EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA
Document: Request for the Establishment of a Panel by China
Date: 13 October 2009
Document codes: WT/DS397/3
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

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

Request for the Establishment of a Panel by China

 The following communication, dated 12 October 2009, from the delegation of China to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 31 July 2009, The People's Republic of Ch ina ("China") requested consultations with the
European Communities (the "EC") pur suant to Articles 1 and 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the "DSU"), Article XXIII:1 of the General
Agreement on Tariffs and Trade 1994 (the "GATT 1994") and Article 17.3 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "AD
Agreement") with respect to, but not necessarily lim ited to, Article 9(5) of Council Regulation (EC)
No. 384/96 of 22 December 1995
1 on Protection against Dumped Imports from Countries not
Members of the European Community, as amended, and Council Regulation (EC) No. 91/2009 of 26
January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners
originating in the People's Republic of China.2

 The request for consultations was circulated in document – –
 dated 4 August 2009. The consultati ons were held on 14 Se ptember 2009 in Geneva,
with a view to reaching a mutually satisfactory so lution. Unfortunately, those consultations failed to
lead to a satisfactory resolution of the matter.

 Therefore, China hereby requests, pursuant to Articles 4 and 6 of the DSU, Article XXIII:2 of
the GATT 1994 and Article 17.4 of the AD Agreement , that the Dispute Settlement Body ("DSB")
establish a Panel with regard to the following measures:

− Article 9(5) of Council Regulation (E C) No. 384/96 of 22 December 1995
1 on
protection against dumped imports from countries not members of the EC, as
amended.
− Council Regulation (EC) No. 91/2009 of 26 January 2009 imposing a definitive anti-
dumping duty on imports of certain iron or steel fasteners originating in the People's
Republic of China
2.

1 OJ L 56, 6.3.1996, pp. 1-20.
2 OJ L 29, 31.1.2009, p.1.

 China requests that the Panel have standard term s of reference as set out in Article 7.1 of the
DSU. China asks that this request be placed on th e agenda for the next meeting of the Dispute
Settlement Body that will take place on 23 October 2009.

I. ARTICLE 9(5) OF COUNCIL REGU LATION (EC) NO. 384/96 OF
22 DECEMBER 1995 ON PROTECTION AGAINST DUMPED IMPORTS FROM
COUNTRIES NOT MEMBERS OF THE EC, AS AMENDED
 Article 9(5) of the Council Regulation (E C) No. 384/96 of 22 December 1995 on protection
against dumped imports from countries not members of the EC, as amended, (the " Basic AD
Regulation") provides that, in case of imports from non-market economy countries including China,
the anti-dumping duty shall be specified for the supplying country concerned and not for each supplier
and that an individual duty will only be specified for the exporters which can demonstrate, on the
basis of properly substantiated claims, that they fulfil all the criteria listed in that provision.

 China submits that Article 9(5) of the Basic AD Regulation is inconsistent as such with, at
least, the obligations under the following provisions of the AD Agreement, the GATT 1994 and the
Marrakesh Agreement Establishing the World Trade Organisation:

− Articles 6.10 of the AD Agreement since, in order to benefit from an individual
dumping margin, an exporter from China must fulfil specific conditions that are not
provided for in the AD Agreement;
− Article 9.2 of the AD Agreement since, in order to benefit from an individual anti-
dumping duty, an exporter from China must fulfil specific conditions that are not
provided for in the AD Agreement;
− Article 9.3 of the AD Agreement since for those producers/exporters who do not
fulfil the conditions for individual treatment, the anti-dumping duty is determined on
the basis of a dumping margin likely to exceed the dumping margin established in
accordance with Article 2 of the AD Agreement;
− Article 9.4 of the AD Agreement given that the anti-dumping duty that is applied to
imports from producers/exporters who are not included in the sample is calculated on
the basis of the dumping margins of the sampled producers/exporters, including
dumping margins of those who do not qualify for individual treatment in accordance
with Article 9(5) of the Basic AD Regulation;
− Article I of the GATT 1994 since, by layi ng down additional conditions for Chinese
exporters/producers to benefit from an indi vidual dumping margin and an individual
anti-dumping duty, the EC fails to accord to China advantages granted to market
economies;
− Article XVI:4 of the Marrakesh Ag reement establishing the World Trade
Organisation and Article 18.4 of the AD Ag reement since the EC has not taken all
necessary steps, of a general or particular character, to ensure the conformity of its
laws, regulations and administrative pro cedures with the provisions of the GATT
1994 and the AD Agreement.
− Article X:3(a) of the GATT by not administering the provisions of Article 9(5) of the
Basic AD Regulation in a uniform, impartial and reasonable manner.

II. COUNCIL REGULATION (EC) NO. 91/ 2009 OF 26 JANUARY 2009 IMPOSING A
DEFINITIVE ANTI-DUMPING DUTY ON IMPORTS OF CERTAIN IRON OR
STEEL FASTENERS ORIGINATING IN THE PEOPLE'S REPUBLIC OF CHINA
(THE "DEFINITIVE REGULATION")
 Through the Definitive Regulation, the EC established for Chinese producers/exporters of
certain iron or steel fasteners dumping margins ra nging from 0% to 115,4% and imposed a definitive
anti-dumping duty on imports of certain iron or steel fasteners originating in China ranging from 0%
to 85%.

 China submits that this measure is inconsistent , at least, with the following provisions of the
AD Agreement and of the GATT 1994:

− Article 6.1.1 of the AD Agreement and Part I, paragraph 15 of the Protocol on the
Accession of the People's Republic of China ("China's Protocol of Accession") and
paragraph 151 (d) and (e) of the Worki ng Party Report on the Accession of China
because the EC granted to Chinese exporters/p roducers only 15 days as of the date of
publication of the Notice of Initiation in the Official Journal of the European Union to
submit their completed questionnaires for Market Economy Treatment and Individual
Treatment;
− Articles 6.10 of the AD Agreement because the EC required Chinese exporters to
demonstrate, on the basis of substantiated claims, that they fulfil all the "individual
treatment" criteria listed in Article 9(5) of the Basic AD Regulation as a pre-requisite
to benefit from an individual dumping margin;
− Article 9.2 of the AD Agreement because the EC required Chinese exporters to
demonstrate, on the basis of substantiated claims, that they fulfil all the "individual
treatment" criteria listed in Article 9(5) of the Basic AD Regulation as a pre-requisite
to benefit from an individual anti-dumping duty;
− Article I of the GATT 1994 because the EC does not impose the individual treatment
conditions listed in Article 9(5) of the B asic AD Regulation to exporters/producers
from market-economy countries;
− Article 12.2.2 of the AD Agreement and paragraph 151 (f) of the Working Party
Report on the Accession of China because the EC failed to substantiate the reasons
for accepting and/or rejecting the request of individual exporters/producers to benefit
from individual treatment;
− Article 5.4 of the AD Agreement becau se the EC initiated the anti-dumping
proceeding on the basis of a complain t by the Community producers allegedly
representing 27% of the total domestic production in the EC while (i) the EC failed to
examine properly before the initiation whethe r the application has been made by or
on behalf of the domestic industry and (ii) the EC improperly concluded that the
application had been made by or on behalf of the domestic industry;
− Articles 2.1 and 2.6 of the AD Agreement by including in the scope of the product
under consideration both standard and special fasteners as "like" products despite
their readily apparent differences and uses;

− Article 2.4 of the AD Agreement and Artic le VI:1 of the GATT 1994 by failing to
make a fair comparison between the export pr ice and the normal value; in particular,
by failing to make a product comparis on on the full product control number and
without making the necessary adjustments for differences physical or otherwise,
affecting price comparability;
− Article 2.4.2 of the AD Agreement and Article VI:1 of the GATT 1994 by excluding
certain export sales from the dumping margin calculation;
− Articles 3.1 and 3.2 of the AD Agreement because the EC failed to make a product
comparison on the full product control numbe r and did not make the appropriate
adjustments for the differences affecting price comparability when determining the
price undercutting margin;
− Articles 4.1, 3.1, 3.4 and 3.5 of the AD Ag reement because the EC failed to make an
injury determination with respect to th e relevant domestic industry as defined in
Article 4.1 of the AD Agreement and/or is not based on positive evidence or does not
include an objective examination in ac cordance with Article 3.1 of the AD
Agreement:
• The EC improperly excluded from the " domestic industry" all producers that
did not make themselves known within 15 days from the date of initiation of
the investigation or that did not support the complaint;
• The EC failed to include in "the domestic industry" domestic producers
accounting for a major proportion of the total EC production;
• The EC failed to determine which proportion of the total domestic production
was represented by the EC producers constituting the domestic industry
throughout the investigation period;
• The EC conducted the injury determin ation on the basis of a sample of
producers accounting for only 17.5 per cent of the total EC production of the
like product in 2006;
• The EC failed to exclude from the definition of the domestic industry
producers that are related to producers/exporters or importers or are
themselves importers of the allegedly dumped product.
− Article 3.1, 3.2, 3.4 and 3.5 of the AD Agreement because the EC failed to exclude
from the volume of dumped imports, imports from Chinese producers that were found
not to be dumping and by including in the volume of dumped imports all imports
from non-sampled producers;
− Articles 3.1, 3.2 and 3.4 of the AD Agreement because the EC failed to make an
objective examination of the impact of the alleged dumped imports on the domestic
industry (including all relevant economic factors and indices having a bearing on the
state of the industry) that is based on positive evidence;
− Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement by failing to weigh properly and
reasonably factors other than the alleged dum ped imports in its examination of injury
and causation, including imports from third countries, increasing costs of raw

materials, competition by EC producers not supporting the complaint, and export
performance of the EC producers;
− Articles 6.2 and 6.4 of the AD Agreement and paragraph 151 (c)(e) of the Working
Party Report on the Accession of China because the EC failed to ensure throughout
the investigation to Chinese producers/exporte rs the full opportunity for the defence
of their interests and failed to provide timely opportunities for them to see all
information that is relevant to the presentation of their cases, including, but not
limited to the composition of the domestic industry, data concerning normal value
determination, information on the adjustments for differences affecting price
comparability, Eurostat data on the basis of which are based the total EC production
and EC consumption figures;
− Articles 6.2 and 6.9 of the AD Agreement because the EC failed to inform the
interested parties of the essential facts under consideration which form the basis for
the decision whether to apply definitive measures, including, but not limited to the
following elements: data concerning the nor mal value determination and information
on how the price comparison was carried out, including data on the adjustments for
differences affecting price comparability;
− Articles 6.2, 6.4, 6.5 and 6.5.1 of the AD Agreement because the EC failed to ensure
that domestic producers provided non-conf idential summaries of confidential
information they submitted or because the EC wrongly treated information as being
confidential, thereby preventing Chinese pr oducers to have the full opportunity for
the defence of their interests;
− Article 6.5 of the AD Agreement because the EC disclosed the document entitled
"Assessment of Market Economy Treatment Cl aims by nine producers in the PRC"
(DG TRADE/H3/D(2008) that contains conf idential information which pertains to
different Chinese producers that claimed MET.
 The EC's measures th erefore nullify and impair benef its accruing to China under the AD
Agreement, the GATT 1994 , the Marrakech Agreement Establis hing the World Trade Organisation
and China's Protocol of Accession.

 China requests that the panel be established with the standard terms of reference, in
accordance with Article 7 of the DSU.

 China asks that this request fo r the establishment of a panel be placed in the agenda for the
next meeting of the Dispute Settlement Body, which is scheduled to take place on 23 October 2009.