Document: WT/DS397/R Page A-1 ANNEX A EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSIONS OF THE PARTIES Contents Page Annex-A-1 Executive Summary of the First Written Submission of China A-2 Annex A-2 Executive Summary of the First Written Submission of the European Union A-10
Document codes: WT/DS397/R
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX A

EXECUTIVE SUMMARIES OF THE FIRST WRITTEN
SUBMISSIONS OF THE PARTIES

Contents Page
Annex-A-1 Executive Summary of the First Written Submission of China A-2
Annex A-2 Executive Summary of the First Written Submission of the
European Union A-10

ANNEX A-1

EXECUTIVE SUMMARY OF THE FIRST
WRITTEN SUBMISSION OF CHINA

I. CLAIMS CONCERNING ARTICLE 9(5) OF COUNCIL REGULATION (EC)
NO. 384/96 OF 22 DECEMBER 1995 ON PROTECTION AGAINST DUMPED
IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EUROPEAN
COMMUNITY, AS CODIFIED AND REPLACED BY COUNCIL REGULATION
(EC) NO. 1225/2009

1. The first measure that China challenges in this dispute is Article 9(5) of Council Regulation
(EC) No. 384/96 on protection against dumped imports from countries not members of the European
Community as amended, which has now been codified and replaced by Council Regulation (EC)
No. 1225/2009 (the "Basic AD Regulation"). This provision deals with the "Individual Treatment"
("IT") practice of the EC regarding exporting prod ucers in anti-dumping investigations concerning
imports from China. The fact that China's challenge is limited to Article 9(5) is without prejudice to
its longstanding position that it strongly opposes the treat ment by a few WTO Members, in particular
the EC, of China as a non-market economy country. After more than three decades of economic
changes, China has indeed undou btedly become a market economy system in which all business
operations are carried out under market signals.

2. Article 9(5) of the Basic AD Regulation sets out a number of specific conditions that
exporting producers from China involved in EC anti-dumping proceedings must fulfil in order to
qualify for an individual dumping margin and an individual anti-dumping duty (so-called "individual
treatment" or "IT"). Only if a Chinese exporting pr oducer successfully demonstrates that it fulfils all
the conditions listed in Article 9(5) will the EC investigating authorities determine for that producer
an individual dumping margin and an individual an ti-dumping duty, that is, a dumping margin based
on a comparison between the normal value establishe d on the basis of data in the analogue country
with the Chinese exporting producer's own export pri ces. However, if the exporting producer cannot
demonstrate that it satisfies all the IT criteria, it will be subject to a country-wide dumping margin and
anti-dumping duty which is based on a comparison between the normal value established for the
analogue country with the average export price of the cooperating exporting producers in the country
concerned or on any other basis. Article 9(5) vi olates several provisions of the AD Agreement and of
the GATT 1994.

3. First, Article 9(5) of the Basic AD Regula tion is inconsistent w ith Article 6.10 of the
AD Agreement. Article 6.10 requires the investiga ting authorities to determine, as a rule, individual
dumping margins to all known exporters and producers. The sole exception to that rule is where the
number of exporting producers is so large as to make the determination of an individual dumping
margin impracticable. By introducing another exception, namely for exporting producers in non-
market economy countries, among which the EC includes China, that are not able to demonstrate that
they meet all the criteria set out in Article 9(5), that provision violates Article 6.10 including its
chapeau and Article 6.10.2.

4. Second, Article 9(5) of the Basic AD Regula tion is inconsistent with Article 9.2 of the
AD Agreement which requires the anti-dumping duty to be collected in appropriate amounts on a non-
discriminatory basis. Article 9.2 requires anti-dum ping duties to be imposed on an individual basis.
This conclusion finds further support when that provision is read in its context. By providing that the
anti-dumping duty for exporting producers in non-market economy countries in which the EC

includes China, will, as a rule, be a country-wide anti-dumping duty, Article 9(5) violates Article 9.2
of the AD Agreement.

5. Third, Article 9(5) of the Basic AD Regulation violates Article 9.3 of the AD Agreement
since the country-wide anti-dumping duty that is imposed on all exporters that do not qualify for IT, is
based on a margin of dumping that is calculated by comparing a normal value with an average export
price which is not determined in accordance with the rules of Article 2. It necessarily leads to the
collection of an anti-dumping duty in amounts which exceed the dumping margin for the exporting
producers whose export prices are higher than the average export prices used, thereby violating
Article 9.3 of the AD Agreement.

6. Fourth, Article 9(5) of the Basic AD Regulation violates Article 9.4 of the AD Agreement in
two respects. First, in cases where sampling is u sed, the anti-dumping duty applied to the cooperating
non-sampled exporting producers is based on the wei ghted average margin of dumping of all sampled
exporting producers, including those which do not qualify for IT and for which the dumping margin is
not based on their own export prices, i.e. in violat ion of Article 2 of the AD Agreement. Second, by
requiring non-sampled exporting producers that are i ndividually examined to demonstrate that they
comply with the five IT criteria, Article 9(5) violates Article 9.4 which requires the investigating
authorities to unconditionally apply an individual anti-dumping duty to such exporters.

7. Fifth, Article 9(5) violates Article I:1 of the GATT 1994 since an individual dumping margin
and individual anti-dumping duty is not determined for exporting producers from China and a limited
number of other WTO Members unless they demonstrate that they meet the specific conditions set out
in Article 9(5) while such treatment is automa tically granted to exporting producers from all other
WTO Members.

8. Sixth, the EC violates Article X:3(a) of the GATT 1994 by failing to administer the
provisions of Article 9(5) in a uniform, impartia l and reasonable manner. The administration is not
uniform since the country-wide dumping margin used for the exporters that do not qualify for IT is
calculated using a wide variety of methodologies a nd it is impossible for Chinese exporting producers
to predict which methodology will be used in a partic ular investigation. The manner in which the EC
administers the provisions of Article 9(5) is also unreasonable since the country-wide dumping
margin will in most cases be determined on the basi s of "facts available" even where the conditions of
Article 6.8 of the AD Agreement are not fulfilled.

9. Finally, in violating Articles 6.10, 9.2, 9. 3, 9.4 of the AD Agreement and Articles I:1 and
X:3(a) of the GATT 1994, the EC also violates Ar ticle XVI:4 of the Agreement Establishing the
WTO and Article 18.4 of the AD Agreement.

II. CLAIMS CONCERNING COUNCIL REGULATION (EC) NO. 91/2009 OF
26 JANUARY 2009 IMPOSING A DEFINI TIVE ANTI-DUMPING DUTY ON
IMPORTS OF CERTAIN IRON OR STEEL FASTENERS FROM CHINA

10. The second measure that China challenges in this dispute is Council Regulation (EC)
No. 91/2009, by which the EC has imposed a defin itive anti-dumping duty on imports of certain iron
or steel fasteners originating in China. This measure violates numerous substantive and procedural
provisions of the AD Agreement.

A. THE EC VIOLATED ARTICLES 6.10, 9.2 AND 9.4 OF THE AD AGREEMENT

11. In order to qualify for IT and receive the benefit of an individual dumping margin and an
individual anti-dumping duty, the Chinese exporting pr oducers concerned, namely those included in
the sample and those non-sampled exporting produ cers that were individually examined, had to

demonstrate that they fulfilled all five conditions set out in Article 9(5) of the Basic AD Regulation.
Thereby, the EC violated Articles 6.10, 9.2 and 9.4 of the AD Agreement.

B. THE EC'S "STANDING" DETERMINATIONS VIOLATED ARTICLE 5.4 OF THE AD
AGREEMENT

12. Article 5.4 of the AD Agreement obliges the inv estigating authorities to play an active role in
examining whether the application has been made by or on behalf of the dom estic industry. In the
anti-dumping investigation which led to the measure at issue, however, the EC failed to properly
examine whether the standing thresholds were met before initiating the investigation.

13. First, the EC did not check whether the total EC production actually amounted to 1,430 KT as
alleged in the Complaint, before initiating the investigation. Second, the EC did not properly examine
the degree of support for, or opposition to, the appl ication by all EC producers, before initiating the
investigation.

14. Furthermore, the EC violated Article 5.4 of the AD Agreement since the Complainants did
not meet the standing thresholds set out in that pr ovision and in particular the absolute minimum that
the application must be expressly supported by pr oducers accounting for at least 25 per cent of total
production of the like product produced by the domestic industry.

15. Indeed, the evidence shows that the figure of total EC production relied upon by the EC,
namely 1,430 KT for 2006, is largely underestimated. The total EC production of the like product is
significantly higher. As a result, the 25 per cent threshold was not met. The EC thus violated
Article 5.4 of the AD Agreement by initiating this investigation.

C. THE EC'S DETERMINATIONS OF THE "DOMESTIC INDUSTRY" VIOLATED
ARTICLES 4.1 AND 3.1 OF THE AD AGREEMENT

16. The determination of the domestic industry in the anti-dumping investigation which led to the
measure at issue suffers from several substantive flaws.

17. First, the EC violated Articles 4.1 and 3.1 of the AD Agreement by excluding from the outset
from the definition of the domestic industry all th ose companies that did not make themselves known
within 15 days as of the date of publication of the notice of initiation as well as those companies that
did not support the investigation. Article 4.1 only allows the exclusion from the outset of two specific
categories of producers. By excluding other categories, the EC violated Article 4.1 of the AD
Agreement. This is furthermore contrary to Ar ticle 3.1 which requires investigating authorities to
carry out an "objective examination" of the domestic industry that is based on positive evidence.

18. Second, the EC violated Article 4.1 of th e AD Agreement since the domestic industry, as
defined by the EC, did not include domestic producers whose collective output of the like product
constituted a major proportion of the total domestic production.

19. In its Definitive Regulation, the EC indi cated that the producers constituting the domestic
industry represented 27 per cent of the total production of the like product.

20. The volume of total EC production on the basis of which this percentage has been calculated
has been largely underestimated, however. The "d omestic industry" as defined by the EC represented
significantly less than 27 per cent of the actual total production of the like product in the EC and thus
did not constitute a "major proportion".

21. In any case, 27 per cent of total EC produc tion does not constitute a "major proportion"
within the meaning of Article 4.1 of the AD Agreem ent. A "major proportion" cannot be equated to

25 per cent or more of total domestic production as th e EC seems to consider. A "major proportion"
refers to an important, serious or significant proporti on of the domestic industry. This has not been
satisfied in the context of this investigation. The 27 per cent of total production represented by the
domestic industry, as defined by the EC, consiste d of only 46 producers out of more than 300
companies (and even more according to the data submitted by the Chinese exporting producers), from
which 114 came forward. Thus, these 46 companies re presented barely more than one quarter of EC
production, less than one sixth of the total number of EC producers estimated by the EC and less than
half of those which came forward in the context of th e investigation. In such a context, the domestic
industry as defined by the EC can hardly be re garded as constituting a "major proportion" and
therefore fails to meet the threshold set out in Article 4.1 of the AD Agreement.

22. Third, the domestic industry was defined by re lying exclusively on data relating to 2006. By
failing to define the domestic industry on the b asis of data concerning the Investigation Period
(1 October 2006 until 30 September 2007), the EC vi olated Article 3.1 of the AD Agreement that
requires the investigating authorities to make a dete rmination of injury that involves an objective
examination of the domestic industry.

23. Fourth, in order to make its injury determ ination, the EC selected a sample of domestic
producers, namely 6 producers amounting only to 17.5 per cent of the total EC production. The EC
violated Article 4.1 since the sample thus select ed does not represent a major proportion of total
domestic production. The EC also violated Article 3.1 since this sample cannot be regarded as
representative of the total domestic production.

24. Fifth, the EC violated Article 4.1 of the AD Agreement by failing to exclude from the
definition of the domestic industry EC producers that were related to the exporters or importers or
were themselves importers of the allegedly dumped product. The evidence in the file demonstrates
that the EC included in the definition of the dom estic industry (and even selected in the sample)
producers that had set up subsidiaries in China whos e production was principally destined for the EC
market.

D. THE EC'S DETERMINATIONS OF THE "LIKE PRODUCT" VIOLATED ARTICLES 2.1
AND 2.6 OF THE AD AGREEMENT

25. The EC violated Articles 2.1 and 2.6 of the AD Agreement in concluding that the fasteners
produced and sold by the Community industry in th e Community, fasteners produced and sold on the
domestic market in the PRC, those produced and so ld on the domestic market in India and those
produced in the PRC and sold to the Community were "alike".

26. The EC noted that the vast majority of – if not all – exports of the product concerned by the
investigated companies were "standard" fasteners. Instead, a substantial part of the EC production
concerned "special" fasteners.

27. The EC noted that the difference between "standard" and "special" fasteners was so
significant that it should be taken into account for the purposes of the dumping and injury margin
calculations.

28. The EC considered nonetheless that the products manufactured in China and in the EC were
"like" on the ground that "many of the types manuf actured in the PRC for export to the Community
and those manufactured by the Community industr y were largely marketed under similar industry
standards." However, the fasteners produced in Chin a for export to the EC and those produced by the
EC industry are not like due to their differences in ph ysical and technical characteristics, their lack of
interchangeability and their differences in end-uses and prices.

29. The EC industry produced much more sophisti cated "special" fasteners which, while normally
complying with industry standards, must also comply with additional specific customer requirements.
This means that they have different properties than those of standard fasteners and are not
"comparable" or "like". Moreover, standard and sp ecial fasteners have different end-uses and are not
interchangeable. Finally, the significant differences in the average prices between Chinese fasteners
and fasteners produced by the EC industry can only be explained by the fact that the EC industry
supplies a higher market segment which, as noted by the EC, is "significantly more expensive to
produce and to sell" but "generate higher revenues than standard products".

E. THE EC'S DETERMINATION OF DUMPIN G VIOLATED ARTICLE 2.4 OF THE AD
AGREEMENT

30. For all exporting producers, the normal valu e was determined on the basis of the data
provided by one Indian producer. The EC stated that the normal value had been calculated per
product type and thus not on the basis of the Produc t Control Numbers (PCN) that were supposed to
be used for making the comparison. Despite repeat ed requests for clarification, the EC refused to
provide relevant information regarding the "product types" and the comparison methodology. It only
stated that the comparison had not been made on the full PCN but on part of the characteristics,
namely the strength class and the distinction between special and standard fasteners.

31. The EC violated Article 2.4 of the AD Agreement, first, since the EC did not make the
comparison between normal value and export price on a PCN basis. By comparing the export price
data provided by the Chinese exporters on a PCN b asis with normal value data provided by the
producer in the analogue country on a "product type" basis, the EC failed to make a fair comparison.

32. Second, the only adjustment made by the EC concerned the alleged difference in quality
control costs. The EC violated Article 2.4 sin ce it failed to make adjustments for differences in
physical characteristics that affect price comparab ility and which were reflected in the characteristics
used for the construction of the PCNs. It also viol ated Article 2.4 given that it failed to make further
adjustments regarding the differences in quality between the fasteners pr oduced by the Chinese
exporting producers and the fasteners produced by the Indian producer.

F. THE EC VIOLATED ARTICLES 3.1 AND 3.2 OF THE AD AGREEMENT IN ITS
UNDERCUTTING CALCULATIONS

33. The EC has acknowledged that the undercutti ng margins have not been calculated on the
basis of the full PCNs but rather on the basis of simplified product groupings.

34. By eliminating important product characteristi cs in order to "simplify" the PCNs, the EC
grouped together fasteners with very different physi cal characteristics and prices, thus failing to make
an "objective" examination of the impact of prices on the EC industry.

35. These distortions have been compounded by the methodology applied by the EC to
differentiate between special and standard fasteners. All or almost all fasten er types exported by the
Chinese exporting producers were standard fasten ers while most fasteners produced by the EC
producers were special fasteners.

36. The EC thus violated Articles 3.1 and 3.2 of the AD Agreement.

G. THE EC VIOLATED ARTICLES 3.1, 3.2, 3.4 AND 3.5 OF THE AD AGREEMENT IN ITS
EXAMINATION OF THE VOLUME OF DUMPED IMPORTS

37. When examining the volume of dumped imports , the EC incorrectly treated all imports from
China as being dumped.

38. First, while the EC had found that two of the Chinese exporting producers which were subject
to individual examination were not dumping, th e EC failed to exclude the imports of those two
Chinese exporting producers from the volume of dumpe d imports. The EC thus violated Articles 3.1
and 3.2 of the AD Agreement.

39. Second, the EC incorrectly included in th e volume of dumped imports all imports from non-
sampled exporting producers that were not individually examined. Indeed, after having found that
two exporting producers were not dumping, the EC c ould not automatically assume that imports from
all exporting producers that were not examined were dumped. The EC therefore violated Articles 3.1
and 3.2 of the AD Agreement.

40. By failing to properly determine the "dumped imports" the EC also violated Article 3.4 and
3.5 of the AD Agreement.

H. THE EC VIOLATED ARTICLES 3.1 AND 3.4 OF THE AD AGREEMENT BECAUSE IT
FAILED TO OBJECTIVELY EXAMINE ON THE BASIS OF POSITIVE EVIDENCE THE
IMPACT OF THE ALLEGEDLY DUMPED IMPORTS ON DOMESTIC PRODUCERS OF
THE LIKE PRODUCT

41. First, the EC failed to examine the injury f actors in relation to an EC industry defined in a
consistent manner. In fact, the EC examined production, production capacity, capacity utilization,
sales, market share, employment and productivity for the Community industry, as defined by the EC,
that is, 46 Community producers claiming to repr esent 27 per cent of the total EC production.
Instead, the other injury factors were examined fo r the sampled producers only, that is, six producers
allegedly representing 17.5 per cent of the total EC production.

42. The EC should have consistently used the same set of companies in order to make its injury
analysis rather than examining some injury factor s in relation to a domestic industry consisting of 46
producers and other factors in relation to a domestic industry consisting of 6 sampled producers. This
lack of consistency is fundamentally non-objective and biased and therefore contrary to Articles 3.1
and 3.4 of the AD Agreement.

43. Second, the EC's analysis of the "profitab ility" of the domestic industry, namely that the
alleged dumped imports had a "negative impact on prof itability" and that the level of profitability was
"low" while the evidence pointed to the contrary, is not "objective" and is therefore contrary to the
requirements of Articles 3.1 and 3.4 of the AD Agreement.

44. Third, the EC incorrectly concluded that the do mestic industry suffered material injury while
an objective examination of the relevant factors pur suant to Article 3.4 shows a positive state of the
domestic industry. In fact, the sole factor possi bly showing a negative trend was a declining market
share in a rapidly growing market. A finding of injury, however, cannot solely be based on one
negative factor. Moreover, the decrease in market share only concerned the relative sales volume of
the domestic industry and not the absolute sales volume, sales prices or total sales revenue.
Therefore, through its analysis of the impact of the alleged dumped imports on the state of the
domestic industry, the EC violated Articles 3.1 and 3.4 of the AD Agreement.

45. Fourth, by concluding that the material in jury resulted from the displacement of Community
products by Chinese imports in some important market segments, the EC violated Articles 3.1 and 3.4

of the AD Agreement. Indeed, once the EC had de fined the "like product" as including both standard
and special fasteners, it could not find injury as resulting from a displacement of sales from one
product segment to another product segment within the same "like product".

I. THE EC VIOLATED ARTICLES 3.1 AND 3.5 OF THE AD AGREEMENT IN
CONCLUDING THAT THE ALLEGED DUMPED IMPORTS CAUSED MATERIAL
INJURY

46. The EC violated Articles 3.1 and 3.5 of the AD Agreement in two ways.

47. First, the EC failed to demonstrate that the alleged dumped imports "are, through the effects
of dumping, causing injury" to the domestic industry. The EC concluded that there was a causal link
on the basis that the "significant increase in the volume of dumped imports from the PRC […]
coincided with the continuously declining loss of market share of the Community producers."
However, a mere temporal coincidence does not de monstrate that the alleged dumped imports are,
through the effects of dumping, causing injury. Moreove r, the EC failed to consider in its analysis of
the "effects of the imports of the PRC" the fact that the EC industry decided to improve its presence in
the higher quality market segments by increasingl y producing special fasteners which command a
higher unit price, but are also produced in smaller quantities.

48. Second, the EC failed to properly assess the injurious effects of other known factors.

49. The EC noted that the "increase in raw materi al prices" constituted a factor that caused injury
but considered that it was not "the decisive fa ctor" without explaining the reasons for such a
conclusion. In fact, the increase in raw material prices made it more attractive for the domestic
industry to focus on high quality products which generated higher revenues and permitted the industry
to arrive at a reasonable profit margin during the IP . This explains why the EC producers lost market
share while increasing their sales revenue by 21 per cent. Indeed, high quality fasteners are
manufactured in smaller quantities but are sold at higher prices.

50. Regarding the "exports of the EC industry to third countries", the EC reported a substantial
increase in export volumes, namely by 81 per cent. The EC, however, noted that these exports were
made at prices significantly above the sales prices on the EC market and therefore concluded that they
could not have been a cause of injury to the EC i ndustry. This conclusion, however, is based on data
relating to EC producers as a whole and cannot be extrapolated to the EC industry as defined by the
EC for the purposes of the injury determination.

J. THE EC VIOLATED SEVERAL PROCEDURAL REQUIREMENTS UNDER
ARTICLES 6 AND 12 OF THE AD AGREEMENT

51. The anti-dumping investigation which led to the measure at issue is characterized by
numerous violations of due process and procedural re quirements and a complete lack of transparency
of the findings and determinations made by the EC . Throughout the investigation, such lack of
transparency has made it impossible for the Ch inese exporting producers to properly defend their
interests. This affected all stages of the anti- dumping investigation, i.e., standing, dumping and
injury.

52. First, the EC violated Articles 6.5, 6.5.1, 6.2 and 6.4 of the AD Agreement by failing to
disclose the identity and the volume of production of the Complainants.

53. Second, the EC violated Articles 6.5, 6.2, 6.4 and 6.9 of the AD Agreement by failing to
provide information concerning (i) the normal value determinations including on the "product types"
that were used to determine the normal value and the comparability with the exported PCNs and (ii)
the adjustments for differences affecting price comparability.

54. Third, the EC violated Articles 6.5, 6.2 and 6.4 of the AD Agreement since the non-
confidential versions of the questionnaire responses submitted by the EC producers and by the Indian
producer in the analogue country were largely deficient.

55. Fourth, the EC violated Articles 6.5, 6.2 and 6.4 of the AD Agreement by failing to disclose
the Eurostat data allegedly used to determine the production volume in the EC and by failing to
provide an explanation as to how the estimation of the production volume in the EC had been made.

56. Fifth, the EC violated Articles 6.2, 6.4 a nd 6.9 of the AD Agreement by failing to give access
to relevant information on the definition of the domestic industry and by failing to provide such
information to interested parties.

57. Sixth, the EC violated Article 12.2.2 of th e AD Agreement by failing to indicate all relevant
information concerning its IT determinations, i.e. , not only whether each company requesting IT was
granted IT, but also the reasons for its determination.

58. Seventh, the EC violated Article 6.5 of the AD Agreement by disclosing the document
entitled "Assessment of Market Economy Treatment Claims by nine producers in the PRC" to
interested parties other than to each of the exporting producers concerne d while the information
concerned was confidential.

59. Eighth, the EC violated Article 6.1.1 of the AD Agreement by requesting Chinese exporting
producers to submit their questionnaire responses concerning MET/IT within 15 days as of the date of
publication of the notice of initiation.

III. CONCLUSIONS

60. For the reasons stated above, China requests th at the Panel find that the two measures at issue
violate various provisions (as identified above) of the GATT 1994, the AD Agreement and the
Agreement Establishing the WTO and that the Pane l recommend to the Dispute Settlement Body to
request that the EC bring the contested measures in to conformity with its obligations under the AD
Agreement and the GATT 1994. China also requests that the Panel suggests that the EC implement
the recommendations and rulings of the DSB by withdrawing the contested measures.

ANNEX A-2

EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION
OF THE EUROPEAN UNION

I. INTRODUCTION

1. In this submission, the European Union will examine China's claims in the order they were
presented in China's First Written Submission. Pr eliminary issues are addressed under each of the
relevant claims. In particular, the European Uni on will address first China's claims with respect to
Article 9(5) of Council Regulation No 384/96, as am ended. Then, the European Union will address
China's claims against Council Regulation No 91/2009 in the consecutive order followed by China in
its First Written Submission.

II. CHINA'S "AS SUCH" CLAIM AGAINST ARTICLE 9(5) OF COUNCIL
REGULATION NO 384/96, AS AMENDED

2. The European Union understands the measure at issue, which falls within the mandate of the
Panel, to be Article 9(5) of Council Regulation No 384/96, as ame nded, insofar as that provision
provides that, in case of imports from non-market economy countries: (i) an individual anti-dumping
duty shall be specified for suppliers that can de monstrate, on the basis of properly substantiated
claims, that they fulfil the five criteria listed in that provision; otherwise, (ii) the anti-dumping duty
shall be specified for the supplying country concerne d and not for each supplier. China claims that
those aspects of Article 9(5) of Council Regulation No 384/96, as amended, are "as such" inconsistent
with Articles 6.10, 9.2, 9.3, 9.4 and 18.4 of the Anti-Dumping Agreement, Articles I and X:3(a) of the
GATT 1994 and Article XVI:4 of the WTO Agreement. This results from the manner in which China
described the measure at issue in its Panel Request. Thus, the "matter" on which the Panel has to rule
with respect to the "as such" claim brought by Chin a is strictly the following: is Article 9(5) of
Council Regulation No 384/96, as am ended –insofar as it provides that, in case of imports from non-
market economy countries, an individual anti-dumping duty shall be specified for suppliers that can
demonstrate, on the basis of properly substantiated claims, that they fulfil the five criteria listed in that
provision; and that, otherwise, the anti-dumping dut y shall be specified for the supplying country
concerned and not for each supplier– as such in consistent with the provisions of the covered
agreements invoked by China? Anything beyond th is question would be, in the European Union's
view, outside the Panel's terms of reference and, thus, the Panel should refrain from examining any
other matter raised by China in connection with its "as such" claim. In particular, the European Union
submits that, contrary to the re quirements under Article 6.2 of the DSU, China's Panel Request failed
to present the problem clearly, at least, with respect to its claims relating to Articles 6.10, 9.3 and 9.4
of the Anti-Dumping Agreement and Article X:3(a) of the GATT 1994. Consequently, the European
Union requests the Panel not to examine those claims . In addition, the European Union requests the
Panel to refrain from examining measures and issues outside its terms of reference in relation to
China's "as such" claim, including Article 9(5) of Council Regulation No 1225/2009, any matters
pertaining to the calculation or individual determ ination of dumping margins, or any other matters
different from the one specifically identified by China in its Panel Request.

3. In any event, China's claims against Ar ticle 9(5) of Council Regulation No 384/96, as
amended, are based on a wr ong understanding of the rele vant provisions in the Anti-Dumping
Agreement as well as China's Protocol of Accession. Indeed, China fundamentally ignores the
meaning of Article 9.2 of the Anti-Dumping Agreement and focuses on a parallelism between

Article 6.10 of the Anti-Dumping Agreement and Article 9.4 of the Anti-Dumping Agreement .
Article 9.2 of the Anti-Dumping Agreement does not contain a principle to impose individual anti-
dumping duties per known exporter or producer; rather, this provision seems to allow for the
imposition of anti-dumping duties on a country-wide basis. Even assuming that Article 9.2 of the
Anti-Dumping Agreement can be read as containing such a principle, the imposition of anti-dumping
duties on a country-wide basis is expressly provided for in Article 9.2 of the Anti-Dumping Agreement
("if it is impracticable to name all these suppliers"). Seen in its context and in view of its object and
purpose, Article 9.2 of the Anti-Dumping Agreement implies that the imposition of country-wide anti-
dumping duties is permitted in cases where such impos ition on individual basis would result in the
measure being ineffective. Moreover, contrary to what China alleges, Article 6.10 of the Anti-
Dumping Agreement cannot be read as providing for only one exception to the determination of
dumping margins on an individual basis (i.e., sampli ng). As the relevant case-law shows, a single
dumping margin can be determined for the actual pr oducer and the source of the price discrimination,
even if there are several exporters involved. Th is is fundamentally the situation in non-market
economy countries, where State control over the means of production and State intervention in the
economy including international trade imply that all imports are considered to emanate from a single
producer, which is the source of the alleged price discrimination. In other words, the relevant
exporter for which an individual dumping margin should be determined in case of non-IT suppliers
(i.e., companies whose export activities are not de jure and de facto sufficiently independent from the
State) is the State. The country-wide dumping margin serves as the maximum ceiling for the proper
duty rate which the supplying country, that is the act ual supplier including non-IT suppliers, is subject
to. The application of a single duty rate is also necessary to avoid circumvention of the duties in those
cases where suppliers do not act independently from th e State (i.e., in order to avoid the channelling
of exports through the supplier with the lowest duty rate). Finally, China advances a partial, very
limited reading of its Protocol of Accession. Contrary to what China alleges, its Protocol of
Accession, including the Working Party Report, is no t strictly limited to derogating from the rules of
the Anti-Dumping Agreement only as far as the determination of the normal value is concerned.
Indeed, China's Protocol of Accession provides useful context to confirm the conclusion that, in the
case of imports originating in China, anti-dumping duties can be specified on a country-wide basis
when suppliers cannot show that market economy cond itions prevail with regard to the manufacture,
production and sale of the product concerned.

4. The European Union observes that China's clai ms under Articles 6.10, 9.3, 9.4 and 18.4 of the
Anti-Dumping Agreement, Articles I:1 and X:3(a) of the GATT 1994 and Article XVI:4 of the WTO
Agreement are entirely dependent on a finding that Article 9(5) of Council Regulation No 384/96, as
amended, "as such" infringes Article 9.2 of the Anti-Dumping Agreement . Indeed, China's claim
under Article 6.10 of the Anti-Dumping Agreement is based on a wrong understanding of the
parallelism between the imposition of anti-dumping duties and the determination of individual
dumping margins. Further, China's claims under Articles 9.3 and 9.4 of the Anti-Dumping Agreement
are based on the assumption that the in vestigating authority is obliged to determine an individual anti-
dumping duty per company. Likewise, the claim under Article I:1 of the GATT 1994
 depends on a
finding as to whether the Anti-Dumping Agreement permits an investigating authority to require
suppliers in case of imports from non-market econom y countries to prove that certain conditions are
met. If the Anti-Dumping Agreement so permits, in view of the lex specialis principle, no violation of
Article I:1 of the GATT 1994 can be found. Similarly, the claims under Article 18.4 of the Anti-
Dumping Agreement and Article XVI:4 of the WTO Agreement are entirely dependent on a finding
that Article 9(5) of Council Regulation No 384/96, as amended, is "as such" inconsistent with other
claims raised by China.

III. CLAIM 1: ARTICLE 9(5) OF COU NCIL REGULATION NO 384/96 "AS APPLIED"
IN COUNCIL REGULATION NO 91/2009 (ARTICLES 6.10, 9.2 AND 9.4 OF THE
ANTI-DUMPING AGREEMENT)

5. China's claim is based on the assumption that the application of Article 9(5) of Council
Regulation No 384/96, as amended, is inconsistent with Articles 6.10, 9.2 and 9.4 of the Anti-
Dumping Agreement in all cases. As the European Union has shown before, China's "as such" claim
is without merit. Therefore, the Panel should al so reject China's claim in connection to Council
Regulation No 91/2009. In addition, the European Union notes that China's claim under Article 9.4 of
the Anti-Dumping Agreement is outside the Panel's terms of refe rence and that China is challenging a
non-existent measure.

IV. CLAIM 2: STANDING OF THE EU DOMESTIC INDUSTRY FOR THE PURPOSES
OF INITIATION (ARTICLE 5.4 OF THE ANTI-DUMPING AGREEMENT)

6. China has not consulted with the European Un ion on the new claim in the Panel Request, as
required by Article 4 of the DSU. Moreover, China's Panel Request is not specific and does not set
out the problem clearly, as required by Article 6.2 of the DSU. The European Union also notes that
Notice of Initiation 2007/C 267/11 is not a measure at issue and the relevant matter is outside the
Panel's terms of reference. Turn ing to the substance of the matter, the European Union submits that,
manifestly, it did examine the standing issue prio r to initiation. Finally, the European Union
considers that China's assertion that Eurostat figures are incorrect and that the domestic producers
expressly supporting the application accounted for less than 25 per cent of total production of the like
product produced by the domestic industry is both outside the Panel's terms of reference and incorrect.

V. CLAIM 3: DETERMINATION OF "DOMESTIC INDUSTRY" (ARTICLES 4.1 AND
3.1 OF THE ANTI-DUMPING AGREEMENT)

7. China claims that the EU's determination of "domestic industry" violated Articles 4.1 and 3.1
of the Anti-Dumping Agreement . In particular, China presents five sets of claims against the EU's
determination of the domestic industry. All five of these claims are to be rejected. First, China claims
that the European Union was not allowed to define the domestic industry as consisting of only those
cooperating producers supporting the complaint that made themselves known within 15 days of
initiation of the investigation. The European Union c onsiders that China's claim is to be rejected for a
number of reasons. First, China's claim is not prop erly before the Panel since it was not subject to
consultations and this claim is thus outside the pa nel's mandate. Second, Articles 4.1 and 3.1 of the
Anti-Dumping Agreement do not impose a requirement to include any and all producers of the like
product in the definition of the domestic industry. Article 4.1 allows an authority to define the
domestic industry as consisting of all producers of th e like product or of only those producers that
represent a major proportion of total domestic produc tion. There is no hierarchy of preference
between these two possibilities. It is therefore entir ely legitimate to define the domestic industry in
the more limited manner that the European Union considered to be appropriate in this case.
Article 3.1 deals with the quality of the evidence pr ovided with respect to the industry as defined in
accordance with Article 4.1 and the manner in which th is evidence is examined by the authority. It
does not impose obligations in respect of the defin ition of the domestic industry as such. In any case,
the 15-days deadline that was used as the basis for determining the group of producers that would
constitute the domestic industry is an objective crite rion that does not favour either side. China has
failed to demonstrate that this limitation preven ted an objective examination of the state of the
domestic industry.

8. Second, China argues that the domestic indus try as defined by the European Union does not
consist of producers producing "a major prop ortion" of domestic output since these producers
represent "only" 27 per cent of total domestic produc tion. China's interpretation of the term "a major

proportion" in Article 4.1 is in error. China ar gues that a major proportion has to be as close as
possible to 100 per cent. The WTO case law to wh ich China itself refers with approval clearly
disavows this erroneous interpretati on considering that "a major proportion" is an "important, serious
or significant" proportion. It is clear that 27 per cen t is a significant proportion of production. China
presents no arguments or evidence to contradict th is conclusion in the context of the particular
circumstances of this case. The Eu ropean Union therefore requests th e Panel to reject China's claim
that the EU's definition of the domestic industry violated Article 4.1 of the Anti-Dumping Agreement.

9. Third, China argues that the domestic i ndustry was "not defined in relation to the
investigation period" and therefore violates Article 3.1 of the Anti-Dumping Agreement. China errs
both in respect of the facts on the record and in resp ect of the applicable law. It is not so, as China
erroneously argues, that the authority examined injury data for a particular 2006 – 2007 period but
examined only 2006 data to determine that the dom estic producers represented a major proportion of
total domestic production. In addition, Article 3. 1 simply does not impose an obligation to expressly
determine the existence of a majo r proportion with respect to the period of investigation for dumping
purposes. A recent and relevant period was used c onsisting mainly of the last full year for which
statistical data were available. China does not pr esent evidence to disavow the authority's reasonable
conclusion. There is therefore no factual nor legal basis for China's claim of violation in respect of
the EU's determination of the domestic industry in the context of the investigation period.

10. Fourth, China argues that the determination of injury on the basis of a sample of domestic
producers representing only 17 per cent of total domes tic production violates Article 4.1 and 3.1 of
the Anti-Dumping Agreement since the sampled producers do not represent a major proportion of total
domestic production. China fails to demonstrate that Article 4.1 imposes any obligation in respect of
sampling. Furthermore, it would not make sense to require a sample to comply with the same "major
proportion" obligation that the domestic industry itself is to comply with. The requirement of
Article 3.1 is arguably that the sample should be sufficiently representative of the domestic industry
as a whole, as defined in accordance with Article 4.1. That is different from requiring that the sample
be representative of the totality of the domestic pr oducers as a whole, as China erroneously alleges to
be required. China's argument in respect of the volume of total production represented by the
sampled producers is without merit.

11. Fifth, China argues that the European Un ion should have excluded a number of domestic
producers from the definition of the domestic industry for the simple reason that these producers were
related to producers/exporters in China and that the European Union failed to objectively examine this
relationship. However, China acknowledges that no such obligation to exclude all related domestic
producers exists in the Anti-Dumping Agreement. The Agreement permits, under certain conditions,
the authority to exclude related producers, but certainly does not require an authority to do so. No
obligation to objectively examine the relationship therefore exists either. In any case, China fails to
demonstrate that the facts do not support the reasonable finding of the authority that the centre of
interest of these domestic producers remained in the EU and that it was therefore neither necessary
nor appropriate to exclude these producers from the scope of the domestic industry.

12. In sum, all of China' claims under Articles 3.1 and 4.1 of the Anti-Dumping Agreement in
respect of the EU's definition of the domestic industry are to be rejected.

VI. CLAIM 4: SELECTION OF THE PR ODUCT CONCERNED (ARTICLES 2.1 AND
2.6 OF THE ANTI-DUMPING AGREEMENT)

13. As is well known, the issue of what is the product concerned and the issue of what is the like
product are distinct issues. Having no case on either issue, China attempts to collapse both issues into
a single line of argument. China ignores the fact that the measure at issue does not contain any
determination to the effect that standard fasteners ar e like special fasteners, so China is referring to a

non-existent determination. Similarly, China ignores the fact that the like product standard does not
apply to the selection of the product concerned, so China is invoking a non-existent obligation. Thus,
China's claim is based upon impugning a non-existent determination by reference to a non-existent
obligation. Therefore, the Panel must reject this claim.

VII. CLAIM 5: DETERMINATION OF DUMPING (ARTICLE 2.4 OF THE ANTI-
DUMPING AGREEMENT

14. China alleges that the European Union fa iled to make a fair comparison as required by
Article 2.4 of the Anti-Dumping Agreement between normal value and export price because the
authority did not base this comparison on the full Product Control Number ("PCN"). China fails to
establish a prima facie case of violation. First, Ch ina fails to even discuss the relevant sections of the
Council Regulation No 91/2009. Furthermore, Article 2.4 of the Anti-Dumping Agreement does not
specify the methodology to be followed in order to co nduct a fair comparison. The mere fact that the
comparison was not made on the basis of the full PCN cannot ipso facto constitute a violation of
Article 2.4 as erroneously argued by China. Chin a misunderstands the role and relevance of the
PCNs. In any case, it is clear that the authority co mplied with the obligation to make adjustments for
those differences that the interest ed parties demonstrated as affecting the price comparability. In
particular, the European Union ensured a fair co mparison by distinguishing between products on the
basis of strength class and between standard and special fasteners. In sum, China failed to
demonstrate that the authority violated its obligations under Article 2.4 of the Anti-Dumping
Agreement.

VIII. CLAIM 6: PRICE UNDERCUTTING ANALYSIS (ARTICLES 3.1 AND 3.2 OF THE
ANTI-DUMPING AGREEMENT)

15. China argues that the Eu ropean Union violated Articles 3.1 and 3.2 of the Anti-Dumping
Agreement since the authority allegedly failed to make a price undercutting analysis on the basis of
the full PCN. China's claim is to be rejected. Fi rst, China's claim was not part of its request for
consultations and this matter has therefore not been subject to consultations. This claim is therefore
outside the Panel's terms of reference. Furthermore, Article 3.2 of the Anti-Dumping Agreement does
not require any particular methodology for conducting a price undercutting analysis and China's claim
that the European Union violated its obligations si mply because it used a "simplified" PCN is thus
clearly without merit. Finally, China fails to demonstrate that the undercutting analysis was
conducted in a non-objective or biased manner simp ly because it did not use the full PCN. The
adjustment that may be required in the context of the injury analysis are not necessarily the same as
those that are required by Article 2.4 of the Anti-Dumping Agreement in the context of a comparison
between normal value and export price where the fo cus is on cost-related differences. In a price
undercutting analysis the emphasis is on market-rel ated differences. China's proposed parallelism
with the fair comparison requirement is thus ina pposite. In sum, China's claims under Articles 3.1
and 3.2 of the Anti-Dumping Agreement in respect of the price undercutting analysis are to be
rejected.

IX. CLAIM 7: EXAMINATION OF THE VOLUME OF DUMPED IMPORTS
(ARTICLES 3.1, 3.2, 3.4 AND 3.5 OF THE ANTI-DUMPING AGREEMENT)

16. China argues that the European Union violated its obligations under Articles 3.1, 3.2, 3.4 and
3.5 because the authority failed to exclude the volum e of two exporters that were found not to be
dumping from its volume analysis under Article 3.2 and because the authority assumed for the
purposes of that same volume analysis that all non- examined exporters were dumping. The European
Union requests the Panel to reject China's claim in th is respect. First, China's argument in respect of
the two exporters for which a zero margin of dumpi ng was found to exist is misguided and elevates
form over substance. The European Union submits that the authority objectively considered whether

the volume of dumped imports significantly increased and the fact that it did not exclude imports
representing an insignificant amount of total imports from the volume of dumped imports does not
detract from this conclusion. Second, China errs that the authority was not entitled to include the
imports of all non-examined producers in the tota l volume of dumped imports. Since all of the
sampled producers were found to be dumping, the au thority was entitled to conclude by extrapolation
that all imports from non-examined producers were equally dumped. This is precisely one method for
determining the volume of dumped imports that the A ppellate Body considered to be appropriate in a
sampling context. China's consequential claims under Articles 3.4 and 3.5 are thus equally flawed.
However, even if the Panel were to find that the European Union violated its obligation under
Article 3.2 of the Anti-Dumping Agreement for reason of the fact that it did not exclude the volume of
the two exporters not found to be dumping, it is still clear that this alleged error of marginal
importance cannot be considered to vitiate the entire injury analysis. China's claims under Article 3.4
and 3.5 of the Anti-Dumping Agreement are therefore in any case to be rejected.

X. CLAIM 8: IMPACT OF DUMPED IMPORTS ON DOMESTIC PRODUCERS
(ARTICLES 3.1 AND 3.4 OF THE ANTI-DUMPING AGREEMENT)

17. China argues that the European Union violated its obligations under Articles 3.1 and 3.4 of
the Anti-Dumping Agreement to objectively examine the impact of the dumped imports on the
situation of the domestic industry. China presents four equally flawed arguments in this respect.
First, China asserts that the EU's injury determinat ion is flawed because the authority allegedly did
not consistently use the same dataset for examining injury. China's argument is misguided since the
authority consistently used data relating to the sa me domestic industry. The fact that the authority
examined certain factors on the basis of data re lating to a representative sample of the domestic
industry while other factors were examined based on data relating to all producers that are part of the
domestic industry does not vitiate the objectivity of the analysis in any way. It is not because
sampling is used that it would not be permissible for an authority to base certain of its conclusions on
the more complete dataset, where available. China has certainly not demonstrated otherwise. China's
only example of an alleged bias does not accurately reflect the facts on the record.

18. Second, China argues that the European Un ion failed to objectively examine the factor
"profitability" and points to allegedl y conflicting statements in respect of this factor in the authority's
findings. However, China does not actually provid e evidence that the authority's findings are not
proper but simply points to an alleged difference be tween the preliminary determination and the final
determination. Furthermore, a pr oper reading of the findings and conc lusions of the authority reveals
that China appears to base its argument on a mi sunderstanding of the aut hority's factual findings.
China's argument is thus clearly without merit and is to be rejected.

19. Third, China argues that the European Uni on failed to conduct an objective examination of
the evidence on the record, as th e authority allegedly based its injury finding on negative
developments in respect of only one of the injury factors of Article 3.4 of the Anti-Dumping
Agreement, market share. The European Union submits that China's presentation of the facts and of
the relevant findings of the authority is not accurate. It is clear that the injury determination was not
based on only one factor, and that the authority fo und that a number of factors showed a negative
development when examined in the light of the si gnificant increase in demand. China's argument that
the loss of market share was caused by the increase in raw material prices is an argument that is
relevant to the question of causation and non-attribution but is not germane to the injury determination
under Article 3.4. The European Union submits th at China is in reality requesting the Panel to
examine the facts on the record and to determine wh ether it would have reache d the same conclusion
of injury as the authority did. Article 17.6 of the Anti-Dumping Agreement states clearly that this is
not the role of the Panel.

20. Fourth, China asserts that the European Uni on improperly concluded that the injury consisted
of the displacement from one market segment to anot her, while injury should be determined for the
product as a whole. China's claim is based on a misunderstanding of the findings of the authority in
this respect. The authority referred to such displ acement as an indicator of how the industry tried to
deal with the competition from the dumped imports (whi ch were concentrated in the standard fastener
market) by moving into the special fastener market. The authority's conclusion is that in so doing the
industry was able to mitigate the negative effects of the dumped imports. The authority did not make
the findings suggested by China.

21. For all of these reasons, the European Union requests the Panel to reject China's claim under
Articles 3.1 and 3.4 of the Anti-Dumping Agreement in respect of the authority's injury analysis.

XI. CLAIM 9: CAUSATION AND NON-ATTRIBUTION ANALYSIS ARTICLES 3.1
AND 3.5 OF THE ANTI-DUMPING AGREEMENT)

22. China claims that the EU's causation and non-a ttribution analysis violated Articles 3.1 and 3.5
of the Anti-Dumping Agreement. China's claim is without merit. First, China's argument in respect of
the causation analysis is limited to the specula tive assertion that if the domestic industry had not
decided to move into the specialty fastener segment it would not have lost market share. China's
assertion unduly limits the injury to a loss of market share and is contradicted by the facts on the
record. China fails to point to any flaws in the authority's findings in respect of the causal link
between dumped imports and consequent injury to the domestic industry.

23. Second, China's allegation that the authority di d not adequately distinguish the effects of other
factors such as the increase in ra w material prices and the export performance of the EU industry is
equally unsubstantiated. It is clear from the record that the authority examined the role of the increase
in raw material prices but found that there did not exist a similar direct link between the increase in
raw material prices and the loss of market share as was found to exist in respect of the dumped
imports. China simply disagrees with the authority's assessment of the impact of this factor (raw
material prices). China does not demonstrate that the authority did not provide a reasonable and
reasoned explanation of how the facts support the determination made. China's claim in respect of the
authority's treatment of the export performance of the domestic industry is equally without merit.
China's unsubstantiated speculation about what could have happened had more of the export sales
been made on the domestic market is not relevant and is in any case contradicted by the facts on the
record. It was entirely reasonable of the authorit y to base its conclusions on statistical COMEXT
export data of the domestic industry to find that this relatively unimportant factor showed a positive
evolution and could not therefore be a cause of inju ry. China's claims under Articles 3.1 and 3.5 of
the Anti-Dumping Agreement relating to the authority's non-attribution analysis are thus to be rejected.

XII. CLAIM 10: CHINA'S PROCEDURAL CLAIMS UNDER ARTICLES 6 AND 12 OF
THE ANTI-DUMPING AGREEMENT

24. China has made 13 procedural claims under Articles 6 and 12 of the Anti- Dumping
Agreement. These claims allege th at the due process rights of interest ed parties have been violated
during the investigation that led to the adoption of Council Regulation No 91/2009.

25. The European Union demonstrates in its First Written Submission that several of these claims
are outside the Panel's terms of reference and that, in any event, the claims are unfounded to the extent
China has even made a prima facie case. China not only misrepresents the many different obligations
under Articles 6 and 12 of the Anti-Dumping Agreement but even more importantly appears to
confuse the relationship between the obligations that come within the scope of the relevant provisions
invoked by China and the relevant facts and evid ence provided by China. Under most of its
procedural claims, China simply makes an asserti on that the European Union has breached a given

obligation in the Anti-Dumping Agreement , but fails to develop any coherent argumentation or
provide any relevant evidence. In essence, China either expects the European Union to accept that the
mere formulation of an abstract claim is sufficien t to shift the burden of proof to the defendant or
expects the Panel to make the case on its behalf.

26. To the extent the Panel considers some of the claims to be within its jurisdiction, the
procedural claims by China are without merit and should be dismissed by the panel.

XIII. CONCLUSION

27. For the reasons set out in this First Writte n Submission, the European Union requests the
Panel to reject all of China's claims and arguments, finding instead that, with respect to each of them,
the European Union acted consistently with all its obligations under the Anti-Dumping Agreement, the
GATT 1994 and the WTO Agreement.