ARGENTINA – DEFINITIVE ANTI-DUMPING MEASURES ON IMPORTS OF CERAMIC FLOOR TILES FROM ITALY
Document: Report of the Panel
Date: 28 September 2001
Document codes: WT/DS189/R
Complainant: EU
Respondent: Argentina
Third parties: Japan, Turkey, U.S.
Dispute stage: Panel
Agreements cited: Art. 2.4, 6.5, 6.8, 6.9, 6.10, Annex II  Anti-dumping

ARGENTINA – DEFINITIVE ANTI-DUMPING
MEASURES ON IMPORTS OF CERAMIC
FLOOR TILES FROM ITALY
Report of the Panel
The report of the Panel on Argentina - Definitive Anti-Dumping Measures on Imports of Ceramic
Floor Tiles from Italy is being circulated to all Members, pu rsuant to the DSU. The report is being
circulated as an unrestricted document from 28 September 2001 pursuant to the Procedures for the
Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in
accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be
limited to issues of law covered in the Panel report and legal interpretations developed by the Panel.
There shall be no ex parte communications with the Panel or Appellate Body concerning matters
under consideration by the Panel or Appellate Body.
Note by the Secretariat : This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60
days after the date of its circulation unless a party to the dispute decides to a ppeal or the DSB decides by
consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be
considered for adoption by the DSB until after the completion of the appeal. Information on the current status
of the Panel Report is available from the WTO Secretariat.

I. INTRODUCTION
1.1 On 26 January 2000, the European Communities (the “EC”) requested consultations with
Argentina regarding the definitive anti-dumping measures on imports of ceramic floor tiles from Italy
imposed by Argentina on 12 November 1999. 1 The EC made its request pursuant to Article 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”) and Article
17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (the “AD Agreement”). The EC and Argentina held consultations on 1 March 2000, but
failed to reach a mutually satisfactory solution.
1.2 On 7 November 2000, the EC requested the establishment of a panel with the standard terms
of reference set out in Article 7 of the DSU.
2 The EC made its request pursuant to Article 6 of the
DSU and Article 17 of the AD Agreement. In that request, the EC identified the measures at issue as
the definitive anti-dumping measures on imports of ceramic floor tiles ( “porcellanato”) from Italy
imposed by Argentina on 12 November 1999.
1.3 At its meeting on 17 November 2000, the Disput e Settlement Body (“DSB”) established a
Panel pursuant to the above request.3 At that meeting, the parties to the dispute agreed that the Panel
should have standard terms of reference. The terms of reference were:
To examine, in the light of the relevant provisions of the covered agreements cited by
the European Communities in document WT/DS189/3 the matter referred to the DSB
by the European Communities in that document, and to make such findings as will
assist the DSB in making the recommendations or in giving the rulings provided for
in those agreements.
1.4 On 12 January 2001, the parties agreed to the following composition of the Panel:
1.5 Chairman: Mr. Hugh McPhail
Members: Mr. Gilles Gauthier
Mr. Stephen Powell
1.6 Japan, Turkey and the United States reserved their rights to participate in the Panel
proceedings as third parties.
1.7 The Panel met with the parties on 18-19 April 2001 and 1 June 2001. It met with the third
parties on 19 April 2001.
1.8 The Panel submitted its interim report to the parties on 25 July 2001. The Panel submitted its
final report to the parties on 14 September 2001.
II. FACTUAL ASPECTS
2.1 This dispute concerns the imposition of definitive anti-dumping measures by the Argentine
Ministry of the Economy on imports of ceramic floor tiles from Italy.
2.2 On 30 January 1998, Cerámica Zanon (“Zanon”) filed an application for an anti-dumping
investigation with the Dirección de Competencia Desleal (“DCD” – Directorate of Unfair Trade) of

1 WT/DS189/1.
2 WT/DS189/3.
3 WT/DS189/4.

the Argentine Ministry of the Economy alleging that imports of ceramic tiles were being exported to
Argentina at dumped prices. 4 On 25 September 1998, the Ministry of the Economy published a
public notice announcing the initiation of an anti-dumping investigation on imports of ceramic tiles
from Italy.
2.3 On 30 November 1998, Assopiastrelle, the association of Italian producers of ceramic tiles,
requested the DCD to limit the calculation of individual dumping margins to four or five exporters
accounting for around 70 per cent of the exports of the subject product from Italy to Argentina.
5 On
12 December 1998, the DCD accepted this request. 6 On 10 December 1998, four Italian exporters
filed responses to the investigation questionnaire: Ceramica Bismantova “(Bismantova”), Ceramiche
Casalgrande (“Casalgrande”), Ceramiche Caesar (“Caesar”), and Marazzi Ceramiche (“Marazzi”).
On 24 March 1999, the DCD issued an affirmative preliminary determination (“Preliminary
Dumping Determination”).7 In that determination, the DCD disregarded the questionnaire replies
submitted by the above-mentioned exporters. The DCD proceeded to determine the dumping margin
on the basis of the information available on the record, other than that presented by the exporters.
8 As
the DCD applied the same set of “facts available” to the four exporters concerned, they all were
assessed the same dumping margin.
2.4 On 23 September 1999, the DCD issued an affirmative final determination (“Final Dumping
Determination”).9 In this determination, the DCD relied predominantly on the information available
on the record, other than that presented by the exporters.10 As the DCD applied the same set of “facts
available” to the four exporters concerned, an identical dumping margin was assessed for all of them.
2.5 On 12 November 1999, the Ministry of the Economy, based upon the affirmative final
determination regarding the existence of dumping issued by the DCD on 23 September 1999, and the
affirmative final determination regarding the existence of injury and causality issued by the CNCE on
3 September 1999,
11 imposed definitive anti-dumping measures on imports of ceramic tiles
originating in Italy for a period of three years. 12 Such measures took the form of specific anti-
dumping duties to be collected as the absolute difference between the FOB price invoiced in any one
shipment and a designated “minimum export price” also fixed in FOB terms, whenever the former
price is lower than the latter. Each of the th ree size categories used for the dumping margin
calculations was assigned its own “minimum export price”.

4 The DCD was responsible for conducting the dumping investigation. The injury investigation was
conducted separately by the Comisión Nacional de Comercio Exterior (CNCE – National Foreign Trade
Commission). As the EC did not make any injury claims, no reference is made here to the injury aspects of the
investigation.
5 See Exhibit EC-3A.
6 See Exhibit EC-3B.
Presunto Dumping en Operaciones de Exportación hacia la República Argentina de Placas y Baldosas de
Cerámica, sin Barnizar ni Esmaltar, para Pavimentac ión o Revestimiento, de Gres Fino, "Porcellanato", en
8 The DCD calculated three separate dumping margins for the subject product, on account of three
different size-categories: tiles of 20 cm by 20 cm, tiles of 30 cm by 30 cm, and tiles of 40 cm by 40 cm
Práctica Comercial Desleal en Operaciones de Exportación hacia la República Argentina de Placas y Baldosas
de Cerámica, sin Barnizar ni Esmaltar, para Pavimentación o Revestimiento, de Gres Fino, "Porcellanato", en
10 As in the preliminary determination, the DCD calculated the dumping margin by size category.
11 Acta de Directorio No. 547, Comisión Nacional de Comercio Exterior.
12 Resolución 1385/99 del Ministerio de Economía y Obras y Servicios Públicos ("Notice of Imposition
of Definitive Anti-Dumping Measures"), Exhibit EC-1.

III. PARTIES’ REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. THE EUROPEAN COMMUNITIES
3.1 The EC requests that the Panel finds that the anti-dumping measures applied by Argentina
with respect to imports of porcellanato originating in Italy are inconsistent with Article 6.8 and
Annex II, and Articles 6.10, 2.4, and 6.9 of the AD Agreement.
B. ARGENTINA
3.2 Argentina requests that the Panel rejects the EC ’s claims with respect to the alleged breaches
of Article 6.8 and paragraph 6 of Annex II, and Articles 6.10, 2.4 and 6.9 of the AD Agreement.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 4 Arguments/Replies of the EC
IV. ARGUMENTS OF THE PARTIES AND THIRD PARTIES
A. CLAIM UNDER ARTICLE 6.8 OF THE AD AGREEMENT
1. The EC
(a) Arguments of the EC in its first written submission in support of its claim under Article 6.8 of
the AD Agreement
4.1 In its first written submission, the EC made the following arguments regarding its claim under
Article 6.8 of the AD Agreement.
4.2 The EC submits that in its Final Dumping Determination the DCD disregarded all the
information on normal value and on export prices provided by the four exporters included in the
sample and relied instead upon the petitioner’s allegations and import statistics.
4.3 By disregarding the exporters’ information without any valid justification, the DCD violated
Article 6.8 and Annex II of the AD Agreement, which only allow the investigating authorities to
resort to “facts available” in those cases where the exporters do not provide timely necessary
information or significantly impede the investigation.
4.4 The EC presented first a number of facts relevant to its claim under Article 6.8.
4.5 All the four exporters included in the sample submitted complete responses to the
questionnaires received from the DCD within the prescribed deadline (at the request of the exporters,
the DCD agreed to extend the deadline to submit the questionnaire responses from 30 November 1998
until 9 December 1998; see Final Dumping Determination, Section III.4, p. 9. The four exporters
included in the sample filed their responses on 9 December 1998. At a meeting held at the DCD on
10 May 1999, the case-handlers requested that Casalgrande and Bismantova submit copies of invoices
covering at least 50 per cent of their sales in Italy and for export, both to Argentina and to third
countries, during the period of investigation. The requested invoices were submitted by those two
exporters within the deadline of 31 May 1999 set by the DCD. The submission of these invoices is
mentioned expressly in the Final Dumping Determination; see Section V.1.3, page 26, paragraphs 6
and 7. The DCD made no further request for additional information). Moreover, the exporters agreed
in advance to the verification of their responses, should the DCD consider it necessary (Final
Dumping Determination, Section III.6, pp. 15-17).
4.6 Although the exporters timely provided all th e necessary information, the DCD disregarded
their responses and resorted to the petitioner’s allegations, for the normal value, and to official import
statistics, for the export price.
(i) Normal value
4.7 According to the table included in page 30 of the Final Dumping Determination (reproduced
below as Table I), the DCD calculated three different normal values.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 5
Table I
Source of Information Supplied by US$/m2
20 cm x 20 cm
Price list Petitioner 8.65
Invoices (weighted average) Italian Firms 5.54
30 x 30 cm
Price list Petitioner 9.89
Invoices (weighted average) Petitioner 10.16
Invoices (weighted average) Italian Firms 6.70
40 cm x 40 cm
Price lists Petitioner 11.04
Invoices (weighted average) Petitioner 10.83
Invoices (weighted average) Italian Firms 7.10
4.8 The first normal value was derived by the DCD from a series of price lists submitted by
Zanon (although the precise method used by the DCD to derive the normal value from these lists is
explained nowhere in the Final Dumping Determination), namely:
(i) the “Prezzi Informativi delle Opere Edili in Milano 1997” (reference prices in
the building industry in Milan 1997);
(ii) the “Prezzi Informativi dell’Edilizia – febbraio 1997” (information prices in
the Building Industry);
(iii) a price list of Bismantova;
(iv) a price list of Casalgrande;
(v) a price list of Floor Gres (an Italian producer not included in the sample);
(vi) a price list of Mirage (an Italian producer not included in the sample); and
(vii) a price list of Cooperativa Ceramica d’Imola (an Italian producer not
included in the sample).
4.9 The producers’ list prices supplied by Zanon provide a rough indication of the prices paid by
the end-users of porcellanato. But they bear little resemblance to the prices actually charged to
distributors and wholesalers, who normally receive large discounts (of up to 75 per cent of the list
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 6 Arguments/Replies of the EC
price). Thus, they are not comparable to the prices for the export sales to Argentina, which are made
to distributors and wholesalers and not to final users.
4.10 Similarly, the reference prices shown in the other two documents supplied by Zanon are also
prices to end-users. Moreover, they are prices for February and August 1997, i.e., for a period not
covered by the dumping investigation.
4.11 The second normal value in Table I is described by the DCD as a weighted average of the
prices shown in the invoices supplied by the petitioner. Yet, according to the information available in
the public file, Zanon provided to the DCD only se ven invoices. In contrast, the four exporters
included in the sample reported in their responses several hundred transactions.
4.12 The third normal value in Table I is the weighted average of the invoice prices reported in
their responses by the four exporters included in the sample. As explained below, this normal value
was not used subsequently by the DCD in order to calculate the dumping margin. Indeed, as shown in
Table V below, had the DCD used this normal value, it would have found no dumping.
(ii) Export price
4.13 The export prices compared by the DCD to the normal value are shown in the table included
on page 37 of the Final Dumping Determination (reproduced here below as Table II).
Table II
Size Unit FOB price in US$
20 cm x 20 cm 6.43
30 cm x 30 cm 7.00
40 cm x 40 cm 9.84
4.14 The export prices in Table II have been derived from the Summary Table ( Cuadro Resumen)
included in the Annex to the Final Dumping Determination, which in turn appears to be a weighted
average of the import statistics collected by the Delegación II – Unidad Informática within the
Secretaría de Industria, Comercio and Minería and of the data supplied by two importers: Quadri y
Cia. and Canteras Cerro Negro S.A (“Cerro Negro”).
(iii) Dumping margin
4.15 The DCD calculated two different dumping margins for each size category of porcellanato.
The details of the calculation are set out in two tables included on page 45 of the Final Dumping
Determination (reproduced here below as Tables III and IV).
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 7
Table III
Product Normal Value.
US$/m2
FOB Export price
US$/m2
Dumping Margin
Porcellanato 20 cm x
20 cm
8.65 6.43 34.52 per cent
Porcellanato 30 cm x
30 cm
10.02 7.00 43.14 per cent
Porcellanato 40 cm x
40 cm
10.94 9.84 11.18 per cent
Table IV
Product Normal Value.
US$/m2
FOB Export
priceUS$/m2
Dumping margin
Porcellanato 20 cm x
20 cm
7.10 6.43 10.42 per cent
Porcellanato 30 cm x
30 cm
8.92 7.00 27.43 per cent
Porcellanato 40 cm x
40 cm
9.66 9.84 ---
4.16 The export prices in Table III and in Table IV are the same: those shown in Table II. The
difference in the level of the dumping margins results exclusively from the use of higher normal
values in Table III than in Table IV.
4.17 The normal values in Table III are a simple (i.e. non-weighted) average of the first two
normal values in Table I, i.e. the normal value based on the price lists supplied by Zanon, and the
normal value based on the seven invoices provided by Zanon.
4.18 In turn, the normal values in Table IV are the simple average of the three normal values in
Table I, i.e. of the two normal values based on Zanon’s information and the normal value based on the
data reported by the exporters included in the sample.
4.19 Thus, neither of the two dumping margins calculated by the DCD are based on the normal
value data provided by the exporters. Such data was not used at all in the first calculation and was
arbitrarily averaged with the petitioner’s data in the second calculation.
4.20 As evidenced by Table V, had the DCD compared the export prices in Table II to the normal
value determined by the DCD itself on the basis of the exporters’ responses, it would have found no
dumping.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 8 Arguments/Replies of the EC
Table V
Product A) Normal Value
US$/m2
B) FOB Export price
US$/m2
C) Dumping margin
(A – B))
Porcellanato 20 cm x
20 cm
5.54 6.43 - 0.89
Porcellanato 30 cm x
30 cm
6.70 7.00 - 0.30
Porcellanato 40 cm x
40 cm
7.10 9.84 - 2.74
4.21 In the Final Dumping Determination, the DCD appears to have regarded the two dumping
calculations reproduced in Tables III and IV as being equally relevant. Similarly, Resolución 1385/99
makes no express choice between them. As a result, it is unclear on which of the two dumping
margins the anti-dumping measures in place are based.
4.22 The EC presented next its legal arguments concerning its claim under Article 6.8 of the AD
Agreement.
4.23 The EC recalled that Article 6.8 of the AD Agreement provided that:
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.
4.24 Therefore, when making a dumping determination, the investigating authorities may resort to
facts available only to the extent that the exporter concerned:
(a) refuses access to necessary information; or
(b) otherwise fails to provide necessary information within a reasonable period of time;
or
(c) significantly impedes the investigation.
4.25 None of those three circumstances was present in this investigation. The four exporters
included in the sample cooperated fully in the in vestigation. They provided all the information
requested by the DCD within the prescribed time limits and volunteered their agreement to receive a
verification visit, should it be considered necessary by the DCD.
4.26 The DCD did at no point during the investigation suggest that the exporters failed to provide
necessary information or that they impeded in an y other way the investigation. Indeed, during the
consultations, Argentina did not argue that the exporters’ responses had been disregarded on any of
the grounds mentioned in Article 6.8. Instead, Argentina argued that the exporters’ responses had
been “considered” by the DCD “on an equal footing” with the information provided by the petitioner,
but eventually the investigating authorities decided to rely on the latter.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 9
4.27 However, the export prices reported by the exporters were totally ignored by the DCD. In
turn, the exporters’ normal value information was not used at all in calculating one of the two
dumping margins calculated by the Argentinean authorities and was arbitrarily averaged with the
petitioner’s data in order to calculate the other dumping margin. Thus, it is beyond question that the
DCD effectively rejected the information supplied by the exporters.
4.28 The position taken by Argentina during the consultations reflects a gross misunderstanding of
the requirements imposed by the AD Agreement. Ar gentina seems to consider that, when making a
dumping determination, the investigating authorities have complete discretion to pick and choose data
from different sources, including the petitioner, prov ided that, previously, they have “considered” all
of them. That view is manifestly mistaken.
4.29 The information supplied by each exporter is, in principle, the most direct and reliable source
of evidence of that exporter’s normal value and export price (with respect to cost of production data,
Article 2.2.1.1 provides expressly that: “For the purpose of paragraph 2, costs shall normally be
calculated on the basis of records kept by the exporter or producer under investigation, provided that
such records are in accordance with the generally accepted accounting principles of the exporting
country and reasonably reflect the costs associated with the production and sale of the product under
consideration”. This provision is but an expression of the principle underlying the AD Agreement that
dumping determinations should be based, in principle, on the normal value and export price
information provided by the exporter). The investigating authorities may not disregard such
information and substitute information from other sources, including the petitioner, except in the well
defined circumstances enumerated in Article 6.8.
4.30 Argentina’s interpretation would render totally redundant Article 6.8 and Annex II. If the
investigating authorities were free to choose between the information provided by the exporters and
that supplied by the petitioner, the restrictions imposed by Article 6.8 and Annex II on the use of
facts available would become meaningless.
4.31 Consider, for example, paragraph 1 of Annex II, which provides that:
[…] The authorities should also ensure that the party is aware that if information is
not supplied within a reasonable period of time, the authorities will be free to make
determinations on the basis of the facts available, including those contained in the
application for the initiation of the investigation by the domestic industry.
4.32 The warning mandated by paragraph 1 of Annex II would be totally unnecessary if, as argued
by Argentina, the investigating authorities were enti tled to use information provided by the petitioner
also where, as in the present case, the exporters have provided timely all the necessary information.
4.33 Further confirmation is provided by paragraph 7 of Annex II, which states that:
If the authorities have to base their findings, including those with respect to normal
value, on information from a secondary source, including the information supplied in
the application for the initiation of the inve stigation, they should do so with special
circumspection […].
4.34 Paragraph 7 evidences that the investigating authorities are not allowed to consider all sources
of information “on an equal footing”. Paragraph 7 recognises a hierarchy between “primary” and
“secondary” sources. For the purposes of establishing whether an exporter is dumping, the “primary
source” of information is the normal value and export price information supplied by that exporter.
Paragraph 7 confirms that investigating authorities are not free to substitute secondary sources, such
as the information provided by the petitioner, to the primary sources. In accordance with Paragraph 7,
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 10 Arguments/Replies of the EC
investigating authorities may resort to secondary sources only when they “have to”, i.e. where the
relevant primary sources cannot be used as a result of one of the circumstances described in
Article 6.8.
4.35 For the above reasons, the EC submits that, by substituting the information provided by the
petitioners and import statistics to the normal value and export price data supplied by the exporters,
respectively, the DCD acted inconsistently with Article 6.8 and Annex II.
(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.8 of the
AD Agreement
4.36 In its first oral statement, the EC presented the following arguments with respect to its claim
under Article 6.8 of the AD Agreement.
4.37 The main claim submitted by the EC in this case is based on Article 6.8 and Annex II of the
AD Agreement.
4.38 The DCD disregarded the normal value and export price information provided by the
exporters and substituted information from other sources, including the petitioners. This allowed the
DCD to find a high margin of dumping where there was none.
4.39 The AD Agreement only allows the use of “facts available” in one of the three situations
specified in Article 6.8, i.e. where the exporters:
(a) refuse access to necessary information; or
(b) otherwise fail to provide necessary information within a reasonably period of time; or
(c) significantly impede the investigation.
4.40 None of those circumstances was present in this investigation. By disregarding the
information provided by the exporters without any valid justification, the DCD violated Article 6.8
and Annex II of the AD Agreement.
4.41 During the consultations, Argentina argued that the exporters’ responses had not been
rejected. Rather, according to Argentina, they ha d been considered on an “equal footing” with the
petitioners’ information.
4.42 That position is, of course, legally untenable. In its first written submission, Argentina
changes its line of defence and argues that that the exporters’ responses were in fact rejected pursuant
to Article 6.8.
4.43 The grounds invoked by Argentina for rejecting the exporters’ responses are either factually
inaccurate, or insufficient as a matter of law, or both. Moreover, all of them are ex-post facto
justifications. The DCD did not inform the exporters during the investigation of the reasons why their
responses had been rejected. Nor are those reasons stated in the Final Dumping Determination.
Indeed, the Final Dumping Determination does not even say expressly that the exporters’ responses
have been rejected. This has to be inferred from the fact that the exporters’ data are not used at all in
one of the two dumping margin calculations made by the DCD and are arbitrarily averaged with the
petitioners’ data in the other calculation.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 11
4.44 It is not possible to address in an oral statement all the inaccurate, misleading or irrelevant
assertions made in Argentina’s submission. The EC will attempt, nevertheless, to respond to the main
ones, starting with Argentina’s contention that the exporters’ responses were submitted late.
(i) Alleged late submission of the questionnaire responses
4.45 The original deadline for the submission of the responses was 30 November 1998. At the
request of the exporters, that deadline was extended until 9 December 1998. The responses were
submitted in the early morning of 10 December 1998.
4.46 Article 25 of Decreto 1.759/72, which implements the Ley de Procedimientos Administrativos
No. 19.549, allows the filing of documents within the first two working hours of the day following
that in which a deadline expires. The questionnaire responses were filed at 10.00 AM of
10 December 1998 (the hour of reception of the responses is stamped on the cover letters). In view of
that, the EC understands that, in accordance with Article 25 of Decreto 1759/72, the responses must
be deemed submitted within the prescribed deadline. It may be added that the representatives of the
exporters had informed in advance the DCD that th ey would make use of the possibility provided in
Article 25 of Decreto 1.759/72. The DCD raised no objections. The Panel should ask Argentina to
clarify this issue.
4.47 One could assume for the sake of argument that the responses were in fact submitted one day
late. No provision of the AD Agreement allows the investigating authorities to resort to “facts
available” simply because the party concerned has missed a deadline. Article 6.8 provides that the
investigating authority may resort to “facts ava ilable” when necessary information is not submitted
“within a reasonable period of time”, while paragr aph 3 of Annex II requires that all information
which is submitted “in a timely fashion” should be taken into account.
4.48 Interpreting these two provisions, the recent panel report on US – Hot Rolled Steel concluded
that:
What is a ‘reasonable period’ will not, in all instances be commensurate with pre-
established deadlines ... a rigid adherence to such deadlines does not in all cases
suffice as the basis for a conclusion th at information was not submitted within a
reasonable period and consequently that facts available may be applied.
Particularly, where information is actually submitted in time to be verified, and
actually could be verified, … it should generally be accepted, unless to do so would
impede the ability of the investigating aut hority to complete the investigation within
the time limits established by the Agreement (Panel Report on United States – Anti-
Dumping Measures on Certain Hot Rolled Steel Products from Japan, WT/DS184/R,
circulated on 28 February 2001, at paras 7.54 and 7.55 respectively).
4.49 The EC agrees. A mere one-day delay, especially at the very outset of the investigation, is
clearly an insufficient ground for resorting to “facts available”.
4.50 Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for
submitting some supporting invoices. Nevertheless, the delay was, once again, very short: at most
three days. Moreover, the invoices were submitted in time to be verified and used by the DCD, and
were indeed used in one of the dumping calculations (the invoices were filed on 10 June 1999, and the
Final Dumping Determination was not issued until 23 September 1999).
4.51 More generally, Argentina complains about “repeated request for extensions” of deadlines
(“reiteradas solicitudes de prórrogas” ). In reality, however, the exporters requested only two
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 12 Arguments/Replies of the EC
extensions: one for filing the responses and another for submitting additional non-confidential
summaries and supporting invoices. The DCD agreed to both requests and is estopped from
complaining now that, as a result, the information was not submitted “within a reasonable period” or
that the extensions impeded the investigation.
(ii) Alleged failure to submit adequate non-confidential summaries
4.52 Argentina invokes as an additional ground for rejecting the responses that the exporters failed
to provide adequate non-confidential summaries.
4.53 This allegation is, to say the least, ironic. The actual fact is that the DCD’s relentless
demands forced the exporters to waive all its c onfidentiality claims and to disclose to their
Argentinean competitors highly sensitive price and cost information.
4.54 The EC recalls briefly the relevant facts.
4.55 Together with the questionnaire responses, the exporters submitted non-confidential
summaries. In preparing those summaries, the exporters applied the following principles:
(a) non-sensitive information was left unchanged in the summary;
(b) sensitive information covering several years/months was expressed in indexed form
(Annexes IV, V and VI); and
(c) other sensitive information was omitted from the summary (Annexes III, VII, VIII,
IX, X and XI).
4.56 The DCD gave no indication to the exporters that the non-confidential summaries were
inadequate until the Preliminary Dumping Dete rmination of 24 March 1999, i.e more than three
months after the filing of the responses.
4.57 By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality
requests or to supply more detailed non-confidential summaries. Specifically, these letters referred to
Annexes III, VII,VIII, IX, X and XI, i.e. to the Annexes for which no confidential summary had been
provided by the exporters.
4.58 Argentina now complains that the non-confidential summaries of Annexes IV, V and VI
containing indexed figures were insufficient. But this issue was not raised by the DCD in the
Preliminary Dumping Determination, or in the letters of 30 April 1999, or indeed at any stage of the
investigation.
4.59 Following the letters of 30 April 1999, the representatives of the exporters met with the case-
handlers on 11 May 1999. At that meeting, it was agreed that the exporters would submit non-
confidential summaries of Annexes VII (exports to Argentina), VIII (sales in Italy) and IX (export to
third countries), in which the names of the customers and the models would be replaced by “virtual
codes”.
4.60 On 4 June 1999 the four exporters submitted non-confidential summaries of Annexes VII,
VIII and IX in the format agreed at the meeting of 11 May. A “Conversion Table” indicating the
correspondences between each code number and the customer and model was submitted to the DCD
on a confidential basis.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 13
4.61 One should emphasize that the summaries submitted on 4 June contained the same
information as the confidential responses, with the only difference that the name of the model and of
the customer had been replaced by a code number. Thus, the summaries allowed the petitioners to
calculate by themselves the dumping margins by comp aring the actual prices in the domestic and the
export market. Clearly, this is more than enough to permit “a reasonable understanding of the
substance of the information submitted in confidence” as required by Article 6.5.1.
4.62 In spite of that, on 22 June 1999, the DCD sent a letter to the exporters requesting them to
waive the confidentiality of the product code. Within two days, the exporters agreed to that request.
4.63 By way of justification, the letter of 22 June asserted that the disclosure of the product code
was necessary so that the DCD “can make a precise comparison” (“ … a fin de que la [DCD] pueda
realizar una precisa comparación en su informe de determinación final del margen de dumping… ”).
This suggests that the Argentinean authorities thoroughly misunderstood the purpose of the non-
confidential summaries. Article 6.5.2 provides that information provided on a non-confidential basis
may be disregarded if the party concerned does not provide a confidential summary. But this does not
mean that the investigating authorities must base their findings on the information contained in the
non-confidential summaries. If so, the submission of information on a confidential basis would be
totally redundant. The non-confidential summaries serve exclusively to inform the other interested
parties, so that they can defend adequately their interests.
4.64 By letter of 3 August 1999, the DCD requested the exporters to waive the confidentiality of
the cost of production data contained in Annexes X and XI. On 10 August, the exporters agreed to
that request (rather misleadingly, the exporters’ response of 10 August is omitted in Argentina’s first
written submission).
4.65 Contrary to Argentina’s contentions, this sequence of events does not evidence lack of co-
operation on the part of the exporters, but rather the opposite.
4.66 Although the non-confidential summaries submitted by the exporters on 10 December 1998
might not have been sufficiently detailed, the DCD did not inform the exporters of this until more
than three months later. Thus, the DCD acted inconsistently with paragraph 6 of Annex II, which
requires that “if evidence or information is not accepted, the supplying party should be informed
forthwith of the reasons therefor…” (emphasis added by the EC).
4.67 Once the exporters were advised by the DCD that the non-confidential summaries were not
considered adequate, they agreed promptly to each of the successive, and increasingly exacting
demands made by the DCD.
4.68 Eventually, the exporters were led by the DCD’s demands to disclose to their Argentinean
competitors all the price and cost-of-production data for the investigation period included in their
responses, a type of information which is clearly en titled to confidential treatment in accordance with
Article 6.5. The EC is not aware of any other invest igating authority in the world that requires the
exporters to disclose that type of information, except under a narrowly drawn protective order (see
footnote 17 of the AD Agreement), a system which is not available in Argentina.
(iii) Alleged failure to provide supporting documents
4.69 Yet another ground invoked by Argentina for rejecting the exporters’ responses is their
alleged failure to provide “supporting documents”, and more particularly to provide copies of a
“sufficient” number of invoices for the sales made in the Italian market.
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4.70 Paragraph 1 of Annex II provides that the investigating authorities “should specify in detail
the information required” (emphasis added by the EC). The DCD’s questionnaire did not require the
exporters to provide copies of a “sufficient” number of invoices. Therefore, Argentina cannot
complain now if the exporters did not do so in their questionnaire responses.
4.71 The only reference to invoices is found in Section B of the questionnaire (“Exports to
Argentina”), which requests the exporters to provide “probatory documents which help to better
operación”), including invoices. This suggests that the DCD was interested in receiving only a few
examples of invoices. This would accord with the practice of most investigating authorities, which is
to ask for invoices during the subsequent on-the-spot verification, and not as part of the questionnaire
response.
4.72 Argentina argues now that one of the introductory paragraphs to the questionnaire stated that
the respondents should supply “supporting documents” ( “documentación respaldatoria” ). But that
reference is too vague to meet the requirements of paragraph 1 of Annex II. Moreover, taken literally,
it would have required the exporters to provide copies not only of the invoices, but of all the
accounting and cost records that are usually examined in the course of an on-the-spot verification.
4.73 Even though, with the sole exception just mentioned, the questionnaire did not require
specifically to provide copies of invoices, the expo rters did provide, by way of example, some copies
of invoices.
4.74 At any rate, the Preliminary Dumping Determination did not mention the alleged failure to
provide “supporting documents” as a reason for rejecting the responses. Rather, as mentioned before,
the Preliminary Dumping Determination suggested that the responses were rejected because the non-
confidential summaries were deemed inadequate.
4.75 Nor did the letters of 12 April 1999 mention specifically the alleged failure to provide
“supporting documents”, contrary to what is repeatedly asserted in Argentina’s first written
submission. Those letters referred exclusively to alleged deficiencies of the non-confidential
summaries.
4.76 It was only at the meeting of 11 May 1999 that the case-handlers requested specifically for
the first time that Casalgrande and Bismantova, th e two main exporters, provide copies of invoices
covering an “important” volume of sales. The case-handlers justified that request on the grounds that
they could not conduct on-the-spot verifications in Italy and, therefore, needed to check the responses
“from their offices”.
4.77 In response to the request made at the meeting of 11 May, the exporters concerned submitted
copies of invoices covering approximately 50 per cent of the sales in Italy and of the exports to
Argentina and third countries (together with a translation into Spanish of each invoice!).
4.78 The DCD made no further request for “supporting documents” during the remainder of the
investigation. The exporters, therefore, assumed that the DCD was satisfied with the documents
submitted.
(iv) Alleged lack of representativeness of the sample of exporters
4.79 Argentina also invokes the lack of representativeness of the sample of exporters as a reason
for resorting to “facts available”.
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Arguments/Replies of the EC Page 15
4.80 The EC rejects the contention that the sample was not representative. What matters is
whether the exports made by the selected exporters were representative of the exports to Argentina
covered by the investigation, and not whether the domestic sales made by the selected exporters were
representative of the domestic sales made by all the Italian producers of porcellanato (including those
made by the more than 100 producers which did not export to Argentina).
4.81 From that perspective, it is beyond question that the sample was sufficiently representative
since the four selected exporters accounted for more than 70 per cent of all the Italian exports to
Argentina during 1997.
4.82 Article 6.10 confirms that this is the relevant criterion. It provides that the examination may
be limited to a reasonable number of exporters by using statistically valid samples or, as an
alternative, to “the largest percentage of the volume of exports from the country in question which can
reasonably be investigated”.
4.83 Furthermore, even assuming that the sample were in fact not sufficiently representative, that
would still not justify the DCD’s decision to reso rt to “facts available”. Article 6.10 contains no
provision authorising the investigating authorities to resort to “facts available” in such circumstances.
The only options available under Article 6.10 would be: (1) to enlarge the sample; (2) to choose a
new sample; or (3) to extend the examination to all the exporters.
4.84 Argentina suggests that the alleged lack of representativeness of the sample amounts to a
refusal to provide necessary information in the sense of Article 6.8. However, the decision to limit the
examination to a sample of exporters was a decision taken by the DCD itself. Argentina cannot fault
now the non-selected exporters for failing to prov ide information that they were not requested to
provide.
4.85 Moreover, the DCD did at no point during the investigation inform the exporters or
Assopiastrelle that the sample was not considered representative. It was only in the Final Dumping
Determination that the DCD made for the first time some vague remarks in that sense. Nevertheless,
even at that late stage, the DCD refrained from drawing any conclusions. Thus, once again, this is but
an ex post justification.
4.86 Argentina further suggests that the lack of representativeness of the sample could be
established by the DCD only at a late stage of the investigation because of the delay in providing
“supporting documents”. This is not true. As explained before, the “supporting documents” in
question were supplied as soon as they were requested by the DCD. Moreover, nothing prevented the
DCD from checking the representativeness of the samp le on the basis of the confidential information
contained in the questionnaire responses filed on 10 December 1998.
4.87 Furthermore, given Argentina’s view that the percentage of domestic sales, and not the
percentage of exports, is the decisive criterion, the DCD could, and indeed should have requested that
information from Assopiastrelle before taking any decision on the sampling.
(v) Other alleged deficiencies
4.88 Argentina also alleges in passing a series of miscellaneous deficiencies in the questionnaire
responses. The EC submits that some of them were not such, while the others were minor omissions
which did not warrant the DCD’s decision to reject the responses.
4.89 First, Argentina alleges that Caesar and Marazzi did not provide information with respect to
their export sales to third countries. This is true. But Argentina misleadingly omits to mention that the
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Page 16 Arguments/Replies of the EC
questionnaire allowed the exporters not to provide such information if the domestic sales were
sufficiently representative. Caesar and Marazzi relied expressly upon that possibility.
4.90 Second, Argentina contends that Marazzi did not provide cost-of-production data for the
models exported to Argentina. However, Marazzi explained in its response that the models exported
to Argentina were the same as those sold in Italy and had the same cost of production, except for the
differences in selling expenses.
4.91 Third, Argentina complains that three of the exporters did not provide a Spanish translation of
their balance sheet. Again, this is correct but ca nnot justify the rejection of the responses. The
requested translation cannot be considered as “necessary information” in the sense of Article 6.8,
given that the essential content of the document in question were figures, that Italian and Spanish are
closely related and that, in particular, the accounting terminology is very similar in both languages.
Moreover Italian is widely understood in Argentina.
4.92 It is worth noting that the DCD accepted as good the “translation” provided by Marazzi. Yet
Marazzi limited itself to translate one word in the front page, namely the word “esercicio”, which
Marazzi rendered somewhat inaccurately as “año”, the precise translation being “ejercicio”. This
confirms that the requested translations were by no means necessary.
4.93 Finally, Argentina complains that Bismanto va provided the information requested in
Annex VI (a summary table of the sales made during the last four years in different markets) in Italian
Lire instead of in US$. With respect, it is simply ridiculous to pretend that this minor omission
impeded significantly the investigation.
(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.94 The EC replied to the first set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement as follows.
4.95 The Panel asked the parties whether, in their view, the DCD rejected the information from the
exporters for one of the reasons set out in Article 6.8 AD Agreement. The Panel further asked
whether reference was made in the record to one of these reasons and, if so, where. The Panel also
asked under what circumstances an investigating authority may resort to secondary source
information outside the specific circumstances of Article 6.8 AD Agreement.
4.96 To this question, the EC provided the following reply.
4.97 As explained in the EC’s first written submission, during the consultations Argentina did not
argue that the information submitted by the exporters had been rejected on any of the grounds set out
in Article 6.8. Instead, Argentina argued that the exporters’ information had been “considered” on an
“equal footing” with the information supplied by the petitioner. This suggests that the DCD based its
final determination on the erroneous premise that the investigating authority is free to use secondary
sources of information, such as import statistics or data supplied by the petitioner, even if the
circumstances specified in Article 6.8 are not present.
4.98 As discussed in the EC’s first written submission, that position is untenable under the AD
Agreement. Predictably, in its first written submission Argentina invokes a misunderstanding on the
part of the EC and argues that the DCD did in fact reject the exporters’ information for the reasons set
out in Article 6.8.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 17
4.99 Argentina’s new position is not supported by the record of the investigation. The Final
Dumping Determination does not mention anywhere that the exporters’ information had to be rejected
for any of the reasons set out in Article 6.8. Moreover, the DCD did at no point during the
investigation inform the exporters that their res ponses had been rejected for the reasons set out in
Article 6.8, contrary to the requirement imposed by paragraph 6 of Annex II.
4.100 Argentina’s new position also is contradicted by the fact that the DCD did use the exporters’
information in one of the two dumping margin calculations contained in the Final Dumping
Determination, albeit arbitrarily averaged with secondary source information. Obviously, this would
not have been possible if the exporters had failed to provide necessary information, or if such
information had been deemed unreliable by the DCD.
4.101 The Panel recalled that Argentina’s first written submission alleged that the exporters’
questionnaire responses were deficient in many ways. In particular, that such questionnaire responses
were submitted late, were not fully translated, lacked public summaries of confidential information
sufficiently detailed, lacked some currency conversions, failed to report data on exports to third
countries and costs of the product exported, and lacked supporting documentary evidence. The Panel
asked Argentina which of these deficiencies, if any, were relied upon by the DCD for its final
determination. The Panel further asked if Argentina could provide the Panel with the relevant
references in either the report accompanying the final determination or in the administrative record.
4.102 To this question, the EC provided the following reply.
4.103 The DCD’s Final Dumping Determination does not say anywhere that the exporters’
information had to be rejected for any of the reasons stated in Article 6.8. Nor did the DCD inform
the exporters that their responses had been rejected, as required by paragraph 6 of Annex II.
4.104 The following is a summary of the references made in the record to the grounds invoked now
by Argentina in order to reject the responses.
(i) Late submission of the questionnaire responses and of supporting evidence
4.105 The Preliminary Dumping Determination and the Final Dumping Determination record the
dates on which the exporters’ submissions were made. But they make no suggestion to the effect that
information was submitted late or that it was rejected for that reason.
(ii) Non-confidential summaries
4.106 The Preliminary Dumping Determination sugge sts that the information on normal value
provided by the exporters was disregarded for reasons related to the confidentiality requests, but such
reasons are not specified. No similar suggestion is found in the export price section of the
Preliminary Dumping Determination.
4.107 The DCD’s letters of 30 April 1999 requested the exporters to waive their confidentiality
requests or supply more detailed non-confidential summaries of Annexes III, VII, VIII, IX, X, and XI.
Those letters make no reference to the non-confidential summaries of Annexes IV, V and VI.
4.108 The letter of 22 June 1999 requested the exporters to disclose the “product code” included in
the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999.
4.109 The letter of 3 August 1999 requested the exporters to waive the confidentiality requests or
supply more detailed non-confidential summaries of Annexes X and XI.
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4.110 The Final Dumping Determination records the above letters and the exporters’ replies. It does
not mention anywhere that the information submitt ed by the exporters in response to the DCD’s
requests was deemed insufficient or that the exporters’ normal value and export price information was
rejected because the exporters failed to disclose confidential information or provide adequate non-
confidential summaries.
(iii) Supporting evidence
4.111 The Preliminary Dumping Determination did not mention the lack of supporting evidence,
and in particular of invoices. Nor was this supposed deficiency mentioned in the letters of
30 April 1999. This issue was raised for the first time by the DCD at the meeting of 11 May 1999.
4.112 The letters of 22 June 1999 and of 3 August 1999 contain no reference to this alleged
deficiency.
4.113 The Final Dumping Determination records that Bismantova and Casalgrande submitted the
requested invoices on 7 and 11 June 1999, respectively. It makes no suggestion to the effect that the
exporters failed to provide sufficient supporting in voices (or any other supporting evidence), or that
the normal value and export price information supplied by the exporters was disregarded for that
reason.
(iv) Representativeness of the domestic sales
4.114 The supposed lack of representativeness of the domestic sales reported by the exporters was
mentioned for the first time in the Final Dumping Determination. Moreover, the DCD did not draw
any conclusions from this.
(v) Currency conversions
4.115 The Preliminary Dumping Determination records that the exporter Bismantova completed the
tables in Annex VI in Italian lire and provided exchange rates between that currency and the US$, but
attaches no consequences to this. This issue was not raised again until Argentina’s first written
submission to the Panel.
(vi) Export sales to third countries
4.116 The Preliminary Dumping Determination records that Marazzi and Caesar did not report
export sales to third countries in Annex IX, together with the explanations given by both exporters to
the effect that such information was not provided in accordance with the instructions contained in the
questionnaire, which only required to complete Annex IX in the event that the volume of domestic
sales was not sufficiently representative. The Preliminary Dumping Determination attaches no
consequences to this. This issue was not raised again by the DCD and is not mentioned in the Final
Dumping Determination.
(vii) Cost-of-production data for the exported merchandise
4.117 The Preliminary Dumping Determination records that Marazzi did not report cost of
production data for the exported merchandise in A nnex XI, together with Marazzi’s explanation that
the cost of production of the exported merchandise was the same as that of the merchandise sold in
Italy. The Preliminary Dumping Determination attaches no consequences to this. The issue was not
raised again by the DCD during the investigation and is not mentioned in the Final Dumping
Determination.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 19
(viii) Translation of accounting documents
4.118 The Preliminary Dumping Determination mentions that Bismantova, Casalgrande and Caesar
did not provide a Spanish translation of their balance sheet, but attaches no consequences to this. The
issue was not raised again by the DCD during the investigation.
4.119 The Panel recalled that Argentina, in paragraph 39 of its first written submission, states that
“the submission of information and documentation for which confidential treatment is requested
constitutes a limiting factor with respect to the analysis and public conclusions of the implementing
authority” (emphasis added by Argentina). The Pa nel asked Argentina whether, in its opinion, the
confidential nature of the information submitted constituted a constraint on the investigating
authority’s ability to base its determination on that information. The Panel further asked Argentina to
explain in which way it considered that confidential ity limited the DCD’s analysis in this case. The
Panel also asked the EC to comment on the above-quoted statement from Argentina.
4.120 To this question, the EC provided the following reply.
4.121 Argentina’s interpretation is mistaken. Articles 6.5.1 and 6.5.2 of the Anti-Dumping
Agreement do not require the investigating authority to base its findings on non-confidential
information. Indeed, if so, the submission of confidential information by the parties would be totally
redundant.
4.122 Article 6.5.2 provides that the investigating authority may, subject to certain requirements,
disregard confidential information. This provision would be unnecessary if the investigating authority
had to use always non-confidential information.
4.123 Further confirmation is provided by Articles 12.2.1 and 12.2.2, which stipulate that the notice
or the report of the imposition of provisional and definitive measures, respectively, shall pay due
regard to the requirement for the protection of confidential information. Again, this would have been
unnecessary if the dumping and injury determinations had to be based exclusively on non-confidential
information.
4.124 Dumping and injury determinations require necessarily the use of information which is
confidential by nature, including information which is not capable of summarization. Argentina’s
interpretation would make it impossible for the investigating authority to make an accurate dumping
or injury determination without violating its duties under Article 6.5. The present case proves this
point. The DCD was able to make a dumping determination (partially) based on non-confidential
information supplied by the exporters only because the exporters had been forced previously to
relinquish virtually all their confidentiality claims.
4.125 The Panel asked the Parties whether they drew a distinction between the obligation of
authorities to protect confidential information from disclosure, on the one hand, and the obligation of
authorities to use for their determinations exporter data that meets the requirements of the Agreement.
4.126 The EC replied that the investigating authority must base its determination of dumping on
information provided by the exporter, including that for which confidential treatment has been
requested. The investigating authority may not disregard the information provided in confidence by
the exporter and resort to “facts available” except in the circumstances specified in Article 6.5.2.
4.127 The Panel recalled Argentina’s statement that , according to the DCD, the non-confidential
summaries submitted by the exporters were insufficient under Article 6.5.1 AD Agreement, since this
provision required that such summaries permit a “reasonable understanding of the substance of the
information provided in confidence”. The Panel asked the parties how did they interpret the objective
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Page 20 Arguments/Replies of the EC
of Article 6.5.1, that is, whose “reasonable understanding” was being addressed – that of the public or
that of the investigating authorities?
4.128 The EC replied that the non-confidential summaries provided for in Article 6.5.1 serve
exclusively to inform the other interested partie s. They constitute a compromise between the
conflicting objectives of protecting the confidentiality of the information supplied by each party and
of allowing the other parties to defend adequately their interests.
4.129 The Panel asked the parties whether the following summary of relevant facts was correct.
The exporters requested confidentiality for most of the information provided in their questionnaire
reply. On 30 April 1999, the DCD sent letters to the exporting firms requesting them to consider
providing a more detailed non-confidential summary than that already provided in the questionnaire
replies, to elaborate on the information supplied, or to remove the requested confidentiality that had
been granted by the investigating authority. More specifically, information on sales in the Italian
market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X) was
requested. On 4 June 1999, the exporting firms submitted public and confidential information
concerning domestic sales of the product concerned, with conversion tables that were submitted as
confidential information. On 7 June 1999, Bismantova and Casalgrande further submitted as
confidential information sales invoices relating to the Italian domestic market. By its letters of
22 June 1999 and 3 August 1999, the DCD requested the exporting firms to reconsider the requested
confidentiality of the information concerning pr oduct codes and the production costs. The DCD’s
report acknowledged that the exporting firms agreed by letters of 23 and 24 June that the product code
item could be made non-confidential. On 10 August 1999, the exporting firms further agreed to
remove the confidentiality of the item concerning cost of production provided that the names of the
companies relating to each cost structure were not revealed.
4.130 To this question, the EC provided the following reply.
4.131 The above summary of the facts is generally correct. Nevertheless, some additional
clarifications were in order:
(a) The letters of 30 April 1999 did not request the exporters to provide “information on
sales in the Italian market (Annex VIII) and the cost structure of the goods in the
domestic Italian market (Annex X)”. Those letters mentioned exclusively the
supposed deficiencies of the non-confidential summaries. Moreover, the letters
addressed to Bismantova and Caesar did not mention Annex X.
(b) The EC recalls that on 11 May 1999 representatives of the exporters held a meeting
with the case-handlers, in which the DCD specified its requests.
(c) On 4 June 1999, the four exporters did not submit “public and confidential
information concerning domestic sales”, but rather a non-confidential summary of
both their domestic and export sales as previously reported in their questionnaire
responses. In addition, as indicated correctly in the summary, they submitted in
confidence conversion tables, with the product and customer codes.
(d) On 7 and 10 June 1999, Casalgrande and Bismantova submitted not only invoices of
domestic sales, but also invoices of export sales to Argentina and to third countries.
(e) The letter of 22 June 1999 requested exclusively the disclosure of the “product code”
used in the non-confidential summaries of Annexes VII and VIII submitted on 4 June
1999. The disclosure of the cost of production tables (Annexes X and XI) was
requested for the first time in the letter of 3 August 1999.
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Arguments/Replies of the EC Page 21
4.132 The Panel asked the parties to clarify whether, in light of the exporters’ agreement to re-
classify the information as requested, the concerns the DCD raised with regard to the confidential
nature of the information at the time of the preliminary determination (recorded on page 23 of the
DCD’s Final Dumping Determination) had been resolved by the time of the final determination. The
Panel further asked the parties to indicate which of the exporters’ information, if any, was still
confidential at the time of the final determin ation. If certain information had remained as
confidential, the Panel also asked the parties to clarify whether non-confidential summaries were
provided for this confidential information.
4.133 To this question, the EC provided the following reply.
4.134 In response to the DCD’s requests, the exporters were forced to waive virtually all their
confidentiality requests. Thus, they assumed that all the concerns of the DCD with respect to this
issue had already been resolved by the time of the final determination. Indeed, as mentioned above,
the Final Dumping Determination does not say anywhere that that the information submitted by the
exporters in response to the DCD’s requests was deemed insufficient or that the exporters’ normal
value and export price information was rejected because the exporters failed to disclose confidential
information or provide adequate non-confidential summaries.
4.135 More specifically, at the time of the final determination, the exporters maintained the
following confidentiality requests:
(a) Annex III (list of customers): the exporters did not provide a non-confidential
summary for this Annex. The EC considers that this information is not capable of
summarization (see Panel Report on Guatemala – Definitive Anti-Dumping Measures
on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
at para. 8.211).
(b) Annex IV (information on the exporter’s market situation), Annex V (summary of
sales in different markets – quantity) and Annex VI (summary of sales in different
markets – value): the exporters provided non-confidential summaries together with
their questionnaire responses of 10 December 1998, in which the actual figures had
been replaced by indexes. Argentina raised no objections with respect to the non-
confidential summaries of these Annexes until its first written submission in these
proceedings.
(c) Annex VII (export sales to Argentina), Annex VIII (domestic sales) Annex IX (export
sales to other markets): following the DCD’s requests of 30 April 1999 and of 22
June 1999, the exporters maintained their confidentiality requests only with respect to
the customer code.
(d) Annexes X and XI (cost of production tables): in response to the DCD’s request of
3 August 1999, the exporters accepted to disclose these Annexes, provided that the
name of the exporter was kept confidential.
(e) Invoices: the exporters requested confidential treatment for the invoices submitted on
7 and 10 June 1999. Nevertheless, the contents of these invoices are summarised in
the non-confidential summaries provided on 4 June 1999.
4.136 The Panel asked Argentina to explain the relevance of the DCD’s finding that the four
exporters included in the sample only represented 1.92 per cent of the total volume of sales in the
home market. In particular, did the 1.92 per cent refer to all sales made by Italian producers,
including those with no exports to Argentina? If this was the case, the Panel asked the parties whether
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Page 22 Arguments/Replies of the EC
they were of the view that, as a legal matter, companies selected for an individual determination have
to account collectively for a large percentage of all home market sales made.
4.137 To this question, the EC provided the following reply.
4.138 Article 6.10 allows the investigating authority to limit the examination to (1) a statistically
valid sample of exporters; or (2) the largest percentage of the volume of exports from the country in
question which can reasonably be investigated. The question posed by the Panel may arise only
where the investigating authority resorts to the first method.
4.139 In the present case, it is unclear which of the two methods permitted by Article 6.10 was
followed by the DCD, even if both parties have been referring, without too much precision, to a
“sample” of exporters. The following comments are, therefore, based on the assumption that the
DCD intended to select a “statistically valid sample”.
4.140 The purpose of an anti-dumping investigation is to establish whether the exports under
investigation are dumped. The existence of dumping does not require the existence of domestic sales.
Therefore, there is no reason why a sample should include a large percentage of domestic sales.
4.141 This interpretation is supported by the second method provided in Article 6.10. If the
percentage of domestic sales is irrelevant for the purposes of that method, why should it be considered
as decisive when applying the first method?
4.142 At any rate, assuming that the percentage of domestic sales were in fact relevant in assessing
whether a sample is statistically valid for the purposes of Article 6.10, Argentina disregards that, as
noted by Japan in its third party submission, a sample covering a relatively small percentage of the
relevant universe may nevertheless be “statistically valid”.
4.143 The Panel asked the parties to confirm whether that the four exporters included in the sample
accounted, in quantity terms, for around 70 per cent of all exports made.
4.144 The EC replied that this had been the case.
4.145 The Panel asked the parties to comment on the relevance of the fact that the DCD initially
accepted the sampling methodology suggested by the exporters’ association, although the sampled
firms were later found by the DCD to cover too few home sales.
4.146 The EC replied that the decision to limit the examination to the four exporters concerned was
a decision of the DCD, even if it was suggested by Assopiastrelle. The DCD could and should have
verified in advance the representativeness of the sample. Consequently, the DCD is estopped from
claiming now that the sample was not representative.
4.147 The Panel recalled that the exporters’ questionnaire made reference to the provision of
supporting documentation in two places. In the introductory section, while indicating that supporting
documentation must be provided, it also allowed exporters the possibility to identify instead the
source of the information reported. In addition, Section B requested the submission of any supporting
documentation that would help the DCD to better understand the mechanics of the reported
transactions. The Panel asked Argentina whether it was of the view that, according to the
specifications of the questionnaire used by the DCD, respondents were obliged to provide full
documentary evidence of each and every sale reported. The Panel further asked Argentina to clarify
whether any of the exporters chose to comply with the requirement set out in the introductory section
of the questionnaire by identifying the source of its information. If no exporters took advantage of
that option, the Panel asked Argentina whether it was of the view that the DCD was entitled to require
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 23
the submission of “additional” supporting documentation without specifying what that information
should consist of.
4.148 The EC replied that the exporters’ replies to Annexes VII, VIII and IX include the number
and the date of the sales invoices from which the information reported in those Annexes was derived.
Thus, in any event, those Annexes would satisfy the requirement to indicate the “source of the
information”.
4.149 The Panel recalled that, on page 14 of the EC’s first written submission, the EC argued that
the Argentine authority acted inconsistently with paragraph 6 of Annex II of the AD Agreement, by
failing to inform the exporters that their responses had been rejected and by failing to state the reasons
therefor. The Panel asked the EC whether this is not a separate claim of the EC but rather an
additional argument in support of the EC’s clai m that the DCD disregarded the normal value and
export price information of the exporters inconsistently with Article 6.8 and Annex II.
4.150 The EC replied that this was the case.
(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel
with the parties, that relate to the EC’s claim under Article 6.8 of the AD Agreement
4.151 The EC replied to the questions made by Argentina relating to the EC’s claim under
Article 6.8 of the AD Agreement as follows.
4.152 Argentina asked the EC why it considers irrelevant the legal requirement to provide
translations set forth in article 28 of Decree 1759/72, when the EC regards as mandatory article 25 of
that same Decree, regarding deadlines for submitting documents in administrative proceedings
conducted in Argentina.
4.153 To this question, the EC replied as follows.
4.154 The two situations can be easily distinguished.
4.155 The interpretation of the obligations imposed upon the investigating authority by the AD
Agreement cannot be left to the discretion of each Member. Thus, the definition of what constitutes
“necessary information” or a “reasonable period” made in the domestic law of each Member is subject
to review by Panels.
4.156 Nonetheless, each Member’s own interpre tation of those notions creates legitimate
expectations for the interested parties. The inve stigating authority is estopped from claiming that
information submitted within the deadline whic h it has prescribed (computed according to the
applicable domestic rules) has not been submitted within a “reasonable period”.
4.157 Argentina asked the EC what value the EC attaches to non-confidential summaries, bearing in
mind the obligations arising from Article 6.5.1, if, as argued by the EC in its first oral statement, “the
non confidential summaries serve exclusively to inform the other interested parties, so that they can
defend adequately their interests”.
4.158 The EC replied that its answer to this question was reflected in its answers to questions 3, 4
and 5 made by the Panel following the first meeting.
4.159 Argentina asked the EC why it believed there would not be a justification for resorting to the
“facts available” even in situations where samples turn out to be admittedly not representative.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 24 Arguments/Replies of the EC
4.160 The EC replied that the decision to limit the examination to a sample of exporter is taken by
the investigating authority, which must satisfy itse lf in advance that the sample is sufficiently
representative. Thus, the situation described in the question might arise only as a result of the
investigating authority’s own fault. Exporters should not be penalized for the lack of diligence of the
investigating authority.
4.161 The circumstances in which the investigating authority may resort to facts available are
enumerated exhaustively in Article 6.8. Neither that provision, nor Article 6.10 authorise the
investigating authority to use facts available in the event that the sample turns out not to be
sufficiently representative in the course of the investigation.
4.162 Argentina asked the EC how one check the veracity of the pricing information regarding
home-market sales in the absence of supporting documentation relating to those sales. Argentina
further asked the EC how one can check the veracity of this kind of information in cases where the
investigating authorities are unable to conduct an on-site verification. Argentina also asked the EC
why it gave greater value to an on-site verification than to the provision of supporting documentation.
4.163 The EC replied that its point was simply that the questionnaire did not request the exporters to
provide copies of all invoices and that, moreover, this would have been a most unusual request in light
of the verification methods usually followed by most investigating authorities.
4.164 Argentina asked the EC why it considered “ridiculous” the issue of currency conversions,
even through Article 2.4 of the AD Agreement specifically dealt with the way in which those
conversions shall take place. Argentina further asked the EC whether it considered that exchange
rates did not have an impact in the calculation of dumping margins. Argentina also asked the EC
whether it was of the view that it was unreasonable to request the submission of exchange rate data in
order to avoid assigning staff to calculate the value of each of the sales falling within the period of
investigation.
4.165 The EC replied that the alleged deficiency concerned exclusively Annex VI, which contains a
summary of the sales by market. The 24 amounts reported in that Annex were not used in the
dumping calculation. In any event, they can be easily converted into US$ by using the exchange rates
provided by Bismantova or other publicly available rates.
(e) Arguments of the EC in its second written submission in support of its claim under Article 6.8
of the AD Agreement
4.166 In its second written submission, the EC made the following arguments in support of its claim
under Article 6.8 of the AD Agreement.
4.167 During the consultations, Argentina argued that the information submitted by the exporters
had not been rejected. Rather, according to Argentina, that information was “considered” by the DCD
on an “equal footing” with the information supplied by the petitioner.
4.168 That position is clearly untenable under the AD Agreement. Thus, predictably, in its first
written submission Argentina invokes a misunderstanding on the part of the EC and argues that the
DCD did in fact reject the exporters’ informati on for the reasons set out in Article 6.8 of the AD
Agreement.
4.169 The grounds invoked now by Argentina for resorting to “facts available” are either wrong as a
matter of fact, or clearly insufficient as a matter of law, or both.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 25
4.170 Furthermore, Argentina’s new position is not supported by the record of the investigation.
The DCD did at no point during the investigation inform the exporters that their responses had been
rejected for the reasons set out in Article 6.8, contrary to the requirement imposed by paragraph 6 of
Annex II. Moreover, the Final Dumping Determ ination does not mention anywhere that the
exporters’ information had to be rejected for any of those reasons, contrary also to paragraph 6 of
Annex II.
(i) Alleged late submission of the questionnaire responses
4.171 In its first written submission, Argentina contended that the exporters filed their responses to
the questionnaire one day after the expiry of the deadline imparted by the DCD.
4.172 Nevertheless, in its first oral statement Argentina qualified this by noting that:
considerar la presentación efectuada a pesar de ser tardía (Argentina’s first oral
statement, at para. 11).
4.173 Thus, Argentina seems to admit that the alleged delay in submitting the questionnaire
responses is not a sufficient ground for resorting to “facts available” or, at least, that it was not
considered as such by the DCD. In view of that, it is difficult to understand what is the relevance, if
any, of this argument.
4.174 At any rate, it is not true that the responses were submitted late by the exporters. Article 25 of
Decreto 1.759/72, which implements the Ley de Procedimientos Administrativos No. 19.549, allows
the filing of documents within the first two work ing hours of the day following that in which a
deadline expires. The questionnaire responses were filed at 10.00 AM of 10 December 1998 (the
hour of reception of the responses is stamped on the cover letters) and, therefore, within the
prescribed deadline. It may be added that the representatives of the exporters had informed in
advance the DCD that they would make use of the possibility provided in Article 25 of Decreto
1.759/72. The DCD raised no objections.
4.175 Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for
submitting some supporting invoices. Nevertheless, the delay was short: at most three days.
Moreover, the EC recalls that no provision of th e Anti-Dumping Agreement allows the investigating
authorities to resort to “facts available” simply because the party concerned has missed a deadline.
Article 6.8 provides that the investigating authority may resort to “facts available” when necessary
information is not submitted “within a reasonable period of time”, while paragraph 3 of Annex II
requires that all information which is submitted “in a timely fashion” should be taken into account.
4.176 Interpreting these two provisions, the recent panel report on US – Hot Rolled Steel concluded
that:
What is a ‘reasonable period’ will not, in all instances be commensurate with pre-
established deadlines ... a rigid adherence to such deadlines does not in all cases
suffice as the basis for a conclusion th at information was not submitted within a
reasonable period and consequently that facts available may be applied.
Particularly, where information is actually submitted in time to be verified, and
actually could be verified, … it should generally be accepted, unless to do so would
impede the ability of the investigating aut hority to complete the investigation within
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Page 26 Arguments/Replies of the EC
the time limits established by the Agreement (Panel Report on United States – Anti-
Dumping Measures on Certain Hot Rolled Steel Products from Japan , WT/DS184/R,
circulated on 28 February 2001, at paras. 7.54 and 7.55).
4.177 Casalgrande submitted the requested invoices in time to be used by the DCD (the invoices
were filed on 10 June 1999, and the Final Dumping Determination was not issued until 23 September
1999). And, indeed, the DCD did use them in one of the dumping calculations. Therefore, the DCD
cannot pretend now that this delay impeded the investigation. Moreover, the DCD did not inform
Casalgrande that the evidence filed on 10 June 1999 had been rejected. Nor is the rejection of that
evidence mentioned in the Final Dumping Determination.
4.178 More generally, Argentina complains about “repeated request for extensions” of deadlines
(“reiteradas solicitudes de prórrogas” ). In reality, however, the exporters requested and obtained
only two extensions: one for filing the responses and another for submitting additional non-
confidential summaries and supporting invoices. The DCD agreed to both requests and cannot
complain now that, as a result, the information was not submitted “within a reasonable period” or that
the extensions impeded the investigation.
4.179 Finally, the EC rejects the contention made by Argentina in its oral statement, according to
which the deadline for submitting the questionnaire responses would have been successively
“extended” by the DCD from 30 November 1998 until 10 August 1999, i.e. until the date were the
exporters responded to the DCD’s letter of 3 August 1999. The letters of 30 April 1999, 22 June 1999
and 3 August 1999 did not grant any “extensions” for answering to the questionnaire responses. They
contained additional requests to remedy the alleged deficiencies of the non-confidential summaries,
which were promptly and satisfactorily answered by the exporters.
(ii) Alleged failure to submit adequate non-confidential summaries
4.180 Argentina invokes as an additional ground for rejecting the responses that the exporters failed
to provide adequate non-confidential summaries.
4.181 This allegation is, to say the least, ironic. The actual fact is that the DCD’s relentless
demands forced the exporters to waive all its c onfidentiality claims and to disclose to their
Argentinean competitors highly sensitive price and cost information.
4.182 Together with the questionnaire responses, the exporters submitted non-confidential
summaries. In preparing those summaries, the exporters applied the following principles:
(a) non-sensitive information was left unchanged in the summary;
(b) sensitive information covering several years/months was expressed in indexed form
(Annexes IV, V and VI); and
(c) other sensitive information was omitted from the summary (Annexes III, VII, VIII,
IX, X and XI).
4.183 The DCD gave no indication to the exporters that the non-confidential summaries were
inadequate until the Preliminary Dumping Determination of 24 March 1999, i.e. more than three
months after the filing of the responses.
4.184 By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality
requests or to supply non-confidential summaries. Specifically, the letters addressed to Bismantova
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 27
and Marazzi referred to Annexes III, VII,VIII, IX, X and XI, whereas those addressed to Bismantova
and Caesar mentioned only Annexes III, VII, VIII and IX.
4.185 Argentina now complains that the non-confidential summaries of Annexes IV, V and VI
containing indexed figures were insufficient. But this issue was not raised by the DCD in the
Preliminary Dumping Determination, or in the letters of 30 April 1999, or indeed at any stage of the
investigation.
4.186 Following the letters of 30 April 1999, the representatives of the exporters met with the case-
handlers on 11 May 1999. At that meeting, it was agreed that the exporters would submit non-
confidential summaries of Annexes VII (exports to Argentina) and VIII (sales in Italy), in which the
names of the customers and the models would be replaced by “virtual codes”. No requests were made
with respect to the other Annexes for which the exporters had requested confidential treatment.
4.187 On 4 June 1999 the four exporters submitted non-confidential summaries of Annexes VII and
VIII in the format agreed at the meeting of 11 May 1999. A “Conversion Table” indicating the
correspondences between each code number and the customer and model was submitted to the DCD
on a confidential basis.
4.188 It bears emphasising that the non-confidential summaries submitted on 4 June 1999 contained
the same information as the confidential responses of 10 December 1998, with the only difference that
the name of the model and of the customer had been replaced by a code number. Thus, the summaries
allowed the petitioners to calculate by themselves the dumping margins by comparing the actual
prices in the domestic and the export market. Clearly, this is more than enough to permit “a
reasonable understanding of the substance of the information submitted in confidence” as required by
Article 6.5.1 of the AD Agreement.
4.189 In spite of that, on 22 June 1999, the DCD sent a letter to the exporters requesting them to
waive the confidentiality of the product code. Within two days, the exporters agreed to that request.
4.190 By way of justification, the letter of 22 June 1999 asserted that the disclosure of the product
code was necessary so that the DCD “can make a precise comparison” ( “… a fin de que la [DCD]
pueda realizar una precisa comparación en su in forme de determinación final del margen de
dumping …” ). Thus, the DCD appears to have taken the position that the investigating authority can
only make a final determination of dumping based on non-confidential information. Argentina’s first
written submission reflects the same position. For the reasons explained in the EC’s answers to some
of the questions made by the Panel following the first meeting, that view has no basis on the Anti-
Dumping Agreement and is clearly mistaken.
4.191 By letter of 3 August 1999, the DCD requested the exporters to waive the confidentiality of
the cost of production data contained in Annexes X and XI. On 10 August 1999, the exporters agreed
to that request (although rather misleadingly, the exporters’ response of 10 August 1999 is omitted in
Argentina’s first written submission).
4.192 Contrary to Argentina’s contentions, the above sequence of events does not evidence lack of
co-operation on the part of the exporters, but rather the opposite. Once the exporters were advised by
the DCD that the non-confidential summaries submitted together with the questionnaire responses on
10 December 1998 were not considered adequate, they responded promptly to each of the successive
and increasingly exacting demands made by the DCD.
4.193 Eventually, the exporters were led by the DCD’s demands to relinquish virtually all their
confidentiality requests (while it is true that the EC “never lifted the confidentiality” of the items
listed therein, the degree of disclosure accepted by the EC had essentially the same result), and to
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 28 Arguments/Replies of the EC
disclose to their Argentinean competitors all the price and cost-of-production data for the
investigation period included in their responses, a type of information which is clearly entitled to
confidential treatment in accordance with Article 6.5 of the AD Agreement.
4.194 Having answered promptly and satisfactorily to all the DCD’s requests, the exporters assumed
that all the concerns of the DCD with respect to this issue had already been resolved by the time of the
final determination. And, indeed, the Final Dumping Determination does not mention anywhere that
the exporters’ normal value and export price information was rejected because the exporters failed to
disclose confidential information or provide adequate non-confidential summaries.
(iii) Alleged failure to provide supporting documents
4.195 Another ground invoked by Argentina for rejecting the exporters’ responses is their alleged
failure to provide “supporting documents” (“documentación respaldatoria”), and more particularly to
provide copies of a “sufficient” number of invoices of the sales made in the Italian market.
4.196 Paragraph 1 of Annex II of the AD Agreement provides that the investigating authorities
“should specify in detail the information required” (emphasis added by the EC). The questionnaire did
not require the exporters to provide copies of a “sufficient” number of invoices for verification
purposes. Therefore, Argentina cannot complain now if the exporters did not do so in their
questionnaire responses.
4.197 The only reference to invoices made in the questionnaire is found in Section B (“Exports to
Argentina”),
 which requests the exporters to provide “probatory documents which help to better
operación”), including invoices. This suggests that the DCD was interested in receiving only a few
examples of invoices.
4.198 Moreover, the questionnaire requested the exporters’ consent for carrying out on-the-spot
verifications, something to which all of them agreed. Thus, the exporters could assume legitimately
that the DCD would verify the responses by conducting on-the-spot investigations, rather than
through the unusual method of asking the exporters to supply, together with their responses, the
invoices of all the reported transactions.
4.199 Argentina argues now that one of the introductory paragraphs to the questionnaire stated that
the respondents should supply “supporting documents” ( “documentación respaldatoria” ). But that
reference is too vague to meet the requirements of paragraph 1 of Annex II. Moreover, taken literally,
it would have required the exporters to provide copies not only of the invoices, but of all the
accounting and cost records that are usually examined in the course of an on-the-spot verification.
That demand would be clearly unreasonable.
4.200 The AD Agreement envisages that the informa tion provided by interested parties will be
verified by means of on-the spot investigations (see Article 6.7 and Annex I of the AD Agreement).
An investigating authority may chose not to conduct such investigations. But, if so, it cannot impose
upon the exporters the burden of supplying all the supporting documents that might have been
requested in the course of an on-the-spot verification (and, in addition, translated into the authority’s
official language!).
4.201 Furthermore, the introductory paragraph of the questionnaire cited by Argentina allows the
exporters to indicate the “source of the information” (“fuente de la información”) as an alternative to
supplying the supporting documents. Annexes VII, VIII and IX mentioned the number and the date
of the invoices from which the information reported in those Annexes was derived. Thus, the
exporters’ responses would in any event have satisfied this requirement.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 29
4.202 At any rate, the Preliminary Dumping Determination did not mention the alleged failure to
provide “supporting documents” as a reason for rejecting the responses. Rather, as mentioned before,
the Preliminary Dumping Determination suggested that the responses were rejected because the non-
confidential summaries were deemed inadequate.
4.203 Nor did the letters of 30 April 1999 mention the alleged failure to provide “supporting
documents”, contrary to what is repeatedly asserted in Argentina’s first written submission and in its
first oral statement. Those letters referred exclusively to alleged deficiencies of the non-confidential
summaries.
4.204 It was only at the meeting of 11 May 1999 that the case-handlers requested for the first time
that Casalgrande and Bismantova, the two main exporters, provide copies of invoices covering an
“important” volume of sales.
4.205 In response to the request made at the meeting of 11 May 1999, the exporters concerned
submitted copies of invoices covering approximately 50 per cent of the sales in Italy and of the
exports to Argentina and third countries (together with a translation into Spanish of each invoice!).
4.206 The DCD made no further request for “supporting documents” during the remainder of the
investigation. The exporters, therefore, could assume legitimately that the DCD was satisfied with the
documents submitted.
4.207 The Final Dumping Determination comforts that assumption. It confirms that the exporters
submitted the requested invoices. It makes no suggestion to the effect that the exporters failed to
provide sufficient supporting invoices (or any other supporting evidence) or that the normal value and
export price information supplied by the exporters was disregarded for that reason.
(iv) Alleged lack of representativeness of the domestic sales reported by the selected exporters
4.208 Argentina also invokes the supposed lack of representativeness of the domestic sales reported
by the selected exporters as a reason for resorting to “facts available”.
4.209 As noted by the Panel in its questions to the parties, it is unclear whether Argentina complains
that the sample of exporters was not representative or, rather, that the domestic sales reported by the
selected exporters were not sufficient for the purposes of establishing the normal values (the EC has
not been able to establish how the percentages mentioned by Argentina at paragraphs 43 and 50 of its
first written submission have been calculated).
4.210 For the reasons already explained in its first oral statement and in the answers to the questions
made by the Panel following the first meeting, the EC rejects the contention that the sample of
exporters was not representative.
4.211 Likewise, the EC rejects the allegation that the domestic sales reported by the selected
exporters were insufficient. As explained in the EC’s answer to a question by the Panel, the exporters
reported in Annex VIII of their responses all the domestic transactions of each of the models exported
to Argentina in significant quantities (the total volume and value of the sales of all models made in
Italy is reported in Annexes V and VI, respectively, of the questionnaire responses).
4.212 The domestic sales of the other models were not reported in that Annex because that
information was not required in order to make a model-to-model comparison of the normal value with
the export price. Contrary to Argentina’s assertions, this approach was clearly explained in the
questionnaire responses and was never contested by the DCD.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 30 Arguments/Replies of the EC
4.213 The reported domestic transactions of each model represented more than 5 per cent of the
volume of the exports sales of the same model. Moreover, taken together, the reported domestic sales
represented more than 5 per cent of the overall export sales of each exporter (the Final Dumping
Determination states, on page 29, that the volume of the domestic sales reported by Caesar
represented 4.46 per cent of its exports to Argentina during 1998. That figure is incorrect.
According to the EC’s own calculations, the correct figure is 7.35 per cent for 1998 and 10.6 per cent
for the whole investigation period, which included also 1997). Therefore, the reported sales were
sufficient for the purposes of establishing the normal values (see footnote 2 of the AD Agreement).
They were certainly more “representative” than the seven invoices supplied by the petitioner and
relied upon by the DCD.
4.214 Furthermore, the DCD did at no point during the investigation inform the exporters that the
reported domestic transactions were insufficient. It was only in the Final Dumping Determination that
the DCD made for the first time some remarks in that sense. Nevertheless, even at that late stage, the
DCD refrained from drawing any conclusions.
4.215 Argentina argues that the lack of representativeness of the reported domestic transactions
could be established by the DCD only at a late stage of the investigation because of the delay in
providing “supporting documents”. This is not true. The “supporting documents” in question (i.e. the
non-confidential summaries submitted on 4 June 1999) were supplied by the exporters as soon as they
were requested by the DCD. In any event, the DCD did not need those summaries in order to
establish whether the sales reported in the questionnaire responses were sufficient for the purposes of
establishing the normal values. Argentina makes again the error of assuming that the determination of
dumping must be based on non-confidential information.
4.216 At any rate, this alleged deficiency would concern only part of the information supplied by
the exporters. Even if the domestic sales reported by the exporters had in fact been insufficient for
establishing the normal values, that would not provide a valid justification for disregarding also the
export price information supplied by the exporters in the questionnaire responses.
(v) Other alleged deficiencies
4.217 Argentina also alleges in passing a series of deficiencies of the questionnaire responses. As
explained below, some of those alleged deficien cies were not such, while the others were minor
omissions which did not warrant th e DCD’s decision to reject all the information contained in the
responses.
(vi) Export sales to third countries
4.218 Argentina alleges that Caesar and Marazzi did not provide information with respect to their
export sales to third countries.
4.219 This is true. But Argentina misleadingly omits to mention that the questionnaire allowed the
exporters not to provide such information if the volume of domestic sales was sufficiently
representative. Caesar and Marazzi relied expressly upon that possibility.
4.220 At any rate, the DCD never informed Marazzi and Caesar that their responses had been
rejected for this reason. The Preliminary Dumping Determination records that Marazzi and Caesar
did not report export sales to third countries in Annex IX, together with the explanations given by
both exporters to the effect that such information was not provided in accordance with the instructions
contained in the questionnaire, but attaches no consequences to this omission. This issue was not
raised again by the DCD during the investigation and is not mentioned in the Final Dumping
Determination.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 31
(vii) Cost of production data for the exported merchandise
4.221 Argentina also alleges that Marazzi did not provide cost-of-production data for the models
exported to Argentina.
4.222 Again, this allegation is misleading. Marazzi explained in its response that the models
exported to Argentina were the same as those sold in Italy and had the same cost of production, except
for the differences in selling expenses.
4.223 Moreover, the DCD never informed Marazzi that its response had been rejected for this
reason. The Preliminary Dumping Determination records that Marazzi did not report cost of
production data for the exported merchandise in Annex XI, together with Marazzi’s explanations, but
draws no consequences from this. The issue was not raised again by the DCD during the
investigation and is not mentioned in the Final Dumping Determination.
(viii) Currency conversions
4.224 Argentina complains that Bismantova provided the information requested in Annex VI in
Italian Lire instead of in US$.
4.225 This is clearly a minor deficiency which, contrary to Argentina’s allegations, could not have
impeded significantly the investigation. Annex VI is a summary table of the sales turnover by market.
Bismantova reported in that Annex a total of 24 amounts. Those amounts can be easily converted into
US$ by using the exchange rates provided by Bismantova or other publicly available rates.
4.226 In any event, the DCD never informed Bismanto va that it would reject the response for this
reason. The Preliminary Dumping Determination mentions that Bismantova completed the tables in
Annex VI in Italian Lire and provided exchange rates between that currency and the US$, but attaches
no consequences to this. This issue was not raised again during the investigation and is not mentioned
in the Final Dumping Determination.
(ix) Translation of accounting documents
4.227 Finally, Argentina complains that three of the exporters did not provide a Spanish translation
of their balance sheet.
4.228 Again, this is correct but cannot justify the rejection of the responses. The requested
translation cannot be considered as “necessary information” in the sense of Article 6.8, given that the
essential content of the document in question were figures, that Italian and Spanish are closely related
and that, in particular, the accounting terminology is very similar in both languages. Moreover Italian
is widely understood in Argentina.
4.229 It is worth noting that the DCD accepted as good the “translation” provided by Marazzi. Yet
Marazzi limited itself to translate one word in the front page, namely the word “esercicio”, which
Marazzi rendered somewhat inaccurately as “año”, the precise translation being “ejercicio”. This
confirms that the requested translations were by no means necessary.
4.230 At any rate, once again, the DCD did not inform the exporters concerned that their responses
had been rejected on this ground. The Preliminary Dumping Determination mentions that
Bismantova, Casalgrande and Caesar did not provide a Spanish translation, but draws no
consequences from this. The issue was not raised again by the DCD during the investigation and is
not mentioned in the Final Dumping Determination.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 32 Arguments/Replies of the EC
(x) Paragraph 6 of Annex II
4.231 The DCD failed to comply with the requirements imposed by paragraph 6 of Annex II. It did
not inform forthwith the exporters of the rejection of their responses and it failed to give the reasons
for such rejection in the Final Dumping Determination.
4.232 Argentina contends that it complied with the requirement to inform the exporters in the letters
of 30 April, 22 June and 3 August 1999. However, those letters were concerned exclusively with the
alleged deficiencies of the non-confidential summaries, which were in any event remedied by the
exporters well before the final determination. Those letters make no reference to any of the other
grounds for rejecting the responses now invoked by Argentina.
4.233 Argentina also failed to comply with the requir ement to explain in the final determination the
reasons for rejecting the evidence provided by the ex porters. In its first oral statement, Argentina
raises the extraordinary argument that the DCD’s decision to resort to facts available is “reflected” on
page 39 of the Final Dumping Determination, where the DCD “incorporates” the allegations
(“alegatos”) of the petitioner. There is, however, an obvious difference between the allegations made
by an interested party and the findings of the inve stigating authority. The mere fact that the Final
Dumping Determination reproduces the allegations of the petitioner cannot be taken to mean that
those allegations were upheld by the investigation authority. The Final Dumping Determination also
“incorporates” the allegations made by the exporters, including the allegation that the sales were not
made at dumping prices. Yet the EC would not mistake those allegations for the DCD’s findings.
(f) Arguments of the EC in its second oral statement in support of its claim under Article 6.8 of
the AD Agreement
4.234 In its second oral statement, the EC made th e following arguments relating to its claim under
Article 6.8 of the AD Agreement.
(i) Information on export sales
4.235 In Annex VII of the questionnaire responses the exporters reported all the sales made to
Argentina of all the models exported in significant quantities. Moreover, the exporters provided to the
DCD copies of invoices covering approximately 50 per cent of those sales. Yet that information, and
the supporting invoices, were totally disregarded by the DCD.
4.236 In response to a question from the Panel, Argentina mentions, for the very first time, that the
export price information supplied by the exporters was disregarded because it could not be “cross-
checked” (“cruzada”) with the official import statistics and the questionnaire responses of some
importers.
4.237 This “revelation” leaves us astonished. The exporters were at no point during the
investigation informed of the discrepancies now al leged by Argentina. Nor are such discrepancies
mentioned anywhere in the Final Dumping Determination or, indeed, in any of Argentina’s previous
submissions to this Panel.
4.238 Argentina’s explanations not only arrive too late, but are also insufficient. Argentina does not
bother to specify what were the alleged discrepancies. Moreover, Argentina does not explain why the
secondary sources used by the DCD were deemed more reliable than the information supplied by the
exporters regarding their own sales, including the invoices.
4.239 The EC is convinced that the alleged discrepancies could have been satisfactorily explained
by the exporters, if only they had been given a chance to do so. By denying such opportunity to the
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 33
exporters, the DCD acted inconsistently, once again, with paragraph 6 of Annex II and, consequently,
with Article 6.8 of the Anti-Dumping Agreement.
(ii) Confidentiality
4.240 In response to a question from the Panel, Argentina asserts that the concerns expressed by the
DCD with respect to this issue in the preliminary determination had not been resolved by the time of
the final determination because “the essential information in order to determine the normal value, the
export price and the dumping margin continued to be confidential until the final determination (and
still remains so)” (“… la información sustancial a fin de determinar el valor normal, el valor de
subsiste)”.
4.241 Argentina appears to disregard, once again, that, under Article 6.5 of the AD Agreement,
interested parties have a right to request confidential treatment. Thus, the mere fact that the exporters
maintained some of their confidentiality requests woul d not, in itself, be a sufficient justification for
disregarding their responses. Rather, Argentina would have to demonstrate that all the requirements
for resorting to Article 6.5.2 were met.
4.242 Moreover, Argentina makes again the fundamental mistake of considering that the
determination of dumping can be based only on non-confidential information.
4.243 In any event, Argentina’s contentions are totally unsupported. Argentina does not say what
“essential” information remained undisclosed by the time of the final determination.
4.244 Furthermore, Argentina’s contentions are unfounded. It is undisputed that the exporters
disclosed all the information on domestic prices and on export prices contained in Annexes VII and
VIII, with the only exception of the customer codes. It is also undisputed that the exporters disclosed
all the cost of production data reported in Annexes X and XI, except the name of the producers.
Those Annexes do contain the “essential” information for calculating the dumping margin.
4.245 Finally, if the DCD remained unsatisfied with the non-confidential summaries by the time of
the final determination, why is the Final Dumping Determination silent on this issue?
(iii) Supporting documents
4.246 The EC rejects once again Argentina’s contention that the questionnaire required the
exporters to provide a “sufficient” number of invoices for verification purposes.
4.247 The new arguments made by Argentina in its second written submission, like those made in
earlier submissions, are contrived and unconvincing. The AD Agreement requires the investigating
authority to specify “in detail” the information requested from the exporters (see Annex II,
paragraph 1). The DCD failed to do so. It would be unreasonable to read into a vague instruction to
provide the “documentación correspondiente”, without any further specification, a requirement to
supply copies of a “sufficient” number of invoices of the domestic sales listed in Annex VIII
(whatever Argentina means now by “sufficient”).
4.248 Moreover, on Argentina’s own interpretation, the questionnaire would be internally
contradictory:
(a) the section entitled Objetivos y Alcances requires to provide supporting documents or,
alternatively, to cite the source of information;
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 34 Arguments/Replies of the EC
(b) yet, point 1 of the Instrucciones Generales requires to provide the “documentación
correspondiente”, which would suggest that it is not sufficient to cite the source of
information;
(c) finally, Section B (exports to Argentina), but not sections C (sales in Italy) and D
(export sales to third countries), requires to provide invoices with the purpose of
helping the DCD to “achieve a better understanding of the transactions” ( “… que
ayude a una mejor comprensión de la operación” ). That request, however, would
have been totally redundant if, as argued now by Argentina, the Objetivos y Alcances
section and the Instrucciones Generales already required to provide copies of a
“sufficient” number of invoices with verification purposes.
4.249 The EC also rejects Argentina’s assertions that a request to provide supporting documents
was made in the letters of 30 April 1999. Argentina quotes selectively from those letters.
4.250 The letters of 30 April 1999 did not request the exporters to supply “nuevos elementos
probatorios …”. Rather, the letters allude to:
información obrante en las actuaciones (emphasis added by the EC).
4.251 It is also misleading to suggest that the letters requested from the exporters “una ampliación
de la información adjuntada”. The relevant passage requests the exporter to evaluate:
detallado o bien una ampliación de la información adjuntada o, en su defecto, proceda
a habilitar la incorporación de dicha documentación a las actuaciones de referencia,
levantando el carácter de confidencial oportunamente solicitado (emphasis added by
the EC).
4.252 The letters of 30 April 1999 reflect the DCD’s erroneous view that only non-confidential
information can be used in the dumping calculation and, therefore, that the information covered by a
confidentiality request cannot be “ incorporada a las actuaciones ”. The letters do not request the
exporters to supply any “supporting documents”, but rather to waive their confidentiality requests
with respect to information already contained in the questionnaire responses of 10 December 1998, so
that such information can be “ incorporada a las actuaciones ”. Thus, the “ elementos probatorios”
mentioned in the letter of 30 April 1999 were “new” only in the sense that they had not been
“incorporados a las actuaciones” yet by the DCD, because they were covered by a confidentiality
request.
4.253 Furthermore, the letters of 30 April 1999 refer expressly to Article 6.5 of the Ley No. 24.425,
which is the equivalent provision of Article 6.5 of the AD Agreement, and not to the equivalent
provision of Article 6.8, thus confirming that thos e letters are concerned exclusively with the issue of
the confidentiality requests made by the exporters.
4.254 For those reasons, the EC reiterates its position that the provision of supporting invoices with
verification purposes was requested for the first time at the meeting with the case-handlers of
11 May 1999.
4.255 In any event, the EC considers that this issue is ultimately irrelevant, since it is not disputed
that the requested invoices were submitted by the exporters on 7 and 11 June 1999 and, thus, could,
and indeed were used by the DCD in the final determination, albeit arbitrarily averaged with the
petitioner’s information.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 35
4.256 Argentina contends that the invoices were not representative of the exporters’ domestic sales.
However, the invoices covered approximately 50 per cent of the domestic sales reported in the
questionnaire responses. Therefore, they were clearly representative of those transactions. Thus, in
reality, Argentina’s argument appears to be that the transactions reported in the questionnaire
responses, rather than the invoices, were not representative, which leads me to the next point of our
statement.
(iv) Representativeness of domestic sales
4.257 As already explained by the EC, the exporters reported in Annex VIII of their responses all
the domestic transactions of each of the models exported to Argentina in significant quantities. The
domestic sales of the other models were not reported in that Annex because that information was not
required in order to make a model-to-model comparison of the normal value with the export price.
This approach was clearly explained in the questionnaire responses and was never contested by the
DCD in the course of the investigation.
4.258 The domestic sales reported by the exporters in Annex VIII were certainly more
“representative” than the eight invoices supplied by the petitioner and relied upon by the DCD.
Moreover, of those eight invoices, four correspond to sales of polished tiles (which according to
Argentina’s explanations were not used in the dumping calculation) and another to a sale of tiles of
12.5 cm x 25 cm.
4.259 Furthermore, the DCD never informed the expor ters that the domestic sales reported in the
questionnaire responses were insufficiently representative. It was only in the Final Dumping
Determination that the DCD made for the first time some remarks in that sense. Nevertheless, even at
that late stage, the DCD refrained from drawing any conclusions.
(g) Replies of the EC to the second set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.260 The EC replied to the second set of questions by the Panel regarding the EC’s claim under
Article 6.8 of the AD Agreement as follows.
4.261 The Panel recalled that, with respect to Anne xes IV-VI, the exporters provided information
for which they requested confidential treatment, as well as a non-confidential summary of the
information concerned. The Panel recalled further that this summary was prepared by way of
indexing all the figures provided in those Annexes. The Panel asked the parties why the DCD was of
the view that indexation did not permit a “reasonable understanding of the substance of the
information submitted in confidence”.
4.262 The EC replied that this issue was not rais ed by the DCD in the Preliminary Dumping
Determination, or in the letters of 22 April 1999, or indeed at any stage of the investigation.
Furthermore, this issue was nowhere mentioned by the DCD in the Final Dumping Determination. It
was no more than an ex-post facto justification and, as such, should be rejected by the Panel.
4.263 The Panel recalled that, with respect to Annexes III and VII-XI of the investigation
questionnaire, the exporters provided information for which they requested confidential treatment,
although they did not provide a non-confidential summ ary of the information concerned. The Panel
asked the parties whether the exporters provided a justification as to why such information was not
capable of summarization (that is, a justification separate from the statement that the information in
question required confidential treatment). If this was so, the Panel asked the parties to provide it with
copies of the relevant evidence in the record.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 36 Arguments/Replies of the EC
4.264 To this question, the EC gave the following reply.
4.265 In the EC’s view, the Panel need not reach th e issue of whether the information contained in
Annexes VII-XI was capable of summarization.
4.266 The EC recalls that on 4 June 1999 the exporters submitted non-confidential summaries of
Annexes VII-IX in the format agreed with the cas e-handlers at the meeting of 11 May 1999. Those
summaries contained the same information as the confidential responses of 10 December 1998, with
the only difference that the name of the model and of the customer had been replaced by a code
number. On 24 June 1999, the exporters agreed to a further request from the DCD to waive the
confidentiality of the product code. At the request of the DCD, the exporters also agreed to waive the
confidentiality of all the cost of production data contained in Annexes X and XI, on condition that the
identity of the producer was kept confidential.
4.267 Thus, contrary to what is suggested in the question, the only Annex for which the exporters
did not provide a non-confidential version was Annex III (list of customers). The type of information
contained in that Annex (a list of names) is clea rly not capable of summarization. And, indeed, the
DCD appears to agree since it did not request the exporters to disclose the customer names in the non-
confidential summaries of Annexes VII and VIII submitted on 4 June 1999.
4.268 If the exporters did provide a justification as to why the information for which confidential
treatment was requested was not capable of summarization, the Panel asked whether the parties were
of the view that under Article 6.5.1 of the AD Agreement investigating authorities have the right to
contest such justifications. If so, the Panel asked further, did the DCD conclude, contrary to the
exporters, that the information in question could in effect be summarized? If the DCD made this
conclusion, could Argentina explain the DCD’s reasoning?
4.269 The EC replied that its answer to this question was the same as its answer to the previous
question.
4.270 The Panel asked the parties to comment on th e following statement in the report of the
Appellate Body in Thailand – H-Beams, in which the Appellate Body addressed the question of the
use of confidential information by the investigat ing authority as a basis for an authority’s final
determination:
An anti-dumping investigation involves the commercial behaviour of firms, and,
under the provisions of the Anti-Dumping Agreement, involves the collection and
assessment of both confidential and non-confidential information. An injury
determination conducted pursuant to the provisions of Article 3 of the Anti-Dumping
Agreement must be based on the totality of that evidence. We see nothing in
Article 3.1 which limits an investigating auth ority to base an injury determination
only upon non-confidential information (Appellate Body Report, Thailand – Anti-
Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, at para. 107).
4.271 The EC replied that Argentina’s position in this case reflects the erroneous assumption that
only non-confidential information can be used in a dumping determination. The ruling of the
Appellate Body in Thailand – H Beams confirms that such view is thoroughly mistaken.
4.272 The Panel recalled that Exhibit EC-10 was a report of the meeting with the case-handlers on
11 May 1999 from the representatives of the exporters in Argentina to the exporters’ lawyers in
Brussels. The report reflected the discussions with the case handlers, concerning the non-confidential
information that needed to be provided, in the following manner:
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 37
Additionally, this information must cover an “important” part of total sales in the
domestic market (you said 50 per cent – I don’t know, I guess that is largely enough),
the coverage must be September 1997 – October 1998, and we have to present
invoices (with confidential status) supporting this non-confidential version.
4.273 The Panel asked Argentina whether this was an accurate reflection of what was said during
that meeting and of the requests for information that were made. Further, the Panel asked Argentina
whether the case-handlers at the 11 May meeting requested invoices from two exporters only
(Casalgrande and Bismantova). The Panel asked the parties next whether the 50 per cent coverage
mentioned in this paragraph related to the provision of non-confidential information, or to the
documentation supporting the information provided. The Panel also asked the parties whether the
50 per cent related to all sales made in the home market, or only to the sales reported by the exporters.
4.274 To this question, the EC provided the following reply.
4.275 During the meeting of 11 May 1999, the case-handlers made two requests:
(a) first, that all the four exporters provide a non-confidential summary of the domestic
and export sales reported in their questionnaire responses in accordance with the
agreed format described in Exhibit EC-10; and
(b) second, that the main two exporters (Bismantova and Casalgrande) provide copies of
a “sufficient” number of supporting invoices for the domestic and export transactions
reported in the questionnaire responses.
4.276 The case-handlers explained that the invoices were requested in order to verify the
transactions reported in the confidential version of the questionnaire responses. According to the
case-handlers, it was necessary to resort to this method of verification because the DCD could not pay
verification visits to Italy. The case-handlers made no suggestion to the effect that the transactions
reported in the confidential version of the questionnaire responses were insufficient.
4.277 During the meeting, Mr. Di Gianni (of the law firm Van Bael & Bellis of Brussels), asked
whether it would be sufficient to provide invoices covering 50 per cent of the sales reported in the
questionnaire responses. The case-handlers agreed.
4.278 The above is confirmed by another report sent by Mr. Di Gianni to the Italian exporters on
19 May 1999, in which it was explained that:
… we have decided … to co-operate with [the DCD] and to include in the non-
confidential reply a list of sales in Italy and in Argentina. From such a list, the names
of the supplier and customers should be eliminated. The other information, including
the prices and quantities should be kept.
Moreover, it would be advisable to submit a copy of the invoices concerning the sales
reported in the reply for the period September 1997 to September 1998. The
Dumping Team would appreciate it receiving at least 50 per cent of the sales reported
for that period (free translation from the Italian language by the EC).
4.279 As a final remark, the EC would recall that Annex II, paragraph 1, provides that the
investigating authority must “specify in detail” the information requested from the exporters. The fact
that it has become necessary to engage into the exegesis of internal reports of the exporters in order to
ascertain what “supporting documents” were actually requested by the DCD is in itself sufficient
evidence that the DCD failed to comply with that requirement.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 38 Arguments/Replies of Argentina
2. Argentina
(a) Arguments of Argentina in its first written submission relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.280 In its first written submission, Argentina made the following arguments relating to the EC’s
claim under Article 6.8 of the AD Anti-Dumping Agreement.
4.281 Argentina first laid out the facts relevant for the presentation of its arguments.
(i) General facts
4.282 The record of the case, File No. 061-000794/98 of the Registry of the Ministry of the
Economy and Public Works and Services, incorporated by reference in Resolution 1385/99
introducing the anti-dumping measures in question, demonstrates that the claims of the EC are
erroneous. The above-mentioned file explains clearly that Argentina had valid recourse to Article 6.8
of the AD Agreement.
4.283 Argentina considers that the exporting firms si gnificantly impeded the investigation, refused
access to necessary information and did not provide it within a reasonable period. This assertion is
based on the facts contained in the record of the case.
4.284 By Note SSCE No. 945/98 of 9 October 1998, the implementing authority sent a certified
copy of the Resolution initiating this investigatio n to the Counsellor of the European Commission in
Argentina, informing him that “… under Article 6.1 of Law 24.425 (the Argentine law approving the
Uruguay Round Agreements, duly notified to the WTO), all interested parties in an anti-dumping
investigation shall be given notice of the information which the authorities require and ample
opportunity to submit in writing all evidence which they consider relevant …”.
4.285 The then Secretary for Industry, Trade and Mining of Argentina informed the Government of
Italy, by its note of 10 November 1998, that “... the fullest transparency will be ensured at every stage
of the proceedings, and pursuant to the appropriate legal provisions, all relevant technical and formal
requirements will be respected …”. The note went on to state that “… we repeat that the institutions
involved in these proceedings are ready at any time to provide both the Government of Italy and the
firms and entities concerned with technical advice regarding the various stages of the investigation
and the particular features of the case”.
4.286 These notes reflect the willingness of the Argentine Government to give the exporters every
opportunity to defend their interests in conformity with Articles 6.1 and 6.2 of the AD Agreement.
(ii) Lack of cooperation from the exporters in the light of Article 6.8 of the AD Agreement
4.287 Despite having been invited to an information meeting, the exporters did not attend.
Argentina draws the Panel’s attention to the note dated 28 October 1998, sent by Assopiastrelle to the
DCD (File No. 061-009413 – folio 1), which states “… we regret to inform you that, owing to the
distance and our business commitments, it will be impossible for us to attend …”.
4.288 The information meeting was held on 30 October 1998. DCD officials answered all the
participants’ questions in order to dispel their doubts regarding the procedures and the required
information, and supplied them with the questionnaires. The record of that hearing, which lists the
participating entities and shows that the exporting companies and/or their representatives were absent,
has been attached to the record. Because the expo rters were present at that meeting, the Italian
Embassy agreed to send them the questionnaires.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 39
4.289 It should be pointed out that the explanatory section of each questionnaire sets out the general
and specific instructions for each of the required items, so that the parties could respond properly, in
such a way as to enable the implementing authorit y to use the data supplied by the exporters and
importers at the time of the preliminary and definitive determination.
4.290 In addition, the instructions emphasize that “producers and/or exporters from the respondent
country must answer this questionnaire with the greatest possible precision, attaching documentation
to support its replies, or, if this is impossible, indicating the source of the information”. In other
words, in no case was it sufficient to state, for ex ample, for determining the normal value, that a
certain number of sales had been made, without backing up that information with a sufficient number
of sales invoices for the domestic market. The sample evidence in support of the replies needed to be
sufficiently extensive to allow a precise evaluation of the information submitted. Argentina submits
that the attached replies did not fulfill the time, quality and quantity requirements that would have
enabled the DCD to use them as a basis for reaching a determination. Nevertheless, the DCD took the
trouble to consider the information supplied on the basis of the standard of review of the
AD Agreement. That standard recognizes the principle of deference to the implementing authority, in
the context of anti-dumping investigations, as regards the analysis of the facts and definition of the
scope of the obligations of the Agreement (Article 17.6 of the AD Agreement).
4.291 The period originally granted for the submission of the forms and replies to the questionnaires
expired on 30 November 1998. In response to the requests for extension sent by the foreign exporting
firms and national importers concerned, and in conformity with Article 6.1.1 of the AD Agreement,
the DCD granted an additional non-extendable period for all submissions, expiring on
9 December 1998, so that the participating firms could duly complete their respective questionnaires,
including sufficient supporting documentation, and appropriate evidence (Notes DCD Nos. 273-
000414/98, 273-000429/98 and 273-000430/98 of 19 and 27 November 1998 stated that, in view of
the request for an additional period for submission of the questionnaire for foreign
producers/exporters, duly completed and with the necessary supporting documentation, “… it has
been decided to grant the extension, setting 9 December 1998 as the final deadline for submission
…”).
(iii) Qualitative, quantitative and time-related deficiencies in the information submitted
4.292 Article 6.8 of the AD Agreement states as follows:
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 (emphasis added by Argentina).
4.293 As regards the information supplied in the replies to the questionnaires for
producers/exporters, this submission will only highlight the points in which Argentina considers that
the producing/exporting companies impeded the investigation , by failing to comply with required
formalities in the general and specific instructions of the questionnaires, by not providing the
necessary information within a reasonable period, even when granted repeated extensions, by not
supplying, with the questionnaires, sufficient supporting documentation (requested for verification
purposes), by not providing enough information in the confidential summaries, by not providing any
summary in certain cases, and also by the delay and reluctance they displayed in removing the
confidentiality of the information supplied, a step which was absolutely necessary to enable the DCD
to take account of that information and make it public as an element considered in its decisions.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 40 Arguments/Replies of Argentina
Replies to the questionnaires
4.294 The four exporting companies making up the sample submitted the following documentation
through their representatives on 10 December 1998:
(a) Completed questionnaire for producers/exporters.
(b) Report on procedural deficiencies.
(c) Report on the methodology for selection of the sample.
4.295 The extension granted by the DCD for submitting the forms and replies expired on
9 December 1998. The companies concerned were late in submitting the information, there were a
number of formal breaches, and the summaries of the information were insufficient to permit the use
of the data supplied, or in some cases were missing altogether.
4.296 As regards the accounting statements submitted by the sample companies, it is important to
point out that they were not accompanied by any Spanish translation (except in the case of Marazzi),
as required by the general instructions (item 2 of the questionnaire) which refer to the Law on
Administrative Procedures No. 19.549, Regulato ry Decree No. 1759/72, as harmonized in 1991 by
Decree No. 1883/91.
4.297 In this regard the DCD stated, by Notes DCD Nos. 273-000404/99, 273-000405/99, 273-
000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi
(Section 25 of File No. 061-000794/98), that “it is of the utmost importance that all the information
and/or documentation presented should be in Spanish or translated into Spanish by a certified
translator (Articles 15 and 28, in accordance with the Law on Administrative Procedures No. 19.549,
Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91) in order to be
considered in the present proceedings”.
4.298 In the case of information requested by the DCD and submitted by the four representative
companies in Annex III – List of importers in Ar gentina and third countries of the goods under
investigation, Annex IV – Information on the producer/exporter market, Annex V – Summary of
producer/exporter sales (physical volume) and Annex VI – Summary of producer/exporter sales
(estimated volume), the information was presented as confidential, and for reasons of competition, a
non-confidential summary was supplied.
4.299 With respect to the said documentation and given the importance of the information supplied,
classified as confidential, Argentina considers that the lack of non-confidential summaries “in
sufficient detail to permit a reasonable understanding of the substance of the information submitted in
confidence” (Article 6.5.1 of the AD Agreement) shows a failure to cooperate in clarifying during the
investigation whether there was dumping or not.
4.300 The fact that the DCD considered that the summ aries were not sufficiently detailed to permit
a reasonable understanding of the substance of the information, in particular, the information
corresponding to Annexes V and VI without whose supporting documentation it could not validly be
considered for the purposes of reaching a determination of the normal value, is apparent from the
repeated requests to provide further supporting documentary evidence and to remove the
confidentiality or provide sufficiently detailed non-confidential summaries, as can be seen from the
DCD Notes to the four exporting companies concerned on 30 April 1999, 22 June 1999 and
3 August 1999.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 41
4.301 In the particular case of the information presented in Annex VI by Bismantova, the latter
supplied the information in Italian lire, adding a note with the exchange rates for the years 1995, 1996
and 1997 and January-October 1998. Here it should be emphasized that point 6 of the specific
instructions to the questionnaire clearly states that the table in Annex VI must be in US$. Providing
this information in Italian lire shows a lack of cooperation and an effort to impede the investigation,
as well as a failure to comply with a formal requirement of the procedure established in respect of the
implementing authority.
4.302 Similarly, Bismantova stated that Rondine S.p.A. was its controlling company, holding a
60 per cent share, and that these companies were separate legal entities, with independent accounting
records.
4.303 The DCD was thus obliged to handle this in formation separately in reaching the final
determination, in view of the high percentage of unpolished porcellanato sales on the Italian
domestic market between related companies. It was therefore necessary for the DCD to separate sales
made to the controlling company, Rondine, from those made to the remaining customers on the said
market. In particular, folios 27 and 28 of the Final Dumping Determination state that:
In the specific case of the manufacturing export company Ceramica Bismantova
S.p.A., it should be stated that the sample documentation supplied with respect to its
sales on the Italian market showed a high percentage of transactions involving the
sale of unpolished porcellanato in that market between related companies. Thus,
approximately 50 per cent of the documentation submitted by the said company
involved sales to its controlling company, Rondine S.p.A., from which it in fact buys
its inputs for the production of porcellanato. The reply to the questionnaire for
exporters originally submitted (Company Structure – File No. 061-10307/98 of 10
December 1998, included in Section XXI, folio 881, sheet 10) reveals that Rondine
S.p.A. has a 60 per cent share in Ceramica Bismantova S.p.A.
In accordance with the procedures set forth above, the Directorate of Unfair
Competition divided the documentation submitted by Ceramica Bismantova S.p.A.
in respect of domestic market sales into those made to its controlling company,
Rondine S.p.A., and those made to the re maining customers on the said market,
designated as ‘other customers’.
This procedure revealed that taking the total samples submitted to the Directorate, the
share of ‘other customers’ in the sales of unpolished 20 cm x 20 cm porcellanato was
71 per cent, while Rondine S.p.A.’s share was 29 per cent. In the case of 30 cm x 30
cm tiles, the respective shares were 39 per cent and 61 per cent, while in the case of
40 cm x 40 cm tiles, the shares were 7 per cent for ‘other customers’ and 93 per cent
for the controlling company Rondine S.p.A.
Moreover, in the specific case of prices relating to transactions with ‘other
customers’, there were price differences of some 13.69 per cent for 20 cm x 20 cm
porcellanato tiles, 26.87 per cent for 30 cm x 30 cm tiles and 30.08 per cent in the 40
cm x 40 cm segment. These differences were not justified by the exporting company.
4.304 As regards Annex VII – Actual exports to Argentina, Annex VIII – Sales in the Italian
domestic market, Annex IX – Exports to third countries, Annex X – Cost structure of the goods under
investigation in the Italian domestic market and Annex XI – Cost structure of the exported goods, the
companies supplied the data as confidential information, attaching a brief note regarding its
confidential status and citing reasons of competition as justification.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 42 Arguments/Replies of Argentina
4.305 As reflected in File No. 061-000794/98 incorporated by reference in Resolution 1385/99, the
DCD considered that, in the case of the informa tion contained in the above-mentioned Annexes, the
grounds given for confidentiality were somewhat thin. Nevertheless, the implementing authority was
quite willing to accept the confidentiality, even wh ere the companies had not so much as provided a
sufficiently detailed non-confidential summary to permit a reasonable understanding of the substance
of the information submitted in confidence, or offered any justification as to why this was not done,
ignoring the provisions of Article 6.5.1 of the AD Agreement.
4.306 Notwithstanding the above, the DCD repeated ly requested further supporting documentation,
removal of the confidentiality or at least the submission of sufficiently detailed summaries (Notes of
30 April 1999, 22 June 1999 and 3 August 1999). On the one hand, this shows the willingness of the
implementing authority to use all the informati on supplied and, on the other hand, the importance
attached to such information, even though the la tter proved to be insufficient as supporting
documentation.
4.307 In particular, it should be emphasized that Caesar and Marazzi did not submit any information
on exports to third countries (Annex IX), nor did th e latter submit any information referring to the
cost structure of the exported goods (Annex XI). In Argentina’s view, this failure to submit
information constitutes at the very least an impediment to the investigation, if not a refusal to provide
access to information that is essential in itself.
4.308 Finally, it should be emphasized that, during the evidence-gathering period, none of the
exporters offered any evidence, but merely replied to the questionnaire without furnishing sufficient
supporting documentation.
Requests to elaborate on the insufficient supporti ng documentation, to remove the confidentiality
or, where appropriate, to provide sufficiently detailed non-confidential summaries
4.309 In its preliminary determination, the DCD stated that the fact that the foreign companies had
asked most of the information they supplied to be declared confidential implied differential and
restricted treatment in processing that info rmation. The final determination shows that the
implementing authority was restricted in its handling of the information, and therefore requested a
review of the status of that documentation and th e incorporation in the proceedings – during the next
stage – of evidence of interest that would enable the Technical Department to present, in its
conclusions, the technical and documentary evidence on which they were based from all the firms
involved.
4.310 Here it is appropriate to cite Notes DCD Nos. 273-000404/99, 273-000405/99,
273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and
Marazzi (section 25 of File No. 061-000794/98). In these Notes, the DCD states that it undertook a
comprehensive and detailed analysis of all the information submitted by the firms and requested their
cooperation in incorporating already requested evidence or adapting information in the record of the
proceedings in order to ensure that the DCD had the information it needed to reach a public
conclusion with respect to the matter at issue. In th is regard it states that, although it is conceivable
that for reasons of competition certain items of business information supplied by the companies may
have to be safeguarded (hence the requested confidentiality that was accepted by the implementing
authority), for the purposes of reaching objective and meaningful conclusions, the DCD had to have
information that enabled it to do so. Consequently, it requested that the possibility should be
considered of including in the record of the case a more detailed non-confidential summary or of
elaborating on the information supplied or, failing this, of allowing the said documentation to be
incorporated in the record, removing its confidentiality. This would give the parties concerned and
their representatives access to the information in question, remembering that only duly accredited
parties would be allowed to consult the information, for the purposes of issuing an opinion.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 43
4.311 The Notes go on to list the documents of particular interest for full incorporation in the record
as follows:
- List of importers in Argentina and third countries of the goods under
investigation – Annex III;
- Actual exports to Argentina – Annex VII;
- Sales in the Italian domestic market – Annex VIII;
- Exports to third countries – Annex IX;
- Cost structure of the goods under investigation in the Italian domestic market
– Annex X;
- Cost structure of the exported goods – Annex XI.
4.312 By File No. 061-004097/99 of 14 May 1999, included as folio 1315 in the record of the case,
and in response to DCD’s requests in the Notes mentioned above, the representatives of the Italian
firms requested an extension of the time-limit for the submission of the required information. In Note
DCD No. 273-000617/99 of 19 May 1999, the DCD states that “… the implementing authority has
decided to grant an extension up to 7 June 1999”.
4.313 By File No. 061-004809/99 of 4 June 1999, the repres entative of Assopiastrelle, Bismantova,
Casalgrande, Marazzi and Cesar wrote to the DCD listing the information submitted and stating that,
for each of the Annexes corresponding to each of the exporting firms included in the sample, there
was a corresponding confidential Annex containing “conversion tables” so that the implementing
authority could analyse the information. In other words, information was submitted from the four
Italian firms of both a public and a confidential nature, separated into different Annexes.
4.314 By File No. 061-004860/99 of 7 June 1999, the representatives of Bismantova further
submitted, as confidential information, Annex IC bis containing copies of sales invoices relating to
the Italian domestic market.
4.315 On expiry of the extension on 10 June 1999, by File No. 061-005002/99 of 10 June 1999, the
representatives of the Italian exporting firm Casalgrande further submitted, as confidential
information, Annex IIC bis containing copies of sales invoices relating to the Italian domestic market.
4.316 Once again the Italian firms alleged that the confidentiality of all this information was based
on strict reasons of competition. Once again, without responding to the DCD’s concerns regarding
the lack of supporting documentation, when they added a further sample thereof to the record, they
asked for it to be treated as confidential information without providing non-confidential summaries
“in sufficient detail to permit a reasonable understanding of the substance of the information
submitted …” (Article 6.5.1 of the AD Agreement).
4.317 Consequently, by means of Note No. 273-000768/99 of 22 June 1999, the DCD had to repeat
the need for further supporting documentation, since what it had was insufficient:
… The DCD repeats the statement made on other occasions concerning the need for
information that would enable the implementing authority to reach public conclusions
in its technical reports. To that end, and to enable the DCD to make a precise
comparison in its report on the final determination of the margin of dumping, the
companies Ceramica Bismantova S.p.A., Ceramica Casalgrande Padana S.p.A.,
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 44 Arguments/Replies of Argentina
Marazzi Ceramiche S.p.A. and Ceramiche Caesar S.p.A are therefore asked to
remove the confidentiality requirement for the information concerning the product
code so that the said information can be incorporated in the record of the proceedings,
or to submit a sufficiently detailed non-confidential summary of the information.
This requirement must be met within five days after the receipt of this note …
4.318 As stated during the proceeding in question, the submission of information and
documentation for which confidential treatment is re quested constitutes a limiting factor with respect
to the analysis and public conclusions of the implementing authority.
4.319 Hence, the DCD sought, during the investigation, to obtain elements that were not subject to
that condition so that it could make proper estimates with respect to the product under investigation.
The removal of the confidentiality of the product code would enable the goods to be categorized
according to their dimensions. In other words, without the product code it was very difficult to make
out which product the information submitted applied to.
4.320 By File No. 061-005427/99 of 24 June 1999, the Italian firms, through their representatives,
stated that they would remove the confidentiality of the product code item.
4.321 Moreover, by Note DCD No. 273-000890/99 of 3 August 1999, the DCD informed the
representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi and Caesar that “… the
implementing authority is currently engaged, at this fi nal stage of the investigation, in the analysis of
all the information in the record of the case in or der to arrive at a final determination in these
proceedings. To do so, it must take into account all the information in these proceedings, and
considers that it is important to ask you to remove the confidentiality of the information concerning
production costs of the product at issue, or to prepare a non-confidential summary that would enable
the information to be processed. Given the ti me-limit for the final determination, we would be
grateful if this request could be met within five days following the receipt of this communication …”.
Particular quantitative aspects of the sample
4.322 It is important to emphasize that the sample documentation relating to sales on the Italian
domestic market supplied by all of the manufacturing export companies concerned in the case – major
representatives of the porcellanato production market – in conformity with the supplied sample
methodology, covers no more than approximately 1.92 per cent of the physical volume (m 2) and
1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market according to the
information duly supplied.
4.323 Argentina would like to stress that the DCD accepted without reservation the sample
methodology presented by Assopiastrelle (i.e. the four exporting companies Bismantova, Marazzi,
Caesar and Casalgrande) because the association itself said that this would facilitate the work of the
investigators. As is apparent from the record of the case, the alleged facilitation of the work did not
materialize in practice in view of the lack of sufficiently detailed non-confidential summaries, the
absence of such summaries in cases where the in formation was absolutely necessary, the delay in
removing the confidentiality and the limited supply of supporting documentation.
4.324 The Italian companies concerned had to be requested by the DCD to expand on the
inadequate supporting documentation (Notes of 30 April, 22 June and 3 August 1999), and even after
it had been supplied, it continued to be meaningless for the purposes of an objective valuation.
4.325 Finally, the implementing authority pointed out the shortcomings in the accompanying
documentation, as well as the impact of those shortcomings on the investigation. The statements by
the DCD in the Notes mentioned above correspond ex actly, in the authority’s view, to the situation
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 45
described in Article 6.8 of the AD Agreement. That is to say, this is a situation where the
investigation was significantly impeded since the DCD was obliged to continue requesting additional
evidence, what it had being insufficient. As a result of the repeated requests for supporting
documentary evidence, the DCD was obliged to grant repeated extensions to facilitate the pursuit of
the investigation, which was impeded by the attitude of the exporters. The combination of these
elements placed the authority in a situation in which it did not have the necessary information because
the exporting firms were refusing access to that information.
4.326 Argentina presented then its legal arguments concerning the EC’s claim under Article 6.8 of
the AD Agreement.
4.327 The EC asserts, in paragraph 48 of its first written submission, that none of the three
circumstances required by Article 6.8 to make a determination on the basis of the facts available was
present in this case.
(iv) Significant impeding of the investigation
4.328 Argentina submits that the exporters did significantly impede the investigation in that they
failed to carry out the formalities required in the general and specific instructions accompanying the
questionnaires. Nor did they provide sufficient supporting documentation with the information
supplied, and the DCD had to request further evidence. Finally, the scant information provided in the
confidential summaries also represented a significant impediment to the investigation, particularly as
regards information needed to determine the nor mal value and the export value, where no direct
summary was provided at all.
(v) Refusal of access to necessary information
4.329 At the same time, the fact that the DCD accepted, without reservations, the “sample
methodology” proposed by Assopiastrelle because the association itself said that this would facilitate
the work of the investigators shows that the implementing authority was favourably disposed to
consider such information as that party might submit.
4.330 Having accepted this sample methodology, the DCD discovered, upon examining the
supporting documentation, supplied belatedly at the specific request of the authority, that it only
covered approximately 1.92 per cent of the physical volume (m
2) and 1.35 per cent of the total
estimated value (Italian lire) of domestic market sales, based on the information previously received.
4.331 Much of the information supplied by the comp anies was confidential. This information
included data concerning total volumes and amounts of sales in the Italian domestic market by the
participating firms. The firms also subsequently provided information concerning some of their sales
transactions which enabled the implementing authority to establish average values in accordance with
the above-mentioned method. However, it was felt that certain considerations should be highlighted
with respect to the supporting sample. Its represen tativeness was mentioned as a factor to be taken
into account, given that the percentages were fairly insignificant in comparison to the total for the
period analysed.
4.332 This falls within the scope of Article 6.8 of the AD Agreement as significantly impeding the
investigation by refusing access to necessary information.
(vi) Failure to provide the information within a reasonable period
4.333 With respect to the requirement to provide n ecessary information within a reasonable period,
Argentina submits that the repeated requests for exte nsions together with the delay in removing the
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 46 Arguments/Replies of Argentina
confidentiality of the information and the unwillingness to do so even though absolutely necessary for
the DCD to be able to take it into account, in fact reflect the situation described in Article 6.8 in which
the party does not provide necessary information within a reasonable period.
4.334 It should therefore be stressed that the two situations described above (significant impeding of
the investigation and refusal of access) in themselves reflect the circumstances described in
Article 6.8 justifying a determination by the authority on the basis of the facts available as the only
possible alternative.
4.335 In the light of the above considerations, the implementing authority could only base its
determination on the facts available, and was indeed forced to do so, since it could not, on the basis of
a sample as unrepresentative as the one provided, make a correct determination of the normal value.
(vii) Rebuttal of the EC’s supplementary arguments concerning Article 6.8 of the AD Agreement
4.336 The Notes of 30 April, 22 June and 30 August 1999 provide confirmation that exporters were
informed of the insufficiency of the information, and rebut the assertion in paragraph 54 of the first
written submission of the EC that the Argentine interpretation of Article 6.8 renders paragraph 1 of
Annex II null and void, since in this case the exporters did not submit all of the information within a
reasonable period, nor was the information submitted of the kind required by the authorities to enable
them to make a determination on the basis thereof.
4.337 With respect to the information contained in the record, the EC has taken the alleged
Argentine terms “considered on an equal footing” – used in the informal context of consultations –
out of their context, claiming that according to Argentina, Article 6.8 enables the investigating
authorities to “pick and choose” from the data submitted. Argentina had all of the information before
it and duly examined it, following the sequence set forth in Article 6.8, but found that it had to opt for
a determination on the basis of the facts available because the information from the exporters turned
out to be insufficient, as explained above.
4.338 At the same time, while the authority accepted the sample put forward by the exporters, it
asked that the confidentiality of the supporting information be removed and granted a series of
extensions to the importers, even accepting late answers to the questionnaires (10 December 1998).
How can the EC contend that Argentina has deviated from paragraph 7 of Annex II and that it has
relied on a secondary source of information without the special circumspection required by that
paragraph?
4.339 The DCD was so meticulous that when forced to resort to secondary information, although
aware that the supporting documentation for the determination of the normal value was insufficient, it
nevertheless took account of that information and averaged the figures out in order to reduce the
margin of dumping. This is ultimately what Table 4 in the first written submission of the EC.
4.340 Thus, contrary to the EC’s assertion, Argentina followed the sequence of Article 6.8 of the
AD Agreement and finding that the circumstances described therein had been met, resorted to a
secondary source which provided more extensive information within a reasonable period.
4.341 Argentina addressed next the EC’s clai m under Paragraph 6 of Annex II of the
AD Agreement.
4.342 Argentina first laid out the facts relevant for the presentation of its arguments.
4.343 With respect to the EC’s claim in paragraph 49 of its first written submission that the DCD at
no point during the investigation suggested that the exporters failed to provide necessary information,
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 47
Argentina refers the Panel to the Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99
and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of
File No. 061-000794/98), in which the DCD requests the cooperation of the said enterprises in
supplying new evidence or adapting the information pertaining to the proceedings so that the
implementing authority would have the information it needed to reach a public conclusion with
respect to the matter at issue.
4.344 In this connection, the DCD points out that while it is possible that for reasons of competition,
certain items of business information supplied by companies must be safeguarded (hence the
requested confidentiality that was accepted by the implementing authority), for the purposes of
reaching objective and meaningful conclusions the DCD must have information that enables it to do
so. This is why it requested the companies to consider the possibility of including in the record of the
case a more detailed non-confidential summary or of elaborating on the information supplied or,
failing this, to allow the said documentation to be incorporated in the record, removing its
confidentiality. This would expressly give the parties concerned and their representatives access to
the information in question, remembering that only the duly accredited parties would be allowed to
consult the information, for the purposes of issuing an opinion.
4.345 Consequently, by Note No. 273-00768/99 of 22 June 1999, the DCD had to repeat the need
for further supporting documentation, since what it had was insufficient:
 … The Directorate of Unfair Competition repeats the statement made on other
occasions concerning the need for information that would enable the implementing
authority to reach public conclusions in its technical reports. To that end, and to
enable the Directorate of Unfair Competition to make a precise comparison in its
report on the final determination of the margin of dumping, the companies Ceramica
Bismantova SpA., Ceramica Casalgrande Padana SpA., Marazzi Ceramiche SpA.,
and Ceramiche Caesar SpA., are therefore asked to remove the confidentiality
requirement for the information concerning the Product Code so that the said
information can be incorporated in the re cord of the proceedings, or to submit a
sufficiently detailed non-confidential summary of the information. This requirement
must be met within five days after the receipt of this note … .
4.346 Moreover, by Note DCD No. 273-000890/99 of 3 August 1999, the DCD informed the
representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi, and Caesar, that “… the
implementing authority is currently engaged, at this fi nal stage of the investigation, in the analysis of
all of the information in the record of the case in order to arrive at a final determination in these
proceedings. To do so, it must take account of all of the information in these proceedings, and
considers that it is important to ask you to remove the confidentiality of the information concerning
production costs of the product at issue, or to prepare a non-confidential summary that would enable
the information to be processed. Given the ti me-limit for the final determination, we would be
grateful if this request could be met within five days following the receipt of this note …”.
4.347 Argentina presented next its legal arguments concerning the EC’s claim under Paragraph 6 of
Annex II of the AD Agreement.
4.348 The EC’s argument in paragraph 49 of its first written submission that the implementing
authority “did at no point during the investiga tion suggest that the exporters failed to provide
necessary information” is unfounded in view of the above-mentioned Notes. Moreover, it is clear that
the reason why the DCD requested – through these Notes – further information from the exporters,
was that the information supplied by them was not sufficient.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 48 Arguments/Replies of Argentina
4.349 In any case, even if it were to be assumed that Argentina had violated paragraph 6 of
Annex II, this would be a harmless error (an error committed in the progress of the trial “…, but
which was not prejudicial to the rights of the party assigning it, and for which, therefore, the court will
not reverse the judgment …”; see Blacks Law Dictionary , Revised Fourth Edition, West Publishing
Company, 1968, p. 638) that did not cause any injury, since its effect would be formal and procedural;
in other words, what the EC would be demanding is a separate notification with a special format
setting out the conclusion that the DCD had reached. As concluded in the previous paragraph, that
conclusion was in fact implicit in the mentioned Notes (see Annexes ARG-7, 10 and 11) and would in
no way have signified a change of position on the part of the implementing authority.
(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 6.8
of the AD Agreement
4.350 In its first oral statement, Argentina made the following arguments relating to the EC’s claim
under Article 6.8 of the AD Agreement.
(i) Treatment of the information in the record
4.351 Argentina submits that it had valid recourse to Article 6.8 of the AD Agreement, as shown by
the record of the case (File No. 061-000794/98 of the Registry of the Ministry of the Economy and
Public Works and Services, incorporated by reference in Resolution No. 1385/99 introducing the anti-
dumping measures in question). The above-mentioned file explains clearly that the exporting firms
significantly impeded the investigation, refused access to necessary information or did not provide
that information within a reasonable period.
4.352 Consequently, Argentina was fully justified in resorting to the information available.
4.353 Argentina considers that the producing/exporting firms significantly impeded the
investigation for the following reasons:
(a) They failed to provide information, or they did so without sufficient supporting
documentation;
(b) they did not provide the necessary information within a reasonable period, even when
granted repeated extensions;
(c) ©©they were late and displayed reluctance in removing the confidentiality of the
information that was absolutely necessary so that the DCD could take it into account
and make it public;
(d) they provided little information in the non-confidential summaries;
(e) in some cases they did not provide any non-confidential summary at all;
(f) they failed to comply with some of the required formalities in the general and specific
instructions of the questionnaires.
Lack of information or information without sufficient supporting documentation
4.354 Firstly, the information requested from the exporters in the questionnaires was the
information that the implementing authority consider ed absolutely necessary to reach a reasoned and
public conclusion. Moreover, it was not enough simply to reply to the questionnaires: the replies
needed to be backed by sufficient supporting documentation.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 49
4.355 To allow a precise evaluation of the information submitted, the documentation in support of
the replies needed to be sufficiently extensive. Indeed, the general and specific instructions
accompanying the questionnaires emphasize that “producers and/or exporters from the respondent
country must answer this questionnaire with the greatest possible precision, attaching documentation
to support their replies, or if this is impossible, indicating the source of the information”.
4.356 This is reflected in the repeated Notes sent by the DCD to the exporters requesting more
extensive information, since what they had provided was not sufficient to make a correct
determination of the normal value, the export value and the margin of dumping (see DCD Notes of
30 April, 22 June and 3 August 1999. The last of these Notes is the one in which the DCD merely
requested that the confidentiality of the information be removed).
4.357 Moreover, some exporting firms failed to provid e any information at all for certain Annexes
to the questionnaires. In particular, Caesar and Ceramiche failed to provide any information
concerning exports to third countries (Annex IX), and the latter failed to provide any information
concerning the cost structure of the exported goods (Annex XI).
4.358 Nor did Caesar and Marazzi supply any information or supporting documentation concerning
sizes 20 cm x 20 cm and 30 cm x 30 cm. The latter, did not even provide any information or
supporting documentation concerning size 40 cm x 40 cm. Therefore, one of the four sample
enterprises failed to provide any information on any of the size categories established by DCD for the
product, although this segmentation was accepted by the firms even before Assopiastrelle presented
the sampling methodology and the questionnaires were answered.
4.359 In the view of Argentina, this failure to supply information at the very least constitutes an
impediment to the investigation, if not a refusal to provide access to information that is essential in
itself.
Information within a reasonable period
4.360 Further evidence that the investigation was impeded can be found in the failure by the
exporters to supply the requested information within a reasonable period, in spite of the fact that the
implementing authority responded favourably to their repeated requests for extensions.
4.361 The exporters were originally given until 30 November 1998 to reply to the questionnaires,
and in response to the requests for extension, it was decided to “grant the extension, setting
9 December 1998 as the final deadline for submission”. This does not mean that Argentina submits
that the submission of the information by the exporting firms on 10 December was considered a
procedural error, but whatever the case, Argentina emphasizes the goodwill shown by the
implementing authority in considering the information despite the fact that it was late.
4.362 In any case, Argentina considers the argument made by Japan in its third party submission
that a delay of one day should have led the authority to conclude that the information had nevertheless
been submitted within a reasonable period to be wrong. Technically, the reasonable period is
established by the authority in conformity with its anti-dumping laws and regulations (Article 1 of the
AD Agreement). Consequently, it is those laws and regulations which govern the matter at issue. In
other words, while the implementing authority was willing to grant extensions for the purposes of
gathering the information supplied by the exporters, the limit to that willingness was determined by
the statutory deadlines provided for in the AD Agreement (Article 5.10) and Decree 2121/94.
4.363 In the end, the period actually used by the exporters for completing the requirements of the
questionnaire ran from 30 November 1998 to 10 August 1999. Indeed, the DCD, in its Note of
30 April 1999, granted 15 days to definitively fulfil the requirements of the questionnaire in view of
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 50 Arguments/Replies of Argentina
the shortcomings it had already noted in the replies. Similarly, in its Note of 22 June 1999, the DCD
granted a new extension of five days, and finally, in its Note of 3 August, granted another five-day
extension. Argentina considers that these successive extensions of the period for submitting the
necessary information reflect, in fact, a lack of cooperation by the exporters that is contrary to Article
6.8 of the Agreement.
4.364 It is questionable whether a period running from 30 November 1998 to 10 August 1999 is in
fact “reasonable” for the purposes of Article 6.8.
Delay and reluctance in removing the confidentiality of the information; lack of information in the
non-confidential summaries; and absence of summaries in certain cases
4.365 The exporting firms were effectively impeding the investigation by completing the required
information only at the request of the implem enting authority. The authority considered the
information to be insufficient without non-confidential summaries or sufficiently detailed summaries,
and considered the removal of the confidentiality to be essential. This was finally done on 10 August
1999, that is eight months after the period accorded.
4.366 Argentina recalls in this connection that the DCD repeatedly requested further information,
stressing that what had been received was insufficient. Argentina cites, for example, Notes DCD Nos.
273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova,
Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), in which the DCD
requested the cooperation of these firms in incorporating already requested evidence or adapting
information in the record of the proceedings in or der to ensure that the DCD had the information it
needed to reach a public conclusion with respect to the matter at issue, granting them a period of 15
days for the purpose.
4.367 In these Notes, the DCD points out that for the purposes of reaching objective and meaningful
conclusions, it had to have the information that enabled it to do so. Consequently, to ensure that the
parties concerned and their representatives had access to the information in question, it requested that
the possibility should be considered of including in the record of the case a more detailed non-
confidential summary or of elaborating on the information supplied, or, failing this, of allowing the
said documentation to be incorporated in the record, removing its confidentiality.
4.368 Exhibit ARG-19 contains a complete list of the confidential information submitted by each
one of the firms with respect to each one of the Annexes, and identifies the information that was
accompanied by non-confidential but incomplete summaries. The non-confidential summaries
provided by the four sample firms with respect to Annexes III, VII, VIII, IX, X and XI, provided to
the Panel in Exhibit ARG-20, are completely irreleva nt in that they lack substance and hence could
not be used by the implementing authority. Thus, the EC’s comment to the effect that Argentina’s
allegation concerning the inadequacy of the non-confidential summaries is ironic seems out of place.
4.369 The exporters were aware that, as indicated in the general instructions for completing the
questionnaire (point 5), “ … ‘confidential’ information that is not accompanied by a summary or an
explanation of why it is impossible to provide such a summary will not be considered as such”.
Argentina asks the Panel to make an objective evaluation of whether the summaries provided in
Exhibit ARG-20 are “in sufficient detail to permit a reasonable understanding of the substance of the
information submitted in confidence” (Article 6.5.1 of the AD Agreement).
4.370 Moreover, the DCD had to repeat its request for further supporting documentation, since what
it had was insufficient (see paragraphs 38 and 42 of Argentina’s first written submission).
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 51
Failure to comply with the required formalities in the general and specific instructions of the
questionnaires
4.371 Yet another example of the investigation being impeded within the meaning of Article 6.8 of
the AD Agreement is, in our view, the fact that the accounting statements submitted by the sample
companies were not accompanied by any Spanish translation (except in the case of Marazzi) as
required by the general instructions (item 2 of the questionnaire) which refer to the Law on
Administrative Procedures No. 19.549, Regulato ry Decree No. 1759/72, as harmonized in 1991 by
Decree No. 1883/91. In this regard, Argentina re calls that Exhibit ARG-7 cites the DCD Notes of
30 April 1998 in which the DCD states that “it is of the utmost importance that all the information
and/or documentation presented should be in Spanish or translated into Spanish by a certified
translator (Articles 15 and 28, in accordance with the Law on Administrative Procedures No. 19.549,
Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91) in order to be
considered in the present proceedings”.
4.372 Likewise, point 6 of the specific instructions to the questionnaire clearly states that the table
in Annex VI (Summary of producer-exporter sales – physical volume) must be in US$. And yet, in
the particular case of Bismantova, the information relating to Annex VI was provided in Italian lire,
accompanied by a note with the exchange rates for 1995, 1996, 1997 and January-October 1998.
Argentina considers that providing this information in Italian lire shows a lack of cooperation and an
effort to impede the investigation, as well as a failure to comply with a formal procedural
requirement. Moreover, in view of the EC’s comments concerning the legal value of other Argentine
legislative provisions (paragraph 12 of its first oral statement), Argentina does not understand why it
describes this requirement as ridiculous (paragraph 59).
(ii) Treatment of the information as reflected in the final determination
Impeding of the investigation and refusal of access to the necessary information
4.373 The impeding of the investigation and the refusal of access to the necessary information is
also reflected in the final determination, folio 29, which states that: “The sample documentation
relating to sales on the Italian domestic market supplied by all of the manufacturing export companies
concerned in the case – and as affirmed at the time of their participation in the proceedings by
Assopiastrelle, of which these firms are members, they are major representatives of the Italian
porcellanato production market – covers no more than approximately 1.92 per cent of the physical
volume (m
2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market
according to the information duly supplied”.
4.374 Argentina therefore wonders how it is possible to make a correct determination of the normal
value of the goods on the basis of a sample of market sales invoices that is so unrepresentative of the
total for domestic sales given by the exporting firms. Indeed, the implementing authority had no
alternative but to base its determination on the facts available.
4.375 Finally, Argentina stresses that the implementing authority pointed out the shortcomings in
the accompanying documentation, as well as the impact of those shortcomings on the investigation.
The statements by the DCD in the notes appe aring in Annexes ARG-7, ARG-10, ARG-11 and ARG-
18 to Argentina’s first written submission correspond exactly to the situation described in Article 6.8
of the AD Agreement. That is to say, this is a situation where the investigation was significantly
impeded since the DCD was obliged to continue re questing additional evidence, what it had being
insufficient.
4.376 As a result of the repeated requests for supporting documentary evidence, the DCD was
obliged to grant repeated extensions to facilitate the pursuit of the investigation, which was impeded
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 52 Arguments/Replies of Argentina
by the attitude of the exporters. The combination of these elements placed the authority in a situation
in which it did not have the necessary information because the exporting firms were refusing access to
that information.
4.377 This was reflected in the final determination, folio 39, where the implementing authority
includes the paragraphs of the argument submitted by Zanon, in that these paragraphs introduce the
reasoning which led the implementing authority to us e the best information available: “As regards
the margins of dumping, we submit that the preliminary determination of the Directorate of Unfair
Competition (folios 1131 et seq) should be endorsed in that the information on which it was based, i.e.
‘information and documentation supplied by the domestic manufacturing firm Ceramica Zanon
S.A.C.I. y M. and by the domestic importing comp any Canteras Cerro Negro S.A. (from its Italian
supplier ITS S.p.A.)’, is the best information availa ble in view of the lacunae and inconsistencies in
the information submitted both by the Italian exporting companies and by Ceramica San Lorenzo
(…).”
Rebuttal of various paragraphs of the EC’s first written submission
4.378 In paragraph 60 of its first written submission, the EC claims that the DCD did not inform the
exporters at any time during the investigation that the information on export prices and normal value
contained in their questionnaire responses had been disregarded.
4.379 Argentina does not consider this to be the case, since the DCD repeatedly asked for more
extensive information, stressing that the informa tion submitted was insufficient. One only needs to
mention, in this connection, the Notes of 30 April, 22 June and 3 August 1999, in which the DCD
requests the cooperation of the exporting firms in incorporating already requested evidence or
adapting information in the record of the proceed ings in order to ensure that the DCD had the
information it needed to reach a public conclusion with respect to the matter at issue. Similarly, in its
Note of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since
what it had was insufficient.
4.380 The EC is also mistaken when it states, in paragraph 61, that the DCD did not explain in the
final dumping determination the reasons why such information was rejected. Indeed, the DCD, in its
determinations, pointed out that the information supp lied was not sufficient to enable it to reach a
reasoned and public conclusion.
4.381 Firstly, already in its preliminary determination the DCD stated that the fact that the exporting
firms had asked most of the information they supplied to be declared confidential implied differential
and restricted treatment in processing that information.
4.382 Likewise, the final determination shows that the implementing authority was restricted in its
handling of the information, and therefore requested a review of the status of that documentation and
the incorporation in the proceedings of evidence of interest that would enable the Technical
Department to present, in its conclusions, the technical and documentary evidence on which they were
based from all the firms involved.
4.383 At the same time, the final determination also shows that as stated before, the lack of
representativeness of the sample was a determining factor in forcing the implementing authority to
use the best information available.
4.384 It is well known that a sample of some 2 per cent is not valid in statistical terms. In this case,
the exporters submitted as the universe of their sales in the domestic market precisely what is usually
considered to be the margin of error, and even worse, they did so without indicating the criterion on
which they based their sample.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 53
4.385 Argentina submits therefore that the DCD used the facts available because it considered that
the exporters had acted in a manner that fit the description in Article 6.8, that is to say they refused
access to the necessary information, did not supply such information within a reasonable period and
significantly impeded the investigation.
4.386 In its first oral statement, Argentina also presented a series of arguments relating to the EC’s
claim under Paragraph 6 of Annex II of the AD Agreement.
4.387 In Argentina’s view, the EC is mistaken in paragraph 60 of its first written submission when it
claims that the DCD did not inform the exporter s at any time during the investigation that the
information on export prices and normal value contained in the questionnaire responses had been
disregarded. Similarly, the EC is mistaken whe n, in paragraph 61 of its first written submission, it
states that the DCD did not explain in the final dumping determination the reasons why such
information was rejected.
4.388 On the contrary, the DCD, in its determinations, showed that the information submitted was
not sufficient to enable it to reach at a reasoned and public conclusion.
4.389 Indeed, Argentina considers that the implementing authority was explicit enough in the notes
provided in Annexes ARG-7, ARG-10 and ARG-11 in which it explained to exporters the situation
that was developing in the investigation owing to the lack of necessary information within a
reasonable period. In other words, Argentina is of the view that sufficient notice was given to
exporters that they were involved in the situation described in 6.8 of the AD Agreement.
4.390 As required in paragraph 6 of Annex II, Argentina informed the exporters of the insufficiency
of the information provided and the lack of sufficiently detailed summaries, and granted a series of
extensions. Since the requirements had not been met, i.e. since not enough supporting information
had been submitted to enable the authority to arrive at a reasoned and public conclusion, the DCD
gave the reasons, in its final determination, why the information was disregarded (see
paragraphs 61 to 65 of Argentina’s first written submission and folios 29 and 39 of the final
determination, incorporated by reference in Resolution No. 1385/99 introducing the measure.
(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of
the Panel with the parties, relating to the EC’s claim under Article 6.8 of the AD Agreement
4.391 In its oral statement at the third-party session of the first meeting of the Panel with the parties,
Argentina made the following arguments relating to the EC’s claim under Article 6.8 of the AD
Agreement.
4.392 Japan’s submission (at paragraph 2) proceeds from certain assumptions that do not apply to
this case:
(a) Firstly, that information submitted within a reasonable period and not contested is
automatically valid. In fact, this was not the case, since a series of extensions were
granted and, above all, the information submitted was insufficient.
(b) Secondly, that the authorities did not point out that the information would not be
accepted. This is also wrong: the authority at least pointed out that the information
was insufficient, asked for more extensive information, and requested that the
confidentiality be removed. Consequently, Japan’s conclusion that in this case “the
respondent is reasonably entitled to assume that the investigating authority is satisfied
with the information” is false. On the contrary, the authority expressed its
dissatisfaction in its notes dated 30 April 1999, 20 June 1999 and 3 August 1999 and
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 54 Arguments/Replies of Argentina
gave these reasons in its final determination to justify its decision to use the best
information available.
4.393 Moreover, the authority, in conformity with paragraph 6 of Annex II, notified that it would
not consider the information that was not accomp anied by a non-confidential summary. Exhibit
ARG-20 containing a series of summaries from the fo ur exporting firms with respect to the different
annexes in the record: Annex III – List of importe rs in Argentina and third countries of the goods
under investigation; Annex VII – Actual exports to Argentina; Annex VIII – Sales in the Italian
domestic market; Annex IX – Exports to third countries; Annex X – Cost structure of the goods
under investigation in the Italian domestic market; and Annex XI – Cost structure of the exported
goods. Exhibit ARG-20 should help the Panel to appreciate the technical weakness of the non-
confidential summaries and confirm that in the ci rcumstances, the authority had no alternative but to
resort to the best information available.
4.394 Thus, Japan’s statement that the exporters did cooperate in the investigation is false. In fact,
the contrary is true.
4.395 Japan is also mistaken in asserting that the authority considered the issue of the date to be the
determining factor in its decision to use the best information available. It was the combination of
various elements, delays in submitting information, successive extensions, delay in removing the
confidentiality of the information, and insufficie nt non-confidential summaries that meant that the
authority had to resort to the best information available, since in fact, the exporting firms were to all
intents and purposes refusing access to the information.
(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.396 Argentina replied to the first set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement as follows:
4.397 The Panel asked the parties whether, in their view, the DCD rejected the information from the
exporters for one of the reasons set out in Article 6.8 AD Agreement. The Panel further asked
whether reference was made in the record to one of these reasons and, if so, where. The Panel also
asked under what circumstances an investigating authority may resort to secondary source
information outside the specific circumstances of Article 6.8 AD Agreement.
4.398 To this question, Argentina replied that the DCD proceeded the way it did because it found
that the combination of different circumstances set out in Article 6.8 of the AD Agreement had been
satisfied. Only the circumstances laid down in Ar ticle 6.8 could justify recourse to Annex II of the
AD Agreement.
4.399 The Panel recalled that Argentina’s first written submission alleged that the exporters’
questionnaire responses were deficient in many ways. In particular, that such questionnaire responses
were submitted late, were not fully translated, lacked public summaries of confidential information
sufficiently detailed, lacked some currency conversions, failed to report data on exports to third
countries and costs of the product exported, and lacked supporting documentary evidence. The Panel
asked Argentina which of these deficiencies, if any, were relied upon by the DCD for its final
determination. The Panel further asked if Argentina could provide the Panel with the relevant
references in either the report accompanying the final determination or in the administrative record.
4.400 To this question, Argentina provided the following reply.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 55
4.401 For its final determination, the DCD did not rely on the deficiencies only, but on all of the
facts contained in the record.
4.402 Paragraphs 7 to 60 inclusive of Argentina’s first written submission and paragraphs 2 to 35
inclusive of Argentina’s first oral statement provid e a full explanation of where, in the preliminary
and final determinations, each one of the different ways in which the exporters impeded the
investigation is recorded: failure to supply information within a reasonable period and refusal of
access to the necessary information.
4.403 In the report on the final determination of the margin of dumping in the investigation at issue,
the items identified as V.1.3 and V.2.3 (final determination of normal value and final determination of
the f.o.b. export price, respectively) explain both the deficiencies and the limitations that the DCD
encountered in analysing the information and documentation supplied by the participating firms.
4.404 Regarding the last part of the question, Argentina provided a detailed account of the
documentation submitted by the firms concerned as an indication of the information to which the
DCD had access.
4.405 The Panel recalled that Argentina, in paragraph 39 of its first written submission, states that
“the submission of information and documentation for which confidential treatment is requested
constitutes a limiting factor with respect to the analysis and public conclusions of the implementing
authority” (emphasis added). The Panel asked Argentina whether, in its opinion, the confidential
nature of the information submitted constituted a constraint on the investigating authority’s ability to
base its determination on that information. The Panel further asked Argentina to explain in which
way it considered that confidentiality limited the DCD’s analysis in this case.
4.406 Argentina replied that confidentiality imposes a limit on the authority by preventing it from
relying on public elements that can be invoked against the parties or third parties, particularly when
the information in question is not accompanied by non-confidential summaries in sufficient detail to
permit a reasonable understanding of the substance of the information submitted in confidence and
hence to allow the determination reached, which must be public, to be backed.
4.407 The Panel asked the Parties whether they drew a distinction between the obligation of
authorities to protect confidential information from disclosure, on the one hand, and the obligation of
authorities to use for their determinations exporter data that meets the requirements of the Agreement.
4.408 Argentina replied that the above were two different concepts. On the one hand, there was the
generic obligation of the authority to protect the confidentiality of information provided in confidence
by the exporters and importers during the investigation, information which must be accompanied by
non-confidential summaries in sufficient detail to permit a reasonable understanding of its substance.
On the other hand, there was another obligation relating to the treatment which the authority must
give to the information provided by exporters as an element in calculating the normal value and the
export value and determining the margin of dumping. The implementing authority tried to do both
things, i.e. to protect the confidentiality of th e information submitted in confidence while using the
information furnished by the exporters.
4.409 The Panel recalled Argentina’s statement that , according to the DCD, the non-confidential
summaries submitted by the exporters were insufficient under Article 6.5.1 AD Agreement, since this
provision required that such summaries permit a “reasonable understanding of the substance of the
information provided in confidence”. The Panel asked the parties how did they interpret the objective
of Article 6.5.1, that is, whose “reasonable understanding” was being addressed – that of the public or
that of the investigating authorities?
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 56 Arguments/Replies of Argentina
4.410 Argentina replied that the implementing authority considers that the non-confidential
summaries must enable the authorities to arrive at reasoned and public conclusions and enable the
parties concerned to exercise their right of defence by participating in the investigation and
commenting on the submissions of the other parties involved.
4.411 In Argentina’s view, additionally, the non-confidential summaries must meet the
requirements of Article 6.5.1 by permitting a reasonable understanding of the substance of the
information submitted so that the authority can make them public.
4.412 The Panel asked the parties whether the following summary of relevant facts was correct.
The exporters requested confidentiality for most of the information provided in their questionnaire
reply. On 30 April 1999, the DCD sent letters to the exporting firms requesting them to consider
providing a more detailed non-confidential summary than that already provided in the questionnaire
replies, to elaborate on the information supplied, or to remove the requested confidentiality that had
been granted by the investigating authority. More specifically, information on sales in the Italian
market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X) was
requested. On 4 June 1999, the exporting firms submitted public and confidential information
concerning domestic sales of the product concerned, with conversion tables that were submitted as
confidential information. On 7 June 1999, Bismantova and Casalgrande further submitted as
confidential information sales invoices relating to the Italian domestic market. By its letters of
22 June 1999 and 3 August 1999, the DCD requested the exporting firms to reconsider the requested
confidentiality of the information concerning pr oduct codes and the production costs. The DCD’s
report acknowledged that the exporting firms agreed by letters of 23 and 24 June that the product code
item could be made non-confidential. On 10 August 1999, the exporting firms further agreed to
remove the confidentiality of the item concerning cost of production provided that the names of the
companies relating to each cost structure were not revealed.
4.413 Argentina replied that the notes contained in Exhibit ARG-7 not only requested further
information concerning Annex VIII and Annex X, but also, in the case of Marazzi y Casalgrande,
requested additional information with respect to the following:
List of importers in Argentina and third countries of the goods under investigation (Annex III);
- Actual exports to Argentina (Annex VII);
- Sales in the Italian domestic market (Annex VIII);
- Exports to third countries (Annex IX);
- Cost structure of the goods under investigation in the Italian domestic market
(Annex X);
- Cost structure of the exported goods (Annex XI).
4.414 In the case of Bismantova and Caesar, the notes requested additional information with respect
to:
- List of importers in Argentina and third countries of the goods under
investigation (Annex III);
- Actual exports to Argentina (Annex VII);
- Sales in the Italian domestic market (Annex VIII);
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 57
- Exports to third countries (Annex IX).
4.415 The Panel asked the parties to clarify whether, in light of the exporters’ agreement to re-
classify the information as requested, the concerns the DCD raised with regard to the confidential
nature of the information at the time of the preliminary determination (recorded in p. 23 of the DCD’s
Final Determination Report, Exhibit EC-2) had been resolved by the time of the final determination.
The Panel further asked the parties to indicate which of the exporters’ information, if any, was still
confidential at the time of the final determination. In certain information had remained as
confidential, the Panel also asked the parties to clarify whether non-confidential summaries were
provided for this confidential information.
4.416 To this question, Argentina provided the following reply.
4.417 The DCD’s concern with regard to the confidential nature of the information during the
preliminary investigation persisted even after the confidentiality of the product code and costs of
production was removed, since the substantial information needed to determine the normal value, the
export value and the margin of dumping remained confidential until the final determination (and is
still confidential).
4.418 Regarding the information submitted in response to the various requests from the
implementing authority, Argentina referred the Pane l to its past comments on the merits thereof and
the limitations encountered by the implementing authority in treating the said information.
4.419 Argentina referred back, in this reply, to th e DCD’s explanations concerning the exporters’
submissions of 4 June 1999.
4.420 A detailed look at the information supplied by the exporters and their submissions of
4 June 1999 shows that not only did they not provide any information regarding the Annexes listed in
the DCD’s Note of 30 April, as recognized by the EC in paragraph 25 of its first oral submission, but
they never in fact furnished sufficient supporting documentation relating to the information provided
regarding Annex V (confidential), nor did they provide non-confidential summaries in conformity
with Article 6.5.1 or remove the confidentiality with respect to the Annexes that were essential to
determining the normal value, the export value and the margin of dumping.
4.421 The Panel asked Argentina whether it agreed with the EC’s statement that the submission of
questionnaire replies within the first two hours of the morning of the working day following the
specified deadline cannot be regarded as late as it is consistent with the provisions of Decreto
1759/72, as amended by Decreto 1883/1991. If so, the Panel asked Argentina to clarify which, if any,
of the exporters’ submissions were not covered by this grace period.
4.422 Argentina replied that it agreed with the EC regarding the possibility of using the first two
hours of the day following a specified deadline, and indeed all of the parties to the procedure have that
right. Argentina had only mentioned this subject as yet another example of the uncooperative attitude
of the exporters. What Argentina wanted to stress was the fact that the period actually used by the
exporters to complete the questionnaire requirements ran from 30 November 1998 to 10 August 1999.
4.423 The Panel asked Argentina to explain what the concern of the DCD was with respect to the
alleged lack of “representativeness” of the exporters’ home sales. In particular, was this a concern
relating to the sampling method, or did this concern relate to the “sufficiency” of the exporters’ home
sales for the purpose of establishing normal values?
4.424 Argentina replied that the DCD’s concern related to the lack of representativeness of the sales
on the Italian domestic market, as stated on page 29, Section V.1.3, of the report on the final
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 58 Arguments/Replies of Argentina
determination of the margin of dumping, and not the sampling methodology itself, since this was
accepted by the DCD in the Note of 22 December 1998 (DCD No. 273-000471/98).
4.425 The Panel asked Argentina to explain the relevance of the DCD’s finding that the four
exporters included in the sample only represented 1.92 per cent of the total volume of sales in the
home market. In particular, did the 1.92 per cent refer to all sales made by Italian producers,
including those with no exports to Argentina? If this was the case, the Panel asked the parties whether
they were of the view that, as a legal matter, companies selected for an individual determination have
to account collectively for a large percentage of all home market sales made.
4.426 Argentina replied that the sample documentation on domestic market sales, which covered
only 1.92 per cent of the physical volume and 1.35 per cent of the total estimated value in Italian lire,
refered to the domestic market sales reported by the four companies participating in the investigation.
The relevance of this weakness in the sample do cumentation was that it prevented the implementing
authority from understanding precisely the transactions that took place in the domestic market during
the investigation period and hence from making an accurate determination of the normal value. In
other words, the supporting documentation was not statistically valid for the purposes of reaching an
accurate determination of the normal value. Additionally, as noted earlier, this supporting
documentation was submitted in confidence.
4.427 The Panel asked the parties to confirm whether that the four exporters included in the sample
accounted, in quantity terms, for around 70 per cent of all exports made.
4.428 Argentina replied to this question by citing Exhibit ARG-23, which contains a note from
Assopiastrelle to the DCD, dated 30 November 1998, stating that: “ … Based on our information the
exports of the 4 to 5 largest exporting companies would account for approximately 70 per cent of the
overall exports from Italy to Argentina of the products under investigation … “.
4.429 The Panel asked the parties to comment on the relevance of the fact that the DCD initially
accepted the sampling methodology suggested by the exporters’ association, although the sampled
firms were later found by the DCD to cover too few home sales.
4.430 Argentina replied that Exhibit ARG-12 shows that the sampling methodology was proposed
on 1 December 1998, before the replies to the questionnaires were received. On 22 December 1998,
the DCD, by Note DCD No. 273-000471/98, accepted the said methodology on the understanding that
Assopiastrelle had suggested it with a view to cooperating in, and simplifying the investigation. It
would have been impossible for the DCD, in the sp ace of 12 days, to evaluate the replies to the
questionnaires and the supporting documentation and to assess whether the information provided was
sufficient to arrive at a reasoned and public conclusion.
4.431 In short, Argentina said, the DCD accepted the sampling methodology on the understanding
that the companies making up the sample would fill out the questionnaires properly, and provide all of
the information that the implementing authority needed to arrive at a proper determination of
dumping.
4.432 The Panel recalled that the exporters’ questionnaire made reference to the provision of
supporting documentation in two places. In the introductory section, while indicating that supporting
documentation must be provided, it also allowed exporters the possibility to identify instead the
source of the information reported. In addition, Section B requested the submission of any supporting
documentation that would help the DCD to better understand the mechanics of the reported
transactions. The Panel asked Argentina whether it was of the view that, according to the
specifications of the questionnaire used by the DCD, respondents were obliged to provide full
documentary evidence of each and every sale reported. The Panel further asked Argentina to clarify
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 59
whether any of the exporters chose to comply with the requirement set out in the introductory section
of the questionnaire by identifying the source of its information. If no exporters took advantage of
that option, the Panel asked Argentina whether it was of the view that the DCD was entitled to require
the submission of “additional” supporting documentation without specifying what that information
should consist of.
4.433 Argentina replied that the exporters’ questionnaire clearly establishes the obligations of the
exporters interested in participating in the investigation. In the introductory section, they are asked to
provide supporting documentation, and only when this is not possible, to identify the source. The
supporting documentation requested in Section B must be sufficiently representative to enable the
implementing authority to better understand the transactions carried out on the domestic market. This
clearly does not mean that it must include, for exam ple, all of the invoices for the domestic market –
but it should include a statistically valid percentage thereof.
4.434 Additionally, the implementing authority was enti tled to ask exporters to elaborate on the
information provided. The need for the implemen ting authority to impose such a requirement was
duly established. As mentioned throughout the investigation, the authority was trying all along to
obtain information that would enable it to make individual determinations for each exporter.
4.435 The Panel recalled that Argentina argued that, by means of the notes that have been provided
to the Panel as Annexes ARG-7, ARG-10 and ARG- 11, the DCD duly informed the exporters that it
was necessary for them to provide additional documentary evidence. The Panel asked Argentina in
what ways, other than by requesting the information to be re-classified, did Annexes ARG-7, ARG-10
and ARG-11 draw the exporters’ attention to the need to provide additional documentary evidence?
4.436 Argentina replied that, clearly, the note of 30 April 1999 requested further evidence and the
submission of non-confidential summaries in sufficient detail to permit a reasonable understanding of
the substance of the information submitted in confidence. Thus, the DCD was not merely asking for
the confidentiality to be removed. The notes of 22 June and 3 August (Annexes ARG-10 and ARG-
11) requested that the confidentiality of the product code and production costs be removed so that the
information supplied on 4 June following the first request could be used, since the said information
was not accompanied by non-confidential summaries.
(e) Arguments of Argentina in its second written submission relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.437 In its second written submission, Argentina made the following arguments relating to the
EC’s claim under Article 6.8 of the AD Agreement.
(i) Significant impeding of the investigation
4.438 Argentina reiterates that the exporters significantly impeded the investigation by failing to
comply with the required formalities in the general and specific instructions of the questionnaires
provided by the implementing authority, by not providing enough supporting documentation with the
information supplied and by providing little information in the non-confidential summaries.
Failure to comply with the formalities
4.439 With respect to point (e) of the EC’s first oral statement, Argentina would like to stress that
according to Article 1 of the AD Agreement, “The following provisions govern the application of
Article VI of the GATT 1994 insofar as action is taken under anti-dumping legislation or regulations.”
This Article concerns the rules governing the implementation of the Agreement which, it stipulates,
are valid to the extent that they are consistent with its provisions.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 60 Arguments/Replies of Argentina
4.440 Argentine legislation implements the AD Agreement and stipulates that the submissions of
the parties must be translated into the national language, and that values must be expressed in US$. It
is unacceptable that the EC should play down rule s governing a procedure conducted in Argentina in
accordance with Argentine legislation while at the same time invoking that legislation in its own
favour and considering it valid when it comes to justifying the delay in submitting documentation –
specifically, the provision allowing documentation to be provided during the first two hours of the day
following the deadline.
Insufficient supporting documentation
4.441 Argentina reiterates that, in its Note of 30 April 1999, the DCD specifically asked the
companies to “… supply further evidence …” and “… elaborate on the information supplied …”. In
Argentina’s, what was being requested was supporting documents, since the supporting
documentation provided with the replies to the questionnaires was insufficient.
4.442 Moreover, a meeting was held on 11 May 1999 between the DCD and the representatives of
the exporters for the purposes of informing the la tter of the shortcomings in their supporting
documentation, and the result of the meeting was the Note provided by the EC in Exhibit EC-10. This
Note clearly shows the DCD’s concern – understood by the representative of the exporters – regarding
the insufficiency of the documentation submitted. Indeed, the representative states that at least 50 per
cent of the exporters’ sales invoices for the Italian domestic market should be provided.
Insufficient non-confidential summaries
4.443 Argentina recalls Exhibit ARG-19, which contains a complete list of the confidential
information submitted by each one of the firms with respect to each one of the Annexes, and identifies
the information that was accompanied by non-confidential but incomplete summaries. Moreover, the
non-confidential summaries provided by the four sample firms with respect to Annexes III, VII, VIII,
IX, X and XI are completely irrelevant in that they lacked substance and hence could not be used by
the authority.
4.444 Argentina also reiterates that the exporters were aware that, as indicated in the general
instructions for completing the questionnaire (point 6), “… ‘confidential’ information that is not
accompanied by a summary or an explanation of why it is impossible to provide such a summary will
not be considered as such”.
(ii) Refusal of access to necessary information
4.445 The EC cannot reasonably claim, as it does in paragraph 37 of its first oral statement, that the
questionnaires only required invoices for exports to Argentina. Argentina draws the Panel’s attention
to page 2, Title 1 of the questionnaire:
OBJECTIVES AND SCOPE
The Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (GATT Uruguay Round) was implemented by Argentina through
Law No. 24.425, published in the Official Bulletin of 5 January 1995, and Regulatory
Decree No. 2121/94 of 30 November 1994, published in the Official Bulletin of 5
December 1994.
The purpose of this questionnaire is to enable the Secretary of Industry, Trade and
Mining of the Republic of Argentina to obtain necessary and sufficient information
for investigations of unfair international trade practices.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 61
The producer and/or exporter of the respondent country shall answer this
questionnaire as accurately as possible, accompanying its replies with supporting
documentation or, where this is not possible, identifying the source of the
information.
All of the information supplied shall be subject to possible verification by the
implementing authority. Where it is not possible to verify the replies in a satisfactory
manner or if they are incomplete or submitted after the time-limit has elapsed,
determinations shall be made on the basis of the best information available (emphasis
added by Argentina).
4.446 Argentina considers that anyone participating in an anti-dumping procedure should be able to
appreciate that the implementing authority’s requirements as set forth in the “Objectives and Scope”
section form a fundamental part of the instructions, in that they include the essential requirements for
fulfilling the legal obligation and describe the consequences of failing to do so.
4.447 Similarly, Argentina draws the Panel’s attention to point 1 of the general instructions for
completing the questionnaire, which appear on page 4:
The four sections … [Section A: General Information; Section B: Exports to
Argentina; Section C: Sales in the domestic market and to third countries; Section
D: Production cost structure. Manufacturing process] … include Annexes and
detailed information. The producer/exporter is asked to indicate the file number on
each of the sheets it submits, answering each question in detail and identifying the
sources used, adding, as a necessary condition for certifying the validity of the
source, the corresponding documentation (emphasis added by Argentina).
4.448 This clearly shows that contrary to what the EC claims in paragraphs 35 to 39 of its first oral
statement, the DCD had stated precisely its requirements in the way of supporting documentation and
the conditions under which such submissions as were made in this respect could be considered valid.
4.449 In other words, the documentation required by the authority is that which can reasonably be
requested in any anti-dumping investigation, and the EC’s far-fetched claim that the implementing
authority required copies not only of all the invoices, but of all the accounting and cost records, is
unacceptable.
4.450 Regarding the EC’s claim in paragraph 41 of its first oral statement concerning the DCD’s
Note of 30 April 1999, Argentina would like to point out that its request to the firms to “… supply
further evidence …” and “… elaborate on the information supplied …” refers to none else than
“supporting documents”.
4.451 It is clear from the above that it was not only at the meeting held on 11 May between the
DCD and the representatives of the exporters that the latter were informed of the shortcomings in the
supporting documentation submitted, as the EC asserts. Following this meeting, as shown by Exhibit
EC-10, the exporters clearly could no longer have any doubts as to DCD’s requirements.
4.452 In Argentina’s view, the clearest evidence that the accompanying documentation was not
sufficient appears in the Note provided by the EC as Exhibit EC-10, in which the representative of the
exporters, following the above meeting, states that “… this information must cover an ‘important’ part
of total sales in the domestic market (you said 50 per cent …)”.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 62 Arguments/Replies of Argentina
(iii) Lack of representativeness of the sample of domestic market sales
4.453 In paragraph 46 of its first oral statement, the EC asserts that what matters is whether the
exports made by the selected exporters were representative of exports to Argentina, and not whether
the domestic sales made by the selected exporters were representative of the domestic sales made by
all the Italian producers. This statement is out of context and refers to a point against which
Argentina did not argue. It was precisely because the four sample firms were representative in terms
of their exports to Argentina – “more than 70 per cent” – that the DCD accepted the sampling
methodology proposed by Assopiastrelle on 22 December 1998.
4.454 What Argentina did argue in paragraphs 43-46 and 49-52 of its first written submission and in
paragraphs 23 and 24 of its oral submission was that the lack of representativeness of the documents
provided by the exporters in respect to their sales (those of the four sample exporters) in the Italian
domestic market, and not in respect of all sales by all producers of porcellanato in the Italian market.
4.455 The Panel will appreciate the relevance of the fact that the sales invoices in the domestic
market included in the record by the exporters fo r the totality of their sales on the Italian domestic
market were not sufficient from a statistical point of view to determine the normal value, and hence,
the margin of dumping.
4.456 It is odd that the EC should argue, in discussing Article 6.8, that “… even assuming that the
sample were in fact not sufficiently representative, that would still not justify the DCD’s decision to
resort to ‘facts available’. Article 6.10 contains no provision authorizing the investigating authorities
to resort to ‘facts available’ in such circumstances”. It is a bit confusing that in this context the EC
should refer to Article 6.10, claiming that it contains no provision authorizing the investigating
authorities to resort to the facts available. Perhaps the EC is thinking of its own regulations, which do
in fact entitle it to do what it seems to want to prevent Argentina from doing.
4.457 In fact, the provision that enables the authority to rely on the facts available is Article 6.8,
which is at the centre of the discussion on the insufficiency of supporting documentation. Ultimately,
what links Article 6.8 and 6.10 of the AD Agreemen t is the fact that in normal circumstances,
Article 6.10 applies, whereas if the authority does not have sufficient information, Article 6.8 applies.
4.458 Argentina reiterates that upon examining the supporting documentation – submitted late and
at the DCD’s specific request – the authority found that the firms making up the sample proposed by
Assopiastrelle itself only represented approximately 1.92 per cent of the physical volume (m
2) and
1.35 per cent of the total estimated value (in Italian lire) of sales on the domestic market.
(iv) Failure to provide the information within a reasonable period
4.459 Argentina stresses once again that the repeated extensions and the delay and reluctance
displayed in removing the confidentiality of the information supplied without sufficiently detailed
non-confidential summaries in fact reflect the situation described in Article 6.8 as regards the failure
to provide the necessary information within a reasonable period.
4.460 Specifically, with respect to paragraph 52 of the EC’s first oral statement, the supporting
documentation was not submitted as soon as it was requested as the EC contends, since it was in fact
requested in the questionnaires of 30 October 1998, and the deadline for submitting replies and
documentation, once it had been extended, was 9 December (within the first two hours of
10 December, as the EC has pointed out).
4.461 As the EC also correctly states in paragraph 25 of its oral statement, following the Note of
30 April 1999, the exporters, on 4 June, submitte d information on Annexes VII, VIII and IX.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 63
Consequently, the EC itself recognizes that the information was not submitted as soon as it was
requested. Argentina reiterates that the information was insufficient.
4.462 Argentina also reiterates its conviction that th e exporters were warned of the shortcomings in
the information supplied, as illustrated by the Notes sent by the DCD to the exporters on 30 April,
22 June and 3 August 1999.
4.463 Since the exporters did not provide the requested information within a reasonable period and
since the information provided did not meet the authority’s requirements for reaching a determination
based thereon, Argentina submits that the investig ating authority acted within the legal framework of
Annex II, paragraph 1.
4.464 Consequently, Argentina considers that the situations described (significant impeding of the
investigation and failure to provide access, added to the failure to provide the information within a
reasonable period) reflect the circumstances described in Article 6.8, the combination of which
enables the authority to make a determination on the basis of the facts available as the only remaining
alternative.
(v) Other claims by the EC
4.465 The EC is mistaken when it claims in paragraph 7 and 8 of its oral statement that Argentina
changed its line of defence. In paragraph 57 of its first written submission, Argentina explains the
meaning of the expression “considered on an equal footing”, which the EC had taken out of its
context.
4.466 In other words, far from changing a line of defence, the paragraph in question merely sets out
the facts, i.e. that Argentina had all of the info rmation before it, the information submitted by the
exporters and that submitted by the complainant. In the case of the former, which – and Argentina
does not dispute this – should form the basis for calculating the normal value and the export value, the
authority did try to use it. However, in view of the considerations mentioned with respect to the
shortcomings in the information, its late submission, and the incomplete and insufficient supporting
documentation submitted by the sample firms (that is, the exporters submitted supporting
documentation concerning their own insufficient sales on the domestic market: 1.35 per cent in value
and 1.92 per cent in volume), the authority had no alternative but to resort to the “facts available”.
4.467 This is very different from the distorted version of the facts according to which the authority
placed both sets of information (the information submitted by the exporters and the rest of the
information) on an equal footing when considering them from the legal point of view and picked only
the data which it found the most convenient.
4.468 Argentina had all of the information before it, and only opted for a determination on the basis
of the facts available when it had concluded, in the light of the situation described above, that the
information from the exporters was insufficient. The mention of Folio 29 was more than a “vague
remark”: it concerned a finding under point V.I.3 of the authority’s final determination. The
conclusion that the DCD drew from this is reflected in that final determination in Folio 39, which was
cited by Argentina in paragraph 27 of its first oral statement.
4.469 Thus, Argentina did not deviate from paragraph 7 of Annex II, since the authority accepted
the sample proposed by the exporters and requested sufficiently detailed non-confidential summaries.
It also asked for supporting documentation and granted a series of extensions, finally having to resort
to secondary information because the supporting documentation was insufficient.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 64 Arguments/Replies of Argentina
4.470 In this respect, Argentina is convinced that it acted in conformity with the sequence laid down
in Article 6.8. Making sure that the circumstances described in Article 6.8 existed, the implementing
authority resorted to a secondary source which provided more ample information, and within a
reasonable period, only when forced to do so.
(f) Arguments of Argentina in its second oral stat ement relating to the EC’s claim under Article
6.8 of the AD Agreement
4.471 In its second oral statement, Argentina made the following arguments relating to the EC’s
claim under Article 6.8 of the AD Agreement.
(i) Refusal of access to necessary information concerning the lack of supporting documentation
4.472 Firstly, contrary to what the EC argued in a reply to a question by the Panel following the first
meeting, Argentina never argued that the investigating authority was free to use secondary sources of
information. On the contrary, Argentina reaffirms that the DCD was forced to do so when it found
that the information submitted by the exporters was insufficient.
4.473 This is clearly reflected in the record of the investigation. Suffice it to mention once again,
for example, the meeting held on 11 May 1999 betw een the DCD and the representatives of the
exporters, one of the essential purposes of which was to remind the exporters of the shortcomings in
the supporting documentation submitted. This meeting resulted in the Note provided by the EC in
Exhibit EC-10, which shows the DCD’s concern re garding the insufficiency of the documentation
submitted. Indeed, the representative of the exporters states that at least 50 per cent of the exporters’
sales invoices for the Italian domestic market should be provided, stressing the particular importance
of including invoices for all sizes (20 x 20, 30 x 30 and 40 x 40).
4.474 Argentina submits that in accordance with the facts described and as reflected in Exhibit
ARG-7, the DCD explicitly requested exporters to “ … supply further evidence” and “ … elaborate on
the information supplied …”. With due respect, Argentina would like to ask the Panel: does this not
constitute a request for supporting documents, given the insufficiency of the supporting
documentation provided in the replies to the questionnaires?
4.475 From the beginning of this case, the EC has maintained, both in its first written submission
and in a reply to a question by the Panel following the first meeting, that Argentina went back on the
position it held during the consultations on how the DCD proceeded in relation to the information
supplied by the exporters. Argentina quotes Article 4.6 of the DSU in this respect: “Consultations
shall be confidential, and without prejudice to the rights of any Member in any further proceedings.”
4.476 In its statements before the Panel, the EC has distorted the meaning of an informal exchange
during the consultations, and is trying to pass this off as a legal interpretation by Argentina when it is
no such thing. “Equal footing” can only mean that value is given to a secondary source when the
circumstances set forth in Article 6.8 are met in a specific case and in accordance with the particular
nature of that case.
4.477 Once again, Argentina points out that the DCD never considered that the sampling
methodology put forward by Assopiastrelle was no t representative; on the contrary, the DCD
accepted it, precisely because the four sample companies were representative in respect of their
exports to Argentina – “more than 70 per cent”. Argentina maintains that the supporting
documentation provided by the four sample firms in respect of their sales in a Italian domestic market
was insufficient to constitute a statistically valid sample for the purposes of determining the normal
value of sales in that market. This was reflected in the final determination, folio 29 1967, page 29.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 65
4.478 Argentina trusts that the Panel will understand the importance in the context of the
investigation of the fact that the sales invoices in the domestic market were not sufficient from a
statistical point of view for the purposes of determining normal value and hence the margin of
dumping.
(ii) Lack of representativeness of the sample owin g to the insufficiency of the information
provided
4.479 Once again, the EC is confusing the issue when it states, in its reply a question by the Panel,
that the implementing authority should have verified in advance the representativeness of the sample
suggested by Assopiastrelle. Obviously, in accepting the sample, the DCD took account of what the
exporters had said, i.e. the Note from Assopiastrelle of 30 November 1998, according to which the
four selected firms represented 70 per cent of exports to Argentina. However, although the sample
was representative, the information provided by the selected companies was not. The DCD never
doubted the representativeness of the sample. Clearly, however, no implementing authority can
verify, in the space of seven working days, whether information provided in replies to questionnaires
is sufficient as supporting documentation (note that the replies to the questionnaires were submitted
on 10 December 1998, while the DCD accepted the sampling methodology on 22 December 1998).
Consequently, the DCD reaffirms that although the sample was representative, the information
supplied by the sample firms in respect of normal value was not statistically valid.
4.480 Regarding the EC’s claim in paragraph 38 of the replies to the questions of the Panel that the
exporters reported in their responses “all” the domestic sales of each of the models that were exported
to Argentina in significant quantities, Argentina re iterates that, as stated in Argentina’s reply to
question 15 by the Panel, the questionnaire responses were incomplete since they did not contain
sufficient information, in particular concerning domestic market sales.
(iii) Impeding of the investigation by refusing access to necessary information
4.481 Likewise, Argentina would like to refute the EC’s reply to a question by the Panel in which it
states that the DCD Notes of 30 April did not request the exporters to provide information on
Annexes VIII and X. Argentina reiterates that th ese Notes make it clear that information on Annex
VIII was requested of all the firms, while information on Annex X was requested of Marazzi and
Casalgrande, although these were not the only Annexes on which information was requested.
Argentina refers the Panel to its reply to question 6 of the Panel.
(iv) Impeding of the investigation by failing to comply with the formalities required under
Argentine law
4.482 As regards the EC claims in paragraphs 59-65 of its second written submission concerning the
formalities required in the questionnaires, Argentina repeats what it said in paragraphs 6 and 7 of its
second written submission: since Article 1 of the AD Agreement provides that domestic legislation or
regulations implementing the Agreement must be respected, and Argentine legislation implementing
the AD Agreement provides that submissions of the parties must be translated into the national
language and values expressed in US$, it is unac ceptable that the EC should play down the rules
governing a procedure conducted in Argentina in accordance with Argentine legislation.
(v) Lack of cooperation
4.483 Argentina does not share either the EC’s assertion that there was no evidence of lack of
cooperation on the part of the exporters. Suffice it to mention that they were late in submitting the
information and failed to comply with certain form alities, and that the information was supplied with
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 66 Arguments/Replies of Argentina
non-confidential summaries that were insufficient for the purposes of using the data supplied, or
without any summaries at all.
(vi) Three new EC claims
Qualitative analysis of the documentation supplied
4.484 As regards the EC’s assertion that the questionnaire did not require the exporters to provide
copies of a sufficient number of invoices, Argentina reiterates that the instructions emphasized that
“Producers and/or exporters from the respondent country must answer this questionnaire with the
greatest possible precision, attaching documentation to support their replies, or if this is impossible
indicating the source of the information”.
4.485 In other words, it clearly was not enough to state that a given number of sales had been made
without providing a sufficient number of sales invoices in the domestic market to back the reply to the
question. Indeed, the sample backing the replies had to be sufficiently extensive to allow a precise
evaluation of the information submitted, and although the actual word “invoices” was not mentioned,
it was implicitly included in the type of information requested.
4.486 Similarly, Argentina refutes the EC’s asserti on that the reference to the fact that the
respondents should supply supporting documents was too vague to meet the requirements of
paragraph 1 of Annex II. Argentina does not agree, since the documentation supporting the replies
was requested from the exporters in the general and specific instructions for each one of the items
required in each questionnaire, in its explanatory part. Thus, Argentina considers that the
implementing authority specified th e information required in detail. Moreover, the EC’s statement
that the said reference was too vague is an interpre tation, and in any case, would fall within the realm
of the implementing authority’s discretion.
Article 2.2 and its footnote as a flawed defence by the EC
4.487 Argentina does not understand why the EC has brought in a new claim – in paragraph 48 of
its second written submission – with respect to Article 2.2 and footnote 2, as a argument in defence of
the contention that the supporting documentation pr ovided with respect to Annex VIII to the
questionnaire was sufficient.
4.488 Article 2.2 lays down the methodology to be used for establishing the margin of dumping
when there are no sales of the like product in the ordinary course of trade in the domestic market of
the exporting country or when, because of the particular market situation or the low volume of the
sales in the domestic market of the exporting country, such sales do not permit a proper comparison.
It then goes on to establish how the margin of dumpin g is to be determined in such situations, i.e. by
comparison with a comparable price of the like product when exported to an appropriate third
country, or with the cost of production in the country of origin, subject to certain conditions in both
cases.
4.489 The 5 per cent referred to in footnote 2 is an exception which, if applicable, entitles the
authority to use, as evidence of normal value, the comparable price of the like product when exported
to an appropriate third country, or to use the cost of production. But footnote 2 nowhere refers to the
supporting documentation for sales in the domestic market. Consequently, the said Article does not
say that it is enough for exporters to provide supporting documentation on domestic market sales
when such sales constitute 5 per cent or more of the sales of the importing Member.
4.490 In other words, what the footnote does not say is that 5 per cent can be considered as
sufficient supporting documentation to back the validity of a sample.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 67
4.491 The EC’s claim should cause the Panel to have serious doubts with respect to its assertion that
it provided sufficient supporting documentation.
Article 6.8 and a mistaken link with Article 6.10
4.492 The EC has also stated in its defence that the circumstances provided for in Article 6.8 were
not met, claiming that Article 6.10 does not allow the authority to base its determination on the facts
available.
4.493 Its argument focuses on the alternatives offered by Article 6.10, which assume that there is
such a great number of exporters and producers that it is impossible to carry out a determination.
Thus, it allows the authority to limit the examina tion to a reasonable number of interested parties
using (1) a statistically valid sample of exporters; or (2) the largest percentage of the volume of
exports.
4.494 In the present case Assopiastrelle offered a sample which was, in fact, valid for the
investigation (four exporting enterprises which, as stated by Assopiastrelle, represented 70 per cent of
exports to Argentina). However, the EC appears to interpret Article 6.10 to imply that once the
sample is limited to a reasonable number of interested parties, the implementing authority cannot
weigh the quantity and quality of the information supplied.
4.495 Nor does Argentina agree with the EC’s interpretation in paragraph 49 of its first oral
statement – among the claims with respect to Article 6.8 – according to which Article 6.10 establishes
the possibility of (1) enlarging the sample; (2) choosing a new sample; or (3) extending the
examination to all exporters.
4.496 This raises a question: if the DCD accepts a sample methodology, at the request of the
exporters, because it considers the sample to be representative of the exporters, and the sample
companies do not provide sufficient information to enable it to arrive at a reasoned conclusion –
refusal of access to information – does the EC maintain that at this point in the investigation (almost
eight months after its initiation) the implementing authority should enlarge the sample, choose a new
sample or extend the examination to cover all exporters, to request what they failed to request?
4.497 In any case, what led the implementing authority to use the facts available was precisely that
the four companies in question supplied documentation for approximately 1.35 per cent of the value
of domestic market sales. Clearly, as Argentina said in paragraph 34 of our first oral statement, the
exporters submitted as the universe of their sales in the domestic market precisely what is usually
considered to be the margin of error – which cannot exceed two or three per cent of the sample – in
any statistical data.
4.498 In short, Argentina submits that the scant information provided in the way of supporting
documentation relates to Article 6.8 in that it implies a refusal of access to necessary information.
When the parties act in accordance with the circumstances described in Article 6.8, the authority may
use the facts available to reach a determination.
4.499 Indeed, as Argentina stated in paragraph 24 of its second written submission, what links
Article 6.8 and 6.10 of the AD Agreement is the fact that in normal circumstances, Article 6.10
applies, whereas if the authority does not have sufficient information, Article 6.8 applies. In other
words, if the implementing authority had had the said information at its disposal in order to make a
dumping determination in accordance with Article 6.10, it would not have had to apply Article 6.8 to
Article 6.10.
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Page 68 Arguments/Replies of Argentina
(g) Replies of Argentina to the second set of questions by the Panel relating to the EC’s claim
under Article 6.8 of the AD Agreement
4.500 Argentina replied to the second set of questions by the Panel relating to the EC’s claim under
Article 6.8 of the AD Agreement as follows:
4.501 The Panel recalled that, in its reply a question by the Panel following the first meeting,
Argentina argues that “As stated in Exhibit ARG- 19, the confidentiality requested in the submission
contained in File No. 061-010305/98 of 10 December 1998 was maintained throughout the
proceedings. Although in the last submission of 4 June 1999, the company provided information on
exports to Argentina, it could not be used, since the information provided in the lists could not be
checked against the information in the official registers or against that submitted by the importers in
their questionnaire responses. This prevented the implementing authority from checking the accuracy
of the information provided.” The Panel asked Argentina to clarify why it believed that this
information could still not be used by DCD. C ould the information still not be used for reasons
relating to the confidentiality of the information or does this remark relate to Argentina’s argument
concerning lack of supporting documentation? The Panel further asked Argentina to explain why the
DCD felt it was necessary to cross-check the information and documentation provided by the
exporters with information from the official registers.
4.502 To this question, Argentina provided the following reply.
4.503 Throughout the proceedings, Argentina was faced with two different situations. On the one
hand, the confidentiality of much of the documentation supplied was maintained. On the other hand,
there was a failure to comply with the formal re quirements for the supporting documentation relating
to export transactions. More specifically, the documentation in question was submitted without the
consular certification required under Article 28 of the Argentine Law on Administrative Procedures
(Law No. 19549).
4.504 To illustrate this pointed, Argentina quoted the relevant part of the instructions to exporters’
questionnaire:
GENERAL INSTRUCTIONS FOR COMPLETING THE QUESTIONNAIRE:
2. The replies and documentation attached hereto must be submitted in Spanish.
Where other languages are used, a translation by a registered translator must be
provided. Documents issued by foreign authorities must be authenticated by consular
or diplomatic officials of the Republic. The signatures must, in turn, be authenticated
by the Ministry of Foreign Affairs, International Trade and Worship of Argentina
(Article 28 and related articles of the System of Administrative Procedures – Law
No. 19.549, Regulatory Decree No. 1759/72, Regulatory Enactment of 1991 by
Decree No. 1883/91).
4.505 In spite of the above, and given that it was not the intention of the investigating authority to
reject the information submitted, the DCD proceeded to cross-check the information with the
documentation in the record obtained from the official registers and from the other parties involved in
the proceedings, specifically the importers. It is all of this information that made up the 30 sets of
documentation in these proceedings and thus constituted the essential facts of the investigation which
determined the conclusions reached.
4.506 In fact, this cross-checking revealed differences. For example, the implementing authority
found information that had been submitted by the importer, in this particular case Quadri y Cia. S.A.,
which had not been supplied by the exporter, as well as the information on exports from the exporter
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 69
that was not supplied by the importer. In other cases, the implementing authority detected export and
import transactions that had not been notified by any of the parties, but that appeared in the official
Argentine customs registers.
4.507 Cross-checking of information from different sources enables the implementing authority to
bring together elements with a view to providing a full picture of trade operations with the
participation of the exporting firm, the importers and the official Argentine registers. Thus the
authority is able to double check every aspect of the facts and weed out the conjectures, contributing
to the reliability of its conclusions as to what actually took place.
4.508 The Panel recalled that Argentina replied to a question by the Panel following the first
meeting as follows: “The DCD’s concern with regard to the confidential nature of the information
during the preliminary investigation persisted even after the confidentiality of the product code and
costs of production was removed, since the substantial information needed to determine the normal
value, the export value and the margin of dumping remained confidential until the final determination
(and is still confidential)”. The Panel asked Argentina to explain which substantial information
remained confidential until the final determination.
4.509 To this question, Argentina gave the following reply.
4.510 In its reply to a question by the Panel followi ng the first meeting, Argentina provided an
exhaustive list of information submitted by the exporters making up the sample and of the
accompanying Annexes for which confidentiality was requested, indicating for each case whether a
non-confidential summary was provided.
4.511 However, as it regards normal value, Argentina wished to explain that the supporting
information was not only confidential, and remained that way throughout the proceedings, but in fact
it was inappropriate and ill-suited for the purposes of determining the normal value. In other words,
in this specific case, the most important problem was the lack of representativeness of the supporting
documentation provided for the purposes of determining the normal value.
4.512 As regards the export price, the supporting documentation supplied did not enable the
authority to carry out the task mentioned in the preceding question. This explains why the
implementing authority proceeded the way it did.
4.513 The Panel recalled that, with respect to Anne xes IV-VI, the exporters provided information
for which they requested confidential treatment, as well as a non-confidential summary of the
information concerned. The Panel recalled further that this summary was prepared by way of
indexing all the figures provided in those Annexes. The Panel asked the parties why the DCD was of
the view that indexation did not permit a “reasonable understanding of the substance of the
information submitted in confidence”.
4.514 In replying to this question by the Panel, Argentina recalled that Exhibit ARG-20 contained,
as an illustration, the non-confidential summaries submitted by the exporting firms for Annexes III,
VII, VIII, IX, X and XI to the questionnaires. In addition, Argentina wished to submit Exhibit ARG-
24, containing the non-confidential summaries for Annexes IV, V and VI. Thus, in the opinion of
Argentina, the Panel had before it all of the relevant non-confidential summaries provided by the
exporting firms and would be able to appreciate that it was impossible, in view of their nature, to
arrive at any public conclusions on the basis thereof.
4.515 The Panel recalled that, with respect to Annexes III and VII-XI of the investigation
questionnaire, the exporters provided information for which they requested confidential treatment,
although they did not provide a non-confidential summ ary of the information concerned. The Panel
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Page 70 Arguments/Replies of Argentina
asked the parties whether the exporters provided a justification as to why such information was not
capable of summarization (that is, a justification separate from the statement that the information in
question required confidential treatment). If this was so, the Panel asked the parties to provide it with
copies of the relevant evidence in the record.
4.516 Argentina replied that it had dealt with this question exhaustively before, but for the purposes
of further clarification it wished to refer the Panel to the documentation provided in Annexes ARG-20
and ARG-24.
4.517 Argentina added that, as could be seen in Annexes III, IV, V, VI, VII, VIII, IX, X and XI, the
request was justified in the following terms: “The request for confidentiality of this information is
based on reasons of competition”.
4.518 If the exporters did provide a justification as to why the information for which confidential
treatment was requested was not capable of summarization, the Panel asked whether the parties were
of the view that under Article 6.5.1 of the AD Agreement investigating authorities have the right to
contest such justifications. If so, the Panel asked further, did the DCD conclude, contrary to the
exporters, that the information in question could in effect be summarized? If the DCD made this
conclusion, could Argentina explain the DCD’s reasoning?
4.519 Argentina replied to this question by saying that it was understood that the parties concerned
must do their utmost to provide the implementing authority with the elements it needed to reach
public conclusions (as required in investigations such as this one to avoid further consultations such as
those that took place subsequently because the confidential nature of the information made it
impossible for the authority to provide a full report of how it had proceeded – for example, in the case
of the 1.92 per cent).
4.520 The Panel asked the parties to comment on the following statement in paragraph 107 of the
report of the Appellate Body in the case Thailand – H-Beams, in which the Appellate Body addressed
the question of the use of confidential informati on by the investigating authority as a basis for an
authority’s final determination:
An anti-dumping investigation involves the commercial behaviour of firms, and,
under the provisions of the Anti-Dumping Agreement, involves the collection and
assessment of both confidential and non-confidential information. An injury
determination conducted pursuant to the provisions of Article 3 of the Anti-Dumping
Agreement must be based on the totality of that evidence. We see nothing in
Article 3.1 which limits an investigating auth ority to base an injury determination
only upon non-confidential information (Appellate Body Report, Thailand – Anti-
Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, at para. 107).
4.521 Argentina replied that the DCD had proceeded in accordance with the legislation in force for
the investigation of alleged dumping. This was reflected in the comprehensive survey conducted by
the DCD with respect to the documentation in the record of the proceedings and to its status.
4.522 The impossibility of reflecting all of the information supplied in the technical reports did not
imply that the implementing authority ignored the information. However, it was the status of the
information and the possibility of arriving at conclusions on the basis thereof that determined whether
it could be considered.
4.523 The Panel recalled that Exhibit EC-10 was a report of the meeting with the case-handlers on
11 May 1999 from the representatives of the exporters in Argentina to the exporters’ lawyers in
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 71
Brussels. The report reflected the discussions with the case handlers, concerning the non-confidential
information that needed to be provided, in the following manner:
Additionally, this information must cover an “important” part of total sales in the
domestic market (you said 50 per cent – I don’t know, I guess that is largely enough),
the coverage must be September 1997 – October 1998, and we have to present
invoices (with confidential status) supporting this non-confidential version.
4.524 The Panel asked Argentina whether this was an accurate reflection of what was said during
that meeting and of the requests for information that were made. Further, the Panel asked Argentina
whether the case-handlers at the 11 May meeting requested invoices from two exporters only
(Casalgrande and Bismantova). The Panel asked the parties next whether the 50 per cent coverage
mentioned in this paragraph related to the provision of non-confidential information, or to the
documentation supporting the information provided. The Panel also asked the parties whether the
50 per cent related to all sales made in the home market, or only to the sales reported by the exporters.
4.525 To this question, Argentina provided the following reply.
4.526 The meeting held on 11 May 1999 was in fact an information meeting held at the request of
the Italian exporting firms for the purpose of clarifying, for the legal representatives of the exporting
firms, the points they considered to be of interest to them. Thus, the results and exact terms used in
this meeting were not recorded in writing in the record of the proceedings.
4.527 Although it is impossible to be certain of the actual terms used, the terms reflected in the
quoted statement correspond fairly closely to what would be in the interests of any anti-dumping
proceeding. Thus, it is helpful in all anti-dumping proceedings to have supporting documentation
corresponding to a high percentage of trade transactions in respect of the goods under investigation.
In this case, it would be understood that what the investigating authority wanted was to have
information corresponding to sales transactions in the Italian domestic market, and in view of the
proposal submitted with respect to the Italian producing firms, this would mean documentation in
respect of the four firms making up the sample.
4.528 As regards the question of whether the information was requested from Bismantova and
Casalgrande only, the answer is that it was requested for the four firms making up the sample.
4.529 In other words, the sample having been accepted, the high percentage of supporting
information to be provided concerned the exporters making up the sample.
4.530 In this connection, while Argentina recognized the possibility of requesting confidentiality for
documentation that warrants such treatment, such requests could only be considered, and taken into
account in conjunction with the overall treatment of the other elements in the proceedings, provided
an adequate non-confidential summary was supplied.
4.531 Regarding the volume of the supporting documentation requested (required percentage), this
applies to the totality of information concerning trade in the product under investigation, and
domestic market sales of the four firms making up the sample, with full details of the transactions
carried out during the period defined and where they are reflected. The non-confidential summary
requested refers to the totality of sales of the product at issue during the period in question, with a
reservation as to the publication of data which might be sensitive for the firms concerned.
4.532 The Panel recalled that, in replying to a qu estion by the Panel following the first meeting,
Argentina stated that the 1.92 per cent figure mentioned on page 29 of the DCD’s Final
Determination, referred to the supporting documentation covering domestic market sales reported by
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 72 Arguments/Replies of Argentina
the four companies participating in the investiga tion. The Panel asked Argentina to explain how this
figure was calculated. Specifically, the Panel wished to know whether the total home market sales
(the denominator in this calculation):
included sales by all producers in Italy, independently of whether they exported to Argentina?
included sales by exporters not in the sample?
included sales of models not exported in significant quantities to Argentina?
included all of the sales made of any given model? (that is, they did not refer to a sample of sales)
4.533 Likewise, the Panel wished to know if the sales for which invoices were provided (the
numerator in the calculation):
- related to all four companies?
- excluded sales to related parties and sales at prices below cost?
4.534 The Panel asked Argentina to provide it, if possible, with the figures that went into the
calculation.
4.535 Argentina replied that, as already stated on several occasions, the DCD interrelated the
information available in the questionnaires provided in the course of the proceedings, and concluded
that the documentation supplied covered that percentage in relation to total sales on the Italian
domestic market.
4.536 Unfortunately, this was a good example of the limitations facing the implementing authority
as a result of the request for confidentiality of the information provided. In this case, the Argentine
authority was limited in the reply it could give to the question, in that it could not reveal the numerical
calculation made, but for the purposes of that calculation, it considered the information corresponding
to the aggregate total amount of sales reported for the Italian domestic market by the four firms in
relation to the total obtained from the documentation contributed by those firms during the
proceedings.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments of Japan Page 73
3. Third Parties: Japan
(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.8 of
the AD Agreement
4.537 In its written submission, Japan made the following arguments relating to the EC’s claim
under Article 6.8 of the AD Agreement.
4.538 The EC claimed that the DCD disregard the normal value and export price information
provided by the exporters inconsistently with Article 6.8 and Annex II. The relevant legal provisions
are those in AD Agreement Article 6.8:
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.
4.539 Article 6.8 must be read in context with the other provisions on evidence in Article 6 and the
provisions of Annex II. When so read, it is clear that Article 6 as a whole establishes a strong
preference for using actual information collected from interested parties in an antidumping
investigation. Article 6.1, for instance, provides th e right for interested parties to submit information
and to obtain the information submitted by other interested parties. Article 6.7 provides for the
investigations in the territory of other Members to verify the information submitted. Article 6.8
provides for recourse to “the facts available,” but only in limited circumstances when an interested
party has failed to cooperate. Annex II further develops conditions on the use of such “best
information available.” All of these provisions are premised on a preference for real information
collected during the investigation and determined to be accurate. It follows that antidumping
authorities can only rely on the allegations in an antidumping petition or other “facts available” when
real information is simply not available. Wher e real information has been submitted within a
reasonable period and found to be accurate during the course of an investigation, antidumping
authorities must rely on it, and cannot give preferential treatment, or even equal treatment to
unverified allegations by the petitioner.
4.540 The practical reasons for this hierarchy of factual sources in the AD Agreement are well
illustrated by the DCD’s final dumping determination in the ceramic tiles investigation. Rather than
rely on real, verifiable information about actual prices paid for ceramic tile in the Italian market, DCD
appears to have relied wholly or in part on published lists of prices to end-users supplied by the
petitioner. According to the EC written submission, these prices to end-users bear little resemblance
to the prices actually charged to distributors and wholesalers, who normally receive large discounts of
up to 75 per cent of the list price. These end-user prices were compared not to end-user prices in the
Argentine market but to prices for export sales to distributors and wholesalers in Argentina.
Apparently there was no on-the-spot verification of these price list data.
4.541 Paragraph 7 of Annex II provides that “if an interested party does not cooperate and thus
relevant information is being withheld from the authorities, this situation could lead to a result which
is less favourable to the party than if the party did cooperate.” As the panel noted in the recent dispute
on United States – Hot-Rolled Steel, “any ‘less favourable’ result under paragraph 7 of Annex II may
only be appropriate in the case of an interested party who does not cooperate” (Panel Report, United
States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/R,
circulated on 28 February 2001, at para. 7.71). The facts as presented by the EC indicate that the four
Italian respondent tile exporters did cooperate; if this is in fact the case, the use to any extent of “facts
available” was inconsistent with Argentina’s obligations under Article 6.8 of the AD Agreement.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 74 Arguments of Japan
4.542 Article 6, and the information collection exercise it provides for, must be interpreted in a
manner that gives them meaning. If antidumping authorities were free to disregard the information
collected, then this information collection exercise would be pointless. The provisions of Article 6.1
would be a nullity, and the limitations specified in Article 6.8 would be meaningless as well.
Article 6, and Annex II, reflect the concept that the legal regime of antidumping is based on an
investigative process in which respondents cooperate with the investigating authority to produce real
data, relating to verifiable facts, so as to arrive at an antidumping margin that reflects as closely as
possible the actual degree of dumping that may or may not have taken place. If investigating
authorities can simply disregard with no explanation the data collected from respondents, respondents
have no incentive to cooperate, and the purposes of this regime are frustrated.
4.543 The DCD final determination indicates that th e deadline set for receipt of information from
the four responding firms was 9 December 1998, and the information was received only on 10
December 1998. A similar situation occurred in the antidumping investigation examined in United
States – Hot-Rolled Steel. In that case, certain information requested was supplied after the deadline
set by the US Department of Commerce (DOC) but well before the time of verification; DOC then
rejected this information and applied the “facts available” instead. The panel in that case noted that
the AD Agreement:
establishes that facts available may be used if necessary information is not provided
within a reasonable period. What is a ‘reasonable period’ will not, in all instances be
commensurate with pre-established deadlines … a rigid adherence to such deadlines
does not in all cases suffice as the basis for a conclusion that information was not
submitted within a reasonable period and consequently that facts available may be
applied (Panel Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan, WT/DS184/R, circulated on 28 February 2001, at
para. 7.54).
4.544 Noting the provisions in paragraph 3 of Annex II, the panel went on to find:
Particularly where information is actually submitted in time to be verified, and
actually could be verified, we consider that it should generally be accepted, unless to
do so would impede the ability of the investigating authority to complete the
investigation within the time limits established by the Agreement (Panel Report,
United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from
Japan, WT/DS184/R, circulated on 28 February 2001, at para. 7.55).
4.545 The panel then determined that an unbiased and objective investigating authority could not
have reached the conclusion that the company concerned had failed to provide necessary information
within a reasonable period. On this basis, the panel concluded that DOC had acted inconsistently with
Article 6.8 in applying facts available in making its dumping determination.
4.546 In the ceramic tiles investigation, the DCD final dumping determination states that DCD
received responses from the four firms in the agreed sample of respondent exporters on 10 December
1998. While this was one day later than the deadline, the information was clearly submitted within a
“reasonable period” in terms of Article 6.8. Since the purpose of timely submission is to enable the
authorities to verify the information and complete their investigation in a timely manner, if DCD did
not conduct any verification then Argentina cannot now claim that it had a right to disregard this
information, to give equal status to unverified allegations by the petitioner or to give such allegations
any status at all in its investigation. In consequence, it appears that Argentina’s treatment of
information on normal values was inconsistent with Article 6.8 and Annex II of the AD Agreement.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments of Japan Page 75
4.547 The EC first written submission notes that paragraph 6 of Annex II of the AD Agreement
provides that if evidence or information is not accepted, the party supplying it should be informed
“forthwith” of the reasons for the refusal to accept, and should be given an opportunity to provide
further explanations within a “reasonable period;” if the authorities consider these explanations as not
being satisfactory, the reasons for the rejection of such evidence or information should be given in any
published determination.
4.548 According to the EC, the DCD never informed the exporters at any time during the
investigation that the information they had supplied on normal value and export prices had been
disregarded. In this case, if DCD did not verify this information, in spite of the fact that the four firms
had consented in advance to verification, the firms were reasonably entitled to assume that DCD was
satisfied with the information and would rely entirely on it in its dumping calculations. The DCD
final dumping determination provides no explanat ion of why DCD failed to rely entirely on the
information submitted when it computed the normal values in this case. Moreover, Resolución
1385/99 provides no explanation at all of the basis on which the normal values therein were derived,
what factors were taken into account or what treatment was accorded to the information received from
the four exporters in the agreed sample.
4.549 Article 6.8 of the AD Agreement specifically re quires that the provisions of Annex II be
observed. Respect for the provisions of Annex II is not only an obligation itself, since (under Article
18.7) Annex II is an integral part of the AD Agreement; it is also a limiting condition on recourse to
Article 6.8. If the facts are as alleged by the EC, th en DCD’s failure to inform the four exporters that
their information would not be taken into account, its failure to accord them opportunities to supply
more information, and its failure to publish any explanation why DCD did not wholly rely on the
submitted information would therefore appear to constitute not only violations of Annex II, but
additional reasons why this determination was in violation of Article 6.8.
(b) Arguments of Japan in its oral statement relating to the EC’s claim under Article 6.8 of the
AD Agreement
4.550 In its oral statement, Japan made the following arguments relating to the EC’s claim under
Article 6.8 of the AD Agreement.
4.551 The parties to this dispute disagree concerning whether the Italian respondents cooperated
fully with Argentina’s investigation. It is for the Panel to determine the facts of this case and to apply
the appropriate burden of proof. However, Japan has a few further legal points on Annex II and
Article 6.8.
(i) Information requested in the questionnaire
4.552 Argentina claims that the questionnaire responses received by DCD were non-responsive
because the Italian producers did not provide supporting documentation for their home market sales.
However, if DCD requested that respondents submit complete documentation for each such sale
reported, this request goes well beyond any reasonable demand on the respondent. Checking
documentary proof for transactions is for the verification process, not for the questionnaire.
Submissions are verified by reviewing a sample of invoices during an on-the-spot investigation.
4.553 Paragraph 3 of Annex II requires the investigating authority to take into account “all
information which is verifiable.” As the panel in Guatemala – Cement (II) found, “‘best information
available’ should not be used when information is ‘verifiable,’ and when ‘it can be used in the
investigation without undue difficulties’” (Panel Report, Guatemala – Definitive Anti-Dumping
Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, at
para. 8.252).
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 76 Arguments of Japan
4.554 Respondents’ alleged failure to provide supporting documentation in questionnaire responses
does not mean the information they submitted was not verifiable, since the sales information could
have been verified by conducting an on-the-spot investigation in Italy under Article 6.7. If Argentina
chose not to conduct such an investigation, for reasons that did not relate to any action by the
respondents unreasonably impeding the investigation, Argentina cannot now claim the information
was not “verifiable.” Moreover, under paragraph 5 of Annex II, if the EC provides a prima facie case
that the Italian respondents did act to the best of their ability, then Argentina was not justified in
rejecting the information that the respondents did supply, unless Argentina can rebut that prima facie
case.
(ii) Demands to waive claims of confidential status
4.555 Argentina’s first written submission discusses in paragraphs 20-21, 25-27 and 30-42
correspondence in which DCD appears to have demanded that Italian respondents waive claims of
confidential status for certain sensitive information. Argentina appears to have taken the position that
DCD could only make a final determination base d on non-confidential information, and if DCD did
not have the respondents’ information in non-confidential form, then DCD was entitled to proceed on
the basis of the “facts available.”
4.556 This position is legally unfounded (and unusual). Antidumping authorities in many Members
reach and announce final dumping determinations based strictly on information submitted in
confidence. The provisions on public notice in Article 12.2 of the AD Agreement specifically defer to
the “requirement for the protection of confidential information”(see Articles 12.2.1, 12.2.2, and
12.2.3). Article 6.5 of the AD Agreement recognizes that antidumping investigations necessarily
concern issues and data deeply sensitive to interested parties from a business standpoint, and requires
authorities to keep such information confidential. A recent Appellate Body report on Thailand-H
Beams also made clear that the AD Agreement “permits an investigating authority making an injury
determination to base its determination on all relevant reasoning and facts before it”, inclusive of the
confidential information (Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted
5 April 2001, at para. 111).
4.557 Article 6.5.1 requires the investigating authority to require interested parties submitting
confidential information to furnish non-confidenti al summaries or to provide a statement of the
reasons why summarization is not possible (Panel Report, Guatemala – Defini tive Anti-Dumping
Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, at
para. 8.213). However, it only requires that the non-confidential summary must “be in sufficient detail
to permit a reasonable understanding of the substance of the information submitted in confidence”
(for instance, if a respondent submits a series of prices, its non-confidential summary could present
the numerical information in grouped form, or in terms of indices or ranges, or approximate figures).
If an investigating authority demands that the respondent submit a summary disclosing the essence of
what is confidential in the information submitted, the investigating authority is not requesting a non-
confidential summary under Article 6.5.1, but is violating its duties under Article 6.5.
4.558 Article 6.5.1 also recognizes that some information is not susceptible of summary. For
instance, customer lists may well not be susceptible of summary, whether submitted by a respondent
in a dumping investigation, or by a petitioner in an injury investigation. In Guatemala – Cement (II) ,
at para. 8.211, the panel found that information of the following sort is “not generally capable of
summarization ‘in sufficient detail to permit a reasonable understanding of the substance”: technical
information on Cementos Progreso’s principal equipment, a contract between Cementos Progreso and
F.L. Smith & Co., and tables used to prepare questionnaires and reconcile the cost structure
calculated for production of grey portland cement with the accounting statements.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments of Japan Page 77
4.559 Article 6.5.2 provides that if the authorities find that a request for confidentiality is not
warranted, and if the supplier is unwilling either to make the information in question public or to
authorize its disclosure in generalized or summary form, the authorities may disregard the information
unless it is demonstrated that the information is correct. However, footnote 18 provides that Members
may not act in an arbitrary manner with regard to requests for confidentiality, and Article 6.5.1
recognizes that some requests for confidentiality are genuinely warranted, in situations where
information is “by nature confidential” under Article 6.5, and the information submitted to the
authorities is genuinely not capable of summary. In such a case, an unbiased and objective
investigating authority could not find that a request for confidentiality is not warranted, and it could
not force a respondent to choose between disclosing company secrets to its competitors and being
subjected to “best information available.” As the panel in Guatemala – Cement (II) found, “the
Antidumping Agreement does not require cooperation by interested parties at any cost. Although
there are certain consequences (under Article 6.8) for interested parties if they fail to cooperate with
an investigating authority, in our view such cons equences only arise if the investigating authority
itself has acted in a reasonable, objective and impartial manner” (Panel Report, Guatemala –
Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (WT/DS156/R), adopted
17 November 2000, at para. 8.251).
(iii) Consequences following from Article 6.5.2
4.560 Argentina also mischaracterizes the legal consequences when investigating authorities may
disregard information under Article 6.5.2. The aut horities may not disregard the information if it can
be “demonstrated to their satisfaction from appropriate sources that the information is correct,” and
they remain subject to Article 6.6 of the AD Agreement, which applies except in circumstances
provided for under Article 6.8 (on Article 6.6, see Panel Report, Guatemala – Definitive Anti-
Dumping Measures on Grey Portland Cement from Mexico (WT/DS156/R), adopted
17 November 2000, at para. 8.172).
4.561 Argentina appears to argue in paragraph 20 that failure to submit a non-confidential summary
ipso facto impedes the antidumping investigation, creates circumstances provided for in Article 6.8,
and thereby authorizes the investigating authority to make determinations on the basis of the “facts
available”. This argument must be rejected.
4.562 Failure to submit a non-confidential summary does not impede an investigation by the
antidumping authorities in the meaning of Article 6.8. The antidumping authorities are fully capable
of drawing conclusions based on the confidential information if it can be demonstrated to their
satisfaction from appropriate sources that it is correct. Therefore, even if lack of a non-confidential
summary impedes access to information by other interest ed parties, this is still not a basis for finding
that the investigation has been impeded in the sense of Article 6.8.
4.563 Thus, an investigating authority cannot automatically go to “facts available” even if an
interested party failed to comply with Article 6.5.1 (though such is not the case with the Italian
respondents in this investigation). That argument dangerously confuses two different concepts within
Article 6, and compromises the rights of respondents under the AD Agreement. The panel must reject
it.
4.564 It is for the Panel to probe the facts of this case, which appear so differently in the
presentations of the two parties. However, the Panel might raise the following issues:
- Argentina argues in paragraph 22 that failure to supply information in US$
constitutes a lack of cooperation. Historical US dollar and Italian lira
exchange rates are a matter of public record. Why was Argentina unable to
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 78 Arguments of Japan
perform this calculation on its own? Does a failure to provide data converted
into US$ justify use of entirely different data?
- In paragraph 50, Argentina seems to imply that because the sales in a sample
were less than 2 per cent of total Italian domestic market sales, the sample
was ipso facto unreliable for determining normal value. This argument is
wrong. The AD Agreement recognizes that there may be some antidumping
investigations with very large numbers of exporters and importers (such as
cases involving horticultural products). Article 6.10 provides for use in such
situations of “samples which are statistically valid on the basis of information
available to the authorities at the time of the selection.” The legal requirement
is that the sample must be statistically valid, not that it must meet or exceed
some arbitrary minimum percentage of the universe sampled.
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments of Turkey Page 79
4. Third Parties: Turkey
(a) Arguments of Turkey in its written submission relating to the EC’s claim under Article 6.8 of
the AD Agreement
4.565 In its written submission, Turkey made the following arguments relating to the EC’s claim
under Article 6.8 of the AD Agreement.
(i) Facts available
4.566 The EC submits that Argentina acted inconsiste ntly with Article 6.8 and Annex II of the AD
Agreement by disregarding the normal value and export price information provided by the Italian
exporters and substituting information from other sources, including the petitioner. The EC, further
contends that, Article 6.8 and Annex II of the AD Agreement, only allow the investigating authorities
to resort to “facts available” in those cases where the exporters do not provide timely necessary
information or significantly impede the investigation.
4.567 Turkey submits that the wording of Article 6.8 makes clear the circumstances under which an
investigating authority may have resort to the “facts available” provisions of the AD Agreement. If an
interested party “refuses access to” necessary information within a reasonable period, “otherwise does
not provide” necessary information within a reasonable period, or “significantly impedes the
investigation” the investigating authority may make determinations on the basis of the facts available.
4.568 Turkey considers that, taking into account the above mentioned conditions, the investigating
authorities shall avoid the discretionary implementation of “facts available” and given the provisions
of paragraph 5 of Annex II, shall refrain from disregarding the information of the parties, provided
that it is timely and the interested party had acted to its best ability. Recourse to facts available should
not be punitive, instead the authorities should im plement it with due caution to supply the lacking
information not made available to them by the interested parties.
4.569 Turkey further submits that, investigating authorities are not free to choose between
information supplied by the parties without giving any reason and any opportunity to respondents to
provide explanations. On the contrary, the authorities may use information other than that supplied by
the interested parties, only if they “have to” and “with special circumspection” as required by the
provisions of paragraph 7 of Annex II. Thus, this Article does not give the authority the right to
choose between the primary and secondary source of information, contrariwise limits the usage of
information from a secondary source.
4.570 Moreover, it is also worth noting that paragraph 3 of Annex II, provides that, “All information
which is verifiable, which is appropriately submitted so that it can be used in the investigation without
undue difficulties, which is supplied in a timely fashion, (...) should be taken into account when
determinations are made.” Particularly, as stated clearly in this Article, where information is actually
submitted in a timely fashion and is verifiable, Turkey considers that it should be accepted, unless
doing so prevents the timely completion of the investigation.
(ii) Failure to inform the interested parties that their information was rejected
4.571 The EC submits that, the Argentinean authorities had acted inconsistently with paragraph 6 of
Annex II of the AD Agreement by failing to expl ain the reasons of rejection of the information
provided by the respondents.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 80 Arguments of Turkey
4.572 Turkey submits that paragraph 6 of Annex II clearly sets forth the obligation of the
investigating authority to inform the interested pa rty of the reasons of rejection and grant them an
opportunity to provide further explanations within a reasonable period.
4.573 In Turkey’s view failure to do so, should be deemed to impair the right of defence of
respondents and be inconsistent with the provisions of the paragraph 6 of Annex II.
(b) Arguments of Turkey in its oral statement relating to the EC’s claim under Article 6.8 of the
AD Agreement
4.574 In its oral statement, Turkey made the following arguments relating to the EC’s claim under
Article 6.8 of the AD Agreement.
(i) Facts Available
4.575 Considering the first issue, Turkey’s submission, in general, covered Turkey’s understanding
of the requirements of Article 6.8 and Annex II.
4.576 In this respect, Turkey submits that, although conditions for recourse to facts available is
mentioned in Article 6.8 in connection with Anne x II, rising number of members are using this
provision in many cases to create artificial dumping margins.
4.577 Turkey considers that, the wording of Article 6.8, puts forward the only cases where the
investigating authorities may make use of the facts available.
4.578 Only where, the interested parties, “refuses access to” or “doesn’t provide necessary
information” “within a reasonable period” or “significantly impedes the investigation”, authorities
may recourse to “facts available” and preliminary and final determinations affirmative or negative
may be made on such basis. This explicit wording in Article 6.8 and other paragraphs of both
Article 6 and Annex II, leave no room for misinterpr etations and they actually demonstrate that the
preference should be given by the authorities to make use of “actual information” obtained in the
course of the investigation and determined to be accurate.
4.579 In this respect, in accordance with paragraph 3 of Annex II, the investigating authorities,
when making determinations are required to take into account all information which is verifiable and
supplied in a timely fashion, appropriately submitted so that it can be used in the investigation without
undue difficulties.
4.580 Likewise, paragraph 7 of Annex II, explicitly puts forward the conditions “have to” and
“special circumspection” referring to the usage of information from a secondary source which, in
other words, limits the freedom of substitution of the information supplied by the respondents.
4.581 Furthermore, paragraph 1 of Annex II, for use of “facts available” and in particular,
information in the application, puts forward the c ondition if information is not supplied within a
“reasonable time”.
4.582 To sum up, generally speaking, authorities recour se to “facts available” in an investigation
should not be of punitive feature. Thus, Turkey submits that, in any given case where information
submitted is not lacking or misleading and timely submitted so that it can be verified, should be dealt
with.
4.583 Nevertheless, considering the EC’s submission, it appears to Turkey in this case that the
investigating authorities’ recourse to “facts available” is not justified, taking into account the above
Claim under Article 6.8 of the AD Agreement WT/DS189/R
Arguments of Turkey Page 81
mentioned reasons and EC’s submission which states that the responses of the parties concerned were
sufficient, verifiable and timely submitted.
(ii) Failure to inform the interested parties that their information were rejected.
4.584 Turkey views the provisions of paragraph 6 of Annex II as an important element for proper
conduction of anti-dumping investigations. It is deemed essential for proper functioning of a healthy
decision making process by the authorities and, on part of interested parties, for predictability and
transparency of decisions taken. Considering the growing number of new investigations initiated, the
vitality of the very function of this provision becomes even more important.
4.585 In this regard, Turkey submits that this paragraph clearly sets forth the obligation of the
investigating authority to inform the interested pa rty of the reasons of rejection and grant them an
opportunity to provide further explanations within a reasonable period.
4.586 Turkey considers that, failure to inform the interested parties that their information were
rejected may be deemed to be violation of right of defence of the respondent. As a matter of fact, this
provision should be dealt together with Article 6.8, since in many cases recourse to facts available
comes along with such practice.
4.587 From the respondent’s point of view, having not received any notice of rejection, one may
consider that, its own information was deemed sufficient for the purposes of investigation, thus may
not necessarily be in need of supplying further ex planatory information or supporting evidence to the
authority. Eventually, the respondent might be informed about the rejection of its information at the
final disclosure stage, at the earliest, which would significantly limit its right to defend.
4.588 Turkey concludes that, as alleged by the EC, if the exporters own information was not used
and exporters were not timely informed of such practice and reasons thereby, this behavior may well
be deemed inconsistent not only with paragraph 6 of Annex II but also with Article 6.8 of the
Agreement.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 82 Arguments of the United States
5. Third Parties: The United States
(a) Arguments of the United States in its written submission relating to the EC’s claim under
Article 6.8 of the AD Agreement
4.589 In its written submission, the US made the fo llowing arguments relatin g to the EC’s claim
under Article 6.8 of the AD Agreement.
4.590 The EC claims that, by disregarding the expo rters’ information without valid justification,
Argentina acted inconsistently with Article 6.8 and Annex II of the AD Agreement, which only allows
the use of “facts available” in those cases where an interested party does not provide timely
information or significantly impedes the investigation. Argentina asserts that it fully complied with
Article 6.8 of the AD Agreement because its application of “facts available” in this case was justified
by the exporters’ failure to provide necessary information in the time and form required.
4.591 Paragraph 6 of Annex II of the AD Agreemen t places an obligation on the investigating
authority to inform an interested party in a time ly manner when the investigating authority intends to
reject the party’s information and to provide the reasons therefor. Paragraph 6 of Annex II also states
that the investigating authority should allow the pa rty an opportunity to provide further explanations,
due account being taken of the time limits of the investigation.
4.592 The United States is not familiar with the underlying facts of this case and, therefore, cannot
comment on whether the letters to the exporters cited by Argentina in its first written submission
satisfy Argentina’s obligations under Annex II, paragraph 6. However, in the view of the United
States, the purpose of the requirement that parties be informed if their information is not accepted is
the same as the purpose behind Article 6.9, namely, to ensure that parties are able to defend their
interests. Thus, any notice informing the parties of the reasons their information is not accepted must
be sufficiently explicit to put the parties on notice that they must provide further explanation as
contemplated by paragraph 6 of Annex II.
4.593 The United States did not address in its oral statement the EC’s claim under Article 6.8 of the
AD Agreement.
Claims under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 83
B. CLAIM UNDER ARTICLE 6.10 OF THE AD AGREEMENT
1. The EC
(a) Arguments of the EC in its first written submission in support of its claim under Article 6.10
of the AD Agreement
4.594 In its first written submission, the EC made the following arguments relating to its claim
under Article 6.10 of the AD Agreement.
4.595 The EC first presented the facts relevant to its claim under Article 6.10.
4.596 In spite of agreeing to the sampling proposed by Assopiastrelle, the DCD did not determine
an individual margin of dumping for each of the four exporters included in the sample.
4.597 Instead, as explained earlier, the DCD calculated two dumping margins for each size category
of porcellanato by using mainly data supplied by the petitioner and official import statistics.
Resolución 1385/99 then imposed the same duty rate on all imports of porcellanato falling within
each size category, irrespective of the exporter.
4.598 The EC then presented its legal arguments relating to this claim.
4.599 The EC recalled that Article 6.10 of the AD Agreement requires that:
The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation. In cases
where the number of exporters, producers, importers or types of products involved is
so large as to make such determination impracticable, the authorities may limit their
examination either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information available to the
authorities at the time of the selection, or to the largest percentage of the volume of
the exports from the country in question which can be reasonably investigated.
4.600 Thus, in accordance with Article 6.10, the investigating authorities must, “as a rule”,
determine an individual dumping margin for each known producer or exporter concerned. By way of
exception to that rule, where the number of producers and exporters concerned is so large as to make
such determination “impracticable”, the investigating authorities may limit their examination to some
of them. In such case, nevertheless, the investigating authorities must determine an individual
dumping margin for each of the producers or exporters included in the examination.
4.601 Where the investigating authorities have made a selection of producers/exporters in
accordance with the second sentence of Article 6.10, they cannot pretend that the determination of
individual margins for each of those producers/export ers would be “impracticable”. Indeed, the very
purpose of the selection is to make “practicable” such determination. Therefore, in those
circumstances, there can be no valid justification to depart from the general rule set out in the first
sentence of Article 6.10 with respect to those exporters.
4.602 The above is confirmed by Article 6.10.2 of the AD Agreement, which provides that:
In cases where the authorities have limited their examination, as provided for in this
paragraph, they shall nevertheless determine an individual dumping margin of
dumping for any exporter or producer not initially selected who submits the necessary
information in time to be considered during the course of the investigation, except
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 84 Arguments of the United States
where the number of exporters or producers is so large that individual examinations
would be unduly burdensome to the authorities and prevent the timely completion of
the investigation. Voluntary responses shall not be discouraged (emphasis added by
the EC).
4.603 This presupposes that the investigating authorities are required to determine individual
margins for each of the producers/exporters “initially selected”. Otherwise, it would have been
illogical to allow the “not initially selected” producers/exporters to request the determination of
individual dumping margins in accordance with Article 6.10.2, and not to give the same opportunity
to the “initially selected” producers/exporters.
4.604 Further confirmation is provided by Article 9.4, which stipulates that, where the investigating
authorities have limited their examination in acco rdance with the second sentence of paragraph 10 of
Article 6, any anti-dumping duty applied to imports from exporters not included in the examination
shall not exceed:
(a) the weighted average margin of dumping established with respect to the selected
exporters or producers, or
(b) where the liability for payment of anti-dumping duties is calculated on the basis of
prospective normal values, the difference between the weighted average normal value
of the selected exporters or producers and the exporters not individually examined.
4.605 The calculation of a weighted average dumping margin or of a weighted average
[prospective] normal value presupposes necessarily that individual dumping margins or individual
prospective normal values, respectively, have been determined first for each of the selected
producers/exporters.
4.606 Article 9.4 further states that:
… the authorities shall disregard for the purposes of this paragraph any zero and de
minimis margins and margins
 established under the circumstances referred to in
paragraph 8 of Article 6 (emphasis added by the EC).
4.607 Again, this presupposes that individual dumping margins have been determined previously
for each selected producer/exporter.
4.608 The Argentinean authorities agreed to make a selection of exporters in accordance with
Article 6.10. Therefore, they were required to determine an individual margin of dumping for each of
the four selected exporters. By failing to do so, and by calculating instead a single dumping margin
for all the Italian producers/exporters, the Argentinean authorities acted inconsistently with
Article 6.10.
(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.10 of the
AD Agreement
4.609 In its first oral statement, the EC made the following arguments in support of its claim under
Article 6.10 of the AD Agreement.
4.610 The EC recalls that Article 6.10 provides that the investigating authorities must, “as a rule”,
determine an individual dumping margin for each known producer or exporter concerned. By way of
exception, where the number of exporters is so large as to make such determination “impracticable”,
the investigating authorities may limit their exam ination to some exporters. In such case,
Claims under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 85
nevertheless, the investigating authorities must still determine an individual dumping margin for each
of the exporters included in the examination.
4.611 In the present case, the DCD decided to limit the examination of dumping to four Italian
exporters. Therefore, the DCD was required by Article 6.10 to determine an individual margin of
dumping for each of the four selected exporters. Yet the DCD calculated a single dumping margin for
all the Italian producers/exporters, including those in the sample. By doing so, the DCD acted
inconsistently with Article 6.10.
4.612 In its first written submission, Argentina argues that the information supplied by the exporters
included in the sample did not allow the DCD to calculate individual dumping margins for those
exporters. This is simply not correct.
4.613 Argentina does not say why the DCD could not have calculated an individual dumping
margin for Casalgrande.
4.614 In the case of Bismantova, Argentina alleges that part of its domestic sales were made to a
related party (Rondine). But this is not a valid ground for resorting to “facts available”. At most, it
could have been a reason for calculating Bismantova’s normal value on the basis of the constructed
value or of the export prices to third countries (see Article 2.2 of the AD Agreement).
4.615 It is true that Caesar only made export sales to Argentina of 40 cm x 40 cm tiles. But the
product under investigation was ceramic tiles and not each of the three size categories defined by the
DCD. Accordingly, the DCD was required to esta blish the existence of dumping for the product
under investigation as a whole, and not for each single size category (Appelate Body Report, EC-Anti-
Dumping Duties on Imports of Co tton Type Bed Linen from India , WT/DS141/AB/R, adopted
12 March 2001, at para. 53). Thus, the DCD could, and indeed should have calculated an individual
dumping of margin for Caesar in respect of the product under investigation as a whole based on
Caesar’s export sales of 40 cm x 40 cm tiles.
4.616 Finally, it is not correct that Marazzi submitted no price information.
4.617 The point which Argentina tries to make at paragraphs 115-122 of its first written submission
is difficult to grasp. Argentina appears to be arguing, once again, that the sample was not
representative. However, this argument is clearly irrelevant in this context. Assuming that the sample
were in fact not representative, that could not just ify to resort to “facts available” for the exporters
included in the sample.
4.618 Finally, Argentina contends that the violation of Article 6.10 would be a “harmless error”
(error inocuo ) since the EC has not demonstrated that it caused a prejudice to the exporters
concerned. For the reasons set out by the panel in Guatemala – Cement (II), the EC considers that this
is not a valid defence under the WTO Agreement (Panel Report, Guatemala – Definitive Anti-
Dumping Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted
17 November 2000, at para. 8.22.). In accordance with Article 3.8 of the DSU, all violations of the
WTO Agreement are presumed to cause nullification or impairment. It is for Argentina to rebut that
presumption.
(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under
Article 6.10 of the AD Agreement
4.619 The EC replied to the first set of questions made by the Panel relating to the EC’s claim under
Article 6.10 of the AD Agreement as follows.
WT/DS189/R Claim under Article 6.8 of the AD Agreement
Page 86 Arguments of the United States
4.620 The Panel recalled that Argentina argued that the questionnaire responses submitted by the
exporters were incomplete since in many cases the exporters failed to report home sales of certain size
categories. The Panel asked Argentina to clarify which exporters failed to provide what kinds of
home sales? The Panel further asked Argentina to explain whether the exporters concerned made
home sales in every size category during the period of investigation. If they did not, the Panel asked
whether Argentina contended that the calculat ion of dumping margins for the product under
investigation required the calculation of dumping margins for every size category devised by the
DCD.
4.621 To this question, the EC provided the following reply.
4.622 Many models sold in Italy were not exported to Argentina, or only so in small quantities.
The exporters reported in their responses all the domestic sales of each of the models that were
exported to Argentina in significant quantities.
4.623 In a few cases where a model exported to Argentina was not sold profitably in Italy or where
the domestic sales represented less than 5 per cent of the export sales to Argentina, the exporters
reported the export sales of that model to third countries, as required by the questionnaire. In
addition, the exporters supplied the cost of production for each of the reported models.
4.624 All the models exported to Argentina by Caesar were of 40 cm x 40 cm. Caesar did not
report the domestic sales of other models, since that information was not required in order to make a
model-to-model comparison. The other exporters reported domestic sales for models of the three size
categories.
4.625 The Panel asked the parties whether there was a legal link between Article 6.8 of the
AD Agreement and Article 6.10 AD Agreement. Assuming that an investigating authority was
justified in using facts available, the Panel further asked whether in the view of the parties
Article 6.10 of the AD Agreement nevertheless required an investigating authority to always
determine an individual margin of dumping for each exporter included in the sample.
4.626 The EC replied that it was obvious that if the dumping margins for all the exporters included
in the sample were based entirely on “facts available”, and if those facts were the same for all the
exporters concerned, the dumping margin would also be the same.
(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel
with the parties, that relate to the EC’s claim under Article 6.10 of the AD Agreement
4.627 Argentina made one question to the EC in co nnection to the EC’s claim under Article 6.10 of
the AD Agreement. In particular, Argentina asked the EC to clarify its statement to the effect that the
DCD “was required to establish the existence of dumping for the product under investigation as a
whole and not for each single size category”, in spite of the fact that the EC recognized that Caesar
had exported tiles corresponding to the 40x40 category.
4.628 The EC replied that the existence of dumping must be established for the product under
investigation as a whole. The product under investigation in this case was ceramic tiles, and not each
of the size categories. Caesar’s dumping margin for the product under investigation could have been
calculated by comparing the export price for its exports of models of 40 cm x 40 cm to the domestic
prices for the same models.
Claims under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 87
(e) Arguments of the EC in its second written submission in support of its claim under
Article 6.10 of the AD Agreement
4.629 In its second written submission, the EC made the following arguments in support of its claim
under Article 6.10 of the AD Agreement.
4.630 In its first written submission, Argentina argues that the information supplied by the selected
exporters did not allow the DCD to calculate individual dumping margins for those exporters. This
argument is totally unfounded.
4.631 Argentina does not explain why it was not possible to calculate an individual dumping margin
for Casalgrande.
4.632 As regards Bismantova, Argentina alleges that part of its domestic sales were made to a
related party (Rondine). But this is not a valid ground for resorting to “facts available”. At most, it
could have been a reason for calculating Bismantova’s normal value on the basis of the constructed
value or of the export prices to third countries using the information provided by that exporter (see
Article 2.2. of the AD Agreement).
4.633 All the models exported to Argentina by Caesar were of 40 cm x 40 cm. For that reason,
Caesar did not report domestic sales of models of 20 cm x 20 cm or of 30 cm x cm. But this did not
prevent the DCD from calculating an individual dumping margin for Caesar. The product under
investigation were ceramic tiles and not each of the three size categories defined by the DCD.
Accordingly, the DCD was required to establish the existence of dumping for the product under
investigation as whole, and not for each single size category (Appellate Body Report, EC – Anti-
Dumping Duties on Imports of Co tton Type Bed Linen from India , WT/DS141/AB/R, adopted
12 March 2001, at para. 53). Thus, the DCD could, and indeed was required to calculate an individual
dumping of margin for Caesar in respect of the product under investigation as a whole based on
Caesar’s export sales of 40 cm x 40 cm tiles.
4.634 Finally, it is not correct that Marazzi submitted no price information.
4.635 Argentina further contends that the violation of Article 6.10 would, in any event, be a
“harmless error” (“error inocuo”) since the EC has not demonstrated that it caused a prejudice to the
exporters concerned. For the reasons set out by the panel in Guatemala – Cement (II) , the EC
considers that this is not valid defence under the WTO Agreement (Panel Report, Guatemala –
Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (WT/DS156/R), adopted
24 October 2000, at para. 8.22). In accordance with Article 3.8 of the DSU, all violations of the WTO
Agreement are presumed to cause nullification or impairment. It is for Argentina to rebut that
presumption.
4.636 In its second oral statement, the EC did not address its claim under Article 6.10 of the AD
Agreement.
4.637 The Panel did not ask the EC any questions following the second meeting relating to the EC’s
claim under Article 6.10 of the AD Agreement.
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 88 Arguments/Replies of Argentina
2. Argentina
(a) Arguments of Argentina in its first written submission relating to the EC’s claim under
Article 6.10 of the AD Agreement
4.638 In its first written submission, Argentina made the following arguments relating to the EC’s
claim under Article 6.10 of the AD Agreement.
4.639 Argentina first presented a number of facts relevant for its arguments.
4.640 The EC argument concerning the failure to calculate an individual dumping margin for each
producer is based on the erroneous hypothesis that the authority was in a position to make such a
calculation using the elements at its disposal. To a certain extent the EC would seem, on the one
hand, to be demanding what its own producers requested, i.e. that the authority work on the basis of
the sample provided, while on the other hand blaming Argentina when the information contained in
the sample was insufficient and it was impossible to determine an individual margin of dumping for
each exporter.
4.641 In discussing Article 6.8, Argentina explained at length that Assopiastrelle itself had asked
that the sample should be considered as representative of the Italian ceramics industry. In the same
chapter, it pointed out the shortcomings of the sample as a valid tool to calculate normal value. The
sample also suffered from shortcomings as a basis for calculating the margin of dumping for each
firm.
4.642 The most notorious shortcomings which made it impossible to calculate an individual margin
of dumping for each firm are as follows:
(a) 30 x 30 ceramic tiles:
Two companies in the sample (Caesar and Marazzi) failed to provide any information
on average prices for this category.
In the case of Bismantova, it was found that 56 per cent of sales on the domestic
market were to its controlling company, Rondine.
(b) 20 x 20 ceramic tiles:
The same two companies failed to provide any information for this category.
(c) 40 x 40 ceramic tiles:
The company Marazzi failed to provide any information for this category either.
In the case of Bismantova, it was found that 91 per cent of sales on the domestic
market were to its controlling company, Rondine.
4.643 This lack of information in itself makes it impossible to calculate the individual margin of
dumping for the company Marazzi in any of the three categories and for Caesar in categories 30 x 30
and 20 x 20. In the case of Bismantova, the high percentage of sales in abnormal trading conditions
made it impossible to calculate the margin of dumping for the categories 30 x 30 and 40 x 40.
4.644 In other words, the sample, as such, could not serve to determine the margins of dumping for
each company either.
4.645 Argentina presented next a number of legal arguments concerning the EC’s claim under
Article 6.10 of the AD Agreement.
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 89
4.646 Firstly, due account should be taken, as stressed throughout the investigation, of the large
number of exporters involved. Indeed, Assopiastrelle listed 205 producers, of which 78 were
apparently exporters of the product investigated.
4.647 This justifies, under Article 6.10 of the Agreement, the decision to make a determination on
the basis of the sample procedure. Moreover, the sample used was put forward by Assopiastrelle,
acting as representative of the Italian manufacturing firms, in view of the large number of
manufacturing enterprises involved. In this connection, the presentation by Assopiastrelle of the
“methodology for the selection of samples” states, inter alia , that “On behalf of the Italian
manufacturers of porcellanato, Assopiastrelle suggested limiting the supply of information on
dumping and injury to a sample considered representative of all of the companies”. It goes on to state
that “The purpose of Assopiastrelle’s proposal was to ensure greater cooperation by the Italian
industry concerned and at the same time to simplify the task of the authorities investigating the Italian
producers”.
4.648 This statement by the Association clearly show s that for the purposes of calculating the
margin of dumping, the sample is claimed to be a valid methodology.
4.649 In reply to the proposal submitted by Asso piastrelle, the DCD, by Note No. 273-000471/98,
wrote to the Economic and Trade Advisor of the Italian Embassy in Argentina as follows:
However, according to the information received, we are faced with an investigation
involving a large number of Italian exporters, and would therefore like to limit the
procedure to the few Italian companies representing most of Italian exports to
Argentina.
4.650 In this connection it was pointed out that:
 … the implementing authority, pursuant to Article 6.10 … may resort to statistically
representative samples for the purposes of determining the margin of dumping in the
investigation. Similarly, in order to apply this procedure, the consent of the exporters
concerned is needed as long as the conclusions reached would have to be extended to
the other firms that were not included in the selection.
While the investigation should extend to a ll firms which have exported to Argentina
from the investigated origin during the period concerned, for purely methodological
purposes, the analysis should be confined to a representative number of exporters of
the goods involved.
4.651 The note concluded by stating that “having received the express consent of the firms, we shall
proceed as stated, subject to the relevant legislation in force”.
4.652 Thus, there is on the one hand a recognition by the EC of the validity of a selection or sample
as a basis for determining the margin of dumping. It cannot be inferred from the acceptance of the
sample that if the sample did not serve the propo sed purpose, the authority had no alternative. In
other words, either the authority calculates a margin of dumping for all of the companies exporting to
Argentina beyond the sample, which would clearly be unreasonable since the very purpose of the
sample was to avoid such a situation, or it uses another alternative to make up for the shortcoming.
4.653 The sample did not, as such, serve the purpose, and the authority therefore warned of the
possibility of “using samples which are statistically valid on the basis of information available to the
authorities at the time of the selection” (Article 6.10). This became necessary in order to complete the
missing information. The exporting firms were certainly not left defenceless and could have protested
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 90 Arguments/Replies of Argentina
against the note or asked the authority to reconsider its approach; or they could have provided the
missing information, thereby enabling the authority to determine a margin of dumping for each firm
on the basis of the sample. The exporters did none of this, and legally consented to the approach the
authority said it would use in calculating the marg in of dumping. It is difficult to see how the
situation that the exporters themselves contributed to creating can now be invoked against the DCD,
proposing a sample that could not be used for the purpose put forward.
4.654 In any case, even if despite the above considerations Argentina is deemed to have deviated
from the requirements of Article 6.10 of the AD Agreement, quod non , this would be a case of
harmless error, since Argentina could not apply Article 6.10 of the AD Agreement with the supporting
information provided by the sample. The error would have been harmless, since the EC did not
demonstrate how this situation injured the companies by producing a higher margin of dumping for its
exports. In fact, the EC did not even claim that th is was the case, but confined itself to arguing that
Article 6.10 of the AD Agreement had been violated, thereby tacitly acknowledging that it did not
happen.
(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article
6.10 of the AD Agreement
4.655 In its first oral statement, the EC made the following arguments relating to the EC’s claim
under Article 6.10 of the AD Agreement.
4.656 Pursuant to Article 6.10, in particular paragraph 1 thereof, the DCD selected the enterprises
that would be the subject of the investigation. To that end, it accepted Assopiastrelle’s proposal, as
explained in paragraphs 115 and 116 of Argentina’s first written submission.
4.657 At the same time, when the implementinng authority, upon opening the investigation, chose
as a “homogenization” criterion the segmentation of the tiles on the basis of their size, it distributed
the questionnaires prepared accordingly. The firm s involved replied to these questionnaires without
raising any objections, showing that they accepted the validity of segmentation by size. Nevertheless,
a vast majority of the sample documentation provided by the exporting firms did not correspond to the
segmentation used by the implementing authority.
4.658 Thus, when the implementing authority had to decide on the elements necessary for the
determination of dumping, it found, as explained below, that it did not have the required
documentation from the selected companies corresponding to the segmentation of the tiles on the
basis of their size.
(i) Characteristics of the sample
4.659 The fact that the sample companies represented a majority of exports to the Argentine market
does not in itself imply that the supporting documentation was representative for each one of the
segments selected (20 cm x 20 cm, 30 cm x 30 cm and 40 cm x 40 cm) for the purposes of
determining their normal value and export price.
4.660 How could an individual margin of dumping be calculated when the domestic market sales
invoices represented only some 1.35 per cent of the value and 1.92 per cent of the physical volume
(m
2), as stated earlier on?
4.661 How, also, could the DCD have calculated the margin of dumping for 30 cm x 30 cm tiles
from Caesar and Marazzi when these companies failed to submit any information on average prices in
the Italian domestic market for that category?
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 91
4.662 At the same time, as stated in paragraph 112 of Argentina’s first written submission, in the
case of Bismantova, 56 per cent of sales on the domestic market were to its controlling company,
Rondine; so that without the remaining 44 per cent of the invoices, the calculation would have been
somewhat dubious.
4.663 The same doubts arise in the case of Caesar and Marazzi for size 20 cm x 20 cm tiles, for
which the firms also failed to provide any information.
4.664 Similarly, Marazzi failed to provide any information concerning the 40 cm x 40 cm.
category, while 91 per cent of Bismantova’s domestic market sales in that category were made to its
controlling company, Rondine. How, then, could the EC have expected the DCD to establish an
individual margin of dumping in these cases?
4.665 All this shows that although the DCD had hoped, through the sample methodology, to be able
to determine a margin of dumping for each export er, this proved impossible because the information
from the exporters that was available to the DCD when it issued its final determination did not enable
it to do so.
4.666 In short, Argentina considers that the EC proceeds from an erroneous hypothesis when it
states that the authority was in a position to make the said calculation on the basis of the elements at
its disposal, since the only elements that were in fact available were those which the companies had
asked to be considered as a sample, and they turned out to be totally insufficient.
4.667 Argentina submits therefore that it did not deviate from the requirements set forth in
Article 6.10 of the AD Agreement.
(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of
the Panel with the parties, relating to the EC’s claim under Article 6.10 of the AD Agreement
4.668 In its oral statement at the third-party session of the first meeting of the Panel with the parties,
and in connection to the EC’s claim under Article 6.10 of the AD Agreement, Argentina recalled
Japan’s statement that the DCD was required to determine individual dumping margins for each of the
four selected exporters, since it had accepted the selection of exporters. Argentina argued that this
statement failed to recognize the fact that the in formation in question was insufficient for such a
calculation.
(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under
Article 6.10 of the AD Agreement
4.669 Argentina replied to the first set of questions by the Panel relating to the EC’s claim under
Article 6.10 of the AD Agreement as follows:
4.670 The Panel recalled that Argentina argued that the questionnaire responses submitted by the
exporters were incomplete since in many cases the exporters failed to report home sales of certain size
categories. The Panel asked Argentina to clarify which exporters failed to provide what kinds of
home sales? The Panel further asked Argentina to explain whether the exporters concerned made
home sales in every size category during the period of investigation. If they did not, the Panel asked
whether Argentina contended that the calculat ion of dumping margins for the product under
investigation required the calculation of dumping margins for every size category devised by the
DCD.
4.671 Argentina argued that the questionnaire responses were incomplete since they did not contain
sufficient information, as stated in the report on the final determination of the margin of dumping.
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 92 Arguments/Replies of Argentina
One thing that was missing was sufficiently detailed supporting documentation on domestic market
sales.
4.672 To this question, Argentina provided the following reply.
4.673 To help the Panel understand what domestic market sales information according to size was
presented by each exporter, Argentina refers the Panel to the Annex to the Final Determination
Report.
4.674 At the same time, Argentina reiterates what was explained in paragraphs 112 and 113 of
Argentina’s first written submission:
(a) 30 x 30 ceramic tiles:
Two companies in the sample (Caesar and Marazzi) failed to provide any information
on average prices for this category.
In the case of Bismantova, it was found that 56 per cent of sales on the domestic
market were to its controlling company, Rondine.
(b) 20 x 20 ceramic tiles:
The same two companies failed to provide any information for this category.
(c) 40 x 40 ceramic tiles:
The company Marazzi failed to provide any information for this category.
In the case of Bismantova, it was found that 91 per cent of sales reported for the
domestic market were to its controlling company, Rondine.
4.675 This lack of information in itself makes it impossible to calculate the individual margin of
dumping for the company Marazzi in any of the three categories and for Caesar in categories 30 x 30
and 20 x 20. In the case of Bismantova, the high percentage of sales in abnormal trading conditions
made it impossible to calculate the margin of dumping for the categories 30 x 30 and 40 x 40.
4.676 The implementing authority decided to analyse the product in accordance with the adopted
segmentation, 20 x 20, 30 x 30 and 40 x 40, taking acco unt of the elements it had at its disposal.
There was no objection to this. The implementing authority expected the selected sample companies
to be representative, in terms of their exports, under Article 6.10 of the AD Agreement, and that they
would also provide information that would enable it to make a determination of dumping on the basis
of the above categories. It is impossible to establish, from the information they supplied, whether or
not they in fact sold all the sizes in question on the domestic market. But based on the information in
the record of the case, the implementing authority understood that the criterion which would enable it
to make a proper determination of dumping was the segmentation of the product under investigation
by size.
4.677 Consequently, the DCD had to calculate the margin of dumping of the product under
investigation for each one of the size categories analysed.
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 93
(e) Arguments of Argentina in its second written submission relating to the EC’s claim under
Article 6.10 of the AD Agreement
4.678 In its second written submission, Argentina made the following arguments relating to the
EC’s claim under Article 6.10 of the AD Agreement.
4.679 The EC’s claim concerning the failure to calculate individual margins of dumping for the
exporting firms is based on an erroneous analysis of the elements making up the record which
inevitably leads to a mistaken conclusion concerning compliance with Article 6.10.
4.680 Firstly, the EC claims that Article 6.10 has been violated, but analysing the content of the
obligation that it claims was violated (“ … determine an individual margin of dumping for each
known exporter or producer concerned …”), it di sregards other provisions of the AD Agreement
which necessarily condition the interpretation of that provision.
4.681 In other words, the EC speaks of a violation of Article 6.10 that did not occur – since the
calculation of the margin of dumping could not take place on the basis of the characteristics of the
sample – while at the same time disregarding the determination of the margin of dumping for the
product that ultimately served as a basis for adopting the measure, which, for its part, did comply with
Article 2 of the AD Agreement. Furthermore, the product was adjusted in order to arrive at a “fair”
comparison in conformity with Article 2.4.
4.682 Regarding the first element, i.e. the calculat ion of the margin of dumping for the product,
which is highly relevant to the analysis of the Article 6.10 obligation, in Argentina’s view the
individual margin of dumping cannot be analysed for each firm outside the context of the calculation
of the margin of dumping for the product under investigation. This calculation of the margin of
dumping for the product is related to the definition of dumping in Article 2.1 which matches the
definition of the product given by the Appellate Body (Appellate Body Report, European
Communities – Anti-Dumping Du ties on Imports of Cotton-Type Bed Linen from India ,
WT/DS141/AB/R, adopted 12 March 2001, at para. 51).
4.683 This finding of dumping must be made with respect to the product under investigation, i.e.
the “product” that is introduced into the commerce of another country at less that its normal value on
the market of the exporting country.
4.684 In broaching the subject of Article 6.10, the EC disregards Argentina’s argument that the
sample proposed by Assopiastrelle being a valid methodology for calculating the margin of dumping,
it could not be claimed that when the documentation provided by the sample exporting companies
turned out to be insufficient, the Authority was le ft without any alternative for determining a margin
of dumping according to the duly adopted segmentation.
4.685 In this case, the product under investigation was ceramic tiles from Italy, “in all sizes”, which
includes, specifically, sizes 20 x 20, 30 x 30 and 40 x 40. This type of porcellanato makes up 99.29
per cent of imports from the investigated origin comparable to the like domestic product.
4.686 Since the Authority had thus defined the like product, the EC’s assertion in paragraph 66 of
its oral statement that “the product under investigation was ceramic tiles and not each of the size
categories defined by the DCD” is erroneous. It is on the basis of its own definition that the DCD
calculated the margin of dumping for each one of the three categories of the product based on the
adopted segmentation.
4.687 Having made a calculation of the margin of dumping which was in keeping with its definition
of the like product, the authority would have been in a position to proceed with the calculation of the
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 94 Arguments/Replies of Argentina
margin for each exporter – Article 6.10 – if it had had the necessary information from the sample that
the exporters themselves proposed.
4.688 The sample provided be Assopiastrelle was claimed to be a valid methodology for calculating
the margin of dumping. However, as already mentioned on many other occasions, the sample
presented a number of shortcomings that made it impossible to calculate an individual margin of
dumping for each firm, among which the most significant were the following:
(a) 30 x 30 ceramic tiles: Two companies in the sample (Caesar and Marazzi) failed to
provide any information on average prices for this category. In the case of
Bismantova, it was found that 56 per cent of sales on the domestic market were to its
controlling company, Rondine.
(b) 20 x 20 ceramic tiles: The same two companies failed to provide any information for
this category.
(c) 40 x 40 ceramic tiles: The company Marazzi failed to provide any information for
this category either. In the case of Bismantova, it was found that 91 per cent of sales
on the domestic market were to its controlling company, Rondine.
4.689 This lack of information in itself made it impossible to calculate the individual margin of
dumping for the company Marazzi in any of the three categories and for Caesar in categories 30 x 30
and 20 x 20. In the case of Bismantova, the high percentage of sales in abnormal trading conditions
made it impossible to calculate the margin of dumping for the categories 30 x 30 and 40 x 40.
4.690 Thus, Argentina does not think that the DCD can be blamed for not having calculated the
individual margins of dumping for each exporting firm, since the firms in question did not provide the
information needed for that purpose.
4.691 Similarly, Argentina would like to point out that in response to the questionnaires of
30 October 1998, the Argentine representative of Assopiastrelle sent a note dated 12 May 1999 to its
principal in which it states that “regarding non-confidential invoices, I suggest to select the same
invoices of each segment (20 x 20, 30 x 30, etc.) with prices closer to the weight average of the
segment … “. This note shows once again that the exporters were aware of, and indeed agreed with,
the segmentation in question.
(f) Arguments of Argentina in its second oral statement relating to the EC’s claim under
Article 6.10 of the AD Agreement
4.692 In its second oral statement, Argentina made the following arguments relating to the EC’s
claim under Article 6.10 of the AD Agreement.
4.693 As explained in paragraph 112 of Argentina’s first written submission, the information on
domestic market sales by size submitted by each exporter was as follows:
(a) 30 x 30 ceramic tiles: two companies in the sample (Caesar and Marazzi) failed to
provide any information on average prices. In the case of Bismantova, it was found
that 56 per cent of sales on the domestic market were to its controlling company,
Rondine.
(b) 20 x 20 ceramic tiles: the same two companies failed to provide any information.
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 95
(c) 40 x 40 ceramic tiles: the company Marazzi failed to provide any information for this
category either, while in the case of Bismantova, it was found that 91 per cent of sales
on the domestic market were to its controlling company, Rondine.
4.694 As stated in paragraph 113 of Argentina’s first written submission, this lack of information in
itself made it impossible to calculate the individua l margin of dumping for the company Marazzi in
any of the three categories and for Caesar in categories 30 x 30 and 20 x 20. In the case of
Bismantova, the high percentage of sales in abnormal trading conditions made it impossible to
calculate the margin of dumping for the categories 30 x 30 and 40 x 40.
4.695 With respect to paragraph 72 of the EC’s second written submission and paragraph 66 of its
second oral statement, Argentina reiterates that the product under investigation was ceramic tiles from
Italy, “in all sizes” which includes, specifical ly, sizes 20 x 20, 30 x 30 and 40 x 40. As already
mentioned, this type of porcellanato makes up 99.29 per cent of imports from the investigated origin
comparable to the like domestic product.
4.696 Argentina therefore repeats that since the authority had thus defined the like product, the EC’s
assertion that “the product investigation was ceramic tiles and not each of the size categories defined
by the DCD” is erroneous. It is on the basis of its own definition that the DCD calculated the margin
of dumping for each one of the three categories of the product based on the adopted segmentation.
4.697 In its reply a question by the Panel following the first meeting, the EC agrees with
Argentina’s statement that if the implementing authority has to resort to the facts available, the margin
of dumping determined will depend on those facts.
4.698 The Panel did not ask Argentina any questions following the second meeting relating to the
EC’s claim under Article 6.10 of the AD Agreement.
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 96 Arguments of Japan
3. Third Parties: Japan
(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.10 of
the AD Agreement
4.699 In its written submission, Japan made the following arguments relating to the EC’s claim
under Article 6.10 of the AD Agreement.
4.700 The EC submission claims that the Argentine authorities violated Article 6.10 of the AD
Agreement by first agreeing to make a selection of exporters and then not determining individual
margins of dumping for those four companies which had been selected. Article 6.10 reads as follows:
The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation.
In cases where the number of exporters, producers, importers or types of products
involved is so large as to make such a determination impracticable, the authorities may
limit their examination either to a reasonable number of interested parties or products
by using samples which are statistically valid on the basis of information available to
the authorities at the time of the selection, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated.
4.701 This provision consists of two sentences. The first sentence requires, as a rule, that the
national authorities of a WTO Member calculate individual dumping margins for all producers and
exporters of merchandise who are subject to an anti-dumping investigation. The second sentence
provides that when there are so many exporters, producers, importers or types of product that
calculation of individual margins for each known exporter or producer is impracticable, the national
authorities can limit their examination to those firms that account for the largest volume of exports, or
alternatively employ statistically valid sampling techniques.
4.702 If national authorities rely on the second sentence of Article 6.10, they are still required to
calculate an individual dumping margin for those firms which had been selected for examination. The
rate applied to the firms that were not selected for examination must conform to the requirements of
Article 9.4 of the AD Agreement.
4.703 The Argentine authorities in the present case did not calculate individual margins of dumping
for each of the four selected exporters. Instead, they calculated two dumping margins for each of
three tile sizes, which applied to all exporters without exception. Japan agrees that if the EC’s factual
allegations are correct, this action by the Argentine authorities appears to be inconsistent with Article
6.10 of the AD Agreement, for the following reasons.
4.704 First, nothing in the second sentence of Article 6.10 requires that the general rule set out in
the first sentence of that provision should be disregarded. The Argentine authorities should therefore
have calculated individual margins of dumping for the limited number of companies under
investigation.
4.705 Second, Argentina’s interpretation would nullify the possibility explicitly created in
Article 6.10.2 of the AD Agreement for those exporters that were not initially selected. This
provision requires that the national authorities “shall […] determine an individual margin of dumping
for any exporter or producer not initially selected who submits the necessary information in time”
(emphasis added by Japan). Like those initially selected, exporters submitting information at a later
stage have the advantage – as a result of Article 6.10.2 – of also having their individual dumping
margins determined. If, as Argentina assumes, national authorities would be allowed to calculate
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments of Japan Page 97
dumping margins for different sizes of a product without considering the situation of those initially or
subsequently selected, the content of Article 6.10.2 would be in direct contradiction with this option.
4.706 Japan agrees with the EC that DCD, by agreeing to limit its examination to a selection of
exporters, was required to determine individual dumping margins for each of the four selected
exporters. By failing to do so, Argentina violated Article 6.10 of the AD Agreement.
4.707 In addition, the DCD calculated the dumping margin of the exporters which were not
selected for the investigation based on the “facts available.” As was found by the recent Panel on
United States – Anti-Dumping Measures on Ce rtain Hot-Rolled Steel Products from Japan, Japan
believes that the rate applied to the firms not selected for examination (“all others rate”) must conform
to the requirements of Article 9.4, including the requirement that such a rate not be derived from any
calculation in which any element was established on the basis of “facts available.”
4.708 Japan did not address in its oral statement the EC’s claim under Article 6.10 of the AD
Agreement.
WT/DS189/R Claim under Article 6.10 of the AD Agreement
Page 98 Arguments of Turkey
4. Third Parties: Turkey
4.709 Turkey did not address the EC’s claim under Ar ticle 6.10 of the AD Agreement either in its
written submission nor in its oral statement.
Claim under Article 6.10 of the AD Agreement WT/DS189/R
Arguments of the United States Page 99
5. Third Parties: The United States
4.710 The United States did not address the EC’s claim under Article 6.10 of the AD Agreement
either in its written submission nor in its oral statement.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 100 Arguments/Replies of the EC
C. CLAIM UNDER ARTICLE 2.4 OF THE AD AGREEMENT
1. The EC
(a) Arguments of the EC in its first written submission in support of its claim under Article 2.4 of
the AD Agreement
4.711 In its first written submission, the EC made th e following arguments in support of its claim
under Article 2.4 of the AD Agreement.
4.712 The EC submits that the DCD did not make “due allowance” for all the differences in
physical characteristics between the models of porcellanato exported to Argentina and those sold in
Italy, thereby violating Article 2.4 of the AD Agreement.
4.713 The EC presented first the facts relevant for its arguments concerning its claim under
Article 2.4.
4.714 Porcellanato is a very heterogeneous product. Each of the exporters included in the sample
produces many different models, the prices of which may vary considerably. Since the mix of models
exported to Argentina is not the same as that sold domestically, the exporters requested to the DCD
that the export price for each model be compared, where possible, to the normal value for the same
model.
4.715 The DCD rejected that request. Instead, the DCD grouped all the models in three broad
categories according to their size (20 x 20 cm, 30 x 30 cm and 40 x 40 cm) and calculated a normal
value and an export price for each of those categories. The DCD made only one adjustment to the
normal value in order to reflect the differences between polished and unpolished porcellanato. No
further adjustments were made to take into account the other differences in physical characteristics.
Thus, the DCD erroneously disregarded that the prices of porcellanato may vary considerably
according to factors other than the size, or whether it is polished or unpolished.
4.716 For example, the price list of Casalgrande relied upon by the DCD shows that the list price of
unpolished porcellanato of 30 cm x 30 cm may range from 25,000 Lit/m2 to more than 50,000
Lit/m2, i.e. more than a 100 per cent price difference (by way of comparison, the dumping margins
determined by the DCD for this size category were 43.14 per cent and 27.43 per cent).
4.717 The DCD’s failure to make due allowance for all the differences in physical characteristics is
all the more unjustifiable in view of the fact that, in its Final Dumping Determination, the DCD itself
acknowledged that there were significant prices differentials between models of unpolished
porcellanato of the same size:
precios) se ha observado una gran disparidad de precios del producto de iguales
medidas y precios de venta inferiores en las medidas de mayor tamaño. Así, se pudo
venta inferiores a los precios de venta del ‘porcellanato’ de 20 cm x 20 cm, o al de
30 cm x 30 cm; como también precios de venta de la medida 30 cm x 30 cm
inferiores a los de la medida 20 cm x 20 cm (Final Dumping Determination, Section
V.1.3, at p. 28).
4.718 The EC presented next its legal arguments concerning its claim under Article 2.4.
4.719 The EC recalls that Article 2.4 of the Anti-dumping Agreement provides in pertinent part that:
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 101
A fair comparison shall be made between the export price and the normal value […].
Due allowance shall be made in each case, on its merits, for differences which affect
price comparability, including differences in […] physical characteristics […].
4.720 The DCD acknowledged in the Final Dumping Determination that, in addition to the
differences in size and the differences between polished and unpolished porcellanato, other
differences in physical characteristics could have also a significant impact on the price and,
consequently, “affect price comparability” in the sense of Article 2.4. Therefore, the DCD was under
the obligation to make “due allowance” for such differences.
4.721 In spite of that, the DCD rejected, without advancing any justification, the exporters’ request
to make the comparison between normal value and export price on a model-to-model basis. Instead,
the DCD lumped together very different models with very different prices, thereby grossly distorting
the comparison.
4.722 Admittedly, the terms “due allowance” leave some discretion to the investigating authorities.
Thus, arguably, the DCD could have chosen to make “due allowance” for the differences at issue by
using a different method from that suggested by the exporters. For example, by making adjustments a
posteriori to the normal value or to the export price. Nevertheless, the DCD also failed to apply any
such alternative method. As explained above, the DCD limited itself to make an adjustment for the
differences between polished and unpolished porcellanato.
4.723 Moreover, had the DCD considered that a different method would be more appropriate to
make “due allowance” for the differences in physical characteristics than the model-to-model
comparison proposed by the exporters, it should have informed the exporters thereof and indicated to
them what evidence was required in accordance with the last sentence Article 2.4, which provides
that:
[t]he authorities 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.
4.724 In conclusion, by failing to make “due allowance” for all the differences in physical
characteristics affecting price comparability, the DCD violated Article 2.4, third sentence.
Furthermore, as a result, the DCD also failed to make a “fair comparison” between normal value and
export price, contrary to the first sentence of Article 2.4.
(b) Arguments in the EC’s first oral statement in support of its claim under Article 2.4 of the AD
Agreement
4.725 In its first oral statement, the EC made th e following arguments concerning its claim under
Article 2.4 of the AD Agreement.
4.726 Porcellanato is a very heterogeneous product. Each of the exporters concerned produces
many different models, the prices of which can vary considerably according to factors such as the
size, the shape, the thickness, whether they are polished (“polito”) or unpolished, the colour of the
surface, the pigmentation of the clay, the quality or choice (“scelta”), the resistance, the water
absorption, etc.
4.727 Since the mix of models exported to Argentina was not the same as that sold domestically, the
exporters requested to the DCD that the export price for each model be compared, where possible, to
the normal value for the same model.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 102 Arguments/Replies of the EC
4.728 The DCD did not follow that method. Instead, the DCD grouped all the models in three broad
categories according to their size (20 cm x 20 cm, 30 cm x 30 cm and 40 cm x 40 cm) and calculated
a normal value and an export price for each of those categories.
4.729 As a result, the DCD failed to make “due allowance” for all the differences in physical
characteristics affecting price comparability, thereby violating Article 2.4 of the AD Agreement.
4.730 Argentina admits, and indeed even stresses, the existence of numerous differences in physical
characteristics, in addition to those relating to the size of the tiles. Nevertheless, it argues that to take
them into account would have complicated “enormously” the task of the investigating authorities.
4.731 This defence is clearly without merit. Article 2.4 does not allow investigating authorities to
disregard differences in physical characteristics that affect price comparability simply because it
would be too complicated to take them into account. Moreover, the difficulties invoked by Argentina
could have been easily avoided if the DCD had made a model-to-model comparison.
4.732 Argentina further contends that the DCD’s decision to make “due allowance” only for the
differences in size is reasonable and within the limits of the “deference” accorded to the investigating
authorities by Article 17.6, because size is the most “universal” characteristic of tiles.
4.733 The EC disagrees. As noted in our written submission, Article 2.4 leaves some discretion to
the investigating authorities with respect to the choice of the precise method for making “due
allowance” for differences in physical characteristics affecting price comparability.
4.734 In contrast, Article 2.4 leaves no discretion to the investigating authorities for choosing
whether or not to make “due allowance”. The only “permissible” interpretation of Article 2.4 is that it
requires to make “due allowance” for all the differences in physical characteristics that affect price
comparability. The investigating authorities canno t limit themselves to make “due allowance” only
for the differences concerning a certain characteristic of their choice, even if that characteristic is the
most “universal”.
(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.735 The EC replied to the first set of questions by the Panel relating to the EC’s claim under
Article 2.4 as follows.
4.736 The Panel asked the parties to clarify whether the exporters that replied to the questionnaire
requested the DCD at some point to calculate the dumping margin on the basis of model-based
comparisons. If so, the Panel further asked, what specific model-matching methodology was
proposed? Could the parties provide the Panel with the relevant references either in the report or in
the administrative record? The Panel also asked the EC to comment on the relevance in this respect
of Exhibit EC-10.
4.737 To this question, the EC provided the following reply.
4.738 In their questionnaire responses, the exporters requested that the export price for each model
exported to Argentina be compared to the normal value based on domestic prices for the same model
and, where this was not possible, to the export price to third countries or the constructed value for the
same model.
4.739 This request was reiterated by the representatives of the exporters at the meeting of 11 May
2001 with the case-handlers. The representatives of the exporters understood that the DCD would
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 103
make a model-to-model comparison on the basis of the information provided by the exporters if the
exporters supplied the requested additional non-confidential summaries and supporting invoices.
4.740 Casalgrande, Caesar and Marazzi sold their models under the same name in Italy and for
export (including to Argentina). Accordingly, no model-matching methodology was necessary.
4.741 Bismantova sold the models for export to Argentina and third countries under a different
name. In order to allow the DCD to make a model-to-model comparison, Bismantova provided in its
response a “conversion table”. As agreed at the meeting of 11 May 1999, that table was disclosed to
the other interested parties in Bismantova’s submission of 4 June 1999.
4.742 If the exporters did request the DCD to do its margin calculations on the basis of models, the
Panel asked the parties to clarify what was the DCD’s response to that request.
4.743 The EC replied that the DCD did at no point during the investigation inform the exporters that
it would not make a model-to-model comparison. To the contrary, the representatives of the exporters
drew the conclusion from the meeting of 11 May 1999 that the DCD would make a model-to-model
comparison on the basis of the information provided by the exporters if the exporters supplied the
requested additional non-confidential summaries and supporting invoices.
4.744 The Panel recalled that, independently of whether the exporters asked for a model-based
comparison of normal value and export prices, the record suggested that prices of tiles varied
significantly, even within a single size category, on account of differences in processing
(polished/unpolished), quality, and colour (for instance, Bismantova’s price list submitted as Exhibit
EC-5C). The DCD itself recognized (see page 28 of its Final Dumping Determination) that the
exporters’ sales information revealed considerable price differences in products of equal size and
lower sales prices for the larger sizes than for the smaller sizes. On account of this situation, the Panel
asked the parties whether they were of the view that the requirement to adjust for physical differences
affecting price comparability could be met in th is investigation by comparing normal values and
export prices corresponding to the same size category.
4.745 The EC replied to this question in the negative. In accordance with Article 2.4, the DCD was
required to make due allowance for all the differences in physical characteristics affecting price
comparability, and not only for the differences in size.
4.746 The Panel asked Argentina whether it was of the view that the infinite number of physical
differences made adjustment beyond size impracticable, and that Article 2.4 would recognize an
exception in this respect. Additionally, was Argentina’s view that the exporters failed to support such
an adjustment by not providing sufficient data? The Panel further asked Argentina, if the data were
considered inadequate, to what extent was such inadequacy based on the confidential nature of the
information supplied, and were the exporters informed thereof?
4.747 To this question, the EC provided the following reply.
4.748 In theory, in an investiga tion involving a large number of different models with many
different features, the investigating authority could ensure a “fair comparison”, as required by
Article 2.4, by using two different methods.
4.749 The first method involves two steps: (1) compar ing the export price for each model to the
normal value for the same model (or for a similar model, after adjustments if necessary); and (2)
averaging the resulting price differentials into a dumping margin for the product under investigation
as a whole. This is the most accurate method and also the easiest to apply.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 104 Arguments/Replies of the EC
4.750 The second method involves also two steps: (1) making adjustments for all the differences
between a “benchmark” model and all the other models; and (2) comparing the adjusted normal value
and export price on a product basis. This method would be extremely cumbersome and, in any event,
much less accurate in practice than a model-to-model comparison. Moreover, assuming that all the
necessary adjustments could be accurately estimated, the result should not differ from that obtained by
using the first method. For those reasons, in practice no investigating authority uses this method.
4.751 Since the exporters had requested, and expected, that the DCD would make a model-to-model
comparison (the first method), they did not request the DCD to make adjustments for differences in
physical characteristics (the second method).
4.752 Argentina argues now that the second method would have been very difficult to apply in this
case. The EC would agree. However, this did not entitle the DCD to make allowance only for the
differences in size. Rather, Argentina should have made a model-to-model comparison, something
for which the exporters had provided all the necessary information.
4.753 The Panel recalled Argentina’s statement to the effect that the exporters did not object to the
DCD’s adjusting only for size, and not for quality or other physical differences affecting price
comparability. The Panel asked the EC whether it agreed with this characterization of the evidence.
The Panel further asked the parties to comment on the relevance this fact could have under
Article 2.4. In other words, the Panel asked, if the investigating authorities have reason to believe that
certain physical differences, in fact, affect price comparability, and if the record contains evidence
sufficient to make such an adjustment, would the acceptance by the exporters of the adjustments
actually made relieve the authorities of the need to make further adjustments?
4.754 To this question, the EC provided the following reply.
4.755 Contrary to Argentina’s unsupported assertions, the DCD never informed the exporters that it
would make allowance only for differences in size. Nor, consequently, could the exporters have
acquiesced to that decision. In particular, it is not correct that the DCD’s decision to make allowance
only for differences in size was reflected in the questionnaire sent to the exporters. The questionnaire
required the exporters to supply normal value and export price information by “model/type/code”, and
not by size category.
4.756 The Preliminary Dumping Determination was based on “facts available”, and not on the
exporters’ data. The facts available used by the DCD did not allow to make a model-to-model
comparison. Thus, the fact that the DCD did not make such comparison in the Preliminary Dumping
Determination was not interpreted by the exporters as implying a rejection of that approach.
4.757 The exporters expected that, since the issue of the non-confidential summaries had been
resolved in the meantime, the DCD would make a model-to-model comparison in the Final Dumping
Determination, based on the information supplied by them, which would take due account of all the
differences in physical characteristics. As mentioned before, the meeting of 11 May 1999 with the
case-handlers reinforced this expectation. Due to the DCD’s failure to make a disclosure of “essential
facts” prior to the final determination, the EC exporters were unaware that the DCD would not make a
model-to-model comparison and could not object to the DCD’s decision to make allowance only for
differences in size.
4.758 The Panel recalled that the EC argued in its first written submission (at para. 77) that the
DCD did adjust normal value in order to reflec t the physical differences between polished and
unpolished tiles. However, the DCD’s report raised this issue exclusively in the context of margin
calculations for one of the exporters (Caesar), and, even in this case (see page 29 of the Final
Determination Report), it suggested that the information on home prices provided by the exporter
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 105
concerned was rejected by the DCD on the grounds that that home sales of polished tiles could not be
compared to export sales of unpolished tiles. The Panel asked the parties to clarify whether the
adjustment concerned was made.
4.759 To this question, the EC provided the following reply.
4.760 As noted by the Panel, the Final Dumping Determination is unclear about whether the
requested adjustment was granted. During the consultations, the Argentinean authorities informed the
EC that the adjustment had been granted, but did not disclose the details of the calculation.
4.761 Caesar was the only exporter which requested an adjustment for differences in physical
characteristics between polished and unpolished tiles. Caesar made this request because one of the
models exported to Argentina was unpolished, while the model sold under the same name in Italy was
polished.
4.762 Exhibit EC-17 contains a copy of the relevant section of Caesar’s questionnaire response
where the adjustment was requested. The amount of the adjustment estimated by Caesar was omitted
in the non-confidential version. The EC considers that this amount was not capable of summarization.
4.763 The other exporters did not request an adjustment for differences between polished and
unpolished tiles because the models sold in Italy were identical in all respects to those exported to
Argentina. Thus, a model-to-model comparison would have been sufficient to ensure a fair
comparison.
(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel
with the parties, that relate to the EC’s claim under Article 2.4 of the AD Agreement
4.764 The EC replied to the questions made by Argentina relating to the EC’s claim under
Article 2.4 of the AD Agreement as follows.
4.765 Argentina asked the EC how it could make an argument for undertaking price comparisons by
model and at the same time express the view that “fair comparison” requires taking into consideration
every physical characteristic.
4.766 The EC replied that there was no contradiction. In the present case, a model-to-model
comparison would have been the most accurate and the simplest method to make due allowance for
all the differences in physical characteristics. Th e EC referred Argentina to the EC’s answer to a
question made by the Panel (question No. 2) following the first meeting.
4.767 Argentina asked the EC whether it was of the view that a “fair comparison” could be made on
the basis of the information contained in the catalogues that the exporters submitted and were
provided to the Panel as Exhibit ARG-22.
4.768 The EC replied that its answer to this question was reflected in paragraphs 82-83 of its second
written submission.
(e) Arguments of the EC in its second written submission in support of its claim under Article 2.4
of the AD Agreement
4.769 In its second written submission, the EC made the following arguments supporting its claim
under Article 2.4 of the AD Agreement.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 106 Arguments/Replies of the EC
4.770 Argentina admits, and indeed emphasises, the existence of numerous differences in physical
characteristics, in addition to those relating to the size of the tiles. Nevertheless, it argues that to take
them into account would have complicated “enormously” the task of the DCD.
4.771 This defence is clearly without merit. Article 2.4 does not allow investigating authorities to
disregard differences in physical characteristics that affect price comparability simply because it
would be too difficult to take them into account. Moreover, the difficulties invoked by Argentina
could have been easily avoided if the DCD had made a model-to-model comparison, as requested by
the exporters.
4.772 Argentina further contends that DCD’s decision to make “due allowance” only for the
differences in size is reasonable and within the limits of the “deference” accorded to the investigating
authorities by Article 17.6 of the AD Agreement, because size is the most “universal” characteristic of
tiles.
4.773 This argument is thoroughly misguided. Article 2.4 leaves some discretion to the
investigating authorities with respect to the choice of the precise method for making “due allowance”
for differences in physical characteristics affecting price comparability. Thus, in particular, the
investigating authority can choose whether to make “due allowance” by making a model-to-model
comparison, or by making adjustments to the normal value and/or the export price prior to the
comparison. In practice, nevertheless, the authority’s discretion is limited by the fact that the second
method is extremely cumbersome where the investigation concerns a product which is sold in many
different, multi-featured models.
4.774 In contrast, Article 2.4 leaves no discretion to the investigating authorities for choosing
whether or not to make “due allowance”. The only “permissible” interpretation of Article 2.4 is that it
requires to make “due allowance” for all the differences in physical characteristics that affects price
comparability.
4.775 In its first oral statement, Argentina implies that the exporters agreed in advance, or at least
did not object, to the DCD’s decision to make allowance exclusively for the differences in size. That
is not true.
4.776 Argentina also argues in its first oral statement that the exporters failed to provide the
necessary information to make adjustments for other differences in physical characteristics. More
specifically, Argentina contends that, when answering the questionnaire’s request to supply the
technical specifications of the products, it was not sufficient for the exporters to refer to the
specifications contained in the brochures attached to the response (Argentina also argues, at para. 71
of its first oral statement, that the DCD could not make adjustments because the exporters failed to
provide the information requested in Annex IV on a “model/code/type” basis. That Annex, however,
requested information on production, production capacity, stocks, exports and imports. That
information is not directly relevant for making adjustments for differences in physical characteristics.
At any rate, this is the first time that this supposed deficiency is raised by the Argentinean authorities).
Argentina, nevertheless, does not explain why. Moreover, this is the first time that the Argentinean
authorities complain that the exporters’ response to that section of the questionnaire was not complete.
4.777 In any event, it must be recalled that the exporters did not request the DCD to make
adjustments (with the exception, in the case of Caesar, of the differences between polished and
unpolished models) but rather to make a model-to-model comparison. That comparison would have
made unnecessary to make any adjustments before comparing the normal value with the export price.
Had the DCD informed the exporters that it would not make a model-to-model comparison, the
exporters could have submitted requests for adjustments and supplied supporting evidence.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 107
(f) Arguments of the EC in its second oral statement in support of its claim under Article 2.4 of
the AD Agreement
4.778 In its second oral statement, the EC made th e following arguments in support of its claim
under Article 2.4 of the AD Agreement.
4.779 Argentina contends that the decision to calc ulate the dumping margin by comparing the
normal value of each of the three size categories defined by the DCD to the export price for the same
category was taken by the DCD at the opening of the investigation (“ a la apertura de la
investigación”).
4.780 However, if such decision was taken, it was never communicated to the exporters. It is not
mentioned in the Resolution opening the investigation. Nor is there any trace of that decision in the
questionnaire. As already explained, the questionnaire required the exporters to provide the
information on a “model/type/code” basis, and not by size category.
4.781 Argentina asserts repeatedly that the “segmentation” made by the DCD (to borrow the term
used by Argentina) was “accepted” or at least “not objected” by the exporters. This is simply untrue,
and Argentina has provided no evidence whatsoever to support those assertions.
4.782 In their questionnaire responses the exporters made a clear request to the DCD to make a
model-to-model comparison. That request was renewed at the meeting with the case-handlers of
11 May 1999. The DCD never informed the exporters that such request had been rejected.
4.783 Argentina cites the report of the meeting with the case-handlers of 11 May 1999 as evidence
that the exporters would have acquiesced to the segmentation decided by the DCD. However, the
passage cited by Argentina is no more than a suggestion made by the representative of the exporters in
Argentina to the effect that the sample of invoices requested by the DCD should include examples of
the three size categories. The exporters have never questioned that size is an important differentiating
characteristic, or that the main size categories are those defined by the DCD. In view of that, it was
sensible to suggest that the sample of invoices, so as to be comprehensive, should include examples of
each of those size categories. But from this it does not follow that the exporters had renounced to the
model-to-model comparison requested in the responses. The exporters understood that the sample of
invoices had been requested by the DCD with the exclusive purpose of verifying the information
reported in the responses, and that the dumping calculation would be made by using all the
transactions reported in the responses. Furthermore, the report of the meeting also alludes to the need
to provide non-confidential versions of the conversion tables between models. Yet the submission of
those tables would have been totally unnecessary if the exporters had not envisaged that the DCD
would make a model-to-model comparison.
4.784 Argentina further argues that the request to make a model-to-model comparison was first
“suggested” by the EC before this Panel. But this a ssertion is contradicted in the very next paragraph
of Argentina’s second written submission, where Argentina is forced to admit that, in fact, the
questionnaire responses showed the “interest” (“ interés”) of the exporters in a model-to-model
comparison.
4.785 Argentina goes on to argue that the DCD could not make the requested model-to-model
comparison because the exporters failed to provide necessary information. However, this is mere
assertion: Argentina nowhere specifies what additional information was required for this purpose.
4.786 Moreover, the exporters were never informed during the investigation of these alleged
deficiencies. Nor were these deficiencies mentioned in the Final Dumping Determination.
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Page 108 Arguments/Replies of the EC
(g) Replies of the EC to the second set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.787 The EC replied to the second set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement as follows.
4.788 The Panel asked the EC to confirm that all the information submitted by the exporters related
to first-quality, unpolished tiles.
4.789 To this question, the EC provided the following reply.
4.790 The EC can confirm that all the sales reported in the exporters’ responses related to first-
quality, unpolished tiles, with the exception of some of the domestic sales made by Caesar, which
related to polished tiles.
4.791 On the other hand, the EC is not in a position to confirm whether the petitioners’ information
and import statistics relied upon by the DCD related also to unpolished, first quality tiles. As already
explained, of the eight invoices submitted by the petitioner, four correspond to sales of polished tiles,
and another to a sale of tiles of 12.5 cm x 25 cm. It is still unclear to the EC whether those five
invoices were included by the DCD in the dumping calculation.
4.792 If so, the Panel asked the EC to explain what other physical differences affecting price
comparability the EC believed existed for which adjustments should have been made.
4.793 To this question, the EC provided the following reply.
4.794 The following was a non-exhaustive list of other factors affecting price comparability (the EC
stated that all the prices mentioned below were for models of 30 x 30 cm of first quality shown in
Casalgrande’s Price List for October 1998 attached to Casalgrande’s questionnaire response).
4.795 Colour: tiles of darker colours such as black, green, blue and red are more expensive to
produce than those of lighter colours and are sold at higher prices. By way of example, according to
Casalgrande’s Price List for October 1998, the price for the model UNICOLOR BIANCO A was
33.000 Lit/m2, whereas the list price of the model UNICOLOR BLU, which is identical in all respects
to the BIANCO A except the colour, was 47.000 Lit/m2 (i.e. 42 per cent more expensive).
4.796 Thickness: thicker tiles require more materials and manufacturing work and are more
expensive. Thus, for instance, Casalgrande’s list price for the model SAHARA of 9 mm (of the
series GRANITO I) was 33.000 Lit/m2, while the list price for the SAHARA of 11/12 mm was
46.000 Lit/m2 (i.e. a 39 per cent difference).
4.797 Raw material and production process: some models undergo further manufacturing
processes, often involving the addition of special raw materials (e.g. special salts), in order to acquire
an appearance resembling that of certain types of stone, such as granite or marble (e.g. the series
GRANITO I, GRANITO II, MARMORIZZATO, ARDESIA, VENATI or TIBURTINO in
Casalgrande’s catalogue). These models are generally more expensive than the basic ones. Thus, by
way of example, the list price of the marble-looking model ARDESIA BIANCO is 42.000 Lit/m2 (27
per cent more than the price of the basic m odel UNICOLOR BIANCO A). However, a basic model
of an expensive colour (e.g. UNICOLOR BLU) can be more expensive than a non-expensive model
of one of the special series (e.g. the model SAHARA, of the series GRANITO I).
4.798 Surface: many models are available in versions with special surfaces (e.g. anti-slip)
presenting small reliefs. In Casalgrande’s catalogue these surfaces are designated with names such as
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 109
SECURE, ROCCIA, CARBO, PAVE or PROFIL. Thos e versions are more expensive. Thus, for
example, the price list of Casalgrande’s model SAHARA ROCCIA is 35.000 Lit/m2, i.e. 6 per cent
more expensive than the standard version of SAHARA.
4.799 If the adjustments for physical differences are only granted upon good cause shown, the Panel
asked the parties whether the calculation of the dumping margin by model should not be subject to
the same requirement.
4.800 To this question, the EC provided the following reply.
4.801 The application of Article 2.4 is subject to the same requirements regarding the burden of
proof, regardless of the method followed by the investigating authority to make “due allowance”.
4.802 The evidence before the DCD demonstrated beyond doubt that the differences in physical
characteristics between models (other than in si ze) had an impact on their price and, therefore,
affected price comparability.
4.803 The DCD has never disputed this. Thus, in the Preliminary Dumping Determination, the
DCD noted that:
4.804 Similarly, in the Final Dumping Determination stressed that:
ventas) se ha observado una gran disparidad del producto de iguales medidas y
precios de venta inferiores en las medidas de mayor tamaño en relación a las de
cm x 40 cm presenta precios de venta inferiores a los precios de venta del
“porcellanato” de 20 cm x 20 cm, o al de 30 cm x 30 cm., como también precios de
venta de la medida 30 cm x 30 cm inferiores a los de la medida 20 cm x 20 cm.
4.805 Before this Panel, Argentina has not argued that the physical differences between models
(other than in size) do not affect price comparability, but rather that there are so many differences that
to take all of them into account would have complicated “enormously” the task of the DCD.
4.806 Thus, in the EC’s view, the issue before the Panel is not a factual one (i.e. whether the
differences between the models affect price comparability), but rather one of legal interpretation,
namely whether, as alleged by Argentina, the “d eference” to which the investigating authoirty is
entitled under Article 17.6(ii) means that the investigating authority can, for reasons of administrative
convenience, limit itself to make “due allowance” for just one of the differences affecting price
comparability.
4.807 Furthermore, the EC would recall that the last sentence of Article 2.4 provides that:
The authorities 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.
4.808 In its second written submission, Argentina suggested that the DCD could not make a model-
to-model comparison because the exporters failed to provide necessary information. However, this
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Page 110 Arguments/Replies of the EC
was mere assertion. Three of the exporters sold the exported models under the same name and
product code in both markets. Thus, no additional information was required in order to make a
model-to-model comparison. The other exporter, Bismantova, used different names in each market.
Nevertheless, it submitted a tabla de comparación in order to allow the DCD to make a model-to-
model comparison.
4.809 At any rate, the exporters were never informed during the investigation of the alleged
deficiencies. Nor are those deficiencies mentioned anywhere in the Final Dumping Determination.
4.810 If this was so, the Panel asked the parties whether the calculation of the dumping margin by
model would be necessary when the same models are sold in both markets in the same proportions.
4.811 To this question, the EC provided the following reply.
4.812 If the normal value is calculated by compar ing the weighted average normal value to the
weighted average export price (see Article 2.4.2 of the AD Agreement), and if the same models
happened to be sold in both markets in precisely the same proportions, there would be no need to
make due allowance for differences in physical characteristics, either by making a model-to-model
comparison, or by way of adjustments. However, in practice, the model-mix of the export sales is
very unlikely to coincide exactly with that of the domestic sales in any given investigation.
4.813 In the case at hand, the information contained in Annexes VII and VIII evidences that the
model mix of the export sales was not the same as that of the domestic sales, which rendered it
necessary to make due allowance for the differences in physical characteristics between models.
4.814 The Panel recalled that in a reply to question posed by the Panel following the first meeting,
Argentina stated that: “Upon opening the investigation, the DCD decided on the segmentation of the
product according to the universal criterion that offered the greatest homogeneity, i.e. porcellanato in
its different sizes, establishing three categories: 20 x 20, 30 x 30 and 40 x 40”. The Panel asked
Argentina to direct the Panel to the evidence on the record showing that the DCD had made this
determination from the moment of initiating the investigation. In addition, the Panel recalled that, in
its reply to the same question, the EC argued that the exporters requested that a model-to-model
comparison be made. The Panel also asked the EC to direct the Panel to the evidence on the record
that demonstrated that the exporters explicitly requested such a comparison.
4.815 To this question, the EC provided the following reply.
4.816 The EC refers the Panel to the relevant sections of Casalgrande’s and Bismantova’s
questionnaire responses provided as Annexes EC -15 and EC-16, respectively, which describe the
approach followed by those exporters in respondi ng to Annexes VII and VIII. A model-to-model
comparison is inherent in that approach.
4.817 Moreover, as explained above, Bismantova submitted a tabla de comparación between the
exported and domestic models, with the express indicat ion that it was provided in order to “facilitate
the comparison of identical types with different names” (the original Spanish reads as follows:
4.818 Casalgrande sold the exported models under the same name and product code in both
markets. Thus, the submission of a tabla de comparación was not required. Nevertheless,
Casalgrande provided a table comparing the weighted average export price to the weighted average
domestic price for the same model. That table evidences clearly that the exporters envisaged that the
DCD would make a model-to-model comparison.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 111
4.819 The exporters reiterated their request for a model-to-model comparison at the meeting of
11 May 1999. The case-handlers seemed to agree. Indeed, as recorded in Exhibit EC-10, they
requested that Bismantova waive the confidentiality of the tabla de comparación between domestic
and export models included in Bismantova’s questionnaire response. On 4 June 1999 Bismantova
agreed to that request. Ecolatina’s cover letter recalled expressly that “by using that table [the DCD]
can make the necessary comparisons”.
4.820 Finally, the EC would recall that in its second written submission Argentina admits that the
questionnaire responses showed the “interest” (“ interés”) of the exporters in a model-to-model
comparison.
4.821 The Panel recalled that, according to Exhibit EC-10 (at page 2), the local counsel to the
exporters in Argentina suggested to the counsel to the exporters in Brussels to provide the DCD
invoices with prices “closer to the weight average of the segment”. The Panel asked the parties
whether this statement suggested that the representatives of the exporters were aware of the fact that
the DCD would calculate the normal value for any size category on the basis of all of the home prices
available for that size category, irrespective of the model to which those prices referred to. The Panel
further asked the parties to comment on the implicati ons of this statement, if any. Did this suggest
that the exporters were aware of the fact that th eir information was going to be compared per size
rather than per model?
4.822 To this question, the EC provided the following reply.
4.823 The EC reiterates that the DCD never informed the exporters of the alleged decision to
compare the normal value and export price information per size rather than per model. Exhibit EC-10
does not prove the contrary.
4.824 Rather, the opposite is true. Exhibit EC-10 confirms that, after the meeting of 11 May 1999,
the exporters continued to expect that the DCD would make a model-to-model comparison. Exhibit
EC-10 mentions that Bismantova should waive the confidentiality of the conversion table ( tabla de
comparación) between domestic and export models and that the other exporters should submit similar
tables (Mr. Cyrulnik, the author of the document provided as Exhibit EC-10, made an error when he
suggested that the other three exporters should submit also conversion tables between domestic and
export models. As already explained, the other exporters sold all the models under the same name
and code in both markets. Thus, unlike in the case of Bismantova, a conversion table was not
necessary in order to allow the DCD to make a model-to-model comparison). Yet the submission of
those tables would have been totally pointless if the exporters had acquiesced to the DCD’s alleged
decision not to make a model-to-model comparison.
4.825 The passage quoted by the Panel contains a personal suggestion of Mr. Cyrulnik, the author of
the document, and not something that was discussed, let alone agreed, with the case-handlers.
Mr. Cyrulnik’s suggestion is not mentioned in Mr. Di Gianni’s report to the exporters of 19 May
1999 and was not followed by the exporters.
4.826 The meaning of Mr. Cyrulnik’s suggestion is, in any event, rather obscure. To begin with, the
quoted passage refers to the selection of “non-conf idential invoices”. Yet the preceding paragraph
correctly states that the supporting invoices had to be provided on a confidential basis only.
4.827 Also, it is far from clear to which “segments” alludes Mr. Cyrulnik. The EC recalls that each
model is sold in different sizes. In their responses, the exporters reported separately the sales of each
size category within a given model. Casalgrande went even further by calculating itself the weighted
average domestic price and the weighted average export price for each size category within each
model. Thus, Mr. Cyrulnik could have been referring to the weighted average for the size “segment”
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 112 Arguments/Replies of the EC
within each model rather than to the weighted aver age for all the tiles of the same size, regardless of
the model, as implied in the Panel’s question.
4.828 A misunderstanding on the part of Mr. Cyrulnik cannot be ruled out either. Ecolatina was
little else than a mail box for Van Bael & Bellis. Mr. Cyrulnik was not involved in the preparation of
the responses, which was carried out exclusively by Van Bael & Bellis. Therefore, he had only a
superficial knowledge of the information contained in the responses and of the issues raised by the
investigation.
4.829 At any rate, even if the exporters had become aware at a certain point in time of the DCD’s
alleged decision to make the comparison “per size”, it would not follow from this that they acquiesced
to such decision, nor that such decision was consistent with the AD Agreement.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 113
2. Argentina
(a) Arguments of Argentina in its first written submission relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.830 In its first written submission, Argentina made the following arguments relating to the EC’s
claim under Article 2.4 of the AD Agreement.
4.831 Argentina first presented a number of facts relevant to its legal arguments.
4.832 To begin with, when considering the differences which affect price comparability, account
was taken, essentially, of the dimensions of the product in question.
4.833 The implementing authority had to establish some kind of criterion for facilitating a fair
comparison of different products which, because they were designer products, were very difficult to
compare. The task was made even more difficult by the fact that there were 78 manufacturers of
porcellanato, each of which produced dozens of different varieties which, in their turn, could be
discontinued at any time or replaced by similar articles with a different product code or trade name.
This applies to each supplier. Since these circumstances made the implementing authority’s job
infinitely more difficult, it decided to establish as a basis for comparison the only variable that applied
to all of the articles from all of the suppliers and that was not affected by market considerations from
one supplier to the other as could be the case with the other variables, such as colour or design. Since
the sizes 20 cm x 20 cm, 30 cm x 30 cm and 40 cm x 40 cm were the most representative, it was these
sizes that were considered according to the volume exported.
4.834 Once the investigation had been initiated, all of the parties concerned were given ample
opportunity to supply as much information as possible so that the implementing authority could rely
on homogeneous data in order to make a fair comparison.
4.835 Moreover, the exporting firms did not submit, during the procedure, any evidence to
invalidate the product breakdown applied at the opening of the investigation and maintained in the
final determination.
4.836 It should be stressed that the DCD always tries to put some order into its investigations by
seeking a criterion for ensuring the homogeneity of the products under analysis. In this case,
Argentina stresses that there was no objection by the parties to the use of product size as a criterion.
Thus, Argentina considers that the implementing authority acted properly and objectively on the basis
of a criterion agreed upon by the parties.
4.837 Argentina presented next its legal arguments concerning the EC’s claim under Article 2.4.
4.838 The EC has argued that there has been an infringement of Article 2.4, which states that:
A fair comparison shall be made between the export price and the normal value … .
Due allowance shall be made in each case, on its merits, for differences which affect
price comparability, including differences in conditions and terms of sale … physical
characteristics … .
(i) The standard of review applicable to the case
4.839 The obligation to make a “fair comparison”, an obligation qualified by the words “on its
merits”, is inspired by the standard of review applied in the framework of the AD Agreement as
defined in Article 17.6 thereof.
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Page 114 Arguments/Replies of Argentina
4.840 This peculiarity of the AD Agreement, the only agreement to contain a specific standard for
the review of provisional or definitive anti-dumping measures or price undertakings when they are
questioned under the DSU, has been recognized in a number of precedents, such as United States –
Underwear: “We note that the ATC does not establish a standard of review for panels, contrary, for
example, to the WTO Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994, where Article 17.6 defines the standard of review that panels have to apply
when reviewing cases arising under that Agreement. We further note that the DSU does not contain a
provision mandating a specific standard of review” (Panel Report, United States – Restrictions on
Imports of Cotton and Man-Made Fibre Underwear, WT/DS24/R, adopted 25 February 1997, at para.
7.8).
4.841 This same point, that the only exception to the general standard of review set forth in
Article 11 of the DSU is the AD Agreement, was also made in EC – Hormones with reference to the
treatment that should be given to the facts (“Only Article 17.6(i) of the Anti-Dumping Agreement has
language on the standard of review to be employed by panels engaged in the ‘assessment of the facts
of the matter”. We find no indication in the SPS Agreement of an intent on the part of the Members
to adopt or incorporate into that Agreement the standards set out in Article 17.6(i) of the Anti-
Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement”.
Appellate Body Report, EC – Measures Concerning Meat and Meat Products, WT/DS26/AB/R,
adopted 13 February 1998, at page 49), and in a general sense both with respect to the facts and the
standards of the Agreement, in Argentina – Footwear ( “We have stated, on more than one occasion,
that, for all but one of the covered agreements, Article 11 of the DSU sets forth the appropriate
standard of review for panels. The only exception is the Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994, in which a specific provision, Article 17.6, sets
out a special standard of review for disputes ar ising under that Agreement”. Appellate Body Report,
Argentina – Safeguard Measures on Imports of Footwear , WT/DS121/AB/R, adopted
12 January 2000).
4.842 Ultimately, these precedents reflect the principle of “deference” towards the methodology
applied by the investigating authorities in anti-dumping cases in accordance with Article 17.6(i) and
17.6(ii) of the AD Agreement.
4.843 Indeed, the second sentence of Article 17.6(ii) states that “Where the Panel finds that a
relevant provision of the Agreement admits of more than one permissible interpretation, the Panel
shall find the authority’s measure to be in conformity with the Agreement if it rests upon one of those
permissible interpretations.” The wording of this provision suggests that it requires the principle of
deference to be subjected to a sort of double test before it can be invoked to defend an interpretation
of the Agreement, i.e.:
- There should be several permissible interpretations;
- The measure should rest upon one of those permissible interpretations.
4.844 This had been described by Jackson as follows in his book The Jurisprudence of GATT and
the WTO: “subsection (ii) seems to establish a two-step process … First, the Panel must consider
whether the provisions of the agreement in question admit of more than one interpretation. If not, the
Panel must vindicate the provision’s only permissible interpretation. If, on the other hand, the Panel
determines that the provisions indeed admit of more than one interpretation, the Panel shall proceed to
the second step of the analysis and consider whet her the national interpretation is within the set of
permissible interpretations. If so, the Panel must defer to the interpretation given to the provision by
the national government” (Jackson, page 148).
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 115
4.845 The concept of deference refers to the existence of various permissible interpretations that
may arise from the text of the Agreement, in this case Article 2.4 which calls for a “fair” comparison
taking account of the “merits” of each case, inter alia, physical characteristics.
4.846 The permissibility of the interpretation made by the Authority, in this case of the criterion
used as a basis for making a “fair” comparison, according to the standard of “deference” established
in Article 17.6, is precisely what enables the authority, as a matter of law, to rely, within the limits of
the Article, on its own discretion in choosing a method for making the comparison.
4.847 In other words if two different approaches or methodologies are reasonable, and derive from
an interpretation of the text, then both are permitted under the Agreement, even if they result in totally
different conclusions.
4.848 Generally speaking, and originally in connection with the weighing of the facts, this concept
of “deference” towards the national authority forms part of GATT/WTO jurisprudence and has been
addressed on a number of occasions in the past, in particular in the case United States–Salmon:
 … the mere fact that in a given case reasonable, unprejudiced minds could differ as
to the weight to be accorded to certain facts was not a sufficient ground to find that a
determination of material injury based on such facts was not based on positive
evidence … The question of whether a determination of injury was based on positive
evidence therefore was distinct from the ques tion of the weight to be accorded to the
facts before the investigating authorities … (GATT Panel Report, United States –
Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon
from Norway, ADP/87, adopted 28 April 1994, at para. 494).
(ii) Deference to the investigating authority
4.849 The EC states that it recognizes the discretion of the investigating authorities or the margin
available to them in applying Article 2.4: “Admittedly, the terms ‘due allowance’ leave some
discretion to the investigating authorities … the DCD could have chosen to make ‘due allowance’ for
the differences at issue by using a different method from that suggested by the exporters …”. The
problem arises when the EC goes on to suggest an alternative method of adjustment – “by making
adjustment a posteriori to the normal value or the export price” – and argues that the fact that the
DCD did not apply the alternative method proposed by the EC in itself invalidates the DCD’s option
of making an adjustment on the basis of differences in size.
4.850 This begs the question of why an a posteriori adjustment of the normal value would be a valid
way of complying with the obligation of making a “fair” comparison.
4.851 As indicated, the authority developed the idea of “homogenization” which ultimately amounts
to a standardization based on certain parameters which by their nature reflect a certain universality
within the product investigated.
4.852 Why, then, should one consider that whereas an adjustment of the kind proposed by the EC
would be consistent with Article 2.4, the fact that the authority should base its comparison on a factor
such as “physical characteristics” invalidates the comparison?
4.853 What the DCD did, in keeping with Article 2.4, was to use the physical characteristics as a
basis and to make a fair comparison. This unquestionably resulted in an adjustment which ultimately
produced lower final margins of dumping than those relied upon to initiate the investigation.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 116 Arguments/Replies of Argentina
4.854 In the end, the authority chose to interpret the scope of the obligation contained in the
Agreement on the basis of a physical characteristic of the product, i.e. its size (20 x 20, 30 x 30 or
40 x 40), which was the most universal feature. This factor, applicable to the greatest quantity of
imports of the product investigated, would permit the authority, on the basis of the greatest quantity of
elements in common, to make the most comprehensive fair comparison “on the merits” of the case
(infinite number of models according to colour, design etc.).
4.855 The DCD made a fair comparison taking account of the diversity of the ceramic tiles
investigated and chose to use a factor which, in its view, established a “reasonable” basis for
comparison and met the Article 2.4 requirement. Thus the DCD made a “reasonable” analysis of the
facts, applying to them the obligations set forth in the Agreement, in accordance with the text thereof,
and without having to resort to procedures such as the a posteriori adjustment, which does not appear
in the text of Article 2.4. To follow the approach suggested by the EC would have meant sacrificing
some of the “deference” owed to the investig ating authority and specifically recognized in
Article 17.6 of the AD Agreement. This double standard involving acceptance of what can
reasonably be inferred from the facts available and the interpretation of the obligations arising from
the text of the Agreement has been recognized by GATT panels, in particular the United States –
Salmon Panel cited above.
4.856 In that case, the Panel first examined whet her the Agreement imposed an obligation on the
United States to use the methodology put forward by Norway: “The Panel noted … that … it had
specifically requested Norway to present arguments as to why … the text of Article 2.4 mandated the
use of acquisition prices paid by exporters … “ (GATT Panel Report, United States – Imposition of
Anti-Dumping Duties on Imports of Fres h and Chilled Atlantic Salmon from Norway , ADP/87,
adopted 28 April 1994, at para. 406, emphasis added by Argentina). Similarly: “the Panel … found
that … the United States was not under an obligation to first consider the use of export prices to third
countries as a basis for the establishment of normal values before resorting to the use of constructed
normal values” (GATT Panel Report, United States – Imposition of Anti-Dumping Duties on Imports
of Fresh and Chilled Atlantic Salmon from Norway , ADP/87, adopted 28 April 1994, at para. 393,
emphasis added by Argentina). This required an analysis of the text, which included ascertaining
whether it contained criteria which the Panel could review to determine whether the Department had
used the methodology correctly. Otherwise, the Panel review was limited to examining whether the
methodology used could “reasonably … be sufficient to serve its stated purpose” (GATT Panel
Report, United States – Imposition of Anti-Dumping Du ties on Imports of Fresh and Chilled Atlantic
Salmon from Norway , ADP/87, adopted 28 April 1994, at para. 414) or whether the Department of
Commerce had acted reasonably in the light of the information before it (GATT Panel Report, United
States – Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from
Norway, ADP/87, adopted 28 April 1994, at para. 442) Similarly, in the case at issue, the Panel
should assess whether the “homogenization” criterion selected by the implementing authority for the
purposes of making a fair comparison was, first of all, reasonable, and whether in addition, the
Argentine interpretation of the obligations arising from Article 2.4 was consistent with the
requirements of the Agreement, regardless of whether there existed another permissible interpretation.
4.857 In this case, the EC submits that its interpretation of the obligations of the Agreement should
be substituted for those of the national authoritie s in a specific context such as the AD Agreement,
Article 17.6 of which refers both to the assessment of the facts and to the scope of the interpretations
of the Agreement. Thus, even though an interpretation of the obligation different from that made by
Argentina may be permissible, provided the “fai r comparison” methodology used is in keeping with
Article 2.4 – and here the EC does not disagree, but maintains that the methodology should be
replaced by its own – the comparison made by Argentina must be considered consistent with that
Article.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 117
(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 2.4
of the AD Agreement
4.858 In its first oral statement, Argentina made the following arguments relating to the EC’s claim
under Article 2.4 of the AD Agreement.
4.859 Particularly relevant with respect to the analysis of compliance with the obligation set forth in
Article 2.4 of the AD Agreement is the standard of review contained in Article 17.6 thereof.
4.860 In its first written submission, Argentina discussed the various elements of that article as
regards both the interpretation of the scope of th e Agreement (Article 17.6(ii)) and the assessment of
the facts on the basis of the above provision (Article 17.6(i)).
4.861 The determination of whether the “fair comparison” made by the authority was consistent
with the AD Agreement should be based on the definition of the content or scope of the obligation,
without having to resort to Article 17.6(ii) (legal interpretations).
4.862 In paragraph 83 of its first written submission, the EC specifically stated that it recognized
that the Agreement left some discretion to the in vestigating authorities (“Admittedly, the terms ‘due
allowance’ leave some discretion to the investigating authorities”). This being the case, the discussion
concerns not so much the scope of the obligation laid down in the Agreement regarding the content of
the “due allowance” as the assessment of the facts (differences in the ceramic tiles) requiring an
adjustment in order to make a “fair comparison”, a process which should make it possible to evaluate
the facts in an “unbiased” and “objective” manner.
4.863 Having confirmed this, i.e. that the authority evaluated the facts in an “unbiased” and
“objective” manner in conformity with the principl e of deference contained in Article 17.6(i), the
Panel must respect the authority’s evaluation even though it could reach a different conclusion.
4.864 Can the fact that the authority opted for the common parameter which reflected the greatest
universality, i.e. the size, a physical characteristic, as a criterion on which to base the fair comparison,
be qualified as “biased” or “unobjective”? It would be difficult to find a more universal criterion on
which to base an adjustment than the physical characteristics of the product, i.e. the size of the tiles.
The authority’s final determination, following the market segmentation duly established by the
authority and accepted by the exporting firms, states that the volume of 30 cm x 30 cm tiles exported
to Argentina represented 70.04 per cent of the total, while 40 cm x 40 cm tiles represented 16.17 per
cent and 20 cm x 20 cm tiles 13.08 per cent. Argentina wonders whether the EC actually expected the
DCD to make the adjustment for the 0.71 per cent that was not included in any of these categories.
(i) Information requested
4.865 It is important, at this point, to refer to the information duly requested by the authority. It
must be borne in mind that Annex II of the questionnaire for producers/exporters is entitled
“Identification of the product at issue”. One of the questions in that Annex refers to “technical
specifications for each model/type/code of goods sold in the domestic market and those exported to
Argentina”.
4.866 The answer given to this question by some of the exporting firms was the following: “The
technical characteristics of the porcellanato are specified in detail in the catalogues annexed hereto.”
However, Annex II also asks for general catalogues and/or brochures and/or plans. In other words, it
seems clear that the submission of catalogues or brochures could not make up for the lack of
information referring to the technical specificatio ns for each model/type/code, no matter what the
producing/exporting firms may erroneously have understood.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 118 Arguments/Replies of Argentina
4.867 Moreover, the EC’s questions suggesting that the segmentation of the product by the DCD
represented a breach of Article 2.4 is incomprehensible. The only way in which the DCD could have
carried out an a posteriori adjustment once the investigation had been opened would have been on the
basis of new information submitted by the interested parties, more specifically the
producers/exporters.
4.868 However, even accepting the hypothesis that a posteriori adjustment was the way to make the
fair comparison (and the text of Article 2.4 does not suggest this), as stated above with respect to the
information from the producers/exporters relating to the technical specifications for the product under
investigation, the producers/exporters did not provide the documentation the DCD would have needed
to carry out a new analysis in this connection.
4.869 This attitude of the producers/exporters during the investigation is consistent with the fact that
at no time during the proceedings did these interested parties raise any objections to the segmentation
of the product and the adjustments made.
(ii) The authority’s decision
4.870 One wonders how the DCD could have obtained technical characteristics of the product under
investigation, without prejudice to the segmentation applied at the opening of the investigation, on the
basis of catalogues containing an infinite number of models, designs, uses, etc.: not only is this not
the DCD’s responsibility, but it would have been impossible to do.
4.871 Perhaps Annex IV (Information on the producer/exporter market) would have helped, since it
contains an item referring to “model/code/type”. However, the reply given by all of the
producers/exporters to this question was: “This type of information is not available by model, code or
type. The information provided refers to porcellanato in general”.
4.872 What other parameter could have provided a common standard on which to base the
adjustment? There are an infinite number of colours, for example. The same applies to designs, not
to mention the other characteristics listed in Article 2.4 of the Agreement. What other non-
confidential criterion supplied during the investigation could the authority rely on?
4.873 How could the EC require an undefined a posteriori adjustment without specifying the
parameters on which it should be based? Indeed, Argentina is certain that, as with Article 6.8, the EC
itself recognizes the difficulties involved in making an adjustment on the basis of information on
which the DCD could not rely. In other words, even if, for instance, the methodology used by the EC
(a code by which its sales in its domestic market would be made comparable to export sales) had been
adopted for the purpose, the exporters did not supply any quantification of the adjustments to be made
either to the normal value or to the export price. Consequently, making an adjustment was not
feasible.
4.874 This being so, the Panel should confirm that in this case, as in the case of US – Salmon from
Norway, the DCD “acted reasonably in the light of the information before it”.
4.875 In the end, the DCD was inhibited by the confidential and incomplete nature of the
information submitted. In the circumstances, what the DCD had to do was to reach a factual
determination in the light of the information available (non-confidential summaries), in which
connection Article 17.6(i) prescribes the standard of deference to the national authorities (“That
standard provides that panels shall ask only whether the authority’s factual determinations were
‘proper’ and whether an authority’s evaluation of those facts was ‘unbiased and objective’”. John
Jackson, The Jurisprudence of GATT & the WTO, at page 154).
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 119
4.876 It is clear from the above that the DCD did not have the possibility of carrying out a new
segmentation of the product under investigation and making the corresponding adjustments, since the
information needed to do so was not provided. The DCD unquestionably acted in good faith and on
good advice, using, in its determination of dumping, all of the information submitted. In the case of
the segmentation of the product and the corresponding adjustments, the producers/exporters, i.e. the
parties in possession of the information, did not provide any alternative to the DCD’s analysis, nor did
they object to that analysis.
4.877 If, as the EC claims, there was any other way of making the adjustment, the elements required
for doing so should have been included in the record of the case as non-confidential summaries.
Argentina is not aware of the existence of any ot her summaries in connection with this question of
“due allowance”. Consequently, there was no other information that could be taken into account.
4.878 Furthermore, if there had been any other info rmation submitted as confidential information
that would refute this and the EC wanted to prove its point, it should have removed the confidentiality
and contributed it to this Panel. Since no further non-confidential summaries were provided and the
confidentiality was not removed, it can only be inferr ed that there was insufficient information and
that the DCD’s conclusion was reasonable.
(c) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.879 Argentina replied to the first set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement as follows.
4.880 The Panel asked the parties to clarify whether the exporters that replied to the questionnaire
requested the DCD at some point to calculate the dumping margin on the basis of model-based
comparisons. If so, the Panel further asked, what specific model-matching methodology was
proposed? Could the parties provide the Panel with the relevant references either in the report or in
the administrative record? The Panel also asked the EC to comment on the relevance in this respect
of Exhibit EC-10.
4.881 To this question, Argentina provided the following reply.
4.882 Upon opening the investigation, the DCD decided on the segmentation of the product
according to the universal criterion that offered the greatest homogeneity, i.e. porcellanato in its
different sizes, establishing three categories: 20 x 20, 30 x 30 and 40 x 40. This segmentation not
only met with no objection at any time during the inve stigation, but in fact, as shown by point 2 of
Exhibit EC-10, it was suggested in the note sent by the representative of Assopiastrelle to its principal
on 12 May 1999: “… Regarding non-confidential invoices, I suggest to select the some invoices of
each segment (20 x 20, 30 x 30, etc.), with prices closer to the weight average of the segment.” The
first time the EC suggested that model-based comparisons could have been used was during the
formal consultations under the DSU.
4.883 With respect to model-based determinations , Argentina submits the following: although
certain submissions by some of the participating firms suggest that they were interested in
model-based comparisons for the goods previously segmented according to their physical dimensions
(30 x 30, 20 x 20 and 40 x 40), the documentation and information supplied for that purpose did not
enable the implementing authority to carry out th e required analysis with any accuracy. Moreover,
the implementing authority was not in a position to conduct a comprehensive analysis of all of the
information and documentation in the record of the proceedings since it did not have at its disposal all
of the documentation to back the assertions of the interested parties and to permit a correlation with
the information contained in the official registers.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 120 Arguments/Replies of Argentina
4.884 If the exporters did request the DCD to do its margin calculations on the basis of models, the
Panel asked the parties to clarify what was the DCD’s response to that request.
4.885 Argentina answered that its reply to this que stion was implicit in its reply to the previous
question.
4.886 The Panel recalled that, independently of whether the exporters asked for a model-based
comparison of normal value and export prices, the record suggested that prices of tiles vary
significantly, even within a single size category, on account of differences in processing
(polished/unpolished), quality, and colour (for instance, Bismantova’s price list submitted to the Panel
as Exhibit EC-5 C). The DCD itself recognized (in page 28 of the Final Dumping Determination) that
the exporters’ sales information revealed considerable price differences in products of equal size and
lower sales prices for the larger sizes than for the smaller sizes. On account of this situation, the Panel
asked the parties whether they were of the view that the requirement to adjust for physical differences
affecting price comparability could be met in th is investigation by comparing normal values and
export prices corresponding to the same size category.
4.887 Argentina replied to this question in the affirmative. In the circumstances of this case, the
only way in which a price comparison could be made was to take the size as a basis for comparison.
4.888 The Panel asked Argentina whether it was of the view that the infinite number of physical
differences made adjustment beyond size impracticable, and that Article 2.4 would recognize an
exception in this respect. Additionally, was Argentina’s view that the exporters failed to support such
an adjustment by not providing sufficient data? The Panel further asked Argentina, if the data were
considered inadequate, to what extent was such inadequacy based on the confidential nature of the
information supplied, and were the exporters informed thereof?
4.889 Argentina replied that, while the physical differences made it almost impossible to carry out
an adjustment, this is not an exception to Article 2.4, but a reasonable application in a specific case of
the obligation contained therein, particularly given the irrelevance of the information supplied to that
end by the exporters. However, the fact that the exporters did not provide sufficient information also
contributed to the impossibility of making other adjustments for physical characteristics. The
inadequacy of the information was not due to its confidentiality, but to its insufficiency.
4.890 The Panel recalled Argentina’s statement to the effect that the exporters did not object to the
DCD’s adjusting only for size, and not for quality or other physical differences affecting price
comparability. The Panel asked the EC whether it agreed with this characterization of the evidence.
The Panel further asked the parties to comment on the relevance this fact could have under
Article 2.4. In other words, the Panel asked, if the investigating authorities have reason to believe that
certain physical differences, in fact, affect price comparability, and if the record contains evidence
sufficient to make such an adjustment, would the acceptance by the exporters of the adjustments
actually made relieve the authorities of the need to make further adjustments?
4.891 Argentina replied that the relevance of that fact under Article 2.4 is that the criterion used was
the only possible criterion for analysing the like product in all of its sizes, and this is why the
exporters accepted the DCD’s approach. Moreover, given the facts of this case, the question is a
hypothetical one, since the record did not contain evidence sufficient to make other adjustments that
would permit a fair comparison.
4.892 Argentina addressed the three questions by the Panel transcribed below at once.
4.893 The Panel recalled that the EC argued in its first written submission (at para. 77) that the
DCD did adjust normal value in order to reflec t the physical differences between polished and
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 121
unpolished tiles. However, the DCD’s report raised this issue exclusively in the context of margin
calculations for one of the exporters (Caesar), and, even in this case (see page 29 of the Final
Dumping Determination), it suggested that the in formation on home prices provided by the exporter
concerned was rejected by the DCD on the grounds that that home sales of polished tiles could not be
compared to export sales of unpolished tiles. The Panel asked the parties to clarify whether the
adjustment concerned was made.
4.894 The Panel recalled that, for initiation purposes, it appeared that the DCD calculated normal
value according to price quotations for unpolished, first quality tiles and that this estimate of normal
value, adjusted on account of the evidence prov ided during the course of the proceedings, was also
used for calculating normal value for the final dete rmination. The Panel asked Argentina to indicate
whether the pricing data used for calculating normal value for the final determination corresponds in
effect to unpolished, first quality tiles, or was this pricing data expanded at some point to cover all
kinds of tiles. In either case, the Panel further asked Argentina, could the Panel be provided with the
relevant references in either the report or in the administrative record?
4.895 The Panel also recalled that it appeared that th e DCD calculated the export price for the final
determination on the basis of unit prices, drawn from official import records. The Panel asked
Argentina whether this export price referred to unpolished, first quality tiles or rather to all kinds of
tiles. In either case, the Panel further asked Argentina, could the Panel be provided with the relevant
references in either the report or in the administrative record?
4.896 To these questions, Argentina provided the following reply.
4.897 To begin with, it should be pointed out that during the investigation at issue, the
implementing authority always considered, in its various determinations, the unpolished product.
4.898 Evidence of this can be found in the administra tive record in the various technical reports
referring to the determinations, which reveal that the implementing authority considered information
relating to the unpolished product and discarded any information relating to flags and paving tiles of
fine earthenware porcellanato, polished.
4.899 Regarding the recognition of the differences in value, in order to illustrate precisely how the
documentation supplied to the implementing authority was treated, specific reference is made to the
case of the Italian manufacturing export company Caesar. As stated in the report on the final
determination of the margin of dumping in the rele vant Annex, in that case information was provided
on the relevant adjustment to be made and, as stated, it was considered in the treatment of the
information.
4.900 At the same time, Argentina reiterates that the export price considered in the various
determinations corresponds to the unpolished product only, whether the analysis was conducted on
the basis of the information provided by official sources or on the basis of information provided by
the various firms involved in the proceedings.
4.901 Thus, the entire dumping analysis was conducted on the basis of the information in the record
of the proceedings in respect of unpolished porcellanato.
4.902 Finally, the fact that the product considered was the unpolished product is reflected in the
decision contained in the final resolution introducing the definitive anti-dumping measure.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 122 Arguments/Replies of Argentina
(d) Arguments of Argentina in its second written submission relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.903 In its second written submission, Argentina made the following arguments relating to the
EC’s claim under Article 2.4 of the AD Agreement.
4.904 Argentina submits that it acted in accordance with Article 2.4, since the DCD made a fair
comparison taking account of the physical characteristics (the diversity of the investigated tiles) in the
light of the “particular circumstances” (infinite number of models, colours, designs etc.) and opted for
a factor, size, which reflected the greatest universality and applied to the greatest quantity of imports
of the product under investigation.
4.905 Indeed, the size is the element which provided the best possibility of making the adjustments,
since it formed part of the segmentation decided upon at the opening of the investigation and, as
stated in paragraphs 103 et seq. of Argentina’s first written submission, it enabled the authority to
make the most comprehensive “fair comparison on the merits of the case” (infinite number of models,
colours, etc.).
4.906 At the same time this “fair comparison” on the basis of the size of the tiles is consistent with
the Article 2.4 obligation, which mentions “physical characteristics”. Or are the differences in size
perhaps not a physical characteristic of the tiles that should be taken into consideration?
4.907 Moreover, this reasoning on the part of the authority is consistent with the definition of the
like product that includes the different sizes of tiles, and at the same time makes it possible to carry
out the adjustment for 99.29 per cent of the imports. It is difficult to see how it would be possible to
carry out a more comprehensive “fair comparison” using a different criterion, one which covers the
remaining 0.71 per cent of the imports that do not fall within any of these three size categories.
4.908 It should be stressed that what the DCD in fact did was to make a fair comparison on the basis
of the physical characteristics of the models in keeping with the obligation to carry out a “fair
comparison” on the basis of the physical characteristics which the Appellate Body understands as an
essential obligation under Article 2.4 (“Article 2.4 sets forth a general obligation to make a ‘fair
comparison’ between export price and normal value. This is a general obligation that, in our view,
informs all of Article 2, but applies, in particular, to Article 2.4.2 which is specifically made ‘subject
to the provisions governing fair comparison in [Article 2.4]’. Moreover, Article 2.4 sets forth specific
obligations to make comparisons at the same level of trade and at, as nearly as possible, the same
time. Article 2.4 also requires that ‘due allowance’ be made for differences affecting ‘price
comparability’. We note, in particular, that Article 2.4 requires investigating authorities to make due
allowance for ‘differences in … physical characteristics’. Moreover, Article 2.4 contains the specific
obligation to make the comparisons at the same level of trade and at as nearly as possible the same
time. It adds that ‘due account shall be made … for differences which affect price comparability’.
We note, in particular, that Article 2.4 requires the investigating authority to make due allowance for
‘differences in … physical characteristics’ “. Appellate Body Report, European Communities – Anti-
Dumping Duties on Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted
12 March 2001, at para. 59, emphasis added by Argentina).
4.909 Additionally, Argentina would ask the panel, in considering this point, to consider the
standard of review applied within the framework of the AD Agreement, as stipulated in Article 17.6
thereof.
4.910 As the Agreement speaks of deference to the in vestigating authority, the evaluation of the
facts that the authority conducted cannot be considered inconsistent with the Agreement. The
conclusion reached in the light of the facts of the case (diversity of models, colours, etc.) that the size
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 123
of the tiles was the main physical characteristic that permitted the segmentation of the product for the
purposes of making a fair comparison cannot be qualified as “biased” or “unobjective”.
4.911 As stated in paragraphs 96 to 101 of Argentina’s first written submission, it is the standard of
deference established in Article 17.6(i) and 17.6(ii) of the AD Agreement that gives the authority the
discretion to decide on the method by which it makes the comparison. This has been recognized in a
number of past cases which upheld the “principle of deference” with respect to the methodology
applied by the investigating authorities in anti-dumping cases (“ … the Panel was not faced with a
choice among multiple ‘permissible’ interpretations which would have required it, under Article
17.6(ii), to give deference to the interpretation relied upon by the by the European Communities”,
Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India, adopted 12 March 2001, WT/DS/141/AB/R, at para. 65).
4.912 In this case, the authority’s criterion for making a “fair” comparison was “homogenization”
which, as mentioned, ultimately amounts to a standardization based on certain parameters which by
their nature reflect a certain universality within the product investigated.
4.913 As mentioned in paragraph 87 of Argentina’s first written submission, there were
78 manufacturers of porcellanato, each of which produced dozens of different varieties which, in their
turn, could be discontinued at any time or replaced by similar articles with a different product code or
trade name. The above applied to each supplier. This is why the implementing authority decided to
establish as a basis for comparison the most representative dimensions in terms of the volume
exported, since this was the only variable that applied to all of the articles from all of the suppliers and
was not affected by market considerations from one supplier to the other.
4.914 On this basis, the DCD “reasonably” analysed the facts, applying to them the obligations set
forth in the actual text of the agreement and without having to introduce criteria such as a posteriori
adjustment which are not specifically provided for in the text of Article 2.4.
(e) Arguments of Argentina in its second oral statement relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.915 In its second oral statement, Argentina made the following arguments relating to the EC’s
claim under Article 2.4 of the AD Agreement.
4.916 Argentina refutes the EC’s statement in paragraph 76 of its second written submission, since
Exhibit ARG-22 makes it clear that the supporting documentation provided by the exporters was not
sufficiently explanatory for the authority to be able to make a fair comparison owing to differences in
the physical characteristics of the different models.
4.917 Similarly, the differences revealed by Exhibit ARG-22 illustrate the diversity of models and
colours. Taking account of the information supplied during the proceedings with respect to the
physical characteristics, the investigating authority, in conformity with Article 17.6(i), concluded that
the size of the tiles was the prevailing factor – physical characteristic – for the purposes of making a
fair comparison. This cannot be qualified as a “biased” or “unobjective” evaluation in the light of the
facts of the case.
4.918 Hence Argentina has argued, and continues to argue, that the difference in size is a physical
characteristic which has real effects on prices.
4.919 This is consistent with the Appellate Body’s statement in European Communities – Anti-
Dumping Duties on Imports of Cotton-Type Bed Linen from India that Article 2.4 requires that “due
allowance” be made for differences affecting price comparability. The size of the tiles is precisely the
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 124 Arguments/Replies of Argentina
difference which has a great impact on price comparability. The implementing authority is required
to make due allowance for these differences, and the DCD did so in the present case on the basis of
the duly adopted segmentation.
4.920 The EC apparently does not accept that a comparison should have been made on the basis of
size, as if this were not a physical characteristic of the tiles.
4.921 As stated in one of Argentina’s reply to a question by the Panel following the first meeting,
and in confirmation of what has already been sai d, the implementing authority examined information
relating to the unpolished product and discarded any information relating to flags and paving tiles of
fine earthenware porcellanato, polished.
4.922 As regards Caesar, which only sold polished porcellanato on its domestic market, a fair
adjustment was duly made, as recorded in the report on the final determination of the margin of
dumping, and this was considered during the investigation.
4.923 Argentina does not understand why the EC asserts, in paragraph 79 of its second written
submission, that due allowance must be made for all the differences in physical characteristics when
the Article 2.4 obligation is subject to or limited by the particular circumstances surrounding the
subject of the investigation. Indeed, the relevant part of the article stipulates that “… Due allowance
shall be made in each case, on its merits, for differences which affect price comparability …” .
(f) Replies of Argentina to the second set of questions by the Panel relating to the EC’s claim
under Article 2.4 of the AD Agreement
4.924 Argentina replied to the second set of questions by the Panel relating to the EC’s claim under
Article 2.4 of the AD Agreement as follows:
4.925 The Panel asked Argentina whether it was of the view that were other physical differences
affecting price comparability apart from size. The Panel further asked Argentina what was the basis
for the DCD’s assumption that, by adjusting for size , it had adjusted for other physical differences
affecting price comparability.
4.926 Argentina replied that the DCD’s approach was to resort to the basic and elementary physical
characteristic of product size (20 x 20, 30 x 30, 40 x 40, etc.). This classification was not questioned
at any time during the proceedings and it enabled the implementing authority to make a proper and
irrefutable comparison.
4.927 There were probably other physical differences that affected price comparability, but the
implementing authority, on the basis of the evidence in the record of the proceedings, considered that
the physical characteristic that affected price comparability was the physical size or dimensions.
4.928 If the adjustments for physical differences are only granted upon good cause shown, the Panel
asked the parties whether the calculation of the dumping margin by model should not be subject to
the same requirement. If this was so, the Panel further asked the parties whether the calculation of the
dumping margin by model would be necessary when the same models are sold in both markets in the
same proportions.
4.929 Argentina replied that the investigation of adjustments, for example, for physical
characteristics, involves evaluating whether such ad justments, if they affect price comparability,
should be made. If so, they should only be made where the implementing authority has evidence.
With respect to the calculation by model, when the same models are sold in both markets in the same
proportions, no adjustments are necessary.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 125
4.930 The Panel recalled that in a reply to question posed by the Panel following the first meeting,
Argentina stated that “Upon opening the investigat ion, the DCD decided on the segmentation of the
product according to the universal criterion that offered the greatest homogeneity, i.e. porcellanato in
its different sizes, establishing three categories: 20 x 20, 30 x 30 and 40 x 40”. The Panel asked
Argentina to direct the Panel to the evidence on the record showing that the DCD had made this
determination from the moment of initiating the investigation. In addition, the Panel recalled that, in
its reply to the same question, the EC argued that the exporters requested that a model-to-model
comparison be made. The Panel also asked the EC to direct the Panel to the evidence on the record
that demonstrated that the exporters explicitly requested such a comparison.
4.931 Argentina replied that the classification applied by the DCD on the basis of the mentioned
criterion was defended during the various stages of the investigation and is based on a technical report
on the feasibility of initiating an investigation which was provided to the Panel as Exhibit ARG-25.
Moreover, the report in Exhibit EC-10 by the representative of the Italian exporting firms in
Argentina recognizes this segmentation:
Regarding non-confidential invoices, I suggest to select some invoices of each
segment (20 x 20, 30 x 30, etc.) with prices closer to the weight average of the
segment.
4.932 The Panel recalled that, according to Exhibit EC-10 (at page 2), the local counsel to the
exporters in Argentina suggested to the counsel to the exporters in Brussels to provide the DCD
invoices with prices “closer to the weight average of the segment”. The Panel asked the parties
whether this statement suggested that the representatives of the exporters were aware of the fact that
the DCD would calculate the normal value for any size category on the basis of all of the home prices
available for that size category, irrespective of the model to which those prices referred to. The Panel
further asked the parties to comment on the implicati ons of this statement, if any. Did this suggest
that the exporters were aware of the fact that th eir information was going to be compared per size
rather than per model?
4.933 To this question, Argentina provided the following reply.
4.934 The meeting held by the DCD technical staff was not a formal meeting, and the report by the
legal representatives of the Italian exporting firms in Argentina falls outside this technical sphere.
4.935 Argentina notes, however, that the Argentine authority does not know what is behind the
thinking of the exporting firms. Argentina reite rates that any comparison made must be based on
technical criteria, supported by documentation which reflects the arguments made during the
proceedings.
4.936 During the investigation, the authority communicated its conclusions through a series of
technical reports reflecting the technical criteria used. Thus, the comparison and classification criteria
were duly examined by the authority, and the part ies involved had the opportunity to familiarize
themselves with them and contribute evidence in support of their respective positions. In other words,
the classification used throughout the investigation did not give rise to any comments, and as the
investigation proceeded, the classification was effectively endorsed.
4.937 As stated in the previous reply, it has been clearly shown that the exporters were informed
that the criterion that the implementing authority would continue to use for the purposes of calculating
the margin of dumping, based on the information supplied, would be the physical dimensions of the
product at issue.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 126 Arguments/Replies of Argentina
4.938 Finally, it would have been inconceivable for the DCD to have used another criterion,
considering that the exporters themselves, in their replies to the questionnaire (in the different
Annexes) stated that the information was not available according to code, model or type. What kind
of adjustment did the EC expect the DCD to make?
4.939 Argentina refers the Panel to Exhibit ARG-24 which contains the following documentation.
4.940 Casalgrande: File No. 061-010304/98 of 10 December 1998 – folio 876.
- Annex IV. Information on producer/exporter market. “Information not
available by model, code or type, but overall information is available
concerning gres porcellanato.”
- Annex V. Summary of producer/exporter sales. “Information not available
by model, code or type, but overall information is available concerning gres
porcellanato.”
- Annex VI. Summary of producer/exporter sales. “Information not available
by model, code or type, but overall information is available concerning gres
porcellanato.”
4.941 Caesar: File No. 061-010305/98 of 10 December 1998 – folio 879.
- Annex IV. Information on the producer/exporter market. “This type of
information is not available by model, code or type. The information
provided refers to porcellanato in general.”
- Annex V. Summary of producer/exporter sales. “This type of information is
not available by model, code or type. The information provided refers to
porcellanato in general.”
- Annex VI. Summary of producer/exporter sales. “This type of information
is not available by model, code or type. The information provided refers to
porcellanato in general.”
4.942 Marazzi: File No. 061-010306/98 of 10 December 1998 – folio 880.
- Annex IV. Information on the producer/exporter market. “This type of
information is not available by model, code or type. The information
provided refers to porcellanato in general.”
- Annex V. Summary of producer/exporter sales. “This type of information is
not available by model, code or type. The information provided refers to
porcellanato in general.”
- Annex VI. Summary of producer/exporter sales. “This type of information is
not available by model, code or type. The information provided refers to
porcellanato in general.”
4.943 Bismantova: File No. 061-010307/98 of 10 December 1998 – folio 881.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 127
- Annex IV. Information on the producer/exporter market. “This type of
information is not available by model, code or type. The information
provided refers to porcellanato in general.”
- Annex V. Summary of producer/exporter sales. “The description of the
model/code/type is provided in Sections B and C. The information provided
in this table corresponds to the total amounts of sales made.”
4.944 Casalgrande: File No. 061-010304/98 of 10 December 1998 – folio 876.
- Annex III. List of importers in Arge ntina and third countries of the goods
under investigation.
- Annex IV. Information on the producer/exporter market.
- Annex V. Summary of producer/exporter sales.
- Annex VI. Summary of producer/exporter sales.
- Annex VII. Actual exports to Argentina (1997 and 1998).
- Annex VIII. Sales in the Italian domestic market (1997 and 1998).
- Annex IX. Exports to third countries.
- Annex X. Cost structure of the goods under investigation in the Italian
domestic market in 1997 and 1998.
- Annex XI. Cost structure of the exported goods.
4.945 Caesar: File No. 061-010305/98 of 10 December 1998 – folio 879.
- Annex III. List of importers in Arge ntina and third countries of the goods
under investigation.
- Annex IV. Information on the producer/exporter market.
- Annex V. Summary of producer/exporter sales.
- Annex VI. Summary of producer/exporter sales.
- Annex VII. Actual exports to Argentina (1997 and 1998).
- Annex VIII. Sales in the Italian domestic market.
- Annex IX. Exports to third countries.
- Annex X. Cost structure of the goods under investigation in the Italian
domestic market.
- Annex XI. Cost structure of the exported goods.
4.946 Marazzi: File No. 061-010306/98 of 10 December 1998 – folio 880.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 128 Arguments/Replies of Argentina
- Annex III. List of importers in Arge ntina and third countries of the goods
under investigation.
- Annex IV. Information on the producer/exporter market.
- Annex V. Summary of producer/exporter sales.
- Annex VI. Summary of producer/exporter sales.
- Annex VII. Actual exports to Argentina (1997 and 1998).
- Annex VIII. Sales in the Italian domestic market.
- Annex IX. Exports to third countries.
- Annex X. Cost structure of the goods under investigation in the Italian
domestic market.
- Annex XI. Cost structure of the exported goods.
4.947 Bismantova: File No. 061-010307/98 of 10 December 1998 – folio 881.
- Annex III. List of importers in Argentina and third countries of the goods
under investigation.
- Annex IV. Information on the producer/exporter market.
- Annex V. Summary of producer/exporter sales.
- Annex VI. Summary of producer/exporter sales.
- Annex VII. Actual exports to Argentina (1997 and 1998).
- Annex VIII. Sales in the Italian domestic market.
- Annex IX. Exports to third countries.
- Annex X. Cost structure of the goods under investigation in the Italian
domestic market.
- Annex XI. Cost structure of the exported goods.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments of Japan Page 129
3. Third Parties: Japan
4.948 Japan did not address the EC’s claim under Article 2.4 of the AD Agreement either in its
written submission nor in its oral statement.
WT/DS189/R Claim under Article 2.4 of the AD Agreement
Page 130 Arguments of Turkey
4. Third Parties: Turkey
4.949 Turkey did not address the EC’s claim under Article 2.4 of the AD Agreement either in its
written submission nor in its oral statement.
Claim under Article 2.4 of the AD Agreement WT/DS189/R
Arguments of the United States Page 131
5. Third Parties: The United States
(a) Arguments of the United States in its written submission relating to the EC’s claim under
Article 2.4 of the AD Agreement
4.950 In its written submission, the United States made the following arguments relating to the EC’s
claim under Article 2.4 of the AD Agreement.
4.951 The EC submits that Argentina violated Article 2.4 of the AD Agreement by not making a fair
comparison between the export price and normal value because Argentina did not make “due
allowance” for certain differences in physical characteristics between the models of the subject
merchandise exported to Argentina and those sold in Italy. Argentina replies that it made a reasonable
adjustment for differences in physical characteristics which is entitled to deference under
Article 17.6(i).
4.952 Article 2.1 and 2.2 of the AD Agreement establis h that the essence of the determination of
dumping is a comparison of export sales with sales of the like product in the home market or third
country. Article 2.6, in turn, defines “like product” as “a product which is identical, i.e. alike in all
respects to the product under consideration” or, in the absence of such a product, one which “has
characteristics closely resembling those of the product under consideration.” Finally, Article 2.4 lists
differences in physical characteristics as differences for which adjustment may be warranted.
4.953 The United States submits that determining whether the obligation in Article 2.4 has been met
is very fact-sensitive. For example, in this case, the United States does not know which differences in
physical characteristics of ceramic floor tiles are sufficiently important that adjustments would need to
be made. Therefore, the United States cannot comment on whether Argentina made reasonable
adjustments. Instead, the United States urges the Panel, in reviewing such a fact-intensive issue, to
pay particular attention to the mandate of Article 17.6(i): if the establishment of the facts is proper,
and their evaluation unbiased and objective, the Panel should not overturn that evaluation even if the
Panel would have reached a different conclusion (see, Panel Report, Mexico – Anti-Dumping
Investigation of High Fructose Corn Syrup (HFCS) from the United States , WT/DS132/R, adopted
24 February 2000, at para 7.94).
4.954 The United States did not address in its oral statement the EC’s claim relating to Article 2.4 of
the AD Agreement.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 132 Arguments/Replies of the EC
D. CLAIM UNDER ARTICLE 6.9 OF THE AD AGREEMENT
1. The EC
(a) Arguments by the EC in its first written submission in support of its claim under Article 6.9
of the AD Agreement
4.955 In its first written submission, the EC made th e following arguments in support of its claim
under Article 6.9 of the AD Agreement.
4.956 According to the EC, the DCD did not inform the exporters of the “essential” facts
concerning the existence of dumping which would form the basis for the decision whether to apply
definitive measures. As a result, the exporters were prevented from defending adequately their
interests. By not disclosing those “essential facts” to the exporters before the imposition of the
definitive anti-dumping measures, the DCD violated Article 6.9 of the AD Agreement.
4.957 The EC presented first a number of facts relevant for its legal arguments.
4.958 By letter dated 28 August 1999, the DCD informed the exporters that the “ etapa probatoria”
of the investigation had been concluded and invited them to examine the public file and, should they
consider it necessary, to submit their final allegations (“alegato final”) no later than 10 September.
4.959 On 3 September 1999, representatives of the exporters inspected the public file. Unlike the
Final Injury Determination, the Final Dumping Determination was not available in the public file.
Nor did the public file contain any other document prepared by the DCD which identified the
“essential facts” that would form the basis of the Final Dumping Determination.
4.960 On 6 September 1999, the exporters addressed a letter to the DCD in which they requested the
DCD to disclose the essential facts under consideration which would form the basis for the DCD’s
final determination of dumping. The request invoked expressly Article 6.9 of the AD Agreement.
4.961 By letter dated 9 September 1999, the DCD informed the exporters that, as far as the dumping
determination was concerned, the Argentinean authorities considered that the disclosure requirements
imposed by Article 6.9 were fully complied with by granting to the interested parties access to the
public file.
4.962 Specifically, the DCD attempted to justify its refusal to disclose the “essential facts”
concerning dumping as follows:
COMERCIO EXTERIOR en lo referente at tratamiento de este aspecto del Acuerdo
Aduaneros y Comercio de 1994 en su artículo 6.9, recogido en la legislación
DESLEAL de la SUBSECRETARIA DE COMERCIO EXTERIOR ha comunicado
producidos a esa fecha y presentar en base a toda la información recabada en ese
momento y, si lo desean, su correspondiente alegato.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 133
4.963 The EC presented next its legal arguments relating to its claim under Article 2.4 of the AD
Agreement.
4.964 The EC recalled that Article 6.9 of the AD Agreement provides that:
The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests.
4.965 Article 6.9 imposes upon the investigating authorities a duty “to inform” the interested
parties. The ordinary meaning of that term (“to give knowledge of something”, “to tell”, “to acquaint
with”, Webster’s New World Dictionary, Third College Edition) demands a positive action from the
investigating authorities, which goes beyond merely granting access to the file.
4.966 The public file of an anti-dumping investigation consists essentially of questionnaire
responses and allegations submitted by the different interested parties, which are often contradictory.
Thus, the mere examination of the public file does not, as such, allow the interested parties to identify
the “essential facts” on the basis of which the authorities intend to impose definitive measures.
Indeed, it is precisely for that reason that Article 6.9 requires the investigating authorities to indicate
to the interested parties which, of all the facts contained in the file, are the “essential facts” that will
form the basis for their decision, so that the interested parties can defend their interests adequately.
4.967 If, as contended by the DCD, the disclosure requirements imposed by Article 6.9 could be
fulfilled simply by granting access to the file, that provision would become redundant, since the
requirement to provide access to the file is already stipulated in very comprehensive terms in
Article 6.4, which provides that
The authorities shall whenever practicable provide timely opportunities for all the
interested parties to see all information that is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti-dumping investigation, and to prepare presentations on the basis
of this information.
4.968 On Argentina’s interpretation, Article 6.9 would add nothing to the requirements already
imposed by Article 6.4. Argentina’s reading of Article 6.9, therefore, must be rejected in accordance
with the basic principle of interpretation that require s to give effective meaning to all the terms of a
treaty (“An interpreter is not free to adopt a read ing that would result in reducing whole clauses or
paragraphs of a treaty to redundancy or inutility”, Appellate Body Report, United States – Standards
for Reformulated and Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996. See also the
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R, adopted 1 November 1996, at page 12; and Appellate Body Report, US –
Restrictions on Imports of Cotton and Man Made Fibre Underwear , WT/DS24/AB/R, adopted on
25 February 1997, at page 16).
(b) Arguments in the EC’s first oral statement in support of its claim under Article 6.9 of the
AD Agreement
4.969 In its first oral statement, the EC made the following arguments in support of its claim under
Article 6.9 of the AD Agreement.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 134 Arguments/Replies of the EC
4.970 There is no disagreement between the parties with respect to the relevant facts. The only
issue before the Panel is one of legal interpretation, namely whether the investigating authorities can
fulfil the obligation imposed by Article 6.9 simply by giving access to the file to the interested parties.
4.971 This issue has been settled by the Panel on Guatemala – Cement II , which rejected in rather
categorical terms the position maintained by Argentina in this case (Panel Report, Guatemala –
Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted
17 November 2000, at para. 8.22). In its submission, Argentina seeks to distinguish the two cases by
arguing that the Guatemalan authorities offered to provide a copy of the public file, while the DCD
allowed the exporters access to the file. With respect, the EC fails to see the relevance of this
distinction.
4.972 Argentina also argues that, at any rate, the violation of Article 6.9 would be a “harmless
error”. As mentioned before, the EC considers that this is not a valid defence under the WTO
Agreement.
4.973 The EC is concerned by Argentina’s extraordinary assertion that a violation of Article 6.9 is
“by its own nature” a harmless error, because “it lacks the necessary importance to vary the
de Aplicación”. This suggests that, not only in this case but also as a matter of general practice, the
DCD regards the disclosure of essential facts as an empty formality and pays no attention to the
comments submitted by interested parties. The EC believes that, quite to the contrary, the disclosure
provided in Article 6.9 constitutes an essential procedural safeguard, the omission of which vitiates
necessarily the final determination.
(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.974 The EC replied to the first of questions by the Panel relating to the EC’s claim under Article
6.9 of the AD Agreement as follows.
4.975 The Panel asked the parties what was, in their view, the object and purpose of the requirement
of Article 6.9 AD Agreement to disclose “the essential facts under consideration”.
4.976 The EC replied that the essential purpose of Article 6.9 was to allow the parties to defend
adequately their interests.
4.977 If the purpose of Article 6.9 was to enable parties better to defend their interests, the Panel
asked the parties whether this interpretation suggested that a Party claiming a violation of Article 6.9
also should present information to the Panel on how its exporters were impeded in their defence.
4.978 The EC replied to this question in the negative. The wording of Article 6.9 was unqualified.
It required the investigating authority to make always disclosure of the “essential facts”. This
reflected the assumption that the omission of this essential procedural safeguard will necessarily
prejudice the rights of defence of interested parties.
4.979 According to the EC, the violation of the obligation imposed by Article 6.9, like the violation
of any other obligation imposed by the WTO Agreement, is presumed, in accordance with Article 2.3
of the DSU, to cause nullification or impairment. It is for Argentina to rebut that presumption.
4.980 The Panel recalled that, in paragraph 79 of its first written submission, Argentina
distinguished the DCD’s practice from that of the Guatemalan authority which the Panel in the
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 135
Guatemala – Cement (II) case found to be inconsistent with Article 6.9 AD Agreement. Argentina
asserted that “it should be stressed that although “ dar copia” (“providing a copy”) was not sufficient
to comply with the Article 6.9 obligations, the scope of the expression “ dar vista” (“give sight”) is
different, since contrary to the expression “dar copia”, it implies notifying the interested parties of the
record of the proceedings”. The Panel asked the parties to comment on the importance of this
difference, if any.
4.981 The EC replied that it failed to see the relevance of the distinction drawn by Argentina. If
anything, the attitude of the Guatemalan authorities seemed to be more advantageous to the exporters,
since by providing the exporters with copies of the file, instead of simply allowing them to inspect it
in situ, they gave the exporters the possibility to study the file more carefully
4.982 The Panel asked the parties what, if any, were the essential facts under consideration that the
exporters were not informed of.
4.983 The EC replied that, as a minimum, the DCD should have disclosed which “facts available”
would be relied upon for establishing the normal value and the export price.
4.984 The Panel asked the parties whether, in their view, the fact that the information from the
exporters was disregarded for the calculation of normal value and export price was an essential fact of
which the exporters should have been informed under Article 6.9 AD Agreement.
4.985 The EC replied that this question in the affirm ative and stated that this was without prejudice
to the specific requirements imposed by paragraph 6 of Annex II.
(d) Arguments in the EC’s second written submission in support of its claim under Article 6.9 of
the AD Agreement
4.986 In its second written submission, the EC made the following arguments in support of its claim
under Article 6.9 of the AD Agreement.
4.987 There is no disagreement between the parties with respect to the relevant facts underlying the
EC’s claim under Article 6.9. The only issue before the Panel is one of legal interpretation, namely
whether the investigating authorities can fulfil the obligation imposed by Article 6.9 simply by giving
access to the file to the interested parties.
4.988 This issue has been settled by the panel on Guatemala – Cement (II) , which rejected in
categorical terms the position maintained by Argentina in this case (see Panel Report, Guatemala –
Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted
17 November 2000, at para. 8.22). In its first written submission, Argentina seeks to distinguish the
two cases by arguing that the Guatemalan authorities offered to provide a copy of the public file,
while the DCD allowed the exporters access to the file. The EC fails to see the relevance of this
distinction.
4.989 The EC agrees with Argentina, and with the United States, that Article 6.9 does not prescribe
any particular method of disclosure. Thus, for instance, the investigating authority may choose to
make the disclosure at a “disclosure conference”, as suggested by Japan in its third party submission,
or in a written document sent to the parties (the usual practice in the EC). This does not mean,
however, that Article 6.9 leaves complete discretion to the investigating authority for choosing the
method of disclosure. For the reasons explained by the Panel in Guatemala – Cement (II) , merely
granting access to the file is per se an inapt method to achieve the result mandated by Article 6.9 and,
therefore, incompatible with that provision.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 136 Arguments/Replies of the EC
4.990 The textual analysis of Article 6.9 made by the United States is selective and flawed.
Contrary to the US assertion, Article 6.9 does not “d escribe the facts of which interested parties must
be informed as the ‘essential facts under consideration’”. The United States gloss over the terms
“which form the basis for the decision whether to apply definitive measures”. Those terms qualify the
phrase “essential facts under consideration” and are of crucial importance for the correct interpretation
of Article 6.9. They indicate clearly that the investigating authority is required to identify which facts
will be relied upon in the decision whether to impose measures.
4.991 The United States contends that the EC’s interpretation would prevent interested parties from
defending their interests, because they would not be informed of those facts that do not support the
determination that the authority intends to make. According to the United States, “if a party is not
informed of a fact under Article 6.9, it may never know that fact exists at all”. This is not correct.
The United States overlook that other provisions of Article 9 already ensure that the parties are
informed of all relevant facts. In particular, the United States disregard that Article 6.4 requires the
investigating authorities to give access to all “information that is relevant for the presentation of their
cases … and that is used by the authorities in an anti-anti-dumping investigation”.
4.992 As noted correctly by the panel in Guatemala – Cement (II) , the interpretation of Article 6.9
made by Argentina and the United States in this case would render redundant that provision (Panel
Report, Guatemala – Definitive Anti-Dumping Measur es on Grey Portland Cement from Mexico ,
WT/DS156/R, adopted 17 November 2000, at para. 8.230). The contorted arguments advanced by the
United States in order to distinguish its reading of Article 6.9 from the requirements imposed by
Article 6.4 are contrived and unconvincing. In light of those arguments, it is ironic that the United
States accuses the EC and Japan of engaging in a “tortured” interpretation of Article 6.9.
4.993 Furthermore, in order to give meaning to Article 6.9, the United States is forced to make an
unduly narrow interpretation of Article 6.4. According to the United States, Article 6.9 would address
the situation where an investigating authority may legitimately refuse access to the file on the grounds
that it would be “impracticable” to do so. However, Article 6.4 does not say that interested parties will
be given access to the file only “if practicable”, but rather that they will do so “whenever practicable”
(this difference comes even clearer in the French version, which reads “chaque fois que cela sera
réalisable”). The terms “whenever practicable” do not address the question of “whether” the
investigating authority must grant access to the file, but exclusively the question of “when” to do so.
Those terms reflect the assumption that it will always be “practicable” for the investigating authority
to grant “timely opportunities” for seeing the file. They do not carve out an exception to the
obligation imposed by Article 6.4, but rather reinforce such obligation. They make clear that,
although the investigating authority is not required to make the file permanently accessible to the
public, it must do so every time that it is practicable, rather than, for example, once at the end of the
investigation.
4.994 The United States themselves recognise that a Member claiming that access to the record is
not practicable “faces a heavy burden”. Furthermore, at the third party session, the representatives of
the United States admitted that the instances where a Member could refuse legitimately access to the
file would be “exceptional”. Thus, on the United States’ own interpretation, Article 6.9 would be no
more than a safeguard of last resort, which would become operational only in the exceptional situation
where the investigation authority is not required to give access to the file pursuant to Article 6.4.
4.995 However, the interpretation of treaty provision cannot start from the unsupported premise that
it is intended to apply only in exceptional circumstances. There is simply no indication in Article 6.9,
or elsewhere in the AD Agreement, or in its drafting history, that Article 6.9 was designed to address
only the very exceptional situation described by the United States (indeed, so exceptional that it is
likely to remain purely hypothetical), or that the obligation imposed by Article 6.9 is subsidiary in any
manner to that imposed by Article 6.4.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of the EC Page 137
4.996 Argentina also argues that, at any rate, the violation of Article 6.9 is “by nature” a “harmless
error”. As mentioned above, the EC considers that this is not a valid defence. In any event, the EC
believes that the disclosure provided for in Article 6.9 constitutes an essential procedural safeguard,
the omission of which, “by nature”, prejudices the rights of defence of interested parties and,
therefore, vitiates necessarily and irreparably the final determination.
4.997 In its second oral statement, the EC did not address its claim under Article 6.9 of the AD
Agreement.
4.998 The Panel did not ask the EC any questions following the second meeting relating to the EC’s
claim under Article 6.9 of the AD Agreement.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 138 Arguments/Replies of Argentina
2. Argentina
(a) Arguments in Argentina’s first written submission relating to the EC’s claim under Article 6.9
of the AD Agreement
4.999 In its first written submission, Argentina made the following arguments relating to the EC’s
claim under Article 6.9 of the AD Agreement.
4.1000 Argentina first presented a number of facts relevant for its legal arguments.
4.1001 In its first written submission, the EC states as its fourth claim that contrary to the
requirements set out in Article 6.9 of the AD Agreement, the DCD failed to inform exporters of the
“essential facts” concerning the existence of dumping which would form the basis for the decision
whether to apply the definitive measures.
4.1002 Article 6.9 of the AD Agreement stipulates that:
The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply the definitive measures. Such disclosure should take place in
sufficient time for the parties to defend their interests.
4.1003 By Notes DCD No. 273-000586/99, 273-000587/99, 273-000588/99, 273-000589/99, 273-
000590/99, 273-000591/99 and 273-000592/99 of 11 May 1999, the DCD informed the
representatives of Canteras Cerro, Casalgrande, Caesar, Bismantova, Marazzi and Assopiastrelle,
respectively, that “ … the judicial decision concerning the evidence duly provided by the firms
involved in this investigation has been taken, so that those that so wish may consult the corresponding
document and familiarize themselves with the decision contained therein …”.
4.1004 On 18 June 1999, the representative of Assopiastrelle confirmed that she had consulted file
No. 061-000794/98 consisting of 25 sections with 7,368 folios and taken full note of the proceedings.
4.1005 The EC’s first written submission cites a Note of 28 August 1999 in which the DCD informs
exporters that the evidence-gathering stage of the investigation has terminated and invites them to
consult the record and, where they deem necessary, submit their final pleadings before 10 September.
4.1006 On 3 September 1999, representatives of the exporters consulted the record, as recorded in
Note DCD No. 273-001040/99. According to the EC submission, the Final Dumping Determination
was not available in the record, nor did the record contain any other document prepared by the DCD
which identified the “essential facts” that would form the basis of the Final Dumping Determination.
4.1007 As stated in the EC submission, by letter dated 9 September 1999, the DCD informed the
exporters that, as far as the dumping determination was concerned, the Argentine authorities
considered that the disclosure requirements imposed by Article 6.9 were fully complied with by
granting to the interested parties access to the record.
4.1008 Indeed, in Note DCD No. 273-001040/99 of 9 September 1999 to Assopiastrelle, Bismantova,
Casalgrande, Caesar and Marazzi, the DCD pointed out that “… the usual procedure applied by the
Undersecretariat for Foreign Trade when addressing this aspect of Article 6.9 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994, incorporated
into Argentine legislation through Law No. 24.425, was respected in full by the implementing
authority when the DCD clearly notified all of the parties concerned in the procedure of the
termination of the evidence-gathering stage, inviting them to consult the full record of the proceedings
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 139
in order to acquaint themselves with all of the essential facts to date and to submit, on the basis of all
of the information gathered thus far, and providing they so wished, their final pleadings.”
4.1009 On 21 September 1999, the representative of Assopiastrelle confirmed that she had consulted
File No. 061-000794/98 consisting of 28 sections and taken full note of the proceedings.
4.1010 Argentina presented next its legal arguments relating to the EC’s claim under Article 6.9 of
the AD Agreement.
4.1011 Article 6.9 does not specify in what way the authorities shall inform all interested parties of
the essential facts under consideration which form the basis of the decision whether to apply definitive
measures. It stipulates that the authorities “… shall inform all interested parties of the essential facts”.
The obligation in the Article is to inform; the text does not specify how, but simply imposes a
minimum standard (to inform) and leaves it up to th e authority to choose the means. This is what
would be defined as an obligation of results, as opposed to an obligation of means.
4.1012 The EC submission cites (in a footnote) the recent Panel on Guatemala – Cement (II) , in
which the Panel concluded that Guatemala did not co mply with Article 6.9 by offering to provide
interested parties with copies of all information in the file.
4.1013 In that case, Guatemala argued that the Ministry had revealed the “essential facts” by placing
a copy of the file at the disposal of the interested parties. However, in the case of Argentina, the DCD
did not merely offer to provide the interested parties with a copy of all of the information contained in
the record, but expressly invited them to consult the full record of the proceedings.
4.1014 In this connection it should be stressed that although “ dar copia” (“providing a copy”) was
not sufficient to comply with the Article 6.9 obligations, the scope of the expression “ dar vista ”
(“give sight”) is different, since contrary to the expression “ dar copia ”, it implies notifying the
interested parties of the record of the proceedings.
4.1015 In this specific case, the entire record of the proceedings was being made available, which
implies that the essential facts on which the implementing authority would base its final decision in
the subsequent stage were also being made available.
4.1016 Indeed, the fact of having made available the record of the proceedings implies that the
requirements set forth in Article 6.9 of the AD Agreement were met. The parties, through this
procedural step, were informed of the record of the proceedings “in toto”. In other words, since no
single fact considered by the implementing authority remained unknown to the interested parties, their
rights were not impaired.
4.1017 Nor did the exporters at any time demonstrate that they had suffered injury as a result of this
interpretation. Thus, it is clear that the requirements of Article 6.9 of the AD Agreement were met by
the implementing authority, and that exporters had access to all of the information on the basis of
which the said authority reached its conclusions.
4.1018 In any case, even if one were to assume that the procedure followed by the implementing
authority was not in keeping with Article 6.9 of the AD Agreement, quod non, Argentina considers
that this would be a case of “harmless error”. In other words, an error which, by its nature, is not
sufficiently important to alter the implementing authority’s conclusions.
4.1019 Also important with respect to the content of the Article 6.9 obligation is the work carried out
by the Ad Hoc Group on Implementation of th e AD Agreement (see Documents G/ADP/W/401 and
G/ADP/W/400) created by the Committee on Anti-Dumping Practices to prepare recommendations on
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 140 Arguments/Replies of Argentina
issues on which the Agreement is more lax and on issues where agreement among Members seems
possible.
4.1020 At its meeting of 29 and 30 April 1997, the Ad Hoc Group on Implementation of the
Committee on Anti-Dumping Practices, analysing the question of the information making up the
essential facts under consideration before making a final determination, addressed the practical issue
of how such information should be provided, recognizing that the specific nature of the investigation
and decision-making processes in the systems of the different Members also implied differences as to
the way in which this obligation was met. On the one hand, it was suggested that the information
should be supplied at as early as possible a stage of the process; on the other hand, it was considered
important that the information should be supplied once all of the various stages of the investigation
process had been completed and the investigating authority was in a position to make a determination.
In fact, this is a provision of the Agreement which leaves WTO Members a certain amount of room
for interpretation of the obligation involved. So much so that the Ad Hoc Group tried to find a
solution that would conciliate the different positions within the WTO – all of them permissible under
the Agreement, owing in particular to Article 17.6. The fact that the Ad Hoc Group did not adopt a
recommendation implies that the Member countries still differ on the matter on how to notify the
essential facts. In other words, the text of Article 6.9 does not specify a means of fulfilling the
obligation.
4.1021 In short, Argentina considers that its interpretation of Article 6.9 did not cause any injury to
the exporters concerned. Moreover, the said exporters at no time demonstrated that they had suffered
any prejudice as a result of that interpretation. Thus, even if one were to accept that Argentina’s
application of Article 6.9 was erroneous, this would be, quod non, a harmless error.
(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 6.9
of the AD Agreement
4.1022 In its first oral statement, Argentina made the following arguments relating to the EC’s claim
under Article 6.9 of the AD Agreement.
4.1023 Argentina submits that the DCD acted in confor mity with Article 6.9 in that it informed the
exporters of the “essential facts” concerning the existence of dumping.
4.1024 While Article 6.9 lays down the obligation to inform the interested parties of the essential
facts, it does not specify the way in which this should be done. In other words, the implementing
authority has the discretion to choose the way in which it informs the parties.
4.1025 Thus, the text of the article simply lays down a minimum standard (to inform) and leaves it up
to the authority to choose the means. This is what would be defined as an obligation of results, as
opposed to an obligation of means, as stated in Argentina’s first written submission, a view which is
also shared by other WTO Members.
4.1026 Since the article in question, in laying down the obligation to inform, does not lay down a
method or means for doing so, Argentina considers that the DCD met that obligation when it duly
notified all the parties concerned in the procedure of the termination of the evidence – gathering stage,
inviting them to consult the full record of the pr oceedings in order to acquaint themselves with all of
the essential facts to date and to submit, on the basi s of all the information gathered thus far, their
final pleadings.
4.1027 As stated in Argentina’s first written submission, this is reflected in Notes DCD Nos. 273-
000586/99, 273-000587/99, 273-000588/99, 273-000589/99, 273-000590/99, 273-000591/99 and
273-000592/99 of 11 May 1999, and Note DCD No. 273-001040/99 of 9 September 1999.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 141
4.1028 No single fact considered by the implementing authority remained outside the knowledge of
the interested parties: they were invited to consult the record of the proceedings, and thus, the
requirements of Article 6.9 of the AD Agreement were met. In other words, the parties, through this
procedural step, were informed of what had taken place in the proceedings.
4.1029 Moreover, the implementing authority, in reaching its conclusion, analysed all of the elements
of the case, which implies that every action taken was important. Thus, by inviting the parties to
consult the full record, the implementing author ity complied with the obligation contained in
Article 6.9 of the AD Agreement, the purpose of which is to ensure that the parties are informed of the
essential facts so that they can defend their interests.
(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of
the Panel with the parties, relating to the EC’s claim under Article 6.9 of the AD Agreement
4.1030 In its oral statement at the third-party session of the first meeting of the Panel with the parties,
Argentina made the following arguments relating to the EC’s claim under Article 6.9 of the AD
Agreement
4.1031 Like the EC, Japan sees in Article 6.9 a requirement that it does not contain, ie. the obligation
to produce a special, separate publication containing the essential facts, or to conduct a so-called
“disclosure conference”.
4.1032 Moreover, Japan appears to meld the obligation in Article 6.8 and paragraph 6 of Annex II
with Article 6.9 when it states that “The DCD ne ver informed the exporters at any time during the
investigation that the information they had supplied on normal value and export prices had been
disregarded”. This statement appears to confuse the obligations set forth in Article 6.8 and paragraph
6 of Annex II with the provisions of Article 6.9 requi ring that the parties be informed of the essential
facts. If this interpretation were correct, Annex II, paragraph 6 would be meaningless. And neither
the text itself nor its context warrants such an interpretation.
4.1033 The DCD met its obligation under Article 6.9 by duly notifying the interested parties in
writing of the closure of the investigation and inviti ng them to inspect the file containing all of the
essential facts and to submit their pleadings. Argentina reiterates that there was a notification with all
of the legal consequences implied by something different from merely allowing the interested parties
to “inspect” the file in the sense suggested by Japan.
4.1034 Article 6.9 imposes a result, i.e. to enable the parties to defend their interests in the
knowledge of the essential facts. The same point is made in Turkey’s submission and in the United
States’ submission. This is exactly what Argentina did by duly notifying the parties.
(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.1035 Argentina replied to the first set of questions by the Panel relating to the EC’s claim under
Article 6.9 of the AD Agreement as follows.
4.1036 The Panel asked the parties what was, in their view, the object and purpose of the requirement
of Article 6.9 AD Agreement to disclose “the essential facts under consideration”.
4.1037 Argentina replied that the purpose of this provision is to enable the parties, in full knowledge
of the essential facts, to fully defend their in terests prior to the final determination by the
implementing authority.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 142 Arguments/Replies of Argentina
4.1038 If the purpose of Article 6.9 was to enable parties better to defend their interests, the Panel
asked the parties whether this interpretation suggested that a Party claiming a violation of Article 6.9
also should present information to the Panel on how its exporters were impeded in their defence.
4.1039 Argentina replied that its answer to the previous question did not imply that the parties must
prove that they were unable to defend their interests. This was not an obligation under Article 6.9.
The Article 6.9 obligation was to disclose the esse ntial facts. Thus, a party claiming violation of
Article 6.9 had to prove that this obligation of the AD Agreement was violated.
4.1040 The Panel recalled that, in paragraph 78 of its first written submission, Argentina
distinguished the DCD’s practice from that of the Guatemalan authority which the Panel in the
Guatemala – Cement (II) case found to be inconsistent with Article 6.9 AD Agreement. Argentina
asserted that “it should be stressed that although “dar copia” (“providing a copy”) was not sufficient
to comply with the Article 6.9 obligations, the scope of the expression “dar vista” (“give sight”) is
different, since contrary to the expression “dar copia” , it implies notifying the interested parties of
the record of the proceedings”. The Panel asked the parties to comment on the importance of this
difference, if any.
4.1041 Argentina replied that, as pointed out in paragraph 75 of its first written submission,
Article 6.9 contained an obligation of results, i.e. to inform the parties of the essential facts, and not an
obligation of means, i.e the means by which the parties are informed of the facts and hence duly
notified thereof.
4.1042 Similarly, paragraph 78 of Argentina’s first written submission should not be taken out of its
context: it forms part of the Argentine counter-argument developed in paragraphs 76 to 80 to the
EC’s argument concerning the Panel’s interpretation in the Guatemala – Cement (II) case.
4.1043 The Panel asked the parties what, if any, were the essential facts under consideration that the
exporters were not informed of.
4.1044 Argentina replied that the parties were informed of all of the essential facts.
4.1045 The Panel asked the parties whether, in their view, the fact that the information from the
exporters was disregarded for the calculation of normal value and export price was an essential fact of
which the exporters should have been informed under Article 6.9 AD Agreement.
4.1046 Argentina replied that it was of the view that all of the facts in the record were essential.
4.1047 The Panel recalled that, on several occasions in its first written submission, Argentina referred
to the concept of “harmless error”. The Panel asked Argentina to define this concept in international
law and explain what, in its view, the role of this concept was in WTO dispute settlement
proceedings.
4.1048 Argentina replied that a harmless error was an error which did not cause injury or adversely
affected the rights of one of the parties – in other words, it was irrelevant as regards the consequences
of the challenged act. The concept of harmless error has been accepted in a number of different WTO
cases.
4.1049 This was confirmed, for example, in Korea–Dairy Products in which the Appellate Body
maintained that " …the European Communities' request should have been more detailed. However,
Korea failed to demonstrate to us that the mere list ing of the Articles asserted to have been violated
has prejudiced its ability to defend itself in the course of the Panel proceedings. Korea did assert that
it had sustained prejudice, but offered no supporting particulars in its appellant's submission nor at
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 143
the oral hearing …" (emphasis added by Argentina). (Appellate Body Report, Korea – Definitive
Safeguard Measures on Imports of Certain Dairy Products , WT/SD98/AB/R, adopted
12 January 2000, at para. 131).
4.1050 Clearly, to arrive at these conclusions, the Appellate Body accepted the concept of "harmless
error". Otherwise, the Appellate Body's ruling would be without foundation.
4.1051 Thus, as part of the WTO's legal precedent with respect to disputes under the DSU, the
concept of harmless error is relevant to the legal settlement of a dispute.
(e) Arguments of Argentina in its second written submission relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.1052 In its second written submission, Argentina made the following arguments relating to the
EC’s claim under Article 6.9 of the AD Agreement.
4.1053 Argentina reaffirms that it complied with the obligation arising from the text of paragraph 6.9
of the AD Agreement, which stipulates that the authorities “… shall inform all the interested parties of
the essential facts”, without indicating the method by which the authorities must fulfil that obligation.
4.1054 Argentina submits that the implementing author ity informed the exporters of the “essential
facts” concerning the existence of dumping, which would form the basis for the decision to apply
definitive measures.
4.1055 In paragraph 68 of its first written submission, Argentina mentioned the notes sent to the
representatives of Cerro Negro, Casalgrande, Caesar, Bismantova, Marazzi and Assopiastrelle, in
which it stated that “… the judicial decision concerning the evidence duly provided by the firms
involved in this investigation has been taken, so that those that so wish may consult the corresponding
document and familiarize themselves with the decision contained therein …”.
4.1056 Argentina then went on, in paragraphs 69 and 71 of its first written submission, to state that
the representative of Assopiastrelle had confirmed that she had consulted the file, consisting of
25 sections with 7,368 folios, on 18 June 1999, and taken full note of the proceedings, and again on
3 September 1999, as recorded in Note DCD No. 273-001040/99.
4.1057 Similarly, paragraph 70 of the said submission cites a note of 28 August 1999 in which the
DCD informs exporters that the evidence-gathering stage of the investigation has terminated and
invites them to consult the record and, where they deem necessary, submit their final pleadings before
10 September.
4.1058 At the same time, paragraph 72 cites a letter from the EC stating that “… the DCD informed
the exporters that, as far as the dumping determination was concerned, the Argentine authorities
considered that the disclosure requirements imposed by Article 6.9 were fully complied with by
granting to the interested parties access to the record” (Note DCD No. 273-001040/99 of
9 September 1999 to Assopiastrelle, Bismantova, Casalgrande, Caesar and Marazzi).
4.1059 It is clear from the above notes that the exporters were given access to the entire record of the
proceedings, and hence, to the essential facts on which the implementing authority would base its
final decision, which Argentina considers to be all of the facts making up the record. It should be
stressed on the basis of the above that no single fact considered by the implementing authority
remained unknown to the interested parties, since the exporters were given access to all of the
information on the basis of which the authority reached its conclusions.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 144 Arguments/Replies of Argentina
4.1060 Similarly, the EC argues in paragraph 69 of its first oral statement that “Finally, Argentina
contends that the violation of Article 6.10 would be a “harmless” error since the EC has not
demonstrated that it caused a prejudice to the exporters concerned. For the reasons set out by the
Panel in Guatemala – Cement (II) , the EC considers that this is not a valid defence under the WTO
Agreement. In accordance with Article 3.8 of the DSU, all violations of the WTO Agreement are
presumed to cause nullification or impairment. It is for Argentina to rebut that presumption”
(emphasis added by the EC).
4.1061 Apart from its importance in international law and the WTO, the concept of “harmless error”
has clearly not been overlooked by the WTO in resolving specific issues, especially those relating to
concepts such as “nullification or impairment”.
4.1062 This is confirmed, for example, in th e report of the Appellate Body in Korea – Dairy
Products of 14 December 1999 in which the Appellate Body maintained that “ … the European
Communities’ request should have been more detailed. However, Korea failed to demonstrate to us
that the mere listing of the Articles asserted to have been violated has prejudiced its ability to defend
itself in the course of the Panel proceedings. Korea did assert that it had sustained prejudice, but
offered no supporting particulars in its appellant’s submission nor at the oral hearing … “ (see
Appellate Body, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products ,
WT/DS98/AB/R, adopted on 12 January 2000, at para. 131). Clearly, to arrive at these conclusions,
the Appellate Body accepted the concept of “harmless error” – i.e. an error which, by its nature,
cannot change the result. In other words, the fact that the EC’s request “should have been more
detailed” did not cause Korea “nullification or impairment”. This is precisely what makes this
particular situation harmless. Otherwise, the Appellate Body’s ruling would be without foundation.
4.1063 In this particular case, even if one assumed that the procedure followed by the implementing
authority contained an error, quod non, the EC did not suffer nullification or impairment of any kind
as a result.
4.1064 A harmless error is an error which does not cause injury or adversely affect the rights of one
of the parties – in other words, it is irrelevant as regards the consequences of the challenged act. In
this context, the concept of harmless error has implicitly been accepted in a number of WTO cases
(Appellate Body Report, Korea – Definitive Safeguard Measures on Imports of Certain Dairy
Products, WT/SD98/AB/R, adopted 12 January 2000, at para. 131).
4.1065 As a part of WTO’s case history relating to the dispute settlement procedure, the concept of
harmless error forms part of the Organization’s “acquis”, and is therefore of considerable importance
in connection with GATT/WTO disputes.
4.1066 The interpretation of the obligations contained in Article 6.9 must be based on an adjusted
definition of its content, i.e. the content of what Article 6.9 describes or specifies as an obligation of
results and not of means (a position shared by Argentina and other WTO Members).
4.1067 In other words, the definition of an obligation as being one of results is a definition which
may contemplate different means but which is only in fact met when the objective has been reached:
informing the parties of the essential facts.
4.1068 It should be noted that an interpretation whereby the Article 6.9 obligation is an obligation of
means, i.e. an obligation which prescribes one of the forms of disclosure presented by the EC or
Japan – a separate report in the case of the EC, or the so-called “disclosure conference” in the case of
Japan – could result in a situation where the parties are informed only partially of the facts, since
either the authority may be restricted as regards what is defined or considered, under the
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments/Replies of Argentina Page 145
methodology, as an essential fact, or a party may be deprived access to a particular fact that is
essential.
4.1069 At the same time, a restrictive interpretation would mean that the separate report, as proposed
by the EC, would ultimately only contain such essential elements as support the authority’s decision
whether to apply a measure. What would happen, in this case, with the essential facts that did not
support the decision to apply a measure and that, following the EC’s logic, should not form part of the
report on the essential facts supporting the determination? Should a fact lose its essential character
just because it does not support the decision to apply a measure? And do such facts therefore cease to
be part of the essential facts which must be disclosed? Other delegations have also argued that this is
not the case.
4.1070 The United States makes an interesting point in its oral submission as a third party on the
question of how to reconcile the object and purpose of Article 6.9, i.e. to permit parties to defend
their interests, with the result that would be obtained through a report containing only the essential
facts which supported a determination, when there could very well be cases in which certain facts
which support another conclusion were of particular importance to a party in defending its interests.
4.1071 Argentina’s approach as regards the particular case at issue was to consider that all of the
facts forming part of the record were essential for the purposes of the determination. For example,
would it have made any sense, following the EC’s logic, for Argentina to refer to the samples of
models which it submitted as Exhibit ARG-22, which certainly did not constitute any kind of basis for
making an adjustment by model? Indeed, this information did not permit the authority to make the
necessary adjustment, so that it would not have formed part of the essential facts that led to an
affirmative determination for which only an adjustment by size was made. As this information was
not relevant for the purposes of the adjustment by size, it would not have formed part of the essential
facts to be disclosed under Article 6.9. Nevertheless, this information is included in the record and
was relevant in a negative sense, since it was not relied upon for the purposes of the determination.
How, following the EC’s definition of the essential facts, should Argentina have treated this
information? Should it have included it in a separate report or not?
4.1072 Ultimately, by considering the entire record to be made up of the essential facts, the
implementing authority places the parties in a better position to defend their interests.
(f) Arguments of Argentina in its second oral statement relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.1073 In its second oral statement, Argentina made the following arguments relating to the EC’s
claim under Article 6.9 of the AD Agreement.
4.1074 Argentina reaffirms that it complied with the Ar ticle 6.9 obligation to inform the interested
parties of all of the essential facts.
4.1075 In its reply a question by the Panel following th e first meeting, the EC recognizes that the
Article 6.9 obligation is an obligation of results and not of means when it states that “… the essential
purpose of Article 6.9 is to allow the parties to defend adequately their interests”.
4.1076 Indeed, the text of this provision does not establish an obligation to inform by any particular
means: as revealed by the discussions of the Ad Hoc Group of the Anti-Dumping Committee on this
subject, the means are left to the discretion of Members.
4.1077 Similarly, Argentina does not agree with the EC’s reply to a question by the Panel following
the first meeting to the effect that Article 6.9 “… requires the investigating authority to make always
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 146 Arguments/Replies of Argentina
disclosure of the essential facts …” Argentina submits, in reply, that according to the text of
Article 6.9, “The authority shall … inform all interested parties of the essential facts under
consideration which form the basis for the decision whether to apply definitive measures …”.
4.1078 It is Argentina’s understanding, and the text of the provision does not contradict this, that the
essential facts are above all those which are included in the record of the investigation, since all of
these facts would be weighed by the authority in arriving at an affirmative or negative determination
of dumping.
4.1079 Argentina therefore submits that there was no violation of Article 6.9, and that hence, there is
no prima facie nullification or impairment under Article 3.8 of the DSU.
4.1080 In any case, Argentina considers that even if it is assumed that there was prima facie
nullification or impairment under Article 3.8 of the DSU, and Argentina does not accept that there
was in this case, several WTO precedents, in connection with the concept of “harmless error”, have
pointed to the importance of the existence of injury (see Appellate Body Report, Korea – Definitive
Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/ABR, adopted 12 January 2000,
at para. 162 and Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122, adopted 5 April 2000, at
paras. 95 and 96).
4.1081 In its reply to a question by the Panel following the first meeting, the EC states that the DCD
should have disclosed which facts available would be relied on for establishing the normal value and
the export price. In Argentina’s view, the implementing authority is under no obligation to anticipate
its decision, which is made once the evidence-gathering stage is concluded and the pleadings
submitted.
4.1082 The Panel did not ask Argentina any questions following the second meeting relating to the
EC’s claim under Article 6.9 of the AD Agreement.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of Japan Page 147
3. Third Parties: Japan
(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.9 of
the AD Agreement
4.1083 In its written submission, Japan made the following arguments relating to the EC’s claim
under Article 6.9 of the AD Agreement.
4.1084 The account in the EC first written submission indicates that DCD failed to conduct a
disclosure conference with exporters or their representatives, as required by Article 6.9 of the AD
Agreement. According to the EC, DCD invited the exporters to inspect the public file, which did not
include the final dumping determination or any other document prepared by DCD which identified the
“essential facts” that would form the basis of that determination. In response to a request by the
exporters for a disclosure conference, DCD took the position that the requirements of Article 6.9 are
fully fulfilled by allowing interested parties to inspect the public file.
4.1085 Every investigating authority is required under Article 6.4 of the AD Agreement to maintain a
file for each antidumping investigation of all information that is relevant and that the authority uses in
the investigation, and to provide timely opportunities for interested parties to have access to this
information. Japan fully supports the EC position that the provisions of Article 6.9 must be read as
imposing obligations that go beyond those in Article 6.4; otherwise Article 6.9 would be rendered
mere surplusage.
4.1086 The issue of what Article 6.9 requires has already been settled in the recently- adopted panel
report on Guatemala – Cement (II) . In that case, Guatemala simply offered to provide interested
parties with copies of the information in the file. As the panel noted, the public file typically contains
large amounts of information that will not be relied on; the key obligation in Article 6.9 is the
requirement that the antidumping authority disclose the essential facts that it will actually rely on, in
time for interested parties to defend their interests (Panel Report, Guatemala – Definitive Anti-
dumping Measures on Portl and Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at
paras. 8.229-8.230).
4.1087 The requirements of Article 6.9 are not satisfied by merely opening for inspection a file that
includes both facts that will be relied upon and facts that will not.
4.1088 If Argentina’s position were accepted, then an antidumping authority could simply provide a
voluminous file of relevant and irrelevant facts, refu se to identify which facts it will actually rely on,
and inform the interested parties of its reasoning as a surprise, only when it is too late to defend their
interests. The panel must reject this position.
4.1089 In addition, Japan we would like to point out the logical consequence of this violation. The
Argentine authority, by violating the requirements of the Article 6.9, nullifies the provisions which
require the Panel to determine whether the authorities’ establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective, pursuant to the Article 17.6 of the
AD Agreement, or to make an objective assessment of the matter pursuant to the Article 11 of the
DSU.
(b) Arguments of Japan in its oral statement relating to the EC’s claim under Article 6.9 of the
AD Agreement
4.1090 In its oral statement, Japan made the following arguments relating to the EC’s claim under
Article 6.9 of the AD Agreement.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 148 Arguments of Japan
4.1091 Article 6.9 of the AD Agreement requires national authorities to inform all interested parties
of the “essential facts” under consideration. Japan has already stated in its third party submission that
the provisions of Article 6.9 must be read as imposing obligations that go beyond those in Article 6.4
of the Agreement. Japan wishes to further respond to the arguments on Article 6.9 in Argentina’s first
written submission.
4.1092 Japan agrees with Argentina’s argument in paragraph 75 that the AD Agreement does not
impose a particular methodology by which national authorities should “inform” interested parties of
the key facts that will be relied upon in the decision whether to apply definitive measures. The
relevant question before the Panel in the present case is: have the interested parties actually been
informed of the “essential facts” under consideration, by the methodology chosen by Argentina? In
Japan’s view, the answer to this question would appear to be no.
4.1093 Argentina states in paragraph 77 that it did not even provide a copy (“ dar copia”) of the file,
as Guatemala did in Guatemala – Cement (II). Instead, DCD simply invited interested parties to
examine the contents of the file, by a mere viewing (“ tomar vista ”) of the entire file. Argentina
argues in paragraphs 77-80 that Article 6.9 is complied with if the entire administrative file is made
available for inspection, since the essential facts are by definition included in the entire file. Thus,
according to Argentina, no fact considered by the authorities was unknown to the interested parties,
including the essential facts.
4.1094 The Panel should reject this method as insufficient under Article 6.9. As the Guatemala –
Cement (II) panel found, the administrative file in an antidumping investigation usually contains large
amounts of information that will not be relied on. The key obligation in Article 6.9 is the requirement
that the antidumping authority disclose the essential facts that it will actually rely on, in time for
interested parties to defend their interests (Panel Report, Guatemala – Definitive Anti-dumping
Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at paras.
8.229-8.230).
4.1095 Argentina also argues in paragraph 81 that the exporters never indicated they had been injured
by Argentina’s interpretation of Article 6.9. If Argentina argues that the rights of a WTO Member
under the WTO Agreement are (or could be) diminished because of actions taken or not taken by
private parties during an antidumping investigation, this argument must be rejected. WTO Members
have rights under the WTO Agreement as a matter of international law (see Panel Report, Guatemala
– Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted
17 November 2000, at para. 8.24, rejecting Guatem ala’s arguments alleging acquiescence and
estoppel). In the past the United States argued that a government should be legally barred from
making a legal argument to a panel if (private) respondents had not previously made the same
argument to the investigating authority during the underlying antidumping investigation. That US
argument was squarely rejected both by panels (see GATT Panel Report, United States – Imposition
of Anti-Dumping Duties on Imports of Fres h and Chilled Atlantic Salmon from Norway , ADP/87,
adopted 28 April 1994, at paras. 347-351. See also GATT Panel Report, United States – Imposition of
Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway , SCM/153,
adopted 28 April 1994, at paras. 216-220), and in the Uruguay Round negotiations on antidumping.
4.1096 Even if Argentina’s argument is that the EC as a litigant has failed to identify during this
dispute any prejudice to EC exporters from denial of Article 6.9 rights, this argument must be
rejected. The right to information under Article 6.9 is absolute, not conditional. Requiring a showing
of damage to exporters would impose a new condition not provided for by the AD Agreement, in a
manner inconsistent with of Article 3.2. of DSU.
4.1097 Moreover, Argentina argues in paragraph 84 that because Article 6.9 is under consideration in
the Ad Hoc Group on Implementation of the Committee on Anti-Dumping Practices, Argentina has
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of Japan Page 149
acted in conformity with this provision by merely making the entire file available for inspection by
interested parties. However, the fact that a matter or an interpretation is under consideration by a
WTO body, or has been under consideration by a WTO body that was deadlocked, does not mean that
a panel cannot make a ruling on the matter or interpret the relevant provisions of the WTO Agreement
(see also Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile
and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, at para. 102).
4.1098 The US third party submission of March 23 makes certain statements regarding Article 6.9 of
the AD Agreement, on which Japan has the following comments. The United States argues in
paragraph 10 that the Panel should interpret Article 6.9 in such a way as to allow Members to “choose
to establish an investigative process which allows in terested parties to be presented with all of the
facts as they are presented to the authority, as well as all arguments made about those facts.” The
United States finds support for this broad interpretation of Article 6.9 in some of the findings in
Guatemala – Cement (II) (Panel Report, Guatemala – Definitive Anti-dumping Measures on Portland
Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para 8.228. ) .
4.1099 The US account of the Guatemala – Cement (II) panel findings is too selective. That panel
found in paragraph 8.228 that disclosure of the “essential facts” forming the basis of a preliminary
determination is clearly inadequate when the fact ual basis of the preliminary determination differs
substantially from the factual basis of the final determination. Japan agrees, and apparently so does
the United States. However, in the present case, DCD never provided anything more than “dar vista”
of the file at any point during the antidumping investigation. The United States dismisses the key
findings in paragraphs 8.229-8.330 of Guatemala – Cement (II) with a footnote noting that it “does
not understand the basis for the Panel’s conclusion”. But these findings are still valid and strongly
support the argument that the method Argentina has applied in the present case would fall outside the
range of possible methodologies that could have been applied under Article 6.9 (Panel Report,
Guatemala – Definitive Anti-dumping Measur es on Portland Cement from Mexico, WT/DS156/R,
adopted 17 November 2000, at para. 8.228).
4.1100 Finally, the United States argues in paragraph 20 for an interpretation of Article 6.4 and 6.9
that would allow for a situation where there would be little, if any, practical difference between the
two provisions. Japan cannot accept the US interpretation, as the Panel on Guatemala – Cement (II)
observed that Article 6.9 imposes more substantive requirements than Article 6.4 (Panel Report,
Guatemala – Definitive Anti-dumping Measur es on Portland Cement from Mexico, WT/DS156/R,
adopted 17 November 2000, at para. 8.230).
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 150 Arguments of Turkey
4. Third Parties: Turkey
(a) Arguments by Turkey in its written submission relating to the EC’s claim under Article 6.9 of
the AD Agreement
4.1101 In its written submission, Turkey made the following arguments relating to the EC’s claim
under Article 6.9 of the AD Agreement.
4.1102 The EC submits that, Argentina infringed Article 6.9 of the AD Agreement, by failing to
inform the exporters of the “essential facts” underlying the dumping determination before imposing
definitive measures.
4.1103 Turkey considers that Article 6.9 is very clear in wording and leaves no room for
misinterpretations. It puts the investigating authorities under obligation of informing all interested
parties of the essential facts which form the basis for the decision whether to apply definitive
measures.
4.1104 Furthermore, it specifies that such disclosure should take place before a final determination is
made and in sufficient time for the parties to defend their interests.
4.1105 Turkey further considers that, if the intention of Article 6.9 was no more than providing
timely opportunities for all interested parties to see information, there would be no need for
Article 6.9 when Article 6.4 stood for such intention.
4.1106 In Turkey’s view, it is clear that this Article requires the authorities to inform the interested
parties and grant them the right to defend their interests before the final determination is made.
(b) Arguments of Turkey in its oral statement relating to the EC’s claim under Article 6.9 of the
AD Agreement
4.1107 In its oral statement, Turkey made the following arguments relating to the EC’s claim under
Article 6.9 of the AD Agreement.
4.1108 Turkey is of the view that, as Article 6.8 and paragraph 6 of Annex II, Article 6.9 also
contributes to conduction of fair investigations and predictable results.
4.1109 In this respect, Turkey submits that, the purpose of Article 6.9, in the very essence, is to
permit the interested parties to fully defend their interests. To that end, provisions of Article 6.9 are
obligatory taken the ordinary meanings of the words. It obliges the investigating authorities to inform
the interested parties of the essential facts before the final determination is made. The “essential facts
under consideration” in Turkey’s understanding refers to all the factual information that the authority
had at this hand and considered in deciding whether or not to take anti-dumping action. Moreover,
the Article requires such disclosure of essential facts to take place at an appropriate time so that the
respondents should be provided and not be deprived of their right of defence.
4.1110 This two basic requirements brings us to a point where authorities, under any given condition,
are obliged to inform the interested parties of th e essential facts with the aim to provide them an
opportunity to make a possible final statement, if any, before the final determination is made.
4.1111 Given such explicit obligations, authorities providing opportunities for interested parties only
to see relevant information, where practicable, sha ll not be deemed to satisfy the requirements of
Article 6.9.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of Turkey Page 151
4.1112 Furthermore, Turkey also wishes to note that, the problem addressed by the EC in its first
written submission, considering the inconsistency with Article 6.9 was not solely on means of
disclosure. The EC appears to allege that the public file provided by DCD did not include the “final
dumping determination”. If that is the case, Turkey is of the view that this panel should also address
this matter.
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 152 Arguments of the United States
5. Third Parties: The United States
(a) Arguments of the United States in its written submission relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.1113 In its written submission, the United States made the following arguments relating to the EC’s
claim under Article 6.9 of the AD Agreement.
4.1114 The EC claims that the DCD failed to inform the exporters of the “essential facts” concerning
the existence of dumping, contrary to the requirements of Article 6.9 of the Agreement. The brief of
the EC states that the Argentinian authority did not include in the public file a “document prepared by
the DCD which identified the ‘essential facts’ that would form the basis of the final determination”.
The EC also states that “Article 6.9 requires the in vestigating authorities to indicate to the interested
parties which, of all the facts contained in the file, are the “essential facts” that will form the basis for
their decision”.
4.1115 The United States does not take a position on whether, under the facts of this case, the
measure in question is consistent with Article 6.9. However, in the view of the United States the EC
has read requirements into Article 6.9 which simply are not there, and which are inconsistent with the
language as well as the object and purpose of that provision. As Argentina observes, Article 6.9
requires only that interested parties be “informed” of the essential facts, and that this requirement does
not impose a particular means of disclosure.
4.1116 Article 6.9 permits a Member wide discretion in choosing the manner in which it will inform
interested parties of the essential facts under consideration which form the basis for the Member’s
decision regarding an antidumping measure. Contrary to the argument of the EC, Article 6.9 does not
require a document setting out essential facts. It does not establish any other particular means of
disclosure which must be followed or define the parameters of “essential facts under consideration.”
Article 6.9 only requires that, as applied, the selected method actually discloses to interested parties
the facts which may be necessary for a defence of their interests. Thus, when a panel is considering
whether the obligation in Article 6.9 has been breached, the analysis must turn on whether, under the
specific facts of the dispute, the objective set out in Article 6.9 has been met, not on whether any
particular mechanism or approach has been used by the Member.
4.1117 Article 6.9 reads as follows:
The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests.
4.1118 As the Appellate Body has stated, the Agreement must be interpreted based on the ordinary
meaning of its terms, in context, and in light of the object and purpose of the Agreement (see, e.g.,
Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline ,
WT/DS2/AB/R, adopted 20 May 1996, at 23; Appellate Body Report, Japan – Taxes on Alcoholic
Beverages, WT/DS8/AB/R, WT/DS10/AB /R, WT/DS11/AB/R, adopted 1 November 1996, at 12;
and Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather
– Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW, adopted 16 June 2000, at
para. 6.25. See also Article 31 of the Vienna Convention of the Law of Treaties providing that, when
examining the meaning of a treaty’s terms, one mu st consider those terms “in light of the treaty’s
object and purpose.” The United States’ interpretation of Article 6.9 is supported by the ordinary
meaning of the text of Article 6.9, as well as the object and purpose of this particular provision).
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of the United States Page 153
(i) Article 6.9 obligates Members to “inform” interested parties; it does not prescribe any
particular means of disclosure
4.1119 As pointed out by Argentina in its submission, Article 6.9 requires that the investigating
authority “inform” interested parties of the essential facts under consideration, but it does not
prescribe the method by which this obligation must be fulfilled. Thus, while Article 6.9 establishes a
required result, it leaves the method of achieving that result to individual Members.
4.1120 The ordinary meanings of the word “inform” include to “make a fact or occurrence known”
(The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993). Thus, the word
“inform” defines a result, not how that result is achieved. Furthermore, nothing elsewhere in the AD
Agreement dictates or suggests any particular met hod for how parties are to be informed (A panel
may not “add to or diminish the rights and obligations provided in the covered agreements.”
Understanding on Rules and Procedures Governing the Settlement of Disputes, Article 19.2. See also
Panel Report, Australia – Measures Affecting Importat ion of Salmon – Recourse to Article 21.5 by
Canada, WT/DS18/RW, adopted 20 March 2000, at p. 7.69). The AD Agreement only requires that
parties, in fact, be informed in a timely manner so they are able to defend their interests.
4.1121 This understanding of the ordinary meaning of the language of Article 6.9 is reinforced by the
object and purpose of Article 6.9. The object and purpose are clear from Article 6.9 itself: “Such
disclosure should take place in sufficient time fo r the parties to defend their interests.” Regardless of
the means of disclosure chosen, as long as the object and purpose are achieved, the obligation in
Article 6.9 is satisfied (the object and purpose of Article 6.9 are further informed by the discussions of
Members on the predecessor provisions under the former Anti-Dumping Code. In 1983, the
Committee on Anti-Dumping Practices recognized that “the right of parties to defend their interests
during the course of an anti-dumping proceeding can only be guaranteed if they have the right to see
all the information that is relevant to their case providing that it is not confidential”. Committee on
Anti-Dumping Practices, Recommendation concerning transparency of anti-dumping proceedings ,
15 November 1983, ADP/17, GATT B.I.S.D. (30
th Supp.) 1984, at 24).
4.1122 Thus, Members may implement their obligations under Article 6.9 in a variety of ways.
Some Members may choose to implement Article 6.9 by requiring the investigating authority to
prepare a separate document of essential facts under consideration, as the EC has suggested. Other
Members may choose to establish an investigative process which allows interested parties to be
presented with all of the facts as they are presented to the authority, as well as all arguments made
about those facts. Other Members may choose some combination of these two approaches, or some
other method entirely.
4.1123 It is critical, however, to bear in mind that whether the obligation in Article 6.9 has been
satisfied cannot be determined by looking in the abstract at the means of disclosure used. In
reviewing a challenge under Article 6.9, the question before the panel is this: under the facts of this
case, were the essential facts under consideration made known to interested parties in a timely
manner? Because Article 6.9 requires a result rather than a particular method, a claim that Article 6.9
has been violated must be assessed based on the facts of the particular case and whether the particular
means of disclosure used, as applied in that instance, satisfied the objective behind Article 6.9. In the
case at hand, the Panel must assess whether the Italian exporters were informed of the facts they
needed to defend their interests, not whether the Ar gentinian authorities prepared a particular type of
document.
4.1124 The only prior case in which a panel has been directly called upon to interpret the
requirements of Article 6.9 provides a good example of why review of a claim under Article 6.9 must
be made on a case-by-case basis. In Guatemala – Cement (II), the panel found that disclosing the
essential facts in an interim determination was in sufficient to fulfill Guatemala’s obligations with
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 154 Arguments of the United States
respect to Article 6.9 in an investigation where: (1) the basis of the interim determination was threat
of material injury, whereas the basis of the definitive determination was actual material injury; (2) the
period of investigation was different for the interim determination and the definitive determination;
and (3) much of the evidence was obtained after the interim determination (Panel Report, Guatemala
– Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico , WT/DS156/R, adopted
17 November 2000, at para. 8.228). The panel also found that providing access to the authority’s file
was insufficient to fulfill Guatemala’s obligations under Article 6.9 because an authority’s file is
“likely” to contain vast amounts of information, some of which may not be relied upon by the
authority in making its definitive determination. Id. at para. 8.229. Admittedly, the United States
does not understand the basis for the panel’s conclusion that such a situation is “likely.” In any event,
as discussed below, this Panel should not interpret this statement from Guatemala – Cement (II) to
mean that facts which do not ultimately support the determination reached are not essential to that
determination and to a party’s ability to defend its interests).
4.1125 Thus, the panel in Guatemala – Cement (II) focused on the facts of the case before it. For
example, disclosing facts in the interim determination could not satisfy Article 6.9 in that case
because, after the interim determination, the period of investigation changed. The parties were given
no notice of this change. This meant that they did not even know which sales were being examined
for dumping. The Guatemala – Cement (II) panel might have reached a different conclusion had there
been no change in the period of investigation or injury determination, and had all of the facts been
gathered before the interim determination. Thus, the same procedures may satisfy Article 6.9 in some
cases, but not in others, demonstrating the need for the Panel to undertake a case-by-case analysis,
rather than attempting to enunciate a general rule.
(ii) The scope of “essential facts under consideration” should not be interpreted in a restrictive
manner
4.1126 The Panel should evaluate compliance with Arti cle 6.9’s obligation to “inform” by focusing
on the facts of the particular case, rather than adopting the EC’s suggestion that a particular means of
disclosure is required. However, in interpreting Article 6.9, the Panel also must address the scope of
the term “essential facts under consideration” in determining whether Article 6.9 has been violated.
In the view of the United States, the language as well as the object and purpose of Article 6.9 argue
that the Panel not adopt a restrictive interpretation of the scope of “essential facts under
consideration.” Thus, not only is the methodology suggested by the EC not required by Article 6.9,
the EC’s statement that authorities should be required to select certain “essential facts” for disclosure
could defeat the object and purpose of that provision.
4.1127 Article 6.9 describes the facts of which interested parties must be informed as the “essential
facts under consideration.” To understand what that phrase means, one must examine the ordinary
meaning of the individual terms. Ordinary meanings of the word “essential” include “of or pertaining
to a thing’s essence” and “absolutely indispensable or necessary” ( The New Shorter Oxford English
Dictionary, Clarendon Press Oxford 1993).
4.1128 In the context of the AD Agreement, the essential facts are those that are necessary to the
determination of whether definitive measures are warranted. This may include all the facts before the
investigating authority. In such a situation, the EC ’s suggestion that an authority had to designate
certain facts as the essential facts has no meaning. For example, in identifying material injury, the
authority must necessarily weigh all of the facts submitted, which typically includes some
contradictory information. Similarly, in determining whether dumping has taken place, every sale
considered, every adjustment made, and every issue addressed influences whether the ultimate margin
found is above the de minimis threshold (see AD Agreement, Article 5.8) and definitive measures
warranted. Accordingly, the Panel should not adopt a restrictive interpretation of “essential facts
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of the United States Page 155
under consideration” since that would have the potential to improperly circumscribe the facts
disclosed under Article 6.9.
4.1129 Additionally, Article 6.9 refers to the essential facts “under consideration”. The term
“consideration” has been defined, inter alia, as “the action of taking into account” ( The New Shorter
Oxford English Dictionary, Clarendon Press Oxford 1993). With respect to any specific issue, the
investigating authority may have conflicting information, all of which is weighed, i.e., “taken into
account,” in reaching its final determination (this understanding of “essential facts under
consideration” is further supported by the use of the phrase “the decision whether to apply definitive
measures.” The word “whether” is used to express two alternatives. The New Shorter Oxford English
Dictionary, Clarendon Press Oxford 1993. Consequently, the facts referred to are those which
support both alternatives). Thus, all such evidence is under consideration in the determination (the
Guatemala – Cement (II) panel seem to suggested that Article 6.9 might function to reveal, inter alia,
information not relied upon because it has been “shown to be inaccurate upon verification”. Panel
Report, Guatemala – Definitive Anti-Dumping Measur es on Grey Portland Cement from Mexico ,
WT/DS156/R, adopted 17 November 2000, at para. 8.229. However, Article 6.7 independently
provides for disclosure of the results of verification, and Article 6.9 should not be interpreted in a
manner redundant of Article 6.7).
4.1130 Further, the scope of “essential facts under consideration” must be interpreted in a manner
consistent with the object and purpose of Article 6.9. As discussed above, the object and purpose of
Article 6.9 are to permit interested parties to defend their interests. To allow for a proper defence, that
provision must be interpreted to require that interested parties be informed of all essential facts under
consideration, including those that militate against the decision ultimately reached.
4.1131 The interpretation of Article 6.9 suggested by the EC, which would require authorities to
select certain facts for disclosure as the “essential facts” would permit authorities only to designate the
facts which supported their ultimate findings as “essential.” Such an interpretation would work
against the object and purpose of this provision. It would permit an authority to disclose all of the
facts supporting its decision, while not disclosing facts which would support a contrary decision (even
assuming an authority is acting in good faith to inform parties of all facts it believes would be
necessary for their defence, such an authority will not necessarily know which facts the party would
consider necessary). Such an interpretation of Article 6.9 would prevent interested parties from
defending their interests. In order to defend its interests, a party must be informed of those facts
which militate against that decision, as well as any other facts which would permit an affirmative
defence. Thus, limiting the facts of which parties are informed under Article 6.9 to those which
support one particular outcome would defeat the expressed purpose of that provision.
4.1132 Additionally, if Article 6.9 only addresses facts in support of the determination ultimately
reached, then an authority which changed its determination as a result of an argument presented late in
the proceeding would have to provide a new disclosure of essential facts. This amounts to a
requirement of multiple interim determinations. However, the AD Agreement does not require an
interim determination at all. Even where a Member chooses to issue such a determination in order to
apply provisional measures under Article 7, Articles 7.1 and 12.2 only contemplate a single interim
determination (further, reading Article 6.9 to require disclosure only of those facts relied upon in
support of the ultimate decision would amount to a requirement that parties be provided with
information to defend their interests only after the authorities have decided on the outcome of the case
– a plainly absurd result. The object and purpose of Article 6.9 being to allow parties to defend their
interests, those parties must be permitted to mount such a defence before the authority has decided
whether to impose definitive measures. Moreover, reading a requirement of multiple disclosures
under Article 6.9 into the AD Agreement runs the risk of preventing an authority from meeting the
deadlines for completion of an investigation set forth in Article 5.10).
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 156 Arguments of the United States
4.1133 Finally, the interaction of Article 6.9 and 6.4 does not dictate a restrictive interpretation of
the facts of which interested parties must be informed under Article 6.9. Article 6.4 is not mandatory,
but specifies a procedure: parties must be allowed to “see” the public information, but only if the
authorities determine that it is “practicable.” On the other hand, as discussed above, Article 6.9 is
mandatory, but does not specify a procedure. In other words, whether or not an authority determines
that it is practicable to let the parties see the record under Article 6.4, in every case interested parties
must be informed of the “essential facts under consideration”. Thus, it may be in a particular case that
liberal disclosure under Article 6.4 also satisfies Article 6.9 (this does not necessarily mean that every
disclosure under Article 6.4 will satisfy Article 6.9. For example, allowing parties to see a very large
record for a very short time may not be sufficient. On the other hand, allowing parties to have
unrestricted access to the record, including all argument s about the facts in that record, as it is being
developed throughout the investigation, will inform those parties of the essential facts under
consideration in accordance with Article 6.9. The Panel must determine under Article 6.9 whether the
parties were actually informed).
4.1134 This does not mean that Article 6.9 is redundant of Article 6.4. Article 6.9 requires that
interested parties be informed of the essential facts under consideration regardless of whether the
authorities have found it practicable to allow those parties to see the public record under Article 6.4.
4.1135 In conclusion, Article 6.9 does not prescribe a particular means of disclosure. Rather, that
provision requires a reviewing panel to determine, on a case-by-case basis, whether the method
employed, in fact, informed the interested parties of all of the “essential facts under consideration” in
sufficient time to allow for a defence of their interests.
(b) Arguments of the United States in its oral statement relating to the EC’s claim under
Article 6.9 of the AD Agreement
4.1136 In its oral statement, the United States made the following arguments relating to the EC’s
claim under Article 6.9 of the AD Agreement.
4.1137 The United States addressed first the arguments regarding the proper interpretation of
Article 6.9. Article 6.9 of the AD Agreement furthers the goal of transparency in dumping
proceedings by requiring that investigating authorities inform interested parties of all essential facts
under consideration prior to making a final determination of dumping. Both the United States and
Argentina have argued in their written submissions that Article 6.9 is concerned with a particular
result, and does not prescribe the process for reachin g that result. By contrast, the EC, joined in some
respects by Japan and Turkey, has suggested that Article 6.9 requires the preparation and issuance of a
single document prior to the final determination that contains all the supporting facts that the
investigating authority will actually rely on when it makes the final determination.
4.1138 In considering the arguments the United States are presenting regarding the proper
interpretation of Article 6.9, the United States wishes the Panel to keep in mind a single important
consideration apparently overlooked by the EC and Japan: if a party is not informed of a fact under
Article 6.9, it may never know that fact exists at all. Article 6.9 is the only guarantee in the
Agreement that a party will be informed of all the facts it might need to mount its defence. Under the
interpretation advanced by the EC and Japan, parties may find themselves in a situation where the
only facts of which they have been informed are those which support the determination the authority
intends to reach.
4.1139 Why is this the case? With respect to facts gathered by the authority (and thus not subject to a
service requirement under Article 6.1), the only provisions of Article 6 which address disclosure to
the parties are Articles 6.4 and 6.9. Note, however, that the language of Article 6.4 holds out the
possibility that, in a particular case, and given the appropriate circumstances, an authority could find
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of the United States Page 157
that it is only practicable to permit interested parties to view the public record for a very brief period
of time, or that it is only practicable to permit them to view it at a stage before all of the information
has been gathered. Thus, the disclosure under Article 6.4 may be very limited.
4.1140 Article 6.9, on the other hand, guarantees that parties have access to all facts relevant to the
final determination. If the more limited interpretation of Article 6.9 offered by the EC and Japan were
adopted, the authority would reach its conclusions and inform the parties only of the facts on which it
actually intends to rely in support of those conclusions. The parties would then be permitted to
defend their interests, informed of only the facts which support one determination and facing an
authority which has already made a decision on the outcome of the case.
4.1141 The United States finds it difficult to believe that any interpretation of Article 6.9 which
would permit the goal of transparency to be thwarted in this manner is a proper interpretation.
Fortunately, as discussed in our written submission, a careful examination of the language, including
the express object and purpose of that provision, reveals that the interpretation offered by the EC and
Japan is not correct. Rather, Article 6.9 permits a Member wide discretion in choosing the manner in
which it will inform interested parties of the essential facts under consideration which form the basis
for the Member’s decision regarding an antidumping measure. Moreover, the facts addressed by
Article 6.9 are all those which are relevant to the determination of whether definitive measures are
warranted – facts which argue for, as well as those which argue against, application of such measures.
4.1142 The language of Article 6.9 does not support the interpretation advanced by the EC and Japan.
First, as Argentina also pointed out, Article 6.9 only requires that interested parties be informed, and
does not specify a means of disclosure. Article 6.9 makes no mention of the disclosure document
discussed by the EC, or the disclosure conference discussed by Japan. Second, Article 6.9 requires
that parties be informed of the “essential facts under consideration.” As discussed in the United
States’ submission, those words cannot be read as limited to the facts which will be actually relied
upon in support of a particular outcome.
4.1143 In interpreting Article 6.9, the Panel must also bear in mind the object and purpose of that
provision. The object and purpose is expressed in the provision itself: to permit parties to defend their
interests. This object and purpose would not be served if parties were only informed of the facts
which support one outcome of the case.
4.1144 The object and purpose of Article 6.9 is further informed by the purpose of the other
provisions of Article 6. The provisions of Article 6 of the AD Agreement are aimed at ensuring that
parties know what is required of them, and have a full opportunity to be informed of the evidence
presented by other parties and gathered by the authorities. For example, Article 6.1.2 requires that
“evidence presented in writing by one interested party shall be made available promptly to other
interested parties participating in the investiga tion.” Article 6.2 requires authorities to “provide
opportunities for all interested parties to meet thos e parties with adverse interests, so that opposing
views may be presented and rebuttal arguments offered.” Article 6.3 requires that oral information
only be taken into account “insofar as it is subsequently reproduced in writing and made available to
other interested parties.” Thus, the provisions of Article 6 appear to reflect a concern that parties be
given as much information as possible, so that they may be fully in control of their own defence.
4.1145 By contrast, the arguments advanced by the EC and Japan with respect to Article 6.9 appear
to reflect a concern that parties may be given too much information, and that the authority conducting
the investigation must be required to sort through that information and inform the parties only of the
facts on which it will rely. Such an argument is paternalistic and an invitation for mischief. It might
be possible that an authority, acting in bad faith, could fill the record with such vast amounts of
irrelevant information that parties would be effectively precluded from defending their interests.
However, in the view of the United States, the danger posed by this unlikely scenario is vastly
WT/DS189/R Claim under Article 6.9 of the AD Agreement
Page 158 Arguments of the United States
outweighed by the very real concern, reflected in the rest of Article 6, that parties must receive all of
the information about the investigations to which th ey are subject in order to adequately defend their
interests.
4.1146 In light of this concern, the United States does not understand Japan’s suggestion that a
dumping file is likely to contain large amounts of ir relevant information. The very purpose of Article
6 is to allow parties to judge for themselves in th e first instance whether they believe a particular fact
is relevant to arguments they wish to raise, rath er than leaving such a judgment to the authority.
Recall that if a party is not informed of a fact under Article 6.9, it may not know the fact exists at all,
and thus will have no way of determining whether that fact would be relevant to its arguments.
4.1147 In reviewing the arguments raised by the EC a nd Japan, in this respect joined by Turkey, that
Article 6.9 must be interpreted to “go beyond” the requirements of Article 6.4, the source of this
misunderstanding of Article 6.9 becomes clear. Because these parties have interpreted Article 6.4 in
an excessively broad manner, and have not recognized the limitations of that provision, they are
forced into a tortured reading of Article 6.9 in order to avoid a redundancy. However, a proper
reading of the language of Article 6.4 reveals that it is not redundant of Article 6.9, and that these
Articles can operate independently of and harmoniously with each other.
4.1148 The misunderstanding of Article 6.4 is best summarized by the following sentence from
Japan’s submission: “[e]very investigating authority is required under Article 6.4 of the AD
Agreement to maintain a file for each antidumping investigation of all information that is relevant and
that the authority uses in the investigation, and to provide timely opportunities for interested parties to
have access to this information”. While the United States finds this a laudable ideal, the fact is that the
language of Article 6.4 is not quite so broad.
4.1149 Article 6.4 is not mandatory in all circumstances: the requirement to allow parties to see the
record under Article 6.4 could be limited by a finding by the authority that such disclosure is not
practicable. Thus, while a Member claiming that access to the record is not practicable faces a heavy
burden, it is possible that this burden could be met in certain cases such that disclosure under Article
6.4 may be very brief, or occur at a time before all of the information has been gathered. Article 6.9
ensures that, even if the authority is able to support a finding that it is not practicable under Article 6.4
to allow parties to see the full record, that authority must still find a way to inform those parties of the
facts contained in that record. Of course, in the view of the United States, allowing liberal access to
the record under Article 6.4 goes a long way toward satisfying the requirements of Article 6.9.
However, the key point for the Panel to bear in mind is that only Article 6.9, and not Article 6.4,
guarantees that parties will be informed of all of the facts they need to defend their interests in every
case.
4.1150 On the other hand, Article 6.4 does “go beyond” Article 6.9 in that it requires a particular
means of disclosure. When an authority implements Article 6.4, it can only do so by allowing parties
to see the original source documents in the record. This firsthand access may be of particular value to
parties in assuring them of the completeness and accuracy of the information. Although the United
States believes that this also may be the best method of implementing Article 6.9, as the United States
has frequently stated, Article 6.9 does not prescribe a particular means of disclosure. To sum up,
Article 6.9 is mandatory, but does not prescribe a means of disclosure, whereas Article 6.4 is
conditional, but does prescribe a means of disclosure.
4.1151 Thus, the concern that Article 6.9 not be interpreted as redundant of Article 6.4 flows from a
misreading of Article 6.4. Article 6.4 and Article 6.9 simply address different concerns, and represent
different obligations. The fact that an authority can devise a single means of disclosure which
satisfies both provisions does not mean that it is interpreting those provisions in an improper manner.
Claim under Article 6.9 of the AD Agreement WT/DS189/R
Arguments of the United States Page 159
4.1152 Japan also argues that the logical consequence of not adopting its interpretation of Article 6.9
is that it would nullify a panel’s ability to determine whether the authority’s establishment of the facts
was proper and whether the authority’s evaluation of the facts was unbiased and objective, in
accordance with Article 17.6 of the AD Agreement. The United States respectfully disagrees. As long
as the investigating authority has chosen a method which informs the interested parties of the essential
facts under consideration and the authority sets forth in its final determination its reasoning in support
of its decision, a reviewing panel should be able to make the necessary determinations under
Article 17.6.
4.1153 The United States also addressed certain arguments by Japan which go well beyond what the
EC and Turkey have argued with respect to Article 6.9. First, Japan states that Article 6.9 requires
authorities to conduct a so-called “disclosure conference” with exporters or their representatives.
However, Article 6.9 makes no mention of “disclosure conferences.” Indeed, as discussed previously,
Article 6.9 does not require any particular method for informing parties of the essential facts under
consideration.
4.1154 Second, Japan also appears to argue that in addition to requiring that parties be informed of
the essential facts under consideration, Article 6.9 requires that interested parties be informed of the
authority’s reasoning prior to its final determination. However, the language of Article 6.9 only
addresses facts and not legal reasoning. Moreover, this argument would, in essence, require the
investigating authorities to make multiple interim determinations, contrary to what is contemplated by
Articles 7 and 12.

V. INTERIM REVIEW
5.1 On 20 August 2001, the EC submitted a written request for review by the Panel of particular
aspects of the interim report issued on 25 July 2001. Argentina did not provide any comments on the
interim report. Argentina commented on the EC's request for interim review on 28 August 2001.
Neither party requested an additional meeting with the Panel.
5.2 We have reviewed the comments presented by the EC and the reaction thereto by Argentina
and have finalized our report, taking into account these comments which we considered justified.
5.3 The EC notes that the second sentence of paragraph 6.30 of the Panel's interim report does not
accurately reflect its position and suggests certain language to the Panel for completing the text. We
are of the view that paragraph 6.30 is an accurate reflection of the EC's position on this issue. We
note that the language suggested by the EC in its interim review comments was not used by the EC in
its submissions to the Panel. Accordingly, we saw no reason to amend the text as requested by the EC.
5.4 The EC states that the exporters had provided the evidence specifically requested by the DCD
and that therefore the Panel's statement in paragraph 6.62 of the interim report that "no documentary
evidence of any kind was submitted" is inaccurate. Argentina comments that the Panel's statement is
correct in so far as it refers to supporting documentation for the information supplied. We decided to
amend the text of this paragraph taking into account the comments made.
5.5 The EC notes, in respect of footnote 89, that in United States – Anti-Dumping Measures on
Certain Hot Rolled Steel Products from Japan , the Appellate Body has confirmed that in Article 9.4
the words “margins” means the individual margin determined for each investigated exporter. The EC
makes no suggestion as to how the Panel should use the ruling cited. Argentina comments that the EC
should not be allowed to rely on this decision in support of its argument since this decision was issued
well after the time for presentation of arguments by the parties. We considered that since footnote 89
refers to the arguments presented by the EC on this issue, it would not be appropriate to incorporate
any reference to this decision which was not and could not have been part of the EC's argument as it
was issued only days before the issuance of the interim report. Accordingly, we decided to leave
footnote 89 unchanged.
5.6 The EC suggests that the Panel completes the last sentence of paragraph 6.89 by adding
language used by the EC in its first submission to the Panel. Argentina comments that it is up to the
Panel to decide on the language chosen to represent a party's position. In light of the EC's comments,
we decided to amend the report as suggested by the EC in order to fully reflect the EC's position on
this issue.
5.7 The EC notes that the first sentence of paragraph 6.90 should refer to exporters who are
selected for examination under the second sentence of Article 6.10, rather than the second paragraph.
We considered it was appropriate to amend the text as suggested by the EC.
5.8 The EC requests the Panel to redraft the last sentence of paragraph 6.118. The EC proposes
specific language which it believes more accurately reflects its arguments. We have in response to
this comment modified the text of this paragraph.
5.9 The EC notes that, in its view, the interpretation of the Panel of the requirements of Article
6.9 as offered in paragraph 6.125 is incorrect. Arge ntina comments that it sees no problem with the
Panel's interpretation of the language of this provision, and requests the Panel to reject the EC's
comments and leave the text unchanged. In light of the EC's comments, we decided it was
appropriate to briefly clarify our interpretation of Article 6.9 and we amended paragraph 6.125
accordingly.

VI. FINDINGS
A. STANDARD OF REVIEW
6.1 Article 17.6 of the AD Agreement sets forth the special standard of review applicable to anti-
dumping cases. With regard to factual issues, Article 17.6(i) provides:
"(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"; (emphasis
added).
6.2 We note that the Panel in the case United States – Anti-Dumping Measures on Stainless Steel
Plate in Coils and Stainless Steel Sheet and Strip from Korea considered that Article 17.6(i):
"speaks not only to the establishment of the facts, but also to their evaluation.
Therefore, the Panel must check not merely whether the national authorities have
properly established the relevant facts but also the value or weight attached to those
facts and whether this was done in an unbiased and objective manner. This concerns
the according of a certain weight to the facts in their relation to each other; it is not a
legal evaluation".
13
6.3 Accordingly, it is not our role as a panel to perform a de novo review of the evidence which
was before the investigating authority at the time it made its determination. Rather, we must review
the determination the investigating authority made on the basis of the information before it in order to
determine whether the establishment of the facts was proper and the evaluation of the facts was
unbiased and objective. With respect to the latter aspect of our review, we consider that the task
before us is to examine whether, on the basis of the information before it, an unbiased and objective
investigating authority evaluating that evidence could have reached the conclusions it did.
14
6.4 With respect to questions of the interpretation of the AD Agreement, Article 17.6(ii) provides:
"(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 panel shall find the authorities’ measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations".
6.5 We consider the first part of this subparagraph to be a clear reference to the customary rules
of interpretation as laid down in Articles 31-32 of the Vienna Convention on the Law of Treaties.

13 Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless
Steel Sheet and Strip from Korea, WT/DS179/R, adopted 1 February 2001, para. 6.18.
14 We note that this is the same standard as that applied by the Panel in Mexico – Anti-Dumping
Investigation of High Fructose Corn Syrup (HFCS) from the US (“Mexico – HFCS”) , which, in considering
whether the Mexican investigating authorities had acted consistently with Article 5.3 in determining that there
was sufficient evidence to justify initiation, stated: “Our approach in this dispute will … be to examine whether
the evidence before SECOFI at the time it initiated the investigation was such that an unbiased and objective
investigating authority evaluating that evidence could properly have determined that sufficient evidence of
dumping, injury and causal link existed to justify initiation.” Panel Report, Mexico – HFCS , WT/DS132/R,
adopted 24 February 2000, para. 7.95.

Article 31 of the Vienna Convention provides that a treaty shall be interpreted 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. Article 17.6(ii) of the AD Agreement provides that in the case where this method leads the
panel to the conclusion that the provision in question admits of more than one permissible
interpretation, the panel shall find the measure in conformity if it is based on one such permissible
interpretation.
B. B
URDEN OF PROOF
6.6 We recall that the burden of proof in WTO dispute settlement proceedings rests with the party
that asserts the affirmative of a particular claim or defence. 15 It implies that the complaining party
will be required to make a prima facie case of violation of the relevant provisions of the WTO
AD Agreement, which is for the defendant, in this case Argentina, to refute. 16 In this regard, the
Appellate Body has stated that “... a prima facie case is one which, in the absence of effective
refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the
complaining party presenting the prima facie case”.17 Our role as a panel is not to make the case for
either party, but we may pose questions to the parties “in order to clarify and distill the legal
arguments”.18
C. FACTUAL INTRODUCTION
6.7 This dispute concerns the imposition of definitive anti-dumping measures by the Argentine
Ministry of the Economy on imports of ceramic floor tiles (“porcellanato”) from Italy. The European
Community raises claims with respect to several aspects of those measures. In particular, the
European Community considers that the measures concerned are inconsistent with Articles 6.8 (in
conjunction with Annex II), 6.10, 2.4 and 6.9 of the AD Agreement.
6.8 On 30 January 1998, Cerámica Zanon filed an application for an anti-dumping investigation
with the Dirección de Competencia Desleal (DCD – Directorate of Unfair Trade) of the Ministry of
the Economy alleging that ceramic tiles were being exported to Argentina at dumped prices. 19 On 25
September 1998, the Ministry of the Economy published a public notice announcing the initiation of
an anti-dumping investigation on imports of ceramic tiles from Italy. The DCD selected the years
1997 and 1998 as the period of investigation. At initiation, as in the subsequent stages of the
investigation, the DCD divided the subject product into 3 size categories (tiles of 20 x 20 cm, tiles of

15 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, p. 14.
16 We note that the Appellate Body stated in Korea – Definitive Safeguard Measures on Imports of
Certain Dairy Products (“Korea – Dairy Safeguards”) : “We find no provision in the DSU or in the Agreement
on Safeguards that requires a Panel to make an explicit ruling on whether the complainant has established a
prima facie case of violation before a panel may proceed to examine the respondent’s defence and evidence.”
Appellate Body Report, Korea – Dairy Safeguards, WT/DS98/AB/R, adopted 12 January 2000, para. 145. The
Appellate Body confirmed this view in the Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of
Iron or Non-Alloy Steel and H-Beams from Poland (“Thailand – H-Beams”) case: “In our view a panel is not
required to make a separate and specific finding in each and every instance that a party has met its burden of
proof in respect of a particular claim, or that a party has rebutted a prima facie case.” Appellate Body Report,
Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from
Poland (“Thailand – H-Beams”) , WT/DS122AB/R, adopted 5 April 2001, para. 134.
17 Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products
(“EC – Hormones” ), WT/DS26/AB/R – WT/DS48/AB/R, adopted 13 February 1998, para. 104.
18 Appellate Body Report, Thailand – H-Beams, para. 136.
19 The DCD was responsible for conducting the dumping investigation. The injury investigation was
conducted separately by the Comisión Nacional de Comercio Exterior (CNCE – National Foreign Trade
Commission). As the EC did not make any injury claims, no reference is made here to the injury aspects of the
investigation.

30 x 30 cm and tiles of 40 x 40 cm), and determined a dumping margin specific to each size
category.20 For the purposes of initiation, the DCD calculated normal values for each size category by
averaging several estimates of domestic prices taken from price lists and specialized publications
submitted by the petitioner. 21 In turn, the DCD determined the export price for each size category
according to two sources: a unit price calculated by the petitioner on the basis of import documents,
and a unit price calculated by the DCD itself on the basis of official import statistics.
22
6.9 On 30 November 1998, Assopiastrelle, the association of Italian producers of ceramic tiles,
requested that the DCD limit the calculation of individual dumping margins to 4 or 5 exporters
accounting for around 70 per cent of the exports of the subject product from Italy to Argentina. 23 On
12 December 1998, the DCD accepted this request. 24 On 10 December 1998, four Italian exporters
(Ceramica Bismantova, Ceramiche Casalgrande, Ceramiche Caesar, and Marazzi Ceramiche) filed
responses to the investigation questionnaire. On 24 March 1999, the DCD issued an affirmative
preliminary determination.
25 In that determination, the DCD disregarded the questionnaire replies
submitted by the above-mentioned exporters. 26 The DCD determined the dumping margin on the
basis of the information available on the record, other than that presented by the exporters. In
particular, for each size category, the DCD calculated normal value on the basis of an average
domestic price drawn from price lists (i.e., the price lists submitted by the petitioner in the complaint,
and supplementary price lists submitted by the petitioner and by one of the importers following
initiation) and sale invoices (submitted by the petitioner following initiation).
27 In turn, for each size-
category, the DCD calculated the export price according to the unit price derived from official import
statistics.28
6.10 On 23 September 1999, the DCD issued an affirmative final determination. In this
determination, the DCD relied predominantly on the information available on the record, other than
that submitted by the exporters. Specifically, for each size category, the DCD determined two
dumping margins. Both calculations used the same export price but different normal values. 29 The
first normal value was an average domestic price drawn from the price lists and sale invoices referred
to above. 30 This was the same pricing information used by the DCD for the purpose of the
preliminary determination.31 The second normal value was an average domestic price that reflected
the same price lists and sales invoices, plus the pricing information submitted by the exporters, taken
as a whole.32 In the latter calculation, the pricing information submitted by the exporters received a

20 Final Dumping Determination, p. 43. Exhibit EC-2.
21 Final Dumping Determination, pages 20 –22. Exhibit EC-2. In the case of the 20 x 20 cm size-
category, when calculating normal value the DCD only relied on estimates of domestic prices taken from
specialized publications.
22 Final Dumping Determination, pages 30 –32. Exhibit EC-2.
23 Exhibit EC-3A.
24 Exhibit EC-3B.
25 Preliminary Dumping Determination. Exhibit ARG-8.
26 Preliminary Dumping Determination, p. 34. Exhibit ARG-8. Final Dumping Determination, p. 23.
Exhibit EC-2.
27 Final Dumping Determination, pages 23 –24 and p. 44. Exhibit EC-2. In the case of the 20 x 20 cm
category, when calculating normal value the DCD only relied on estimates of domestic prices taken from price
lists.
28 Final Dumping Determination, pages 32-34 and p. 44. Exhibit EC-2. These import statistics referred
to the period January-September 1998. We note that following the preliminary determination, the DCD sent
three letters to the exporters requesting that additional public information be provided. See Exhibits ARG-7,
Exhibit ARG-10 and Exhibit ARG-11.
29 Final Dumping Determination, p. 45. Exhibit EC-2.
30 Final Dumping Determination, pages 44 – 45. Exhibit EC-2.
31 Final Dumping Determination, pages 44 and 24. Exhibit EC-2.
32 Final Dumping Determination, p. 45. Exhibit EC-2.

weight of one third.33 The DCD did not provide any justification for this approach of combining the
information on normal value submitted by the exporters with the information on normal value filed by
other parties.34 The DCD simply stated that for its normal value calculations it was relying on the
totality of the information at hand. 35 The final determination does not explain with clarity how the
DCD calculated the export price. 36 However, from an annex to the Final Determination, we can
conclude that the DCD calculated the export price by averaging the unit price drawn from official
import statistics37 and the import prices reported by two importers. The DCD did not explain why it
had disregarded entirely the information submitted by the exporters with regard to the export price,
even though for calculating normal value it had relied upon their data to some degree.
6.11 On 12 November 1999, the Ministry of the Economy, based upon the affirmative Final
Determination regarding the existence of dumping issued by the DCD on 23 September 1999, and the
affirmative Final Determination regarding the existence of injury and causality issued by the CNCE
on 3 September 1999, imposed definitive anti-dumping measures on imports of ceramic tiles
originating in Italy.
38 The measures were fixed for a period of 3 years and took the form of specific
anti-dumping duties applied in variable amounts. In particular, under this system importers are
subject to an anti-dumping duty equivalent to the absolute difference between the FOB export price
invoiced in any one shipment and a designated “minimum export value”, also fixed in FOB terms,
provided that the export price concerned is lower than the designated “minimum export value”. The
measures were established according to the three size categories described above. However, the
notice of imposition of definitive measures does not explain which of the two normal values
calculated by the DCD in its Final Determination for each size category was retained as “minimum
export value” in each case, nor how the calculated normal values were converted into “minimum
export values”.
39
D. CLAIM 1: FACTS AVAILABLE UNDER ARTICLE 6.8 AND ANNEX II OF THE AD AGREEMENT
1. Arguments of the parties
6.12 The EC argues that the DCD disregarded the information concerning normal value and export
price provided by the four Italian exporters included in the sample and instead relied on information
from other sources such as the petitioner and importers. The EC submits that under Article 6.8 of the
AD Agreement, an investigating authority may make a determination on the basis of the facts
available and resort to secondary source information only where the exporter: (i) refuses access to
necessary information; (ii) does not timely submit the necessary information; or (iii) significantly
impedes the investigation. The EC asserts that all four exporters included in the sample provided
complete and timely responses to the questionnaires and agreed to the verification of the information
submitted. Nevertheless, the EC submits, the Argentine authority discarded the information and made
a dumping determination on the basis of facts available.

33 Final Dumping Determination, p. 30. Exhibit EC-2. As an exception, in the case of the 20 x 20 cm
category, the pricing information submitted by the exporters received a weight of one-half, given that there was
only one alternative source of information (price lists) for the calculation of normal value.
34 The DCD did not explain either why it considered the normal value information submitted by the
exporters as a block, instead of considering that inform ation by individual exporter (we recall in this connection
the fact that the exporters filed individual questionnaire replies).
35 Final Dumping Determination, p. 30. Exhibit EC-2.
36 Final Dumping Determination, p. 37. Exhibit EC-2.
37 For the period October 1997-September 1998.
38 Exhibit EC-1.
39 It would appear that the “minimum export values” are the FOB-adjusted normal values. However, as
pointed out above, this is not clear in the text of the notice of imposition of definitive measures.

6.13 According to the EC, the DCD considered the exporters’ responses on an equal footing with
the information from the petitioner and eventually decided to rely on the latter. The EC submits that
the DCD cannot pick and choose data from different sources in the establishment of the dumping
margin, since this would render Article 6.8 and Annex II totally redundant. In particular, the EC
points to paragraph 7 of Annex II which, according to the EC, explicitly recognises the hierarchy
between primary and secondary sources. The EC argues that the primary source of information is the
normal value and export price information supplied by the exporters concerned, and only under the
specific circumstances set out in Article 6.8 is an authority allowed to resort to secondary source
information.
6.14 The EC further submits that the Argentine authority never informed the exporters that their
responses had been rejected, nor did it explain why the information was rejected, as required by
paragraph 6 of Annex II of the AD Agreement.
6.15 Argentina submits that the DCD was forced to resort to the use of facts available since the
exporters significantly impeded the investigation and failed to provide the necessary information
within a reasonable period, thereby de facto refusing access to necessary information. Argentina
argues that all three of the conditions of Article 6.8 of the AD Agreement applied. Argentina
identifies the following problems concerning the information supplied by the exporters included in the
sample which, in its view, justified the use of facts available by the DCD. First, according to
Argentina, the exporters did not provide sufficiently detailed non-confidential summaries for the
confidential information in the questionnaire re plies, thereby making it impossible for the DCD to
rely on this confidential information in its public determination. Second, Argentina argues that the
exporters failed to provide supporting documentation for the information they were supplying, in spite
of being explicitly requested to do so by the DCD. Third, according to Argentina, the exporters failed
to comply with a number of formal requirements set forth in the questionnaire, concerning translation
of documents and the need to provide the informa tion in US$. Argentina further asserts that the
information was provided late, and proved to be incomplete. For these reasons, Argentina submits,
the exporters significantly impeded the investigation and refused access to information which was
necessary for the DCD’s final determination of dumping. The DCD was therefore entitled to resort to
facts available under Article 6.8 of the AD Agreement.
6.16 Argentina asserts that the DCD applied facts available so meticulously that it was willing to
take the deficient exporter information into account as far as possible, thereby in fact reducing the
margin of dumping. Argentina submits that the willingness to accommodate the exporters by
extending deadlines and requesting additional information to complement the questionnaire replies
show that the Argentine authorities complied with the requirement of paragraph 7 of Annex II to use
secondary sources with special circumspection.
6.17 Argentina submits that the DCD informed the exporters on several occasions that they had
not provided the necessary information. Argentina points to the DCD’s letter of 30 April 1999 in
which additional elements of proof and additional public information were requested. A further letter
was sent to the exporters on 22 June 1999 with a request to withdraw the request for confidential
treatment of certain information or to provide more detailed summaries. A third and final letter of a
similar nature was sent on 3 August 1999 with regard to cost of production information. Argentina
submits that these letters were warnings that the information provided was not sufficient.
40 Argentina
argues that in any case, and even if we were to find that the DCD did not comply with the requirement
to inform the supplying party that its information was rejected as set forth in paragraph 6 of Annex II,
this constituted “harmless error” of a procedural nature which did not cause any prejudice to the
exporters.

40 Argentina refers to pages 29 and 39 of the DCD’s Final Dumping Determination (Exhibit EC-2) in
this respect.

6.18 The EC refutes the procedural and substantive arguments presented by Argentina in defence
of the DCD’s decision to reject the exporters’ info rmation. The EC argues that the exporters fully
cooperated with the DCD and provided very detailed non-confidential summaries. Moreover, the EC
asserts, the exporters provided supporting documentation for the information submitted to the extent
they were requested to do so by the DCD. Finally, the EC argues that the exporters’ questionnaire
replies were submitted in a timely manner and in accordance with domestic procedures. The EC
therefore submits that the DCD was not justified in resorting to the use of best information available
since none of the conditions of Article 6.8 of the AD Agreement applied.
2. Analysis by the Panel
6.19 In considering this issue, we first note that Article 6.8 of the AD Agreement governs the use
by an investigating authority in an anti-dumping inve stigation of the “facts available”. That article
provides as follows:
"In case 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 facts available. The provisions of Annex II shall be observed in
the application of this paragraph".
6.20 It is clear to us, and both parties agree, that an investigating authority may disregard the
primary source information and resort to the facts available only under the specific conditions of
Article 6.8 and Annex II of the AD Agreement.
41 Thus, an investigating authority may resort to the
facts available only where a party: (i) refuses access to necessary information; (ii) otherwise fails to
provide necessary information within a reasonable period; or (iii) significantly impedes the
investigation.
6.21 We recall that Article 6.8 provides that “the provisions of Annex II shall be observed in the
application of this paragraph”. Paragraph 6 of Annex II is highly relevant to the case before us. It
provides as follows:
"6. If evidence or information is not accepted, the supplying party should be
informed forthwith of the reasons therefor, and should have an opportunity to provide
further explanations within a reasonable period, due account being taken of the time-
limits of the investigation. If the explanations are considered by the authorities as not
being satisfactory, the reasons for the re jection of such evidence or information
should be given in any published determinations".
Accordingly, Article 6.8, read in conjunction with pa ragraph 6 of Annex II, requires an investigating
authority to inform the party supplying information of the reasons why evidence or information is not
accepted, to provide an opportunity to provide further explanations within a reasonable period, and to
give, in any published determinations, the reasons for the rejection of evidence or information.
6.22 Argentina advances four bases for its decision to disregard certain information submitted by
the exporters and to resort to the use of facts available. First, Argentina asserts that the exporters
failed to provide complete non-confidential summaries of confidential information submitted by them,
as required by Article 6.5.1 of the AD Agreement. Second, Argentina contends that the exporters
failed to provide sufficient documentation in support of the information provided in their
questionnaire responses. Third, Argentina contends that the exporters failed to comply with the

41 Argentina’s answers to questions from the Panel at the first meeting, question 1, p. 1; EC’s first
written submission, para. 47.

formal requirements of the questionnaire, such as requirements to translate materials into Spanish and
to express value in US$. Finally , Argentina contends that the exporters failed to provide requested
information within a reasonable period.
6.23 The EC notes that the arguments presented by Argentina to justify the DCD’s decision not to
rely exclusively on information concerning normal value and export price provided by the exporters,
are ex post justifications which are nowhere to be fou nd in the DCD’s Final Determination or in any
other documents on the record. Argentina disagrees and asserts that all the arguments it is presenting
are present in the DCD’s determinations or other documents on the record.
6.24 Under the applicable standard of review of Article 17.6 of the AD Agreement, we are to
examine whether the investigating authority properly established the facts and whether its evaluation
of those facts was unbiased and objective. Our review of the measure is based on all the facts on the
record, and we examined both the Final Determination
42 as well as other documents on the record in
order to determine whether the evaluation of the DCD was unbiased and objective. Upon careful
examination, we find that neither in the Final De termination nor in any other document on the record
does the investigating authority explain its evaluation of the information that apparently led it to the
conclusion that it was allowed to disregard the exporters’ information and resort to the use of facts
available. While it is true that the Final Determination contains a discussion of the use of confidential
information as an insufficient basis for the public determination, and the subsequent request for
additional non-confidential summaries, the report does not draw any conclusions from these or other
considerations. With regard to normal value, the report also mentions certain factual considerations
concerning supporting documentation, or problems relating to the reliability of the information
provided. But again, the DCD does not draw any conclusions from these factual considerations in its
report or in any other document on the record. It does not explain anywhere how it evaluated these
facts and what weight it accorded to each of these factual considerations. The DCD merely states
that: “subject to the qualifications mentioned in ea ch item with respect to the merits of the evidence
submitted in general and in particular the evidence se t forth in the item on normal value in Italy, it is
possible to establish the following percentage margins of dumping”
43 and then provides the two sets
of margins of dumping mentioned above, one based in part on exporters’ information concerning
normal value mixed with petitioner and importer information, and a second one not using any of the
information provided by the exporters. In both sets, the information from the exporters concerning
export price is completely disregarded.
6.25 We are mindful of the Appellate Body’s findings in the case of Thailand – Anti-Dumping
Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland
(“Thailand – H-Beams”) that the procedural and due process provisions of Articles 12 and 6 should
not be mistaken for the substantive provisions of the Agreement. However, it is important to recall
that the legal issue before the Appellate Body was:
"whether the terms “positive evidence” and “objective examination” in Article 3.1
require that “the reasoning supporting the determination be ‘formally or explicitly
stated’ in documents in the record of the investigation to which interested parties
(and/or their legal counsel) have access at least from the time of the final

42 In accordance with Article 12 of the AD Agreement this public determination of the authorities is to
set out the finding on fact and law of the authority. Since we have not been asked to rule on the question
whether the explanations provided in the DCD’s Final Determination are sufficient under Article 12 of the AD
Agreement, we will not make any findings as to whether the Final Determination as a public report complies
with the requirements of Article 12 of the AD Agreement.
43 Final Dumping Determination, p. 44. Exhibit EC-2.

determination”, and, further, that “the factual basis relied upon by the authorities must
be discernible from those documents"". (footnotes omitted) 44
6.26 We further note that the Appellate Body stated that:
"[…] The “facts” referred to in Articles 17.5(ii) and 17.6(i) thus embrace “all facts
confidential and non-confidential”, made available to the authorities of the importing
Member in conformity with the domestic procedures of that Member. Article 17.6(i)
places a limitation on the panel in the circumstances defined by the Article. The aim
of Article 17.6(i) is to prevent a panel from “second-guessing” a determination of a
national authority when the establishment of the facts is proper and the evaluation of
those facts is unbiased and objective. Whether evidence or reasoning is disclosed or
made discernible to interested parties by the final determination is a matter of
 procedure and due process . These matters are very important, but they are
comprehensively dealt with in other provisions, notably Articles 6 and 12 of the Anti-
Dumping Agreement.
118. Articles 17.5 and 17.6(i) require a panel to examine the facts made available
to the investigating authority of the importing Member. These provisions do not
prevent a panel from examining facts that were not disclosed to, or discernible by, the
interested parties at the time of the final determination".
45 (emphasis added)
6.27 The question before us, however, is not whether the evaluation of the authority is provided in
a public document or not, but rather whether any such reasoning has been provided in any document
on the record. 46 Under Article 17.6 of the AD Agreement we are to determine whether the DCD

44 Appellate Body Report, Thailand – H-Beams, para. 107.
45 Appellate Body Report, Thailand – H-Beams, paras. 117-118.
46 In the past, this has also been the view of panels reviewing the determination of injury by the
authorities. We refer for example to the report of the Panel in the case Mexico – Anti-Dumping Investigation of
High Fructose Corn Syrup (HFCS) from the United States , WT/DS132/R, adopted 24 February 2000,
para. 7.140. The Panel stated as follows:
"7.140 The final determination reflects no meaningful analysis of a number of the Article 3.4
factors: the Mexican sugar industry's profits, output, productivity, utilization of capacity,
employment, wages, growth, or ability to raise capital.
610 Moreover, there is no analysis of the
condition of the Mexican sugar industry during the period of investigation, or projected for the
near future. It is therefore not possible, by reading the final determination, to understand the
overall condition of the domestic industry with respect to the Article 3.4 factors. Yet without
an understanding of the condition of the industry, it is not possible, in our view, for SECOFI
to have come to a reasoned conclusion, based on an objective evaluation of the facts,
concerning the likely impact of dumped imports. Such a conclusion must, in our view, reflect
the projected impact of further imports on the particular domestic industry, in light of its
condition. In order to conclude that there is a threat of material injury to a domestic industry
that is apparently not currently injured, despite the effects of dumped imports during the
period of investigation, it is necessary to have an understanding of the current condition of the
industry as a background".
610There is some information concerning some of these elements reflected in the
determination. However, the mere recitation of data does not constitute explanation, or
findings and conclusions, sufficient to satisfy the requirements of Article 12.2 of the
AD Agreement. Mexico also pointed to certain working papers in the administrative file
which contain information on certain of the Article 3.4 factors. However, unless
consideration of a factor is reflected in the final determination, we do not take cognizance of

established the facts properly and whether the evaluation performed by the DCD was unbiased and
objective. In other words, we are asked to review the evaluation of the DCD made at the time of the
determination as set forth in a public notice or in any other document of a public or confidential
nature. We do not believe that, as a panel reviewing the evaluation of the investigating authority, we
are to take into consideration any arguments and reasons that did not form part of the evaluation
process of the investigating authority, but instead are ex post facto justifications which were not
provided at the time the determination was made.47
6.28 We find that the DCD failed to provide any evaluation of the facts on the record that could
have formed the basis for its apparent decision to disregard in large part the information provided by
the exporters. We consider that on this basis alone we could have reached the conclusion that the
DCD failed to perform an objective and unbiased evaluation of the facts. Nevertheless, for the sake of

underlying evidence in the record. See Korea – Resins Panel Report , paras. 210, 212,
Argentina – Footwear Safeguard Panel Report , para. 8.126. Moreover, as discussed further
below, SECOFI’s references to this information are limited to a discussion of that part of
domestic production of sugar sold in the industrial market.
47 We note that our view is similar to that of the Panel in the case of Guatemala – Cement (II) which
stated as follows:
"8.245. Before determining whether the Ministry was justified in having recourse to the “best
information available” for the purpose of calculating normal value, we note that Guatemala's
justification for the Ministry's use of “best information available” does not correspond to that
provided by the Ministry in its final Resolution of 17 January 1997. In that Resolution, the
Ministry considered that:
the information submitted by the exporter cannot be taken into account when calculating the
normal value of the product investigated because it could not be verified and the technical
accounting evidence submitted by the exporter on 18 December 1996 (confidential
information) could not replace verification of th e information by the Guatemalan investigating
authority, as required by Article 6.6 of the Anti-Dumping Code (emphasis supplied, footnote
omitted).
Thus, the Ministry clearly based its recourse to the “best information available” on its inability
to verify the data submitted by Cruz Azul. The Ministry did not, according to its final
Resolution, rely on the “best information availa ble” because of Cruz Azul’s failure to provide
certain sales and cost data, as alleged by Guatemala in these Panel proceedings. Even if the
additional factors identified by Guatemala before the Panel could justify the use of “best
information available”, such ex post justification by Guatemala should not form part of our
assessment of the conduct of the Ministry leading up to the imposition of the January 1997
definitive anti-dumping measure. The issue before us is whether the Ministry complied with
the AD Agreement. In examining that issue, we shall confine ourselves to the reasoning
provided by the Ministry in its determinations. We note that this approach is similar to that
adopted by the panel in Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, which ignored explanatory statements made in Korea’s first submission to the panel
that were not reflected in the Korean authorities' analysis at the time of the investigation".
(footnotes omitted);
Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico
(“Guatemala – Cement (II)”) , WT/DS156/R, adopted 17 November 2000, para. 8.245. We note that the Panel
in this case nevertheless continued to discuss the ex post justifications given by Guatemala and found that even
if its findings were to have been based on those justifications, the authorities would still not have been entitled
to use facts available. (Panel report, Guatemala – Cement (II), para. 8.254.)

completeness, we will continue our analysis and di scuss the arguments presented by Argentina in its
submissions to the Panel in defence of the DCD’s decision to disregard the exporters’ information.
(a) Confidentiality of the information submitted and the failure to provide non-confidential
summaries
6.29 Argentina argues that in order to reach objective and valid conclusions, an investigating
authority may base its determination on confidential information only if a sufficiently detailed
summary of this information is provided in accordance with Article 6.5.1 of the AD Agreement. 48
According to Argentina, the exporters failed to provide complete non-confidential summaries.
Argentina submits that the summaries provided for certain annexes of the questionnaire relating to
normal value and export price information (Annexes VII-XI) were not sufficiently detailed so as to
permit a reasonable understanding of the substance of the information, and could therefore not be
used by the DCD as a basis for its final determination. 49 Moreover, Argentina asserts, even after the
declassification of the information concerning product codes and cost of production, substantial
information to determine normal value and export price remained confidential. Further, Argentina
argues that the exporters failed to provide sufficiently detailed public summaries with regard to
certain other essential questionnaire annexes (Annexes IV, V and VI). 50 According to Argentina, by
failing to provide sufficiently detailed non-confidential summaries, the exporters withheld necessary
information and significantly impeded the investigation, and the DCD was therefore allowed under
Article 6.8 to resort to facts available.
6.30 The EC considers that the exporters fully cooperated with the investigating authority and,
instead of merely providing a detailed non-confidential summary, even disclosed all of the relevant
confidential information. The EC also takes issue with Argentina’s argument that in the absence of a
detailed non-confidential summary the authorities are not to rely on the confidential information
submitted. In sum, the EC argues, the DCD was not entitled to resort to facts available for reasons
relating to the confidentiality of the information supplied.
6.31 We note that, in effect, Argentina argues that an investigating authority may not base its
determination on confidentially submitted exporter information. Argentina contends that unless a
non-confidential summary is provided that is sufficiently detailed to permit the calculation of normal
value, export price and the margin of dumping
51 confidential information may not form the basis for
the authority’s determination.52 Therefore, Argentina argues, the failure to provide such a detailed
non-confidential summary amounts to a refusal to provide access to information that is necessary for
the authority in the determination of a dumping margin determination.
6.32 In considering this question, we first look to the text of Article 6.5 of the AD Agreement,
which is the key provision with regard to the protection of confidential information. Article 6.5
provides as follows:
"6.5 Any information which is by nature confidential (for
example, because its disclosure would be of significant competitive

48 Argentina’s answers to questions from the Panel at the first meeting, question 3, p. 15.
49 Argentina’s oral statement at the first meeting, para. 18.
50 Argentina’s first submission, paras. 19-21.
51 Argentina’s answers to questions from the Panel at the first meeting, question 7, page 17.
52 According to Argentina, "confidentiality imposes a limit on the authority by preventing it from
relying on public elements that can be invoked agains t the parties or third partie s, particularly when the
information in question is not accompanied by non-conf idential summaries in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in confidence and hence to allow the
determination reached, which must be public, to be backed ". Argentina's answers to questions from the Panel at
the first meeting, question 3, p. 16.

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),
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 without specific
permission of the party submitting it.
17
6.5.1 The authorities shall require interested parties
providing confidential 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 indicate 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.
6.5.2 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 in formation public or to authorize 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".
18
17
Members are aware that in the territory of certain Members disclosure pursuant to a
narrowly drawn protective order may be required.
18
Members agree that requests for confidentiality should not be arbitrarily rejected.
6.33 Article 6.5 of the AD Agreement thus requires an investigating authority to treat information
which is by nature confidential or which is provided on a confidential basis as confidential
information and prescribes that such information shall not be disclosed without specific permission of
the party submitting it.
6.34 In our view, the presence in the AD Agreement of a requirement to protect confidential
information indicates that investigating authorities might need to rely on such information in making
the determinations required under the AD Agreement. The AD Agreement therefore contains a
mechanism that allows parties to provide investig ating authorities with such information for the
purposes of making their determinations, while ensuring that the information is not used for other
purposes. In accordance with the accepted principles of treaty interpretation, we are to give meaning
to all the terms of the Agreement. 53 It would be contradictory to suggest that the AD Agreement
creates a mechanism for the protection of confidential information, but precludes investigating
authorities from relying on such information in making its determinations. If that were the case, then
there would be no reason for the investigating authority to seek such information in the first place.

53 As the Appellate Body noted in the case of United States – Standards for reformulated and
Conventional Gasoline, “one of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is
that interpretation must give meaning and effect to all terms of the treaty. An interpreter is not free to adopt a
reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.”
Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline,
WT/DS2/AB/R, adopted on 20 May 1996, p. 21.

6.35 We find confirmation for this conclusion in Article 12 of the AD Agreement, which sets forth
requirements regarding the contents of public notices:
"12.2.1 A public notice of the imposition of provisional measures
shall set forth, or otherwise make available through a separate report,
sufficiently detailed explanations for the preliminary determinations
on dumping and injury and shall refer to the matters of fact and law
which have led to arguments being accepted or rejected. Such a
notice or report shall, due regard being paid to the requirement for
the protection of confidential information, contain in particular:
(i) the names of the suppliers, or when this is impracticable, the
supplying countries involved;
(ii) a description of the product which is sufficient for customs
purposes;
(iii) the margins of dumping established and a full explanation of
the reasons for the methodology used in the establishment and
comparison of the export price and the normal value under Article 2;
(iv) considerations relevant to the injury determination as set out
in Article 3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an
investigation in the case of an affirmative determination providing
for the imposition of a definitive duty or the acceptance of a price
undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and
law and reasons which have led to the imposition of final measures
or the acceptance of a price undertaking, due regard being paid to the
requirement for the protection of confidential information. In
particular, the notice or report shall contain the information described
in subparagraph 2.1, as well as the reasons for the acceptance or
rejection of relevant arguments or claims made by the exporters and
importers, and the basis for any decision made under subparagraph
10.2 of Article 6". (emphasis added)
6.36 Thus, the transparency requirement which obligates the authority to explain its determination
in a public notice is subject to the need to ha ve regard to the requirement for the protection of
confidential information of Article 6.5 of the AD Agreement. Confidentiality of the information
submitted therefore limits the manner in which the authority explains its decision and supports its
determination in a public notice. In sum, Article 12 implies, to our mind, that an investigating
authority may rely on confidential information in making determinations while respecting its
obligation to protect the confidentiality of that information.
6.37 We find support for our view in a recent Appellate Body Report on Thailand – Anti-Dumping
Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland
(“Thailand – H-Beams”) which addressed the question of the use of confidential information by the
investigating authority as a basis for its final determination. The Appellate Body stated that:

"An anti-dumping investigation involves the commercial behaviour of firms, and,
under the provisions of the Anti-Dumping Agreement, involves the collection and
assessment of both confidential and non-confidential information. An injury
determination conducted pursuant to the provisions of Article 3 of the Anti-Dumping
Agreement must be based on the totality of that evidence. We see nothing in
Article 3.1 which limits an investigating auth ority to base an injury determination
only upon non-confidential information".
54
6.38 We are aware that, for the purpose of transparency, Article 6.5.1 obliges an authority to
require the parties providing confidential information to furnish non-confidential summaries which
shall be in sufficient detail to permit a reasonable understanding of the substance of the information
submitted in confidence. We consider that this is an important element of the AD Agreement which
reflects the balance struck by the Agreement between the need to protect the confidentiality of certain
information, on the one hand, and the need to ensure that all parties have a full opportunity to defend
their interests, on the other. However, we see nothing in Article 6.5.1, nor elsewhere in Article 6.5,
that authorizes a Member to disregard confidential information solely on the basis that the non-
confidential summary of that information contains in sufficient detail to permit authorities to calculate
normal value, export price and the margin of dumping.
55
6.39 Consistent with our view that authorities may rely on confidential information in making their
determination, the purpose of the non-confidential summaries provided for in Article 6.5.1 is to
inform the interested parties so as to enable them to defend their interests. We do not consider that
the purpose of the non-confidential summaries is to enable the authorities to arrive at public
conclusions, as Argentina contends. 56 Thus, an authority would not in our view be justified in
rejecting the exporters’ responses simply because the information in the non-confidential summaries
was not sufficient to allow the calculation of normal value, export price, and the margin of dumping.
6.40 Turning now to the facts of this case, we consider that, even if the DCD had been entitled
under Article 6.8 to resort to the facts available in a case where the exporters failed to declassify
confidential information concerning normal value and export price or to provide adequate non-
confidential summaries thereof, we find no factual basis on the record for Argentina’s assertion before
us that the exporters did not respond fully to the DCD’s request for the declassification of the
confidential information and failed to provide adequate non-confidential summaries thereof.
6.41 The events concerning confidentiality of the information and the requests for non-confidential
summaries are summarized in the DCD’s Final Determination.
57 The DCD states that for most of the
information provided in their questionnaire reply the exporters requested confidentiality. In its report,
the DCD further explains that on 30 April 1999 the DCD sent letters to the firms in question
requesting the exporting firms to consider providing a more detailed non-confidential summary than
that already provided in the questionnaire replie s, to elaborate on the information supplied, or to
remove the requested confidentiality that had been granted by the investigating authority so that the
authority would have the information it required to reach a public conclusion to the investigation.
More specifically, information on sales in the Italian market (Annex VIII) and the cost structure of the
goods in the domestic Italian market (Annex X) was requested. On 4 June 1999, the exporting firms

54 Appellate Body Report, Thailand – H-Beams, para. 107.
55 We note that Article 6.5.2 of the AD Agreement specifically provides for a situation in which the
authorities may disregard confidentially submitted informatio n: in case the authorities consider that a request for
confidentiality is not warranted and the supplier of the information is either unwilling to make the information
public or to authorize its disclosure in generalized or summary form. We note, however, that the DCD
considered the request for confidential treatment was wa rranted and treated the information as such. Argentina
has not invoked Article 6.5.2 as a justification for the DCD’s rejection of the exporters’ information either.
56 Argentina's answers to questions from the Panel at the first meeting, question 5, p. 16.
57 Final Dumping Determination, pages 25-27. Exhibit EC-2.

submitted public and confidential information concerning domestic sales of the product concerned
with conversion tables that were submitted as confidential information. On 7 June 1999, Bismantova
and Casalgrande further submitted as confidential information sales invoices relating to the Italian
domestic market. By its letters of 22 June 1999 and 3 August 1999, the DCD requested the exporting
firms to reconsider the requested confidentiality of the information concerning product codes and the
production costs or else to provide a sufficiently detailed non-confidential summary, so that the
authority could issue a precise determination in its fi nal report as to the existence of an unfair trade
practice. The DCD’s report acknowledges
 that the exporting firms agreed by letters of 23 and 24 June
that the product code item could be made non-confidential. On 10 August 1999, the exporting firms
further agreed to remove the confidentiality of the item concerning cost of production provided that
the names of the companies relating to each cost structure were not revealed.
6.42 In light of the contradictory arguments presented by the parties before us, we sought further
clarification of this matter. From the parties’ replies to our questions, we conclude that the record
shows that the exporters requested confidential trea tment for most of the information provided in the
questionnaire replies. In particular, confidential treatment was requested concerning information of a
more general nature concerning the home market of the exporters and their sales performance both in
volume and in value terms. This information contained in the following annexes of the questionnaire
reply was presented in indexed form in a non-confidential summary submitted together with the
confidential questionnaire reply:
58
- the producers/exporters’ home market (Annex IV);
- summary of producers/exporters’ sales (physical volume) (Annex V);
- summary of producers/exporters’ sales (value) (Annex VI).
6.43 In the course of the investigation, the DCD never suggested that it was dissatisfied with the
information presented in indexed form, nor did it suggest that this summary was not sufficiently
detailed.
6.44 The exporters also requested that the information concerning normal value, export price and
cost of production be given confidential treatment. At the time of the original questionnaire reply on
10 December 1998, the exporters did not provide a meaningful non-confidential summary for the
information concerning:
- list of importers (Annex III);
- exports to Argentina (Annex VII);
- sales made in the domestic (Italian) market (Annex VIII);
- exports to third countries (Annex IX);
- cost structure of products sold in the domestic market (Annex X);
- cost structure of products when exported (Annex XI).
6.45 In its preliminary determination of dumping, the DCD expressed the view that the
confidentiality of the information was a limiting factor and that it implied a restricted and differential

58 The non-confidential summaries of these annexes were submitted by Argentina as Exhibit ARG-24.

treatment of this information. 59 By letter of 30 April 1999, the DCD requested that a more detailed
non-confidential summary be provided or that the request for confidential treatment with regard to
these six annexes (III, VII, VIII, IX, X, XI) be waived. In a follow-up meeting of exporters with the
case-handlers on 11 May 1999, it was agreed that more detailed summaries be provided for Annexes
VII, VIII and IX.60
6.46 On 4 June 1999, the exporters submitted non-confidential summaries of the information of
Annexes VII, VIII and IX, in the format agreed upon at the meeting of the exporters with the case-
handlers on 11 May 1999, replacing the names of the products with a code and attaching a
confidential conversion table in which the codes are explained.61 On 7 and 10 June 1999, Bismantova
and Casalgrande provided confidential copies of invoices of their domestic and export sales, as had
been agreed during the meeting of 11 May 1999.
6.47 On 22 June 1999, the DCD sent a second letter to the exporters in which it requested that the
product code information be declassified. On 24 June 1999, the exporters agreed to make the product
codes public. On 3 August 1999, the DCD made an additional request to declassify or provide a more
detailed summary of information on the cost structure of the domestically sold products (Annex X)
and of the products when exported to Argentina (Annex XI). Such information was provided on
10 August 1999, as the exporters agreed to remove the confidentiality of the item concerning cost of
production, provided that the names of the companies relating to each cost structure were not
revealed.
6.48 The non-confidential summaries of Annexes IV, V and VI presented the information in
indexed form, permitting a reasonable understanding of the substance of the confidential information.
This appears also to have been the opinion of the investigating authority which, in the course of the
investigation, never requested a more detailed public summary for these three annexes. The
remainder of the confidential information (with rega rd to normal value and export price information
as well as data concerning cost of production, Annexes VII-XI) was declassified by the exporters
upon the request of the DCD and the only difference between the public and the confidential
information related to the names of customers and the precise identity of the exporter whose cost of
production information was being reported. We consider that such a non-confidential “summary”
contained all the information the DCD would have needed to calculate normal value, export price and
the margin of dumping, and therefore clearly permitted a reasonable understanding by the interested
parties of the substance of the confidential information.
6.49 In conclusion, we find that following the preliminary determination the issue of non-
confidential summaries was resolved by the positive replies of the exporters to the repeated requests
for declassification of the information by the DCD. The facts on the record demonstrate that non-
confidential summaries were provided for all the confidential information. Therefore, leaving aside
the question of whether the failure to furnish non-confidential summaries which satisfy the
requirements of Article 6.5.1 could in any case justify the application of the facts available under
Article 6.8 of the AD Agreement, we find that, in th is case, the exporters did provide such detailed
non-confidential summaries and declassified most if not all of the confidential information concerning
normal value and export price. Accordingly, we find that the DCD was not justified in law or in fact
in disregarding in large part the informati on from the exporters for reasons relating to the
confidentiality of the information.

59 Preliminary Dumping Determination, pages 34-35. Exhibit ARG-8.
60 Report of Ecolatina of the meeting with the case-handlers, Exhibit EC-10; EC’s answers to questions
from the Panel at the first meeting, question 6, para. 27.
61 Exhibit EC-12 provides an example. We note that the information in the confidential and non-
confidential documents appears identical apart from product codes and customer codes.

6.50 We further recall our conclusion in paragraph 6.21 that Article 6.8 read in conjunction with
paragraph 6 of Annex II, requires an investigating authority to inform the party supplying information
of the reasons why evidence or information is not accepted, to provide an opportunity to provide
further explanations within a reasonable period, and to give, in any published determinations, the
reasons for the rejection of evidence or information. We find that the DCD never informed the
exporters that their information was going to be rejected for this reason, as required by that provision.
As discussed above, the requests for declassification of the information contained in the three letters
sent by the DCD were all complied with, and the exporters could therefore legitimately have assumed
that their information was not going to be rejected for reasons relating to the confidentiality of the
information. Neither were the reasons for the rejec tion of such evidence or information given in any
published determinations, as required by paragraph 6 of Annex II. We therefore find that the DCD
also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.
(b) Lack of documentary evidence
6.51 Argentina argues that the exporters failed to provide sufficient supporting documentation, in
spite of being explicitly requested to do so on numerous occasions by the DCD both in the
questionnaire and in subsequent letters to the export ers. According to Argentina, the exporters failed
to meet even the minimum requirement of providing a statistically valid sample of invoices for their
domestic sales’ information.
62 Argentina submits that the DCD was allowed to resort to facts available
since the required supporting documentation which was necessary to prove the reliability of the
information and which was explicitly requested, was not provided by the exporters. In addition,
Argentina argues, this refusal to provide the required documentary evidence significantly impeded the
investigation.
6.52 The EC contests Argentina’s argument that the exporters failed to provide the requested
supporting documentation. The EC asserts that the exporters were not requested to provide any
supporting documentation until very late in the inve stigation. According to the EC, the exporters
were informed only towards the end of the investigation that no verification visit was going to take
place and that the DCD required certain exporters to supply supporting documentary evidence
instead.
63 The EC argues that the exporters complied with the request and that therefore the DCD was
not justified in resorting to facts available for failure to provide supporting documentation.
6.53 The question before us is whether the DCD was entitled to resort to facts available because of
the alleged failure of the exporters to provide sufficient supporting documentation. 64 We recall our
view that, under Article 6.8, resort to the facts available is authorized only where a party refuses
access to, or otherwise does not provide, necessary information, or where a party significantly
impeded the investigation. Thus, the question before us is whether the DCD acted consistently with
Article 6.8 by resorting to facts available on the grounds that the exporters allegedly failed to provide
sufficient supporting documentation.
6.54 In considering this question, we first observe that a basic obligation concerning the evidence-
gathering process is for the investigating authori ties to indicate to the interested parties the
information they require for their determination. This obligation is set forth in Article 6.1 of the AD
Agreement which states as follows:

62 Argentina refers in this respect to the lack of representativeness of the supporting documentation
concerning domestic sales of the exporters which covered only 1.92 per cent of total domestic sales made by the
sampled exporters. Final Dumping Determination, p. 29. Exhibit EC-2.
63 The EC emphasizes that the exporters were willing to accept any verification visits of the DCD.
64 We note that the facts on the record referred to by Argentina in support of its argument only relate to
the lack of documentary evidence of the domestic sales information, and not with regard to the information
provided by the exporters concerning export price. Nevertheless, as was noted above, the export price
information supplied by the exporters was completely disregarded.

"All interested parties in an anti-dumping investigation shall be given notice of the
information which the authorities require and ample opportunity to present in writing
all evidence which they consider relevant in respect of the investigation in question".
Article 6.1 of the AD Agreement thus requires that interested parties be given notice of the
information which the authorities require. In our view, it follows that, independently of the purpose
for which the information or documentation is requ ested, an investigating authority may not fault an
interested party for not providing information it was not clearly requested to submit.
6.55 This consideration is particularly relevant to the question of whether an authority is justified
in resorting to the use of facts available under Article 6.8 of the AD Agreement. Paragraph 1 of
Annex II of the AD Agreement on the “Use of Best Information Available in Terms of Paragraph 8 of
Article 6” reiterates the obligation of Article 6.1. It states that:
"1. As soon as possible after the initiation of the investigation, the investigating
authorities should specify in detail the information required from any interested party,
and the manner in which that information should be structured by the interested party
in its response. The authorities should also ensure that the party is aware that if
information is not supplied within a reasonable time , the authorities will be free to
make determinations on the basis of the facts available, including those contained in
the application for the initiation of the investigation by the domestic industry".
(emphasis added).
Thus, the first sentence of paragraph 1 requires the investigating authority to "specify in detail the
information required", while the second sentence re quires it to inform interested parties that, if
information is not supplied within a reasonable time, the authorities may make determinations on the
basis of the facts available. In our view, the inclusion, in an Annex relating specifically to the use of
best information available under Article 6.8, of a requirement to specify in detail the information
required, strongly implies that investigating authorities are not entitled to resort to best information
available in a situation where a party does not provide certain information if the authorities failed to
specify in detail the information which was required.
6.56 We recall that the documentary evidence in this case appears to have been required in order to
verify the information supplied by the exporters in their questionnaire replies since the DCD decided
not to conduct any on-the-spot verification in Italy. In the context of this factual situation, we find
further confirmation for the view that an investigat ing authority may not resort to facts available due
to failure of a party to provide information that was not clearly requested in Articles 6.6 and 6.7 of the
AD Agreement, which relate to the question of verification of information. They provide as follows:
"6.6 Except in circumstances provided for in paragraph 8, the authorities shall
during the course of an investigation satisfy themselves as to the accuracy of the
information supplied by interested parties upon which their findings are based.
6.7 In order to verify information provided or to obtain further details, the
authorities may carry out investigations in the territory of other Members as required,
provided they obtain the agreement of the firms concerned and notify the
representatives of the government of the Member in question, and unless that
Member objects to the investigation. The procedures described in Annex I shall
apply to investigations carried out in the territory of other Members. Subject to the
requirement to protect confidential information, the authorities shall make the results
of any such investigations available, or shall provide disclosure thereof pursuant to
paragraph 9, to the firms to which they pertain and may make such results available
to the applicants".

6.57 Article 6.6 of the AD Agreement thus places the burden of satisfying oneself of the accuracy
of the information on the investigating authority. As a general rule, the exporters are therefore
entitled to assume that unless otherwise indicated they are not required to also automatically and in all
cases submit evidence to demonstrate the accuracy of the information they are supplying. We note
that in this case, all four exporters stated that they were willing to accept any kind of verification
visits. The DCD decided however not to conduct such an on-the spot-verification. 65 We believe that
if no on-the-spot verification is going to take place but certain documents are required for verification
purposes, the authorities should in a similar manner inform the exporters of the nature of the
information for which they require such evidence and of any further documents they require.
6.58 For the foregoing reasons, we conclude that an investigating authority may not disregard
information and resort to facts available under Article 6.8 on the grounds that a party has failed to
provide sufficient supporting documentation in respect of information provided unless the
investigating authority has clearly requested that the party provide such supporting documentation.
6.59 In light of this conclusion, the first question we address is whether the DCD clearly informed
the exporters that they were required to submit supporting documentation and the kind of information
requested. We examined the requests to provide supporting documentation in the questionnaire on
which Argentina bases its argument. We find that these requests are very vague and general in nature
and are made in the general introductory part of the questionnaire setting out the goals and objectives
of the questionnaire and in the section entitled “General Instructions”.
6.60 In the section on goals and objectives, the questionnaire indicates that “the producer/exporter
shall be required to reply to this questionnaire as precisely as possible, attaching supporting
documents for its replies, or in case this is not possible, indicating the source of the information”
66
Similarly, the general instructions of the questionnaire state that: “1. The exporter is required to
mention on each of the pages it presents, the case number, and is to reply to all questions in a detailed
manner and to give information with regard to the sources used, attaching as a necessary condition to
back up the veracity of the source, the corresponding documentation.” A final reference to the need to
provide supporting documentation is found in Section B of the questionnaire which relates to export
price information. It requires the party supplying the information to provide “that information to be
provided that assists the authority in getting a bett er understanding of the transaction be it through a
buy order, sales contracts, commercial invoices, credit notes, …, etc.”
67
6.61 We note that point 7 of the general instructions section of the questionnaire also provides that
all information may be subject to verification by th e authority. In this respect, the questionnaire
provides that in the case where such verification takes place the exporters will be informed which
documentation it will have to put at the disposal of the verification team. The exporters are requested
to express their willingness to accept such verification visits. All exporters agreed to such verification
visits.
68

65 There does not exist a requirement in the Agreement to carry out investigations in the territory of
other Members for verification purposes. Article 6.7 of the AD Agreement merely provides for this possibility.
While such on-site verification visits are common practice, the Agreement does not say that this is the only way
or even the preferred way for an investigating authority to fulfill its obligation under Article 6.6 to satisfy itself
as to the accuracy of the information supplied by interested parties on which its findings are based.
66 We note that the questionnaire thus actually allowed exporters the choice of either providing
supporting documentation or identifying the sources of the data reported (presumably to facilitate verification,
see ARG-5, p. 2). We are aware of at least one exporter, Casalgrande, which complied with the second
possibility, as it identified in its questionnaire response the sources of the information reported (Exhibit EC-4,
pp. 16-17).
67 Exhibit ARG-5.
68 Exhibit ARG-5, p. 4.

6.62 At the time of the preliminary determination, no supporting documentation (e.g. invoices,
orders, price lists) had been submitted by the exporters. After the preliminary determination the DCD
sent a letter to the exporting firms in the context of the above discussed need for additional public
information. This letter of 30 April 1999 69 also mentions the question of supporting documents. It
states that: “We therefore request the cooperation of the firm you represent, since it is of the utmost
importance for the analysis being conducted by the DCD based on the inclusion of fresh evidence or
the adaptation of the information already in the re cord in order to ensure that the implementing
authority has information that enables it to reach a public conclusion on the matter at issue.”
70
6.63 Argentina refers to two other letters of 22 June 1999 71 and 3 August 1999 72 which the DCD
sent to the exporters with a request to declassify certain information in support of its argument that on
several occasions throughout the investigation the DCD requested to be provided with additional
supporting documents. We find however that these two later letters do not in any way refer to the
need for supporting documents at all. They are requests for declassification.
6.64 The EC states that during the 11 May 1999 meeting with the case-handlers, the exporters
were for the first time informed that the DCD wa s not going to conduct an on-the-spot verification.
At that meeting, the EC asserts, the exporters or at least the two major exporters, Casalgrande and
Bismantova, were requested to provide copies of the invoices covering an important number of
sales.
73 The EC argues that, in response to this request, the exporters concerned submitted copies of
invoices covering approximately 50 per cent of the sales in Italy and to Argentina and third
countries.74 Argentina, however, submits that the DCD, in its final determination, found that the
supporting documentation provided by the four exporting companies with regard to the information
supplied concerning domestic sales of the product concerned only covered about 1.92 per cent of the
total volume of domestic sales made by these four sampled exporters. We requested further
clarification from Argentina on how the DCD calculated this figure in light of the statement of the
exporters that they were submitting a large number of sales invoices. Argentina argued that for
reasons relating to the confidentiality of the information it was unable to provide the numerical
calculations made.
75 After the submission of the invoices by the two largest Italian exporters, the
DCD did not make any further request for additional supporting documentation.

69 Exhibit ARG-7.
70 Exhibit ARG-7.
71 Exhibit ARG-10.
72 Exhibit ARG-11.
73 EC’s second written submission, para. 39. According to the report of this meeting by the
representative of the Italian exporters in Argentina, Ecolatina (Exhibit EC-10), the following request was made:
"Additionally, this information must cover an “important" part of total sales in the domestic market (you said
50 per cent – I don't know, I guess that is largely enough), the coverage must be September 1997 – October
1998, and we have to present invoices (with confidential status) supporting this non-confidential version".
74 The DCD’s Final Dumping Determination also reports that Bismantova and Casalgrande, on 7 June
1999 and 10 June 1999 respectively, submitted copies of invoices concerning sales in the domestic market as
well as export sales. Final Dumping Determination, pages 26, 36. Exhibit EC-2. We note that the submission
of the invoices is mentioned in the DCD report as part of the account of events concerning confidential
information and the requests for more detailed non-confidential summaries or the declassification of the
information.
75 Argentina’s answers to questions from the panel at the second meeting, question 8, p. 4. Argentina
replied that “as already stated on several occasions, the implementing authority interrelated the information
available in the questionnaires provided in the course of the proceedings, and concluded that the documentation
supplied covered that percentage in relation to total sales on the Italian domestic market. Unfortunately, this is a
good example of the limitations facing the implementing authority as a result of the request for confidentiality of
the information provided. In this case, the Argentine authority is limited in the reply it can give to the question,
in that it cannot reveal the numerical calculation made, but for the purposes of that calculation, it considered the
information corresponding to the aggregate total amount of sales reported for the Italian domestic market by the

6.65 We note that the DCD in its Final Determination stated that:
"The sample documentation relating to sales on the Italian domestic market supplied
by all of the manufacturing export companies concerned in the case – and as affirmed
at the time of their participation in the proceedings by the National Association of
Italian Ceramic Tile and Refractories Manufacturers (Assopiastrelle), of which these
firms are members, they are major representatives of the Italian porcellanato
production market – covers no more than approximately 1.92 per cent of the physical
volume (m
2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the
domestic market according to the information duly supplied".
This statement of fact in the Final Determination forms the basis for Argentina’s argument that the
DCD was justified to resort to the facts available under Article 6.8. We note that the DCD did not
draw any conclusions from this factual consideration concerning the representativeness of the normal
value information submitted by the exporters.
76
6.66 In light of the ambiguity of the questionnaire regarding documentary evidence and given that
the verification methodology to be used was not clearly indicated, some precision by the DCD as to
what supporting documentation was expected from the exporters was necessary. We are of the view
that the very general references to the need to provide supporting documentation in the introductory
section of the questionnaire did not meet this requirement. Neither do we consider the one general
reference in the letter of 30 April 1999 to the need for new probative elements expressed in the
context of a request to declassify certain information or provide more detailed public summaries
thereof to be a sufficient notice to the exporters to provide documentary evidence. Therefore, and
especially in light of the complex nature of the kind of information that might be needed to
demonstrate the accuracy of certain information, we do not consider that any clear request for
supporting documentation was made to the exporters. We further do not believe that, independent of
any clear request, an interested party is required to provide any particular number of documents to
support the information supplied. At the meeting of 11 May 1999, the case-handlers requested at least
some exporters to provide certain supporting documentation. The exporters concerned supplied the
requested documentation and were never informed by the DCD that the documentation provided was
insufficient or that their understanding of the DC D’s request was incorrect. We therefore are unable
to accept Argentina’s argument that the exporters significantly impeded the investigation or refused
access to necessary information by not providing more supporting documentation. We find that the
DCD was not justified in disregarding in large part the information supplied by the exporters for this
reason.
6.67 We further recall our conclusion in paragraph 6.21 that Article 6.8 read in conjunction with
paragraph 6 of Annex II, requires an investigating authority to inform the party supplying information
of the reasons why evidence or information is not accepted, to provide an opportunity to provide
further explanations within a reasonable period, and to give, in any published determinations, the
reasons for the rejection of evidence or information. In this case, the exporters were never informed
that in the absence of a certain number of supporting documents their information was going to be

four firms in relation to the total obtained from the documentation contributed by those firms during the
proceedings”.
76 In its second submission to the Panel, Argentina summarized its conclusion of this paragraph of the
DCD's report in the following manner: “We repeat that upon examining the supporting documentation –
submitted late and at the DCD’s specific request – the authority found that the firms making up the sample
proposed by Assopiastrelle itself only represented approximately 1.92 per cent of the physical volume (m
2) and
1.35 per cent of the total estimated value (in Italian lire) of sales on the domestic market.” Argentina's second
written submission to the Panel, para. 25. Other explanations have been offered by Argentina in the course of
the proceedings. In light of our finding on this issue in para. 6.65, we believe it is only necessary to understand
that the DCD was not satisfied as to the completeness of the responses regarding sales in the Italian market.

rejected, much less were they provided an opportunity to offer further explanations. Nor were the
reasons for the rejection of such evidence or information given in any published determinations. We
therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD
Agreement.
(c) Failure to comply with formal requirements of the questionnaire
6.68 Argentina argues that certain exporters provided information in Italian lire and not in US$ as
requested by the questionnaire. Argentina further submits that three of the four exporters 77 failed to
provide a Spanish translation of their balance sheets while the exporters were clearly informed both in
the general instructions of the questionnaire and in th e follow-up letter of 30 April 1999 that all their
information needed to be translated into Spanish in order for it to be taken into consideration.
Argentina submits that the unjustified refusals to provide the information in US$ and properly
translated into Spanish significantly impeded the investigation. Finally, Argentina argues that two
exporters, Caesar and Marazzi, refused to provide the requested information with regard to exports to
third countries (Annex IX of the questionnaire), and that Marazzi also failed to provide any
information with regard to the cost structure for the exported goods (Annex XI). Argentina submits
that these firms thus refused to provide access to necessary information.
6.69 The EC argues that the exporters complied with all the formal requirements of the
questionnaire. The EC acknowledges that certain individual exporters did not provide a translation of
their balance sheets, but argues that this constituted a minor omission which could not have justified
disregarding all of the exporters’ information.
6.70 The facts on the record show that in fact only one exporting company, Bismantova, provided
certain information in one annex of the questionnaire reply in Italian lire rather than in US$. This
exporting company moreover provided the relevant exchange rates together with the information.
The fact that this company did not provide the information directly in US$ as required, according to
the questionnaire’s instructions, in our view, does not amount to significantly impeding the
investigation, nor did it constitute in this case a failure to provide necessary information.
6.71 We further consider that in general it is important that translations be provided whenever
requested. However, the facts of this case indicate that what was not translated were certain lines of
the balance sheets of three of the four exporting companies. We do not believe that this absence of
translation of a balance sheet significantly impeded the investigation. We note that the translation
which was provided by one of the exporting companies of its balance sheet was accepted while it
contained only a minor translation from Italian into Spanish of two terms of the balance sheet.
78 We
do not believe that the DCD was justified in disregarding the exporters’ information because of this
minor omission on the part of the exporters to translate certain parts of the balance sheets, as this did
not significantly impede the investigation.
79
6.72 With regard to the two exporters which did not provide information under certain of the
questionnaire’s annexes, we note that the questionnaire explicitly allowed the exporters not to provide
such information if there existed sufficient domestic sales made in the ordinary course of trade. The
two exporting firms concerned, Caesar and Marazzi, expressly relied on this possibility. 80 It appears
that Marazzi did not refuse to provide informatio n under Annex XI either (cost of production for the
subject product when exported), but rather it replied that the costs for domestically sold and exported

77 Marazzi is the only exporter that did provide such a translation of its balance sheet.
78 Exhibit EC-13.
79 We note that most of the information which the DCD used as the facts available also lacked any
translations, which did not prevent the DCD from using this information as a basis for its determination.
80 Preliminary Dumping Determination, pages 15 and 18. Exhibit ARG-8

products did not differ, except for differences in selling expenses.81 Based on the facts of this case, we
find that an unbiased and objective evaluation of these facts would have led the authority to the
conclusion that these omissions do not amount to a refusal to provide necessary information, nor that
the exporters concerned can be considered to have significantly impeded the investigation.82
6.73 We therefore find that the DCD was not justified in disregarding the exporters’ information
under Article 6.8 of the AD Agreement for reasons relating to the failure to comply with certain
formal requirements.
6.74 We further recall our conclusion that Article 6.8 read in conjunction with paragraph 6 of
Annex II, requires an investigating authority to info rm the party supplying information of the reasons
why evidence or information is not accepted, to provide an opportunity to provide further
explanations within a reasonable period, and to give, in any published determinations, the reasons for
the rejection of evidence or information. We find that the DCD never informed the exporters that
their information would be rejected for having fail ed to comply with the formal requirements of the
questionnaire, much less provided an opportunity to provide further explanations. Nor were the
reasons for the rejection of such evidence or information given in any published determinations. We
therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD
Agreement.
(d) Late submission of the information
6.75 Argentina argues that the exporters failed to provide the requested information within a
reasonable period. Argentina asserts that, due to the many requests for extension of deadlines by the
exporters, information which originally was supposed to be given by 30 November 1998 was
submitted as late as 10 August 1999. 83 Argentina submits that the late submission of information
towards the end of the investigation constituted a failure to provide the information within a
reasonable period which significantly impeded the investigation and entitled the DCD to resort to
facts available under Article 6.8 of the AD Agreement.
6.76 The EC submits that the exporters supplied the information in a timely manner. According to
the EC, additional information was submitted late into the investigation because of the repeated
requests for additional public information from the DCD. The EC stresses that in fact no new factual
data was submitted, but rather confidential information provided at the time of the questionnaire
response was declassified and supplied to the DCD together with supporting documentary evidence
that was requested.

81 Preliminary Dumping Determination, p. 18. Exhibit ARG-8.
82 We note that, in its last set of answers to questions from the Panel, Argentina for the first time
appeared to argue that the information supplied by the exporters was not authenticated as allegedly required by
the questionnaire. We note that there does not exist a factual basis for this argument in the record. In any case,
it appears that Argentina itself does not consider that th e DCD rejected the information for this reason, since it
argues that “in spite of” this failure to have the info rmation authenticated, the DC D proceeded to cross-check
the information supplied. Argentina’s answers to questions from the Panel at the second meeting, question 1.
83 We note that in its first written submission, Argentina argued that the submission of the
questionnaire replies by the exporters was late by one day. In its answers to questions from the Panel at the first
meeting (question 8, p. 17) Argentina admitted that in fact the questionnaire replies were submitted within the
grace period provided by administrative Decree No. 1759/72, as amended by Decree 1883/1991. Article 25 of
the Argentine Decree 1759/72, as amended by Decree 1883/1991 provides that information supplied within two
hours of the day following the expiration of the deadline is considered to have been submitted in a timely
fashion. Exhibit EC-8. The deadline for the questionnaire replies was 9 December 1998. The exporters
supplied their questionnaire responses in the morning of 10 December 1998, and thus within the grace period
provided in the Decree mentioned above.

6.77 We find that, according to the case record, the exporters requested an extension of the
deadline for the submission of information on two occasions only. Both times the authority granted
the request. An extension of the deadline for the filing of the questionnaire reply was requested from
30 November 1998 to 9 December 1998. This request was granted and the replies were submitted
within the deadline during the morning of 10 December 1998. 84 On 30 April 1999, the DCD sent a
letter to the exporters requesting additional public information to be provided within 15 days. The
exporters requested an extension of the deadline on 14 May 1999. The request was granted and the
information was submitted before the new deadline of 7 June 1999. Additional requests for
declassification of the information made on 22 June and 3 August were almost immediately complied
with.
6.78 In sum, all of the information was submitted in a timely manner. Additional requests for
information implied that additiona l information, consisting of non-confidential summaries as well as
supporting documentation, would of course be submitted long after the deadline for the submission of
the questionnaire replies. In these circumstances, the exporters are not responsible for these
additional requests for information. Therefore, the facts do not support Argentina’s argument that the
exporters were uncooperative and failed to submit the information within a reasonable period. We
therefore find that the DCD was not justified in disregarding the exporters’ information under Article
6.8 on this basis.
6.79 We further recall our conclusion that Article 6.8 read in conjunction with paragraph 6 of
Annex II, requires an investigating authority to info rm the party supplying information of the reasons
why evidence or information is not accepted, to provide an opportunity to provide further
explanations within a reasonable period, and to give, in any published determinations, the reasons for
the rejection of evidence or information. We find that the DCD never informed the exporters that
their information would be rejected for having failed to provide the information within a reasonable
period, much less provided an opportunity to provide further explanations. Nor were the reasons for
the rejection of such evidence or information gi ven in any published determinations. We therefore
find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.
3. Conclusion
6.80 For the foregoing reasons, we find that the DCD acted inconsistently with Article 6.8 of the
AD Agreement when it disregarded completely the exporters’ information concerning export price
and disregarded in large part the exporters’ normal value information by mixing the primary source
exporters’ information with information from secondary sources such as the petitioner, importers and
official statistics. We further find that the DCD acted inconsistently with Article 6.8 read in
conjunction with paragraph 6 of Annex II, in th at the DCD (i) did not inform the exporters why
certain information supplied by them was not accepted (ii) did not provide the exporters an
opportunity to provide further explanations within a reasonable period; and (iii) did not give, in any
published determinations, the reasons for the rejection of evidence or information.
6.81 We are conscious that our finding that the DCD incorrectly disregarded the exporter’s
information and resorted to facts available in a manner inconsistent with Article 6.8 of the AD
Agreement casts doubt on the entire final determination of dumping. In this respect, we recall the
statements of the Appellate Body on “judicial economy” in the dispute on United States – Measures
Affecting Imports of Woven Wool Shirts and Blou ses from India (“United States – Shirts and
Blouses”) that “A panel need only address those claims which must be addressed in order to resolve
the matter in issue in the dispute.”
85 Nevertheless, as the Appellate Body stated in a subsequent

84 See footnote 83.
85 Appellate Body Report, United States – Measures Affecting Imports of Woven Wool Shirts and
Blouses from India (“United States – Shirts and Blouses ”), WT/DS33/AB/R, adopted 23 May 1997, p. 20.

dispute on Australia – Measures Affecting the Importation of Salmon , “[T]o provide only a partial
resolution of the matter at issue would be false judicial economy. A panel has to address those claims
on which a finding is necessary in order to enable the DSB to make sufficiently precise
recommendations and rulings so as to allow for prompt compliance by a Member with those
recommendations and rulings ‘in order to ensure effective resolution of disputes to the benefit of all
Members”.
86 Mindful of the Appellate Body’s comments in this respect, we will continue with our
analysis of the other claims made before us “because it could prove of utility depending on any
appeal”87 and in order “to enable the DSB to make sufficiently precise recommendations and rulings
so as to allow for prompt compliance with those recommendations and rulings” 88.
E. CLAIM 2: ARTICLE 6.10: REQUIREMENT TO CALCULATE INDIVIDUAL MARGINS OF DUMPING
FOR ALL EXPORTERS INCLUDED IN THE SAMPLE
1. Arguments of the parties
6.82 The EC submits that the DCD did not determine an individual margin of dumping for each of
the four exporters included in the sample, as required by Article 6.10 of the AD Agreement, but rather
calculated dumping margins for each of the three size categories of porcellanato and imposed the
same duty rate on all imports irrespective of the exporter concerned. The EC argues that Article 6.10
of the AD Agreement requires that as a rule an individual margin be established for each exporter or,
in the case this is not practicable because of the large number of exporters for example, an individual
margin is to be established for each exporter included in the sample. The EC also points to Article 9.4
in support of its argument that an individual margin of dumping should have been established for each
of the four Italian exporters that formed part of the sample.
89
6.83 Argentina argues that the information provided by the four exporters included in the sample
was not sufficient to allow an individual dumpi ng margin to be established for each exporter.
Argentina submits that the EC wrongly presupposes that it was possible to determine an individual
margin for all four exporters included in the sample. Argentina recalls that the exporters themselves
through their representative organization, Assopiastrelle, requested that the investigation be conducted
on the basis of a sample to facilitate the task of the authority. However, Argentina submits, it proved
impossible for the DCD to determine an individual dumping margin for each of the four exporters.
According to Argentina, two producers, Caesar a nd Marazzi, did not provide price information for
tiles in the size categories 30 x 30 cm and 20 x 20 cm. Argentina alleges that one exporter, Marazzi,
did not even submit information with regard to the third size category (40 x 40 cm) either.
90 A third

86 Appellate Body Report, Australia – Measures Affecting Importation of Salmon , WT/DS18/AB/R,
adopted 6 November 1998, para. 223.
87 Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless
Steel Sheet and Strip from Korea ("United States – Korea Steel") , WT/DS179/R, adopted 1 February 2001,
para. 5.11.
88 Appellate Body Report, United States – Safeguard Measures on Imports of Fresh, Chilled, or Frozen
Lamb Meat from New Zealand and Australia (“United States - Lamb Safeguards”) , WT/DS177/AB/R and
WT/DS178/AB/R, adopted 16 May 2001, para. 194.
89 Article 9.4 of the AD Agreement relates to the determination of an anti-dumping duty for those
exporters not included in the sample, which shall no t exceed “the weighted average margin of dumping
established with respect to the selected exporters or prod ucers”. The EC argues that this suggests that for those
exporters included in the sample individual margins shall be established which may then be averaged in order to
determine the rate for the exporters outside the sample. In other words, the EC submits that Article 9.4 and its
reference to weighted averages and de minimis margins presupposes the determination of individual margins for
exporters included in the sample.
90 Argentina notes that the exporters replied to the questionnaires without making any objection
concerning the use of size as the determining parameter and they should therefore have provided information
with regard to all size categories, as requested.

producer, Bismantova, reported that 56 per cent of its domestic sales for tiles in the category 30 x
30 cm and up to 93 per cent of the domestic sales in the 40 x 40 cm category were made to a related
company, Rondine.
6.84 Argentina submits that the use of a sample in this case was justified in light of the large
number of exporters. However, Argentina argues, the sample which was proposed by the exporters’
association, Assopiastrelle, and accepted by the DCD, did not serve its purpose since the information
provided by the exporters in the sample was defici ent and insufficient. According to Argentina, the
requirement to determine an individual dumping margin has to be read in light of the requirement
under Article 2 of the AD Agreement to determine a dumping margin for the product subject to the
investigation. Argentina submits that the product under investigation was ceramic tiles in all their
sizes, and the DCD from the outset calculated a du mping margin for each of the sizes that together
formed the subject product (20 x 20 cm, 30 x 30 cm, 40 x 40 cm). According to Argentina, the
exporters accepted this segmentation as they replied to the questionnaires without any objections in
this respect. However, the exporters included in the sample failed to provide the necessary documents
that would allow the DCD to determine such product/size specific margins. Argentina asserts that the
DCD was therefore justified in looking for an alternative to supplement the missing necessary
information. Argentina argues that in any case, even if the Panel were to find that the DCD acted
inconsistently with Article 6.10 by not determ ining an individual margin of dumping for each
exporter, this constituted a harmless error.
6.85 The EC takes issue with Argentina’s argument that it was not practicably possible to
determine an individual margin of dumping for each of the four exporters.
91 The EC argues that
Argentina cannot, for example, claim that no margin could be established because information was
not presented for all size categories if the exporter in question only exports tiles of a certain size (for
example, 40 x 40 cm). Finally, the EC submits, it is not because a number of sales are made to related
parties that no margin can be established. Accordin g to the EC, under the facts of this case, nothing
prevented the DCD from calculating an individual margin of dumping for each of the exporters
included in the sample, as required by Article 6.10 of the AD Agreement.
2. Analysis by the Panel
6.86 The DCD’s Final Determination establishes a dumping margin for three size categories of
porcellanato irrespective of the exporter.
92 According to the EC, the DCD thus failed to establish a
dumping margin for each investigated exporter individually, as is required under Article 6.10 of the
AD Agreement.
6.87 Article 6.10 provides as follows:
"The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation. In cases
where the number of exporters, producers, importers or types of products involved is
so large as to make such a determination impracticable, the authorities may limit their
examination either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information available to the
authorities at the time of the selection, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated.

91 The EC notes that in the case of Casalgrande no explanation is provided as to why this was not
possible.
92 Similarly, the Resolución which imposes the final anti-dumping duty also sets a minimum FOB
export price for each size of ceramic tiles imported from Italy irrespective of the exporter concerned.

6.10.1 Any selection of exporters, producers, importers or types of products made
under this paragraph shall preferably be chosen in consultation with and with the
consent of the exporters, producers or importers concerned.
6.10.2 In cases where the authorities have limited their examination, as provided for
in this paragraph, they shall nevertheless determine an individual margin of dumping
for any exporter or producer not initially selected who submits the necessary
information in time for that information to be considered during the course of the
investigation, except where the number of exporters or producers is so large that
individual examinations would be unduly burdensome to the authorities and prevent
the timely completion of the investigation. Voluntary responses shall not be
discouraged". (emphasis added)
6.88 We consider also relevant in this respect Article 9.4 of the AD Agreement which provides as
follows:
"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, any anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to the
selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is calculated on the
basis of a prospective normal value, the difference between the weighted average
normal value of the selected exporters or producers and the export prices of exporters
or producers not individually examined,
provided 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. The authorities shall apply individual duties or normal
values to imports from any exporter or producer not included in the examination who
has provided the necessary information during the course of the investigation, as
provided for in subparagraph 10.2 of Article 6". (emphasis added)
6.89 The first sentence of Article 6.10 of the AD Agreement sets forth a general rule that the
authorities determine an individual margin of dumpi ng for each known exporter or producer of the
product under investigation. The second sentence of Article 6.10 permits an investigating authority to
deviate from the general rule by permitting the in vestigating authorities to "limit their examination
either to a reasonable number of interested parties or products by using samples . . . or to the largest
percentage of the volume of the exports from the country in question which can reasonably be
investigated", in cases where the number of exporters, producers, importers or types of products
involved is so large as to make such a determination impracticable. Article 9.4 provides that, where
the authorities have limited their examination in accordance with the second sentence of Article 6.10,
the anti-dumping duty applied to imports from exporters or producers not included in the examination
shall not exceed an amount calculated on the basis of the margins of dumping for exporters or
producers that were included in the examination. Finally, in cases where the authorities have limited
their examination under Article 6.10, subparagraph 2 of Article 6.10 provides that the authorities shall
nevertheless determine an individual margin of dumping for any exporter not initially selected who
submits the necessary information in time for that information to be considered, except where the
number of exporters is so large that individual examination would be unduly burdensome to the
authorities and prevent timely completion of the investigation.

6.90 In our view, the general rule in the first sentence of Article 6.10, that individual margins of
dumping be determined for each known exporter or producer of the product under investigation, is
fully applicable to exporters who are selected for examination under the second sentence of Article
6.10. While the second sentence of Article 6.10 allows an investigating authority to limit its
examination to certain exporters or producers, it does not provide for a deviation from the general rule
that individual margins be determined for those exporters or producers that are examined. To the
contrary, Article 9.4 provides that, where the authorities limit their examination under Article 6.10,
the anti-dumping duty for exporters or producers that are not examined shall not exceed a level
determined on the basis of the results of the examination of those exporters or producers that were
examined. That Article 9.4 does not provide any methodology for determining the level of duties
applicable to exporters or producers that are examined in our view confirms that the general rule
requiring individual margins remains applicable to those exporters or producers. We find further
confirmation in Article 6.10.2, which requires that, in general, an individual margin of dumping must
be calculated even for the producers/exporters not initially included in the sample, if they provide the
necessary information and if to do so is not unduly burdensome. If even producers not included in the
original sample are entitled to an individual ma rgin calculation, then it follows that producers that
were included in the original sample are so entitled as well. 93 Indeed, the parties appear to agree that
Article 6.10 of the AD Agreement requires that as a rule an individual margin of dumping has to be
determined for each exporter with regard to the product subject to investigation.94
6.91 Argentina argues, however, that, for substantive reasons relating to the reliability of the
information as well as the absence of information with regard to sales by certain exporters included in
the sample, it was simply not possible for the DCD to determine a margin of dumping for each
exporter individually.
6.92 In considering Argentina's assertion, we first note that there is no explanation in the DCD’s
Final Determination or in any other document on the record as to why, in this case, it was not possible
to determine an individual margin for each exporter that was investigated. We consider that the DCD
failed to provide any evaluation of the facts on the re cord that could have formed the basis for such a
conclusion. We consider that on this basis alone we could have concluded that the DCD failed to
perform an objective and unbiased evaluation of the facts which, under the applicable standard of
review, we are asked to review. Nevertheless, for the sake of completeness, we will continue our
analysis and address the arguments presented by the parties in their submissions to the Panel.
6.93 We first observe that neither the DCD in its Final Determination nor Argentina in its
submissions to the Panel provides any reasons why, with regard to the information provided by one
exporter, Casalgrande, for which no discrepancies were noted, it was not possible to determine an
individual margin of dumping.

93 As the Panel in EC – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (“EC –
Bed Linen”) stated:
"the fact that Article 2.4.2 refers to the existence of margins of dumping in the plural is a
general statement, taking account of the fact that, as is made clear in Article 6.10 and 9 of the
AD Agreement, individual dumping margins are determined for each producer or exporter
under investigation, and for each product under investigation" (emphasis added). Panel
Report, EC – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (“EC –
Bed Linen”) EC – Bed Linen , WT/DS141/R, adopted as reversed in part by WT/DS141/AB/R,
12 March 2001, para. 6.118.
94 Argentina’s answers to questions from the Panel at the first meeting, question 17; EC’s answers to
questions from the Panel at the first meeting, question 17.

6.94 We examined the arguments presented by Argentina with regard to the other three exporters
included in the sample, Bismantova, Caesar and Marazzi. We find that there were no valid reasons
for not determining an individual margin of dump ing under Article 6.10 for each of these companies
for the product subject to the investigation. Argentina argues that in the case of Bismantova it was not
possible to determine an individual margin of dumping because, for a certain size of tiles, up to 93 per
cent of its domestic sales were made to a related party. Caesar, as the EC acknowledges, only
reported domestic sales information concerning tiles of the size 40 x 40 cm, and did not provide any
data on domestic sales of tiles of the two remaining size categories, 20 x 20 cm and 30 x 30 cm.
Argentina submits that it was for this reason that the DCD could not determine an exporter-specific
margin of dumping for this exporter. According to the DCD’s Final Determination, a third exporter,
Marazzi, only provided lists of average prices without specifying total volumes sold or the total value
of the sales. It was therefore not possible to determine an individual margin of dumping for this
exporter either, Argentina contends.
6.95 We understand Argentina’s argument to be that, in the absence of reliable and useful
information with regard to each of the size cate gories of the product subject of the investigation, no
individual margin of dumping could be calc ulated for each exporter for the product under
investigation, i.e. ceramic tiles in all sizes.
6.96 We consider however that while it may have been the case that Bismantova made an
important part of its sales to a related party, this should not have impeded the DCD from determining
an individual margin of dumping for this exporter. The issue of domestic sales to a related party may
lead, in certain cases, to the use of a constructed normal value or third country export price under
Article 2 of the AD Agreement. 95 The question of sufficient domestic sales in the ordinary course of
trade does not, in our view, stand in the way of an individual margin of dumping determination under
Article 6.10 of the AD Agreement, be this based on normal value information consisting of prices of
sales made in the home market, on third country export prices, or a construction of the normal value
as defined in Article 2.2 of the AD Agreement. 96 The basis of the normal value determination has no
bearing on the ability to calculate an individual dumping margin for the producer whose normal value
is in question.
6.97 With regard to the two other exporting firms, Caesar and Marazzi, we also fail to see why it
was not possible for the DCD to determine an individual margin of dumping for each exporter. Based
on the facts on the record, we understand that Caesar only exports tiles of the size 40 x 40 cm to
Argentina and therefore only reported similar size domestic sales. In accordance with the DCD’s own
analysis concerning the requirement of making a fair comparison between normal value and export
price by adjusting for size, it appears the DCD would have had to base its determination in any event
on the information provided with regard to this one size category of 40 x 40 cm. Marazzi provided
lists of average prices without any specification of the total amount sold or the total value of the sales.
The DCD does not explain how this impeded it from determining an exporter-specific margin of
dumping for Marazzi. If the DCD was dissatisfied with the information provided, it could have
requested the exporter to provide additional and more specific information. It chose not to do so.

95 This is not to say that in this case we believe there existed such a need for the use of third country
export price or to construct the normal value under Article 2.2.
96 We believe that the provisions of Article 2 concerning the determination of dumping and Article 6.8
AD Agreement concerning facts available are intended to allow the investigating authority to complete the data
with regard to a particular exporter in order to determine a dumping margin in case the information provided is
unreliable or necessary information is simply not provided. It is precisely because of Articles 2 and 6.8, among
others, that it will remain possible to determine an individual margin of dumping for each exporter on the basis
of facts.

6.98 In effect, Argentina’s argument in defence of the DCD’s failure to determine an individual
margin of dumping for all three exporters seems to be based on the fact that the DCD did not possess
sufficient information for each size category to determine a separate margin of dumping for each
producer for each of the size categories. The product subject to investigation was ceramic tiles “ en
todas sus medidas”, i.e. in all sizes, or in other words, irrespective of size, and not ceramic tiles of 20
x 20 cm, 30 x 30 cm and 40 x 40 cm. 97 As a consequence, the DCD was required to determine an
individual margin of dumping for each exporter with regard to this product as a whole and not just a
section of the product or a certain size category. As the Appellate Body stated in the EC –Bed Linen
case:
"Having defined the product as it did, the EC was bound to treat that product
consistently thereafter in accordance with that definition. … We see nothing in
Article 2.4.2 or any other provision of the AD Agreement that provides for the
establishment of “the existence of margins of dumping” for types or models of the
product under investigation. … Whatever the method used to calculate the margins of
dumping, in our view, these margins must be, and can only be, established for the
product under investigation as a whole".
98
6.99 In our view, it is important not to confuse the usefulness of grouping (by size, model, type)
for the purpose of making a fair comparison under Article 2.4 and the requirement under Article 6.10
to determine an individual margin of dumping for the product as a whole. We consider that the use of
types or models is a valid method of ensuring a fair comparison between normal value and export
price under Article 2.4. We see nothing in the Appellate Body Report in the EC – Bed Linen case that
suggests otherwise so long as the investigating au thority goes on to determine a margin of dumping
for the product as a whole. The product under investigation in the case before us is ceramic tiles of
any size, and the authority was thus required to establish an individual dumping margin for each
exporter for this product as a whole and not for each size category. Nor was the DCD entitled to
invoke any problems it encountered with regard to the use of such models, such as lack of information
concerning a certain size category, as a reason for not determining an individual margin of dumping
for the product as a whole, in this case ceramic floor tiles of any size from Italy. Therefore, even if
the DCD was entitled to disregard data concerning certain size categories for one reason or another,
this should not have stopped the DCD from determining an individual margin of dumping for each of
the exporters included in the sample for the product subject to the investigation.
6.100 Even if Argentina had been entitled to determine margins of dumping with respect to each of
three sizes of tile rather than with respect to the product subject to investigation as a whole, we
believe the DCD was not justified in not determinin g an individual margin for each exporter for each
of the three sizes of tiles. In our view, even if the DCD were to have doubted the reliability of the
information for one or two size categories in the case of Bismantova because of the significant
quantity of sales made to a related party, this should not have impeded the DCD from determining an
exporter specific margin of dumping for at least the one or two remaining size categories for which
the DCD did not identify any problems. Similarly, in the case of Caesar, which only exported one
size of tiles, this exporter should have at least received an individual margin for that size based on the
information submitted.
3. Conclusion
6.101 We conclude that the DCD should have determined an individual margin of dumping for each
of the four exporters included in the sample. Our conclusion holds, whether the product as defined by
the DCD was in fact ceramic tiles in all their sizes or whether it consisted of three different categories

97 Final Dumping Determination, p. 2. Exhibit EC-2.
98 Appellate Body Report, EC – Bed Linen, para. 53.

of tiles distinguished from each other on the basis of size. We therefore find that the DCD acted
inconsistently with Article 6.10 of the AD Agreement by not determining an individual margin of
dumping for each of the four exporters included in the sample.
6.102 Argentina raises as a final defence the concept of harmless error, and argues that the EC failed
to demonstrate that the Italian exporters were prejudiced by the failure to determine an individual
margin of dumping. In its answers to questions from the Panel, Argentina asserts that the concept of
harmless error – i.e., an error that does not cause injury or affect the rights of one of the parties
99 – has
been accepted in WTO law. Argentina refers in particular to the Report of the Appellate Body in the
Korea – Dairy Safeguards case.100
6.103 We note, however, that the Appellate Body Report in the Korea – Dairy Safeguards case, to
which Argentina refers in support of its argument, dealt with the question of whether the request for
establishment met the requirements of Article 6.2 of the DSU. The issue before the Appellate Body
was whether Article 6.2 of the DSU was complied with or not. The Appellate Body, in deciding that
question, concluded that one element to be considered was whether the defending Member was
prejudiced in its ability to defend itself by a lack of clarity or specificity in the request for
establishment. The Appellate Body did not address the question whether, once it had been established
that a provision of the Agreement is violated, it needs in addition to be demonstrated that this
violation had prejudiced the rights of the complaining party.
101 Thus, we do not agree that this
Appellate Body decision supports Argentina’s argument that the concept of harmless error has been
accepted in WTO law.
6.104 Quite the contrary is true. Article 3.8 of the DSU provides that:
"In cases where there is an infringement of the obligations assumed under a covered
agreement, the action is considered prima facie to constitute a case of nullification or
impairment. This means that there is normally a presumption that a breach of the
rules has an adverse impact on other Member parties to that covered agreement, and
in such cases, it shall be up to the Member against whom the complaint has been
brought to rebut the charge".
6.105 Article 3.8 of the DSU thus provides that there is a presumption that benefits are nullified or
impaired – i.e., there is a presumption of “har m” – where a provision of the Agreement has been
violated. Article 3.8 of the DSU also provides for the possibility that the Member found to have
violated a provision may rebut the presumption. In light of the presumption of Article 3.8 of the
DSU, the EC having established that Argentina has acted in a manner inconsistent with the AD
Agreement, it is up to Argentina to show that th e failure to determine an individual dumping margin
has not nullified or impaired benefits accruing to the EC under the Agreement. Argentina has failed
to adduce any evidence in this respect. Accordingl y, we find that the presumption of nullification or
impairment of benefits caused by the violati on of Article 6.10 of the AD Agreement has not been
rebutted by Argentina.
102

99 Argentina’s answers to questions from the Panel at the first meeting, para. 31, p. 23.
100 Argentina’s answers to questions from the Panel at the first meeting , para. 31, p. 23.
101 Appellate Body Report, Korea – Dairy Safeguards , para. 127: “Along the same lines, we consider
that whether the mere listing of the articles claimed to ha ve been violated meets the standard of Article 6.2 must
be examined on a case-by-case basis. In resolving that question, we take into account whether the ability of the
respondent to defend itself was prejudiced, given the actua l course of the panel proceedings, by the fact that the
panel request simply listed the provisions claimed to have been violated.”
102 We note that our view is similar to that of the Panel in the case of Guatemala – Cement (II) , (Panel
Report, Guatemala – Cement (II), paras. 8.22 and 8.111-112), and Panel Report, Guatemala – Anti-Dumping

F. CLAIM 3: A RTICLE 2.4: THE NEED TO MAKE ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL
CHARACTERISTICS
1. Arguments of the parties
6.106 The EC submits that the DCD failed to make due allowance for all the physical differences
between the various models of porcellanato exported to Argentina and those sold domestically. 103
The EC argues that although the DCD acknowledged that differences in physical characteristics, not
adjusted for, could have had a significant impact on price, it nevertheless, without any justification,
rejected the exporters’ request for a model-to-model comparison and failed to apply any alternative
method for making due allowance for differences in physical characteristics affecting price
comparability, thereby violating Article 2.4 of the AD Agreement. The EC argues that by failing to
make the necessary adjustments, Argentina failed to make a fair comparison between normal value
and export price as required by Article 2.4 of the AD Agreement.
6.107 Argentina submits that the DCD made due allowance for differences in physical
characteristics affecting price comparability by distinguishing three types of ceramic tiles based on the
one variable common to all models and types sold: size. Argentina argues that with 78 Italian
producers selling a variety of models with different colours and designs, the DCD was justified to take
into account the one parameter common to all models and on that basis the DCD distinguished three
size categories. Argentina asserts that the exporters did not present any convincing reasons to
invalidate the segregation of products on this basis and never objected to the determination of a
margin of dumping per size category.
6.108 Argentina submits that, in light of the standard of review applicable to anti-dumping disputes
set out in Article 17.6 of the AD Agreement, deference should be given to the national authority’s
methodology if it is based on a reasonable interpretation of the text of the Agreement. Argentina
submits that Article 2.4 requires that the authority make due allowance for differences in physical
characteristics in each case on its merits. Argentina argues that in this case, concerning a large variety
of tiles of different colours and with so many di fferent designs, the DCD distinguished between three
different types of tiles based on the one physical characteristic common to all: size. This
homogeneous standard used by the DCD, Argentina submits, is a reasonable basis for making due
allowance for differences in physical characteristics affecting price comparability and the DCD’s
determination should therefore be upheld by the Panel.
6.109 Argentina emphasizes that when the DCD requested the exporters to identify the product by
model/type or code the exporters merely referred to a catalogue containing an enormous number of
models without any further explanation. In Argentina’s view, this made any a posteriori adjustments,
if at all required, practically impossible for lack of information. Argentina argues that the exporters
also failed to give any market information per model or type of tiles and never submitted any concrete
proposals for adjustments. Therefore, Argentin a argues, the DCD’s decision to distinguish the
products on the basis of size was a reasonable and objective decision especially in light of the
confidential nature and incomplete character of the information.

Investigation Regarding Portland Cement from Mexico (“Guatemala – Cement (I)”) , WT/DS60/R, adopted as
reversed on other grounds by WT/DS60/AB/R, 25 November 1998, para. 7.42.
103 By way of example, the EC refers to a 100 per cent price difference between two types of
unpolished 30 x 30 cm tiles, which was found in a price list relied upon by the DCD (Exhibit EC-5D) which the
EC submits suggests that other factors apart from size impacted prices.

2. Analysis by the Panel
6.110 The EC’s claim concerns the scope of the requirement of Article 2.4 of the AD Agreement to
make due allowance for differences in physical characteristics affecting price comparability.
6.111 Article 2.4 of the AD Agreement provides as follows:
"A fair comparison shall be made between the export price 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 differences which affect price
comparability, including differences in conditions and terms of sale, taxation, levels
of trade, quantities, physical characteristics, and any other differences which are also
demonstrated to affect price comparability. 7 In the cases referred to in paragraph 3,
allowances for costs, including duties and taxes, incurred between importation and
resale, and for profits accruing, should also be made. If in these cases price
comparability has been affected, the authorities shall establish the normal value at a
level of trade equivalent to the level of trade of the constructed export price, or shall
make due allowance as warranted under this paragraph. The authorities 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". (emphasis
added)
7 It is understood that some of the above factors may overlap, and authorities shall ensure that
they do not duplicate adjustments that have been already made under this provision.
6.112 We recall our findings on claims 1 and 2 that the DCD was not justified in disregarding in
large part the exporters’ information and erred in failing to determine an exporter-specific margin of
dumping. We are asked to rule now whether the DCD made due allowance for the physical
differences affecting price comparability between th e products sold in the domestic market and the
products exported to Argentina. We recall that our task is to review the determination of the DCD
and examine whether the DCD properly established the facts and whether it evaluated those facts in
an objective and unbiased manner.
6.113 Article 2.4 places the obligation on the investigating authority to make due allowance, in each
case on its merits, for differences which affect price comparability, including differences in physical
characteristics. The last sentence of Article 2.4 provides that the authorities shall indicate to the
parties in question what information is necessary to ensure a fair comparison. We believe that the
requirement to make due allowance for such differences, in each case on its merits , means at a
minimum that the authority has to evaluate identifi ed differences in physical characteristics to see
whether an adjustment is required to maintain pr ice comparability and to ensure a fair comparison
between normal value and export price under Article 2.4 of the AD Agreement, and to adjust where
necessary.
6.114 We note that the DCD determined the export price of the product under investigation on the
basis of information provided by the petitioner, as well as official import statistics. We note that these
import statistics related to all products exported from Italy and not just to products of those four
producers included in the sample. The DCD further calculated two normal values for each size, one
based on petitioner and importers’ information, a second one based on the two aforementioned
sources together with information from the exporters. In general, the information on the record
suggests that ceramic tiles may be distinguished on the basis of a number of characteristics, such as
dimensions (length and width), colour, degree of processing (polished/unpolished), and quality, and
that the price of the products differs as a function of these differences in physical characteristics. The

record indicates that the DCD collected information concerning first-quality, unpolished tiles. The
DCD also distinguished the product on the basis of differences in size within the various models of
tiles sold on the domestic market and exported to Argentina.
6.115 In the Preliminary Determination, the DCD acknowledged that there existed a large variety of
types and models of ceramic tiles with significant price differences between them. 104 In the Final
Determination, the DCD further specifies that there existed significant price differences between
various models of the same size, and that for certain models the smaller size tiles were sometimes
more expensive than certain other models’ larger size tiles. 105 We note that, in spite of this
acknowledgement, the DCD failed to make any furt her adjustments for these apparent differences in
price caused by factors other than size. Neither did the DCD indicate to the parties what information
it required in order to make these further adjustme nts. Argentina argues that the DCD did in fact
request the exporters to provide information per model in the questionnaire but that the exporters
replied that such model specific information wa s not available. We note that the information
requested in Annexes IV-VI of the questionnaire, to which Argentina refers in support of its
argument, does not relate to information necessary to determine normal value and export price but
concerns information of a more general nature concerning the domestic market of the exporters and
their sales performance in general. If the DCD was dissatisfied with the information provided by the
exporters concerning the technical characteristics of the models in their questionnaire responses, it
could have and should have, according to Article 2.4, requested additional information. The DCD did
not do so.
6.116 In addition to accounting for size differences, the DCD’s methodology took account of two
other physical differences affecting price comparability. As to quality, the DCD collected data only
on first-quality tiles, thereby avoiding the need to make adjustments for tile quality. By the same
token, the DCD’s methodology made due allowance for the degree of processing, in that data were
collected only on unpolished tiles.
106 In effect then, the DCD made due allowance within the meaning
of Article 2.4 for three physical differences affecting price comparability. Nonetheless, other
important differences remained, as the DCD acknowledged in its final determination. We do not
agree with Argentina’s view that Article 2.4, through the qualifying language that due allowance shall
be made “in each case” “on its merits”, permits an investigating authority to adjust only for the most
important of the physical differences that affect price comparability, even if making the remaining
adjustments would have been, as the parties agree, complex. The DCD chose not to conduct a model-
by-model comparison and it was then left to find other means to account for the remaining physical
differences affecting price comparability. It did not do so.
3. Conclusion
6.117 In conclusion, we consider that, in light of the facts on the record, there were other factors
significantly affecting price comparability. An objective and unbiased evaluation of the facts of this
case would have required the DCD to make additional adjustments for physical differences affecting
price comparability. We therefore find that the DC D acted inconsistently with Article 2.4 by failing
to make adjustments for physical differences affecting price comparability.

104 Preliminary Dumping Determination, p. 34, Exhibit ARG-8.
105 Final Dumping Determination, p. 28. Exhibit EC-2.
106 Moreover, when advised that one exporter, Marazzi, sold one model of tiles as a polished tile on the
domestic market while this model was sold under the same name in Argentina as an unpolished tile, the DCD
accepted the need to make an adjustment to account for this physical difference affecting price comparability.

G. CLAIM 4: ARTICLE 6.9: FAILURE TO INFORM THE EXPORTERS OF THE “ESSENTIAL FACTS” ON
WHICH THE DECISION IS BASED
1. Arguments of the parties
6.118 The EC submits that Argentina failed to disclose the essential facts under consideration which
form the basis for the decision whether to apply definitive measures as required by Article 6.9 of the
AD Agreement. The EC argues that Article 6.9 of the AD Agreement entails a positive action by the
investigating authorities, and requires the authorities to actively disclose those essential facts on
which the decision whether to apply definitive m easures is based. According to the EC, Argentina
merely invited interested parties to examine the public file.
107 The EC asserts that the public file of an
anti-dumping investigation essentially consists of often contradictory questionnaire responses and
allegations of different interested parties and thus clearly does not identify the “essential facts” on
which the decision to impose a measure is based. The EC argues that in this case the final dumping
determination (unlike the final injury determination) was not available in the public file. Nor did the
public file contain any other document prepared by the DCD which identified the "essential facts" that
would form the basis for the final dumping determination.
6.119 Argentina argues that the DCD complied with the requirement of Article 6.9 of the AD
Agreement to inform the interested parties of the essential facts which form the basis for the decision
whether to apply definitive measures by inviting the exporters to view the complete file. According to
Argentina, the exporters viewed the file that contained all the information on which the determination
was based, including the essential facts. Argentina argues that what is important is that the result
envisaged by Article 6.9 is achieved, not how this result was achieved. Argentina asserts that the Ad
Hoc Group on Implementation of the Committee on Anti-Dumping Practices has discussed the kind
of information which needs to be disclosed under Article 6.9. Argentina submits that the fact that the
Ad Hoc Group has not yet issued a recommendation on this matter demonstrates the diversity of
criteria used by the Members in complying with this requirement. Finally, Argentina argues that in
any case the exporters did not suffer any injury from this alleged lack of notification of the essential
facts. In case the Panel were to find a violation of Article 6.9 of the AD Agreement, Argentina
submits this constituted a harmless error.
6.120 The EC submits that the requirement concerning the disclosure of essential facts is not an
empty formality, as Argentina seems to suggest, and therefore rejects Argentina’s argument that the
alleged failure to comply with Article 6.9 constituted a harmless error.
6.121 We also recall in this respect some of the arguments made by the third parties on this matter.
Japan, as a third party, fully supports the EC position that the provisions of Article 6.9 of the AD
Agreement must be read as imposing obligations that go beyond those in Article 6.4 of the AD
Agreement to provide timely opportunities for interested parties to have access to all relevant
information. Japan asserts that the requirement of Article 6.9 to disclose the essential facts that the
authority will actually rely on is not satisfied by merely opening for inspection a file that includes
both facts that will be relied upon and facts that will not be. Turkey, as a third party, also considers
that the requirement of Article 6.9 goes beyond the obligation to provide timely opportunities to see
all information as set out in Article 6.4 of the AD Agreement.
6.122 The United States, as a third party, does not take a position on whether, under the facts of
this case, the measure is consistent with Article 6.9 of the AD Agreement. However, the United

107 Exhibit EC-7C. The EC asserts that if all that was required is to provid e access to the public file,
Article 6.9 would not add anything to the requirement of Article 6.4 to provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their case. Argentina, on the other
hand, argues that it complied with Article 6.9 by having provided an opportunity to view the complete file.

States agrees with Argentina that Article 6.9 requires only that interested parties be informed of the
essential facts and that this requirement does not impose a particular means of disclosure. According
to the United States, Members may implement the obligation under Article 6.9 in a variety of ways.
In particular, the United States argues, Members may choose to establish an investigative process
which allows interested parties to be presented with all of the facts as they are presented to the
authority, as well as arguments made about those facts.
2. Analysis by the Panel
6.123 We note that there does not exist any disagreement between the parties concerning the
relevant facts in respect of this claim. The record shows that the exporters were invited to view the
information on the record, and made use of this possibility on 18 June 1999, 3 September 1999 and 21
September 1999. The EC submits, however, that by merely being given the opportunity to view the
complete file the exporters were not informed of the essential facts under consideration which form
the basis for the decision whether to apply definitive measures as required by Article 6.9 of the AD
Agreement.
6.124 Article 6.9 provides that:
"The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests".
6.125 We agree with Argentina that the requirement to inform all interested parties of the essential
facts under consideration may be complied with in a number of ways. Article 6.9 of the AD
Agreement does not prescribe the manner in which th e authority is to comply with this disclosure
obligation. The requirement to disclose the “essential facts under consideration” may well be met, for
example, by disclosing a specially prepared document summarizing the essential facts under
consideration by the investigating authority or through the inclusion in the record of documents – such
as verification reports, a preliminary determination, or correspondence exchanged between the
investigating authorities and individual exporters – which actually disclose to the interested parties the
essential facts which, being under consideration, are anticipated by the authorities as being those
which will form the basis for the decision whether to apply definitive measures. This view is based
on our understanding that Article 6.9 anticipates that a final determination will be made and that the
authorities have identified and are considering the essential facts on which that decision is to be made.
Under Article 6.9, these facts must be disclosed so that parties can defend their interests, for example
by commenting on the completeness of the essential facts under consideration.
6.126 The question before us is whether, under the facts of this case, the DCD complied with its
obligation under Article 6.9 of the AD Agreement to inform the interested parties of the essential facts
under consideration which form the basis for the determination whether to apply definitive measures.
The DCD in this case invited the exporters to view the entire file.
6.127 In this case, the DCD relied primarily upon evidence submitted by petitioners and derived
from secondary sources, rather than upon information provided by the exporters, as the factual basis
for a determination of the existence of dumping. Thus, petitioner and secondary source information,
rather than exporters' information, represented (with respect to the existence of dumping) the essential
facts which formed the basis for the decision whether to apply definitive measures. We therefore
examined the record in order to determine whet her exporters were informed by the Argentine
authority, through access to the file, that it was on these facts that the authority would primarily rely
in its determination regarding the existence of dumping.

6.128 In considering this question, we observe that the file contained inter alia the Preliminary
Dumping Determination, in which the DCD explained that it considered that the confidential nature of
the information supplied by the exporters in the questionnaire responses concerning normal value and
export price limited the use it could make of this information. In the Preliminary Determination, the
DCD calculated the dumping margin without rely ing on any of the information supplied by the
exporters in confidence. The file also contained the three letters the DCD sent to the exporters
following the preliminary determination with the requests for declassification of the information
discussed above in paras. 6.41 – 6.47. The exporters were further advised of the DCD’s request for
additional supporting documentation, as discussed above in paras. 6.59 - 6.65. We note in this regard
that a meeting took place between the exporters’ representatives and the case-handlers. As Argentina
clarified, this was an informal meeting convened at the request of the exporters and no official record,
which could have been included in the file, exists of what was agreed upon at that meeting. The
exporters nonetheless supplied the invoices covering about 50 per cent of their reported domestic
sales which they considered had been requested by the DCD.
108 We found above that the exporters
also complied with the various requests for declassification of the information and never received any
deficiency letters nor were any such deficiency notices put on the record. The file further contained a
large variety of data from various sources such as the petitioner, importers and official registers.
3. Conclusion
6.129 In light of the state of the record, we find that the exporters could not be aware in this case,
simply by reviewing the complete record of the investigation, that evidence submitted by petitioners
and derived from secondary sources, rather than facts submitted by the exporters, would, despite the
responses of the exporters to the DCD’s information requests as summarized above, form the primary
basis for the determination of the existence and extent of dumping. The DCD thus failed to put the
exporters on notice of an essential fact under consideration. As a result, the exporters were unable to
defend their interests within the meaning of Article 6.9, for example, by giving reasons why their
responses should not be rejected and by suggesting alternative sources for facts available if their
responses were nonetheless disregarded. Under these circumstances, we find that the DCD did not,
by referring the exporters to the complete file of the investigation, fulfil its obligation under Article
6.9 to inform the exporters of the “essential facts under consideration which form the basis for the
decision whether to apply definitive measures”.
109
6.130 Argentina again raises the concept of harmless error as a defence. As discussed above, in our
view it does not suffice to merely raise the issue of harmless error. Indeed, Article 3.8 of the DSU
provides for a presumption that, in the case of an infringement of the obligations assumed under a
covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment. Article 3.8 of the DSU also provides for the possibility that the Member found to have
violated a provision may rebut the presumption. In light of the presumption of Article 3.8 of the
DSU, the EC having established that Argentina has acted in a manner inconsistent with the AD
Agreement, it is up to Argentina to show that th e failure to determine an individual dumping margin
has not nullified or impaired benefits accruing to the EC under the Agreement. Argentina has failed
to adduce any evidence in this respect. Accordingl y, we find that the presumption of nullification or
impairment of benefits caused by the violati on of Article 6.9 of the AD Agreement has not been
rebutted by Argentina.

108 Exhibit EC-10.
109 In light of our findings under the facts of this case, we need not reach the larger question discussed
by the Panel in the case of Guatemala – Cement (II) concerning the relationship between Article 6.9 and
Article 6.4 of the AD Agreement.

6.131 In conclusion, we find that the DCD acted inconsistently with Article 6.9 as it failed to inform
the interested parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures thereby failing to allow the exporters to defend their interests.
VII. CONCLUSIONS AND RECOMMENDATION
7.1 In light of the findings above, we conclude
(a) that Argentina acted inconsistently with Article 6.8 and Annex II AD Agreement by
disregarding in large part the information provided by the exporters for the
determination of normal value and export price, and this without informing the
exporters of the reasons for the rejection;
(b) that Argentina acted inconsistently with Article 6.10 AD Agreement by not
determining an individual margin of dumping for each exporter included in the
sample for the product under investigation;
(c) that Argentina acted inconsistently with Article 2.4 AD Agreement by failing to make
due allowance for differences in physical characteristics affecting price
comparability;
(d) that Argentina acted inconsistently with Article 6.9 AD Agreement by not disclosing
to the exporters the essential facts under consideration which form the basis for the
decision whether to apply definitive measures.
7.2 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment of benefits under that agreement. Argentina has failed to adduce any evidence to rebut
this presumption. Accordingly, we conclude that , to the extent Argentina has acted inconsistently
with the provisions of the AD Agreement, it has nullified or impaired benefits accruing to the EC
under that Agreement.
7.3 We recommend that the Dispute Settlement Body request Argentina to bring its measure into
conformity with its obligations under the AD Agreement.