injury and
causation determinations under Article 3.552
7.299. Colombia also relies upon the panel report in Canada – Welded Pipe in support of its position
that the notion of "dumping" does not have a de minimis component.553 However, the part of the
panel's findings that Colombia relies upon concerns the interpretation of the term "dumping" for the
purposes of Article 7.1(ii), which is limited to the application of provisional measures by investigating
authorities.554 We note that the same panel also evaluated Chinese Taipei's claim that Canada acted
inconsistently with Articles 3.1, 3.2, 3.4, 3.5, and 3.7 by treating imports from exporters determined
to have de minimis margins of dumping as "dumped imports" within the meaning of these
provisions.555 In finding against Canada on this issue, the panel stated that "Article 5.8 effectively
means that there is no legally cognizable dumping by an exporter with a final de minimis margin of
dumping" and that, therefore, "imports from that exporter should not be treated as 'dumped' for the
purpose of the analysis and final determi nations of injury and causation". 556 The findings in
Canada – Welded Pipe therefore do not support Colombia's position.
7.300. Noting that "only a final determination of a de minimis margin of dumping … triggers
immediate termination under Article 5.8"557, Colombia explains that, under its legal system, a "final
determination" of dumping margins does not occur until the end of the investigation, i.e. in the final
report or determination. Colombia thus questions how the requirement under Article 5.8 to

551 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 220.
552 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 220.
553 Colombia's response to Panel question No. 6.3, para. 205 (referring to Panel Report,
Canada – Welded Pipe, para. 7.59).
554 Colombia acknowledges that the Panel's findings at issue were made in a "slightly different context".
(Colombia's response to Panel question No. 6.3, para. 205). See also Panel Report, Canada – Welded Pipe,
para. 7.64 (noting that "it is only a final determination of a de minimis margin of dumping that triggers
immediate termination under Article 5.8").
555 Panel Report, Canada – Welded Pipe, para. 7.79.
556 Panel Report, Canada – Welded Pipe, para. 7.83.
557 Colombia's response to Panel question No. 6.3, para. 209 (quoting Panel Report, Canada – Welded
Pipe, para. 7.64).

immediately terminate an investigation would apply when an authority legitimately determines a
de minimis margin for a producer or exporter , at the same time as the authority makes its
determination of injury and causation. 558 Referring to the findings in Mexico – Anti-Dumping
Measures on Rice, Colombia asserts that " the only way to terminate immediately an investigation,
in respect of producers or exporters for which a de minimis margin of dumping is determined, is to
exclude them from the scope of the order".559
7.301. We note, first, that, contrary to Colombia's assertion, the findings in Mexico – Anti-Dumping
Measures on Rice did not concern the situation "when an authority legitimatel y determines the
de minimis margins of dumping at the end of the investigation, at the same time as the
determination of injury and causation".560 Instead, the interpretive issue in that dispute, inter alia,
was whether the term "margin of dumping" in Article 5.8 "refers to the individual margin of dumping
of an exporter or producer rather than to a country -wide margin of dumping".561 As to the specific
factual situation in that dispute, the finding that "the only way to terminate immediately an
investigation, in respect of producers or exporters for which a de minimis margin of dumping is
determined, is to exclude them from the scope of the order"562 was made in light of the observation
that, "for the purposes of Article 5.8, there is one investigation and not as many investigations as
there are exporters or foreign producers" .563 This is different from the scenario now presented by
Colombia where an authority determines the de minimis margins of dumping at the end of the
investigation, at the same time as its determination of injury and causation.
7.302. Moreover, we observe that althoug h Article 5.8 requires immediate termination of an
investigation in certain situations, the provision does not prescribe the specific manner in which this
termination is to be carried out. In other words, the provision prescribes the end but leaves the
choice of means to achieve that end to investigating authorities. While investigating authorities thus
enjoy certain freedom to structure and conduct their investigations as they consider appropriate,
this cannot be used as a justification for non -compliance with the unambiguous requirement under
Article 5.8 to terminate immediately an investigation in cases where the authorities determine that
the margin of dumping is de minimis.564 As we have found above, once a producer or exporter has
been assigned a de minimis margin of dumping, the continued treatment of any imports from that
producer or exporter as "dumped imports", in any subsequent injury and causation analyses under
Article 3, would render ineffective the requirement, under Article 5.8, to "immediate[ly] terminate"
the investigation.
7.303. We therefore disagree with Colombia that an interpretation of the term "dumped imports"
as including de minimis margin imports is "permissible" within the meaning of the second sentence
of Article 17.6(ii) of the Anti -Dumping Agreement.565 Instead, our interpretation of the
Anti-Dumping Agreement leads us to agree with prior adopted DSB reports that the context provided
by "Article 5.8 means that there is no legally co gnizable dumping by an exporter with a final

558 Colombia's response to Panel question No. 6.3, para. 210.
559 Colombia's response to Panel question No. 6.3, para. 210 (quoting Appellate Body Report,
Mexico – Anti-Dumping Measures on Rice, para. 219).
560 Colombia's response to Panel question No. 6.3, para. 210.
561 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 216.
562 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219. (emphasis original)
563 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 218. We also note the
Appellate Body's observation that, in that case, "the order establishing anti-dumping duties came after the final
determination of a margin of dumping of zero per cent was made for Farmers Rice and Riceland [(the exporters
at issue)], but the order nevertheless covered these exporters." (Appellate Body Report,
Mexico – Anti-Dumping Measures on Rice, para. 219 (emphasis original)).
564 Panel Report, EC – Salmon (Norway), para. 7.628 (noting that "Article 5.8 requires termination of
the investigation upon a determination of de minimis margins for imports from a particular foreign producer or
exporter, and thus leads to the conclusion that there is no legally cognizable dumping. A consistent
interpretation of the term 'dumped' requires that such imports be excluded from the 'dumped
imports' considered in the analysis of injury (and causation, of course))."
565 Colombia's response to Panel question No. 6.4, para. 218. Given our unambiguous conclusion
resulting from the interpretative exercise under Article 31 of the Vienna Convention, we do not consider it
necessary to have recourse to the supplementary means of interpretation within the meaning of Article 32 of
the Vienna Convention, including the preparatory work of the Anti-Dumping Agreement, and the other
interpretative elements that are presented by the parties.

de minimis margin of dumping", and, "[a]ccordingly, imports from that exporter may not be treated
as 'dumped imports' for the purpose of the Article 3 injury analysis".566
7.304. Turning to the inclusion of negative margin imports – i.e. imports from exporters with overall
negative dumping margins – in MINCIT's injury and causation analyses, we note that Colombia does
not contest that such imports do not constitute "dumped imports" for purposes of Articles 3.1, 3.2,
3.4, and 3.5. Colombia instead argues that the treatment of a "small volume" of negative margin
imports as "dumped imports" by MINCIT does not undermine the objectivity of its injury and
causation analyses.567 The issue of whether it is permissible to treat imp orts from exporters with
overall negative margins as "dumped" for purposes of the injury and causation analyses is not, in
our opinion, a question of fact that is to be addressed in light of the circumstances in different
investigations. Instead, we consid er that the issue relates to the legal interpretation of the term
"dumped imports".568 On the latter point, even Colombia does not argue that such negative margin
imports constitute "dumped imports" for purposes of Article 3 and, in any event, we cannot see how
an unbiased and objective investigating authority could have included imports from exporters with
negative overall margins in its assessment of the injury caused by "dumped imports".
7.305. For the above reasons, we find that the European Union has established that Colombia acted
inconsistently with its obligations under Articles 3.1, 3.2, 3.4, and 3.5, because MINCIT included in
its injury and causation determinations imports from the exporters that were determined to
have: (a) final de minimis margins of dumping (Clarebout (Belgium), Agristo (Belgium), and Other
Companies (Belgium)); and ( b) final negative margins of dumping (Ecofrost (Belgium ) and Farm
Frites (the Netherlands)).
7.7.3 European Union's other claims under Articles 3.1, 3.2, 3.4, and 3.5
7.306. In addition to its "overarching" error claim examined above, the European Union also
presents other discrete grounds in support of its claims challenging MINCIT's analysis of: "price
effects" under Articles 3.2 and 3.1569; impact on domestic industry unde r Articles 3.4 and 3.1 570;
and causal link under Articles 3.5 and 3.1. 571 In response to questioning by the Panel, the
European Union stated that, "should the Panel uphold the overarching claim, the European Union
would not consider it essential for the Panel to make finding[s] on the other grounds in support of
its claims of a violation of Article 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement".572 In light of
this clarification by the European Union, and having found in favour of the European Union with
respect of its claim relating to the "overarching" flaw in MINCIT's injury and causation
determinations, the Panel is not called upon to make furth er findings with respect to the other
grounds presented by the European Union in support of its claims challenging MINCIT's analysis of
the "price effects" under Articles 3.2 and 3.1; the impact on domestic industry under Articles 3.4
and 3.1; and the causal link under Articles 3.5 and 3.1.
7.7.4 Conclusion
7.307. Based on the foregoing, we find that the European Union has established that Colombia
acted inconsistently with its obligations under Articles 3.1, 3.2, 3.4, and 3.5, because MINCIT
included in its injury and causation determinations imports from the exporters that were determined
to have: (a) final de minimis margins of dumping (Clarebout Potatoes (Belgium), Agristo (Belgium),

567 Colombia's first written submission, para. 13.41. According to Colombia, a "contextual analysis" of
Article 3 of the Anti-Dumping Agreement, in light of Articles 2 and 17.6(i) of the Anti-Dumping Agreement and
Article 11 of the DSU, "confirms that the objective of the injury disciplines is to ensure the objectivity of the
authority's analysis" and reveals "that not every error or inaccuracy gives rise to a violation of Article 3.1 of the
Anti-Dumping Agreement, but rather only those errors or inaccuracies that are of such magnitude that they
undermine the objectivity of the overall injury and causation examination". (Colombia's response to Panel
question No. 6.6, para. 223 (emphasis original); first written submission, paras. 13.32-13.37).
568 See e.g. Panel Report, EC – Salmon (Norway), para. 7.628.
569 See e.g. European Union's first written submission, para. 213; and second written submission,
paras. 106-128.
570 See e.g. European Union's first written submission, para. 214; and second written submission,
paras. 129-138.
571 See e.g. European Union's first written submission, para. 215; and second written submission,
paras. 139-142
572 European Union's response to Panel question No. 10.1, para. 378. (emphasis added)

and Other Companies (Belgium)); and ( b) final negative margins of dumping (Ecofrost
(Belgium) and Farm Frites (the Netherlands)).
7.308. In light of this finding, we are not called upon to make further findings with respect to the
other grounds presented by the European Union in support of its claims challenging
MINCIT's analysis of the "price effects" under Articles 3.2 and 3.1; the impact on domestic industry
under Articles 3.4 and 3.1; and the causal link under Articles 3.5 and 3.1.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set out in this Report, we conclude as follows:
a. with respect to the European Union's claims concerning MINCIT's decision to initiate the
underlying investigation:
i. the European Union has not established that Colombia acted inconsistently with
Article 5.3 of the Anti-Dumping Agreement because MINCIT faile d to verify that
there was "sufficient" evidence to initiate the investigation with respect to the full
range of products covered by tariff subheading 2004.10.00.00;
ii. the European Union has not established that Colombia acted inconsistently with
its obligations under Article 5.3 because MINCIT did not have "sufficient" evidence
demonstrating that FEDEPAPA represented the domestic producers of the "like"
product so as to justify initiating the underlying investigation;
iii. the European Union has established that Colombia acted inconsistently with
Article 5.3 of the Anti -Dumping Agreement because, by failing to examine
whether the use of third -country sales prices, instead of domestic sales prices,
was "appropriate" in the specific facts and circumstances of the in vestigation at
issue, MINCIT did not examine the "adequacy" of the evidence in the application
to determine whether there is "sufficient" evidence to justify the initiation of the
underlying investigation;
iv. the European Union has not established that Colomb ia acted inconsistently with
its obligations under Article 5.3 because the evidence of injury examined and
relied upon by MINCIT was insufficient to justify the initiation of the underlying
investigation;
v. the European Union has not established that Colomb ia acted inconsistently with
its obligations under Article 5.3 because the evidence of causal link examined and
relied upon by MINCIT was insufficient to justify the initiation of the underlying
investigation; and
vi. having found that Colombia acted inconsist ently with its obligations under
Article 5.3, the Panel does not consider it necessary to make additional findings
concerning the European Union's claim under Article 5.8 of the Anti -Dumping
Agreement in order to provide a positive resolution to the present dispute.
b. With respect to the European Union's claims concerning the confidential treatment of
certain information by MINCIT:
i. the European Union has established that Colombia acted inconsistently with its
obligations under Article 6.5 of the Anti-Dumping Agreement with respect to the
redacted information in section d(i) of FEDEPAPA's revised application because
MINCIT granted confidential treatment to this information without a showing of
"good cause" by the applicant. Given this finding of inconsistency, the Panel does
not consider it necessary to make further findings on the European Union's claim
under Article 6.5.1 concerning the information in section d(i) of the revised
application in order to provide a positive resolution to the present dispute;

ii. the European Union has not established that Colombia acted inconsistently with
its obligations under Article 6.5 in respect of the information contained in
annex 10 of the revised application because the European Union has not
demonstrated: (a) that the applicant failed to show the necessary "good cause"
for the confidential treatment requested; and (b) that MINCIT did not objectively
assess the showing of "good cause" as the basis of granting confidential
treatment; and
iii. the European Union has established that Colombia acted inconsistently with its
obligations under Article 6.5.1 of the Anti -Dumping Agreement with respect to
the information contained in annex 10 of FEDEPAPA's revised application
because: MINCIT did not " require" the applicant to " furnish" non -confidential
summaries of the confidential information contained in annex 10; and, to the
extent that this information was not susceptible of summary, a statement of the
reasons as to why summarization was not possible was not provided.
c. With respect to the E uropean Union's claims concerning the alleged use of "facts
available" by MINCIT:
i. the European Union has established that Colombia acted inconsistently with its
obligations under Article 6.8 of the Anti -Dumping Agreement because MINCIT
disregarded the expo rt prices that the exporters had provided in their
questionnaire responses and, instead, elected to use export prices extracted from
the DIAN database to make its dumping determination; and
ii. having found that Colombia acted inconsistently with its obligatio ns under
Article 6.8, the Panel does not consider it necessary to make additional findings
as to whether Colombia also acted inconsistently with its obligations under
paragraphs 3 and 6 of Annex II and Article 2.1 in order to provide a positive
resolution to the present dispute.
d. With respect to the European Union's claims concerning MINCIT's assessment of the
exporters' requests for adjustments:
i. the European Union has established that Colombia acted inconsistently with its
obligation to make a "fair compari son" under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied the product mix -related adjustments
requested by Agrarfrost, Aviko, and Mydibel;
ii. the European Union's claim under Article 2.4 of the Anti -Dumping Agreement
concerning Mydibel's packaging cost-related adjustment request falls within the
Panel's terms of reference;
iii. the European Union has established that Colombia acted inconsistently with its
obligation to make a "fair comparison" under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied Mydibel's packaging cost-related adjustment
request;
iv. the European Union has established that Colombia acted inconsistently with its
obligation to make a "fair comparison" under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied Agrarfrost's oil cost -related adjustment
request; and
v. having found that Colombia acted inconsistently with its obligation to make a "fair
comparison" under Article 2.4, the Panel does not consider it necessary to make
additional findings as to whether Colombia also acted inconsistently with its
obligations under the last sentence of Arti cle 2.4 in order to provide a positive
resolution to the present dispute.

e. With respect to the European Union's claims concerning MINCIT's injury and causation
determinations:
i. the European Union has established that Colombia acted inconsistently with its
obligations under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement
because MINCIT included in its injury and causation determinations imports from
the exporters that were determined to have: (a) final de minimis margins of
dumping (Clarebout (Be lgium), Agristo (Belgium), and Other Companies
(Belgium)); and (b) final negative margins of dumping (Ecofrost (Belgium) and
Farm Frites (the Netherlands)); and
ii. having found that Colombia acted inconsistently with its obligations under
Articles 3.1, 3.2, 3.4, and 3.5, the Panel is not called upon to make further
findings with respect to the other grounds presented by the European Union in
support of its claims challenging MINCIT's analysis of the "price effects" under
Articles 3.2 and 3.1; the impact on domestic industry under Articles 3.4 and 3.1;
and the causal link under Articles 3.5 and 3.1.
8.2. Pursuant to Article 19.1 of the DSU, we recommend that Colombia bring its measures into
conformity with its obligations under the GATT 1994 and the Anti-Dumping Agreement.