EUROPEAN UNION — ANTI-DUMPING MEASURES ON BIODIESEL FROM ARGENTINA NOTIFICATION OF AN OTHER APPEAL BY ARGENTINA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: Panel Report
Date: 31 May 2016
Document codes: WT/DS473/11
Complainant: Argentina
Respondent: EU
Third parties: Australia, China, Malaysia, Norway, Russia, Saudi Arabia, Turkey, U.S., Colombia, Indonesia, Mexico
Dispute stage: Appellate Body
Agreements cited: Art. 2.2  Anti-dumpingArt. VI:1  GATT 1994Art. 2.2.1.1, 9.3, 2, 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 2.1, 2.2.2(iii), 2.4  Anti-dumpingArt. VI:2  GATT 1994Art. 3.1, 3.4, 3.5, 1  Anti-dumpingArt. VI  GATT 1994

EUROPEAN UNION — ANTI-DUMPING MEASURES ON BIODIESEL FROM ARGENTINA
NOTIFICATION OF AN OTHER APPEAL BY ARGENTINA UNDER ARTICLE 16.4 AND ARTICLE 17 OF
THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES
(DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 25 May 2016, fr om the delegation of Argentina, is being
circulated to Members.

Governing the Settlement of Disputes ("DSU") and Rule 23 of the Working Procedures for
Appellate Review (WT/AB/WP/6) ("Working Proced ures"), Argentina hereby notifies the Dispute
Settlement Body ("DSB") of its decision to appeal certain issues of law covered in the Panel Report
in European Union – Anti-Dumping Measures on Biodiesel from Argentina ()
("Panel Report") and certain legal interpretations developed by the Panel in that Report.
2. Pursuant to Rules 23(1) and 23(3) of the Working Procedures, Argentina simultaneously files
this Notice of Other Appeal and its Other Appellant Submission with the Appellate Body
Secretariat. Argentina is providing as well an Executive Summary of the Other Appellant
Submission, in accordance with the Guidelines in Respect of Executive Summaries of Written
Submissions in Appellate Proceedings (WT/AB/23).
3. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures, this Notice of Other Appeal includes
an indicative list of the paragraphs of the Panel Report containing the alleged errors, without
prejudice of Argentina's ability to refer to other paragraphs of the Panel Report in the context of
this appeal.
4. Argentina requests the Appellate Body to reverse various findings and conclusions of the
Panel as a result of the errors of law and of legal interpretation contained in the Panel Report as
identified below.
1 REVIEW OF THE PANEL'S FINDINGS WI TH RESPECT TO ARGENTINA'S CLAIM UNDER
ARTICLE 2.2.1.1 OF THE ANTI-DUMPING AGREEMENT CONCERNING ARTICLE 2(5) OF
THE BASIC REGULATION
5. Argentina seeks review by the Appellate Body of the Panel's findings and conclusions
concerning Argentina's claim that Article 2(5), second subparagraph, of Council Regulation
No. 1225/2009 ("the Basic Regulation") is inconsistent as such with Article 2.2.1.1 of the
Anti-Dumping Agreement. The Panel erred in its ap plication of Article 2.2.1.1 of the Anti-Dumping
Agreement and failed to make an objective asse ssment, as required by Article 11 of the DSU,
when it concluded that Article 2(5), second subparagraph, of the Basic Regulation is not
inconsistent as such with Article 2.2.1.1.
1 In particular, Argentina has identified, inter alia , the
following errors in the issues of law and legal interpretations developed by the Panel:
- the Panel erred in the application of Article 2.2.1.1 of the Anti-Dumping Agreement
when finding that Article 2(5), second subparagraph, of the Basic Regulation only

1 Panel Report, paras. 7.127–7.154 and 8.1(b)(i).

deals with what has to be done after the EU authorities have determined that a
producer's records do not reasonably reflect the costs of production pursuant to the
first subparagraph. Based on its incorrect understanding of the scope, meaning and
content of Article 2(5), second subparagraph, of the Basic Regulation, the Panel
erroneously concluded that Article 2(5), second subparagraph, is not inconsistent "as
such" with Article 2.2.1.1 of the Anti-Dumping Agreement;

- the Panel erred in the application of Article 2.2.1.1 of the Anti-Dumping Agreement
when finding that Article 2(5), second subparagraph, of the Basic Regulation does not
require the European Union to determine that a producer's records do not reasonably
reflect the costs associated with the production and sale of the product under
consideration when these records reflect prices that are considered to be artificially
low or abnormally low as a result of a distortion. Based on its incorrect understanding
of the scope, meaning and content of Article 2(5), second subparagraph, of the
Basic Regulation, the Panel erroneously concluded that Article 2(5),
second subparagraph, is not inconsistent "as such" with Article 2.2.1.1 of the
Anti-Dumping Agreement;

- the Panel failed to make an objective assessment of the matter before it when
examining the scope, meaning and content of Article 2(5), second subparagraph,
contrary to Article 11 of the DSU.

6. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to
complete the analysis by finding that Article 2(5), second subparagraph, of the Basic Regulation is
inconsistent as such with Article 2.2.1.1 of the Anti-Dumping Agreement.
7. Consequently, the Appellate Body should also reverse the Panel's findings and conclusions
that Article 2(5), second subparagraph, of the Basic Regulation is not inconsistent with
Article XVI:4 of the WTO Agreement and Article 18.4 of the Anti-Dumping Agreement.
2
2 REVIEW OF THE PANEL'S FINDINGS WI TH RESPECT TO ARGENTINA'S CLAIM UNDER
ARTICLE 2.2 OF THE ANTI-D UMPING AGREEMENT AND ARTICLE VI:1(B)(II) OF THE
GATT 1994 CONCERNING ARTICLE 2(5) OF THE BASIC REGULATION
8. Argentina seeks review by the Appellate Body of the Panel's findings and conclusions
concerning Argentina's claim that Article 2(5), second subparagraph, of the Basic Regulation is
inconsistent as such with Article 2.2 of the Anti -Dumping Agreement and Article VI:1(b)(ii) of the
GATT 1994. The Panel erred in its interpretation and application of Article 2.2 and of
Article VI:1(b)(ii) and acted inconsistently with Article 11 of the DSU when it concluded that
Article 2(5), second subparagraph, of the Basic Regulation is not inconsistent as such with these
provisions.
3 In that respect, Argentina has identified, inter alia, the following errors in the issues of
law and legal interpretations developed by the Panel:
- the Panel erred in its interpretation of Article 2.2 of the Anti-Dumping Agreement and
of Article VI:1(b)(ii) of the GATT 1994 when finding that these provisions "do not limit
the sources of information that may be used in establishing the costs of production",
that they do not "prohibit an authority resorting to sources of information other than
producers' costs in the country of origin" but would "require that the costs of
production established by the authorities reflect conditions prevailing in the country of
origin"
4;

2 Panel Report, paras. 7.175 and 8.1(b)(iii).
3 Panel Report, paras. 7.155–7.174 and 8.1(b)(ii).
4 Panel Report, para. 7.171.

- the Panel erred in its application of Arti cle 2.2 of the Anti-Dumping Agreement and
Article VI:1(b)(ii) of the GATT 1994 when finding that Article 2(5),
second subparagraph, "is formulated in permissive terms" and only lays out a series
of options for the EU authorities in establishing the costs and when finding that this
measure concerns "the sources of information" as opposed to the costs themselves.
Based on its incorrect understanding of the scope, meaning and content of
Article 2(5), second subparagraph, of the Basic Regulation, the Panel erroneously
concluded that the measure at issue is not inconsistent "as such" with Article 2.2 of
the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994;

- the Panel failed to make an objective assessment of the matter before it when
examining the scope, meaning and content of Article 2(5), second subparagraph, of
the Basic Regulation, contrary to Article 11 of the DSU;

- the Panel applied an erroneous legal standard for the establishment of the "as such"
claim when it found that Argentina was required to demonstrate that Article 2(5),
second subparagraph "cannot be applied in a WTO-consistent manner".
5

9. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to
find that Article 2(5), second subparagraph, of the Basic Regulation is, as such, inconsistent with
Article 2.2 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994.
10. Consequently, the Appellate Body should also reverse the Panel's findings that Article 2(5),
second subparagraph, of the Basic Regulation is not inconsistent with Article XVI:4 of the
WTO Agreement and Article 18:4 of the Anti-Dumping Agreement.
6
3 REVIEW OF THE PANEL'S FINDINGS WITH RESPECT TO ARGENTINA'S CLAIMS
CONCERNING THE ANTI-DUMPING MEASURES IMPOSED BY THE EUROPEAN UNION ON
IMPORTS OF BIODIESEL FROM ARGENTINA
3.1 Review of the Panel's findings with resp ect to Argentina's claim under Article 2.4 of
the Anti-Dumping Agreement
11. Argentina seeks review by the Appellate Body of the Panel's findings and conclusions
concerning Argentina's claim that the European Union violated Article 2.4 of the Anti-Dumping
Agreement by failing to make a fair comparison between normal value and export price, and in
particular, by failing to make due allowances for differences affecting price comparability. 7 The
Panel erred in its interpretation and application of Article 2.4 of the Anti-Dumping Agreement,
amongst others, in the following respects:
- the Panel erred in finding that the difference at issue is not a difference affecting price
comparability, in particular because it is one that arose from the methodology used to
construct the normal value;

- the Panel erred when finding that its conclusion is consistent with the views of the
Appellate Body in EC – Fasteners (China) (Article 21.5 – China).

12. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions and to
find that the European Union violated Article 2.4 of the Anti-Dumping Agreement because by
failing to make adjustment for differences affecting price comparability, including differences in
taxation, it failed to make a fair comparison between the normal value and the export price.
3.2 Review of the Panel's findings with re spect to Argentina's claim under Articles 3.1
and 3.5 of the Anti-Dumping Agreement
13. Argentina seeks review by the Appellate Body of the Panel's findings and conclusions
concerning Argentina's claim that the European Union violated Articles 3.1 and 3.5 of the
Anti-Dumping Agreement in failing to ensure th at the injury caused by the overcapacity of

5 Panel Report, para. 7.174.
6 Panel Report, paras. 7.175 and 8.1(b)(iii).
7 Panel Report, paras. 7.292–7.306 and 8.1(c)(v).

the European Union industry was not attributed to the allegedly dumped imports. 8 The Panel erred
in the interpretation and application of Articles 3.1 and 3.5 of the Anti -Dumping Agreement when
it concluded that the European Union did not act inconsistently with Articles 3.1 and 3.5 with
respect to the treatment of overcapacity as an "other factor" of injury to the EU domestic industry.
In that respect, Argentina has identified, inter alia, the following errors in the issues of law and
legal interpretations developed by the Panel:
- the Panel erred in its interpretation and application of the obligation to make an
"objective examination" based on "positiv e evidence" of the overcapacity of the
EU industry pursuant to Articles 3.1 and 3.5 of the Anti-Dumping Agreement;

- the Panel erred in its application of Articles 3.1 and 3.5 when it failed to distinguish
overcapacity from capacity utilization and when it failed to note the inconsistency of
the EU authorities' conclusion in light of the evidence before it.

14. Argentina requests the Appellate Body to reverse the Panel's findings and conclusions with
respect to Argentina's claim under Articles 3.1 and 3.5 of the Anti-Dumping Agreement with regard
to the issue of overcapacity, and to find that th e European Union violated these provisions with
respect to overcapacity as an "other factor" of injury to the EU domestic industry.
3.3 Review of the Panel's findings with respect to Argentina's claim under
Article 2.2.1.1 of the Anti-Dumping Agreement
15. If the Appellate Body reverses the Panel's findings under Article 2.2.1.1 of the Anti-Dumping
Agreement concerning the European Union's failure to calculate the cost of production of the
product under investigation on the basis of the records kept by Argentinean producers,
Argentina requests the Appellate Body to complete the analysis of Argentina's second claim under
Article 2.2.1.1 of the Anti-Dumping Agreement for which the Panel did not make findings.
9
16. In that regard, Argentina requests the Appellate Body to find that the European Union acted
inconsistently with Article 2.2.1.1 of the An ti-Dumping Agreement by including costs not
associated with the production and sale of biodiese l in the calculation of the cost of production of
that product.