COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY AND THE NETHERLANDS REPORT OF THE PANEL
Document: Addendum
Date: 10 October 2022
Document codes: WT/DS591/7/Add.1; WT/DS591/7.
Complainant: EU
Respondent: Colombia
Third parties: Brazil, China, Honduras, India, Japan, Russia, Turkey, U.S.
Dispute stage: Panel
Agreements cited: Art. 1, 2.1, 2.4, 2.4.1, 2.6, 3, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.3, 5.8, 6.1.2, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2, 9.3, 11.1, 12.2, 12.2.2, 18.1, Annex II  Anti-dumpingArt. 10  Customs valuationArt. VI  GATT 1994

COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM
BELGIUM, GERMANY AND THE NETHERLANDS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures of the Panel concerning Business Confidential
Information
11
Annex A-3 Additional Working Procedures of the Panel for virtual participation at the
first substantive meeting
13
Annex A-4 Additional Working Procedures of the Panel for virtual participation
at the second substantive meeting
16
Annex A-5 Additional Working Procedures of the panel to facilitate arbitration under
Article 25 of the DSU
19
Annex A-6 Interim Review 20
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the European Union 24
Annex B-2 Integrated executive summary of the arguments of Colombia 33
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 62
Annex C-2 Integrated executive summary of the arguments of Japan 64
Annex C-3 Integrated executive summary of the arguments of the United States 69

ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures of the Panel concerning Business Confidential
Information
11
Annex A-3 Additional Working Procedures of the Panel for virtual participation at the
First Substantive Meeting
13
Annex A-4 Additional Working Procedures of the Panel for virtual participation
at the Second Substantive Meeting
16
Annex A-5 Additional Working Procedures of the panel to facilitate arbitration under
Article 25 of the DSU
19
Annex A-6 Interim Review 20

ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 8 February 2021

General

1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the
following Working Procedures apply.

(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.

Confidentiality

2. (1) The deliberations of the Panel and the documents submitted to it and by it shall be kept
confidential. Members shall treat as confidential information that is submitted to the Panel
which the submitting Member has designated as confidential.

(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.

(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Member, provide a non -confidential summary of the information
contained in its submissions that could be disclosed to the public. The Panel may, upon
request, fix a time-limit within which the party should endeavour to provide such summary.

(4) Parties and third parties shall treat business confidential information in accordance with
the procedures set forth in the Additional Working Procedures of the Panel Concerning
Business Confidential Information adopted by the Panel.

Submissions

3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.

(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.

(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.

(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.

Preliminary rulings

4. (1) If Colombia considers that the Panel should make a ruling before the issuance of the
Report that certain measures or claims in the panel request or the complainant's first written
submission are not properly before the Panel, the following procedure applies. Exceptions to
this procedure shall be granted upon a showing of good cause.

a. Colombia shall submit any such request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel and

shall identify clearly that it seeks a ruling pursuant to the present procedure. The
European Union shall submit its res ponse to the request before the first substantive
meeting of the Panel, at a time to be determined by the Panel in light of the request.

b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during o r after the first substantive meeting, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties.

c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its
Report, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Report.

d. Any request for such a preliminary ruling by Colombia before or in its first written
submission, and any subsequent submissions of the parties in relation thereto before the
first meeting, shall be served on all third parties. The Panel may provide all third parties
with an opportunity to provide comments on any such request, either in their submissions
as provided for in the timetable or separately. Any preliminary ruling issued by the Panel
before the first substantive meeting on whether certain measures or claims are properly
before the Panel shall be shared with all third parties.

(2) This procedure is without prej udice to the parties' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.

Evidence

5. (1) The Panel requests each party to submit all evidence supporting its case together with
its first written submission. In any event, the parties shall submit all evidence to the Panel no
later than during the first substantive meeting, except evidence necessary for purposes of
rebuttal, or evidence ne cessary for answers to questions or comments on answers provided
by the other party. Additional exceptions may be granted upon a showing of good cause.

(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the othe r party an appropriate period of time to comment on the new evidence
submitted.

6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation o f the exhibit or
relevant portion into the WTO working language of the submission. The Panel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.

(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.

7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute , indicating the submitting Member and the number of each exhibit on
its cover page. Exhibits submitted by the European Union should be numbered EU -1, EU-2,
etc. Exhibits submitted by Colombia should be numbered COL-1, COL-2, etc. If the last exhibit
in connection with the first submission was numbered COL -5, the first exhibit in connection
with the next submission thus would be numbered COL -6. If a party withdraws an exhibit or
leaves one or more exhibits intentionally blank, it should indicate this on the cover page that
provides the number of the blank exhibit.

(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions if an exhibit is
attached to such submission, oral statement or responses to questions.

(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit along with an indication of the date that it was accessed.

Editorial Guide

8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).

Questions

9. The Panel may pose questions to the parties and third parties at any time, including:

a. Before any meeting, the Panel may send written questions, or a list of topics it intends to
pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.

b. The Panel may put questions to the parties and third parties orally during a meeting, and
in writing following the meeting, as provided for in paragraphs 15 and 21 below.

Substantive meetings

10. The Panel shall meet in closed session.

11. The parties shall be present at the meetings only when invited by the Panel to appear before
it.

12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.

(2) Each party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these
Working Procedures, particularly with regard to the confidentiality of the proceeding a nd the
submissions of the parties and third parties.

13. Each party shall provide to the Panel the list of members of its delegation no later than
5 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.

14. A request for interpretation by any party should be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.

15. The first substantive meeting of the Panel with the parties shall be conducted as follows:

a. The Panel shall invite the European Union to make an opening statement to present its
case first. Subsequently, the Panel shall invite Colombia to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at the meeting
with a provisional written version of its statement. If interpretation is needed, each party
shall provide additional copies for the interpreters before taking the floor.

b. Each party should avoid lengthy repetition of the arguments in its submissions. Each party
is invited to limit the duration of its opening statement according to the Panel's instructions
issued prior to the meeting. If either party considers that it requires more time for its
opening statement, it should inform the Panel and the other party at least 5 working days
before the meeting, together with an estimate of the expected duration of its statement.
The Panel will accord equal time to the other party.

c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions through the Panel.

d. The Panel may subsequently pose questions to the parties.

e. Once the questioning has concluded, the Panel sh all afford each party an opportunity to
present a brief closing statement, with the European Union presenting its statement first.
Before each party takes the floor, it shall provide the Panel and other participants at the
meeting with a provisional written version of its closing statement, if available.

f. Following the meeting:

i. Each party shall submit a final written version of its opening statement no later
than
ii. 5 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
iii. Each party shall send in writing, within the time -frame established by the Panel
before the end of the meeting, any questions to the other party to which it wishes
to receive a response in writing.
iv. The Panel shall send in writing, within the time -frame established by the Panel
before the end of the meeting, any questions to the parties to which it wishes to
receive a response in writing.
v. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time -frame established by the
Panel before the end of the meeting.
16. The second substantive meeting of the Panel with the parties shall be conducted in the same
manner as the first substantive meeting with the Panel, except that Colombia shall be given the
opportunity to present its oral statement first. If Colombia chooses not to avail itself of that right, it
shall inform the Panel and the other party no later than 5 p.m. (Geneva time) three working days
before the meeting. In that case, the European Union shall present its opening statement first,
followed by Colombia. The party that presented its opening stateme nt first shall present its closing
statement first.

Third-party session

17. Each third party may present its views orally during a session of the first substantive meeting
with the parties set aside for that purpose.

18. Each third party shall indicate to the Panel whether it intends to make an oral statement during
the third-party session, along with the list of members of its delegation, in advance of this session
and no later than 5 p.m. (Geneva time) three working days before the third -party session of the
meeting with the Panel.

19. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.

(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these
Working Procedures, particularly with regard to the confidentiality of the procee ding and the
submissions of the parties and third parties.

20. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the working procedures and timetable for the proceeding, to
allow sufficient time to ensure availability of interpreters.

21. The third-party session shall be conducted as follows:

a. All parties and third parties may be present during the entirety of this session.

b. The Panel shall first hear the oral statements of the third parties, who shall speak in
alphabetical order. Each third party making an oral statement at the third -party session
shall provide the Panel and other participants with a provisional written version of its
statement before it takes the floor. If interpretation of a third party's oral statement is
needed, that third party shall provide additional copies for the interpreters before taking
the floor.

c. Each third party should limit the duration of its statement according to the
Panel's instructions issued prior to the session and avoid repetition of the arguments
already in its submission. If a third party considers that it requires more time for its
opening statement, it should inform the Panel and the parties at least 5 working days
before the meeting, together with an estimate of the expected duration of its statement.
The Panel will accord equal time to all third parties for their statements.

d. After the third parties have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarification on any matter raised in
that third party's submission or statement.

e. The Panel may subsequently pose questions to any third party.

f. Following the third-party session:

i. Each third party shall submit the final written version of its oral statement, no
later than 5 p.m. (Geneva time) on the first working day following the meeting.
ii. Each party may send in writing, within the time -frame to be established by the
Panel before the end of the meeting, any questions to one or more third parties
to which it wishes to receive a response in writing.
iii. The Panel may send in writing, within the time -frame to be established by the
Panel before the end of the meeting, any questions to one or more third parties
to which it wishes to receive a response in writing.
iv. Each third party choosing to do so shall respond in writing to written questions
from the Panel or a party, within a time -frame established by the Panel before
the end of the meeting.
Descriptive part and executive summaries

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel Report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the Report. These executive summaries shall not in any way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.

23. Each party shall submit a single integrated executive summary of the facts and arguments as
presented to the Panel in its written submissions and oral statement(s), in accordance with the
timetable adopted by the Panel. The integrated executive summary may also include a summary of
its written responses to written questions.

24. The integrated executive summary shall not exceed 30 pages.

25. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline is not specified
in the timetable.

26. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel. This
integrated executive summary may also include a summary of written responses to written
questions, if relevant. The executive summary to be provided by each third party shall not exceed
six pages. If the document(s) comprising a third -party submission and/or oral statement do es not

exceed six pages in total, this will serve as the executive summary of that third party's arguments
unless the third party submits a separate integrated executive summary or otherwise indicates that
it does not wish those document(s) to serve as its executive summary.

Interim review

27. Following issuance of the Interim Report, each party may submit a written request to review
precise aspects of the Interim Report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.

28. Each party may submit written comments on the other party's written request for review.
Such written comments shall be limited to the other party's written request for review and shall be
submitted in accordance with the timetable adopted by the Panel.

Interim and Final Report

29. The Interim Report, as well as the Final Report before its official circu lation, shall be kept
strictly confidential and shall not be disclosed.

Service of documents

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:

a. Each party and third party shall send an email to the DS Registry attaching an electronic
copy of all documents that it submits to the Panel, in both Microsoft Word and PDF format.
To the extent possible, all documents in PDF format, including exhibits, sh ould be
searchable and editable (i.e. not "image -only" or scanned). All such emails to the Panel
shall be addressed to DSRegistry@wto.org and copied to other WTO Secretariat staff
whose email addresses have been provided to the parties during the proceeding. If it is
not possible to attach all the exhibits to one email, the submitting party or third party may
send separate emails. If the number of emails necessary to transmit the exhibits would
exceed 5 or any one exhibit is too large to be transmitted via email, the party shall upload
the relevant exhibits to the Disputes On -line Registry Application (DORA). The email
version sent to the DS Registry shall constitute the official version for the purposes of
submission deadlines and the record of the dispute, and shall, with respect to the due
dates established by the Panel, be sent by 5 p.m. (Geneva time).

b. In addition, each party and third party is invited to submit all documents through DORA
within 24 hours fo llowing the deadline for the submission by email. If the parties or
third parties have any questions or technical difficulties relating to DORA, they are invited
to consult the User Guide available in the "Help" section of DORA and if necessary contact
the DS Registry (DSRegistry@wto.org).

c. Following email submission, each party and third party shall submit three paper copies of
all documents it submits to the Panel, including the exhibits, with the DS Registry
(office No. 2047) by 5 p.m. (Geneva time) the next business day. If, for any reason, the
WTO building is extraordinarily closed, the "next business day" will mean the day that the
Panel determines for such filings once normal operations have resumed. If the Member
does not have a mission or representative in Geneva the submissions may be sent by post
or courier and must have a postmark or proof that they were sent the next business day
after the submission was due. The DS Registrar shall stamp the documents with the date
and time of receipt. If an e xhibit is in a format that is impractical to submit as a paper
copy, then the party may submit such exhibit in electronic format (e.g. USB key). In this
case, the cover page of the exhibit should indicate that the exhibit is only available in
electronic format.

d. The receipt of the email by the DS Registry shall constitute service on the Panel. Each
party shall serve any document submitted to the Panel directly on the other party. A party
shall submit its documents to the other party by email. Each party shall confirm, in writing,
that it has served on the other party, as appropriate, at the same time it provides each

document to the Panel, a copy of such documents. Each party shall, in addition, serve any
document submitted in advance of the first substantive meeting with the Panel directly on
the third parties. The receipt of the email by the other party and the third parties (where
relevant) shall constitute service.

e. As a general rule, all communications from the Panel to the parties and third partie s will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report upon
request.

Correction of clerical errors in submissions

31. The Panel may g rant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly fol lowing the filing
of the submission in question.

Developments in circumstances

32. The Panel will conduct the proceedings and apply the present procedures in such a way as to
mitigate circumstances arising from the COVID -19 pandemic. The Panel may provid e further
guidance in that regard as any such circumstances develop. If the Panel considers that the present
Working Procedures cannot be applied effectively because of the COVID -19 pandemic, the Panel
may modify these Procedures after consultation with the parties.

Appeal arbitration

33. The Panel takes note of the Agreed Procedures for Arbitration under Article 25 of the DSU in
this dispute notified by the parties on 13 July 2020 (WT/DS591/3) and of the joint requests of the
parties to the Panel formulated therein.

ANNEX A-2
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING BUSINESS
CONFIDENTIAL INFORMATION
Adopted on 8 February 2021
The following procedures apply to any business confidential information (BCI) submitted during
the Panel proceedings in DS591.
1. For the purposes of these Panel proceedings, BCI includes:
a. any information designated as such by the party submitting it that was previously
treated as confidential by the investigating authority in the anti-dumping
investigation at issue in this dispute unless the Panel decides it should not be treated
as BCI for purposes of these Panel proceedings based on an objection by a party
pursuant to paragraph 3 below.
b. any other information designated as such by the party submitting it, unless the
Panel decides it should not be treated as BCI for purposes of these Panel
proceedings based on an objection by a party pursuant to paragraph 3 below.
2. Any information that is available in the public domain may not be designated as BCI. In
addition, information previously treated as confidential by the investigating authority i n the
anti-dumping investigation at issue in this dispute may not be designated as BCI if the person
or entity who provided the information in the course of that investigation agrees in writing to
make the information publicly available.
3. If a party or third party considers that information submitted by the other party or a
third party should have been designated as BCI and objects to its submission without such
designation, it shall forthwith bring this objection to the attention of the Panel, the other party,
and, where relevant, the third parties, together with the reasons for the objection. Similarly,
if a party or third party considers that the other party or a third party designated information
as BCI which should not be so designated, it shall forthwith bring this objection to the attention
of the Panel, the other party, and, where relevant, the third parties, together with the reasons
for the objection. The Panel, in deciding whether information subject to an objection should be
treated as BCI for purposes of these Panel proceedings, will consider whether disclosure of the
information in question could cause serious harm to the interests of the originator(s) of the
information.
4. No person may have access to BCI except a member of the Secretariat assisting the Panel
or the Panel, an employee of a party or third party, or an outside advisor to a party or
third party for the purposes of this dispute.
5. A party or third party having access to BCI in these Panel proceedings shall not disclose
that information other than to persons authorized to have access to it pursuant to these
procedures. Any information designated as BCI under these procedures shall only be used for
the purposes of this dispute. Each party and third party is responsible for ensuring that its
employees and/or outside advisors comply with these procedures to protect BCI.
6. An outside advisor of a party or third party is not permitted access to BCI if that advisor
is an officer or employee of an enterprise engaged in the production, sale, export, or import
of the product(s) that was/were the subject of the investigation at issue in this dispute, or an
officer or employee of an association of such enterprises. All third -party access to BCI shall be
subject to the terms of these working procedures.
7. The party submitting BCI shall mark the cover and/or first page of the document
containing BCI, and each page of the document, to indicate the presence of such information.

The specific information in question shall be placed between double brackets, as follows:
[[xx,xxx.xx]]. The first page or cover of the document shall state "Contains Business
Confidential Information", and each page of the document shall contain the notice "Contains
Business Confidential Information" at the top of the page. In case of exhibits, the party
submitting BCI in the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g.
Exhibit EU-1 (BCI)). Should the party submit specific BCI within a document which is considered
to be public, the specific information in question shall be placed between double brackets, as
follows: [[xx,x xx.xx]]".
8. Any BCI that is submitted in binary-encoded form shall be clearly marked with the
statement "Business Confidential Information" on a label of the storage medium, and clearly
marked with the statement "Business Confidential Information" in the binary-encoded files.
9. In the case of an oral statement containing BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the
Panel will ensure that only persons authorized to have access to BCI pursuant to these
procedures are in the room to hear that statement. The written versions of such oral
statements submitted to the Panel shall be marked as provided for in paragraph 7.
10. Any person authorized to have access to BCI under the terms of these procedures shall
store all documents containing BCI in such a manner as to prevent unauthorized access to such
information.
11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the
Members, the Panel will give each party an opportunity to review the report to ensure that it
does not contain any information that the party has designated as BCI.
12. Submissions containing BCI will be included in the record forwarded to the
Appellate Body in the event of an appeal of the Panel's Report. The same applies to the Panel
record transmitted to the arbitrators pursuant to paragraph 4(ii) of the Agreed Procedures for
Arbitration under Article 25 of the DSU (WT/DS591/3).

ANNEX A-3
ADDITIONAL WORKING PROCEDURES OF THE PANEL FOR VIRTUAL PARTICIPATION
AT THE FIRST SUBSTANTIVE MEETING
Adopted on 14 July 2021
General
1. These additional Working Procedures set out terms for holding a first substantive meeting with
the Panel in which all participants participate virtually.
Definitions
2. For the purposes of these Procedures:
"Participant" means any person participating in the virtual meetin g with the Panel. This
includes the members of the parties' and third parties' delegations, the members of the Panel,
the members of the Secretariat team assisting the Panel, and the interpreters.
"Platform" means the Cisco Webex Legislate software through which participants will
participate in the meeting with the Panel.
"Host" means the designated person within the WTO Secretariat responsible for the
management of the platform for participants to participate in the meeting with the Panel.
"DORA" means Disputes Online Registry Application.
Equipment and technical requirements for participation
3. Each party and third party shall ensure that all members of its delegation join the meeting
using the designated platform, and meet the minimum equipment and technical requirements
set out by the platform provider for the effective conduct of the meeting.
4. Technical questions, including the minimum equipment and technical requirements for the
usage of the Platform, will be addressed in the advance testing sessions between the host and
the participants provided for in paragraph 6 below.
Technical support
5. (1) In light of the Secretariat's limited ability to offer technical assistance during, and in
advance of the meeting, each party and third party is, in principle, responsible for providing
its own technical support to the members of its delegation.
(2) The host will assist participants in accessing and using the platform in advance of and
during the meeting with the Panel.
(3) In order to provide timely assistance, the host will prioritize assisting those members
of the delegations designated as main speakers on the delegations' lists.
Registration
6. Each party and third party shall provide to the Panel the list of the members of its delegation
by returning the completed form in Annex I below, no later than 4 p.m. (Geneva time) on
Friday, 16 July 2021. Each party and third party shall indicate who among the members of
their delegation will be their main speaker(s).

Advance testing
7. The members of the parties' and third parties' delegations will hold two testing sessions with
the Secretariat, at dates to be established separately. One of these sessions will be a joint
session with all participants in the meeting, including the members of the Panel and the
Secretariat. Participants should make themselves available for the testing sessions.
Confidentiality and security
8. The meeting shall be confidential.
9. The requirements concerning the treatment of confidential and business confidential
information, set forth in the Working Procedures of the Panel and the Additional Working
Procedures of the Panel Concerning Business Confidential Information, adopted on
8 February 2021, apply and must be observed by the parties and third parties.
10. Participants shall connect to the virtual meeting through a secure internet connection and shall
avoid the use of an open or public internet connection.
11. The parties and third parties are strictly prohibited from:
(1) Recording, via audio, video or screenshot, the virtual meeting or any part thereof; and
(2) Permitting any non -participant to record, via audio, video or screenshot, the virtual
meeting or any part thereof.
Simultaneous interpretation
12. Simultaneous interpretation between English and Spanish will be available for the participants
through the platform.
Conduct of the meeting
Access to the virtual meeting room
13. (1) The host will invite participants via email to join the virtual meeting room on the
platform. This email will provide each participant with its personal access and login
information.
(2) For security reasons, access to the virtual meeting will be password -protected and
limited to members of the delegations, as listed in the completed Annex I form, who shall not
forward or share the virtual meeting link or password.
(3) Each party and third party shall ensure that only members of its delegation join the
virtual meeting room.
Advance log-on
14. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
(2) Participants shall log on to the platform at least 30 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
Participation
15. (1) If a participant wishes to take the floor, the participant should use the "raise a hand"
function on the platform.

(2) All participants are encouraged to use their cameras during the entirety of the meeting.
Participants should turn on their camera when taking the floor. Participants should turn off
their microphones when others take the floor.
Document sharing
16. (1) Before each party and third party ta kes the floor, it shall provide the Panel and other
participants at the meeting with a provisional written version of its statement through DORA,
at the time indicated below.
(2) Any participant wishing to share a document with the other participants durin g the
meeting will do so through DORA, before first referring to such document at the meeting.
17. The European Union shall upload the provisional written version of its opening statement on
DORA no later than 15 minutes before the beginning of the session on the first meeting day
(27 July 2021). After the European Union has concluded its opening statement, the Panel will
break for approx. 15 minutes. Colombia shall upload the provisional written version of its
opening statement on DORA no later than at the beginning of that break. To facilitate a
fulsome engagement of all members of the Panel with the parties' opening statements, the
Panel invites each party to submit a courtesy translation in English or Spanish, as appropriate,
together with the provisional written version of its opening statement.
18. Each third party shall upload a provisional written version of its opening statement on DORA
no later than 15 minutes before the beginning of the session on the second meeting day
(28 July 2021).
19. The Pane l will break for approx. 15 minutes each before and between the parties' closing
statements. Each party shall upload a provisional written version of its closing statement, if
available, on DORA no later than at the beginning of the break preceding its closing statement.
Pauses for internal coordination and consultation
20. The Panel may briefly pause a session at any time, at its own initiative or upon request by a
party or third party, to enable any necessary internal coordination and consultation within a
party's or third party's delegation and/or among the Panelists.
Technical issues
21. (1) Each party and third-party shall designate a contact person who can liaise with the host
during the meeting to report any technical issues that arise with respect to the platform. The
host can be contacted via the platform, by sending an email to olga.falguerasalamo@wto.org,
or by calling at +41 22 739 6746.
(2) Should any technical interruptions occur, the host will directly coordinate with the
affected participants to resolve the issue. After consulting the parties, the Panel may pause
the session until the technical issue is resolved or may decide to continue the proceedings
with those participants that remain conne cted. In preparing for the meeting, the parties and
third parties are invited to ensure that an alternate member of its delegation is able to deliver,
or to continue to deliver, statements and answers to questions in case that a designated
speaker encounters technical difficulties or connectivity issues.
Relation with the Working Procedures
22. These additional Working Procedures complement the Working Procedures of the Panel
adopted on 8 February 2021 and prevail over the latter to the extent of any conflict.

ANNEX A-4
ADDITIONAL WORKING PROCEDURES OF THE PANEL FOR VIRTUAL PARTICIPATION
AT THE SECOND SUBSTANTIVE MEETING
Adopted on 17 January 2022
General
1. These additional Working Procedures set out terms for holding a second substantive meeting
with the Panel in which all participants participate virtually.
Definitions
2. For the purposes of these Procedures:
"Participant" means any person participating in the virtual meeting with the Panel. This
includes the members of the parties' delegations, the members of the Panel, the members of
the Secretariat team assisting the Panel, and the interpreters.
"Platform" means the Cisco Webex Legislate software through which participants will
participate in the meeting with the Panel.
"Host" means the designated person within the WTO Secretariat responsible for the
management of the platform for participants to participate in the meeting with the Panel.
"DORA" means Disputes Online Registry Application.
Equipment and technical requirements for participation
3. Each party shall ensure that all members of its delegation join the meeting using the
designated platform, and meet the minimum equipment and technical requirements set out
by the platform provider for the effective conduct of the meeting.
4. Technical questions, including the minimum equipment and technical requirements for the
usage of the Platform, will be addressed in the advance testing sessions between the host and
the participants provided for in paragraph 7 below.
Technical support
5. (1) In light of the Secretariat's limited ability to offer technical assistance during, and in
advance of the meeting, each party is, in principle, responsible for providing its own technical
support to the members of its delegation.
(2) The host will assist participants in accessing and using the platform in advance of and
during the meeting with the Panel.
(3) In order to provide timely assistance, the host will prioritize assisting those members
of the delegations designated as main speakers on the delegations' lists.
Registration
6. Each party shall provide to the Panel the list of the members of its delegation by returning the
completed form in Annex I below, no later than 5:00 p.m. (Geneva time) on Wednesday,
19 January 2022. Each party shall indicate who among the members of their delegation will
be their main speaker(s).

Advance testing
7. The members of the parties' delegations will hold two test sessions with the Secretariat, at
dates to be established separately. O ne of these sessions will be a joint session with all
participants, including the members of the Panel and the Secretariat team. Participants should
make themselves available for the test sessions.
Confidentiality and security
8. The meeting shall be confidential.
9. The requirements concerning the treatment of confidential and business confidential
information, set forth in the Working Procedures of the Panel and the Additional Working
Procedures of the Panel Concerning Business Confidential Information, a dopted on
8 February 2021, apply and must be observed by the parties.
10. Participants shall connect to the virtual meeting through a secure internet connection and shall
avoid the use of an open or public internet connection.
11. The parties are strictly prohibited from:
(1) Recording, via audio, video or screenshot, the virtual meeting or any part thereof; and
(2) Permitting any non -participant to record, via audio, video or screenshot, the virtual
meeting or any part thereof.
Simultaneous interpretation
12. Simultaneous interpretation between English and Spanish will be available for the participants
through the platform.
Conduct of the meeting
Access to the virtual meeting room
13. (1) The host will invite participants via email to join the virtual meeti ng room on the
platform. This email will provide each participant with its personal access and login
information.
(2) For security reasons, access to the virtual meeting will be password -protected and
limited to members of the delegations, as listed in the completed Annex I form, who shall not
forward or share the virtual meeting link or password.
(3) Each party shall ensure that only members of its delegation join the virtual meeting
room.
Advance log-on
14. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
(2) Participants shall log on to the platform at least 30 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
Participation
15. (1) If a participant wishes to take the floor, the participant should use the "raise a hand"
function on the platform.

(2) All participants are encouraged to use their cameras during the entirety of the meeting.
Participants should turn o n their camera when taking the floor. Participants should turn off
their microphones when others take the floor.
Document sharing
16. Before each party takes the floor to deliver its opening statement, it shall provide the Panel
and other participants at t he meeting with a provisional written version of the statement
through DORA, clearly marking it "check against delivery".
17. Before each party takes the floor to deliver its closing statement, it shall provide the Panel
and other participants at the meeti ng with a provisional written version of the statement, if
available, through DORA, clearly marking it "check against delivery".
18. Any participant wishing to share a document with the other participants during the meeting
will do so through DORA, before first referring to such document at the meeting. Documents
that are already on the Panel's record as exhibits need not be shared through DORA again. If
a delegate wishes to display a section of such a document on screen when taking the floor,
the delegate is requested to advise the Panel accordingly when making the statement at the
meeting. A member of the Secretariat team will then share the relevant section of the exhibit
through the platform. To facilitate this process during the meeting, the delegation may inform
the Secretariat team in advance of the exhibit number that it intends to refer to at the meeting.
Pauses for internal coordination and consultation
19. The Panel may briefly pause a session at any time, at its own initiative or upon request by a
party, to enable any necessary internal coordination and consultation within a
party's delegation and/or among the Panelists.
Technical issues
20. (1) Each party shall designate a contact person who can liaise with the host during the
meeting to report an y technical issues that arise with respect to the platform. The host can
be contacted via the platform, by sending an email to kent.gisiger@wto.org, or by calling at
+41 22 739 6586.
(2) Should any technical interruptions occur, the host will directly coor dinate with the
affected participants to resolve the issue. After consulting the parties, the Panel may pause
the session until the technical issue is resolved or may decide to continue the proceedings
with those participants that remain connected. In prep aring for the meeting, the parties are
invited to ensure that an alternate member of its delegation is able to deliver, or to continue
to deliver, statements and answers to questions in case that a designated speaker encounters
technical difficulties or connectivity issues.
Relation with the Working Procedures
21. These additional Working Procedures complement the Working Procedures of the Panel
adopted on 8 February 2021 and prevail over the latter to the extent of any conflict.

ANNEX A-5
ADDITIONAL WORKING PROCEDURES OF THE PANEL TO FACILITATE
ARBITRATION UNDER ARTICLE 25 OF THE DSU1
Adopted on 29 August 2022
Transmission of the Panel Report
1. After issuance of the final panel report to the parties and upon a request to suspend the Panel
proceedings for purposes of facilitating an arbitration under the Agreed Arbitration Procedures,
the Panel shall transmit the final Panel Report in the three working languages of the WTO
(the "Translated Report") to the parties, third parties and the pool of arbitrators.2,.3
2. If the Translated Report is not yet available when the request for suspension is made, the
Panel shall transmit immediately the original English language version of the final Panel Report
(the "original final Pane l Report") to the pool of arbitrators. The Panel shall transmit the
Translated Report as per paragraph 1, once the translations become available.
Suspension of the panel proceedings
3. Once the Translated Report has been transmitted to the parties, third parties and the pool of
arbitrators, the Panel shall grant the request to suspend the Panel proceedings and indicate
when suspension takes effect.
Transmission of the Panel record
4. In the event that a notice of recourse to Article 25 under the Agreed Arbitration Procedures
("Notice of Appeal"4) is filed, the Panel shall, once suspension of the Panel proceedings has
taken effect and as soon as possible after the arbitrators have been appointed, transmit the
record of the Panel proceedings to the arbitrators. The Panel shall consult with the third parties
concerned with a view to transmitting, as part of the Panel record, the third-party submissions,
third-party oral statements and third-party responses to questions.
Transmission of the Panel Report and the Panel record through DORA
5. Transmission of the final Panel Report, the Translated Report and the Panel record, as
appropriate, shall take place through the WTO Disputes On-Line Registry Application (DORA).
Confidentiality of the Panel Report and the Panel Record
6. Once transmitted to the parties, third parties and the pool of arbitrators, the original final
Panel Report and/or the Translated Report remain confidential. In the event of the filing of a
Notice of Appeal, confidentiality of the Tr anslated Report is thereby lifted such that the
Notice of Appeal, which will be circulated as an unrestricted DS document, may include the
Translated Report.5

1 See paragraph 1.14 of the Panel Report and the parties' Agreed Procedures for Arbitration under
Article 25 of the DSU (WT/DS591/3/Rev.1) ("Agreed Arbitration Procedures"). Through the present
Additional Working Procedures of the Panel, the Panel accedes to, and operationalizes the modalities of, the
parties' joint request formulated in paragraphs 4 and 19 of the Agreed Arbitration Procedures.
2 Unless the parties indicate otherwise, the "pool of arbitrators" shall be understood to comprise all
individuals identified in JOB/DSB/1/Add.12/Suppl.5, as validated in JOB/DSB/1/Add.12/Suppl.8.
3 It is understood that transmission of the Translated Report shall not constitute circulation of the Panel
Report within the meaning of Article 16 of the DSU.
4 In the Agreed Arbitration Procedures, the parties refer to this notice as a Notice of Appeal and we use
this term accordingly in these Additional Working Procedures.
5 In paragraph 5 of the Agreed Arbitration Procedures, the parties envisage that the Notice of Appeal
shall include the Translated Report.

ANNEX A-6
INTERIM REVIEW
1 INTRODUCTION
1.1. In accordance with Article 15.3 of the DSU, this annex sets out our discussion and disposition
of Colombia's requests for interim review and the European Union's comments thereupon.1
1.2. As explained below, we have made certain modifications to the Report in light of the
parties' arguments made at the interim review stage. The numbering of footnotes in the Final Report
has changed from the Interim Report. The numbering of the paragraphs in the Final Report remains
the same as in the Interim Report.
1.3. In addition to the modifications specified below, the Panel also made certain other
typographical and other non-substantive changes to its Report.
2 COLOMBIA'S REQUESTS FOR REVIEW OF THE INTERIM REPORT
2.1 Paragraph 3.3
2.1. Colombia requests the addition of the word "also" in the last sentence of this paragraph in
order to "fully" capture the "logical connection" between this sentence and the preceding sentence.2
2.2. While the European Union does not consider the addition of the word "also" to be necessary, it
does not oppose Colombia's request.3
2.3. The addition of the term "also" does not, in our view, alter the content or substance of the
paragraph and we have therefore made the modification requested by Colombia.
2.2 Paragraph 7.67
2.4. Colombia requests that this paragraph be expanded to reflect its arguments in a more complete
manner, because, in its current form, it does not mention all the relevant elements of its arguments,
and, moreover, the brevity of the summary of its arguments stands in contrast to the much longer
summary of the European Union's arguments.4
2.5. The European Union observes that certain of Colombia's requests go beyond merely reflecting
"a more extensive description" of Colombia's arguments. Therefore, in the event the Panel accedes
to Colombia's requests, the European Union requests the Panel to strictly limit this to direct citations
of Colombia's submissions, and to not add any new language or modify the existing language
summarizing or qualifying those submissions.5
2.6. We have included in our summary all elements of Colombia's arguments that we consider to
be relevant to our analysis. Moreover, the parties' executive summaries of their arguments are
already appended to the Repo rt and also set out, in detail, their respective positions. To address
Colombia's comment concerning the alleged brevity of the summary of its arguments in comparison
to the summary of the European Union's position, we have made certain modifications to th is
paragraph by including additional text from Colombia's submissions in these proceedings.

1 The European Union did not request that the Panel review precise aspects of the Interim Report.
2 Colombia's request for interim review, para. 2.1.
3 European Union's comments on Colombia's request for interim review, para. 3.
4 Colombia's request for interim review, para. 2.2.
5 European Union's comments on Colombia's request for interim review, paras. 4-7.

2.3 Paragraph 7.71
2.7. Colombia requests that this paragraph be modified to include a reference to its alternative
argument that "even if the words 'where appropriate' required an analysis as to why domestic sales
prices were not used, the petitioner and [MINCIT] complied with this requirement in the instant
investigation". According to Colombia, in its current form, the paragraph – together with the
remainder of the Panel's reasoning and the previous description of the parties' arguments – does
not make sufficiently clear Colombia's explicit alternative argument.6
2.8. In addition to its above response with respect to Colombia's comments concerning
paragraph 7.67 of the Interim Report, the European Union submits that Colombia is in fact
requesting that the Panel include an additional finding that the petitioner or the investigating
authority satisfied the requirement to explain the reasons why information on dome stic sales was
not provided in the application or examined in the initiation decision. For the European Union, this
proposed finding would flatly contradict the Panel's finding in paragraph 7.75 of the Interim Report,
and it also appears to ignore the fact that, in the preceding paragraph 7.74, the Panel quoted
paragraph 2.1.3 of the initiation decision, and found that it did not contain the required explanation.7
2.9. We consider that the argument identified by Colombia is already reflected and addressed
elsewhere in the Panel Report.8 We therefore do not grant Colombia's request.
2.4 Paragraphs 7.124 and 7.125
2.10. Colombia requests the Panel to include verbatim the three tables contained in
paragraphs 4.10, 4.12, and 4.14 of its second written submission. According to Colombia, given that
the Interim Report finds that the comparisons in these tables are not enough to show that the
information was the same, these tables would allow the reader to compare visually the information
submitted in the original application to the redacted information in the revised application.9
2.11. The European Union does not see the need to include the three tables identified by Colombia.
The European Union argues that the finding made by the Panel in paragraph 7.125 of the
Interim Report is that other interested parties in the investigation could not have "easily" inferred
that the redacted information in the revised application was the same as the relevant information
contained in the original application.10
2.12. Colombia has not identified any error or suggested any revisions, but merely contends that
"[g]iven that the interim report finds that the comparisons in these tables are not enough to show
that the information was the same", the inclusion of these tables "would allow the reader to compare
visually the information submitted in the original application" to "the redacted information in the
revised application".
2.13. We recall that in paragraph 7.125 of the Report, we have already explained that: "the fact
that the relevant tables share the same title, structure, and source of information does not, alone,
demonstrate (or make it easy to 'infer') that the specific 'values' or 'trends' redacted in one table
are the same as the 'values' or 'trends' allegedly available in another table." In light of this
paragraph, we do not grant Colombia's request.
2.5 Paragraph 7.183
2.14. Colombia disagrees with the Panel's characterization that Colombia's arguments "evolved
during the proceedings" and contends that its position remained "exactly the same", specifically
"[t]hat the investigating authority's explicit determination to use facts available is a 'key condition',
but not the sole condition".11 Therefore, Colombia requests that the Panel delete paragraph 7.183.12

6 Colombia's request for interim review, paras. 2.3-2.4.
7 European Union's comments on Colombia's request for interim review, paras. 4-7.
8 Panel Report, paras. 7.67 and 7.69-7.75.
9 Colombia's request for interim review, para. 2.5.
10 European Union's comments on Colombia's request for interim review, para. 9.
11 Colombia's request for interim review, paras. 2.7, 2.9, and 2.12.
12 Colombia's request for interim review, para. 2.6.

2.15. The European Union concurs with the Panel's description that Colombia's arguments "evolved
during the proceedings" and thus objects to Colombia's request.13
2.16. While we decline Colombia's request to delete this paragraph, we have removed the reference
to Colombia's arguments having "evolved during the proceedings" and, for greater clarity, quoted
the text of Colombia's underlying statements.
2.6 Paragraph 7.190
2.17. Colombia makes several requests in respect of this paragraph. First, Colombia requests that
the Panel delete the words "and rejected" because, in its view, the Panel did not "reject"
Colombia's arguments on substance. 14 Second, Colombia asks the Panel to delete the term
"post factum" because t hese words evoke the separate and distinct concept of " ex post
rationalization".15 Third, Colombia proposes to add a new sentence at the end of the paragraph.16
2.18. The European Union opposes Colombia's requests because it considers that the text in the
paragraph at hand is accurate, and that Colombia's proposed changes would distort the
Panel's findings.17
2.19. Removing the words "and rejected" and "post factum" does not alter the content or substance
of the paragraph and we have therefore made the requested changes. We have also supplemented
the text of the paragraph by paraphrasing the findings made in paragraph 7.188.
2.7 Paragraph 7.282
2.20. Colombia requests the Panel to modify this paragraph and to add that MINCIT explained the
relevance of non-dumped imports for the domestic industry.18
2.21. The European Union does not consider such addition to be necessary for the Panel's findings
and adds that it, in any event, lacks relevance in the context of this paragraph of the Interim Report
and would wrongly imply that certain matters are "agreed" facts.19
2.22. As the European Union points out, Colombia's requested modifications go beyond the scope
of the Panel's analysis as reflected in paragraph 7.282, which is limited to noting the
parties' agreement on the factual issue of what imports were included in MINCIT's injury and
causation analysis. We are therefore unable to grant Colombia's request.

ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the European Union 24
Annex B-2 Integrated executive summary of the arguments of Colombia 33

ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE
ARGUMENTS OF THE EUROPEAN UNION
1. INTRODUCTION
1. Following a complaint lodged by the Colombian Federation of Potato Producers (FEDEPAPA),
the Colombian Ministry of Trade, Industry and Tourism ("Ministerio de Comercio, Industria y
Turismo", "MINCIT") opened an administrative investigation for the purpose of determining
the existence, degree and effects on the domestic industry of alleged dumping of imports of
potatoes, prepared or preserved otherwise than by vinegar or acetic acid, frozen, classified
under tariff subheading 2004.10.00.00 originating in Belgium, the Netherlands (Holland) and
Germany.
2. Tariff subheading 2004.10.00.00 includes both "traditional chips and fries", which are similar
to potato products produced on the Colombian market, and "potato specialties", whic h differ
from traditional potatoes in their physical appearance and final sales price (160% more
expensive).
3. The product mix exported to Colombia by the investigated producers consists quasi exclusively
of products of the first category, while the product mix sold in the European Union comprises
significant volumes of the second category. Other price-relevant differences exist between the
respective product mixes relating to coating, size, cuts, shapes etc.
4. On 27 August 2018, MINCIT circulated the Tec hnical Report on Essential Facts. The Final
Technical Report and the Final Determination were published on 9 November 2018. MINCIT
imposed anti-dumping duties on imports of potatoes, prepared or preserved otherwise than
by vinegar or acetic acid, frozen, classified under tariff subheading 2004.10.00.00 originating
in Belgium, the Netherlands (Holland) and Germany, in the form of an ad valorem duty to be
settled on the free on board (FOB) value declared by the importer, in addition to the tariff in
force on the National Customs Tariff, as follows:
o from Belgium: Mydibel S.A.: 8.01%;
o from the Netherlands (Holland):
▪ Aviko B.V.: 3.64%;
▪ OTHER EXPORTERS: 44.52% (except Farmfrites B.V.);
o from Germany: Agrarfrost GmbH & Co. KG.: 3.21%.
2. CLAIMS RELATING TO INITIATI ON AND CONFIDENTIALITY OF INFORMATION
SUBMITTED BY THE APPLICANT
2.1. Violation of Article 5.3 of the Anti-Dumping Agreement
5. The application submitted by FEDEPAPA did not contain all the information required by
Article 5.2 of the Anti -Dumping Agreement . It also did not include sufficient evidence of
dumping, injury, and the existence of a causal link between the dumped imports and the
alleged injury. Yet, MINCIT decided to initiate an investigation of the alleged dumping of the
product imported from Bel gium, Germany and the Netherlands under tariff subheading
2004.10.00.00 on the basis of insufficient evidence, thereby acting inconsistently with
Colombia's obligations under Article 5.3 of the Anti-Dumping Agreement.

2.1.1. Lack of sufficient evidence with respect to product under consideration
6. MINCIT failed to verify whether FEDEPAPA's application and supporting evidence justified the
initiation of an investigation covering all products originating in Belgium, Germany and the
Netherlands th at fall under tariff subheading 2004.10.00.00. The definition of the product
under consideration was over-inclusive because it covered potato preparations that were not
imported into Colombia, or only in very small quantities, and for which it was not cert ain
whether they were manufactured by the domestic industry.
7. The absence of sufficient evidence submitted by the applicant on this crucial point in its
application, as well as in a subsequent reply to a request for clarification, should have led the
investigating authority to conclude that the application did not provide sufficient evidence to
justify the opening of an investigation.
8. The European Union submits that since Article 5.3 Anti -Dumping Agreement obliges the
investigating authority to examine the accuracy and adequacy of the evidence provided in the
application, MINCIT should have determined whether the definition of the product under
consideration proposed by the applicant was appropriate and supported by the evidence.
2.1.2. Lack of sufficient evidence regarding the representativeness of the applicant
9. The European Union considers that, at the time of the initiation of the investigation, legitimate
doubts existed concerning the extent to which of the applicant represented the domestic
industry, i.e. the Colombian potato -processing industry manufacturing the products "like"
those allegedly dumped.
10. The terms of the application did not clearly identify the producers of the "like" product and
included potato growers among the domestic industry. The doubts thus created were not
dispelled by an attentive reading of the Certificate Existence and Legal Representation of the
non-profit entity FEDEPAPA.
11. Although the European Union does not contest that the representativeness of t he applicant
was clarified later during the investigation, and therefore raised no claim under Article 5.4 of
the Anti -Dumping Agreement, it argues that the evidence supporting the application was
sketchy and insufficient as regards the representativeness of FEDEPAPA.
2.1.3. Lack of sufficient evidence of dumping
12. MINCIT relied on information that FEDEPAPA carefully selected in order to support its
allegations of dumping. Whereas information on prices of the like product in the domestic
markets of the countries of origin was reasonably available to the applicant, such information
was not submitted as it would have shown that there was no dumping within the meaning
Article 2 of the Anti -Dumping Agreement. By accepting the information on prices of exports
to a third country without questioning whether data on domestic sales was reasonably
available to the applicant, MINCIT failed do discharge its duty to examine the accuracy and
adequacy of evidence provided in the application.
13. Colombia's argument that Article 5.2(iii) of the Anti -Dumping Agreement should be
interpreted as leaving the applicant free to choose to submit information relating to export
prices in a third country, rather than relating to sales in the domestic market, is not convincing.
The correct interpretation of Article 5.2(iii) is very far from the concept of "haz lo que quieras"
(or "do as you wish") suggested by Colombia. The terms "cuando proceda" and "le cas
échéant", just like the term "where appropriate", constrain the choice of info rmation that an
applicant can submit to the investigating authority for the purpose of calculating the normal
value of the product allegedly dumped at the stage of initiation. It is only "appropriate" for
the applicant to submit information on export prices to a third country, or on the constructed
value of the product, if in the circumstances present in each case if domestic sales of the
product do not exist, are not representative or information on prices of domestic sales are not
reasonably available to the applicant.

14. Under Article 5.3, the role of the investigating authority is to examine the evidence submitted
by the applicant and determine whether it is accurate, adequate and sufficient to justify the
initiation of an investigation. In order to determine which evidence is adequate, guidance must
be found in the text of Article 5.2(iii) itself and also in that of other provisions of the
Anti-Dumping Agreement that provide context for its interpretation. The European Union
agrees with Colombia that the last sentence of the "chapeau" of Article 5.2 provides relevant
context, because it clarifies that the application must only include information that is
"reasonably applicable to the applicant". Article 2 of the Anti -Dumping Agreement also
provides relev ant context for the interpretation of Article 5.2(iii) and, indirectly, for the
interpretation of Article 5.3, as found by the panel in Guatemala – Cement II. Contrary to
what Colombia alleges, there is no need for a cross reference to Article 2.2 in the t ext of
Article 5.2(iii). The terms used in the latter provision are clearly inspired by those used in
Article 2 and, as noted by the panel in Guatemala – Cement II, "in order to determine that
there is sufficient evidence of dumping, the investigating auth ority cannot entirely disregard
the elements that configure the existence of this practice as outlined in Article 2".
15. FEDEPAPA submitted an application for anti -dumping relief on behalf of the Colombian
domestic potato-processing industry, in which Congelagro S.A., a subsidiary of McCain Foods,
played a prominent role (it alone represented more than 50% of the domestic industry). It
would have been perfectly practicable for MINCIT to require the applicant to submit
information on sale prices in the domestic markets of Belgium, Germany and the Netherlands.
Even if that information had not been readily available to the applicant (quod non), a
multinational group with the dimension and financial strength of McCain Foods could have,
without difficulty, availed itself of the commercial intelligence services.
16. An impartial and objective investigating authority should have considered that the alternative
information on prices of exports to third countries submitted by the applicant was not adequate
and sufficient evidence to justify the initiation of an investigation.
2.1.4. Lack of sufficient evidence of injury
17. The European Union argues that, as is apparent from the initiation decision, MINCIT relied on
information concerning, to a large extent, the impa ct of the allegedly dumped imports on
farmers and on the prices for fresh potatoes. This is not in line with the concept of injury in
Article 3.1 of the Anti-Dumping Agreement, which rather requires an analysis of the impact of
the alleged dumped imports o n prices in the domestic market for "like products " of the
importing country and the consequent impact of these imports on the domestic producers of
such products.
18. MINCIT relied exclusively on the statements made by FEDEPAPA, which stressed the impact
of the imports of frozen fries on the economic situation of Colombian potato farmers, and this
impact played a prominent role in the initiation decision. However, at the stage of initiation,
the examination of the adequacy of the evidence on injury must be consistent with the
requirements of Article 5.3, interpreted in the light of Article 5.2(iv) and Article 3.1 of the
Anti-Dumping Agreement. MINCIT did not comply with those requirements.
2.1.5. Lack of sufficient evidence of a causal link between the dumped imports and the alleged
injury
19. The evidence regarding the causal link, on the basis of which MINCIT took its initiation
decision, was limited to an assertion by the applicant that "[o]wing to the low prices of the
imported product … the domestic product loses share compared to the European product".
20. The European Union submits that this assertion, together with the evidence on the evolution
of imports originating in Belgium, Germany and the Netherlands, is insufficient to establish a
causal link between those imports and the alleged injury suffered by the domestic industry. It
should be noted that, as indicated by FEDEPAPA itself, the Colombian market for frozen fries
grew by 33% between 2014 and 2016. Moreover, Colombia does not deny that ther e were
other sources of imports of the product, it only confirms that FEDEPAPA singled out the three
European countries in its letter of 19 July 2017 supplementing the application.

2.2. Violation of Article 5.8 of the Anti -Dumping Agreement: MINCIT should have rejected
FEDEPAPA's application
21. The European Union maintains its consequential claim under Article 5.8 of the Anti-Dumping
Agreement. In its view, if the Panel finds that Colombia acted inconsistently with its obligations
under Article 5.3 by ini tiating the anti -dumping investigation on the basis of insufficient
evidence, it should also find that Colombia acted inconsistently with its obligations under
Article 5.8 by failing to reject the application submitted by FEDEPAPA.
22. The European Union relies on the Panel's findings in Guatemala – Cement II in which it was
recalled that Article 5.8 makes specific reference to the rejection of an application as soon as
the authorities conclude that there is not sufficient evidence of dumping or injury to j ustify
proceeding with the case. The Panel linked its finding that an investigating authority should
have considered the evidence insufficient to launch an investigation, to a subsequent
conclusion that the authority should have rejected the application.
23. Since the initiation of the original investigation is inconsistent with Colombia's obligations
under Articles 5.3 and 5.8 of the Anti-Dumping Agreement, the whole investigation procedure
is vitiated and cannot lead to a lawful imposition of anti-dumping duties on the subject imports.
2.3. Violation of Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement
24. The European Union contends that MINCIT failed to comply with its obligations under
Article 6.5, which aim to reconcile two competing duties of inve stigating authorities: on the
one hand, to ensure confidential treatment of sensitive information supplied by certain parties
and, on the other hand, to grant adequate opportunity for other parties to defend their
interests.
25. It is not sufficient for the investigating authority to ask the person supplying the information
to provide a justification for confidential treatment. The investigating authority must also
objectively determine whether the justification provided amounts to "good cause".
26. Moreover, in this case, MINCIT treated the financial and commercial information provided by
domestic producers as confidential, while disclosing similar information provided by the
European exporters cooperating with the investigation. This undermines Colombia's argument
that all such information is confidential "by nature" and therefore implicitly deserves
confidential treatment. It also reveals that MINCIT has not objectively assessed whether the
content of the non -disclosed information could have a prejudicial effect on the transparency
and due process interests of other parties involved in the investigation.
27. While the European Union does not exclude that certain nominal or numerical information may
not be susceptible of summarization without revealing sensitive trade secrets, this is certainly
not the case of all nominal or numerical data submitted by an applicant. It is the task of the
investigating authority to ensure that parties provide meaningful summaries of the confidential
information they submit (fo r example through indexation or ranges) and also that, in the
exceptional cases where this is not possible, they provide a statement appropriately explaining
the reasons why particular pieces of confidential information are not susceptible of summary.
3. CLAIMS RELATING TO THE DUMPING DETERMINATION
28. The European Union considers that MINCIT's entire process of determination of the dumping
margins was fundamentally flawed. A correct application of the Anti -Dumping Agreement
would have led the authority to terminate the investigation without imposing duties.
3.1. Violation of Articles 2.1, 6.8 and paragraphs 3 and 6 of Annex II of the Anti -Dumping
Agreement: MINCIT unlawfully relied on secondary source information for its dumping
calculation
29. MINCIT disregarded the truthful and complete export price data submitted by the exporters,
and instead used secondary data from the national customs database "DIAN". Disregarding
data submitted by the exporters in and for the purpose of the investigation is only a llowed if

the conditions set out in Article 6.8 of the Anti-Dumping Agreement are met. Colombia itself
admits that this was not the case. MINCIT did not point at any time at deficiencies of the
exporters' primary data which would have justified the use of "facts available" – because there
were no such deficiencies.
30. The European Union disagrees on principle with Colombia's position that data from a
secondary source can be considered as constituting primary source data if it is "identical in
essence" to the data submitted by the exporters in and for the purpose of the investigation,
and that therefore Article 6.8 of the Anti -Dumping Agreement does not apply. On the
contrary, the European Union considers that secondary source data will always constitute
"facts available", even if it were fully identical to the data submitted by the exporters in and
for the purpose of the investigation (which it was not, in casu). Moreover, in the case at hand,
the European Union demonstrated that significant differences existed between the
two datasets, both at the level of the individual transactions and at the level of the overall
dataset, which Colombia eventually acknowledged.
31. Accordingly, the fact that MINCIT relied on the DIAN data for determining the export price
was unlawful in respect of the conditions laid down in Article 6.8 and Annex II of the
Anti-Dumping Agreement. Because the export price was not based on the correct information
sources and did not as such constitute a proper basis for the dumping calculations,
MINCIT's decision is also in breach of Article 2.1 of the Anti-Dumping Agreement.
3.2. Violation of Article 2.4 of the Anti-Dumping Agreement: the comparison between domestic
sales and export sales was conducted in an unfair manner
32. The investigating authority failed to carry out a fair comparison between the export price and
the normal value. In particular, it breached its obligation to make the adjustments needed in
order to take due account of differences affecting price comparability.
3.2.1. Product mix: MINCIT ignored price-relevant differences in product mixes
33. MINCIT knowingly ignored the differences between the product mixes sold on the domestic
market on the one hand, and on the export market on the other hand, and refused to make
the required adjustments, even though these differences were significant and price -relevant
and even though the investigated exporters had requested that these crucial differences
should be taken into consideration, and duly substantiated their request.
34. The product under investigation covers several different subtypes, amongst others traditional
fries on the one hand, potato specialties on the other hand. These two sub -types of products
have very different physical characteristics. Accordingly, their production processes are
different which in turn results in price -relevant product speci fications and final sales prices
(161% for potato specialties). MINCIT's decision to carry out neither a type -by-type
comparison, nor to make any adjustments for these differences therefore led to significantly
inflated dumping margins.
35. The attempt mad e by Colombia to justify this blatant unfairness based on an allegation of
insufficient substantiation is unconvincing. In fact, the investigated exporters proposed several
methods to take into account the differences in product characteristics, provided e xport
listings, which clearly distinguished between the various product types, and provided evidence
and figures detailing the different product mixes and how they concretely affected price
comparability. Thus, MINCIT had all the necessary information to c onduct a fair comparison.
Furthermore, any remaining need for clarifications concerning the information submitted by
the exporter should have been dealt with through information requests to the interested
parties, pursuant to Article 2.4, 4th sentence – which MINCIT never made.
36. Moreover, the European Union considers that the argument raised by MINCIT that it was not
required to conduct a type -by-type comparison as Article 2.4 does not impose a specific
methodology is wrong. To the contrary, Article 2.4 requires that investigation authorities who
decide not to make a type-by-type comparison are required to do the necessary adjustments
in a different manner – which MINCIT did not do either.

37. The European Union also rejects Colombia's argument that the exporters allegedly submitted
confusing and contradictory calculations in their claims for adjustment. Any divergence in
calculations only concerns the quantification of overall price effects, which the exporters were
not even obliged to submit in order to substantiate their claim, and which resulted from the
fact that MINCIT did not upfront indicate how it would structure the comparison for the
different product types (which it was obliged to do).
3.2.2. Packaging
38. MINCIT also breached the fair compariso n requirement, because for Mydibel it included the
packaging costs in the normal value but deducted them from the export price, thereby
unlawfully inflating the dumping margin. The European Union rejects Colombia's assertion that
what was deducted from the export price was merely the "additional overseas packaging
costs" and not regular packaging costs. This argument is contradicted by the detailed
explanations provided by Mydibel to MINCIT, and submitted by the European Union in these
panel proceedings, which convincingly show that the deduction concerned the full normal cost
of packaging.
3.2.3. Types of oil
39. MINCIT also ignored Agrarfrost's request for an adjustment concerning the types of oil used
for the preparation of the potato product (products fo r the domestic market are mostly
pre-fried in the more expensive sunflower oil at the request of the customers, whereas the
export product is pre-fried in cheaper types of oil). This adjustment alone would have lowered
Agrarfrost's dumping margin below the de minimis threshold.
40. Colombia's position that the request was ignored by MINCIT because of a lack of substantiation
is not convincing and should be rejected. The exporter provided extensive explanations on the
price-relevance of the type of oil used, and the different usages on the domestic and export
market, respectively. All data substantiating the request was submitted as early as with
Agrarfrost's questionnaire replies; relevant invoices were submitted in writing during the
investigation and the full body of relevant evidence was verified at MINCIT's verification visit
to Agrarfrost's premises. This is explicitly stated in MINCIT's own verification report, and
explained in more detail in Annex 9 to this report, which the report endorses, contrary t o
Colombia's implausible assertions.
3.2.4. MINCIT failed to specify necessary information and imposed an unreasonable burden of proof
41. By simply ignoring the requests for adjustments raised by the investigated exporters, without
raising any specific questions or giving any indication of further explanations or information it
would have required, MINCIT also failed to engage in the "constructive dialogue" on requested
adjustments which is required under Article 2.4 of the Anti-Dumping Agreement.
4 CLAIMS RELATING TO THE INJURY AND CAUSATION DETERMINATION
4.1. Colombia has acted inconsistently with its obligations under Article 3.1, 3.2, 3.4 and 3.5 of
the Anti-Dumping Agreement by wrongfully including non-dumped imports
42. In its analysis of injury and causation, MINCIT wrongly included both:
• Imports which were found not to have been dumped in that they were found to have
negative dumping margins; and
• Imports that were found to have dumping margins below the de minimis threshold and in
respect of which no anti-dumping duty was imposed.
43. The European Union considers that, by including these imports in its injury analysi s, MINCIT
committed an overarching error of law which permeated and contaminated the entirety of the
injury and causation analysis, as one is consequential upon the other.

44. Specifically, for the purposes of its assessment of injury, MINCIT relied upon d ata allegedly
showing the comparative performance of different economic indices as between a "reference
period" and a "critical period". Those periods are not of equal duration. However, since the
figures that MINCIT relies upon have been distorted by the overarching error described above,
the findings are not based on "positive evidence" within the meaning of Article 3.1 of the
Anti-Dumping Agreement and the assessment lacked the requisite objectivity. This breach
gives rise in turn to consequential violations of Articles 3.2, 3.4 and 3.5 of the Anti-Dumping
Agreement.
45. With respect to the inclusion of imports, which were found to have a negative dumping margin,
Colombia has at the least implicitly acknowledged that this was an error. However, it contends
that this is not material. This attempt to downplay the amplitude of this error and the
consequences that it bears for the validity of the entire injury analysis should be rejected.
46. The data forms the foundation for the entire logical progression of the injury analysis. Hence,
any error with respect to the scope of the imports that may legitimately form part of an injury
analysis undermines the entire inquiry and the ultimate findings of causation and injury.
47. Colombia tries to justify the inclusion of imports that were found to be below the de minimis
threshold by inviting the Panel to find that it applied a permissible interpretation of the term
"dumped imports".
48. The European Union disagrees. The interpretation for which Colombia advocates wou ld run
against the logical structure of the Anti-Dumping Agreement as a whole, would undermine the
function of Article 5.8 of the Anti -Dumping Agreement and in particular defeats the purpose
of the procedural guarantees that are to be afforded throughout an investigation. Indeed, the
existence of an investigation is the precondition for the conduct of an injury analysis and for
any consequential finding. It should not be possible to revive imports which have or which
ought to have been excluded from an inve stigation for the sole purpose of demonstrating
injury and causation. Once the condition set down in Article 5.8 of the Anti -Dumping
Agreement for the immediate termination of an investigation is met, the relevant imports (in
this case those imports for which a de minimis margin of dumping was found) can no longer
legitimately form any part of an analysis relied upon to establish injury or causation.
49. The European Union emphasises that this interpretation is supported by multiple reports of
the Appellate Body and other Panels.
50. Moreover, this issue is not one which can be left open to an ambiguous or dual interpretation.
Either imports found to be "de minimis" within the meaning of Article 5.8 of the Anti-Dumping
Agreement may be treated as "dumped imports" or they may not.
4.2. Colombia acted inconsistently with its obligations under Article 3.1 and 3.2 of the
Anti-Dumping Agreement by relying on flawed analysis of the effect of the dumped imports
on prices in the domestic market for the like product
51. First, the European Union contends that the data relied upon by MINCIT to establish "trends"
for the purpose of its price effects analysis was over -inclusive, because it included
"non-dumped" imports. Thus, all subsequent findings related to alleged price effects based on
this data fail to meet the conditions laid down in Article 3.1 of the Anti-Dumping Agreement,
as they are not sustained by positive and objective evidence.
52. Second, the European Union has demonstrated that the methodological approach followed by
the investigating authority for its effects analysis is deficient. Aside from the error relating to
the data, MINCIT also failed to ensure price comparability or to properly assess the effects on
domestic prices.
53. Whereas domestic prices were assessed in terms of their "real implicit price", there is no
equivalent analysis of the price of imports. Colombia has engaged in semantic arguments
claiming that it 'juxtaposed' rather than compared trends. This does not suffice to justify th e
lack of equivalence between the data as regards domestic prices (real implicit price) and the
data as regards the price of imports (FOB price). There is a degree of comparison in the

analysis relied upon and that implies that the data had to be objective ly comparable. The
European Union reiterates that this lack of equivalence undermines the objectivity of the entire
price effects analysis.
4.3. Colombia has acted inconsistently with its obligations under Article 3.1 and Article 3.4 of the
Anti-Dumping Agreement by failing to evaluate all relevant economic factors and indices when
concluding there was material injury to the domestic industry
54. The European Union's position is that MINCIT's analysis of the impact of the allegedly dumped
imports on the do mestic industry falls short of the legal standard as it did not include all
relevant economic factors and indices having a bearing on the state of the industry, but instead
focused on only seven of the fifteen economic factors and indices.
55. Furthermore, the methodology applied by MINCIT throughout the course of this analysis was
significantly flawed. MINCIT's calculation of the averages in respect of each of the economic
variables set down in its Final Technical Report was inappropriate, as these average s were
calculated based on periods of different durations (for the "reference period" on the one side,
and for the "critical period" on the other side). This method has a distortive effect and does
not reflect fluctuations in data adequately. This is not resolved by describing six monthly data
points in addition to the averages; a bare description of the movement of data without any
proper evaluation falls short of the standard imposed by Article 3.4 of the Anti -Dumping
Agreement. There was no attempt to an alyse the relevance of significant movements in the
data which occurred in the reference period. Moreover, it is sufficient to read the Final
Determination and Final Technical Report to understand that it was the averages that were
considered determinative.
56. In addition, Colombia has failed to explain why MINCIT did not attach any importance in its
analysis to factors, which showed trends favorable for the domestic industry. Such factors,
given that they supported the position that the domestic industry did not suffer any material
injury should have been thoroughly assessed. Conversely, and at the least implicitly, MINCIT
placed significant emphasis on factors that did substantiate the existence of a material injury.
The absence of any explanation as to t he reasons why certain factors were ascribed more
weight than others in the overall analysis of the existence of a material injury demonstrates
that MINCIT failed to conduct an "objective" examination of the different factors and indices.
57. The European Union emphasises the need for the Panel to focus on the documents on record
rather than on the new reasoning that has been developed in Colombia's submissions.
4.4. Colombia has acted inconsistently with its obligations under Articles 3.1 and 3.5 of the
Anti-Dumping Agreement by failing to demonstrate a causal link between dumped imports
and injury to the domestic market
58. The European Union contends that Colombia's causation determination is inconsistent with
Article 3.5 and 3.1 of the Anti -Dumping Agreement, since it builds upon the findings of an
injury analysis, which suffered itself from significant shortcomings, as stated above.
59. Furthermore, the European Union underlines that MINCIT failed to separate, distinguish and
adequately analyse all rele vant non -attribution factors, and in particular the impact of
"non-dumped" imports. In particular, the impact of those imports in respect of which either a
negative dumping margin or which in respect of which the dumping margin was found to be
de minimis should have been assessed as a non-attribution factor.
60. Again, the European Union urges the Panel to disregard new elements of analysis that have
been brought to the table by Colombia during the legal proceedings, as they do not form part
of MINCIT's assessment during the investigation, and remain unsubstantiated.
61. Finally, MINCIT also failed to demonstrate the existence of the alleged causal link. It simply
relied on the correlation between the alleged injury and the allegedly dumped imports. This is
insufficient to meet the legal standard.

5 CONCLUSIONS
62. For the reasons set out above, the European Union requests the Panel to find that:
- Colombia has acted inconsistently with its obligations under Article 5.3 of the Anti-Dumping
Agreement by initiating the anti-dumping investigation on the basis of insufficient evidence
of dumping, injury and a causal link between the dumped imports and the alleged injury;
- Colombia has acted inconsistently with its obligations under Article 5.8 of the Anti-Dumping
Agreement in failing to reject the application submitted by FEDEPAPA, which did not include
sufficient evidence to justify proceeding with the investigation;
- Colombia violated Article 6.5 of the Anti -Dumping Agreement by providing confidential
treatment on its own initiative to the information supplied by the applica nt, without good
cause having been shown;
- Colombia acted inconsistently with its obligations under Article 6.5.1 of the Anti -Dumping
Agreement by failing to require the applicant to furnish non -confidential summaries in
sufficient detail to permit a reason able understanding of the substance of the information
submitted in confidence, or by failing to require a statement of reasons in support of a claim
that the information was not susceptible of summary;
- Colombia violated Articles 2.1, 6.8 and paragraphs 3 and 6 of Annex II of the Anti-Dumping
Agreement, by not using, in the calculation of the dumping margins, the information on
export prices provided by the cooperating investigated companies, but instead, information
from its customs database (DIAN);
- Colombia violated Article 2.4 of the Anti-Dumping Agreement by not making due allowances
for differences impacting price comparability (differences in product mix and differences in
oil used in the preparation), by making undue adjustments (for packaging costs), and by not
informing interested parties about the information required for the fair comparison;
- Colombia violated Articles 3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping agreement by
wrongfully including non-dumped imports;
- Colombia violated Article 3.1 and Ar ticle 3.2 of the Anti -Dumping Agreement by not
conducing an objective examination, based on positive evidence, by failing to properly
establish the effect of the dumped imports on prices in the domestic market for the like
product and by failing to adequately justify its findings;
- Colombia violated Article 3.1 and Article 3.4 of the Anti -Dumping Agreement by not
conducting an objective examination, based on positive evidence, by failing to properly
consider all relevant economic factors and indices having a bearing on the state of the
industry and by failing to adequately justify its findings; and
- Colombia violated Article 3.1 and Article 3.5 of the Anti -Dumping Agreement by not
conducting an objective examination, based on positive evidence, by failing to demonstrate
a causal link between the dumped imports and the injury to the domestic industry and by
failing to adequately justify its findings.
63. The European Union further requests, pursuant to Article 19.1 of the DSU, that the Panel
recommends that Colombia bring its measures into conformity with the GATT 1994 and the
Anti-Dumping Agreement.

ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA*
1 THE EUROPEAN UNION'S CLAIM UNDER ARTICLE 5.3 OF THE ANTI -DUMPING
AGREEMENT ON CERTAIN ASPECTS OF THE INITIATION OF THE INVESTIGATION SHOULD
BE REJECTED
1.1. The European Union makes five arguments under Article 5.3, claiming that the investigation
was initiated incorrectly. Each of these five arguments are baseless in law and in fact and should be
rejected.
1.1 The European Union's arguments concerning the definition of the product under
investigation have no legal basis
1.2. The European Union's first argument is th at the definition of the product under investigation,
that is to say, the product imported from the European Union to Colombia, is "over-inclusive".1 This
argument should be rejected because it has no legal basis in the Anti -Dumping Agreement.
Moreover, t he European Union's argument completely undermines the logic of an anti -dumping
investigation.
1.3. The basis of the European Union's complaint, Article 5.3, requires sufficient evidence to justify
the initiation of an investigation. The evidence to be ex amined by the investigating authority is
evidence of dumping, injury (or threat thereof) and a causal link . The case law under Article 5.3
confirms this, for instance, the panel in Mexico – Steel Pipes and Tubes.2 In contrast, a complainant
party cannot c hallenge under Article 5.3 the definition of the product under consideration (the
product "concerned"). Article 5.3 contains no such provision. Rather, Article 5.3 presumes an earlier
definition of the product under investigation. All the evidence relating to dumping, injury and
causation examined under Article 5.3 depends on, derives from and is based on that definition.
1.4. More generally, there is no provision in the Anti-Dumping Agreement that defines the "product
under consideration". This principle has already been confirmed by several panels. For instance, the
panel in Korea – Certain Paper found that it was "aware of no provision in Article 2.6, or any other
article in the Agreement, that contains a definition of 'the product under consideration' i tself".3 The
panel in EC – Salmon (Norway) reached the same finding, just as the European Union itself argued
in that dispute.4
1.5. Hence an investigating authority enjoys a considerable degree of discretion with regard to how
to define the product under consideration, and this definition cannot be directly challenged. Rather,
the disciplines of the Anti -Dumping Agreement focus on the definition of the "like" product, under
Article 2.6, which must reflect the product under consideration selected by the investigating
authority.5
1.6. The European Union's argument based on Article 5.3, under the rubric of "evidence" for
initiating an investigation, is in fact tantamount to introducing, through the "back door",
requirements under the Anti -Dumping Agreement that several panels have already found do not
exist. The European Union has argued that the definition of the product under consideration was
allegedly "over-inclusive"6 or encompassed "a range of products that was wider than the range of
'like' product s manufactured by domestic producers". 7 But regardless of how it is labelled, the

* In Spanish original language.
1 European Union's first written submission, para. 51.
2 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.21. (emphasis added)
3 Panel Report, Korea – Certain Paper, para. 7.221.
4 See for example Panel Report, EC – Salmon (Norway), para. 4.240.
5 Panel Report, EC – Salmon (Norway), para. 7.51 et seq.
6 European Union's first written submission, para. 51. European Union's opening statement at the first
7 European Union's response to Panel question No. 12.1, para. 6.

rationale behind the European Union's complaint remains the same. Accordingly, the Panel should
reject the European Union's arguments.
1.7. In any event, there is no logical link between the applicant's obligation to provide information
on the product it produces (evidence) and the alleged rule freely invented by the European Union.
If the Subdirectorate had initiated the investigation using a product under consideration tha t
contained only exactly the models produced by the domestic industry – as the European Union would
like – the European Union would probably be satisfied and would not claim any violation of Article 5.3
and/or 5.2(i). However, this outcome would occur without any change in the evidence submitted by
the applicant. That is to say that what would have changed in our hypothetical case would not be
the evidence, but the decision of the Subdirectorate on the scope of the product under consideration.
1.2 The Euro pean Union's arguments regarding the representativeness of Fedepapa
should be rejected
1.8. The European Union advances two distinct arguments as to why Fedepapa could not be
considered the legitimate representative of the domestic industry. For both arguments, the
European Union explicitly relies on the text of Article 5.4, using almost exactly the same words as
are used in Article 5.4. However, the European Unio n bases its claim on Article 5.3, purporting to
rely on the text of Article 5.3, which refers to the "evidence" provided "in the application", the
"accuracy and adequacy" of which the investigating authority must examine. Nevertheless,
Article 5.3 deals with substantive evidence, provided "in the application", and not with who submits
an application on whose behalf. 8 Thus, the European Union's claim should be rejected because its
legal basis is incorrect.
1.9. On the substance, the European Union first claims that "at the time of initiation, it was not
clear whether the companies expressly supporting the application represented at least 25% of the
total production of the like product produced by the domestic industry". 9 But the Subdirectorate
responded to various arguments of this nature already during the investigation. The petitioning firms
account for 69% of domestic production. This, of course, exceeds the minimum threshold of 25% in
support of the application. This also meets the requirement that 50% of firms must express support
or opposition. This assertion by the European Union is therefore without merit.
1.10. There is also considerable confusion in the European Union's arguments, given that it admits
that "ultimately, the application was expressly supported by domestic producers accounting for at
least 25% of total production of the like product produced by the domestic industry". 10 Colombia
does not understand how the European Union can accept the Subdirectorate's determination as
correct, while claiming at the same time that the Subdirectorate did not have sufficient information
before it. The legality of the Subdirectorate's decision is based on the information that the authority
had before it.
1.11. According to its second argument, th e European Union seeks to interpret Colombian law by
questioning whether the industry association, Fedepapa, represented, in a legitimate manner in
accordance with Colombian law, the petitioning firms. According to the European Union, the
Certificate of Ex istence and Legal Representation "did not indicate ... that potato -processing
companies could be members of the Colombian federation of potato growers".11
1.12. The Panel should reject this extraordinary argument made by the European Union. The
Anti-Dumping Agreement in no way limits the entities which, under domestic legislation, are
empowered to represent petitioning firms, nor the manner in which those firms wish to be
represented. Therefore, it is entirely at the discretion of each Member to determine which entity,
under which legal and factual conditions, is authorized to represent the petitioning firms in
accordance with domestic legislation. This is the sovereign right of every Member and Colombia
firmly rejects any attempt by a complainant party to impose its preferences (or its national practice)
on the Colombian authorities.

8 See the case law cited by Colombia in its response to Panel question No. 1.9, paras. 29-32.
9 European Union's first written submission, para. 56.
10 European Union's responses to the Panel's questions, para. 19.
11 European Union's first written submission, para. 57.

1.13. Second, under Colombian regulations, the Subdirectorate was fully empowered to accept
communications from Fedepapa, in Fedepapa's capacity as the representative of the p etitioning
firms. Colombia does not know which legal basis – in both Colombian law and the Anti -Dumping
Agreement – the European Union is using to argue that Fedepapa was not so empowered.
1.14. The Subdirectorate responded to various arguments of this na ture already during the
investigation. For instance, in its responses to certain comments made by the European Commission
during the investigation, the Subdirectorate referred to sub-paragraph "k" of Fedepapa's Certificate
of Existence and Legal Representa tion.12 Nor has the European Union provided any evidence that
the petitioning firms were not members of Fedepapa. Colombia does not understand why the
European Union believes that a national association cannot represent its members before a Member
State's authorities.
1.15. If the European Union now wishes to challenge the investigating authority's approach, the
European Union must demonstrate that the investigating authority exceeded its margin of discretion
which, as the European Union itself accepts 13, it enjoys under domestic legislation. But obviously,
there is nothing manifestly incorrect in finding that a potato industry association can represent, in
an administrative process, producers not only of raw potatoes, but also producers of frozen potatoes.
On the contrary, this is intuitive and reflects common sense, especially given that these producers
were members of Fedepapa. More generally, Colombian producers could have requested
representation by any entity that they considered suitable, for example, a law firm, a consulting
firm, etc. Of course, it would not be reasonable to require that a panel verify and interpret the
certificate of legal representation of each representing entity.
1.16. As a last point in this regard, the three Colombian companie s represented by Fedepapa
cooperated assiduously with Fedepapa during each phase of the investigation. The companies also
communicated with the Subdirectorate and sent their individual data not only through Fedepapa,
but also directly, to complete the application that Fedepapa had sent on behalf of these companies.14
The European Union effectively requests the Panel to tell these companies that their representation
by Fedepapa did not take place.
1.3 The European Union's arguments regarding evidence of nor mal value should be
rejected
1.17. The European Union challenges the Subdirectorate's use of export prices from Germany,
Belgium and the Netherlands to the United Kingdom as the normal value source. The European Union
insists that the applicant and the Su bdirectorate did not justify the use of these prices, instead of
the selling price on the European market. The European Union contends that the words "where
appropriate" in Article 5.2(iii) mean that the hierarchy of methods for determining normal value
under Article 2.2 also applies in the context of initiation.
1.18. This cannot be correct, as it would essentially be impossible to conduct the investigation under
Article 2.2 in the context of initiating the investigation. It is clear that, at the initiati on stage, the
test foreseen under Article 2.2 cannot be applied in the same way as during the investigation. To
argue otherwise would turn the initiation analysis into a full-fledged investigation.
1.19. Rather, the words "where appropriate" are best understood as leaving to the discretion of the
applicant, as well as of the investigating authority when revising an application, to select what it
considers to be the most "appropriate", that is to say, "reasonable" or "suitable", source of normal
value data. By including the phrase "where appropriate", the authors of the Agreement indicated
that using the export price to a third country as the normal value does not depend on the hierarchy
in Article 2.2, but rather it depends on the applicant's criterion of what is "appropriate", "relevant",
pertinent, available, etc. in the light of the information that is available to the applicant in their
particular circumstances.
1.20. The words " cuando proceda" in the Spanish version mean exactly the same as the English
phrase "where appropriate". Moreover, the use of the subjunctive tense in the Spanish phrase
("proceda" instead of "procede") further highlights the applicant's subjective discretion. The French

12 Response to comments on the Essential Facts Report, (Exhibit EU-17), p. 10.
13 European Union's response to Panel question No. 1.4, para. 13.
14 Colombia's second written submission, para. 2.24.

locution "le cas echéant" means the same as the Spanish and English expressions. This phrase is
synonymous with the words "éventuellement" ("possibly"), "à l'occasion" ("when"), "si l'occasion se
présente" ("should the opportunity arise"). 15 Therefore, the applicant has the right to submit, for
instance, information or data on an export price to a third country "should the opportunity arise",
that is to say, if the applicant has such information and should the applicant consider it proper and
appropriate to submit that information. This confirms that information on the export price to a third
country may be freely submitted, in its own right, and not as an "emergency solution" to remedy
the lack of domestic market prices.
1.21. There are three normal value sources: (i) domestic market prices, (ii) export prices to third
countries and (iii) the cost of production. They are all legitimate normal value sources which could,
ultimately, be used as a basis for normal value depending on how the investigation evolves. Nothing
in Articles 5.2 and 5.3 precludes using evidence relating to third country prices in an application.
The applicant and the authority, therefore, can rely on data from any of the three sources, provided
that the data are "adequate" and "accurate", and provided that they are deemed "appropriate" for
that purpose (Article 5.3).
1.22. Data are not inadequate or inaccurate, or allegedly not "appropriate", just because they come
from one market and not another. Data would only be inadequate or inaccurate if they did not permit
a proper comparison, for instance, for the reasons discussed by the panel in Guatemala – Cement II.
Colombia points out that the European Union has not argued that the data used by the
Subdirectorate are flawed in this way.
1.23. If the third country export market data suggest dumping, and there is no information or
contradictory data from another market, the authority must still have the right to initiate an
investigation on that basis. The authority cannot automa tically assume, nor can it be required to
assume, that domestic market data are "better" or inherently more reliable than third market sales
data. Of course, all of these considerations are taken into account only for the purposes of initiating
the investigation. During the investigation, the authority will, of course, first seek to obtain the
normal value of sales in the domestic market, on the basis of the requirements enumerated in
Article 2.2. In fact, in this investigation, the Subdirectorate used domestic selling prices for the final
determination and found dumping.
1.24. The phrase "where appropriate" cannot mean that the authority is required to request an
explanation from the applicant as to why it did not submit price data for the domestic market of the
exporting country. The applicant could simply respond that it does not have access to those prices,
because they are unavailable, they are confidential, etc. If such a request from the authority and
such a response from the applicant were in themsel ves – and without being extensively examined
by the authority – sufficient to satisfy the alleged obligation arising from the words "where
appropriate", it would be an empty formality.
1.25. Nor can the phrase "where appropriate" mean that an authority and a WTO panel must decide
whether the applicant made enough of an effort to obtain domestic market data. This judgement
could not be objective or pragmatic. The European Union cites the fact that Congelagro, one of the
Colombian petitioning firms, is relat ed to the McCain company, which is active in the German and
Dutch markets.16 The European Union claims that, for this reason, "the information on sale prices in
the domestic markets of [Germany and the Netherlands] could have been collected easily and
provided with the application". 17 The European Union's example only serves to substantiate
Colombia's argument. The mere fact that two companies are related says absolutely nothing about
the possibility that one may obtain information from the other. Two compa nies, even if they are
related, can have diametrically opposed commercial considerations.
1.26. If it is assumed that the phrase "where appropriate" requires some sort of explanation or
explicit query, the obligation on the applicant and the authority would have to be much less onerous.
For instance, a requirement could be envisaged whereby the applicant and the investigating
authority should consider and explain whether third market data are "appropriate" or "adequate" to
be used as evidence of the normal value, in the particular circumstances in question.

15 https://dictionnaire.lerobert.com/definition/echeant.
16 European Union's response to Panel question No. 12.2, para. 28.
17 European Union's response to Panel question No. 12.2, para. 28.

1.27. Even within that understanding of the term "where appropriate", the investigation initiation
was consistent with Article 5.3. The Subdirectorate stated that the United Kingdom market was the
largest single market for fries within the EU single market (at that time) and, as such, was a
particularly suitable parallel. 18 Moreover, in its application, with regard to the normal value
calculation, the applicant included as an annex the initi ation decision of the Brazilian investigating
authority in its frozen potatoes anti -dumping investigation, which asserted that the
Brazilian applicant was unable to obtain the domestic price internally within the relevant
European Union member States, but was able to obtain information on prices in the United Kingdom
through the Eurostat service. Thus, the reference to "other requests" in the Subdirectorate's decision
should be understood as a reference to the Brazilian authority's explanation in the Brazil ian case.
This annex forms part of the documents that Colombia has submitted to the Panel. 19 The
Subdirectorate relied on this information essentially in the same way as the Brazilian authority
Therefore, under any interpretation of Articles 5.2 and 5.3, t he applicant and the Subdirectorate
acted consistently with the Anti-Dumping Agreement.
1.28. There are several investigating authorities that, under the same circumstances as the
Subdirectorate, proceeded in the same manner. Colombia has identified examples of the practice of
the investigating authorities of the Eurasian Economic Union, South Africa, and Turkey. These
authorities use either the constructed normal value or the export price to a third country, without
examining or explaining why they did not base the normal value on the domestic market price.
1.29. In conclusion, as the complainant in these proceedings, the European Union bears the burden
of establishing that it was not "appropriate" for the Subdirectorate to rely on this evidence. The
European Union has failed to meet this burden. In addition, the fact that the authority did not rely
on United Kingdom prices as the basis for normal value at the end of the investigation does not
mean that using these prices as evidence for initiating it was not appropriate.
1.4 The European Union's arguments regarding evidence of injury should be rejected
1.30. The European Union claims that the Subdirectorate relied on information processed by
Fedepapa and that said data covered – inappropriately – both th e potato -processing industry
(i.e. the producers of the frozen potatoes under investigation), as well as the producers of fresh
potatoes.20
1.31. There are two problems with the European Union's claim. First, the European Union's claim is
based on a misunderstanding of the facts. For its material injury analysis, the Subdirectorate relied
exclusively on the relevant data for producers of the product under investigation , that is to say,
producers of frozen pre -cooked potatoes (sometimes referred to as the " potato-processing
companies"). The European Union's assertion that the underlying data included producers of fresh
potatoes is factually incorrect.
1.32. The only evidence cited by the European Union in support of its incorrect assertion is the
Initiation of Original Investigation21 and the comments made by the European Commission during
the investigation. But the Initiation of Original Investigation, by itself and even more when read in
conjunction with the Technical Report on Initiation and Fedepapa's application, demonstrate that the
European Union has mischaracterized the facts of the case and the underlying data. The Initiation
of Original Investigation mentions potato producers because, ultimately, and in a productive
environment as fragile as the Col ombian countryside, potato farmers are also victims of the injury
caused to the local processing industry by the sale in Colombia of dumped imported frozen potatoes.
Therefore, in certain circumstances, the Subdirectorate considers it appropriate, for the purposes of
initiating an investigation, to also mention or give a general assessment of the interests of other
economic sectors related to the product under investigation. This is similar to the European Union's
"Union interest" test.
1.33. The second pr oblem is that the European Union focuses on the Subdirectorate's analysis,
instead of focusing on the evidence that existed in the record when the investigation was initiated.
Article 5.3 requires that, at the time of initiation, there is sufficient eviden ce of the three key

18 Initiation of Original Investigation, (Exhibit EU-1b), p. 9.
19 Exhibit COL-35-B, pp. 6-42 (folios 90-126).
20 European Union's first written submission, para. 59.
21 See European Union's first written submission, fns 92 and 93.

elements22, namely dumping, injury and a causal link. In contrast, Article 5.3 does not require an
analysis by the investigating authority, nor does it impose requirements on the characteristics of
such an analysis. The panel in EC – Bed Linen found that Article 5.3 says nothing regarding the
nature of the examination to be carried out. Nor does it say anything requiring an explanation of
how that examination was carried out .23 This interpretation was confirmed by the panels in
Mexico – Steel Pipes and Tubes24 and in Mexico – Corn Syrup.25
1.34. Lastly, Colombia trusts it is clear that the evidence the authority had before it at the time of
initiation is that contained in Fedepapa's application of 22 June 2017 and its revised application
(and the annexed documents) of 19 July 2017.26 These documents contain all the relevant evidence
for establishing the existence of injury and causation for initiation purposes. This evidence speaks
for itself. The European Union has failed to present any arguments that allege this evidence was
insufficient to justify the initiation of the investigation.
1.35. In the final phase of this dispute, the European Union has argued that Colombia supposedly
submitted certain exhibits too late in the course of the proceedings to be able to rely on this
evidence.27 But Colombia never submitted these documents to rely on them as part of its arguments.
Rather, Colombia submitted these documents because the Panel asked Colombia to provide them.28
Colombia did not need t o rely on the evidence in the record, precisely because the
European Union – thanks to its incorrect legal approach under Article 5.3 – never claimed that there
was insufficient evidence in the record, but focused (incorrectly) on the opening statement and the
explanation contained therein. In addition, the European Union decided to submit its complaint for
the first time on 1 February 2022. But Colombia submitted Exhibits COL -35 and COL -36 in its
responses of 17 September 2021, four and a half months earli er. The European Union's second
written submission of 29 October 2021 would have been a logical moment for advancing this
argument. But the European Union never raised this concern.
1.5 The European Union's arguments regarding evidence of a causal link should be
rejected
1.36. The European Union also puts forward an argument, in the context of initiation under
Article 5.3, regarding an alleged absence of evidence of a causal link.
1.37. In the first phase of these proceedings, the European Union argued that the Subdirectorate's
analysis was not sufficient, as there was no "separate analysis" of the existence of a causal link in
the initiation decision. Colombia responded that the presence or absence or the quality of "a separate
analysis" is not th e criterion under Article 5.3. Article 5.3 requires that, at the time of initiation,
there is sufficient evidence of the three key elements 29, namely dumping, injury and a causal link.
In contrast, Article 5.3 does not require the investigating authority to perform an analysis, nor does
it set out requirements for the characteristics of such an analysis. The panel in EC – Bed Linen found
that Article 5.3 says nothing regarding the nature of the examination to be carried out. Nor does it
say anything requiring an explanation of how that examination was carried out.30 This interpretation
was confirmed by the panels in Mexico – Steel Pipes and Tubes31 and in Mexico – Corn Syrup.32 The
European Union's legal error is similar to its legal error under the matter of injury.
1.38. In any event, Colombia is of the opinion that the Subdirectorate's analysis in the
Technical Report on Initiation and in the Initiation of Original Investiga tion is sufficiently clear and
rigorous to meet any requirement for an explanation.
1.39. After the first meeting with the Panel, the European Union changed its argument, abandoning
the argument of the absence of a "separate analysis" and claiming that th ere was insufficient

22 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.21.
23 Panel Report, EC – Bed Linen, para. 6.198.
24 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.21.
25 Panel Report, Mexico – Corn Syrup, para. 7.102.
26 Colombia's response to Panel question No. 1.17, paras. 87-97.
27 European Union's response to Panel question No. 12.9, paras. 30 et seq.
28 Panel question No. 1.1.
29 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.21.
30 Panel Report, EC – Bed Linen, para. 6.198.
31 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.21.
32 Panel Report, Mexico – Corn Syrup, para. 7.102.

evidence in the record, under Article 5.3. However, this means that the European Union has failed
to make a prima facie case when required, i.e. in its first written submission or, at the latest, at the
first meeting. The European Union should have focused – in its first written submission – on the
evidence that was before the Subdirectorate, and should have explained how that evidence was
deficient or insufficient to demonstrate the existence of a causal link for the purposes of initia tion.
Colombia therefore requests that the Panel reject the European Union's claims for having failed to
make a prima facie case.
1.40. In the event that the Panel should decide to examine the merits of the European Union's
arguments, Colombia is of the view there was sufficient information before the Subdirectorate at the
time of initiation. The application also contained specific and precise information on imports from
the countries under investigation and on the specific mechanism through which the dome stic
industry would allegedly suffer injury as a result of the imports. Colombia also wishes to point out
that the "evidence" with respect to the causal link – especially for the purposes of initiation – often
does not consist of separate documents that address the issue of "causation". Rather, the "evidence"
is the investigating authority's interpretation of the import data and information on the state of the
domestic industry. In other words, the "evidence" of a causal link is really the import data and t he
relevant data for the determination of injury and of the market as a whole, and the investigating
authority's analysis of these and the connection it makes between them. Therefore, it is not very
useful to look for "evidence" of a causal link in the sense of looking for documents that are separate
and distinct from those pertaining to injury, the level of imports, etc. Rather, the same documents
and the same data can demonstrate both injury and causation.
2 THE EUROPEAN UNION'S CLAIM UNDER ARTICLE 5.8 REGARDING THE INITIATION OF
THE INVESTIGATION SHOULD BE REJECTED
2.1. The European Union also brings a claim under Article 5.8 of the Anti-Dumping Agreement. This
claim is purely consequential, as the European Union bases it on the alleged "consequence of the
lack of evidence" to justify the initiation decision. Given that the European Union's claim under
Article 5.3 is baseless in fact and in law, Colombia also requests the Panel to reject the
European Union's consequential claim under Article 5.8.
2.2. The European Union acknowledges the recent panel findings in Morocco – Definitive
AD Measures on Exercise Books (Tunisia)33, according to which a finding of violation under Article 5.3
cannot, automatically, result in a finding of violation of Article 5.8. Instead, a finding of violation
under Article 5.8 must be based on different or additional circumstances. The European Union does
not explain why the Subdirectorate allegedly violated Article 5.8 and how this violation relates to the
alleged violation of Article 5.3.
3 THE CLAIMS RELATING TO CONFIDENTIALITY UNDER ARTICLES 6.5 AND 6.5.1 OF THE
ANTI-DUMPING AGREEMENT SHOULD BE REJECTED
3.1. The European Union complains that certain information was "heavily redacted"34 in section d(i)
of the revised application of 19 July 2017, as well as in Annexes 10 et seq. to the same document.35
Specifically, the European Union criticizes the fact that, with respect to this information, the
Subdirectorate: did not require the domestic industry to show "good cause" for th e information to
be treated as confidential; did not receive "good cause" from the domestic industry for the
information to be treated as confidential; did not require the applicant to furnish non -confidential
summaries of that information; and did not receive from Fedepapa a statement of reasons why
summarization of the information was not possible, nor did the Subdirectorate provide such an
explanation in its determination on confidentiality.36
3.2. With respect to the redacted information in section d(i ) of the revised application of
19 July 2017, this information is included in full in Fedepapa's original non-confidential application
dated 22 June 2017, which the European Union itself submitted as Exhibit EU -8. A reasonable
reading of the relevant parts of the original and revised applications (the structure and content of

33 European Union's response to Panel question No. 2.1, para. 51.
34 European Union's first written submission, para. 82.
35 European Union's response to Panel question No. 3.1, para. 55.
36 European Union's first written submission, paras. 73 and 87.

the respective paragraphs, as well as the titles, structure and coordinates of each of the relevant
tables) allows any reader to understand that it is actually the same information.
3.3. Thus, Colombia considers that Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement do not
apply to the redacted information in section d(i) of the revised application of 19 July 2017. The
premise of Article 6.5 revolves around information that has been accorded confidential treatment.
Consequently, Article 6.5 is not applicable here because Fedepapa never requested confidential
treatment for the redacted information in section d(i) of the revised application nor did the
Subdirectorate afford it such tre atment. Even more importantly, Fedepapa itself submitted it in
another document, which is in the public record of the investigation.
3.4. With regard to the information redacted in footnote 3 of the revised application of 19 July 2017,
Colombia confirms that it is not in the public version of the record. However, in the absence of a
request for this information to be treated as confide ntial, the Subdirectorate simply disregarded it
under Article 6.5.2 of the Anti -Dumping Agreement. Colombia observes, in this regard, that the
European Union does not claim that this information was used by the Subdirectorate during its
investigation.
3.5. Lastly, in relation to the information contained in Annexes 10 et seq. that the Subdirectorate
afforded confidential treatment, the European Union has failed to demonstrate that the good cause
invoked by Fedepapa in its revised application of 19 July 2017 was "insufficient" under Article 6.5 of
the Anti-Dumping Agreement.37 In particular, Colombia has demonstrated that the Subdirectorate
required in its deficiency letter of 29 June 2017 the "[i]dentification and justification of confidential
information".38 In addition, the Subdirectorate accepted Fedepapa's assertion that this information
was confidential because it was "financial", as it understood that the disclosure of this information,
by its very nature, "could cause serious prejudice to the companies involved"39 and their disclosure
"could generate a significant advantage for a competitor". 40 The Subdirectorate also recalled that
there are constitutional and administrative provisions to protect privacy and personal data, as well
as competition and in tellectual property laws that prohibit the disclosure of important commercial
and financial information.41
3.6. In response, the European Union simply notes that "it is not at all certain that all commercial
and financial information deserves confidential treatment and even less that it constitutes a 'business
secret'".42 However, this assertion is too vague and imprecise, and fails to explain why specifically
the information in Annexes 10, 11 and 12 cannot be described as a "business secret", as Colombian
legislation provides. In the absence of such explanations, the European Union's claim under
Article 6.5 relating to "good cause" must be rejected.
3.7. Moreover, in relation to the argument that the Subdirectorate did not require a non-confidential
summary, Fedepapa did provide a statement of the reasons why summarization of the financial
information in Annexes 10, 11 and 12 was not possible, namely: this information was "numerical".43
Colombia has pointed out that this claim should be read in the relevan t factual context that, in the
same revised application, Annexes 10, 11 and 12 were submitted separately by each applicant
company.44 Thus, the European Union's assertion that there was no explanation as to why it was
impossible to furnish a non -confidential summary of the information contained in Annexes 10, 11
and 12 is incorrect and should be rejected.
4 THE EUROPEAN UNION'S COMPLAINT REGARDING THE USE OF DATA FROM THE DIAN
DATABASE AS "BEST INFORMATION AVAILABLE" SHOULD BE REJECTED
4.1. The European Union erroneously claims that Colombia acted inconsistently with its obligations
under Articles 2.1 and 6.8 of the Anti -Dumping Agreement, and Annexes II(3) and II(6) thereto.

37 European Union's response to Panel question No. 3.4.d., para. 64.
38 Deficiency letter dated 29 June 2017, (Exhibit EU-9).
39 Confidential technical report on the initiation of the investigation, (Exhibit COL-10 (BCI)), folio 537.
40 Subdirectorate's response to the European Union's comments on the Essential Facts Technical Report,
(Exhibit EU-17), p. 11 (folio 6060).
41 Articles 15 and 73 of the Political Constitution of Colombia and Article 24.1 of Law No. 1437 of 2011
(Code of Administrative Procedure and Administrative Disputes).
42 European Union's response to Panel question No. 3.4.d, para. 64.
43 Fedepapa's application dated 19 July 2017, (Exhibit EU-10), folio 297.
44 Colombia's response to Panel question No. 3.5.a, para. 132.

The European Union's complaint is based on the fact that the Subdirectorate used data extracted
from the database of the National Tax and Customs Directorate (DIAN, DIAN database) to calculate
the export price.45
4.2. Colombia's main argument is that the information in the DIAN database cannot be considered
to be "best information available" or secondary information. The information collected from the DIAN
database is information that is exclusively relevant to the company concerned, is information based
on documents prepared by the same company, and is also information linked to the same export
transactions.
4.3. The DIAN database contains information that is, because of its very nature and its original
source, identical to the information provided by the investigated companies in their questionnaire
responses. The relevant data from the same transactions that are reported in the questionnaire
response are fed into the DIAN database, which is always checked against the response for
consistency. Data entered into the DIAN database are based on documents prepared by the
exporting companies. It is therefore primary information that is directly and exclusively relevant to
exporters. This information is identical, in terms of its nature and origin, to the information contained
in the questionnaire responses. As a result, the investigating authority was fully within its
discretionary powers in using these data as primary information relevant to the investigated
companies.
4.4. This methodology – and the use of DIAN data – was no secret during the investigation. The
Subdirectorate clarified this fact in several documents, explicitly and transparently, during the
investigation.46 Therefore, all interested parties were duly informed what information was used and
how it was used, and some of the interested parties submitted comments in that regard.
4.5. In short, the information in the DIAN database does not constitute "best information available"
and therefore does not lead t o the application of Article 6.8 of the Anti -Dumping Agreement or of
Annex II thereto.
4.6. The concept of "best information available" is not defined in the covered agreements. There is
no definition either in Article 6.8 of the Anti -Dumping Agreement an d Annex II thereto, or in
Article 12.7 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). 47 An
investigated company is the primary source of the information that the authority needs for the
determination of dumping. This is because the primary information that must underpin a dumping
determination is the information relevant to the specific company and to the transactions that the
authority examines. Such information is usually only in the possession of the company itself and can
only be provided by the company, because there are normally no other entities that possess that
information.
4.7. In the light of the foregoing, the information in question taken from the DIAN database is still
information directly relevant to the company. The fact that this is not, strictly speaking, information
provided in the context of the dumping investigation does not change the legal assessment. In
addition, the DIAN database is an official database certified by the National Administrative
Department of Statistics (DANE) of Colombia and, therefore, the information is authoritative and
reliable. The Subdirectorate made this fact clear during the investigation.
4.8. The European Union adopts a highly formalistic approach, by suggesting that primary
information may only be that provided by an investigated company in the formal context of an
investigation.48 Colombia rejects this interpretative approach. There is no basis in the text of the
Anti-Dumping Agreement to support such a definition. Colombia provi ded an example that shows
the type of illogical conclusions to which the European Union's inflexible and categorical definition
leads. If an investigated company refuses to submit its consolidated financial statements to the
authority during the investigat ion, and the authority obtains these statements by its own means
(for example, if they already have the statements in their possession thanks to a past administrative

45 European Union's first written submission, paras. 120-131.
46 Non-confidential Final Essential Facts Technical Report, (Exhibit EU-3), Section 2.5, p. 71; Response
to comments on the Essential Facts Technical Report, (Exhibit EU-17), p. 13; Non-confidential Final
Technical Report, (Exhibit EU-4), Section 2.5, pp. 71-72; Final determination, (Exhibit EU-5), p. 3.
47 Panel Report, US – Anti-Dumping and Countervailing Duties (Korea), para. 7.617.
48 European Union's response to Panel question No. 4.3, para. 75.

procedure), these statements, according to the European Union, should be treated as secon dary
information. However, this is tantamount to tying an investigating authority's hands and cannot be
either acceptable or correct. The European Union has never countered Colombia's example.
4.9. Colombia's example shows that there is a need to focus on the substance and content of the
information. This reflects much better the intentions of those who drafted the covered agreements,
instead of attaching importance exclusively to formal aspects such as who provides the information
and when exactly they provide it.
4.10. In its responses to the Panel's questions, the European Union stresses that the manner in
which information is presented in the DIAN database, on the one hand, and in the questionnaire
replies, on the other hand, is not 100% identical. 49 In this connection, the European Union offers
detailed descriptions of the alleged differences between the data in the questionnaires and the data
in the DIAN database.50 The European Union's arguments, as the proverb goes, fail to "see the wood
for the trees". The remarkable focus on the technical details seen in the European Union's reasoning
confirms that the two sets of data are essentially the same.
4.11. The European Union highlights the level of detail of the information allegedly furnished by the
DIAN database and compares this level of detail with that of the information provided by the
questionnaire responses, particularly with respect to the models or subproducts. The European Union
does not describe the DIAN database correctly when it claims that the database is "blind" with regard
to the information on models or types of products.51 Additional factual information that goes beyond
the description of the product according to its tariff subheading is provided in box 91 on the import
declaration form. Depending on the circumstances, the description given in box 91 of the import
declarations may allow additional features of the models or subproducts contained in a particular
consignment to be taken into consideration.
4.12. The European Union claims t hat the use of the DIAN database "prevent[s] a comparison at
the required level of granularity".52 In other words, the European Union seems to argue that, even
if it were necessary to carry out a model-by-model comparison, the Subdirectorate could not make
such a comparison because, according to the European Union, the level of detail of the information
in the DIAN database does not allow for it. However, this is incorrect. The Subdirectorate is always
open, in each investigation, to considering whether car rying out a model -by-model comparison is
relevant, depending on the particular circumstances of each investigation. In this investigation, it
was determined that such a comparison was not appropriate.53
4.13. Nor does the DIAN database qualify as "officia l import statistics" within the meaning of
Annex II(7) to the Anti-Dumping Agreement. The term "official import statistics" refers to aggregate
information, not information limited to specific individual companies. In contrast, the DIAN database
contains information and data that relate to individual companies' specific transactions and therefore
does not fall within the scope of Annex II(7). Data of this type – i.e. data on individual private
companies – are not within the scope of Annex II(7).
4.14. In any event, even if the panel were to consider that the information in the DIAN database
constituted "best information available", Colombia considers that the Subdirectorate complied with
the requirements under Article 6.8 and Annex II. The Subdirectorate in formed the investigated
companies through the Final Essential Facts Technical Report that the source of the export price was
the DIAN database.54 The companies therefore had ample opportunity to submit their comments on
the Subdirectorate's approach and, i n fact, some interested parties did just that. 55 The
Subdirectorate then justified its decision to continue to rely on the DIAN database in the document
containing the responses to those comments.56

49 European Union's response to Panel question No. 4.3, para. 78.
50 European Union's response to Panel question No. 4.3, paras. 83-91.
51 European Union's response to Panel question No. 4.3, para. 83.
52 European Union's response to Panel question No. 4.3, para. 85.
53 See Colombia's first written submission, paras. 9.11-9.47.
54 Non-confidential Final Essential Facts Technical Report, (Exhibit EU-3), Section 2.5, p. 71.
55 For example, Response to the comments on the Essential Facts Technical Report, (Exhibit EU-17),
p. 8 (Commission), p. 19 (Agrarfrost), and p. 25 (Agristo and Clarebout).
56 Responses to the comments on the Essential Facts Technical Report, (Exhibit EU-17), p. 13.

5 THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 REGARDING THE ADJUSTMENT
FOR PHYSICAL CHARACTERISTICS SHOULD BE REJECTED
5.1. The European Union claims that the Subdirectorate acted inconsistently with Article 2.4 of the
Anti-Dumping Agreement by failing to take into account physical differences between models of the
product under investigation, which al legedly resulted in an unfair comparison between the export
price and the normal value.57
5.2. The basis of the European Union's claim is that the "product under investigation" covers a
number of models or subproducts with differences in physical characte ristics. The European Union
is of the view that these differences were so great that they affected price comparability. Therefore,
according to the European Union, it was necessary to carry out multiple comparisons 58 or make
adjustments.59
5.3. Colombia, in theory, does not disagree with the European Union's claim that physical
characteristics may affect the price comparability of a product. If demonstrated, an investigating
authority must take these differences into account in making a fair comparison, fo r example, by
making adjustments or making multiple comparisons.
5.4. In the present case, however, these differences were not properly demonstrated as a matter
of fact. The Subdirectorate decided, in exercising its discretion as the trier of facts, that no such
differences in physical characteristics had been demonstrated. Therefore, the Subdirectorate did not
commit any violation in making a single comparison, without differentiating between the alleged
"models" or "subproducts", without making other adjustments and without relying on the companies'
unverified assertions.
5.5. It is important to remember that Article 2.4 stipulates that investigating authorities must make
a fair comparison and establishes certain requirements that must be met to ensure t hat the
comparison is indeed fair. Article 2.4 is explicit in specifying that the relevant differences are those
"which ... affect price comparability". The Appellate Body has explained that this requirement "refers
to differences in characteristics of the compared transactions that have an impact, or are likely to
have an impact, on the price of the transactions".60
5.6. A key point is that the differences are "demonstrated to affect price comparability".61 Although
case law has established that there mus t be a "dialogue" between the investigated companies and
the investigating authority in this regard 62, it is clear that the primary burden rests with the
investigated company to provide information to the investigating authority on the alleged
differences. Of course, this information must be convincing, comprehensive and consistent. 63 The
"dialogue" under Article 2.4 must be a two-way street. Interested parties have an obligation not only
to file requests, but also to support them with sufficiently relevant and convincing evidence. For
example, as the Appellate Body clarified in its report in EC – Fasteners (China), "exporters bear the
burden of substantiating … their requests for adjustments".64 Thus, despite the obligation to ensure
a dialogue, it may be perfectly legitimate for an investigating authority not to accept such requests,
depending on each individual case. The case law has found that "the fair comparison obligation does
not mean that the authorities must accept each request for an adjustment".65
5.7. Colombia has demonstrated numerous flaws in the submissions of the investigated companies,
Aviko, Mydibel and Agrarfrost.66 The European Union does not deny the existence of these flaws and
accepts that they constituted deficiencies in the companies ' responses and arguments during the
investigation. For instance, the European Union seems to agree that the conversion factor proposed

57 European Union's first written submission, paras. 149-179.
58 European Union's first written submission, para. 142.
59 European Union's first written submission, para. 143.
60 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.22 (referring to Appellate Body Report,
US – Zeroing (EC), para. 157).
61 Emphasis added.
62 Appellate Body Report, EC – Fasteners (China), paras. 488-489; and Panel Report, Egypt – Steel Rebar,
para. 7.352.
63 Appellate Body Report, EC – Fasteners (China), para. 488.
64 Appellate Body Report, EC – Fasteners (China), para. 488.
65 Appellate Body Report, EC – Fasteners (China), para. 488.
66 Colombia's first written submission, paras. 9.15-9.47.

by Aviko, and referred to in Colombia's first written submission 67, was deficient. 68 The
European Union also accepts that Aviko put forward certain arguments under the "wrong heading".69
The European Union even accepts that there were "imprecisions" in Aviko's explanations in this
regard.70 Moreover, the European Union does not rebut other examples provided by Colombia, such
as certain sales prices in Mydibel's questionnaire that did not appear to reflect the differences in
production costs alleged by Mydibel.71
5.8. These admissions, in Colombia's view, indicate that, in reality, the European Union recognizes
the challenge posed by the deficient evidence submitted to the Subdirectorate. The European Union
simply cannot assert that claims tainted by "imprecisions" and documents submitted under "wrong
headings" could give rise to an obligation for the authority to agree to th e investigated companies'
request.72
5.9. It is also incorrect to assert that the Subdirectorate had an obligation, upon the initiation of
the investigation, to propose methods for dividing the product under consideration into subgroups.73
Instead, the burden of requesting adjustments or a model -by-model comparison lay with the
companies and they failed to convince the authority.
5.10. The European Union disagrees with the Subdirectorate's decision and is of the view that the
companies had outlined their claims in a sufficiently clear manner so as to oblige the investigating
authority to compare the like product on a model-by-model basis for the purposes of its calculation
of the margin of dumping. In other words, the European Union is not satisfied with the
Subdirectorate's conclusion and, on this basis, claims that the investigating authority erred in its
assessment of the facts and of the interested parties' arguments.
5.11. Pursuant to the applicable standard of review under Article 17.6(i) of the
Anti-Dumping Agreement, an investigating authority enjoys a considerable margin of discretion, and
this discretion must be respected by panels and the requesting parties in their arguments before the
panel. Colombia considers that the European Union's arguments do not comply with this standard
of review. Instead of adapting its arguments to the standard of review, the European Union simply
claims that the Subdirectorate did not reach the correct conclusion. This type of argument is not
sufficient to make a prima facie case because it does not respect the standard of review of
Article 17.6(i).
6 THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 CONCERNING THE ADJUSTMENT
FOR PACKAGING COSTS SHOULD BE REJECTED
6.1. The European Union claims that the Subdirectorate deducted packaging costs from the export
price, but not from the normal value.74 According to the European Union, by proceeding in this way,
the Subdirectorate breached the fair comparison requirement. 75 The European Union highlights a
number of assertions on this matter by the company during the investigation and also points to the
conclusions of the investigating authority.
6.2. First, Colombia asks the Panel to reject the European Union's claim, because it does not comply
with Article 6.2 of the DSU and thus falls outside of this Panel's jurisdiction. Under Article 6.2, the
complainant party is required to provide a sufficiently precise description of the mea sure at issue
and "a brief summary of the legal basis of the complaint sufficient to present the problem clearly".
6.3. The problem with the European Union's request with regard to packaging costs is that the
request identifies one particular element of t he calculation decision, while the first submission
addresses another element. More specifically, the European Union's request refers to the request for
adjustments made by Mydibel. The European Union claims that the Subdirectorate acted

67 Colombia's first written submission, paras. 9.15-9.23.
68 European Union's response to Panel question No. 5.2, para. 108.
69 European Union's response to Panel question No. 5.2, para. 108.
70 European Union's response to Panel question No. 5.2, para. 108.
71 Colombia's first written submission, paras. 9.34-9.40.
72 European Union's response to Panel question No. 5.2, para. 108.
73 European Union's response to Panel question No. 5.2, paras. 105-106.
74 European Union's first written submission, para. 181.
75 European Union's first written submission, para. 181.

inconsistently with "Article 2.4 of the Anti -Dumping Agreement because Colombia did not make a
fair comparison between the export price and the normal value. In particular, Colombia did not make
due allowances for differences which affect price comparability ... Inter alia, Colombia disregarded
... differences in packaging ... []".76 This is a reference to the differences in packaging between the
products sold on the domestic market and those sold on the export market.
6.4. By contrast, in its first written submission, the European Union does not focus on the matter
of "differences in packaging" as requested by Mydibel. Instead, the European Union concentrates on
what it characterizes in effect as an improper unilateral deduction of packaging costs from the export
price. This matter is, of course, separate and distinct from the first matter. It is obvious that the
problem of a deduction of certain costs from one side but not from the other side – as described by
the European Union – may exist regardless of whether there are d ifferences in packaging in the
transactions. This distinction between adjustments and improper deductions is drawn by the
European Union itself in its panel request with regard to another topic, where it refers not to
adjustments but to "deducti[ons of] certain sea freight and insurance costs ... from the export price
of a company, thereby unduly lowering the export price". 77 The packaging issue should therefore
have been included in the same way as the claim relating to the allegation that sea freight and
insurance were deducted twice. However, the European Union did not include any such language or
reference in its request.
6.5. A panel request cannot be supplemented or corrected at a later date. Accordingly, the Panel
should reject the claim relating to packaging costs because it falls outside of the Panel's jurisdiction
under Article 6.2 of the DSU.
6.6. Even if the Panel were to consider the merits of the claim, the European Union's arguments
should be rejected. Colombia considers it important to point out that the European Union in no way
provides a complete or objective description of the factual background and the Subdirectorate's
determination in that regard.
6.7. The logic underlying the Subdirectorate's determination is that the packaging costs t hat were
deducted from the "gross" export price reflect the packaging costs that are unique to export
transactions. It is therefore a matter of packaging in addition to the "normal" or "base" packaging.
It is obvious to Colombia that the packaging associated with a sea journey taking several weeks, for
frozen products, is more complex and costly than the packaging material for sales in the country of
production, which do not require shipping or other modes of long-distance transport.
6.8. For the Subdirectorate, this fact forms the basis for its understanding of the factual background,
and it is this exact understanding that is reflected in the final determination. The Subdirectorate
deducted "export packaging material", not all packaging material.
6.9. The investigating authority proceeded on the basis of its understanding that there were certain
packaging costs for exports that were in addition to the "base" packaging costs. According to this
understanding, "base" packaging is the packaging applicable to each sale, regardless of whether it
is a domestic sale or an export sale. By contrast, export packaging is any additional material used
in the context of additional requirements arising with regard to export transactions. The investigating
authority's understanding was that the packaging costs in the questionnaire responses, listed in the
section on export sales, reflected the additional packaging cost for exports, and that it was therefore
necessary to deduct these costs in order to make a fair comparison.
6.10. Colombia considers that the Subdirectorate was within the bounds of its discretion by adopting
the approach in question, on the basis of its understanding of the facts as presented by the company
in its questionnaire response. Based on Colombia's c urrent approach, the Subdirectorate's
calculation was objective and correct. In its first written submission, the European Union has failed
to demonstrate that an objective investigating authority would not have adopted this approach and
would not have determined the export price in the same way as the Subdirectorate.

76 Request for the establishment of a panel by the European Union, WT/DS591/2, item 5.
77 WT/DS591/2.

7 THE EUROPEAN UNION'S CLAIMS UNDER ARTICLE 2.4 CONCERNING THE ADJUSTMENT
FOR OIL SHOULD BE REJECTED
7.1. The European Union claims that the Subdirectorate improperly rejected Agrarfrost's r equest
for an adjustment for oil costs and did not engage in the appropriate dialogue with the company
regarding its request. Agrarfrost requested an adjustment for the use of different types of oil in the
production of its potatoes. Agrarfrost claimed that, while the vast majority of its output was produced
using palm oil, which is cheaper, a proportion of its sales in Germany was produced using sunflower
oil, which is more expensive.
7.2. It is obvious that, in order to support its request, the company should have provided adequate
evidence to substantiate these factual assertions. However, the company failed to substantiate these
assertions with documentary evidence in its questionnaire response, during the verification visit and
during other stages of the investigation. There is no document in the record to support the company's
claims, and the European Union has not identified any document in this regard, despite having access
to all the company's confidential documents. Consequently, the Subdirectorate rejected the request
for an adjustment and explained this in its reports.
7.3. Throughout these proceedings, the European Union has failed to identify a single document
supporting Agrarfrost's claims. The European Union has referred to the supposedly mor e than
300 pages of documents collected during the verification visit, which it claims were about the
verification of the data relevant to the oil issue. However, despite this large number of documents,
the European Union has not identified a single one th at deals with the subject of oil and supports
the company's allegations in this regard. The European Union has also submitted an affidavit by
Agrarfrost employees from 2022. It is striking that these employees claim to remember details of
the visit such as the exact time of the visit yet cannot recall a single example from the 300+ pages
collected on the subject of oil.
7.4. In this context, the European Union also attaches great importance to the verification report
and to Annex 9 in particular.78 However, Annex 9 to the visit report is a document prepared by the
company. The European Union does not deny this fact. This fact is of great factual and legal
relevance. The company submitted this document to the Subdirectorate at the end of the visit. In
the interest of transparency, the Subdirectorate attached this document to the report as an annex,
despite the fact that it was not a summary prepared by the investigating authority. However, this
decision by the Subdirectorate to include the document in the int erest of transparency cannot be
interpreted as the Subdirectorate approving or consenting to the factual assertions made therein. It
should also be noted that the numerous factual assertions contained in that document are not
supported or substantiated by any document in the record.
7.5. The European Union also claims the alleged "endorsement" by the Subdirectorate on the basis
of certain words in the verification report itself . These words, in section 2.5 of the report, would
allegedly make it possible to impute to the Subdirectorate the intention to confirm the content of
the statements made by Agrarfrost.79 However, it is easy to see that the words in the report relied
on by the European Union reflect only the company's arguments and describe the purpose of the
visit; they do not reflect any analysis, let alone approval or endorsement, by the investigating
authority.
7.6. It should also be noted that these parts of the verification report cannot support any claim that
the Subdirectorate confirmed and granted the adjustment. There is a significant difference between
a verification and the determinations of an investigating authority. The European Union's arguments
appear to confuse this difference. Verifying data or information – during a verification visi t or at a
later stage – is not the same as granting an adjustment. Verification takes place before the authority,
in its final determination, decides whether or not to grant a requested adjustment. These are two
conceptually distinct steps that take place at different times.
7.7. If certain data or certain information underlying an adjustment request cannot be verified, it
will of course not be possible to grant the adjustment. But even if certain data can be verified, this
does not necessarily mean that the requested adjustment can be granted. For example, if a company
under investigation requests an adjustment for differences in levels of trade, it may be the case that

78 See, for example, European Union's first written submission, paras. 198-199.
79 European Union's response to Panel question No. 5.9, para. 129.

all the data – e.g. the identity of customers in the two markets, invoices, sales prices, all relevant
sales aspects, after -sales services, distribution channels, etc. – are successfully verified, but that
the investigating authority still cannot grant the requested adjustment. This would be because the
authority, after weighing up all the verified or verifiabl e data and facts, has determined that the
transactions at issue, because of their substance, do not represent different levels of trade. This
example clearly demonstrates the significant difference between verifying data and deciding on a
requested adjustment. Another example would be if any facts or data were verified in respect of
some sales, but not in respect of all the sales for which an adjustment was requested.
7.8. According to the case law on this subject, there is a clear distinction between the results of the
verification (under Article 6.7) and the essential facts that form the basis of the final decision
(under Article 6.9). When an investigating authority provides its verification report in a document
that also contains the essential facts (wh ich is or was the practice of the European Union 80), in a
sense, there may be confusion between the results of the verification, on the one hand, and the
essential facts on which the final decision was based, on the other. It is perhaps in this context that
the European Union argues that the verification report contains the authority's final word on an
issue, such as the request for an adjustment. However, when the authority prepares a verification
report in a separate document, long before the report on the essential facts and the final report, the
verification report is not the final word. When the verification report is issued long before the report
on the essential facts or the final report, it makes no sense to treat its content as a final decision.
In these circumstances, it is not correct to argue, as the European Union does, that the verification
report contains a decision or commitment by the authority to grant the requested adjustment.
7.9. In any event, the European Union's numerous arguments concerning verification in fact relate
to whether the report adequately reflects what happened during the verification visit. However, such
a claim should be submitted under Article 6.7 and not under Article 2.4, as the European Union has
done.81
7.10. Some arguments in this dispute have referred to the administrative proceeding of "direct
revocation" in which Agrarfrost provided new evidence that, had it been submitted during the
investigation, could have influenced the Subdirectorate's decision. The direct revocation proceeding
is an administrative proceeding under Colombian law conducted before the same investigating
authority that issued the challenged decision. In the direct revocation proceeding, Agrarfrost
submitted a sheet of product specifications requ ired by a purchaser for a specific transaction. The
set of documents in this evidence also contains the invoice for the transaction in question.
7.11. As the Subdirectorate already pointed out during the direct revocation82, this type of evidence
had not been submitted during the investigation. The question arises whether the company
considered this documentary evidence to be important enough to be submitted during the direct
revocation proceeding and why the company did not submit it previously during the investigation.
It is precisely this type of document and evidence that the Subdirectorate noted as not being in the
record.
8 THE CROSS-CUTTING CLAIM RELATING TO THE INCLUSION OF NON-DUMPED IMPORTS
IN THE INJURY EXAMINATION SHOULD BE REJECTED
8.1. The European Union claims that the Subdirectorate acted inconsistently with Articles 3.1, 3.2,
3.4 and 3.5 by including in its injury examination all imports from the countries subject to the
investigation, including non-dumped imports. In response, Colombia proposes dividing the analysis
of this cross-cutting claim in two: (i) the inclusion of imports with a de minimis dumping margin;
and (ii) the inclusion of imports with a negative dumping margin.

80 With respect to recent case law on the verification process, see Panel Report, EU – Fatty Alcohols
(Indonesia), paras. 7.221-7.236; and Panel Report, EU – PET (Pakistan), paras. 7.165-7.182.
81 Colombia's response to Panel question No. 15.2, para. 101; opening statement at the second meeting
of the Panel, para. 5.5.
82 Administrative Review Decision, (Exhibit EU-6), section II.6.2.

8.1 The Subdirectorate did not err in including imports with a de minimis dumping margin
in its injury and causation analysis
8.2. The European Union claims that the Subdirectorate incorrectly included imports with de minimis
dumping margins in its injury and causation analysi s, because these imports are not "dumped". 83
The European Union further alleges that imports with de minimis dumping margins are imports
"which have not been investigated" 84 and/or that "the legal effect of a de minimis finding is that
there is no 'dumping'".85 For this reason, the European Union claims that the Subdirectorate failed
to conduct an objective analysis of injury and causation, since it included imports with de minimis
dumping margins, which is inconsistent with Articles 3.1, 3.2, 3.4 and 3.5.86
8.3. Colombia, for its part, claims that, in including imports with de minimis dumping margins in
the injury analysis, the Subdirectorate relied upon an interpretation of the term "dumped imports"
that is acceptable under Article 17.6(ii) of the Anti-Dumping Agreement. In this regard, the parties
agree that, pursuant to Article 17.6(ii), the interpretation of the term "dumped imports" must be
confined to the customary rules of interpretation of public international law codified in Articles 31
and 32 of the Vienna Convention on the Law of Treaties.87
8.4. Thus, Colombia notes that the ordinary meaning of the term "dumped imports" is clear and
unambiguous, since "dumping" is defined in Article 2.1 of the Anti -Dumping Agreement as any
instance in which the export price is less than "its normal value". From this definition, it follows that
it does not matter if the difference between the export price and the normal value is small
(de minimis) or considerable. As soon as there is such a difference, "dumping" w ill exist. However,
neither the European Union nor the third parties make any effort to rebut the ordinary meaning of
the term "dumped imports" adopted by the Subdirectorate. Rather, their arguments are contextual
and jurisprudential.
8.5. This brings us to the context of the term "dumped imports". Colombia has explained that the
most immediate context is provided for in the fourth sentence of Article 3.5 of the Anti -Dumping
Agreement (which provides an illustrative list of certain non-attribution factors), specifically "imports
not sold at dumping prices". This means that, in the universe of all imports, Article 3 distinguishes
between "dumped imports" and "imports not sold at dumping prices". It is therefore clear from
Article 3 that all imports must fall within one of these two categories. That being the case, imports
with de minimis dumping margins clearly fall under the category of "dumped imports" because their
normal value is higher than their export price.
8.6. The European Union, for its part, refe rs to Article 5.8 of the Anti -Dumping Agreement in
claiming that an investigation must be terminated immediately where it is "determined" that the
margin of dumping is de minimis, and that this implies that such imports must not be used in the
injury examination. However, an interpretation of Article 5.8 in the light of the customary rules of
treaty interpretation leads to the conclusion that there is no basis for creating a connection between
this provision and Articles 3.1, 3.2, 3.4 and 3.5. Colombia has recalled that the drafters of the
Anti-Dumping Agreement explicitly created a link between de minimis dumping margins and other
provisions when they wanted such a link to exist. This is the case with Articles 3.3 and 9.4 of the
Anti-Dumping Agreement.
8.7. By contrast, WTO case law has been clear that, in the absence of an explicit reference to
imports with de minimis dumping margins in a particular provision, the person interpreting cannot
simply presume such a link. For example, in the context of provisional measures under Article 7.1(ii)
of the Anti -Dumping Agreement, a panel rejected excluding imports with de minimis dumping
margins from the term "dumping" because, "[h]ad the drafters intended to define 'dumping' with a
de minimis component, they could readily have done so". 88 Furthermore, in the context of sunset
reviews under Article 11.3 of the Anti-Dumping Agreement, another panel rejected, in the absence
of any link between this provision and Article 5.8 (or, alternatively, in the absence of a reference to

83 European Union's first written submission, para. 248.
84 European Union's response to Panel question No. 6.2, para. 168.
85 European Union's response to Panel question No. 16.1(b), para. 189.
86 European Union's first written submission, paras. 252 and 253.
87 See Appellate Body Report, US – Gasoline, p. 17.
88 Panel Report, Canada – Welded Pipe, para. 7.59.

"de minimis" dumping), the argument that the authority must take into account the de minimis
threshold in determining the likelihood of continuation or recurrence of dumping.89
8.8. Thus, a proper interpretation of Articles 3 and 5.8 of the Anti -Dumping Agreement does not
support the European Union's position that the consequence of "immediately terminat[ing] the
investigation" under Article 5.8 is that imports with de minimis dumping margins must be excluded
from the injury examination. Rather, wh en the final finding of a de minimis dumping margin is
produced along with the authority's final determination, "the only way to terminate immediately an
investigation, in respect of producers or exporters for which a de minimis margin of dumping is
determined, is to exclude them from the scope of the order". 90 This quote from the Appellate Body
is also confirmed by the negotiating history of the current Article 5.8, as Colombia explained in
paragraphs 9.55-9.67 of its second written submission. It follows that the intent of Article 5.8 was
not to change the def inition of "dumping" (and, in particular, of "dumped imports" in Articles 3.1,
3.2, 3.4 and 3.5) but to exclude imports with de minimis dumping margins from the application of
the anti-dumping measure.
8.9. Moreover, the European Union also relies on WTO case law to support its argument that imports
with de minimis dumping margins are not part of the "dumped imports" in Articles 3.1, 3.2, 3.4 and
3.5. Mindful of the role of case law in the WTO dispute settlement system, Colombia has been frank
and open in recognizing the existence of up to six panels that have determined that imports with de
minimis dumping margins should be excluded from the injury examination. However, Colombia has
also explained how this case law is based on a series of obiter dicta with no solid foundation in the
customary rules of treaty interpretation. In particular, the first four panels that ruled on this matter
made this finding as an obiter dictum, as the issue before them was not whether imports with
de minimis dumping margins could be included in the injury examination. 91 Only in the last two
disputes, EC – Salmon (Norway) and Canada – Welded Pipe, were the panels confronted with the
issue of whether imports with de minimis dumping margins can be included in the "dumped imports"
in Articles 3.1, 3.2, 3.4 and 3.5. 92 However, they merely relied on prior jurisprudence without
conducting their own interpretative analysis in accordance with t he customary rules of treaty
interpretation. In other words, these panels gave preference to what had been said before as obiter
dicta instead of to objective interpretation analysis under Article 17.6(ii) of the
Anti-Dumping Agreement. There is therefore no legal or moral obligation or duty to follow this line
of jurisprudence unthinkingly, especially when it is not duly substantiated.
8.10. In any event, Colombia recalls that, according to Article 17.6(ii) of the Anti -Dumping
Agreement, the issue before this Panel is whether the measure taken by the Subdirectorate "rests
upon one of [the] permissible interpretations" of the provisions in question. Should this be the case,
the Panel should "find the measure [at issue] to be in conformity with the [Anti -Dumping]
Agreement", regardless of whether another panel, the European Union or even, with all due respect,
this Panel are inclined towards a different interpretation. Since the Subdirectorate relied upon a
permissible interpretation of Articles 3.1, 3.2, 3.4 and 3.5 by including imports with de minimis
margins of dumping for the purposes of its injury and causation analysis, the European Union's
cross-cutting claim in relation to imports with de minimis margins of dumping must be rejected.
8.2 The European U nion has failed to demonstrate that the inclusion of imports with
negative margins of dumping affects the "objectivity" required in Article 3.1
8.11. In addition, the European Union has failed to explain why the inclusion of imports with
negative margins of dumping undermines the objectivity of the injury and causation analysis.
8.12. Colombia states that, pursuant to Articles 3.1 and 17.6(i) of the Anti-Dumping Agreement, in
order for the injury analysis to be considered inconsistent with Article 3 of th e
Anti-Dumping Agreement, it needs to be demonstrated that the injury analysis lacks objectivity or
that the evidence relied upon by the authority was not positive. In other words, it is not enough for
the complainant to merely point out specific errors in the various stages of the "logical progression"

89 Panel Report, US – Corrosion-Resistant Steel Sunset Review, paras. 7.67 and 7.68.
90 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219.
91 See Panel Reports, EC – Bed Linen, para. 6.138; EC – Bed Linen (Article 21.5 – India), para. 6.131;
Argentina – Poultry Anti-Dumping Duties, para. 7.303; and EC – Fasteners (China), para. 7.356.
92 See Panel Reports, EC – Salmon (Norway), paras. 7.621-7.626; and Canada – Welded Pipe,
paras. 7.79-7.85.

under Article 3. Instead, they must establish a prima facie case that these errors undermined the
objectivity of the injury analysis.
8.13. WTO case law confirms Colombia's understanding that not every error or flaw gives rise to a
violation of the obligation under Article 3.1 of the Anti-Dumping Agreement (and under the standard
of review set forth in Article 17.6(i)) to conduct an objective injury and causation examination. 93
Likewise, the third parties in this dispute agree that "not every error or flaw constitutes a violation
of the obligation for objectivity in the injury and causation analyses, but rather only those that
'individually' or 'taken together' are of such a magnitude that they undermine this objectivity".94
8.14. The question, therefore, is whether, by including imports with negative margins of dumping,
the Subdirectorate undermined the objectivity of its injury analysis. Colombia has explained that
these imports account for 8.63% of the tot al imports under investigation 95, and that the
Subdirectorate's findings relating to the price analyses (Article 3.2) and the impact on the domestic
industry (Articles 3.4 and 3.5), made on the basis of verifiable calculations, do not vary depending
on whether imports with negative margins of dumping are included or excluded. This explanation
has been criticized by the European Union as post hoc rationalization.96 However, Colombia has
constructively provided this analysis as an indication that the Subdirec torate's examination did not
lose objectivity by including imports with negative margins. The analysis provided – which is based
directly on the information contained in the Final Technical Report – is intended to initiate a
discussion with the European Union on the supposed lack of objectivity. However, Colombia's effort
to provide these explanations cannot obviate the fact that it is the European Union that bears the
burden of demonstrating the lack of objectivity in the overall injury analysis (and that it is not for
Colombia to establish a prima facie case that this analysis was objective). Nevertheless, it bears
repeating that the European Union has neither established a prima facie case that the injury and
causation examination lacked objectivity (desp ite bearing this burden as complainant) nor
commented upon Colombia's factual explanations.
8.15. The European Union has therefore failed to establish a prima facie case that the injury
examination lacked objectivity by including imports with negative margins of dumping (8.63% of
the total).
9 THE CLAIM UNDER ARTICLES 3.1 AND 3.2 RELATING TO THE EFFECTS OF THE IMPORTS
ON THE PRICE OF THE DOMESTIC PRODUCT SHOULD BE REJECTED
9.1. The European Union claims that Colombia has acted inconsistently with Articles 3.1 and 3.2 of
the Anti-Dumping Agreement by conducting a flawed analysis of the effects of the dumped imports
on the prices of the domestic product in the Colombian market.97 In its first written submission, the
European Union puts forward three specific arguments under Articles 3.1 and 3.2 relating to the
analysis of the effect of the imports on the price of the domestic product. Colombia responds to each
of these arguments below.
9.1 The European Union has failed to demonstrate that the inclusion of non -dumped
imports is inappropriate
9.2. The European Union argues that the Subdirectorate incorrectly included "imported products
that were found not to have been d umped during the investigation".98 The European Union further
claims that the Subdirectorate "also included imports from countries, which were not under
investigation".99 Colombia addresses these two assertions below.

93 See Panel Reports, US – Countervailing Duty Investigation on DRAMs, para. 7.305; and
94 See United States' response to Panel question No. 4.3 for the third parties, paras. 28-30; Japan's
response to Panel question No. 4.3 for the third parties, para. 49; and Brazil's response to Panel question
No. 4.3 for the third parties, para. 29.
95 Colombia's first written submission, para. 13.48.
96 European Union's response to Panel question No. 6.7.b, para. 204.
97 European Union's first written submission, section 7.4 subheading.
98 European Union's first written submission, para. 269.
99 European Union's first written submission, para. 269.

9.3. With respect to the European Uni on's first assertion (the inclusion of non -dumped imports),
Colombia has explained, firstly, that the term "dumped imports" in Articles 3.1 and 3.2 refers to
imports for which the investigating authority has calculated a positive margin of dumping, regardless
of its magnitude. Therefore, the term "dumped imports" includes those with a de minimis margin of
dumping.100 Secondly, Colombia has also explained that the inclusion of imports with negative
margins of dumping did not undermine the objectivity of the a nalysis of the effects of the imports
on the price of the domestic product. 101 For these reasons, the European Union's consequential
argument that the Subdirectorate violated Articles 3.1 and 3.2 by including both de minimis dumped
imports and imports with negative margins of dumping is without merit and should be rejected.
9.4. With regard to the second assertion (the inclusion of imports from countries that were no t
under investigation), Colombia confirms that this is incorrect. The European Union asserts this fact
without substantiating it with appropriate explanations or, more importantly, with references to the
record or the Subdirectorate's determination. On the contrary, a plain reading of the Final Technical
Report confirms that the Subdirectorate separated the effects of the imports from countries that
were under investigation from those of imports from other countries. Colombia observes that the
European Union has dropped this argument after realizing its error.102
9.2 The European Union has failed to demonstrate that the data used in the price analysis
were inadequate
9.5. The European Union argues that the data used in the price analysis were "inadequate".
Specifically, the European Union refers to section 5.3 of its first written submission in an attempt to
demonstrate that the supposed confidentiality-related errors identified in that section also give rise
to a violation of Articles 3.1 and 3.2. This argument is incorrect because, even assuming that there
are errors in the confidential treatment of the information, the consequence of this would be an
inconsistency with Articles 6.5 and 6.5.1. Furthermore, the domestic industry's application (which
contains the alleged confidentiality-related errors) and the Subdirectorate's technical reports are two
separate documents relating to two distinct procedural steps and are drafted by two different actors.
As a result, the European Union cannot accuse Colombia of a violation of Articles 3.1 and 3.2 of the
Anti-Dumping Agreement for alleged confidentiality -related errors in the domestic industry's
application.
9.6. In any event, Colombia has indicated that the Subdirectorate provided a detailed explanation
of the p rice trends of the domestic product, not only visually, using a graph, but also with an
explanation of the fluctuations in percentage terms. The Subdirectorate thus fulfilled its obligation
to "satisfy the right of other parties to the investigation to obtain a reasonable understanding of the
substance of the confidential information, and to defend their interests". 103 The price analysis
provided the necessary information through the examination of trends, and the authority conducted
an objective examination as required by Articles 3.1 and 3.2. It is therefore clear that the
European Union's assertions relating to confidentiality in the analysis of the effects of the imports
on the prices of the domestic product should be rejected.
9.3 The European Union has failed to establish a prima facie case that the Subdirectorate
has conducted an inadequate analysis of price comparability
9.7. Lastly, the European Union claims that the Subdirectorate failed to adequately assess price
comparability.104 The European Union's argument is based on the fact that the Subdirectorate
compared the real implicit price of the domestic product and the price of the imports, and that it did
so in terms that were not comparable. Furthermore, the European Union makes reference only to
the analysis of the domestic price trends, but does not refer, in its first written submission, to the
part of the final determination in which the Subdirectorate examined the effects of the imports on
the domestic price pursuant to the second sentence of Article 3.2 of the Anti-Dumping Agreement.
9.8. In its response, Colombia has drawn the Panel's attention to the relevant part of the final
determination containing the analysis of the effects of the imports on the domestic price. On this

100 See paras. 13.13-13.28 above.
101 See paras. 13.53-13.54 above.
102 See European Union's response to Panel question No. 7.1, paras. 206-212.
103 Appellate Body Report, EC – Fasteners (China), para. 542.
104 European Union's first written submission, para. 271.

basis, Colombia has clarified that the Subdirectorate conducted a price depression and suppression
analysis, and not a price undercutting analysis. Thus, in accordance with Article 3.2, the
Subdirectorate did not directly compare the price of the imports with the price of the domestic
product, and was not required to do so. This is because the second sentence of Article 3.2 requires,
for the purposes of the price depression and suppression analyses, an examination of the impact of
"imports" (not necessarily their prices) on the price of the domestic product. This price depression
or suppression analysis can be conducted, for example, through an analysis of import volumes or
market share. This is precisely what the Subdirectorate did.
9.9. The Subdirectorate found that the p rice of the domestic product had declined by 5.38% and
that it could not be increased despite the levels of inflation. In addition, despite also finding an
upward trend in the price of the imports, the Subdirectorate then immediately found a very
significant increase in the volume of the imports of 51.85%. According to the Subdirectorate, this
increase "had a negative impact on the domestic industry". Moreover, the Subdirectorate analysed
the situation in the domestic market and found that, while the domestic industry's share was down
by 1 percentage point, that of imports was up 11 percentage points.105
9.10. In subsequent submissions, the European Union has roundly criticized the Subdirectorate's
analysis of the effect on prices, indicating that the Subdir ectorate did compare the price of the
imports with the price of the domestic product by using the expression "[t]hat contrasts with". 106
This is incorrect. First, the Subdirectorate found that there had been a 5.38% drop in the domestic
price; second, it us ed the expression "[t]hat contrasts with"; and third, it mentioned the
1.66% increase in the price of the imports. 107 It therefore follows that the Subdirectorate did not
compare import prices with import prices, but rather, juxtaposed their trends. This ju xtaposition
(or comparison, to use the European Union's word) provides very useful information on the
behaviour of both prices, which was what the Subdirectorate was looking for. The trends in the
domestic prices and import prices were therefore juxtaposed in comparable terms (percentages).
9.11. Consequently, it is clear that the European Union has failed to establish a prima facie case
that the analysis of the effects of the imports on the prices of the domestic product is inconsistent
with Colombia's ob ligations under Articles 3.1 and 3.2 of the Anti -Dumping Agreement. The
European Union's claim on the basis of these provisions should therefore be rejected.
9.4 The arguments submitted late by the European Union - should be rejected as untimely
9.12. As stated, in its first written submission, the European Union put forward three arguments
relating to its claim under Articles 3.1 and 3.2 of the Anti -Dumping Agreement. None of these
arguments refer to the Subdirectorate's analysis of the effects of the im ports on domestic prices,
which found price depression and suppression. However, over the course of the Panel proceedings,
the European Union has been adding new arguments relating to the Subdirectorate's analysis.
9.13. More specifically, the European Un ion continues to put forward new arguments in the final
stage of the proceedings, namely, in its responses to the Panel's questions following the second
substantive meeting. These arguments are: (1) criticism of the Subdirectorate's reading of the trend
in the real implicit price of the domestic product 108; (2) criticism of the finding that the volume of
imports increased by 51.85% and of the failure to outline the "explanatory force" this increase
provides for the prices of the domestic product 109; (3) criticism of the failure to explain " why this
increase in volumes of imports at higher prices than domestic prices depressed those prices or
prevented those domestic prices from rising as they otherwise would have done" 110; and (4) that,
in analysing the depres sion and suppression of domestic prices, the Subdirectorate should have
carried out "a counterfactual analysis of what would otherwise have occurred".111

105 Response of the Trade Practices Subdirectorate to BELGAPOM's comments, (Exhibit EU-17), p. 6.;
and Response of the Trade Practices Subdirectorate to Mydibel's comments, (Exhibit EU-17), p. 31. See also
Final Determination, (Exhibit EU-5), pp. 5-6.
106 European Union's second written submission, para. 115.
107 Opening statement at the second substantive meeting of the Panel, para. 7.4.
108 See European Union's response to Panel question No. 17.5, paras. 102-110.
109 See European Union's response to Panel question No. 17.5, para. 121.
110 See European Union's response to Panel question No. 17.5, para. 124.
111 See European Union's response to Panel question No. 17.5, para. 132.

9.14. Colombia recalls that paragraph 3(1) of the Panel's Working Procedures is clear that the
"arguments" of the parties must be presented in a written submission before the first substantive
meeting. This rule, used generally in all panel proceedings, has been applied on several occasions
in previous disputes, in which the parties' arguments (part icularly those of the complainant party)
have been dismissed when they have not been presented in the first written submission. 112 In
addition, Colombia emphasizes that respect for rule 3(a) of the Panel's Working Procedures is
particularly relevant in orde r for the complainant party to establish a prima facie case of alleged
inconsistency at the earliest possible stage of the proceedings so that "the respondent [is in a
position] to rebut the complainant's prima facie case, by presenting evidence and arguments".113
9.15. Colombia therefore asks the Panel to refrain from analysing any of the untimely arguments
relating to the Subdirectorate's analysis of the effects of the imports on domestic prices. However,
at the very least, Colombia asks the Panel not to take into account the four aforementioned new
arguments, as it is clearly unacceptable for the European Union to present them in the final stage of
the proceedings (in its responses to the Panel's questions following the second substantive meeting).
10 THE CLAIM UNDER ARTICLES 3.1 AND 3.4 RELATING TO THE ANALYSIS OF THE INJURY
FACTORS SHOULD BE REJECTED
10.1. The European Union further cl aims that the Subdirectorate's analysis of the injury factors is
inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement. In particular, the
European Union raises three arguments relating to the "methodology" used by the Subdirectorate in
its analysis, as well as a further three "substantive" arguments. Colombia responds to each of these
arguments below.
10.1 The European Union has failed to demonstrate that a comparison between the
reference period and the critical period is "highly problematic"
10.2. The European Union states that the Subdirectorate's injury analysis, based on a comparison
of the "averages" from the reference period and the critical period, is "problematic" because this
methodology "does not account for fluctuations in the data".114
10.3. The European Union's assertion about the Subdirectorate's analysis is incorrect. The
Subdirectorate conducted a two-pronged analysis of the injury factors, namely: (i) the performance
of each variable over consecutive six-month periods; and (ii) the comparison between the average
of each factor for the reference period and for the critical period. Through the two-pronged analysis
of the injury factors, the Subdirectorate first ascertained the trends in each factor using six-monthly
data. In o ther words, the trends were examined on the basis of seven reference points (seven
six-month periods) falling within the investigation period. This analysis of the trends enabled the
Subdirectorate to identify the "fluctuations" in each factor assessed. Th is is evident not only from
looking at the graphs that the Subdirectorate included in the Final Technical Report, but also from
the explanations of these graphs.
10.4. In the light of these explanations, Colombia is surprised by the European Union's readi ng of
the Subdirectorate's determination. In particular, the European Union criticizes the Subdirectorate
for analysing averages that, allegedly, would not account for fluctuations during the investigation
period. The European Union's partial reading of th e Subdirectorate's methodology is particularly
puzzling because, as far as Colombia is aware, no other investigating authority conducts such a
thorough analysis of injury factors by examining six -monthly trends (annual trends are usually
analysed), followed by a comparison of the averages for the period of dumping and for the period
just prior to that. In fact, Colombia understands that even the European authority for anti-dumping
investigations tends only to conduct an annual assessment of trends, which forms the basis for its
conclusion of injury. An annual analysis obviously offers half the reference points of a six -monthly
analysis, such as the one conducted by the Subdirectorate.

112 See Appellate Body Report, EC – Fasteners (China), para. 574. See also Panel Reports,
US – Softwood Lumber VII, fn 9; EU – Biodiesel (Indonesia), para. 7.141; Morocco – Hot-Rolled Steel (Turkey),
113 Appellate Body Report, Russia – Railway Equipment, para. 5.189.
114 European Union's first written submission, para. 291.

10.5. In response to Colombia's explanation, the European Union further c laims that the
Subdirectorate "focused on the average performance of the economic indices as compared across
the two unequal periods". 115 Colombia considers that, for its argument to be successful, the
European Union should have identified a factor for which the analysis of the six-monthly trends and
the six-monthly averages produced conflicting results and the Subdirectorate still chose to base its
conclusion on the six-monthly averages (critical period and reference period). The European Union
has not identified any factors for which this occurred. For example, in the case of installed capacity
use referred to by the European Union, the Subdirectorate found in its analysis of both the
six-monthly trends and the six-monthly averages that there was a decline in installed capacity use,
and, on that basis, the Subdirectorate found that the performance of that "variable" was
symptomatic of injury. Therefore, even if it were correct that the Subdirectorate "focused" on the
comparison between the six-monthly averages (critical and reference periods), this would in no way
vitiate the objectivity of the examination of the trends in installed capacity use.
10.6. Accordingly, the European Union's argument criticizing the comparison of the six -monthly
averages for the reference period and for the critical period should be rejected.
10.2 The European Union has failed to demonstrate that there was anything incorrect in
the data used for the analysis of installed capacity
10.7. The European Union further claims that the a nalysis of the trend in installed capacity use is
incorrect because the data itself was not sufficiently comparable. In particular, the data from 2014
were sourced from one company (Congelagro S.A.), whereas the data for the remaining sub-periods
are sourc ed from two companies (Congelagro S.A. and Productos Alimenticios Frozen Express
S.A.S.).116
10.8. Colombia does not understand why the emergence of this new producer in 2015 undermines
the analysis of installed capacity use, and the European Union has failed to provide an explanation.
In particular, the Subdirectorate stated that, in first half of 2015, the company Productos Frozen
Express S.A.S. began production and, as a result, its installed capacity was added to that of the
company CONGELAGRO for the purposes of the analysis of the domestic industry's overall installed
capacity use. Clearly, installed capacity use is expressed as a percentage of the total capacity.
Therefore, if a particular company has the capacity to produce 100 units in a given year and
produces 60, the installed capacity use of the domestic industry (consisting of just one company)
will be 60%. If, the following year, a new company is created with the capacity to produce 100 units,
but produces only 60 that year, the overall installed capacity use of the domestic industry (consisting
of these two companies) will still be 60%. Therefore, the fact that the company Productos
Alimenticios Frozen Express S.A.S. began production in 2015 and that both its installed capacity and
its productio n were added to those of the company CONGELAGRO does not vitiate the
Subdirectorate's analysis of installed capacity use for the purpose of determining injury.
10.9. Colombia considers it necessary to point out that the European Union complains about the
analysis of "installed capacity use" rather than "installed capacity" per se. This clarification becomes
important because the domestic industry's "installed capacity" is necessarily affected if a producer
begins production any year after the start of the investigation period. In the hypothetical example
outlined in the previous paragraph, the "installed capacity" increases from 100 to 200 if the domestic
producer's capacity is added to that of the domestic industry during the investigation period.
However, as explained, the analysis of "installed capacity use" does not lose objectivity as a result
of the domestic industry gaining or losing producers during the investigation period.
10.10. In any event, the European Union is mistaken when it claims that, wi th regard to installed
capacity use, "there is plainly no consideration by [the Subdirectorate] of the relevance of when
fluctuations occurred and how this is to be reconciled with a finding of injury."117 In its analysis, the
Subdirectorate noted the drop in installed capacity use of 41.73 percentage points between the
second half of 2014 and the first half of 2015. Furthermore, the Subdirectorate identified a
subsequent decrease of 10.17 percentage points on average. The graph shows that this other
significant drop took place between the second half of 2015 and the first half of 2016. Lastly, the
Subdirectorate noted that the decline continued during the critical period, namely, the second half

115 European Union's response to Panel question No. 8.2, para. 271.
116 European Union's first written submission, para. 294.
117 European Union's response to Panel question No. 8.19, para. 339.

of 2016 and the first half of 2017, with slight decreases. The Subdirectorate thus found that the
downward trend continued throughout the investigation period, albeit at a varying rate.
10.11. In summary, the analysis of the six -monthly trends revealed the six -monthly movements
(trends), which would have shown fluctu ations if there were any. Similarly, the European Union is
also incorrect when it notes that there was no consideration of how these trends are "to be reconciled
with a finding of injury".118 For the reasons provided in this subsection, Colombia requests the Panel
to reject the European Union's argument relating to the data used by the Subdirectorate for the
purposes of the examination of installed capacity use.
10.3 The European Union has failed to demonstrate that the analysis of the injury factors
was deficient
10.12. The European Union again claims that "this failure to conduct a comparison of equivalent
data comes in addition to the overarching flaw described in section 7.3 above in respect to all
calculations that relied on data which included non -dumped imports". 119 Moreover, the
European Union claims that, to the extent that the Subdirectorate relied upon a flawed price effects
analysis, this also necessarily vitiates the findings [of injury] and further demonstrates that Colombia
has failed to adhere to its obligations under Articles 3.1 and 3.4 of the Anti -Dumping Agreement,
both individually and collectively.120
10.13. These arguments are "consequential" to the cross-cutting claims under Articles 3.1 and 3.2
of the Anti-Dumping Agreement. Colombia h as explained the reasons why these claims should be
rejected. As a result, the European Union's third argument in relation to its claim under Articles 3.1
and 3.4 is consequential and should also be rejected.
10.4 The European Union has failed to demonstrate that the Subdirectorate did not take
into account the factors with a positive performance
10.14. The European Union claims that the Subdirectorate simply mentioned the injury factors with
positive trends during the investigation period, without explaining or assessing the importance of
such factors in the overall conclusion regarding injury.121 In particular, the European Union refers to
domestic sales and production as "key" factors that "registered an inc rease".122 However, as
Colombia explains below, the European Union ignores the fact that the favourable trend in these two
factors was explicitly addressed by the Subdirectorate.
10.15. With regard to the favourable trend in sales, the Subdirectorate analysed the following in its
causation examination: first, the Subdirectorate found that sales of the imports rose by 51.85%,
while sales increased by 19.77%123; second, the Subdirectorate found that the imports' market share
increased by 11 percentage points, while the domestic product's market share fell by 1 percentage
point124; third, the Subdirectorate stated that "material injury was found" in, inter alia, "the share
of the applicant's sales with respect to apparent domestic consumption" 125; and fourth, in t he
"Conclusion" section of the Final Technical Report (last page), the Subdirectorate found that the
"increase in the market share of dumped imports displaced the domestic producers and the share
of the investigated imports with respect to the volume of production increased by 25.7 percentage
points".126
10.16. Thus, although the Subdirectorate had previously acknowledged, in the causation analysis,
the increase in the domestic industry's sales of 19.77% in absolute terms, it eventually concluded
that there had been a negative performance in "the share of the applicant's sales with respect to
apparent domestic consumption " contributing to "material injury". In o ther words, the
Subdirectorate did take into consideration the 19.77% increase in absolute terms in the domestic

118 European Union's response to Panel question No. 8.19, para. 339.
119 European Union's first written submission, para. 296.
120 European Union's first written submission, para. 296.
121 European Union's first written submission, paras. 300-305.
122 European Union's first written submission, para. 301.
123 Confidential Final Technical Report, (Exhibit COL-16 (BCI)), p. 109.
124 Confidential Final Technical Report, (Exhibit COL-16 (BCI)), p. 109.
125 Confidential Final Technical Report, (Exhibit COL-16 (BCI)), p. 114.
126 Confidential Final Technical Report, (Exhibit COL-16 (BCI)), p. 116.

industry's sales but downplayed its importance ("relativized" its importance) in the light of the
prevailing market conditions, particularly th e fact that demand increased and that most of this
increase was captured by imports.
10.17. Regarding the positive trend in production , Colombia has stated that the Subdirectorate
dedicated an entire page of its Final Technical Report to assessing "investigated imports with respect
to the volume of production". The Subdirectorate pointed out that the ratio of investigated imports
to production volume increased by around 20 percentage points on average, with the exception of
the last six -month period analys ed.127 In other words, whatever the increase in production in
absolute terms, it was relativized by an even sharper rise in imports. It is thus clear that the
Subdirectorate did evaluate the upward trend in production, not in isolation but in relation to th e
increase in imports, and found that imports increased at a faster rate than production.
10.18. These explanations show that the Subdirectorate did take into account the increase in sales
and production in absolute terms, but that increase was insufficient to benefit from growing demand.
Therefore these increases in absolute terms are relativized by other factors that display a negative
performance, especially (but not exclusively) market share. The Subdirectorate's explanations and
findings contradict th e European Union's argument that the Subdirectorate did not examine the
impact of the positive trend in sales and production in its overall injury examination. Accordingly,
Colombia requests the Panel to dismiss this argument.
10.5 The European Union has failed to establish that the Subdirectorate's assessment of
six injury factors was deficient
10.19. The European Union claims that the Final Technical Report does not contain a proper
assessment of six injury factors, as it "deliberately" excluded them on the basis that they "provide
general background information".128 The six factors contested by the European Union are: return on
investments, factors affecting domestic prices, the magnitude of the margin of dumping, effects on
cash flow, growth, and the ability to raise capital or investments. This argument is unfounded, as is
explained below.
10.20. First, of the six challenged factors, four were analysed with respect to the total production
of the domestic industry, and two in relation to the product und er consideration. The last two are
the factors that could affect internal prices and the magnitude of the margin of dumping . The
European Union does not present any criticism of the factors that could affect domestic prices.
However, with respect to the magnitude of the margin of dumping, the European Union incorrectly
claims that the Subdirectorate's explanations are insufficient. Colombia recalls that the
Subdirectorate found that the margin of dumping for two companies was below the national inflation
rate, while the margin of dumping for another company (Mydibel), which recorded the highest
volume of exports to Colombia, was greater than the inflation rate in Colombia and that, as a result,
the margin of dumping was considered "relevant".129
10.21. The European Union does not claim that it is incorrect to analyse the magnitude of the margin
of dumping in the light of the levels of inflation, or that this cannot lead to the conclusion that the
margin of dumping is "relevant". Rather, it claims that these explanations are insufficient. However,
Colombia considers that the European Union is too vague and imprecise in its argument and,
therefore, it cannot be considered that it has met its burden of establishing a prima facie case with
respect to the lack of objectivity in the assessment of the magnitude of the margin of dumping for
the purposes of the claim under Articles 3.1 and 3.4.
10.22. Second, with regard to the four remaining factors (return on investments, effects on cash
flow, growth, and the ability to raise capital), the European Union claims that they were not the
subject of a "proper assessment" because the Subdirectorate had aggregate information on all the
products produced by the domestic industry. In accordance with Article 3.6 of the
Anti-Dumping Agreement, the Subdirectorate found that, regarding these four financial factors
pertaining to the domestic industry, it was impossible to separate the information on the like product
under investigation from that on other products. The Subdirectorate then proceeded to analyse them

127 Confidential Final Technical Report, (Exhibit COL-16 (BCI)), p. 95.
128 European Union's first written submission, para. 301.
129 Responses to the comments on the Essential Facts Technical Report, (Exhibit EU-17), p. 15.

in an overall manner for the entire production of the domestic industry and not just in relation to
the product under consideration.
10.23. In its analysis of these four factors, the Subdirectorate found them to be performi ng
negatively (which supports the view that there is injury). However, the Subdirectorate was cautious
in emphasizing that "we cannot establish with any certainty how each indicator specifically affects
the domestic industry of frozen potatoes", i.e. speci fically the product under consideration. 130
Colombia does not understand how this responsible and cautious position adopted by the
Subdirectorate is now challenged by the European Union, especially when Article 3.6 of the
Anti-Dumping Agreement allows for the analysis of certain injury factors on the basis of a broader
universe of products than the product under investigation.
10.24. For the reasons given above, Colombia requests the Panel to reject the European Union's
argument that the Subdirectorate fail ed to make a "proper assessment" of the following six injury
factors: the size (magnitude) of the margin of dumping, factors likely to affect prices, return on
investments, effects on cash flow, growth, and the ability to raise capital.
10.6 The European Union has failed to demonstrate that the analysis of injury factors did
not examine the impact of the imports on the domestic industry
10.25. Lastly, the European Union claims that even for those factors in respect of which injury was
found, "the analysis presented by [the Subdirectorate] also falls significantly short of the
requirement to examine the impact on the [domestic] industry".131 In particular, the European Union
notes that "[the Subdirectorate] has plainly not complied with the requirement to id entify whether
the dumped imports had explanatory force for the state of the domestic industry". 132 Once again,
this argument appears to derive from an incomplete reading of the Final Technical Report.
In particular, in the section entitled "Causal Link", t he Subdirectorate conducted a detailed
seven-page examination of the "explanatory force"133 of the imports on the deterioration of the state
of the domestic industry.134
10.26. Three conclusions emerge from section "5. Causation" of the Final Technical Report. First,
the Subdirectorate's causation analysis was progressive: first, the evolution of domestic demand
was observed; second, it was observed that sales of both the imports and the domestic industry
increased at different rates; third, it was observed that the market share of the imports rose while
that of the domestic industry fell; fourth, the imports were found to have displaced the domestic
industry in its own market. This analysis has been described above.
10.27. Second, contrary to what the European Union seems to argue, the components of this
progressive analysis are not scattered in such a way that Colombia has to search for them
individually and then piece t hem together. Rather, all the components of the progressive analysis
are logically sequenced one after the other on pages 108 -114 of the Final Technical Report
(Exhibit EU-4).
10.28. Third, the conclusion that the "dumped imports displaced domestic produc ers" is not an
unsubstantiated theory of the Subdirectorate. Rather, it is a conclusion that appears just after the
progressive causation analysis described above (demand - sales - market share). Therefore, the
finding of "displacement" is properly support ed by a comprehensive analysis of the interaction
between imports and the domestic industry in the Colombian market.
10.29. Moreover, the European Union alleges that "an 'evaluation' of each of the factors in
Article 3.4 requires a process of analysis and assessment of the role, relevance and relative weight
of each factor in the particular investigation". However, it is incorrect to claim that the authority is
required to analyse the impact of imports on each particular factor. Article 3.4 indicates that the
examination of the "impact of the dumped imports" relates to the "domestic industry". However, the
examination of the "impact" includes an "evaluation" of all the factors "having a bearing on the state
of the industry". Thus, the "evaluation" of each o f the factors is objective (if the performance is

130 Responses to the comments on the Essential Facts Technical Report, (Exhibit EU-17), p. 14.
131 European Union's first written submission, para. 308.
132 European Union's first written submission, para. 314.
133 Appellate Body Report, China – GOES, para. 136.
134 Non-confidential Final Technical Report, (Exhibit EU-4), pp. 108-114.

positive and negative) and it is through an overall reading of the behaviour of all the factors that
the authority must conduct the "examination" of the impact of the dumped imports on the
domestic industry.
10.30. In conclusion, the European Union's sixth argument concerning the alleged failure to examine
the impact of imports on the domestic industry is unfounded and should be rejected.
11 THE CLAIM UNDER ARTICLES 3.1 AND 3.5 RELATING TO CAUSATION SHOULD BE
REJECTED
11.1. The European Union puts forward three arguments to attempt to demonstr ate that the
causation analysis is inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
11.1 The European Union has failed to demonstrate that causation has been "vitiated" by
alleged shortcomings in the injury analysis
11.2. The Europea n Union asserts that the Subdirectorate's causation analysis is "vitiated" by
shortcomings in the analyses of the volume of the imports, the effects of the imports on the price of
the domestic product and the impact on the state of the domestic industry. O n this basis, the
European Union claims that the causation analysis is inconsistent with Articles 3.1 and 3.5 of the
Anti-Dumping Agreement.135
11.3. This being an argument that is consequential to its previous claims under Articles 3.1, 3.2
and 3.4, Colombia has explained that there is no violation of these provisions and that there is
therefore no basis for finding a consequential violation of Article 3.5. This first argument by the
European Union should therefore be rejected.
11.2 The European Union has failed to demonstrate that the conclusion regarding
causation was based simply on a "correlation"
11.4. The European Union claims that the Subdirectorate failed to adequately explain the existence
of a causal link by confusing the concept of "correlation " with "causation". 136 According to the
European Union, the Subdirectorate "appears to conclude that because it found that there was an
injury to the domestic market ... this must have been caused by the dumped imports".137
11.5. Once again, the European Union makes no reference to the Subdirectorate's determination to
substantiate its claim. However, Colombia recalls, once again, that the Subdirectorate carried out
its causation analysis on the basis of a progressive analysis in which it evaluated the upward trend
in demand, the levels of sales of the imports and the domestic product, and the trend in the market
share of the imports and the domestic product. On this basis, the Subdirectorate found that there
had been a negative performance in "the share of t he applicant's sales with respect to apparent
domestic consumption" contributing to "material injury". 138 Ultimately, all these elements led it
to conclude that imports "displaced" the domestic industry in its own market.139
11.6. Colombia believes that this analysis has sufficient logical rigour for it to be observed that the
domestic product's loss of market share (because it was unable to increase its sales at the same
rate as the rise in demand) was caused by imports. Therefore, the European Union's argument that
the Subdirectorate confused the concept of "correlation" with "causation" should be rejected.
11.3 The European Union has failed to demonstrate that the analysis of the
non-attribution factors was reduced to a descriptive narrative
11.7. Lastly, the European Union claims that the analysis of the non-attribution factors "is woefully
deficient and essentially consists of a descriptive narrative". 140 The European Union argues that,
when an authority cites a non-attribution factor in its determination, that triggers the obligation to

135 European Union's first written submission, para. 320.
136 European Union's first written submission, para. 321.
137 European Union's first written submission, para. 322.
138 Non-confidential Final Technical Report, (Exhibit EU-4), pp. 108-114.
139 Non-confidential Final Technical Report, (Exhibit EU-4), p. 116.
140 European Union's first written submission, para. 325.

analyse it. In particular, the European Union criticizes the evaluation of the following
three non-attribution factors: the volumes and prices of non -investigated imports; the trade
restrictive practices of Brazil and South Africa; and the market satisfaction capacity.141
11.8. The European Union ignores the legal standard for non -attribution under Article 3.5
(adopted by various panels), according to which, for an authority to be required to analyse a
non-attribution factor, it must have "evidence before [it] to indicate that a factor is injuring the
domestic industry".142 Colombia has also observed that this legal standard is consistent with that of
the European Court of Justice itself in relation to non-attribution, which requires there to be sufficient
evidence in the record before the European authority is required to examine the injurious effects of
a particular non-attribution factor.143
11.9. In the present case, however, the European Union fails to indicate whether the Subdirectorate
had before it evidence relating to the injury to the domestic industry caused by the three contested
factors. Specifically, the European Union should refer the Panel (and Colombia) to the relevant part
of the record where one of the interested parties has demonstrated the injurious effects of the three
non-attribution factors contested in this dispute. The European Union has not done this.
11.10. On the contrary, the European Union alleges that there is an obligation to an alyse the
challenged non-attribution factors even in the absence of evidence in the record demonstrating their
injurious effects on the domestic industry. However, the European Union has not explained why it
believes that the established case law outlined above is incorrect or inapplicable in this case.
11.11. In any event, and for the sake of completeness, Colombia has explained that the
Subdirectorate did provide an analysis of two of the three non -attribution factors. Regarding the
inclusion of imports with negative margins of dumping, the Subdirectorate stated that the dumped
imports "represent[ed] a very significant volume of trade" and that, among them, Mydibel imports
alone accounted for 66.97% of the total volume of dumped imports. 144 Similarly, rega rding the
capacity to meet the needs of the market, the Subdirectorate stated that the domestic industry had
the capacity to meet between 58.6% and 70.8% of the domestic market needs145, and also observed
that the domestic industry's market share stood at o nly 40.5% at the end of the investigation
period.146
11.12. Lastly, regarding the trade restrictive practices of Brazil and South Africa, Colombia has
explained that the anti -dumping measures of other countries for the same product and origin can
be consid ered a direct cause of the increase in dumped imports in countries that are not yet
protected. From this perspective, such anti -dumping measures in other countries are the opposite
of a non -attribution cause under Article 3.5. The Subdirectorate mentioned these anti -dumping
measures in the section on non -attribution simply in order to record their existence, but in the
absence of evidence demonstrating their injurious effects on the domestic industry, the
Subdirectorate correctly limited itself to pointing them out without further analysis.
11.13. Therefore, the claim regarding the non-attribution factors under Articles 3.1 and 3.5 of the
Anti-Dumping Agreement should be rejected in the light of the European Union's failure to establish
that the Subdirector ate had before it evidence demonstrating that the three contested
non-attribution factors were causing injury to the domestic industry.
12 REQUEST FOR FINDINGS
12.1. For the reasons explained in this submission, Colombia respectfully requests the Panel t o
reject all the European Union's claims under Articles 2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 5.3, 5.8, 6.5, 6.5.1

141 European Union's first written submission, paras. 326-329.
142 Panel Report, Morocco – Definitive AD Measures on Exercise Books (Tunisia), paras. 7.328-7.330.
See also Panel Reports, China – X-Ray Equipment, para. 7.267; and EU – Fatty Alcohols (Indonesia),
para. 7.196.
143 See Case C-143/14, TMK Europe GmbH and Hauptzollamt Frankfurt (Oder), 16 April 2015, para. 42.
See also Case C-10/12, Transnational Company 'Kazchrome' AO, 19 December 2013, para. 28; Case C-398/05,
AGST Draht- und Biegetechnik GmbH, 28 February 2008, para. 51; Case C-31/15, Photo USA Electronic
Graphic Inc., 2 June 2016, para. 79; and Case T-157/14, JingAo Solar Co. Ltd., 28 February 2017, para. 196.
144 Comments by interested parties on the Essential Facts Technical Report, (Exhibit EU-17), p. 31.
145 Final Technical Report, (Exhibit EU-4), p. 115.
146 Final Technical Report, (Exhibit EU-4), pp. 99 and 112.

and 6.8, of the Anti-Dumping Agreement and Annex II, paragraphs 3 and 6, thereto. Consequently,
Colombia considers it inappropriate to issue any recommendation under Article 19.1 of the DSU.
12.2. Colombia once again thanks the Panel and the Secretariat for all their work during these
proceedings.

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 62
Annex C-2 Integrated executive summary of the arguments of Japan 64
Annex C-3 Integrated executive summary of the arguments of the United States 69

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
INTRODUCTION
1. Brazil provides the following executive summary of its participation during the panel
proceedings in this dispute.
I. ARGUMENTS
A. Articles 5.2, 5.3, and 5.4 regarding the initiation of an anti-dumping investigation
2. Brazil observes that it is well established under WTO practice that the quantum and quality of
the information necessary for the purpose of initiating an investigation will be less demanding than
that required for a final determination. It is only natural that an investigation will gradually become
more precise and more complex as it advances. In this sense, later findin gs by the responsible
authority cannot serve as a posteriori evidence that the initial investigation had been vitiated.
3. Brazil understands that Article 5.2 demands that the petitioner presents not the best
information reasonably available, but, instead, presents sufficient information reasonably available.
Brazil also recalls that according to the panel in Argentina – Poultry Anti-Dumping Duties
1, Article 5.3 does not impose an obligation on the investigating authority, at that stage, to review
the adequacy and accuracy of those facts per se, but rather to review the sufficiency of the evidence
to justify the initiation of an investigation.
4. Regarding the definition of "product under consideration", Brazil observes that neither
Article 5.3 nor the ADA in general contains a specific methodology that investigating authorities must
follow. However, as stated by the panel in Guatemala – Cement II2, Article 5.3 should be read in
close relationship with Article 5.2, which, by its turn, incl udes the "complete description of the
allegedly dumped products" among the necessary requirements to initiate an investigation. Panels
may assess claims under Article 5.3 in order to assure that an investigating authority has conducted
an objective and unbiased analysis of the facts presented by the petitioners.
5. Regarding Article 5.2 and the expression "where appropriate", Brazil understands that it
should not be interpreted on the basis of Articles 2.1 and 2.2, which concern later stages in the
investigation to which a higher threshold of assessment applies.
6. Finally, in respect to Article 5.4, Brazil considers that investigating authorities may have
discretion to determine whether a trade or industry association is representative of domestic
producers, provided that the criteria in Article 5.4 are observed.
B. Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement regarding confidentiality and
"good cause shown"
7. Brazil understands that "good cause" must be shown by the petitioner before the au thority
deems the information confidential. The Spanish version of the ADA reinforces this perspective, as
8. Nevertheless, Article 6.5 does not prescribe any particular methodology that investigating
authorities should take in order to assess whether "good cause" has been shown. Consequently, the
type of information needed to certify "good cause" may vary from case to case. Brazil considers that
justifications under the examples provided in Article 6.5 ("because its disclosure would be of

1 Panel Report, Argentina – Poultry Anti-Dumping Duties, para 7.60.
2 Panel Report, Guatemala – Cement II, para. 8.35.

significant competitive 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 that refer to a similar or equivalent situation, are indicative of
adequate justification of "good cause shown".
9. Finally, although there is no methodology prescribed regarding "good cause shown" in the
ADA, panels may examine claims under Article 6.5, as decided by the Appellate Body in Korea –
Pneumatic Valves (Japan.)3, in order to assess if investigating authorities properly determined that
"good cause" was appropriately argued and substantiated.
C. Articles 2.1, 6.8 and paragraphs 3 and 6 of Annex II of the Anti-Dumping Agreement
regarding the use of the information provided by the cooperating investigated companies.
10. In Brazil's view, investigating authorities are not entitled to reject information submitted by
interested parties if the conditions of paragraph 3 of Annex II are satisfied, namely that the
information provided is (i) verifi able; (ii) appropriately submitted so that it can be used without
undue difficulties; (iii) supplied in a timely fashion; and, where applicable, (iv) supplied in a medium
computer language requested by the investigating authority.
11. Brazil underscores that the ADA sets a high standard for determining whether an investigating
authority can disregard information provided by cooperating parties, because its rules on the
treatment of information are concerned not only with the level of precision of the inform ation on
which an investigation is based, but also with the guarantee of the due process rights of the parties.
12. Finally, Brazil sustains that what defines the use of "facts available" in an investigation is not
the explicit and formal determination to do so, but rather the de facto procedure that an investigating
authority adopts. Therefore, if an investigating authority does not explicitly mention recourse to
"facts available", but still decides to use information other than that provided in the questionnaires,
that authority shall do so in a manner consistent with Article 6.8 and Annex II of the ADA.
D. Article 5.8 of the Anti -Dumping Agreement and "immediate termination" of
investigations and Article 3.
13. Brazil understands that Article 5.8 requires the immediate termination of the investigation in
respect of an exporter for which an individual margin of dumping of zero or de minimis is found.
Consequently, those exports must also be excluded from the injury and causation analyses under
Article 3.
E. Article 3.4 of the Anti-Dumping Agreement and injury analysis
14. In Brazil's view, Article 3.4 sets forth a non -exhaustive and non -hierarchical list of factors
relevant to the assessment of injury. Nothing in the language therein supports the conclusion that
some factors are inherently and a priori more important than others. In fact, the relevance of each
factor may vary on a case-by-case basis.
15. Additionally, Brazil sustains that investigating authorities must present an unbiased and
objective examination of relevant factors, regardless of their favorable or unfavorable trend, in order
to reach a balanced and unbiased evaluation of injury factors.

3 Appellate Body Report, Korea – Pneumatic Valves (Japan), para. 5.399.

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. ARGUMENTS RELATING TO THE DUMPING DETERMINATION
A. Use of Facts Available under Article 6.8 and Annex II of the
Anti-Dumping Agreement
1. Japan agrees with the EU that investigating authorities should as much as possible use the
primary information submitted by interested parties, and should not resort to other secondary
sources of information.
2. First, Japan agrees there is an important distinction between primary source information and
secondary source information when applying facts available. To the extent that an
investigating authority has requested the information about export prices from exporters, the
exporters become the primary source of such information. As Article 6.8 stipulates, if the
exporters refuse access to, or otherwise do not pro vide, necessary information within a
reasonable period or significantly impede the investigation, then Annex II must be applied to
reject and replace that information. Thus, if an investigating authority does not rely on such
information submitted by the e xporters, the authority must comply with the requirements
stated in Article 6.8 and Annex II of the Anti-Dumping Agreement.
3. The information from the exporters themselves responding to the questionnaire is the most
probative information about the specific export transactions (including export price) for each
such exporter. Information sourced from databases (including custom data) may be collected
for different purposes and with different coverage. The key is the source's proximity to the
original source of the relevant information.
4. As to the criteria for when an investigating authority shall take into account the information
actually submitted by an interested party or not, the Anti -Dumping Agreement is clear.
Paragraph 3 of Annex II requires that the information must be: (a) "verifiable",
(b) "appropriately submitted so that it can be used … without undue difficulties", (c) "supplied
in a timely fashion", and (d) "where applicable, … supplied in a medium or computer language
requested by the authorities". In US ‒ Hot-Rolled Steel, the Appellate Body explained that if
the conditions are satisfied, "investigating authorities are not entitled to reject information
submitted" by interested parties, and cannot use facts available.1
5. Second, Japan considers that the investigating authority must communicate to the interested
party specifically and clearly what is the "necessary information" requested, and what
problems (if any) may exist with that information. "Necessary information" relates to specific
information held by an interested party that is requested by an authority for the purpose of
making determinations.2
6. Japan considers that this finding applies when an investigating authority establishes certain
parameters, methodology or specific requi rements for "necessary information" during the
investigation, or changes them during the investigation. The investigating authority cannot
collect information from different sources and then pick what it likes best.
7. Third, Japan notes that Article 6.8 a nd Annex II apply regardless of whether or not the
investigating authority chooses to categorize its approach as "recourse to the 'facts available'
mechanism". An investigating authority does not have discretion to ignore these requirements
simply by avoiding the use of the words "facts available" in explaining its conduct instead of
declaring that it relied on facts available. When an investigating authority does not rely on the

1 Appellate Body Report, US – Hot-Rolled Steel, para. 81.
2 Panel Reports, Korea – Stainless Steel Bars, para. 7.185; EC – Salmon (Norway), para. 7.343.

requested primary source information, Article 6.8 specifically provides that "[t]he provision of
Annex II shall be observed in the application of this paragraph". (emphasis added)
8. While Colombia cites Ukraine ‒ Ammonium Nitrate in this regard, this finding does not provide
guidance for this dispute. In that earlier dispute, the p anel found that Russia failed to show
that the Ukrainian investigating authority had actually resorted to facts available under
Article 6.8, since the authority specifically referred to Article 2.2.1.1 of the
Anti-Dumping Agreement as the basis for its det ermination. This provision provided an
independent legal basis for choosing factual information separate from Article 6.8 and
Annex II. Therefore, that decision does not apply here, where the investigating authority did
not refer explicitly to any specific provision about the selection of information as being the
basis for their rejection.
B. Price Information under Article 2 of the Anti-Dumping Agreement
9. Japan believes that MINCIT's refusal to take into account product differences among different
product types cannot be justified just because the second source information used for export
price did not provide distinctions based on product type.
10. In this regard, the parties seem to agree that there is no methodological guidance in Article 2.4
specifically as to how due allowance for differences affecting price comparability is to be made.
Japan considers that comparison methodologies used in specific cases may have certain
restrictions depending on the nature of particular price information to be compared. But the
investigating authority cannot itself create an information gap, and then use that self-created
gap to justify a refusal to make due allowance. The underlying primary source information
from the exporters would have permitted a comparison based on different product types, but
that information was unavailable only because of the flawed application of "facts available" as
discussed in the prior section.
11. To the extent that the export price sourced from custom declarations does not comp ly with
Article 6.8 and Annex II, irrespective of any violation of Article 2.4, Japan agrees with the EU
that the export price which is based on an incorrect and legally flawed information source
could not constitute a proper basis for dumping calculation under Article 2.1 of the
Anti-Dumping Agreement, and thus the use of such incorrect information is inconsistent with
Article 2.1 as well.
II. ARGUMENTS RELATING TO THE INJURY DETERMINATION
12. Japan agrees with the EU that any exporter under investigation not dumping or found to be
below de minimis threshold must be excluded from the injury and causation analysis under
Article 3 of the Anti-Dumping Agreement. If that exporter's sales as a whole are found not to
be dumped, as a legal matter that exporter has not been dumping at all.
13. The relevant text clearly supports this understanding. The first sentence of Article VI:1 of the
General Agreement on Tariffs and Trade 1994 ("GATT 1994") provides that "dumping … is to
be condemned if it causes … material inj ury" (emphasis added ). The second sentence of
Article VI:1 goes on to clarify that this "dumping" occurs only when the "a product" is being
introduced at less than its normal value. Article 2.1 of the Anti-Dumping Agreement repeats
this definition of when "a product" can be deemed as "dumped". The dumping must therefore
be linked to the specific product that is being dumped.
14. Articles 3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement consistently provide that the
relevant analyses shall be conducted for "the dumped imports". The analysis must be on the
volume of the "dumped imports" under Article 3.1 and Article 3.2, first sentence. The analysis
must be on the price effects of the "dumped imports" under Article 3.1 and Article 3.2,
second sentence. The impact on the domestic industry must be of "the dumped imports" under
Article 3.1 and Article 3.4, first sentence. Finally, Article 3.5, first sentence, then stresses that
"the dumped imports" ‒ particularly the "effects of dumping" ‒ are causing the injury. The
repeated emphasis on "dumped imports" ‒ and not all imports ‒ sets forth a clear and
unambiguous limiting principle on the basis for an injury finding under Article 3.

15. Accordingly, du mped imports should not be condemned for material injury that is not
attributable to those dumped imports. If the subject goods being assessed for possible injury
include non-dumped imports, the goods being analyzed are over-inclusive. And the injury and
causation analysis of more than just the "dumped imports" departs from the text of Article 3
and creates the risk of false attribution of the injury to the domestic industry to goods that
are in fact not "dumped" rather than just to the "dumped imports" tha t are properly subject
to the anti-dumping duties.
16. Previous findings by the Appellate Body and panels underline this understanding. In
EC – Bed Linen (Article 21.5 ‒ India), the Appellate Body confirmed that "[n]one of these
provisions of the Anti -Dumping Agreement can be construed to suggest that Members may
include in the volume of dumped imports the imports from producers that are not found to be
dumping".3 The panel in EC ‒ Fasteners (China) found that "[t]he text of the AD Agreement is
perfectly clear in this regard … the consideration of 'dumped imports' for purposes of making
an injury determination consistent with Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement
entails the consideration of only those imports for which a margin of dumping grea ter than
de minimis is established in the course of the investigation".4
17. These prior decisions reflect the basic idea of anti-dumping disciplines that all exporters found
not to be exporting "dumped" goods are required to be excluded from the scope of
investigation. There is no basis for including exporters found not to be dumping just because
their export volume is smaller than other exporters. The analysis must exclude those exporters
found not to be dumping, regardless of their relative share of the market. The authority cannot
ignore the provision of Article 5.8 that certain levels of below normal value pricing are
considered legally de minimis and should not be considered to be "dumped". The references
in Articles 3.1, 3.2, 3.4 and 3.5 are all to " dumped imports", and it makes no sense to read
these provisions to include imports from those exporters affirmatively found not to be
dumping. That some exporters in a country are found to be dumping does not establish that
all exports from that country should be deemed as dumped.
18. Japan considers that Article 5.8 provides important context that supports this interpretation.
The text of Article 5.8 as interpreted by the Appellate Body demonstrates that an individual
exporter for which a margin of dumping of zero or de minimis is determined should be
excluded from the investigation as a whole. The rationale for such complete exclusion from
the remaining stages of the investigation is that imports from such exporter with a margin of
dumping of zero or de minimis cannot be considered as "dumped" in that investigation.
19. Moreover, Japan does not consider that the term "dumped imports" in Article 3 admits more
than one permissible interpretation within the meaning of Article 17.6(ii). That Colombia can
craft a possible interpretation does not make a flawed interpretation permissible. An
interpretation that uses context to obscure the plain meaning of the text, that using other
agreements to obscure the meaning of the Anti-Dumping Agreement, and relies on negotiating
history does not create a permissible interpretation of the text.
20. Beyond these comments on the proper scope of the injury investigation, Japan would also like
to make a general observation about the structure of inj ury determinations under Article 3.
Article 3 of the Anti -Dumping Agreement (titled "Determination of Injury") contains several
paragraphs setting out an investigating authority's obligations with regard to various aspects
of an injury determination in anti-dumping investigations.
21. As the Appellate Body said in China ‒ GOES, various paragraphs of Article 3 "contemplate a
logical progression of inquiry leading to an investigating authority's ultimate injury and
causation determination".5 The inquiry set forth in Article 3.2 and the examination required
under Article 3.4 "are necessary in order to answer the ultimate question" in Article 3.5 "as to
whether subject imports are causing injury to the domestic industry".6

3 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 112.
4 Panel Reports, EC – Fasteners (China), para. 7.354; EC – Salmon (Norway), para. 7.625; Argentina –
5 Appellate Body Report, China – GOES, para. 128.
6 Ibid. paras. 128, 143 and 149.

22. Based on this ov erall structure of Article 3, Japan agrees with EU's general arguments that,
for the injury determination to be reasoned and adequate, and based on positive evidence
and an objective assessment as required under Article 3.1, each step under Articles 3.2, 3.4
and 3.5 must consist a logical progression leading to an ultimate injury and causation
determination. Each analytic step needs to be logically consistent, and reasonably supports
the final conclusion of injury and causation. The reasoning must be internally consistent, must
consider all of the relevant evidence, and must establish the required "causal relationship"
between the dumped imports and the injury.
23. With regard to Article 3.2 specifically, the analysis of price effects must reflect the dynami cs
of how prices change over time and must show how the adverse price domestic trends are
"the effect of" the import prices. As the Appellate Body has stressed, it is critical to assess
"how these prices interact over time".7 The broader the time periods considered, the less likely
the analysis will reveal what is truly important for the analysis under Article 3.2.
24. Turning next to Article 3.4, a finding of material injury must rest on an actual "evaluation" of
all of the e numerated factors, and not just a list of them. This evaluation needs to serve as
the "meaningful basis" for the eventual finding of causation under Article 3.5.8 A mere listing
of positive factors without any discussion will rarely be sufficient.
25. Finally, with regard to Article 3.5, the text requires careful analysis and not simplistic
conclusions. The investigating authority must provide written analysis that shows how it
"demonstrated" the causal link based on a careful "examination" of the record. It is not enough
to note a mere correlation, or to assert a connection that has not actually been demonstrated
through careful examination of "all relevant evidence", including contrary evidence. That is
precisely why Article 3.5 specifically requires that other factors be examined, and they "must
not be attributed" to the dumped imports. For the non-attribution analysis, it is not enough to
describe other factors, and then to dismiss them without a complete and adequate explanation
why.
26. These specific obligations are important both individually, and in how they fit together. The
overall finding that dumped imports caused injury under Article 3 must tie these different
elements into an internally consistent, persuasive, fact -based written explanation by the
investigating authority. Japan understands that this is the logical progression contemplated in
Article 3, as found by the Appellate Body.
III. ARGUMENTS RELATING TO THE CONFIDENTIAL INFORMATION
27. First, with regard to the required level of identific ation of information for claims under
Articles 6.5 and 6.5.1, Japan considers that the burden to identify the relevant information is
on a claimant so that a respondent can duly provide its rebuttal and panels can then resolve
any disputes. Having said that, Japan does not consider that a claimant must always prepare
separate lists of items of relevant information for the purpose of identification, as Colombia
suggests. How a claimant identifies the relevant information for claims under Articles 6.5
and 6.5.1 depends on the particular circumstances of each case, and needs case -by-case
analysis.
28. Second, Japan would like to comment on the legal standard and elements under these
provisions regarding the "good cause" to be shown and the non-confidential summaries to be
provided. Japan considers that, while the confidentiality of information submitted by the
interested parties should be fully respected, when an investigating authority is allowed to treat
as confidential the information submitted by applicant(s ) without confirming and assessing
the good cause shown or requiring non -confidential summaries, other interested parties
cannot have a clear understanding about the information against which they need to defend
their interests. Such defects will deprive the interested parties of due process.
29. More specifically, with regard to Article 6.5, the Appellate Body has further clarified that the
alleged "good cause" must constitute "a reason sufficient to justify the withholding of

7 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.160.
8 Appellate Body Report, China – GOES, paras. 145 and 154 (quoted in Appellate Body Reports, China –
HP-SSST (Japan) / China – HP-SSST (EU), para. 5.211).

information from both the pub lic and from the other parties interested in the investigation",
who would otherwise have a right to view this information under Article 6.9
30. Considering the balance between protecting the confidentiality of the information and the due
process rights of the interested parties, even when commercial and financial information of a
domestic producer is supported with a "good cause" shown and can be treated as confidential
information, such information should not be simply redacted. Instead, investigating authorities
should provide certain narratives or alternative summary presentations of numerical
information (such as certain indexes) that represent the original information so that the
interested parties can understand from such narrative or summary whether the original
information is correct or whether the original information can actually support the particular
arguments or findings based on such summarized information, in light of the particular context
of the information. In other words, the interested parties need sufficiently detailed summaries
of the original information to be able to gain a reasonable understanding of the content and
to defend their interests. In this regard, Japan does not think that the "numerical" or
"individualized" nature of info rmation necessarily prevents it from being
summarized/supplemented by certain narratives or indexes in every case.
31. Even in cases where it was not possible for a relevant interested party to furnish a
non-confidential summary for such information, the investigating authority must ensure that
the interested party who submitted the relevant information identify the exceptional
circumstances excusing this failure, provide a statement explaining the reasons why
summarization was not possible, and scrutinize such statements to determine whether they
established exceptional circumstances and whether the reasons given appropriately explained
why, under the circumstances, no summary that permitted a reasonable understanding of the
information's substance was possible.
32. These obligations imply that, if "good cause" has not already been shown, the investigating
authority must make a request to the submitting party to do so. Japan considers that the
aforementioned obligation of an investigating authority to scruti nize the party's showing of
the good cause would require "the party's showing" of the good cause as a prerequisite, and
thus would necessarily entail an obligation to request that the submitting party show the
good cause if it had not otherwise done so whe n originally submitting the information. The
text requires the good cause to be "shown", and not just found. Accordingly, someone must
"show" the good cause, and contextually the person making the request is logically in the best
position to make that show ing. The investigating authority should be neutral between the
differing perspectives of the parties, and cannot make the case for the submitting party when
the submitting party did not seek to establish good cause.

9 Appellate Body Report, EC – Fasteners (China), para. 537.

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. CLAIMS RELATING TO THE DUMPING DETERMINATION
1. Article 2.1 is a definitional provision that, "read in isolation, do[es] not impose independent
obligations." The definitions set out in Article 2.1 certainly play an important role in the interpretation
of other provisions of the Anti-Dumping Agreement, but they do not specify how "export price" is to
be determined. The determination of export price is governed by Articles 2.3 and 2.4 of the
Anti-Dumping Agreement.
2. Article 6.8 and Annex II set out the conditions in which an investigating authority may make
a determination on the basis of facts available. Although the conditions set out in Article 6.8 and
Annex II play an important role in defining when "preliminary and final determinations, affirmative
or negative, may be made on the basis of the facts available" , Article 6.8 and Annex II also do not
specify how "expor t price" is to be determined. Therefore, Article 2.1 does not impose an
independent obligation on Members regarding the determination of "export price" , and Article 6.8
and Annex II do not address how "export price" is to be determined.
3. Next, Article 6.8 permits an investigating authority to make a determination on the basis of
facts available when an interested party refuses access to, or otherwise does not provide,
information that is necessary to an investigation within a reasonable period of time, or significantly
impedes the investigation.
4. Annex II, paragraph 3, contains a number of conditions which, if met, indicate to an
investigating authority that submitted information "should be taken into account when
determinations are made" provided that the information is: (1) "verifiable"; (2) "appropriately
submitted so that it can be used without undue difficulties"; (3) "supplied in a timely fashion"; and
(4) where applicable, "supplied in a medium or compute r language requested by the
authorities." If the information submitted by the interested party fails to meet one of the conditions
set out in paragraph 3, neither Article 6.8 or Annex II indicate that the investigating authority should
take into account that information.
5. Annex II, paragraph 6, uses similar language: If the information submitted by an interested
party is not accepted by the investigating authority, then "the supplying party should be informed
forthwith of the reasons therefor, and should have any opportunity to provide further explanations
within a reasonable period … ". If the interested party provides further explanations and the authority
does not consider those explanations satisfactory, "the reasons for the rejection of such evidence or
information should be given in any published determinations." Therefore, while the text of Annex II,
paragraphs 3 and 6, urge the investigating authority to take into account, or not disregard,
information on the record that meets the criteria of those provisions, the ordinary meaning of these
provisions does not require Members to utilize that information.
6. In sum, the Anti-Dumping Agreement provides that when an interested party refuses access
to, or otherwise does not supply necessary info rmation, or significantly impedes the investigation,
the investigating authority may resort to the facts available to make its determination. However,
where information is provided that is verifiable, appropriately submitted so that it can be used
without undue difficulty, supplied in a timely fashion, and, where applicable, supplied in the
requested medium, this information should be taken into account.
7. Finally, Article 2.4 obligates an investigating authority to make a "fair comparison" between
the export price and the normal value when determining the existence of dumping and calculating
a dumping margin. The text of Article 2.4 presupposes that the appropriate normal value has been
identified. Once normal value and export price have been established, the investigating authority is
required to select the proper sales for comparison (sales at the same level of trade and as nearly as
possible the same time) and make appropriate adjustments to those sales (due allowances for
differences which affect price comparability).

8. However, if the exporters have not provided evidence demonstrating to the authorities that
there is a difference affecting price comparability, or argument demonstrating that existing
information on the record reflects a difference affecting price comparability, there would be no basis
for the investigating authority to make an adjustment and no requirement to do so. An authority
thus is not obligated to accept a request for an adjustment that is unsubstantiated.
9. A determination of whe ther the obligation in Article 2.4 has been met will depend on the
specific facts and circumstances at issue. Therefore, consistent with Article 11 of the DSU and
Article 17.6(i) of the Anti -Dumping Agreement, the question of whether Colombia failed to mak e
reasonable adjustments will depend on whether the Panel determines that the European Union has
shown that MINCIT's findings could not have been made by an unbiased and objective investigating
authority.
II. CLAIMS RELATING TO THE INJURY AND CAUSATION DETERMINATIONS
10. Article 3 focuses on the investigating authority's injury analysis of the effect or impact of
"the dumped imports" . Article 2.1 defines dumped products, "[f]or the purposes of
[the Anti-Dumping] Agreement", on a countrywide basis. The references to "the dumped imports"
throughout Article 3 therefore concern all imports of the product from the countries subject to the
investigation.
11. Article 5.8, however, requires an authority to terminate an anti -dumping investigation with
respect to any exporter or producer for which an individual margin of dumping is determined to be
zero or de minimis. Therefore, once a zero or de minimis margin has been finally determined for a
particular exporter or producer, the inve stigation must be terminated in all aspects, including the
exclusion of the imports of that exporter or producer from the authority's injury analysis of the effect
or impact of "the dumped imports".
12. The United States recalls that prior disputes have addressed this issue. In Argentina – Poultry
Anti-Dumping Duties , the panel considered that "the ordinary meaning of … the term
'dumped imports' [in Article 3] refers to all imports attributable to producers or exporters for which
a margin of dumping greater than de minimis has been calculated. The term 'dumped imports'
excludes imports from producers/exporters found in the course of the investigation not to have
dumped". According to the panel, the investigating authority's failure to exclude the imports of
two companies found not to have been dumped breached Articles 3.1, 3.2, 3.4, and 3.5 of the
Anti-Dumping Agreement. In addition, the Appellate Body in EC – Bed Linen (Article 21.5 – India)
recognized that "whatever methodology investigating authorities choose for determining the volume
of dumped imports, if that methodology fails to ensure that a determination of injury is made on the
basis of 'positive evidence' and involves an 'objective examination' of dumped imports ‒ rather than
imports that are found not to be dumped ‒ it is not consistent with paragraphs 1 and 2 of Article 3".
13. For the above reasons, the United States agrees that the references to "the dumped imports"
throughout Article 3 exclude the imports of any exporter or producer for which an individual margin
of dumping is determined to be zero or de minimis.
14. Next, Article 3.4 mandates that "[t]he examination of the impact of dumped imports on the
domestic industry concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industry" and lists specific economic factors to be evaluated.
Article 3.4 indicates that its list of factors and indices "is not exhaustive, nor can one or several of
these factors necessarily give decisive guidance".
15. Article 3.4 does not dictate the methodology that should be employed in conducting the
examination of the impact of dumped imports on the domestic industry, or the manner in which the
results of this examination are to be set out in the record of the investigation. A determination,
through its demonstration of why the authority relied on the specific factors it found to be material
in the case, may disclose why other factors on which it did not make specific findings were accorded
little weight or deemed not relevant.
16. Finally, nothing in Article 3.4 requires an authority to reach a negative determination of injury
merely because a domestic industry has r eported a number of positive or improving economic
indicators during the period of investigation. Nor does it follow as matter of logic from a conclusion

that an industry is being injured that every indicator must be negative. As the panel in EU – Footwear
(China) reasoned, "it [is] clear that it is not necessary that all relevant factors, or even most or a
majority of them, show negative developments in order for an investigating authority to make a
determination of injury" . An authority thus is not requir ed to find that a certain number of injury
factors declined during the period of investigation in order to make an affirmative determination of
injury.
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT
17. Article 3.1 sets forth two overarching obligati ons. The first obligation is that the injury
determination must be based on "positive evidence" . The second obligation is that the injury
determination must involve an "objective examination" of the volume of the dumped imports, their
price effects, and their impact on the domestic industry.
18. Although Article 3.1 indicates that these obligations extend to every aspect of an investigating
authority's injury analysis, Article 3.1 does not articulate the analysis that an authority must
undertake to determin e whether the "volume of the dumped imports" , "the effect of the dumped
imports on prices in the domestic market for like products" , or "the consequent impact of these
imports on domestic producers of such products" , cause injury. It is the succeeding paragraphs –
Articles 3.2, 3.4, and 3.5 – that do so.
19. For example, Article 3.2 addresses the investigating authority's consideration "[w]ith regard
to the volume of the dumped imports" and "[w]ith regard to the effect of the dumped imports on
price". Article 3.4 discusses the factors that an authority should evaluate in examining the impact of
dumped imports on the domestic industry. A nd Article 3.5 specifically addresses the causation and
non-attribution analyses.
20. The references to "the dumped imports" throughout Article 3 exclude the imports of any
exporter or producer for which an individual margin of dumping is determined to be zero or
de minimis. However, while it is true that an investigating authority breaching one or more of the
obligations of Articles 3.2, 3.4, and 3.5 consequentially breaches Article 3.1, it is not necessarily
true that an authority breaching one or more of the obligations of Article 3.1 consequentially
breaches Articles 3.2, 3.4, and 3.5.
EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS
I. CLAIMS UNDER ARTICLE 5.3
21. Article 5.4 provides that an investigation shall not be initiated unless the a uthority has
determined that the application for relief has been made by or on behalf of the domestic industry.
Therefore, whenever an application is submitted by an entity on behalf of the domestic industry, an
authority may initiate an investigation only after it has determined that the application is supported
by the domestic industry according to the requirements set out in Article 5.4.
22. Under Article 5.2, when an entity files an application "on behalf of the domestic industry,
the application shall identify the industry on behalf of which the application is made by a list of all
known domestic producers of the like product (or associations of domestic producers of the like
product)". Article 5.2 makes clear that "[s]imple assertion [in the applicatio n], unsubstantiated by
relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph" .
Further, under Article 5.3, an investigating authority must "examine the accuracy and adequacy of
the evidence provided in the application to determine whether there is sufficient evidence to justify
the initiation of an investigation" . Therefore, the operative standard by which an authority shall
determine under Article 5.4 whether an entity's application has been made on behalf of the domestic
industry is "sufficient evidence".
23. The ordinary meaning of the term "sufficient" is defined, in part, as "[a]dequate (esp. in
quantity or extent) for a certain purpose; enough ( for a person or thing, to do something)".
Article 5.3 requires an authority to "examine the accuracy and adequacy of the evidence provided
in the application to determine whether there is sufficient evidence to justify the initiation of an
investigation". Article 6.6 indicates that "[e]xcept in circumstances provided for in [Article 6.8
regarding the use of facts available], 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". Therefore, to the extent an authority relies upon representations by a trade or
business association regarding the support for an application, that authority must satisfy itself as to
the accuracy and adequacy of those representations. Where it does so, an a uthority has acted
consistent with the obligations set out in Article 5.4.
24. Finally, the term "where appropriate" should be interpreted in the context of the introductory
clause of Article 5.2, which states that "[t]he application shall contain such inf ormation as is
reasonably available to the applicant". The information provided in an application need not be of the
same quantity or quality that would be necessary to make a preliminary or final determination. The
term "where appropriate" in Article 5.2(iii) thus anticipates that there may be circumstances in which
it is "appropriate" for the applicant to submit third -country sales or constructed value data in its
application as evidence of normal value.
II. CLAIMS UNDER ARTICLES 6.5 AND 6.5.1
25. The language of Article 6.5 does not obligate an authority to "request" that a party providing
information show good cause that the information should be accorded confidential treatment. As the
panel in EU – Footwear (China) recognized, "there is nothing in Article 6.5 which would require any
particular form or means for showing good cause, or any particular type or degree of supporting
evidence which must be provided" and "the nature of the showing that will be sufficient to satisfy
the 'good cause' requirement w ill vary, depending on the nature of the information for which
confidential treatment is sought" . The panel in Korea – Stainless Steel Bars further observed that
"Article 6.5 does not specify the manner in which 'good cause' is to be established. This lack of
specificity necessarily means that the exact manner in which 'good cause' should be established is
not prescribed". Instead, "the nature and the degree of the requirement to show good cause depends
on the information concerned".
III. CLAIMS UNDER ARTICLE 2.1, ARTICLE 6.8, AND ANNEX II
26. Article 6.8 and Annex II establish the expectation that an investigating authority will use the
information that it requires from an interested party to the extent that such information can be used.
Article 6.8 indicates that an authority may make a determination based on information not provided
by an interested party, but only where the "interested party refuses access to, or otherwise does
not provide, necessary information within a reasonable period or significantly impedes the
investigation". Paragraph 1 of Annex II indicates that an authority should "specify in detail the
information required from any interested party" and "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" . Therefore, given Article 6.8 and paragraph 1 of
Annex II, where an interested party provides access to necessary information within a reasonable
period of time and d oes not otherwise significantly impede an investigation, the information so
provided should be used by the authority.
27. Paragraphs 5 and 6 of Annex II further indicate that an authority should not arbitrarily
disregard the information provided by an inte rested party. According to paragraph 5, even when
such information "may not be ideal in all respects, this should not justify the authorities from
disregarding it, provided the interested party has acted to the best of its ability" . Meanwhile,
paragraph 6 notes that where "the evidence or information is not accepted, the supplying party
should be informed of the reasons therefor, and should have the opportunity to provide further
explanations within a reasonable period".
28. In sum, an investigating authority should begin its calculation with an examination of the sales
transaction data submitted by the interested parties in response to the authority's request for this
information absent a finding that this information could not be used for the reasons set f orth in
Article 6.8 and Annex II. The Anti-Dumping Agreement establishes the expectation that an authority
will use the information that it requires from an interested party, even if that information is not ideal
in all respects. The fact that an authority makes no explicit and formal determination about the use
of facts available does not release it from this requirement.

IV. CLAIMS UNDER ARTICLE 3 AND ARTICLE 3.4
29. Article 5.8 requires an authority to terminate an anti -dumping investigation where it
determines the margin of dumping is de minimis. Since the Article 3 injury determination can only
be rendered as part of an "investigation" , once an investigation has been terminated under
Article 5.8, the vehicle for making any injury determination likewise terminates. Therefore, where
an authority terminates an investigation of a country, producer, or exporter under Article 5.8 based
on a determination that the margin of dumping is de minimis, this termination results in the exclusion
of the imports of that country, producer, or exporter from the injury analysis under Article 3 of the
effect or impact of "the dumped imports".
30. Article 3.4 mandates that "[t]he examination of the impact of dumped imports on the domestic
industry concerned shall include an evaluation of all relevant economic factors and indices having a
bearing on the state of the industry" and lists specific economic factors to be evaluated. Compliance
with Article 3.4 requires the collection of a broad range of information concerning domestic industry
performance, including sales, profits, output, market share, productivity, return on investments,
utilization of capacity, cash flow, inventories, employment, wages, growth, and ability to raise capital
or investments.
31. Article 3.4 indicates that its list of factors and indices "is not exhaustive, nor can one or several
of these factors necessarily give decisive guidance". Nothing in Article 3.4, or any other provision of
the Agreement, provide further guidanc e on which factors may "give decisive guidance" as to the
impact of dumped imports on the domestic industry. Article 3.4 also does not dictate the
methodology that should be employed by the authority, or the manner in which the results of this
evaluation are to be set out. Accordingly, none of the factors listed in Article 3.4 is "key" relative to
any of the other factors listed in this provision. Indeed, the importance of certain factors may vary
significantly from case to case, and the relative weight that an authority may give to certain factors
in an investigation has no bearing on their importance vis -à-vis other factors addressed in
Article 3.4.
32. Finally, Article 3.4 does not require an authority to explicitly analyze the impact of each of the
factors with a "trend favourable" for the domestic industry as part of its injury analysis. For example,
in EC – Tube or Pipe Fittings , the Appellate Body report explained that an investigating authority
need not make specific findings for every factor set forth in Article 3.4. The report went on to observe
that, while it is mandatory to evaluate all fifteen factors set forth in Article 3.4, "because Articles 3.1
and 3.4 do not regulate the manner in which the results of the analysis of each injury factor are to
be set out in the published documents, … it is not required that in every anti-dumping investigation
a separate record be made of the evaluation of each of the injury factors listed in Article 3.4".