EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA
Document: Request for Consultations
Date: 1 November 2013
Document codes: WT/DS397/17
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

EUROPEAN COMMUNITIES – DEFINITIVE ANTI-DUMPING MEASURES
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CHINA
Request for Consultations
The following communication, dated 30 October 2013, from the delegation of China to the
delegation of the European Union and to the Chairperson of the Dispute Settlement Body, is
circulated in accordance with Article 21.5 of the DSU.

 My authorities have instructed me to reques t consultations with the European Union ("EU")
pursuant to Articles 21.5 and 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXIII:1 of the General Agreement on Tariffs and
Trade 1994 ("GATT 1994"), Article 17 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 ("AD Agreement") and paragraph 1 of the Agreed
Procedures under Articles 21 and 22 of the Dispute Settlement Understanding between China and
the EU1 with respect to the issues identified below.

1 BACKGROUND TO THIS REQUEST
1. On 28 July 2011, the Dispute Settlement Body ("DSB") adopted the Appellate Body report
and the Panel report, as modified by the Appellate Body report, in European Communities –
Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397)
(EC – Fasteners).
2

2. These reports concluded that Article 9(5) of Council Regulation (EC) No. 1225/2009 of
30 November 2009 (the "Basic AD Regulation") was inconsistent "as such" with Article 6.10,
Article 9.2 and Article 18.4 of the AD Agreement and Article XVI:4 of the Agreement establishing
the ("WTO Agreement") and that Council Regulation (EC) No. 91/2009 of
26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel
fasteners originating in China was inconsistent with several requirements of the AD Agreement. In
accordance with these reports, the DSB recommended that the EU bring its measures found to be
inconsistent with the AD Agreement and the WTO Agreement into conformity with its obligations
under those Agreements.

3. On 18 August 2011, the EU informed the DSB that it intended to implement the
recommendations and rulings of the DSB in a manner that respects its WTO obligations within a
reasonable period of time.
3 The EU reconfirmed this intention at the DSB meeting of
2 September 2011.4

4. By communication of 19 January 2012, China and the EU informed the DSB that they had
reached an agreement, pursuant to Article 21.3(b) of the DSU, as to the reasonable period of time

1 WT/DS397/16.
2 WT/DSB/M/301.
3 WT/DS397/12.
4 WT/DSB/M/302.

for the implementation of the DSB recommendations and rulings in that case. 5 Pursuant to the
agreement, the reasonable period of time was 14 months and two weeks as from the date of
adoption of the DSB recommendations and rulings. The reasonable period of time thus ended on
12 October 2012.

5. On 25 October 2012, China and the EU info rmed the DSB that they concluded "Agreed
Procedures under Articles 21 and 22 of the Dispute Settlement Understanding."
6

2 IMPLEMENTATION ACTION DECLARED BY THE EUROPEAN UNION
6. On 11 October 2012, the EU stated 7 that it had adopted measures necessary to comply with
the recommendations of the DSB and, in particular, identified the following measures.

7. Regarding the recommendations and rulings of the DSB relating to Article 9(5) "as such" of
Council Regulation (EC) No. 1225/2009 of 30 Nove mber 2009 on protection against dumped
imports from countries not members of the European Community ("the Basic AD Regulation"), the
EU indicated that it had adopted Regulation (EU) No. 765/2012 of the European Parliament and of
the Council of 13 June 2012 amending Council Regulation (EC) No. 1225/2009 on protection
against dumped imports from countries not members of the EC. 8 Regulation (EU) No. 765/2012
modified Article 9(5) of the Basic AD Regulation which had been found by the Appellate Body to be
inconsistent with Articles 6.10, 9.2 and 18.4 of the AD Agreement and Article XVI:4 of the
WTO Agreement.

8. As to the recommendations and rulings of the DSB relating to Council Regulation
(EC) No. 91/2009 of 26 January 2009 imposing a de finitive anti-dumping duty on imports of
certain iron or steel fasteners originating in China, a review was initiated by the publication of a
Notice of Initiation in the Official Journal of the European Union on 6 March 2012.
9 The review led
to the adoption of Council Implementing Re gulation (EU) No. 924/2012 of 4 October 2012 10
amending Regulation (EC) No. 91/2009 imposing a definitive anti-dumping duty on imports of
certain iron or steel fasteners originating in the People's Republic of China, which had been found
by the Panel and the Appellate Body to be inconsiste nt with Articles 6.10, 9.2, 6.4, 6.2, 2.4, 4.1,
3.1, 3.2, 3.5, 6.5 and 6.5.1 of the AD Agreement.

3 MEASURES AT ISSUE AND CLAIMS RAISED IN THESE PROCEEDINGS
9. China considers that the measures taken by the EU have failed to bring the EU into
compliance with its obligations under the AD Agreement and the GATT 1994. In particular,
China considers that the measure taken by the EU to implement the recommendations and rulings
of the DSB in relation to the anti-dumping duties on imports of certain iron or steel fasteners
originating in China through Council Regulation (EU) No. 924/2012 of 4 October 2012 does not
fully and correctly implement the recommendations and rulings of the DSB and that it is not
consistent with various provisions of the AD Agreement and of the GATT 1994 including:

(1) Articles 6.4 and 6.2 of the AD Agreemen t because the EU failed to provide to the
interested parties a full opportunity for the defence of their interests and because the
EU did not provide timely opportunities for interested parties to see all information
that was not confidential as defined in Article 6.5, that was relevant to defend their
interests and that was used by the authority in the anti-dumping investigation with
regard to, inter alia, the products sold by the Indian producer;

5 WT/DS397/14.
6 WT/DS397/16.
7 WT/DS397/15/Add.3.
8 Regulation (EU) No. 765/2012 of the European Union and of the Council of 13 June 2012 amending
Council Regulation (EC) No. 1225/2009 on protection against dumped imports from countries not members of
the EC, OJEU L 237, 3.9.2012, p. 1.
9 Notice regarding the anti-dumping measures in force on imports of certain iron or steel fasteners
originating in the People's Republic of China, following the recommendations and rulings adopted by the
Dispute Settlement Body of the World Trade Organization on 28 July 2011 in the EC – Fasteners
dispute (DS397), OJEU C 66, 6.3.2012, p. 29.
10 Council Implementing Regulation (EU) No. 924/2012 of 4 October 2012 amending Regulation
(EC) No. 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners
originating in the People's Republic of China, OJEU L 275, 10.10.2012, p. 1.

(2) Article 6.5 of the AD Agreement because the EU treated as "confidential" information
concerning the products sold by the Indian producer in the absence of good cause
shown and Article 6.5.1 of the AD Agreemen t to the extent that the EU failed to
require the Indian analogue producer to provide non-confidential summaries of the
information provided on an allegedly confidential basis in sufficient detail to enable a
reasonable understanding of the substance of such information;

(3) Article 2.4 of the AD Agreement because the EU failed to indicate to the parties in
question what information was necessary to ensure a fair comparison, in particular
since the EU failed to provide information on the products sold by the Indian producer
which was used for the normal value determin ation and since the EU failed to indicate
to the parties what information was necessary to substantiate their requests for
adjustments;

(4) Article 2.4 of the AD Agreement because the EU failed to ensure that the export price
of standard fasteners manufactured by the Chinese exporting producers was not
compared to the normal value of special fasteners;

(5) Article 2.4 of the AD Agreement and Article VI:1 of the GATT 1994 because the
EU failed to make allowances for differences affecting price comparability;

(6) Articles 2.1, 2.4, 2.4.2 and 9.3 of the AD Agreement and Article VI:1 and Article VI:2
of the GATT 1994 because the EU failed to calculate a dumping margin on the basis of
all comparable export transactions and in imposing anti-dumping duties on this basis;
and

(7) Articles 4.1 and 3.1 of the AD Agreemen t because the EU re-defined the domestic
industry by merely using the data of the EU producers which had come forward within
the deadline laid down in paragraph 6(b)(i) of the Notice of Initiation of the original
investigation and thereby failed to remedy the self-selection process imposed by its
approach.

This request is made without prejudice to Chin a's rights under the WTO. China reserves all
of its WTO rights with respect of all other aspects of the purported compliance by the EU with its
obligations in this dispute. It also reserves the rights to raise further factual and legal claims in the
course of the consultations.

China looks forward to receiving the EU's reply to the present request and to fixing a
mutually convenient date for consultations which shall, pursuant to paragraph 1 of the Agreed
Procedures under Articles 21 and 22 of the Dispute Settlement Understanding between China and
the EU
11, be within 15 days from the date of receipt of the present request by the EU.