1 – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA
Document: Notification of an Appeal by the European Union under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 29 March 2011
Document codes: WT/DS397/7
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

EUROPEAN COMMUNITIES
1 – DEFINITIVE ANTI-DUMPING MEASURES
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA

Notification of an Appeal by the European Union
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 25 Marc h 2011, from the Delegation of the European
Union, is being circulated to Members.

 Pursuant to Article 16.4 and Article 17.1 of the DSU the European Union hereby notifies to
the Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel in the dispute
European Communities – Definitive Anti-Dumping Meas ures on Certain Iron or Steel Fasteners from
China (WT/DS397). Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the
European Union simultaneously files this Notice of Appeal with the Appellate Body Secretariat.

 For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Body to reverse and/or modify the findings,
conclusions and recommendations of the Panel, with respect to the following errors of law and legal
interpretations contained in the Panel Report.

I. C
OUNCIL REGULATION NO. 1225/2009 ("THE BASIC AD REGULATION")

 The Panel erred in its interpretation and app lication of Articles 6.10, 9.2 and 18.4 of the
Anti-Dumping Agreement , Article I:1 of the GATT 1994 and Article XVI:4 of the WTO Agreement
and failed to make an objective assessment pursuant to Article 11 of the DSU when it concluded that
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with those provisions.2 In particular:

1On 1 December 2009, the Treaty of Lisbon ame nding the Treaty on European Union and the Treaty
establishing the European Community (done at Lisbon, 13 December 2007) entered into force. On
29 November 2009, the WTO received a Verbal Note (WT /L/779) from the Council of the European Union and
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of
1 December 2009, the "European Union" replaces and succeeds the "European Community". On 13 July 2010,
the World Trade Organization received a Verbal Note (WT/Let/6 79) from the Council of the European Union
confirming that, with effect from 1 December 2009, the European Union replaced the European Community and
assumed all the rights and obligations of the European Community in respect of all Agreements for which the
Director-General of the World Trade Organization is the depositary and to which the European Community is a
signatory or a contracting party.
2Panel Report, para. 8(2)(a).

(a) the Panel erred in the application of Article 6.10 of the Anti-Dumping Agreement
when finding that Article 9(5) of the Basic AD Regulation concerns not only the
imposition of anti-dumping duties but also the calculation of margins of dumping.
3
Based on its incorrect understanding of the scope of Article 9(5) of the Basic AD
Regulation, the Panel wrongly concluded that Article 9(5) of the Basic AD
Regulation, as such, is inconsis tent with Article 6.10 of the Anti-Dumping
Agreement4;
(b) the Panel erred in the interpretation a nd application of Article 6.10 of the
Anti-Dumping Agreement and also violated Article 11 of the DSU when finding that
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with Article 6.10 of
the Anti-Dumping Agreement in that it conditions the calculation of individual
margins for producers from non-market economy countries on the fulfilment of the
Individual Treatment (IT) test
5;
(c) the Panel erred in the interpretation a nd application of Article 9.2 of the
Anti-Dumping Agreement and also violated Article 11 of the DSU when finding that
Article 9(5) of the Basic AD Regulation is, as such, inconsistent with the obligation
laid down in Article 9.2 of the Anti-Dumping Agreement, which does not allow the
imposition of a single country-wide anti-dumping duty in an investigation involving a
non-market economy country
6;
(d) the Panel erred in the interpretation a nd application of Article I:1 of the GATT 1994
and also violated Article 11 of the DSU when finding that Article 9(5) of the Basic
AD Regulation violates the MFN obligation of Article I:1 of the GATT 1994 .7
Moreover, the Panel erred when concluding that the Anti-Dumping Agreement does
not allow for the different treatment of imports from non-market economy countries
provided for in Article 9(5) of the Basic AD Regulation8; and
(e) the Panel erred when finding that the EU act ed inconsistently with Article XVI:4 of
the WTO Agreement and Article 18.4 of the Anti-Dumping Agreement by failing to
ensure the conformity of its laws, regula tions and administrative procedures with its
obligations under the relevant agreements.9

II. C OUNCIL REGULATION NO. 91/2009 (FASTENERS INVESTIGATION)

 The Panel erred in the interpre tation and application of Articles 6.2, 6.4, 6.5, 6.5.1, 6.10
and 9.2 of the Anti-Dumping Agreement and also violated Articles 6.2, 7.1 and 11 of the DSU when it
concluded that the EU acted inconsis tently with those provisions of the Anti-Dumping Agreement in
the fasteners investigation.
10 In particular:

(a) the Panel erred in its interpretation and a pplication of Articles 6.10 and 9.2 of the
Anti-Dumping Agreement when finding that, having found that Article 9(5) of the
Basic AD Regulation is, as such, inconsistent with those provisions, its application in

3Panel Report, para. 7.77.
4Panel Report, para. 7.98.
5Panel Report, paras. 7.96 and 7.98.
6Panel Report, para. 7.112 and footnote 278.
7Panel Report, paras. 7.124, 7.126 and 7.127.
8Panel Report, para. 7.125 and footnote 307.
9Panel Report, para. 7.137.
10Panel Report, paras. 8(2)(b), 8(2)(e) and 8(2)(f).

the fasteners investigation was, for the same reasons, inconsistent with these two
provisions11;
(b) the Panel erred in the interpretation and a pplication of Articles 6.2 and 6.4 of the
Anti-Dumping Agreement and violated Article 11 of the DSU when finding that the
EU violated these provisions by not providing a timely opportunity for Chinese
producers to see information regarding the product types on the basis of which
normal value was established, information relevant to the presentation of their case12;
(c) the Panel erred in the interpretation a nd application of Article 6.5.1 of the
Anti-Dumping Agreement when finding that the Eur opean investigating authorities
had violated that provision in that they fa iled to ensure Agrati's and Fontana Luigi's
compliance with the requirements of Article 6.5.113;
(d) the Panel acted inconsistently with Articles 6.2, 7.1 and 11 of the DSU when
addressing in substance China's claim under Article 6.5 of the Anti-Dumping
Agreement in connection with Pooja Forge14;
(e) the Panel erred in the interpretation a nd application of Article 6.5 of the
Anti-Dumping Agreement when it considered that, absent a showing of "good cause",
the European investigating authorities were not entitled to grant confidential
treatment to information submitted by P ooja Forge, the analogue country producer 15;
and
(f) the Panel acted inconsistently with Article 6.2 of the DSU when considering that the
issue of "the identity of the complainants and supporters" was properly identified in
China's Panel Request under its claims referring to Article 6.2 and 6.4 of the
Anti-Dumping Agreement.16

11Panel Report, para. 7.148.
12Panel Report, paras. 7.494 and 7.495.
13Panel Report, paras. 7.516 and 7.517.
14Panel Report, paras. 7.518-7.526.
15Panel Report, para. 7.525.
16Panel Report, para. 7.458.