EUROPEAN COMMUNITIES – ANTI-DUMPING MEASURE ON FARMED SALMON FROM NORWAY
Document: Request for the Establishment of a Panel by Norway
Date: 30 May 2006
Document codes: WT/DS337/2
Complainant: Norway
Respondent: EU
Third parties: Canada, China, Hong Kong, Japan, South Korea, U.S.
Dispute stage: Panel
Agreements cited: Art. 5, 5.1, 5.2, 5.3, 5.4, 2, 2.1, 2.6, 6.10, 2.2, 2.2.1, 2.2.2, 2.2.1.1, 6.8, Annex II, 3, 3.1, 3.2, 3.4, 3.5, 3.6  Anti-dumpingArt. VI:1  GATT 1994Art. 4.1, 9, 9.1, 9.2, 9.3, 9.4  Anti-dumpingArt. VI  GATT 1994Art. 6.2, 6.4, 6.5.1, 6.7, Annex I, 6.9, 12.2, 12.2.2  Anti-dumping

EUROPEAN COMMUNITIES – ANTI-DUMPING MEASURE
ON FARMED SALMON FROM NORWAY

Request for the Establishment of a Panel by Norway

 The following communication, dated 29 May 2006, from the delegation of Norway to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 17 March 2006, Norway requested consulta tions with the European Communities ("EC")
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"), Article XXIII:1 of the Gene ral Agreement on Tariffs and Trade 1994
("GATT 1994"), and Article 17 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (" Anti-Dumping Agreement ") with respect to Council
Regulation (EC) No. 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and
collecting definitively the provisional duty imposed on imports of farmed salmon originating in
Norway.
1 This measure confirms, and incorporates reasoning from, Commission Regulation (EC)
No. 628/2005 of 22 April 2005, 2 as amended by Commission Regulation (EC) No. 1010/2005 of
1 July 2005.3

 On 27 March 2006, Norway supplemented its initial request for consultations with a
clarification of the legal basis for the request. The initial and supplemental requests for consultations
of 17 March 2006 are to be read together.

 Consultations were held on 12 May 2006 with a view to reaching a mutually satisfactory
solution. These consultations failed to resolve the dispute.

 Therefore, Norway respectfully requests, pursuant to Articles 4 and 6 of the DSU,
Article XXIII:2 of the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement, that the Dispute
Settlement Body (DSB) establish a Panel to examine this matter. Norway asks that a special DSB
meeting be held on 9 June 2006 to c onsider this request. Norway further requests that the Panel have
standard terms of reference, as set out in Article 7.1 of the DSU.

 Norway considers that the measure is inconsis tent with, at least, the obligations of the EC
under the following provisions of the Anti-Dumping Agreement and, where specified, the
GATT 1994:

1 Official Journal of the European Union, L15/1, published 20 January 2006.
2 Official Journal of the European Union, L104/5, published 23 April 2005.
3 Official Journal of the European Union, L170/32, published 1 July 2005.

1. Article 5, including Articles 5.1, 5.2, 5.3 a nd 5.4, because, by determining that the product
under consideration is fresh, chilled or frozen fa rmed salmon, whether or not filleted, the EC
improperly initiated an investigation into a si ngle product that consists of more than one
product.

2. Article 5.4 because the EC initiated the investig ation without ensuring that the application for
an investigation was "made by or on behalf" of the relevant "domestic industry", as defined in
Article 4.1 of that Agreement.

3. Article 2, including Articles 2.1 and 2.6, b ecause the EC made dumping determinations for a
single product (fresh, chilled or frozen farmed salmon, whether or not filleted) that consists of
more than one product.

4. Article 6.10 because the EC determined an individual margin of dumping for a selection of
producers that neither constituted a statistica lly valid sample nor represented the largest
percentage of the volume of exports from Norway that could reasonably be investigated; and
because the EC failed to determine an indivi dual margin of dumping for one of the producers
included by the EC in the defective sample.

5. Articles 2.1, 2.2 and 2.2.1 because the EC excluded certain domestic sales as not in the
ordinary course of trade by reason of price and/or volume without respecting the conditions in
those provisions, in particular the duty to ensure that below-cost sales are rejected solely if
prices do not provide for the recovery of all costs within a reasonable period of time.

6. Articles 2.1, 2.2 and 2.2.1.1, and Article VI:1 of the GATT 1994, because the EC failed to
determine the normal value for the like product on the basis of each individually examined
company's costs of production ("COP") plus a reasonable amount for administrative, selling
and general ("SG&A") costs, and for profits, in particular by virtue of improper adjustments
to the COP and SG&A costs reported by indivi dually examined companies. The Commission
also made clerical errors in its calculations of constructed normal value.

7. Article 2.2.2 because the EC rejected actual data pertaining to production and sales in
determining amounts for profits and SG&A costs due to the low volume of domestic market
sales of the like product and/or sub-categories of that product.

8. Article 6.8 and paragraphs 1, 3, 5, 6 a nd 7 of Annex II because the EC determined normal
value for certain individually examined companies, in part, on the basis of facts available. In
so doing, the EC failed to respect the conditions set forth in these provisions governing the
use of facts available. In particular, the EC: failed to inform the relevant companies of the
information required; failed to use verifiable information submitted in timely manner, even
though this would not have presented undue difficulti es; failed to inform them of the reasons
for the rejection of information submitted; fa iled to provide them with an opportunity to
provide further explanations within a reasona ble period; failed to state, in the published
determinations, reasons for re jection of the evidence and information submitted by these
individual companies; and failed to take into account information submitted.

9. Article 6.8 and paragraph 1 of Annex II, a nd Article 9.4, by improperly applying facts
available in establishing the "residual" margin of dumping that was assigned to producers and
exporters that were not individually examined.

10. Article 3, including Articles 3.1, 3.2, 3.4, 3.5 and 3.6, because the EC 's injury determination
is made in relation to an EC domestic indus try producing a single product (fresh, chilled or
frozen farmed salmon, whether or not filleted) th at consists of more than one product. By

failing to determine the product under considera tion properly, the EC failed to examine and
make an injury determination with respect to the separate EC domestic industries producing
the like products.

11. Articles 3.1, 3.4 and 3.5 and Article VI:1 of the GATT 1994 because the EC failed to make a
determination of injury for the relevant domes tic industry, as defined in Article 4.1 of the
Anti-Dumping Agreement. This claim has several components:

 (a) The EC limited the EC domestic industry to certain producers of farmed salmon that
cooperated fully in the investigation and that supported the complaint. The EC
improperly excluded from the EC domes tic industry unrelated allegedly non-
cooperating producers and unrelated non-supporting producers.

 (b) The EC examined injury to the EC domest ic industry in relation to a sample of 5 EC
growers of farmed salmon that did not constitute the EC producers as a whole of the
like product, or a majority of them. In so doing, the EC violated Article 6.10 of the
Agreement, if applicable to injury determ inations, because the EC made a
determination of injury solely for sel ected domestic producers without complying
with the conditions in that provision.

 (c) The EC failed to include EC producers as a whole of filleted products, or a major
proportion of them, in the EC domestic industry.

12. Articles 3.1 and 3.2 because the EC failed to make an objective examination, on the basis of
positive evidence, of price undercutting by No rwegian imports because of a failure to
examine the substantial price premium enjoye d by Scottish and Irish farmed salmon over
Norwegian farmed salmon.

13. Articles 3.1 and 3.4 because the EC failed to make an objective examination, on the basis of
positive evidence, of the factors having a bearing on the state of the domestic industry,
including those listed in Article 3.4.

14. Articles 3.1 and 3.5 because the EC failed to make an objective examination, on the basis of
positive evidence, that dumped imports are, through the effects of dumping, causing injury;
and because the EC failed to ensure that inju ry caused to the domestic industry by other
factors was not attributed to dumped imports.

15. Article 9, including Articles 9.1, 9.2 and 9.4, because the EC failed to impose anti-dumping
duties on imports of a single product and instead imposed remedies at six different levels on
different products.

16. Articles 9.1, 9.2 and 9.3, and Article VI :2 of the GATT 1994, because the EC imposes
variable anti-dumping duties by reference to minimum import prices ("MIPs") in an amount
that is not limited by the margin of dumping determined for individually examined
companies; because the MIPs exceed the normal value determined for individually examined
companies; and because the MIPs are determined using a flawed methodology.

17. Articles 9.1, 9.2 and 9.3, and Article VI:2 of the GATT 1994, because in certain
circumstances the EC imposes variable and fixed anti-dumping duties that exceed the margin
of dumping determined for individually examined companies.

18. Article 9.4 because the EC established a wei ghted average margin of dumping for cooperating
companies that were not individually examined using margins of dumping previously

determined for certain individually examined companies using facts available. The EC's
weighted average margin of dumping is also tainted by calculation errors.

19. Articles 6.2 and 6.4 because the EC failed to provide timely opportunities, and in some cases
any opportunity, for interested parties to see non-confidential information.

20. Article 6.5.1 because the EC failed to ensure the provision of non-confidential summaries of
confidential information relating to the domestic industry or, where provided, failed to give
summaries in sufficient detail to enable a reasonable understanding of that information.

21. Articles 6.2 and 6.7, and paragraph 7 of Annex I, because the EC failed to respect the
procedures for on-the-spot investigations, in pa rticular, it failed to inform companies of
further verifiable information that was needed.

22. Articles 6.2 and 6.9 because the EC failed to inform interested Norwegian parties in timely
manner, and in some cases at all, of the essen tial facts forming the basis for the decision to
apply definitive measures, thereby depriving them of the opportunity to defend adequately
their interests.

23. Articles 12.2 and 12.2.2 because the EC failed to set forth, in sufficient detail, the findings
and conclusions reached on all issues of fact and law material to the determinations of
dumping, injury and causation, as well as to the determination of the various MIPs.

 The EC's measure, therefore, nullifies and im pairs benefits accruing to Norway under the
Anti-Dumping Agreement and the GATT 1994.