COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY AND THE NETHERLANDS REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 18 February 2020
Document codes: WT/DS591/2
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
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
The following communication, dated 17 February 2020, from the delegation of the European Union
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 15 November 2019, the European Union requested consultations with the government of the
Republic of Colombia (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 and Trade 1994 (GATT 1994) concerning the imposition of anti-dumping (AD)
duties on certain imports of potatoes, prepared or preserved (otherwise than by vinegar or acetic
acid), frozen ( frozen fries), originating in Belgium, Germany and the Netherlands (the countries
concerned)1.

The consultations took place on 15 and 16 January 2020 in Geneva with a view to reaching a
satisfactory settlement of the matter. Unfortunately, they failed to settle the dispute. The European
Union therefore requests that a panel be established 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 GATT 1994, to examine the matter based on the standard terms of reference, as set
out in Article 7.1 of the DSU.

The measures at issue are 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 sub-
heading 2004.10.00.00 originating in Belgium, Germany and the Netherlands ( "products u nder
investigation"). The measures at issue include, and are evidenced by, the following
instruments/documents:

• Ministry of Trade, Industry and Tourism Resolution Number 191 of 1 November 2017 2
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
9 November 2018, page 43;
• Ministry of Trade, Industry and Tourism Resolution Number 257 of 9 November 2018 4
adopting the final determination o n the administrative investigation initiated by

1 WT/DS591/1, G/ADP/D133/1, G/VAL/D/14, G/L/1339.
2 http://www.mincit.gov.co/mincomercioexterior/defensa-comercial/dumping/derechos-antidumping-
vigentes/papa-congelada/resolucion-191-del-1º-de-noviembre-de-2017.aspx, last accessed on
21 October 2019.
3 http://svrpubindc.imprenta.gov.co/diario/view/diarioficial/consultarDiarios.xhtml, last accessed on
21 October 2019.
4 http://www.mincit.gov.co/mincomercioexterior/defensa-comercial/dumping/derechos-antidumping-
vigentes/papa-congelada/resolucion-no-257-del-9-de-noviembre-de-2018.aspx , last accessed on
21 October 2019.

Decision 121 of 2 August 2017, published in the Official Journal No 50.772 of
9 November 2018, page 95;
• 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 Germany6;
• 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, 20187;
• Ministry of Trade, Industry and Tourism Resolution Number 093 of 13 May 2019
addressing some requests for administrative review 8, published in the Official Journal
No 50.956, page 189.
This request also covers any annexes thereto, notices, preliminary findings, re views, amendments,
supplements, replacements, renewals, extensions, implementing measures or any other related
measures.

The measures at issue described above appear to be inconsistent with Colombia's obligations under
the following provisions of the covered agreements:

1. Article 2.1 of the Anti -Dumping Agreement, because Colombia, in its determination of
dumping, failed to calculate dumping margins on the basis of a comparison between the
export price of the products under investigation when exported from Belgium, Germany
and the Netherlands into Colombia and the normal value of the like products in the
exporting countries. In particular, Colombia did not rely on the correct source of
information regarding export prices from Belgium, Germany and the Neth erlands and
determined the export price of the products under investigation on the basis of the
database managed by the Dirección de Impuestos y Aduanas Nacionales (DIAN) for all
exporting producers rather than on the basis of the export price information provided
by investigated producers. For this reason, Colombia erroneously arrived at inflated
dumping margins and also did not exclude a sample transaction from the calculation of
the dumping margin of a particular producer.
2. Article 6.8 and paragraphs 3 and 6 of Annex II, in conjunction with Article 2.1 of the
Anti-Dumping Agreement, because Colombia determined that the products under
investigation had been dumped on the basis of the facts available, even though it failed
to determine that investigated producers refused access to, or otherwise did not
provide, necessary information within a reasonable period or significantly impeded the
investigation. In particular, Colombia determined the export price of the products under
investigation on the basis of the database managed by the Dirección de Impuestos y
Aduanas Nacionales (DIAN) for all exporting producers rather than on the basis of the
export price information provided by the investigated producers. Thus, Colombia failed
to take into account, when it s determinations were made, all information which was
verifiable, which was appropriately submitted so that it could be used in the
investigation without undue difficulties and which was supplied in a timely fashion.
Colombia also failed to inform the supp lying parties forthwith of the reasons for not
accepting the evidence or information provided and failed to give the supplying party
an opportunity to provide further explanations within a reasonable period.

5 http://svrpubindc.imprenta.gov.co/diario/index.xhtml;jsessionid=f3a676a718bd19151d80b155f949 ,
last accessed on 21 October 2019.
6 http://srvcalidad.mincomercio.gov.co/Practicas-Comerciales/Mincomercio/D-087-03-573-02-023-01-
95-PAPA-PUBLICA-T18.PDF , document stamped with numbers 6055 to 6070, last accessed on
21 October 2019.
7 http://srvcalidad.mincomercio.gov.co/Practicas-Comerciales/Mincomercio/D-087-03-573-02-023-01-
95-PAPA-PUBLICA-T18.PDF , document stamped with numbers 6071 to 6130, last accessed on
21 October 2019.
8 http://www.mincit.gov.co/mincomercioexterior/defensa-comercial/dumping/derechos-antidumping-
vigentes/papa-congelada/resolucion-093-rd.aspx , last accessed on 21 October 2019.
9 http://svrpubindc.imprenta.gov.co/diario/view/diarioficial/consultarDiarios.xhtml , last accessed on
21 October 2019.

3. Articles 5.8 in conjunction with Articles 2.1 and 3 of the Anti -Dumping Agreement,
because Colombia did not reject the application for initiating an anti -dumping
investigation of the products under investigation, or did not terminate that investigation
promptly, even though there was not sufficient evidence of either dumping or of injury
to justify proceeding with the investigation. In particular, a proper dumping analysis
concerning the products under investigation in keeping with the requirements of Article
2.1 of the Anti-Dumping Agreement would not have led to any margins of dumping in
excess of de minimis.
4. Articles 2.1 and 2.6 of the Anti -Dumping Agreement because the product which
Colombia considered as being dumped is not "like" the product when de stined for
consumption in the exporting country. Colombia wrongly included, in the scope of the
product under consideration, both traditional frozen fries and frozen specialities and
failed to apply the terms "like product" as meaning identical, i.e. alike in all respect to
the product under consideration, or although it is not alike in all respects, having
characteristics closely resembling those of the products under consideration.
5. 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 under 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.
6. Article 2.4 of the Anti -Dumping Agreement because Colombia did not make a fair
comparison between the export price and the normal value by deducting certain sea
freight and insurance costs twice from the export price of a compa ny, thereby unduly
lowering the export price.
7. Article 2.4 of the Anti -Dumping Agreement because Colombia failed to indicate to the
parties in question what information was necessary to ensure a fair comparison and
imposed an unreasonable burden of proof on those parties.
8. Article 2.4.1 of the Anti-Dumping Agreement because Colombia converted the currency
of the normal value and export price, the euro, into US dollars even though the
comparison under Article 2.4 of the Anti -Dumping Agreement did not req uire such a
conversion of currencies.
9. Each of the obligations under Articles 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the Anti-Dumping
Agreement because Colombia, in its injury determination, wrongly included
non-dumped imports.
10. Article 3.1 in conjunctio n with Article 3.2 of the Anti -Dumping Agreement because
Colombia did not carry out an objective examination of the effect of the dumped imports
on prices in the domestic market for the like product. Notably, Colombia 's injury
determination did not include data with respect to domestic prices and, in particular,
whether there had been a significant price undercutting, price depression or price
suppression by the dumped imports.
11. Article 3.1 in conjunction with Article 3.4 of the Anti -Dumping Agreement b ecause
Colombia did not make a determination of injury based on positive evidence and did not
carry out an objective examination of the impact of the dumped imports on the domestic
industry concerned. Rather than making the required evaluation of all relevant economic
factors and indices having a bearing on the state of the industry, Colombia unduly
limited its analysis to examining seven of the economic factors and indices having a
bearing on the state of the industry. Moreover, Colombia failed to make the evaluation
of all relevant economic factors and indices required by Article 3.4 of the Anti-Dumping
Agreement by wrongly comparing an average of five semesters for the injury period
with an average of two semesters for the dumping period.
12. Article 3.5 of the Anti-Dumping Agreement because Colombia did not demonstrate that
the dumped imports of the product under investigation are, through the effects of
dumping, causing injury within the meaning of that agreement. In particular, Colombia
looked into causation by examining dumped and non-dumped imports together and did
not consider the increase in price of the raw material as a known factor, other than the

products under investigation, which at the same time was injuring the domestic
industry.
13. Article 5.3 of the Anti -Dumping Agreement because Colombia failed to examine the
accuracy and adequacy of the evidence provided in the application on dumping, injury
and causation to determine whether there is sufficient evidence to justify the initiation
of an investigation.
14. Article 5.8, first sentence of the Anti -Dumping Agreement because Colombia initiated
an investigation without the required sufficient evidence.
15. Articles 6.1.2 and 6.2 in conjunction with Article 6.4 of the Anti -Dumping Agreement
because Colombia failed to make available promptly to other interested parties
participating in the investigation, evidence presented in writing. Colombia also failed to
provide all interested parties a full opportunity for the defence of their interests as well
as timely opportunities to see all non -confidential information relevant to the defence
of their interests with regard to, inter alia , the methodology used to calculate the
dumping margin, including the adjustments made and the material injury analysis.
16. Article 6.5 of the Anti-Dumping Agreement because Colombia failed to treat confidential
information or information provided on a confidential basis as such and disclosed it
without specific permission of the parties submitting it. For example, certain information
provided by a party on a confidential basis was disclosed without its permission.
17. Article 6.5 of the Anti -Dumping Agreement because Colombia treated as confidential,
without showing good cause, information supplied by the applican t. In particular,
although Colombia required the applicant to justify the confidential treatment of the
information submitted, Colombia provided confidential treatment on its own initiative,
in the absence of an indication by the applicant asserting the confidential nature of the
information supplied, i.e. without good cause having been shown by the applicant.
18. Article 6.5 of the Anti -Dumping Agreement and Article 10 of the Customs Valuation
Agreement because Colombia has not treated information that is by nature confidential
or information which was provided on a confidential basis by a party for the purposes
of customs valuation, as such and because Colombia disclosed such information without
specific permission of the party submitting it. In particular , Colombia published
information of clients, price and volume per transaction for the exports made during the
investigation period by one party, which is by nature confidential and whose
confidentiality has not been waived.
19. Article 6.5.1 of the Anti -Dumping Agreement because Colombia did not require the
applicant to furnish non-confidential summaries of confidential information provided by
it and which provide sufficient detail to permit a reasonable understanding of the
substance of the information submitted in confidence. If the applicant claimed that the
information was not susceptible of summary, Colombia failed to require that a statement
of reasons be provided in support of that claim.
20. Article 6.9 of the Anti-Dumping Agreement because Colombia did not sufficiently inform
all interested parties of the essential facts under consideration which form the basis of
the decision to impose definitive anti -dumping measures, including the essential facts
underlying the determinations of the existence of dumping and the calculation of the
margins of dumping and the determination of injury. This precluded the possibility of
interested parties to defend their interests, in particular to assess whether Colombia 's
conclusions were supported by evidence and whe ther they reflected an objective
examination of evidence.
21. Article 12.2 in conjunction with 12.2.2 of the Anti -Dumping Agreement because
Colombia did not disclose, in a public notice, essential information on dumping and
injury and failed to provide in sufficient detail the findings and conclusions reached on
all issues of fact and law considered material by the investigating authority, as well as
all relevant information on the matters of fact and law and reasons which have led to
the imposition of final measures. Colombia also failed to provide a public notice or a
separate report with the relevant information on the matters of fact and law and the
reasons which have led to the imposition of final measures, in particular the reasons for
the rejection of relevant arguments or claims in relation to requested adjustments and
the refusal to exclude a sample transaction from the calculation of the dumping margin
during the investigation.
22. Colombia's anti-dumping measures on the products under investigation also appear to
be inconsistent with Articles 1, 9.1, 9.2, 9.3, 11.1 and 18.1 of the Anti -Dumping
Agreement and Article VI of the GATT 1994 as a consequence of the breaches of the
Anti-Dumping Agreement described above.

As a result of these inconsistencies, Colombia 's measures, also appear to nullify or impair the
benefits accruing to the European Union, directly or indirectly, under the covered agreements.

The European Union asks that this request for the establishment of a panel be placed on the agenda
for the meeting of the Dispute Settlement Body to be held on 28 February 2020.