UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON RIPE OLIVES FROM SPAIN RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE EUROPEAN UNION REQUEST FOR THE ESTABLISHMENT OF A PANEL
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 17 July 2023
Document codes: WT/DS577/16
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, India, Japan, Mexico, Russia, Saudi Arabia, Switzerland, Turkey
Dispute stage: Panel
Agreements cited: Art. 1.1(a), 1.1(b), 1.2, 2.1(a), 2.1(b), 2.1(c), 2.4, 10, 14, 15.1, 15.2, 15.5, 19.1, 19.3, 19.4, 22.5, 32.1  Subsidies and Countervailing Measures (SCM)

UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON RIPE OLIVES
FROM SPAIN
RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE EUROPEAN UNION
REQUEST FOR THE ESTABLISHMENT OF A PANEL
The following communication, dated 14 July 2023, from the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

On 28 April 2023, the European Union (EU) requested consultations with the United States (US)
pursuant to Articles 1, 4 and 21.5 of the WTO Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU), Article 30 of the Agreement on Sub sidies and Countervailing
Measures (SCM Agreement), and Article XXIII of the General Agreement on Tariffs and Trade 1994
(GATT 1994), concerning the anti -dumping (AD) and countervailing (CVD) duties on ripe olives
from Spain imposed by the US, and concerning a "disagreement as to the existence or consistency
with a covered agreement of measures taken to comply with recommendations and rulings" in
DS577 United States – Anti-dumping and Countervailing Duties on Ripe Olives from Spain1.

The consultations to ok place in Geneva on 24 May 2023 and failed to resolve the dispute. Hence
the EU is requesting the establishment of a panel pursuant to Article 21.5 of the DSU.

In that regard, the EU also refers to the "Understanding between the United States and the
European Union Regarding Procedures under Articles 21 and 22 of the DSU", dated 13 February
2023 (Sequencing Agreement), which applies "for the exclusive purposes of this dispute" and, in
particular, points 1 and 2 thereof, which govern the procedures for the parties to proceed with the
establishment of a panel for purposes of compliance proceedings in this dispute.2

The measures at issue
The measures at issue include:
• the Final Determination of the USDOC of 20 December 2022 under section 129 of the
Uruguay Round Agreements Act (URAA), regarding the countervailing duty (CVD)
investigation of ripe olives from Spain 3 applicable as of 12 January 2023 as well as
USDOC's notice of implementation of 13 January 20234;

1 WT/DS577/15.
2 WT/DS577/14.
3 https://www.federalregister.gov/documents/2023/01/19/2023-00930/ripe-olives-from-spain-
implementation-of-determination-under-section-129-of-the-uruguay-round and
https://www.govinfo.gov/content/pkg/FR-2023-01-19/pdf/2023-00930.pdf
4 On January 12, 2023, the U.S. Trade Representative (USTR) directed Commerce to implement the
section 129 final determination. Commerce issued a notice to that effect on January 13, 2023. The notice of
the completed implementation was published in the U.S. Federal Register on 19 January, 2023, and can be
found at 88 Fed. Reg. 3384.https://www.federalregister.gov/documents/2023/01/19/2023-00930/ripe-olives-
from-spain-implementation-of-determination-under-section-129-of-the-uruguay-round

• the Preliminary Determination Memorandum of the USDOC of 23 September 20225;

• Section 771B of the Tariff Act of 1930,6 insofar as the inconsistency with Article VI:3 of
the GATT 1994 and Article 10 of the SCM Agreement has not been removed;

• the CVD duty order issued on 1 August 2018 by the USDOC and applicable as from the
same date, insofar as the Final Determination effectively amends and maintains it in force
and effect, at least with regard to the parts pertaining to the findings of the panel report
concerning the incompatibility as such and as applied with the WTO agreements in relation
to Section 771B.7

The legal basis for the complaint and the reasons for the request

Each of the measures at issue, considered individually in isolation or in any combination, appears
to be inconsistent with the US' obligations under Article 10 of the SCM Agreement and Article VI:3
of the GATT 1994.
This is, first, because the United State s did not take any measures to remove the "as such"
inconsistency of Section 771B with Article VI:3 of the GATT 1994 and Article 10 of the Agreement
on Subsidies and Countervailing Measures. In particular, the US has not repealed or amended
Section 771B. T herefore, Section 771B remains "as such" inconsistent with Article VI:3 of the
GATT 1994 and Article 10 of the Agreement on Subsidies and Countervailing Measures and the US
has failed to implement the DSB's recommendations and rulings.

In light of the above, it appears that, through its actions and omissions, the US has failed to
comply with the recommendations and rulings adopted by the DSB in relation to the inconsistency
"as such" and "as applied" with Article VI:3 of the GATT 1994 and Article 10 of the SCM Agreement
of Section 771B in the panel report8.

The measures taken by the US adversely affect exports to the US of ripe olives from Spain, and
also nullify or impact the benefits accruing to the EU and its Member States directly or indirectly
under the cited agreements.

This panel request relates to the measures at issue and to any amendments, supplements,
extensions, replacement measures, renewal measures and implementing measures, including but
not limited to any such measures referred to by either party during the panel proceedings.

The European Union respectfully requests that the Panel be established at the next DSB meeting in
accordance with Article 21.5 of the DSU and the Sequencing Agreement. The European Union
recalls that Article 21.5 of the DSU provides that this matter shall be decided through recourse to
the DSU, including wherever possible resort to the original panel.

Countervailing Duty Investigation," dated September 23, 2022 (Preliminary Determination).
6 19 U.S.C. § 1677-2.
7 Ripe Olives from Spain: Amended Final Affirmative Countervailing Duty Determination and
Countervailing Duty Order, 83 FR 37469, 1 August 2018; and Ripe Olives from Spain: Antidumping Duty Order,
83 FR 37467, 1 August 2018. Ripe Olives from Spain: Final Affirmative Countervailing Duty Determination, C-
469-818, DOC, 11 June 2018, published in 83 FR 28186, 18 June 2018; and Ripe Olives from Spain: Final
Affirmative Determination of Sales at Less Than Fair Value, A-469-817, DOC, 11 June 2018, published in 83 FR
28193, 18 June 2018. Ripe Olives from Spain, Investigation Nos 701-TA-582 and 731-TA-1377 (Final), US ITC,
July 2018.
8 WT/DS577/R and WT/DS577/R/Add.1