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 the Establishment of a Panel
Date: 6 December 2013
Document codes: WT/DS397/18
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 the Establishment of a Panel
The following communication, dated 5 December 2013, from the delegation of China to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

The Government of China hereby requests the establishment of a panel pursuant to
Articles 6 and 21.5 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"), Article XXIII 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
for the implementation of the DSB recommendations and rulings in that case.
5 Pursuant to the

1 WT/DS397/16.
2 WT/DSB/M/301.
3 WT/DS397/12.
4 WT/DSB/M/302.
5 WT/DS397/14.

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 informed the DSB that they concluded "Agreed
Procedures under Articles 21 and 22 of the Dispute Settlement Understanding."
6 Paragraph 1 of
these procedures provides that if China considers that the situation described in Article 21.5 of the
DSU exists, it will request that the EU enter into consultations with China which shall be held
within 15 days from the date of the receipt of the request and that after this 15-day period has
elapsed, China may request the establishment of a panel pursuant to Article 21.5 of the DSU at
any time.

6. On 30 October 2013, China initiated procedures under Article 21.5 of the DSU by requesting
consultations with the EU. The request was circulated as document WT/DS397/17 on
1 November 2013.

7. Consultations were held on 27 November 2013. They have allowed a better understanding of
each party's position. They have failed, however, to settle the dispute. Accordingly, "there is
disagreement as to the existence or consistency with a covered agreement of measures taken to
comply with the recommendations and rulings" of the DSB within the meaning of Article 21.5 of
the DSU.

2. IMPLEMENTATION ACTION DECLARED BY THE EUROPEAN UNION

8. 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.

9. Regarding the recommendations and rulings of the DSB relating to Article 9(5) "as such" of
Council Regulation (EC) No. 1225/2009 of 30 November 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.

10. As to the recommendations and rulings of the DSB relating to 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, 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 Regula tion (EU) No. 924/2012 of 4 October 2012 10 amending
Regulation (EC) No. 91/2009 imposing a definitive an ti-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 inconsistent 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.

6 WT/DS397/16.
7 WT/DS397/15/Add.3.
8 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, 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.

3. MEASURES AT ISSUE AND CLAIMS RAISED IN THESE PROCEEDINGS

11. 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 impo rts 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) Article 6.5 of the AD Agreement because the EU treated information concerning
the products sold by the Indian producer as confidential in the absence of good
cause shown and Article 6.5.1 of the AD Agreement to the extent that the EU failed
to ensure that the Indian analogue producer provided 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;

(2) Articles 6.4 and 6.2 of the AD Agreemen t because the EU failed to provide to the
Chinese interested parties a full opportunity for the defence of their interests and
because the EU did not provide timely opportunities for them 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;

(3) Article 6.1.2 of the AD Agreement beca use the evidence presented by the Indian
producer concerning its products has not been made available promptly to the
Chinese interested parties participating in the investigation;

(4) Article 2.4 of the AD Agreement because the EU failed to indicate to the Chinese
interested parties 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 determination and since the
EU failed to indicate to the Chinese interested parties what information was
necessary to substantiate their requests for adjustments;

(5) Article 2.4 of the AD Agreement and Article VI:1 of the GATT 1994 because the EU
failed to make a fair comparison between the export price and the normal value
and because the EU failed to make allowances for differences affecting price
comparability;

(6) 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;

(7) 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

(8) 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.

4. CONCLUSION

12. China requests that a panel be established purs uant to Article 21.5 of the DSU with standard
terms of reference, as set forth in Article 7 of the DSU, and asks that this request be placed on the
agenda of the DSB meeting which is scheduled to take place on 18 December 2013. Pursuant to
Article 21.5 of the DSU, China also requests that , if possible, the DSB refer the matter to the
original Panel.

13. Pursuant to paragraph 2 of the Agreed Procedures between China and the EU, China notes
that the EU is required to accept the establishment of the panel at the first DSB meeting at which
China's request for the establishment of an Article 21.5 panel appears on the agenda.