EUROPEAN UNION – SAFEGUARD MEASURES ON CERTAIN STEEL PRODUCTS (DS595) REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 29 April 2022
Document codes: WT/DS595/R
Complainant: Turkey
Respondent: EU
Third parties: Argentina, Brazil, Canada, China, India, Japan, Norway, Russia, South Korea, Switzerland, Taiwan, Ukraine, UAE, United Kingdom, U.S.
Dispute stage: Panel
Agreements cited: Art. I:1, II:1(b), XIII:1, XIII:2, XIX:1  GATT 1994Art. 2.1, 2.2, 3.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a), 4.2(b), 4.2(c), 5.1, 5.2, 6, 7.1, 7.4, 9.1  Safeguards

EUROPEAN UNION – SAFEGUARD MEASURES
ON CERTAIN STEEL PRODUCTS (DS595)
REPORT OF THE PANEL

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 for the first substantive meeting 11
Annex A-3 Additional Working Procedures of the Panel for the second substantive meeting 15
Annex A-4 Additional Working Procedures of the Panel 18
Annex A-5 Interim Review 19
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Turkey 39
Annex B-2 Integrated executive summary of the arguments of the European Union 57
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Argentina 78
Annex C-2 Integrated executive summary of the arguments of Brazil 81
Annex C-3 Integrated executive summary of the arguments of Canada 84
Annex C-4 Integrated executive summary of the arguments of Japan 86
Annex C-5 Integrated executive summary of the arguments of the Republic of Korea 90
Annex C-6 Integrated executive summary of the arguments of Switzerland 95
Annex C-7 Integrated executive summary of the arguments of Ukraine 100
Annex C-8 Integrated executive summary of the arguments of the United Kingdom 102
Annex C-9 Integrated executive summary of the arguments of the United States 105

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of
Footwear, , adopted 12 January 2000, DSR 2000:I, p. 515
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of Footwear,
, adopted 12 January 2000, as modified by Appellate Body
Report , DSR 2000:II, p. 575
Argentina – Poultry Anti-Dumping
Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from
Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, p. 1727
Argentina – Preserved Peaches Panel Report, Argentina – Definitive Safeguard Measure on Imports of
Preserved Peaches, WT/DS238/R, adopted 15 April 2003, DSR 2003:III,
p. 1037
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified
by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
Australia – Anti-Dumping
Measures on Paper
Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper,
WT/DS529/R and Add.1, adopted 28 January 2020
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating
to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127
China – Electronic Payment
Services
Panel Report, China – Certain Measures Affecting Electronic Payment
Services, WT/DS413/R and Add.1, adopted 31 August 2012, DSR 2012:X,
p. 5305
Dominican Republic – Safeguard
Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012,
DSR 2012:XIII, p. 6775
EC – Bananas III (Article 21.5 –
Ecuador II) / EC – Bananas III
(Article 21.5 – US)
Appellate Body Reports, European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Second Recourse to
Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU, adopted
11 December 2008, and Corr.1 / European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of
the DSU by the United States, WT/DS27/AB/RW/USA and Corr.1, adopted
22 December 2008, DSR 2008:XVIII, p. 7165
EC – Bananas III (Article 21.5 –
Ecuador)
Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas – Recourse to Article 21.5 of the DSU by
Ecuador, WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, p. 803
EC – Export Subsidies on Sugar
(Australia)
Panel Report, European Communities – Export Subsidies on Sugar,
Complaint by Australia, WT/DS265/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R,
WT/DS283/AB/R, DSR 2005:XIII, p. 6499
EC – Export Subsidies on Sugar
(Brazil)
Panel Report, European Communities – Export Subsidies on Sugar,
Complaint by Brazil, WT/DS266/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R,
WT/DS283/AB/R, DSR 2005:XIV, p. 6793
EC – Export Subsidies on Sugar
(Thailand)
Panel Report, European Communities – Export Subsidies on Sugar,
Complaint by Thailand, WT/DS283/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R,
WT/DS283/AB/R, DSR 2005:XIV, p. 7071
EC – Trademarks and
Geographical Indications
(Australia)
Panel Report, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs, Complaint
by Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603
EC – Trademarks and
Geographical Indications (US)
Panel Report, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs, Complaint
by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII,
p. 3499
EU – PET (Pakistan) Panel Report, European Union – Countervailing Measures on Certain
Polyethylene Terephthalate from Pakistan, WT/DS486/R, Add.1 and Corr.1,
adopted 28 May 2018, as modified by Appellate Body Report
WT/DS486/AB/R, DSR 2018:IV, p. 1739

Short Title Full Case Title and Citation
EU – Poultry Meat (China) Panel Report, European Union – Measures Affecting Tariff Concessions on
Certain Poultry Meat Products, WT/DS492/R and Add.1, adopted
19 April 2017, DSR 2017:III, p. 1067
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295
India – Iron and Steel Products Panel Report, India – Certain Measures on Imports of Iron and Steel
Products, WT/DS518/R and Add.1, circulated to WTO Members
6 November 2018 [appealed by India 14 December 2018 – the Division
suspended its work on 10 December 2019]
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of Agricultural,
Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999,
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
Mexico – Steel Pipes and Tubes Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from
Guatemala, WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, p. 1207
Pakistan – BOPP Film (UAE) Panel Report, Pakistan – Anti-Dumping Measures on Biaxially Oriented
Polypropylene Film from the United Arab Emirates, WT/DS538/R and Add.1,
circulated to WTO Members 18 January 2021 [appealed by Pakistan
22 February 2021]
Ukraine – Passenger Cars Panel Report, Ukraine – Definitive Safeguard Measures on Certain
Passenger Cars, WT/DS468/R and Add.1, adopted 20 July 2015,
DSR 2015:VI, p. 3117
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain
Products from the European Communities, WT/DS165/AB/R, adopted
10 January 2001, DSR 2001:I, p. 373
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application
of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
US – Cotton Yarn Panel Report, United States – Transitional Safeguard Measure on Combed
Cotton Yarn from Pakistan, WT/DS192/R, adopted 5 November 2001, as
modified by Appellate Body Report WT/DS192/AB/R, DSR 2001:XII,
p. 6067
US – Fur Felt Hats GATT Working Party Report, Report on the Withdrawal by the United States
of a Tariff Concession under Article XIX of the General Agreement on Tariffs
and Trade, adopted 22 October 1951, GATT/CP/106
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on
Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in
the United Kingdom, WT/DS138/R and Corr.2, adopted 7 June 2000, upheld
by Appellate Body Report WT/DS138/AB/R, DSR 2000:VI, p. 2623
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Circular Welded Carbon Quality Line Pipe from Korea,
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, p. 1403
US – Line Pipe Panel Report, United States – Definitive Safeguard Measures on Imports of
Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/R,
adopted 8 March 2002, as modified by Appellate Body Report
WT/DS202/AB/, DSR 2002:IV, p. 1473
US – Offset Act (Byrd
Amendment)
Panel Report, United States – Continued Dumping and Subsidy Offset Act of
2000, WT/DS217/R, WT/DS234/R, adopted 27 January 2003, as modified
by Appellate Body Report WT/DS217/AB/R, WT/DS234/AB/R, DSR 2003:II,
p. 489
US – Safeguard Measure on PV
Products (China)
Panel Report, United States – Safeguard Measure on Imports of Crystalline
Silicon Photovoltaic Products, WT/DS562/R and Add.1, circulated to WTO
Members 2 September 2021 [appealed by China 16 September 2021]

Short Title Full Case Title and Citation
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Steel Safeguards Panel Reports, United States – Definitive Safeguard Measures on Imports of
Certain Steel Products, WT/DS248/R and Corr.1 / WT/DS249/R and Corr.1 /
WT/DS251/R and Corr.1 / WT/DS252/R and Corr.1 / WT/DS253/R and
Corr.1 / WT/DS254/R and Corr.1 / WT/DS258/R and Corr.1 / WT/DS259/R
and Corr.1, adopted 10 December 2003, as modified by Appellate Body
Report WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R,
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R, DSR 2003:VIII, p. 3273
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and
Man-made Fibre Underwear, WT/DS24/R, adopted 25 February 1997, as
modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31

EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short title (if any) Description
EU-2 WTO statistics on antidumping initiations by sector
EU-3 WTO statistics on countervailing initiations by sector
EU-7 Presentation at the
83rd session of the
OECD Steel Committee
H. Otsuka, "Recent developments in steel trade and trade policies"
presentation at the 83 rd session of the OECD Steel Committee held in Paris
on 28 September 2017
EU-8 Chair's statement at
the 83rd session of the
OECD Steel Committee
Statement dated 28 September 2017 of L. Top, Chair of the OECD Steel
Committee at the 83rd session of the OECD Steel Committee
EU-9 Chair's statement at
the 84th session of the
OECD Steel Committee
Statement dated 5 March 2018 of the Chair at the 84th session of the OECD
Steel Committee
EU-10 Cover letter (11 April 2018)
EU-12 Calculation deflection
EU-13 Estimate of imports to the US that will be deflected
EU-16 Presentation at the
84th session of the
OECD Steel Committee
OECD presentation, "Steel trade and trade policy developments: a closer look
at NTMs", 84th session of the OECD Steel Committee
EU-17 Global Forum on Steel Excess Capacity Report (30 November 2017)
EU-23 European Commission's
Communication "Steel:
Preserving Sustainable
Jobs and Growth"
Communication from the Commission to the European Parliament, the
European Council, the Council, the European Economic and Social Committee,
the Committee of the Regions and the European Investment Bank, "Steel:
Preserving sustainable jobs and growth in Europe" (16 March 2016)
TUR-1 Notice of initiation Notice of initiation of a safeguard investigation concerning imports of steel
products, Official Journal of the European Union, C Series, No. 111
(26 March 2018) pp. 29-35
TUR-2 Amendment to the
notice of initiation
Notice amending the notice of initiation of a safeguard investigation
concerning the imports of steel products, Official Journal of the
European Union, C Series, No. 225 (28 June 2018), pp. 54-56
TUR-3 Provisional
determination
Commission Implementing Regulation (EU) No. 2018/1013 of 17 July 2018
imposing provisional safeguard measures with regard to imports of certain steel
products, Official Journal of the European Union, L Series, No. 181
(18 July 2018), pp. 39-83
TUR-5 Definitive
determination
Commission Implementing Regulation (EU) No. 2019/159 of
31 January 2019 imposing definitive safeguard measures against imports of
certain steel products, Official Journal of the European Union, Series L, No. 31
(1 February 2019), pp. 27-74
TUR-7 Double remedy
regulation
Commission Implementing Regulation (EU) No. 2019/1382 of
2 September 2019 amending certain regulations imposing anti -dumping or
anti-subsidy measures on certain steel products subject to safeguar d
measures, Official Journal of the European Union, Series L, No. 227
(3 September 2019), pp. 1-25
TUR-9 First review regulation Commission Implementing Regulation (EU) No. 2019/1590 of
26 September 2019 amending Implementing Regulation (EU) No. 2019/159
imposing definitive safeguard measures against imports of certain steel
products, Official Journal of the European Union, Series L, No. 248
(27 September 2019), pp. 28-64
TUR-10 European Commission
Implementing
Regulation (EU)
2020/35
Commission Implementing Regulation (EU) 2020/35 of 15 January 2020
amending Implementing Regulation (EU) 2019/159 imposing definitive
safeguard measures against imports of certain steel products, Official Journal
of the European Union, Series L, No. 12 (16 January 2020), pp. 13-16
TUR-12 Second review
regulation
Commission Implementing Regulation (EU) No. 2020/894 of 29 June 2020
amending Implementing Regulation (EU) No. 2019/159 imposing definitive
safeguard measures against imports of certain steel products, Official Journal
of the European Union, Series L, No. 206 (30 June 2020), pp. 27-62
TUR-14 Questionnaire for
exporting producers
European Commission, safeguard questionnaire for exporting producers
TUR-15 Questionnaire for
domestic producers
European Commission, safeguard questionnaire for Union producers
TUR-18 Note to the file (11 April 2018)
TUR-19 Updated note to the file (2 July 2018)
TUR-21 Global Trade Alert
Report, "Going Spare"
S. Evenett and J. Fritz, Going Spare: Steel, Excess Capacity, and
Protectionism (The 22nd Global Trade Alert Report) (CEPR Press, May 2018)
TUR-39 Commission Regulation (EC) No 1694/2002 of 27 September 2002 imposing
definitive safeguard measures against imports of certain steel products,
Official Journal of the European Union, L Series, No. 261
(28 September 2002), pp. 1-123

Exhibit Short title (if any) Description
TUR-40 Questionnaire response of ThyssenKrupp Steel Europe GmbH
TUR-49 List of anti-dumping and countervailing measures in place at the time of the
imposition of the provisional safeguard measures

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
AD/CV anti-dumping/countervailing
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
MRP most recent period
POI period of investigation
PV photovoltaic
SCM Agreement Agreement on Subsidies and Countervailing Measures
SPS sanitary and phytosanitary
TRQ tariff-rate quota
WTO World Trade Organization

1 INTRODUCTION
1.1 Complaint by Turkey
1.1. On 13 March 2020, Turkey requested consultations with the European Union pursuant to
Articles 1 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), and
Article 14 of the Agreement on Safeguards with respect to the measures and claims set out below.1
1.2. Consultations were held on 29 April 2020 but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 16 July 2020, Turkey requested the establishment of a panel pursuant to Article 6 of the
DSU and Article 14 of the Agreement on Safeguards with standard terms of reference.2 At its meeting
on 28 August 2020, the Dispute Settlement Body (DSB) established a panel pursuant to the request
of Turkey in document WT/DS595/3, in accordance with Article 6 of the DSU.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the part ies to the dispute, the matter referred to the DSB by Turkey in document
WT/DS595/3 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.4
1.5. On 29 September 2020, the parties agreed that the panel would be composed as follows:
Chairperson: Mr William Davey

Members: Ms Silvia Lorena Hooker Ortega
 Mr Marco Tulio Molina Tejeda
1.6. Argentina, Brazil, Canada, China, India, the Republic of Korea, Japan, Norway,
the Russian Federation, Switzerland, Chinese Taipei, Ukraine, the United Arab Emirates,
the United Kingdom, and the United States notified their interest in participating in the
Panel proceedings as third parties.
1.3 Panel proceedings
1.7. After consultation with the parties, the Panel adopted its Working Procedures 5 on
26 October 2020, the Additional Working Procedures of the Panel for the first substantive meeting6
on 31 March 2021, and the Additional Working Procedures of the Panel for the second
substantive meeting7 on 2 June 2021. To give effect to certain requests made jointly by the parties
on 22 March 2022, and after consulting the parties, the Panel also adopted further Additional
Working Procedures on 1 April 2022.8
1.8. After consultation with the parties, t he Panel adopted a partial timetable on 26 October 2020
and revised the timetable on 25 November 2020, 9 February 2021, 22 March 2021, 2 June 2021,
25 October 2021, and 3 November 2021 . The timetable adopted by the Panel on 26 October 2020
envisaged that the Eu ropean Union would file its first written submission by 22 December 2020.
However, on 23 November 2020, the European Union requested the Panel to extend the deadline
for the submission of its first written submission to 15 January 2021. On 24 November 2020,

1 Request for consultations by Turkey, WT/DS595/1 (Turkey's consultation request).
2 Request for establishment of a panel by Turkey, WT/DS595/3 (Turkey's panel request).
3 DSB, Minutes of the meeting held on 28 August 2020, WT/DSB/M/444.
4 Constitution note of the Panel, WT/DS595/4.
5 Working Procedures of the Panel (Annex A-1).
6 Additional Working Procedures of the Panel for the first substantive meeting (Annex A-2).
7 Additional Working Procedures of the Panel for the second substantive meeting (Annex A-3).
8 See Agreed procedures for arbitration under Article 25 of the DSU, WT/DS595/10; Additional Working
Procedures of the Panel (Annex A-4); and paragraph 1.9 below.

Turkey opposed the European Union's request. After considering both parties' positions, the
Panel granted the European Union's request and accordingly revised the timetable on
25 November 2020. On 8 February 2021, the European Union requested the Panel to extend (a) the
deadline for filing responses to the questions sent by the Panel to the parties on 5 February 2021
from 12 February 2021 to 26 February 2021; and (b) the deadline for filing the second written
submission from 5 March 2021 to 19 March 2021. On 9 February 2021, Turkey opposed the
European Union's request. After considering both parties' positions, the Panel revised the
timetable on 9 February 2021, partially granting the European Union's request by changing the two
deadlines to 19 February 2021 and 12 March 2021, respectively. On 27 May 2021, the
European Union asked the Panel to extend the deadline for filing comments on the other
party's responses to the Panel 's questions after the first substantive meeting from 4 June 2021 to
18 June 2021. On 27 May 2021, Turkey opposed the European Union's request. After considering
both parties' positions, the Panel partially granted the European Union's request by changing the
deadline to 8 June 2021. The revised timetable issued by the Panel on 25 October 2021 set the date
for the parties to request review of precise aspects of the interim report and/or to request an
interim review meeting as 5 November 2021, and the deadline for the parties to comment on the
other party's review requests and for th e interim review meeting (if requested) as
12 November 2021. On 2 November 2021, Turkey requested the Panel to change the two dates to
12 November 2021 and 19 November 2021 respectively. The European Union did not object to
Turkey's request. In light of both parties' positions, the Panel revised the tim etable on
3 November 2021, granting Turkey's request.
1.9. The Panel held a first substantive meeting with the parties on 4, 5, and 6 May 2021. A session
with the third parties took place on 5 May 2021. According to paragraph 15 of the
Working Procedures adopted by the Panel, the Panel retained the discretion to hold a second
substantive meeting with the parties upon request by either party. On 17 May 2021, the
European Union requested the Panel to hold a second su bstantive meeting. On 20 May 2021,
Turkey opposed the European Union's request. After considering both parties' positions, the
Panel granted the European Union's request and held a second substantive meeting with the parties
on 22 and 23 June 2021. Because of restrictions due to the COVID -19 pandemic, the
Panel conducted both substantive meetings via secure videoconference. 9 On 19 August 2021, the
Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to
the par ties on 29 October 2021. The Panel issued its Final Report to the parties on
10 December 2021. The Panel Report was scheduled to be circulated on 21 December 2021.
On 20 December 2021, Turkey requested the Panel to suspend its work, pursuant to Article 12.12
of the DSU, until 21 January 2022, and the European Union did not object. The Panel granted the
suspension request.10 Subsequently, Turkey filed three requests to extend the suspension of the
Panel's work pursuant to Article 12.12 of the DSU, until 11 February 2022, 25 February 2022, and
25 March 2022, respectively. The European Union did not object to any of the three r equests. The
Panel granted these requests.11 On 22 March 2022, the European Union and Turkey transmitted to
the Panel a document signed by both parties entitled "Agreed Procedures for Arbitration under
Article 25 of the DSU" (Agreed Procedures). 12 Through the Agreed Procedures, the parties jointly
requested the Panel to extend indefinitely the suspension of its work pursuant to Article 12.12 of the
DSU, except to the extent necessary for the Panel to effect certain steps set out in the
Agreed Procedures. On 24 March 2022, the Panel decided to grant that suspension request. 13 To
give effect to the parties' requests, made through the Agreed Procedures, that the Panel undertake
certain steps relating to the report of the Panel and to the record of the Panel proceedings, the Panel
adopted the Additional Working Procedures referred to at paragraph 1.7 above. Through the Agreed
Procedures, paragraph 6, the parties also jointl y requested the Panel to resume its work if neither
party initiated arbitration under the Agreed Procedures within 30 days from the date on which the
Agreed Procedures were notified to the DSB. Neither party initiated such arbitration, and on
26 April 2022 the parties confirmed their request that the Panel resume its work. The Panel Report
was therefore circulated on 29 April 2022.

9 The Panel adopted additional working procedures for each of these meetings. (See fns 6-7 above).
10 See Suspension of Panel Work dated 21 December 2021, WT/DS595/6.
11 See Suspension of Panel Work dated 20 January 2022, WT/DS595/7; Suspension of Panel Work dated
10 February 2022, WT/DS595/8; and Suspension of Panel Work dated 25 February 2022, WT/DS595/9.
12 See Agreed procedures for arbitration under Article 25 of the DSU, WT/DS595/10.
13 See Communication from the Panel dated 24 March 2022, WT/DS595/11.

2 FACTUAL ASPECTS: THE MEASURES AT ISSUE
2.1. In its panel request, Turkey identified the measures at issue as "the provisional and definitive
safeguard measures imposed by the European Union on the imports of certain steel products and
the investigation leading to the imposition of those measures". Turkey indicated that those measures
"cover[ed] all decisions, notices, notifications and regulations" specifically mentioned in the panel
request, and "include[d] any amendments, supplements, reviews, replacement, renewals,
extensions, implementing measures and any other related measures taken by the European Union
in relation to the investigation and/or the safeguard measures at issue". 14 Turkey repeated this
formulation in its first written submission.15
2.2. In response to a question from the Panel, Turkey clarified that its challenge to the
"investigation" leading to the imposition of the provisional and definitive safeguards was not distinct
from its challenge to the provisional and definitive safeguards themselves.16
2.3. The legal instrument setting out the provisional safeguard measures on certain steel products
(the "provisiona l safeguard") is Commission Implementing Regulation (EU) No. 2018/1013 of
17 July 2018 imposing provisional safeguard measures with regard to imports of certain steel
products (the "provisional determination").17
2.4. The legal instruments setting out the defin itive safeguard measures on certain steel products
("definitive safeguard"18) include:
a. Commission Implementing Regulation (EU) No. 2019/159 of 31 January 2019 imposing
definitive safeguard measures against imports of certain steel products (the
"definitive determination")19;
b. Commission Implementing Regulation (EU) No. 2019/1382 of 2 September 2019
amending certain regulations imposing anti-dumping or anti-subsidy measures on certain
steel products subject to safeguard measures (the "double remedy regulation")20;
c. Commission Implementing Regulation (EU) No. 2019/1590 of 26 September 2019
amending Implementing Regulation (EU) No. 2019/159 imposing definitive safeguard
measures against imports of certain steel products (the "first review regulation")21;
d. Commission Implementing Regulation (EU) No. 2020/35 of 15 January 2020 amending
Implementing Regulation (EU) No. 2019/159 imposing definitive safeguard measures
against imports of certain steel products22; and
e. Commission Implementing Regulation (EU) No. 2020/894 of 29 June 2020 amending
Implementing Regulation (EU) No. 2019/159 imposing definitive safeguard measures
against imports of certain steel products (the "second review regulation").23

14 Turkey's panel request, para. 17. Paragraph 17 of the panel request refers to sections 1.1-1.4 of the
panel request, which describe in more detail the legal instruments comprising the challenged measures.
(See also Turkey's request for consultations, para. 17).
15 Turkey's first written submission, para. 34.
16 Turkey's response to Panel question No. 15, para. 1.
17 Provisional determination, (Exhibit TUR-3).
18 Turkey requested the Panel to refer to this as "definitive safeguards", in the plural.
(Turkey's comments on the descriptive part of the Panel Report, para. 2.4). The Panel has rejected the
request, without prejudice to the Panel's consideration of the question whether there is a single
definitive safeguard or multiple definitive safeguards, which the Panel discusses in paras. 7.43-7.57 below.
Turkey made an equivalent request also for the provisional safeguard. (Turkey's comments on the
descriptive part of the Panel Report, para. 2.3).
19 Definitive determination, (Exhibit TUR-5). The definitive determination incorporates by reference
certain findings and reasoning set out in the provisional determination.
20 Double remedy regulation, (Exhibit TUR-7).
21 First review regulation, (Exhibit TUR-9).
22 European Commission Implementing Regulation (EU) 2020/35, (Exhibit TUR-10).
23 Second review regulation, (Exhibit TUR-12).

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Turkey requests the Panel to find that the measures at issue are inconsistent with Articles 2.1,
3.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a), 4.2(b), 4.2(c), 5.1, 5.2(a), 6, 7.1, and 7.4 of the Agreement on
Safeguards, and with Articles II:1(b), XIII:2 chapeau, XIII:2(d), and XIX:1(a) of the GATT 1994.24
3.2. Turkey requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the
European Union bring its measures into conformity with its obligations under the Agreement on
Safeguards and the GATT 1994.25 In addition, Turkey requests the Panel to suggest, pursuant to the
second sentence of Article 19.1 of the DSU, that the European Union implement that
recommendation by revoking the measures at issue.26
3.3. The European Union requests that the Panel reject Turkey's claims in this dispute in their
entirety.27
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Argentina, Brazil, Canada, Japan, the Republic of Korea, Switzerland,
Ukraine, the United Kingdom, and the United States are reflected in their executive summaries,
provided in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see
Annexes C-1, C -2, C -3, C -4, C -5, C -6, C -7, C -8, and C -9). China, India, Norway,
the Russian Federation, Chinese Taipei, and the United Arab Emirates did not provide the Panel with
a third-party submission and did not make an opening oral statement at the third -party session of
the first substantive meeting with the Panel.
6 INTERIM REVIEW
6.1. On 29 October 2021, the Panel issued its Interim Report to the parties. On 12 November 2021,
Turkey and the European Union submitted their written requests for review. On 19 November 2021,
the parties submitted comments on the other parties' written requests for review.
6.2. The parties' requests made at the interim review stage as well as the Panel' s discussion and
disposition of those requests are set out in Annex A-5.
7 FINDINGS
7.1. Turkey claims that the provisional and definitive safeguards on certain steel products adopted
by the European Union in July 2018 and January 2019, respectively, are inconsistent with a number
of provisions of the Agreement on Safeguards and the GATT 1994.
7.2. Below, we begin by considering whether we should make findings on both these measures, or
only on the definitive safeguard, and we decide to make findings only on the defin itive safeguard
(section 7.1).
7.3. Our subsequent discussion follows the structure of Turkey's arguments. We therefore
examine28, in turn, the following aspects of the definitive safeguard: the
European Commission's approach to product scope (section 7.2); unforeseen developments
(section 7.3); the effect of obligations under the GATT 1994 (section 7.4); the increase in imports
(section 7.5); threat of injury (section 7.6); causation (section 7.7); whether the safeguard was

27 European Union's first written submission, para. 313.
28 In some instances, we exercise economy.

applied beyond the extent and time necessary to prevent serious injury (section 7.8); the allocation
of shares in the tariff rate quotas that are one element of the definitive safeguard (section 7.9);
whether the European Union did not progressively liberalize the safeguard and in fact made it more
restrictive over time (section 7.10); and whether the out -of-quota duty that is another element of
the definitive safeguard is a duty or charge inconsistent with Article II:1(b) of the GATT 1994
(section 7.11).
7.1 The measures on which the Panel will make findings
7.4. We recall that Turkey challenged (a) the provisional safeguard and (b) the definitive safeguard
applied by the European Union on imports of certain steel products, as set out in more detail in
section 2 above. Below, we discuss whether we should make findings on the provisional safeguard.
7.5. In response to a question from the Panel, Turkey has confirmed that the provisional safeguard
is no longer in force, having been replac ed by the definitive safeguard. 29 The European Union has
not argued otherwise. It is therefore undisputed that the provisional safeguard is no longer in force.
7.6. At the same time, Turkey has observed that the regulation that applied the provisional
safeguard (which we refer to as the provisional determination) is still in force. 30 In response to a
further question from the Panel, Turkey has indicated that this means that "the legal basis remains
to collect provisional safeguard measures retroactively " and, in support for this proposition, refers
to findings of the panel in India – Iron and Steel Products.31
7.7. In this regard, we note that in these proceedings whether the provisional determination
continues to provide the basis to collect out -of-quota safeguard duties is a question of fact. The
findings of a different panel regarding the effects of a different safeguard adopted by a different
Member cannot serve to establish as a matter of fact the effects of the provisional determination
adopted by the European Union. In this case, we note that the reference to the findings of the panel
in India – Iron and Steel Products is the only support that Turkey has provided for its statement that
duties could still be collected retroactively under the prov isional safeguard. In other words, Turkey
has not provided the Panel with any evidence that duties are either continuing to be collected, or
could be collected, by the European Union under the provisional safeguard at issue, and it has also
stated that the provisional safeguard is no longer in force.32
7.8. Article 6.2 of the DSU does not limit to measures still in existence "the specific measures at
issue" that can be brought before a panel. A panel may, therefore, issue findings on an
expired measure where the panel believes it is necessary to do so to resolve a dispute. Conversely,
a panel need not make findings on an expired measure where such findings are not necessary to
resolve the dispute .33 In addition, we note that when a panel does make findings on an
expired measure, the fact that the measure has expired may affect the recommendations a panel
may make pursuant to Article 19.1 of the DSU, which requires panels to make recommendations "to
bring the measure into conformity" with the covered agreements.34
7.9. In this instance, Turkey concedes that the provisional safeguard is no longer in force.
Turkey claims that the provisional safeguard is inconsistent with Article 6 for a subset of the reasons
for which it claims the definitive safeguard is inconsistent with other provisions of the Agreement on
Safeguards. Indeed, Turkey makes no distinction between its arguments against the provisional
safeguard and the corresponding arguments against the definitive safeguard. 35 Given that the
provisional safeguard is no longer in force, and that Turkey challenges the provisional safeguard for
some of the same reasons for which it challenges the definitive safeguard, we do not consider that

29 Turkey's response to Panel question No. 1, paras. 2 and 4.
30 Turkey's response to Panel question No. 1, para. 4.
31 Turkey's response to Panel question No. 16, para. 2 (referring to Panel Report, India – Iron and Steel
Products [appealed by India on 14 December 2018, appealed by Japan on 21 December 2018]).
32 We also note that Article 9 of the definitive determination provides that any amounts paid under the
provisional determination "shall be definitively collected", which indicates that it is the definitive determination
that provides the basis for the definitive collection of duties on imports covered by the provisional safeguard.
33 See e.g. Panel Reports, China – Electronic Payment Services, paras. 7.226-7.229; and Argentina –
Textiles and Apparel, para. 6.15.
34 DSU, Article 19.1 (emphasis added). See e.g. Appellate Body Report, US – Certain EC Products,
35 See e.g. Turkey's first written submission, paras. 49-76.

making findings on the consistency of the provisional safeguard with the covered agreements is
necessary to resolve the dispute, and we therefore refrain from making such findings.
7.10. Notwithstanding this, we note that the provisional determination forms part of the record in
the underlying investigation that led to the adopti on of the definitive safeguard, and that the
definitive determination refers to part of the findings and reasoning set out in the
provisional determination. Therefore, although we decline to make findings on the consistency with
the covered agreements of the provisional safeguard as a challenged measure, we still consider the
provisional determination as appropriate when examining Turkey's claims against the
definitive safeguard.
7.2 Product scope
7.11. Turkey claims that the definitive safeguard is inconsistent wit h Article XIX:1(a) of
the GATT 1994 and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the Agreement on
Safeguards, based on two sets of arguments.
7.12. First, Turkey argues that the European Commission applied 26 distinct safeguards, on
26 products, but did not examine whether the circumstances and conditions for imposing a safeguard
existed for each of those products individually. We refer to this as the "mismatch" argument.
According to Turkey, this gives rise to an inconsistency with Article XIX:1(a) of the GATT 1994 and
Articles 2.1, 4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards.36
7.13. Second, Turkey argues that the European Commission adopted an internally inconsistent
approach to product scope at different stages of the investigation an d application of the measures.
We refer to this as the "internal inconsistency" argument. According to Turkey, this gives rise to an
inconsistency with Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b),
and 4.2(c) of the Agreement on Safeguards.37
7.14. We note that within each of these sets of arguments, Turkey presents its arguments for the
most part without distinguishing among the various claims it has raised. That is, Turkey sets out its
arguments typically without spec ifying to what claim(s) each refers, and then cites a string of
provisions in its concluding paragraphs; the Panel has sought some clarification in this regard but
has obtained only very limited clarification.38
7.15. To Turkey's arguments, the European Union r esponds that it adopted a single
definitive safeguard on certain steel products comprising 26 product categories, and that it
ascertained the existence of the circumstances and conditions necessary for imposing a safeguard
on the product as thus defined. 39 As regards the allegation of internal inconsistency, the
European Union responds that it did, as required, conduct an objective and unbiased evaluation and
set out its findings and reasoned conclusions, and that the Agreement on Safeguards does not
contain, in addition, the "internal consistency" requirement invoked by Turkey.40
7.16. Among the third parties, Canada, the Republic of Korea, the United Kingdom, and the
United States argue that the authority has discretion to define the product under investigation but
must then verify whether the circumstances and conditions for applying a safeguard to that product
are met.41 Argentina and Switzerland question how the authority could demonstrate the existence

36 See e.g. Turkey's first written submission, para. 67. See, more broadly, Turkey's first written
submission, paras. 50-67; and second written submission, paras. 17-46.
37 See e.g. Turkey's first written submission, para. 76; response to Panel question No. 17, para. 3. See,
more broadly, Turkey's first written submission, paras. 68-76; and second written submission, paras. 48-54.
38 The second set of arguments is presented in support of the same claims as the first set of arguments,
plus Articles 3.1 and 4.2(c) of the Agreement on Safeguards. (Turkey's response to Panel question No. 17,
para. 3).
39 European Union's first written submission, paras. 27-46; second written submission, paras. 1, 3-5,
7-16, and 24-29.
40 European Union's first written submission, paras. 25-58; second written submission, paras. 1, 6,
17-23, and 28-29.
41 Canada's third-party submission, paras. 12-13 and 15; Korea's third-party submission, paras. 7-9;
United Kingdom's third-party submission, paras. 4-11; Canada's third-party statement, para. 9;
United Kingdom's third-party statement, paras. 4-6; United States' third-party responses to Panel question
Nos. 1 and 2, paras. 1-7.

of the conditions for imposing a safeguard for the produ ct under investigation if it modified the
product groupings depending on the condition it was examining .42 Switzerland adds that the
authority must use a method that is unbiased and objective and that allows for a reasoned and
adequate explanation of how t he facts support the determination that the imports covered by a
safeguard measure satisfy the conditions for applying the measure .43 Switzerland also takes the
view that there are contradictions both in the record of the domestic proceedings and in the
EU arguments.44 Japan recalls that if a safeguard is applied to specific products, it is not enough to
demonstrate the existence of the conditions for imposing a safeguard for a broad category of
products that includes the product under investigation. 45 Argentina considers that the question
before the Panel is primarily a factual one, i.e. whether the European Commission applied a
single safeguard on a single product, or a number of safeguards. Argentina notes that this question
is central because the European Commission was required to verify the existence of the necessary
conditions for the product on which it applied a safeguard. Further, Argentina notes that the
European Commission was required to conduct the investigation in an objective and unbiased
manner, and that if an authority relies on different product groupings at different steps of its analysis,
that might cast doubt on whether the investigation was objective and unbiased. 46 For its part,
Ukraine cautions that "including a wide list of products may result in artificial and incorrect findings
in the framework of such categories ' injury examination and, as a result, may lead to distorted
findings of an investigation".47
7.17. Canada considers that the Panel must assess whether the European Commission
demonstrated that it was appropriate to exclude certain product categories from the analysis. 48
The United Kingdom takes the view that we must examine whether the exclusion of certain product
categories affected the analysis, and cautions against finding that a Member errs by adopting a
narrower safeguard than it is entitled to apply.49 Argentina indicates that a Member may exclude a
subset of the product concerned from the applicat ion of a safeguard and, in that case, the imports
of the excluded subset are a factor for which the authority must perform a non -attribution analysis
pursuant to Article 4.2(b) of the Agreement on Safeguards. 50 Brazil and Switzerland take the view
that a Member may exclude a subset of the product concerned from the application of a safeguard
and, if it does so, it must exclude the corresponding imports from the analysis of increased imports.51
7.18. We recall that Turkey sets out its arguments on product scope mo stly without specifying to
what claim or claims each argument refers, and then cites a string of provisions in its concluding
paragraphs.52 Therefore, in this section, we first examine the requirements of all of the provisions
with which Turkey claims an inconsistency, and we then examine, in turn, each of Turkey's two sets
of arguments.
7.2.1 The applicable requirements of Article XIX:1(a) of the GATT 1994 and Articles 2.1,
3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the Agreement on Safeguards
7.19. As noted, Turkey brings a number of claims related to the product scope of the
EU investigation and of the ensuing safeguard. That is, Turkey claims that the definitive safeguard
is inconsistent with Article XIX:1(a) of the GATT 1994, and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b),
and 4.2(c) of the Agreement on Safeguards. We consider each of these provisions below.
7.20. Article XIX:1(a) of the GATT 1994 provides:

42 Argentina's third-party statement, para. 7; Switzerland's third-party submission, para. 11.
43 Switzerland's third-party submission, para. 7.
44 Switzerland's third-party submission, para. 10.
45 Japan's third-party submission, paras. 9 and 17 (referring to the Panel Reports and Appellate Body
Report in US – Steel Safeguards).
46 Argentina's third-party statement, paras. 5-7.
47 Ukraine's third-party statement, paras. 11-12.
48 Canada's third-party submission, para. 16; third-party statement, paras. 5-6.
49 United Kingdom's third-party statement, paras. 9-10. See also United Kingdom's third-party response
to Panel question No. 2, paras. 6-8.
50 Argentina's third-party response to Panel question No. 2.
51 Brazil's third-party response to Panel question No. 2; Switzerland's third-party response to Panel
question No. 2.
52 See para. 7.14 above.

If, as a result of unforeseen developments and of the effect of the obligations incurred
by a contracting party under this Agreement, including tariff concessions, any product
is being imported into the territory of that contracting party in such increased quantities
and under such conditions as to cause or threaten serious injury to domestic producers
in that territory of like or directly competitive products, the contracting party shall be
free, in respect of such product, and to the extent and for such time as may be necessary
to prevent or remedy such injury, to suspend the obligation in whole or in part or to
withdraw or modify the concession.53
7.21. Article XIX:1(a) states that "if" the circumstances and conditions specified therein are met
for "any product", a Member is free to apply a safeguard "in respect of such product". Th us, under
Article XIX:1(a), a safeguard may be applied on a product only if the circumstances and conditions
necessary to apply the safeguard have been verified for that same product.
7.22. Our understanding accords with the findings in US – Steel Safeguards and India – Iron and
Steel Products that if a required circumstance or condition is not found to exist specifically for the
product(s) under investigation, the application of a safeguar d on that product is inconsistent with
Article XIX:1(a). In those two proceedings, the panels found that the authority had not explained
how the unforeseen developments, which related to steel in general, had resulted in an increase in
imports of the speci fic products under investigation, and that therefore the safeguards applied on
those products were inconsistent with Article XIX:1(a).54
7.23. Similarly, Article 2.1 of the Agreement on Safeguards provides that a Member may apply a
safeguard "to a product" "only if" that Member has determined that certain conditions are met in
respect of "such product". That is, the product on which a safeguard is applied must be the same as
the product for which the Member has determined that the c onditions for applying a safeguard are
met. If a Member applies a safeguard on a product for which it has not determined that the conditions
are met, it acts inconsistently with Article 2.1.
7.24. The last sentence of Article 3.1 of the Agreement on Safeguards provides:
The competent authorities shall publish a report setting forth their findings and reasoned
conclusions reached on all pertinent issues of fact and law.
7.25. Article 3.1 thus requires authorities to set forth their findings and "reasoned" conclusions o n
"all pertinent issues of fact and law" in their published reports.
7.26. The ordinary meaning of "finding" includes an instance of " coming across or discovering
something … as the result of searching or enqu iry", "something which is found", and "the result of
a[n] … enquiry".55 The ordinary meaning of "conclusion" includes a "final result, outcome" and "a
judgement or statement arrived at by any reasoning process ".56 And the ordinary meaning of
"reasoned" includes "characterized by or based on reasoning; carefully studied".57 The last sentence
of Article 3.1 therefore requires authorities to set forth in their published reports what they have
found, as the result of searching or enquiry, and the conclusions (outcome, final result) they have
reached from their findings. These conclusions must be "based on reasoning", "carefully studied".
7.27. As to the scope of the necessary findings and reasoned conclusions, the last sentence of
Article 3.1 specifies that these must cover "all pertinent issues of fact and law". The ordinary

53 Emphasis added.
54 Panel Reports, US – Steel Safeguards, paras. 10.126, 10.147, and 10.150; India – Iron and Steel
Products [appealed by India on 14 December 2018, appealed by Japan on 21 December 2018],
paras. 7.111-7.112 and 7.122; and Appellate Body Report, US – Steel Safeguards, paras. 314-319.
55 Oxford Dictionaries online, definition of "finding", n., meanings 2(a), 2(b), and 6(a),
https://www.oed.com/view/Entry/70356?rskey=Qnw27c&result=2&isAdvanced=false#eid (accessed
20 September 2021).
56 Oxford Dictionaries online, definition of "conclusion", n., meanings 2 and 5(a),
https://www.oed.com/view/Entry/38312?redirectedFrom=conclusion#eid (accessed 20 September 2021).
57 Oxford Dictionaries online, definition of "reasoned", adj.2,
https://www.oed.com/view/Entry/159078?rskey=0Idv1P&result=3&isAdvanced=false#eid (accessed
20 September 2021).

meaning of "pertinent" includes "referring or relating to; relevant; to the point; apposite".58 Article 3
is a provision on the "investigation" that is required for a Member to be able to apply a safeguard
measure, and Article 3.1 specifies certain procedural requirements relating to such an investigation.
This suggests that the "pertinent", i.e. relevant, issues of fact and law are those that must be
established through the investigation, and specifically those that must be established for a Member
to be able to apply a safeguard measure. We therefore agree with previous fin dings to the effect
that the pertinent issues of fact and law within the meaning of Article 3.1 include the circumstances
and conditions that must be demonstrated in order to apply a safeguard and that are set forth in
Article 2.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.59
7.28. Article 4.1(c) of the Agreement on Safeguards defines the domestic industry. One of the
conditions that must be determined to exist to apply a safeguard is serious injury or threat of serious
injury "to the do mestic industry that produces like or directly competitive products". 60
Article 4.1(c) defines the domestic industry as "the producers as a whole of the like or directly
competitive products operating within the territory of a Member, or those whose collective output of
the like or directly competitive products constitutes a major proportion of the total domestic
production of those products". Thus, given a product under investigation, the authority must
ascertain injury or threat of injury to the domestic industry producing the products that are "like or
directly competitive" with that product.
7.29. We note that the panel in Argentina – Footwear (EC) was called upon to assess whether the
authority had erred by not examining each injury factor for each segment of the market for the like
or directly competitive products. In that dispute, Argentina had defined the like or directly
competitive products as all footwear except ski boots. In collecting data from the domestic industry,
Argentina had requested a breakdown into five product segments, but it had not then examined
each injury factor for each of the five product segments separately, and the European Union argued
that, by not doing so, Argentina had acted inconsistently with Articles 2 and 4 of the Agreement on
Safeguards. The panel rejected that argument of the European Union. The panel reasoned
that, given that the definition of like or directly competitive products (all footwear except ski boots)
was not disputed, that definition was decisive . Therefore Argentina was "required at a minimum to
consider each injury factor with respect to all footwear" and was not required to consider each injury
factor for each segment of the like or competitive products on a disaggregated basis, although it
could do so.61 We agree with the assessment of that panel, because a Member is required to verify
the existence of the necessary circumstances and conditions for the product under investigation as
a whole (in the injury determination, for the corresponding like or directly competitive products as
a whole), and not necessarily on a disaggregated basis.
7.30. Article 4.2(a) of the Agreement on Safeguards provides that in determining whether increased
imports have caused or threatened serious injury to the domestic industry, the authorities "shall
evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation
of that industry", and it also lists certain relevant factors.
7.31. Article 4.2(b) of the Agreement on Safeguards provides that to determine causation, the
authorities must "demonstrate[], on the basis of objective evidence, the existence of a causal link
between the increased imports of the product concerned and serious injury or threat thereof", and
must not attribute to the increased imports injury that is due to other factors. Thus, it must be
increased imports "of the product" under investigation that cause injury or threat of inj ury to the
industry producing the like or directly competitive products.
7.32. Finally, Article 4.2(c) of the Agreement on Safeguards provides:
The competent authorities shall publish promptly, in accordance with the provisions of
Article 3, a detailed analysis of the case under investigation as well as a demonstration
of the relevance of the factors examined.

58 Oxford Dictionaries online, definition of "pertinent", adj., meaning 3,
https://www.oed.com/view/Entry/141602?redirectedFrom=pertinent#eid (accessed 20 September 2021).
59 See e.g. Appellate Body Report, US – Lamb, para. 72.
60 Agreement on Safeguards, Article 2.1.
61 Panel Report, Argentina – Footwear (EC), paras. 8.112-8.116 and 8.135-8.137.

7.33. Article 4.2(c) thus reiterates, with reference to the analysis of injury and causation addressed
in Article 4.2, the obligation set out in the last senten ce of Article 3.1, and requires in particular
"a detailed analysis of the case" and a demonstration of the relevance of the factors examined.
7.34. It is also worth noting what the provisions considered in this section do not discipline, namely
the choice of the product under investigation, in itself. These provisions do not set out rules for
selecting the product under investigation, and for example they do not prevent a Member from
including a range of products in a single investigation. We thus agree with the panel in
Dominican Republic – Safeguard Measures that while the Agreement on Safeguards requires the
authority to define the product under investigation, it does not set out requirements such as
restricting the product under investigation "solely to those products that are like or directly
competitive w ith each other". 62 In that instance, the product under investigation comprised
polypropylene bags (the end product) and polypropylene tubular fabric (the input product for
polypropylene bags). The panel in that dispute explained that the authority could in clude
"two separate products" in the product under investigation, and was not under an "obligation to
provide an explanation of why two separate products were treated as the product under investigation
in the same proceeding". It therefore found that no in consistency had been established on that
basis.63
7.2.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c)
of the Agreement on Safeguards with regard to product scope
7.35. We now assess whether Turkey has established that the definitive safeguard is inconsistent
with the provisions outlined in the previous section.
7.36. We recall that Turkey has grouped its arguments into two sets, i.e. (a) that the
European Commission applied 26 distinct definitive safeguards, on 26 products, but did not examine
whether the circumstances and conditions for imposing a safeguard existed for each of those
products individually (the mismatch argument); and (b) that t he European Commission's approach
to product scope in the investigation and application of the safeguards was internally inconsistent
(the internal inconsistency argument). We address these two sets of arguments in turn.
7.37. Before discussing the parties' specific arguments and setting out our findings, we note a point
of terminology. In the underlying investigation, the European Commission used the terms "products"
and "product categories" somewhat interchangeably to refer to the range of products/product
categories covered by its investigation. In their arguments before us, the European Union mostly
refers to "product categories" and Turkey mostly refers to "products". As we explain below, we do
not consider that the use of either of these phrases decides the outcome of Turkey's claims.64 For
consistency of style, we will use the phrase "product categories" to refer to the range of
products/product categories covered by the EU investigation, except in certain instances when
referring to arguments of a party or citing record documents that use the term "products" instead.
7.2.2.1 The alleged mismatch between the products on which the European Commission
applied a safeguard and the products for which the European Commission investigated
the existence of the necessary circumstances and conditions
7.38. Turkey argues that the European Commission applied 26 distinct definitive safeguards, on
26 products, without examining whether the circumstances and conditions for imposing a safeguard
existed for each of those products individua lly.65 Specifically, Turkey argues that: the
European Commission has applied distinct safeguards on 26 products 66; the European Commission
did not examine unforeseen developments and their connection with the increase in imports for each
of the 26 products individually67; although the European Commission examined the data on increase

62 Panel Report, Dominican Republic – Safeguard Measures, paras. 7.177 and 7.181.
63 Panel Report, Dominican Republic – Safeguard Measures, paras. 7.176-7.182.
64 See para. 7.53 below.
65 Turkey's first written submission, paras. 37-38, 42-48, and 50-67; second written submission,
paras. 17-46.
66 Turkey's first written submission, paras. 42-48 and 54-58; second written submission, paras. 32-46;
and opening statement at the first meeting of the Panel, para. 6.
67 Turkey's first written submission, paras. 61 and 141-142.

in imports for each of the 26 products individually, it did not base its determination of an increase
in imports on such data 68; and the European Commission did not examine threat of injury 69 and
causation70 for each of the 26 products individually. Therefore, according to Turkey, there is a
mismatch between the products to which the European Commission has applied the safeguard, on
the one hand, and the products for which it has investigated the existence of the circumstances and
conditions required to apply the safeguard, on the other.
7.39. The European Union disputes Turkey's characterization of the facts underpinning this line of
argument, namely that it has applied a number of distinct safeguards on distinct products.
The European Union asserts that it investigated "certain steel products" globally as the product
under investigation, and applied provision al and definitive safeguards on that product.
The European Union asserts that its examinations at the level of individual product categories and
then at the level of three "product families" merely supplemented its examination of the
circumstances and conditions at the level of the product as a whole; that it carried out such additional
examinations out of diligence; and that where it did carry out these additional examinations, they
confirmed the findings reached for the product concerned globally.71
7.40. Turkey responds to the European Union's argument that the European Commission adopted
a single safeguard by asserting that if the European Commission had really applied a single
safeguard on a single product under investigation, that product should have stayed the same
throughout the investigation. Turkey asserts that this was not the case here, given that the
European Commission began with 28 products, applied a provisional safeguard on 23 products, and
applied definitive measures on 26 products. 72 The European Union responds that it chose not to
apply measures to those product categories for which it had not observed an increase in imports,
and that therefore when verifying the existence of the circumstances and conditions necessary to
apply a safeguard, it excluded those product categories.73
7.41. Turkey brings a single set of arguments on product scope in support of its series of claims
under Article XIX:1(a) of the GATT 1994 and Articles 2.1, 4.1(c), 4.2(a), and 4.2(b) of the
Agreement on Safeguards, without specifying which argument supports which of these individual
claims. We consider, first, the claims of inconsistency under Article XIX:1(a) of the GATT 1994 and
Article 2.1 of the Agreement on Safeguards (section 7.2.2.1.1) and, second, the claims of
inconsistency under Articles 4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards
(section 7.2.2.1.2).
7.2.2.1.1 Article XIX:1(a) of the GATT 1994 and Article 2.1 of the Agreement on
Safeguards
7.42. We recall that under Article XIX:1(a) of the GATT 1994 and Article 2.1 of the Agreement on
Safeguards, a Member may apply a safeguard to a product only if it has verified the existence of the
required circumstances and conditions for that same product. In other words, the product(s) to
which the Member applies a safeguard must be the same as the product(s) for which the Member
has verified the existence of the circumstances and conditions for adopting the safeguard.
7.43. With this in mind, we turn to the facts to assess the merits of the parties ' respective
arguments.
7.44. In its notice of initiation, the European Commission described the "products subject to th[e]
investigation" as "certain steel products (the 'products concerned') … listed in Annex I to th[e]
Notice". That annex listed 26 "products concerned". The notice used inte rchangeably the phrases
"products" and "product categories". The notice specified that there was sufficient evidence to initiate

68 Turkey's first written submission, paras. 62 and 170-173. In other words, Turkey's argument is that
the determination was based on the data for the 26 product categories taken together, and on the data for the
three product families. (Turkey's first written submission, para. 62 (referring to Definitive determination,
(Exhibit TUR-5), recitals 32-36 and 47)).
69 Turkey's first written submission, paras. 63, 226-229, and 254-257.
70 Turkey's first written submission, para. 64.
71 European Union's first written submission, paras. 21-23; second written submission, paras. 11-15.
72 Turkey's opening statement at the first meeting of the Panel, para. 12.
73 European Union's responses to Panel question No. 6, paras. 18-19; and No. 7, paras. 21-22; opening
statement at the first meeting of the Panel, paras. 22-23. See also European Union's second written
submission, para. 46.

the investigation both for the product concerned as a whole and for some or all product categories,
and that the investigation would "examine the situation of the products concerned, including the
situation of each of the product categories individually".74 The European Commission later amended
the notice of initiation, to add two more "steel product categories" to the scope of the investigation,
and in so doing it updated among others the figures on total volume of imports, to include the
additional product categories.75
7.45. In its questionnaires both for exporting producers and for domestic producers, the
European Commission described the product under investigation as "certain steel products", and
asked respondents to provide certain data "separately for each of the products concerned".76, 77, 78
7.46. In the provisional determination, the European Commission explained that it found:
[A]n important interrelation and strong competition between products classified in
different product categories and also between products at different production stages
within certain categories as some of the categories contain the main raw or input
material to produce other products in other product categories.79
7.47. The European Commission observed that, "as a consequence, given this level of interrelation,
competitive pressure can easily be shifted from one product to the other" 80, and further explained
that:
Because of these interrelations and interconnections, and given the fact that – as will
be explained below – the potential trade diversion resulting from the US Section 232
measures applies to all product categories … the analysis for the purpose of the
provisional determination has been carried out both globally for all 28 product categories

74 Notice of initiation, (Exhibit TUR-1), p. 29 and annex.
75 Amendment to the notice of initiation, (Exhibit TUR-2), p. 54.
In notes to the file following the original notice of initiation and its amendment, which were made
available to interested parties, the European Commission referred to "products concerned" or "product
categories", and provided data for the various product categories concerned taken together. In addition to the
data for all product categories together, in some instances, the European Commission also provided or referred
to data for individual product categories. (Note to the file (11 April 2018), (Exhibit TUR-18); Updated note to
the file (2 July 2018), (Exhibit TUR-19). See also European Union's response to Panel question No. 3; second
written submission, para. 14; and request for interim review, p. 1).
76 Questionnaire for exporting producers, (Exhibit TUR-14), cover page and section D, heading D.1;
Questionnaire for domestic producers, (Exhibit TUR-15), cover page and section E, heading E.1. The
questionnaire for exporting producers requested information by product category on production, capacity,
captive use, stock variation, sales volume, value and price by destination market (the respondent's domestic
market, the European Union, the United States, and other markets), consumption in the
respondent's domestic market, current and foreseen production and capacity on the respondent's domestic
market (in the European Union and worldwide), future plans for production, capacity, and sales in the event
that the European Union did, or did not, adopt a safeguard, and information on factors other than trends in
imports that might have caused or threatened serious injury to the EU industry. (Questionnaire for exporting
producers, (Exhibit TUR-14), section D). The questionnaire for exporting producers also requested information
for all product categories taken together on sales volume and value by destination markets, and on the
comparability of the imported and domestic products. (Questionnaire for exporting producers,
(Exhibit TUR-14), sections C.7, C.9, and C.10). The questionnaire for domestic producers requested
information by product category on the comparability of the imported and domestic products, on production,
capacity, sales, stocks, profitability, return on capital employed, cash flow, employment, "any information" on
the exporters' behaviour in the EU market and their current or likely future export capacity, and on the
expected consequences of the US Section 232 measures. (Questionnaire for domestic producers, (Exhibit
TUR-15), section E). The questionnaire for domestic producers also requested information for all product
categories taken together on turnover by destination and on whether safeguard measures would be in the
Union interest. (Questionnaire for domestic producers, (Exhibit TUR-15), sections D.1 and F).
77 Turkey submitted a questionnaire response showing that a responding domestic producer provided
data on injury factors at the level of product categories. (Questionnaire response of ThyssenKrupp Steel Europe
GmbH, (Exhibit TUR-40); Turkey's second written submission, para. 26; and request for interim review,
para. 8).
78 The cover letter for the questionnaire for domestic producers indicated that the information requested
therein was meant to "assist the Commission in establishing global data relating to the Union steel industry".
(Cover letter (11 April 2018), (Exhibit EU-10), p. 1; European Union's request for interim review, p. 1).
79 Provisional determination, (Exhibit TUR-3), recital 13.
80 Provisional determination, (Exhibit TUR-3), recital 16.

as the product concerned (i.e. steel in various shapes and forms) and also at individual
level for each product category.81
7.48. In its provisional determination, having reviewed import trends for all 28 product categories,
the European Commission found that imports of five product categories had not increased between
2013 and 2017. On that basis, it decided to exclude them from the scope of the
provisional safeguard, without prejudice to the possibility of imposing a definitive safeguard on
them. The European Commission then performed every step in its analysis underlying the
provisional safeguard for the remaining 23 product categories only, taken together and, for some
steps, also individually.82
7.49. In its definitive determination, the European Commission reiterated its approach to the
product under investigation as comprising a group of product categories, taken together. 83
In response to certain objections from interested parties regarding the produ ct scope of the
investigation, it also divided the product categories concerned into three "product families", and
examined both the import trends and injury also at the level of those product families. 84 Further,
having found that imports of two of the 28 product categories had not increased between 2013 and
the first half of 2018, it excluded those two product categories both from the scope of the
definitive safeguard and from the scope of its analysis of the circumstances and conditions required
to apply the safeguard.85
7.50. Specifically, as a basis for adopting the definitive safeguard, the European Commission
examined the existence of the required circumstances and conditions as follows:
a. Increase in imports. The European Commission reviewed data on increase in imports for
each of the 28 product categories; having found that there had been no increase in imports
between 2013 and the first part of 2018 for two product categories, it excluded those from
the rest of the analysis, and only included in the rest of its analysis the product categories
for which it found an increase in imports; relying on the data for the remaining 26 product
categories globally, it found that there had been an increase in imports; in addition, it also
considered the evolution of impo rts for those 26 product categories grouped into
three product "families", "to supplement the global … analysis"86;
b. Unforeseen developments. The European Commission examined unforeseen
developments for all product categories "globally", and found that ther e were such
unforeseen developments resulting in increased imports87, 88;
c. Threat of injury. The European Commission reviewed data for the 26 product categories
globally, and on that basis found that the domestic industry was threatened with material
injury; it also "supplemented" its conclusions by reviewing the data for the three families
into which it grouped the 26 product categories89;

81 Provisional determination, (Exhibit TUR-3), recital 17. (fn omitted)
82 Provisional determination, (Exhibit TUR-3), recitals 24 and 26 ff.
83 Definitive determination, (Exhibit TUR-5), section 2.
84 Definitive determination, (Exhibit TUR-5), recitals 19-22.
85 Definitive determination, (Exhibit TUR-5), recital 31; see also para. 7.50 below.
86 Definitive determination, (Exhibit TUR-5), recitals 27-47 and annex II.
87 Definitive determination, (Exhibit TUR-5), recitals 50 and 48-62; Provisional determination,
(Exhibit TUR-3), section V.
88 We consider that the question whether the European Union only examined unforeseen developments
for steel in general and, if so, whether that suffices to establish unforeseen developments resulting in an
increase in imports of the product under investigation under Article XIX:1(a), is a separate one. However, since
we find that the European Commission has otherwise not established that the unforeseen developments
resulted in the observed increase in imports, we do not reach this question. (See section 7.3.2.3.2 below).
89 Definitive determination, (Exhibit TUR-5), recitals 63-110. In the provisional determination, the
European Union had also relied on data for product categories individually, but those did not include four of the
product categories on which the European Union applied the definitive safeguard. The European Union did not
rely on this analysis by product categories in the definitive determination. (Provisional determination,
(Exhibit TUR-3), recitals 38, 47-69, and annex III; Definitive determination, (Exhibit TUR-5), recitals 63-110).

d. Causation. The European Commission examined causation for all product categories
globally.90
7.51. The definitive safeguard consists of the following elements:
a. the introduction of tariff-rate quotas (TRQs) for each of the 26 product categories subject
to measures91, with the following characteristics:
i. for each product category, the European Commission based the initial level of the TRQ
on the average imports in the period 2015-2017 plus 5%92;
ii. the European Commission further split two of the 26 product categories into two
subcategories, adopting a TRQ for each subcategory93; and
iii. for most product categories, the European Commission allocated part of the TRQ on a
country-specific basis.94
b. an out-of-quota duty rate of 25% for all product categories95; and
c. for each of the 26 product categories separately, the exclusion of developing country
Members with de minimis exports.96
7.52. Having set out the facts, we now assess whether Turkey has established that the
definitive safeguard is inconsistent with Article XIX:1(a) and Article 2.1 on the basis of a mismatch
between the products to which the European Commission has applied the safe guard, on the one
hand, and the products for which it has investigated the existence of the circumstances and
conditions required to apply the safeguard, on the other.
7.53. We recall, first, that Article XIX:1(a) and the Agreement on Safeguards do not constrain the
choice of product(s) under investigation. 97 They did not therefore bar the European Commission
from choosing to investigate a number of steel products taken together, and indeed Turkey does not
argue that the European Commission's selection of the pro duct under investigation, in itself, gave
rise to an inconsistency. We note in this respect that Turkey's reliance on the fact that the
European Commission has at times used the term "products", in the plural, instead of referring to a
"product" (comprising a number of product categories) is not decisive, because an investigating
authority can investigate and apply a safeguard on a range of products taken together, provided
that the safeguard meets the other requirements of Article XIX:1(a) and the Agreemen t on
Safeguards.98
7.54. Next, we recall that Article XIX:1(a) and Article 2.1 of the Agreement on Safeguards require
a Member to have ascertained the existence of the necessary circumstances and conditions for

90 Definitive determination, (Exhibit TUR-5), recitals 111-127; Provisional determination,
(Exhibit TUR-3), recitals 70-81 (confirmed in Definitive determination, (Exhibit TUR-5), recital 127).
91 Definitive determination, (Exhibit TUR-5), article 1.
92 Definitive determination, (Exhibit TUR-5), recital 144.
93 Definitive determination, (Exhibit TUR-5), recital 160 and annex IV.
94 Definitive determination, (Exhibit TUR-5), article 1(2) and annex IV.
95 Definitive determination, (Exhibit TUR-5), article 6.
96 Definitive determination, (Exhibit TUR-5), article 5 and annex III.2.
97 See para. 7.53 above.
98 Separately, we note that Turkey has also argued that the use of the plural in "measures"
(e.g. "definitive safeguard measures") establishes that the European Union in fact applied 26 distinct
safeguards on 26 products. (Turkey's first written submission, para. 58; request for interim review, para. 9).
We note that it is not uncommon to describe a safeguard as "safeguard measures", and that the
European Commission's references to "safeguard measures" appeared in a context that made it abundantly
clear that the European Commission considered that it had investigated and was applying measures on a
"single product" collectively rather than distinct safeguards on a number of distinct products. (See e.g.
Definitive determination, (Exhibit TUR-5), section 2.1). Therefore, the use of the plural "safeguard measures"
by the European Commission in this context does not assist us in answering the question before us.

applying a safeguard for the same product on which that Member applies a safeguard.99 We therefore
consider whether Turkey has established that the European Commission did not do so.
7.55. We begin by assessing whether Turkey has established that the European Commission has
applied 26 distinct safeguards on 26 products, rather than a single safeguard as the European Union
asserts.
7.56. The facts reviewed above indicate that the European Commission began an investigation into
"certain steel products", together, and indicated that it would "examine [their] situation" bo th
globally and at the level of "the product categories individually" 100; it accordingly collected certain
data globally and other data for each product category individually.101 At the end of its investigation,
the European Commission applied, through the definitive determination (Regulation (EU) 2019/159),
a safeguard consisting of a combination of a zero -rate TRQ and an out -of-quota duty rate of 25%
on 26 categories of steel products. The size of the TRQ was calculated at the level of each product
category or, for two product categories, at the level of further subsets of those product categories,
and according to the definitive determination it was set, among other things, to "ensur[e] that
traditional trade flows are maintained".102 Whenever a product category (or subcategory) subject to
the safeguard is imported in excess of the respective TRQ, it is subject to the out -of-quota duty of
25%.103
7.57. These facts support the European Union's assertion that it applied a single safeguard on
26 steel product categories, together.
7.58. Turkey argues that the fact that the European Commission examined import trends also at
the level of individual product categories, and excluded from the application of the safeguard those
product categories for which, separately, it found no increase in imports, and the fact that, as a
result, the total number of product categories concerned shifted, establish that the European Union
imposed a number of distinct safeguards, each on one product category. 104 However, a Member is
not barred from not applying a safeguard on a subset of the product or products 105 on which it
initiates a safeguard investigation. What a Member applying a safeguard must ensure is that it
verifies the existence of the conditions for imposing a safeguard for the s ame product on which it
applies the safeguard, which is a question we address further below.106 We therefore do not consider
that the decision to refrain from imposing the safeguard on certain product categories establishes
that the European Commission impo sed distinct safeguards on each of the remaining product
categories.
7.59. Turkey also argues that that the fact that TRQs were established at the level of the product
categories shows that the European Union applied distinct safeguards on each product category.107

99 See paras. 7.20-7.23 above.
100 See para. 7.44 above.
101 For example, the European Commission collected data on imports both globally and by product
category; information on unforeseen developments globally; data on volume and value of sales both globally
and by product category; information on Union interest globally; data on injury factors, and data on the
exporters' current and expected capacity and production, by product category. (See e.g. Definitive
determination, (Exhibit TUR-5), table 2 and section 4; and para. 7.45 above).
102 Definitive determination, (Exhibit TUR-5), recital 144. See also European Union's opening statement
at the first meeting of the Panel, para. 20.
103 See para. 7.51 above.
104 Turkey's first written submission, para. 57; second written submission, paras. 32 and 44-45; and
opening statement at the first meeting of the Panel, para. 12. The European Union argues that it adopted
"a conservative approach" by choosing not to include in the safeguard those product categories for which,
taken separately, it did not observe an import surge, even though it had found an import surge for all the
product categories initially considered, taken together. The European Union observes that, having made this
choice, it then verified the existence of the conditions for imposing a safeguard for the same product on which
it applied the safeguard. (European Union's responses to Panel question No. 6, paras. 18-19; and No. 7,
paras. 21-22; second written submission, para. 46; and opening statement at the first meeting of the Panel,
paras. 22-23).
105 See para. 7.53 above.
106 See paras. 7.60-7.67 below.
107 Turkey's first written submission, paras. 54-56; second written submission, paras. 32 and 34-38. The
European Union explains that its safeguard "is calibrated so as to affect in the minimum way possible steel
trade into the EU, reflecting historical trade flows in volumes and origins, making a more effective
administration of the TRQs". (European Union's opening statement at the first meeting of the Panel,
paras. 19-20).

However, we do not consider that the choice of calculating the size of the TRQ at the level of
individual product categories (or further subdivisions 108), to better match traditional trade flows,
establishes the existence of 26 distinct different safeguards, rather than a single safeguard covering
26 product categories. Turkey also refers to the fact that the European Commission excluded
developing country Members with de minimis exports on a category-by-category basis, rather than
for the 26 product cate gories as a whole 109, and points out that "the product" referred to in
Articles 2.1 and 9.1 of the Agreement on Safeguards must be the same. 110 According to the
European Union, it applied Article 9.1 at the level of product categories to ensure "calibration", and
that choice is not evidence of the existence of distinct safeguards for each product category. 111
We note that Turkey does not ask us to assess whether the European Commission's approach is
consistent with Article 9.1 of the Agreement on Safeguards, and we therefore do not do so. Whether
or not the exclusion of developing country Members at the level of subsets of the product concerned
is consistent with Article 9.1, we do not view this approach as establishing that the
European Commission in effect ad opted 26 distinct safeguards. We therefore do not consider that
Turkey has demonstrated that the European Commission adopted 26 distinct safeguards. On this
factual question, we therefore conclude that the European Commission has applied a single
definitive safeguard to 26 steel product categories, taken together.112
7.60. The next question under Article XIX:1(a) and Article 2.1, therefore, is whether the
European Commission has investigated the existence of the circumstances and conditions required
to apply a safeguard for that same product, namely the 26 steel product categories on which it has
applied the challenged definitive safeguard, taken together.
7.61. The facts reviewed above113 indicate that, without prejudice to the substantive adequacy of
the European Commission's examination on other grounds (which we consider in subsequent
sections), the European Commission has examined, for the 26 steel product categories taken
together, whether there had been an increase in imports; whether there existed unforeseen
developments resulting in that increase in imports 114; whether there existed injury or threat of
injury; and whether the injury or threat of injury were caused by the increase in imports; and it
found in each respect that this was the case.115
7.62. In assessing whether there had been an increase in imports, the European Commission also
examined the trends in imports at the level of the product categories. First, the
European Commission examined import trends for all 28 product categories under investigation. By
so doing, it found that imports of 2 of the 28 product categories had not increased between 2013
and the first half of 2018; as a consequence, it chose both to remove those two product categories
from its examination of the circumstances and conditions necessary to apply a safeguard, and not
to apply a safeguard to them. 116 Because the European Commission did not apply a safeguard to
those two product categories, and because it excluded them from every step in its examination of
the necessary circumstances and conditions for imposing a safeguard, we do not consider that

108 See para.7.56 above.
109 Turkey's second written submission, paras. 32 and 39-43.
110 Turkey's comments on the European Union's response to Panel question No. 19, para. 5;
second written submission, para. 42.
111 European Union's response to Panel question No. 19, paras. 5-6; opening statement at the
first meeting of the Panel, paras. 20-21. Among the third parties, the United States argues that: "[w]hen the
products under investigation encompass different types of imported articles, it may be appropriate for a
Member to impose a safeguard measure consisting of tariffs, quotas, or [TRQs] specific to each type of
imported article or to different groupings of imported articles. The suitability of such a safeguard measure will
depend upon the relevant facts". (United States' third-party response to Panel question No. 3, para. 11).
The United Kingdom "does not consider that evidence relating to the manner in which a safeguard measure is
applied, including developing country exceptions, is relevant to the factual determination of the product
concerned adopted by the authority". (United Kingdom's third-party response to Panel question No. 3,
para. 11).
112 As noted above, in this context, the wording "product categories" or "products" is not decisive,
because a Member may adopt a safeguard on multiple product categories, provided that it complies with all the
requirements of Article XIX:1(a) of the GATT 1994 and of the Agreement on Safeguards. (See para. 7.53
above).
113 See para. 7.50 above.
114 See fn 88 above.
115 See para. 7.50 above.
116 Definitive determination, (Exhibit TUR-5), recital 31 and annex II.

Turkey has established that the removal of these two categories, in this case, gave rise to an
inconsistency with Article XIX:1(a) and Article 2.1.117
7.63. The European Commission also examined the evolution of imports at the level of the
three product families into which it grouped the 26 product categories to which it applied the
safeguard, "to supplement the global import analysis".118
7.64. We do not consider that the fact that the European Commission also examined the evolution
of imports at the level of product categories and product families detracts from the fact that the
European Commission assessed the existence of the increase in imports for the 26 pro duct
categories taken together. An authority is not barred from examining the existence of the necessary
conditions, including increase in imports, for segments of the product under investigation, provided
that it does ascertain that the conditions exist for the product as a whole.119
7.65. Similarly, in assessing whether there was a threat of serious injury, the European Commission
also performed its assessment at the level of the three product families into which it grouped the
26 product categories. Again, thi s does not detract from the fact that the European Commission
assessed the existence of threat of injury for the 26 product categories taken together.
7.66. That is, the European Commission has verified the existence of each of the circumstances and
conditions necessary for applying a safeguard, at least, for the 26 product categories taken together,
i.e. the same product to which it has applied the definitive safeguard.
7.67. We therefore find that Turkey has not established that the European Union applied 26 distinct
safeguards on 26 products without examining the existence of the required circumstances and
conditions for each of those products, inconsistently with Article XIX:1(a) and Article 2.1.
7.2.2.1.2 Articles 4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards
7.68. We recall that Turkey argues that by imposing 26 distinct safeguards on 26 products without
examining the existence of the required circumstances and conditions for each of those products,
the European Union also violated Articles 4.1(c), 4.2(a), and 4.2(b). Thus, the factual premise of
these additional claims is the same as reviewed in the previous section (section 7.2.2.1.1). Because
we have found that Turkey has not established that factual premise, we also find that Turkey has
not established that the European Union applied 26 distinct safeguards on 26 products without
examining the existence of the required circumstances and conditions for each of those products,
inconsistently with Articles 4.1(c), 4.2(a), and 4.2(b) of the Agreement on Safeguards.
7.2.2.2 The alleged internal inconsistency in the approach to product scope
7.69. Turkey argues that the European Commission took an inconsistent approach to the products
under investigation because it first gave notice of an investigation into 28 different products, and
sought information by product120, but then examined sometimes all products together, sometimes
each product individually or by family, and sometimes took a combin ation of these approaches.121
Turkey adds that the European Commission also acted in a biased manner, because it first reviewed
the import trends for each product and excluded the products whose imports had not increased, and
then continued the analysis only including those products whose imports had increased.122 According

117 As noted in para. 7.73 below, we do not exclude that modifying the scope of a
safeguard investigation to remove product categories that do not, individually, meet certain conditions, could
lead to a biased outcome in certain cases. However, we do not consider that Turkey has established that, in
this case, the EU approach gave rise to a mismatch between the product to which the European Union applied
the safeguard and the product for which it verified the existence of the necessary circumstances and
conditions.
118 Definitive determination, (Exhibit TUR-5), recitals 33-47.
119 We also note in this regard that the panel in Argentina – Footwear (EC) addressed a similar question,
noting that an authority could examine the existence of injury for segments of the domestic industry, although
it was not required to. (See para. 7.29 above).
120 Turkey's first written submission, paras. 42-46 and 70; second written submission, paras. 19-31;
and opening statement at the first meeting of the Panel, paras. 8-11.
121 Turkey's first written submission, paras. 47-48 and 71-74; second written submission, para. 52; and
opening statement at the first meeting of the Panel, paras. 14-15.

to Turkey, for these reasons, the definitive safeguard is inconsistent with Article XIX:1(a) of the
GATT 1994 and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the Agreement on Safeguards.
Turkey specifies that the "consistency requirement" it relies upon "is supported by Article 4.2(a)",
which according to Turkey establishes an "obligation of objectivity" 123, and by the requirements in
Articles 3.1 and 4.2(c) to publish "reasoned conclusions" and "a detailed analysis", respectively. 124
As for the claims under Article XIX:1(a) and Articles 2.1, 4.1(c), and 4.2(b), Turkey has not
explained in which way its arguments on "consistency" differ from its arguments on the alleged
mismatch b etween the products subject to measures and the investigated products. We have
examined and rejected the latter in the previous section, and therefore, in this section, we do not
further consider the claims under Article XIX:1(a) and Articles 2.1, 4.1(c), and 4.2(b).
7.70. The European Union responds that under Articles 3.1 and 4.2(a), the
authority's "evaluation … must be objective and unbiased", and that Article 3.1(a) requires the
authority to set forth "reasoned conclusions" in its report , and that this is w hat the
European Commission has done. According to the European Union, Articles 3.1 and 4.2(a) do not
prevent an authority from examining individual product categories or product families in addition to
examining a product globally, as argued by Turkey.125 Regarding the exclusion of product categories
whose imports, individually, had not increased, the European Union responds that: the very purpose
of a safeguard investigation is to investigate on what products a measure should be applied; even
when a Member has a right to apply a safeguard, it does not have an obligation to do so 126; the
two categories that were excluded at the definitive stage represented only 0.36% of total imports,
and "a very small amount of the total EU production", and therefore their "impact … would not have
changed the findings with regard to the injury"127; and what matters is that the
European Commission verified the existence of the necessary circumstances and conditions on the
product comprising the 26 product categories to which it applied the definitive safeguard.128
7.71. In essence, insofar as this second set of Turkey's arguments differs from the first set,
discussed in the previous section, Turkey's contentions are that: (a) the European Commission
examined the investigated products sometimes together, sometimes individually, and sometimes
took a mixed approach; and (b) the European Commission's analysis was biased because it removed
from the analysis those products whose imports had not increased.
7.72. As regards the first of these two contentions, we have found, above 129, that the
European Commission examined the existence of each of the requisite circumstances and conditions
for the 26 product categories to which it applied the challenged definitive safeguard, taken together,
and that for some conditions it supplemented that analysis with an analysis at the level of
product categories and/or product families. Given that it applied the definitive safeguard on a
product comprising 26 product categories, taken together, the European Commission was required,
at a minimum, to investigate the existence of the necessary circumstances and conditions for that
product. At the same time, this did not preclude the European Commission from examining that
product, additio nally, at a more disaggregated level. 130 This being the case, Turkey has not
demonstrated that merely by conducting both a global analysis and, in some instances, conducting
in addition a more disaggregated analysis, the European Union acted inconsistently with the
requirements to publish "findings and reasoned conclusions" (Article 3.1), to "evaluate all relevant
factors of an objective and quantifiable nature" (Article 4.2(a)), or to publish "a detailed analysis"
(Article 4.2(c)).
7.73. Turkey also argues that the decision to exclude (from the safeguard and from the underlying
analysis) the two product categories whose imports had not increased between 2013 and June 2018
was biased, because, according to Turkey, it made it more likely to find an increase in impo rts and

123 Turkey's first written submission, para. 40.
124 Turkey's first written submission, para. 41.
125 European Union's first written submission, paras. 47-57.
126 European Union's second written submission, para. 6 (referring to Appellate Body Report, US – Line
Pipe, paras. 83-84 ("[t]he Appellate Body confirmed in US – Line Pipe that the taking of a safeguard measure,
when all the conditions are satisfied, is a right of WTO Members, not an obligation")).
127 European Union's response to Panel question No. 7, para. 23; first written submission, para. 19.
128 European Union's response to Panel question No. 18, paras. 1-4. See also Brazil's third-party
response to Panel question No. 2(b), para. 10.
129 See paras. 7.37-7.45 and 7.50-7.51 above.
130 See para. 7.29 above.

threat of injury.131 We note that once the European Commission decided to exclude these product
categories, it performed every step of its analysis without including them, and it did not include
these product categories within the scope of the safeguard, either. Despite alleging bias, Turkey has
not shown how the exclusion of certain product categories both from the scope of the measure and
from the analytical steps of the investigation supporting the measure led to bias in the present
case.132 Therefore, while we do not discount the possibility that modifying the scope of a
safeguard investigation to remove product categories that do not, individually, meet certain
conditions, could lead to a biased outcome in certain cases, we find that Turkey has not established
that this was so in this instance.
7.74. We also observe that the European Commission explained its approach in the provisional and
definitive determinations. In particular, the European Commission explained why it considered it
appropriate to exa mine the product categories concerned taken together 133; it explained that it
carried out certain additional analyses at the level of individual product categories or of product
families to supplement the global analysis134; and when it excluded certain product categories from
the safeguard and consequently from the analysis of the required circumstances and conditions, it
explained this choice.135
7.75. Turkey argues that the European Commission failed to reach a reasoned and
objective determination because its ap proach to the product under investigation lacked internal
consistency and carried bias; however, we have found above that Turkey has not established that
the European Commission was not entitled to complement the analysis for the product as a whole
with a disaggregated analysis, or to exclude from both the analysis and from the scope of its
safeguard those product categories for which there was no increase in imports, which are the
grounds on which Turkey argues that the EU approach lacked consistency. Given that we have found
that the European Commission's approach to the product under investigation was permissible, and
noting that the European Commission has also explained that approach in some detail, we find that
Turkey has not established that the defin itive safeguard was inconsistent with Article XIX:1(a) of
the GATT 1994 and Articles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and 4.2(c) of the Agreement on
Safeguards because of the alleged internal inconsistencies and bias in the
European Commission's approach to the product under investigation.
7.3 Unforeseen developments
7.76. Turkey argues that the definitive safeguard is inconsistent with Article XIX:1(a) of the
GATT 1994 because: (a) the European Commission did not identify unforeseen developments; (b) if
it did identify developments, they were not unforeseen; and ( c) it did not demonstrate that the
injurious increase in imports occurred "as a result of" the unforeseen developments .136
The European Union disagrees on all counts.
7.77. Below, we first consider the applic able requirements of Article XIX:1(a) (section 7.3.1). We
then examine whether Turkey has established that the European Union acted inconsistently with this

131 See e.g. Turkey's first written submission, para. 75.
132 Turkey has suggested a parallel between the facts in this instance and zeroing in anti-dumping
investigations. However, in this instance the product categories excluded from the investigation of the
circumstances and conditions necessary for imposing a safeguard are also excluded from the application of the
safeguard, and there is no calculation of the equivalent of a dumping margin. (Turkey's comments on the
European Union's response to Panel question No. 50, para. 62; European Union's opening statement at the
second meeting of the Panel, paras. 53-55).
133 See paras. 7.46-7.47 above. See also Provisional determination, (Exhibit TUR-3), recitals 11-17; and
Definitive determination, (Exhibit TUR-5), recitals 12-18. In response to a question from us, Turkey indicated
that this explanation was "irrelevant in the context of Turkey's claims", although "in any event" Turkey did not
agree with the European Commission's explanation that there were an important interrelation and strong
competition between product categories. (Turkey's response to Panel question No. 8, paras. 27-28; request for
interim review, para. 13).
134 Provisional determination, (Exhibit TUR-3), recital 47; Definitive determination, (Exhibit TUR-5),
recitals 19-22, 28, and 34.
135 See paras. 7.48-7.49 above. See also Provisional determination, (Exhibit TUR-3), recital 24,
article 1.1, and annex II; and Definitive determination, (Exhibit TUR-5), recital 31, article 1.1, and annex II.
136 Turkey's first written submission, paras. 87-112 and 123-150; second written submission,
paras. 59-76 and 80-95. Turkey also argues that the European Commission "should have made its analysis of
the unforeseen developments for each product category". (Turkey's first written submission, para. 141). We
have addressed this argument in section 7.2 above.

provision because the European Commission did not identify unforeseen developments
(section 7.3.2.1), because the developments were not unforeseen (section 7.3.2.2), or because the
European Commission did not establish that the injurious increase in imports was "as a result of"
the unforeseen developments (section 7.3.2.3).
7.3.1 The applicable requirements of Article XIX:1(a) of the GATT 1994
7.78. Article XIX:1(a) of the GATT 1994 provides:
If, as a result of unforeseen developments and of the effect of the obligations incurred
by a contracting party under this Agreement, including tariff concessions, any product
is being imported into the territory of that contracting party in such increased quantities
and under such conditions as to cause or threaten serious injury to domestic producers
in that territory of like or directly competitive products, the contracting party shall be
free, in respect of such product, and to the extent and for such time as may be necessary
to prevent or remed y such injury, to suspend the obligation in whole or in part or to
withdraw or modify the concession.137
7.79. Article XIX:1(a) is a two -part conditional sentence, and each part contains several clauses.
The first part of Article XIX:1(a) begins with the conjunction "[i]f" and recites certain circumstances
or conditions. The second part of Article XIX:1(a), which begins with the phrase "the contracting
party shall be free", describes what happens in the event that the circumstances and conditions
contained in the first part of the sentence are satisfied. That is, the Member concerned may ("shall
be free … to") suspend the relevant obligation(s) of the GATT 1994, thus imposing a safeguard.
7.80. Part of the circumstances and conditions that permit a Member to apply a safeguard is that "as
a result of unforeseen developments … [a] product is being imported into the territory of that [Member]
in such increased quantities and under such conditions as to cause or threaten serious injury". We first
consider the meaning of the phrase "unforeseen developments", and then the meaning of the phrase
"as a result of".
7.81. The ordinary meaning of "development" includes "a n event constituting a new stage in a
changing or evolving situation; a fact or circumstance emerging or coming to light".138 The ordinary
meaning of "unforeseen" includes "not anticipated or expected: … unexpected"139, and not "seen
beforehand".140 Thus, an unforeseen development is an event, fact, or circumstance that emerges
or comes to light, including a new stage in an evolving situation, that was not anticipated or
expected. This interpretation accords with findings in previous disputes that "un foreseen
developments" are developments that were "unexpected". 141 Because the ordinary meaning of the
word "development" includes a "new stage in a changing or evolving situation", a known event may
develop into an unforeseen development.142
7.82. Regarding the point in time at which the development must be "unforeseen", we note that
Article XIX:1(a) requires that the injurious increase in imports result from two elements,
i.e. unforeseen developments and "the effect of the obligations incurred" under the GATT 1994. We
further note that the remedy allowed by Article XIX:1(a) is the suspension of the relevant
obligations. To us, this means that the point in time at which a development must have been
"unforeseen" is when the relevant obligations were incurred, because the Member concerned would
not have undertaken the obligation had it foreseen a development that would result in an injurious
increase in imports. This understanding also accords with findings reached in previous proceedings,

137 Emphasis added.
138 Oxford Dictionaries online, definition of "development", n., meaning II.11
https://www.oed.com/view/Entry/51434?redirectedFrom=development#eid (accessed 22 September 2021).
139 Merriam Webster, online edition, definition of "unforeseen", adj., https://www.merriam-
webster.com/dictionary/unforeseen (accessed 22 September 2021).
140 Oxford Dictionaries online, definition of "foreseen", adj.,
https://www.oed.com/view/Entry/73150?rskey=ykyd38&result=2&isAdvanced=false#eid (accessed
22 September 2021).
142 See also Panel Reports, US – Steel Safeguards, para. 10.84 ("there may be instances where an event
which is already known will develop into a situation initially unforeseen").

namely that the point in ti me at which a development must be unforeseen is when the relevant
obligations were incurred.143
7.83. Whether a given development was unforeseen at the time the obligations were incurred will
of course depend on the facts. We note that, in the past, panels have found that certain market
developments, in the circumstances of the cases before them, could con stitute unforeseen
developments. In US – Steel Safeguards, for example, the panel found that the Russian financial
crisis, the Asian financial crisis, the continued strength of the US market, and the persistent
appreciation of the dollar, taken together, could constitute unforeseen developments.144 As regards
specifically the Russian financial crisis, the panel considered arguments to the effect that the crisis
could not be unforeseen during the Uruguay Round, because the Union of Soviet Socialist Republics
(USSR) had dissolved prior to the conclusion of the Uruguay Round and Russia's then-current
financial circumstances could be traced to that dissolution. In considering this argument, the panel
observed that the United States had distinguished between the a nticipated financial difficulties
flowing from the dissolution of the USSR and the additional financial disruption that was unforeseen,
and stated that "an unforeseen development may evolve from well -known prior facts". 145 In
India – Iron and Steel Products, the panel reviewed India's conclusion that a significant increase in
steel excess capacity, decreased demand for steel in important markets, currency depreciation in
Russia and Ukraine, and increased demand and prices in India, were unforeseen developmen ts. In
doing so, the panel reasoned that while "changes in production capacity or demand are not
necessarily extraordinary circumstances, and can occur as part of normal business cycles, the extent
and timing of such changes as well as the degree of their impact on the competitive situation in the
market can be unforeseen". The panel found that having explained the extent of the developments
and having noted that they were occurring at the same time, India had reasonably concluded that
they constituted unforeseen developments.146
7.84. Turning to the phrase "as a result of" we note that the ordinary meaning of the word "result"
includes "[t] he effect, consequence, or outcome of some action, process, or design ".147 In
Article XIX:1(a) the phrase "as a result of" connects the unforeseen developments and the injurious
increase in imports, i.e. it envisages that the injurious increase in imports occurs "as a result of" –
i.e. is the effect, consequence or outcome of – the unforeseen developments. We note that previous
reports have described this as a "logical connection" between the unforeseen developments and the
injurious increase in imports. 148 The phrase "logical connection" does not appear in the text of
Article XIX:1(a). However, our understanding of this provision accords with this concept.149 We also
note that in describing the relationship required between the increased imports and the injury
suffered by the domestic industry, Article XIX:1(a) uses the word "cause" in the phrase "cause or
threaten serious injury". In contrast, the word "cause" is not used in the first part of Article XIX:1(a),
which uses instead the phrase "as a result of". The different choice of terms indicates that the

143 See e.g. Appellate Body Report, Korea – Dairy, para. 86; Panel Reports, US – Steel Safeguards,
paras. 10.79, 10.80, and 10.85; and Working Party Report, US – Fur Felt Hats, GATT/CP/106, adopted
22 October 1951, para. 12.
144 Panel Reports, US – Steel Safeguards, paras. 10.78-10.100.
145 Panel Reports, US – Steel Safeguards, para. 10.84. The panel in that case therefore accepted for the
sake of argument that the Russian financial crisis could constitute an unforeseen development.
(Ibid. para. 10.85 ("the Panel will accept, arguendo")).
146 Panel Report, India – Iron and Steel Products [appealed by India on 14 December 2018, appealed by
Japan on 21 December 2018], paras. 7.90-7.99.
147 Oxford Dictionaries online, definition of "result", n., meaning II.4.a
https://www.oed.com/view/Entry/164061?rskey=Ft4Kjb&result=1&isAdvanced=false#eid
(accessed 22 September 2021).
148 Appellate Body Reports, Korea – Dairy, para. 85; Argentina – Footwear (EC), para. 92; US – Lamb,
para. 72; and US – Steel Safeguards, paras. 317-318 and 322; and Panel Reports, US – Steel Safeguards,
para. 10.104; and Argentina – Preserved Peaches, paras. 7.17 and 7.24. See also, with different wording,
Panel Report, India – Iron and Steel Products [appealed by India on 14 December 2018, appealed by Japan on
21 December 2018], paras. 7.105-7.106, 7.110, and 7.114. The report of the GATT Working Party in US – Fur
Felt Hats described the requirement as being that "the increased imports must be the result of unforeseen
developments". (Working Party Report, US – Fur Felt Hats, GATT/CP/106, para. 4(a)(ii); see also ibid. paras. 7
and 11-12).
149 Appellate Body Reports, Korea – Dairy, para. 85; US – Steel Safeguards, paras. 317-318. See also
Panel Reports, US – Steel Safeguards, para. 10.104; and India – Iron and Steel Products [appealed by India on
14 December 2018, appealed by Japan on 21 December 2018], para. 7.86.

relationship required between unforeseen developments and the increase in imports is not the same
as causation, which is instead required between the increase in imports and serious injury.
7.85. In US – Steel Safeguards, the panel reasoned that the "nature of the facts, including their
complexity, will dictate the extent to which the rela tionship between the unforeseen developments
and increased imports causing injury needs to be explained ".150 We agree that what is required to
establish the connection between the unforeseen developments and the increase in imports will
depend on the specific facts of each case. As the panel observed in US – Steel Safeguards, "[i]n
some cases, the explanation may be as simple as bringing two sets of facts together", whereas "in
other situations, it may require much more detailed analysis".151
7.86. We now assess whether Turkey has demonstrated that the European Commission did not
establish the existence of unforeseen developments that resulted in the injurious increase in imports.
7.3.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article XIX:1(a) of the GATT 1994 with regard to unforeseen developments
7.87. To recall, Turkey claims that the definitive safeguard is inconsistent with Article XIX:1(a) of
the GATT 1994 because the European Commission adopted that measure without e stablishing the
existence of unforeseen developments that resulted in the injurious increase in imports.
Turkey advances three sets of arguments in support of this claim: first, that the
European Commission did not even nominally identify unforeseen developments; second, that if the
European Commission did identify certain developments, these developments were not
"unforeseen"; and third, that the European Commission did not establish that the unforeseen
developments resulted in the increase in imports of t he product under investigation into the
European Union. We examine each of these three sets of arguments in turn, below.
7.3.2.1 Whether the European Commission did not identify any unforeseen developments
7.88. Turkey notes that the European Commission's provisional and definitive determinations
stated that the increase in imports "had been the result of unforeseen developments that found their
source in a number of factors ", and then went on to describe the fact ors in question. 152 Turkey
argues that the fact that the European Commission described the factors that were allegedly the
source of unforeseen developments, means that the European Commission did not identif y the
unforeseen developments themselves, which must be different from their "source".153 Turkey adds
that the "failure to clearly identify the events … is compounded by the failure to clearly state
when … the factors identified would have occurred", with the European Commission making
imprecise references to different time periods, one of which spanned 16 years.154
7.89. The European Union asserts that Turkey's arguments are mere "semantic efforts", and
explains that the developments that the European Commission described as the "source" are indeed
the unforesee n developments. 155 Regarding timing, the European Union responds that the
provisional and definitive determinations do identify the timeframe of each development, and that
not all events that form a confluence of developments must take place simultaneously.156
7.90. Among the third parties, the United States argues that an authority is not required to
demonstrate in its published report the existence of unforeseen developments before it applies a
safeguard; the developments need only exist as a matter of fact.157 Japan, Switzerland, and Ukraine
argue that an authority must identify the unforeseen developments in its published report before

150 Panel Reports, US – Steel Safeguards, para. 10.115.
151 Panel Reports, US – Steel Safeguards, para. 10.115.
152 Definitive determination, (Exhibit TUR-5), recital 48 (emphasis added). See also Provisional
determination, (Exhibit TUR-3), recital 30.
153 Turkey's first written submission, paras. 88-89; second written submission, para. 59.
154 Turkey's first written submission, para. 90; second written submission, paras. 60-61.
155 European Union's first written submission, paras. 72-74.
156 European Union's first written submission, paras. 75-79 (referring to Panel Report, India – Iron and
Steel Products [appealed by India on 14 December 2018, appealed by Japan on 21 December 2018],
para. 7.114).
157 United States' third-party submission, paras. 8-14; third-party statement, paras. 7-10.

applying a safeguard. 158 Concerning Turkey's reliance on the fact that the European Commission
referred to "factors", Switzerland argues that the particular label used by the authority to describe
the developments does not matter.159
7.91. We turn for our assessment to the provisional and definitive determinations.
7.92. The provisional160 and definitive determinations each contain a section e ntitled "Unforeseen
Developments".161 In those sections, both determinations identify three cumulative developments,
namely: (a) "unprecedented" overcapacity in the steel sector, which persisted despite measures
taken to narrow it 162, and which was fuelled b y government support 163; (b) greater use of
trade-restrictive measures in third -country markets, including applied tariff increases, minimum
import prices, mandatory national standards, and local content requirements, and a steady increase
in trade defence measures on steel, a significant portion of which was by the United States, one of
the world's largest steel importers164; and (c) the United States' Section 232 measures.165
7.93. Turkey grounds its claim that the European Commission did not identify any unforese en
development on the fact that both determinations refer to unforeseen developments that "found
their source in a number of factors"166, and then list the developments set out above. Turkey points
to this statement to reason that if these developments are "factors" that were the "source" of the
unforeseen developments, they could not be the unforeseen developments themselves, and
therefore that the European Commission cannot be considered to have even nominally identified any
unforeseen developments. We disagree. The developments in question are listed and discussed in a
section clearly entitled "unforeseen developments"167; they are referred to interchangeably not only
as "factors" but also as "unforeseen developments" 168; the European Commission addressed
arguments of the interested parties tending to establish that the developments were not unforeseen,
explaining why, in its view, they were indeed unforeseen169; and the European Commission indicated
that these developments led to an increase in imports. 170 It is thus clear from the
European Commission's published determinations that it considered these to be the relevant
unforeseen developments. In this context, that the European Commission referred at times to the
unforeseen developments as "factors" that were a "source" of unforeseen developments does not
negate the fact that it identified the developments at issue as unforeseen developments. A Member
is not necessarily required to use the exact wording of the World Trade Organization (WTO)
Agreement in its domestic determinations.
7.94. On Turkey's argument that the European Commission did not "clearly state when … the
factors identified … occurr ed"171, we observe that the provisional and definitive determinations
indicated that: (a) global steelmaking capacity had more than doubled from 2000 to 2017 and global

158 Japan's third-party submission, para. 6; Switzerland's third-party submission, para. 13; and
Ukraine's third-party submission, para. 11.
159 Switzerland's third-party submission, para. 17.
160 The definitive determination incorporates by reference the findings on unforeseen developments of
recitals 30 to 36 of the provisional determination, which thus also form part of the basis for the definitive
safeguard. (Definitive determination, (Exhibit TUR-5), recital 48; see also para. 7.10 above).
161 Provisional determination, (Exhibit TUR-3), section V; Definitive determination, (Exhibit TUR-5),
section 4.
162 Provisional determination, (Exhibit TUR-3), recital 31; Definitive determination, (Exhibit TUR-5),
recitals 48-49 and 62.
163 Provisional determination, (Exhibit TUR-3), recital 32; Definitive determination, (Exhibit TUR-5),
recitals 48-49 and 62.
164 Provisional determination, (Exhibit TUR-3), recitals 33-34; Definitive determination, (Exhibit TUR-5),
recitals 48-49 and 62.
165 Provisional determination, (Exhibit TUR-3), recital 35; Definitive determination, (Exhibit TUR-5),
recitals 48-49 and 62.
166 Definitive determination, (Exhibit TUR-5), recital 48; Provisional determination, (Exhibit TUR-3),
recital 30 ("that finds its source in").
167 Provisional determination, (Exhibit TUR-3), section V, heading; Definitive determination,
(Exhibit TUR-5), section 4, heading.
168 See e.g. Provisional determination, (Exhibit TUR-3), recital 36 ("the abovementioned unforeseen
developments").
169 Definitive determination, (Exhibit TUR-5), recitals 51-52.
170 Provisional determination, (Exhibit TUR-3), recital 36; Definitive determination, (Exhibit TUR-5),
recital 62.
171 See para. 7.88 above.

steel production in 2016 was 100 million tonnes higher than global steel demand 172; (b) s everal
countries had made greater use of trade restrictive measures on steel products since 2014/2015
and throughout 2017 173; (c) there had been significantly more initiations of steel-related trade
defence investigations in 2015 -2016 than in 2011 -2013, and in 2018 the United States had
169 anti-dumping and countervailing ( AD/CV) duty orders in place on steel and 25 ongoing
investigations174; and (d) the US Section 232 measures on steel had been adopted in March 2018,
following an investigation initiated in A pril 2017 and a report published in January 2018. 175 Thus,
the European Commission described the timing of each development either by reference to a
timeframe over which it had manifested itself (e.g. the doubling of capacity since 2000), or by
reference to the specific time at which it was introduced ( e.g. the initiation of a US Section 232
investigation in April 2017 and introduction of measures in March 2018). Therefore, we do not see
that Turkey has substantiated its allegation that the European Commission failed to identify
unforeseen developments because it did not sufficiently identify their timing.
7.95. Given this, we reject Turkey's arguments that the European Commission did not identify the
unforeseen developments on which the definitive safeguard is based.
7.3.2.2 Whether the developments were not unforeseen
7.96. Turkey argues that even if the European Commission had identified developments, none of
them was unforeseen. We consider whether Turkey has so established for each of the three sets of
developments identified by the European Commission (the increase in steel overcapacity, the
increase in trade restrictive and trade defence measures on steel, and the US Section 232 measures
on steel), in turn.
7.97. First, Turkey submits that steel overcapacity existed for decades and predated the
Uruguay Round, and therefore was not unforeseen.176
7.98. The European Union responds that the European Commission explained why the overcapacity
in question was unforeseen: according to the European Commission's explanations, this was
because steel production capacity continued to increase after 2011 (following a dip between
2009 and 2011) despite being already excessive then and despite the fact that it was econo mically
expected to decline, and because this overcapacity persisted "despite the important number of
measures taken to reduce it". 177 The European Union also observes that the panel in India – Iron
and Steel Products considered that the increase in production capacity for steel in 2015 was, together
with other factors, an unforeseen development.178
7.99. Turkey responds to the European Union that if an authority relies on developments in the
market such as changes in capacity as an unforeseen development, it must provide "a reasonable
and detailed explanation regarding exactly how … [they] are unforeseen". According to Turkey,
"[t]he European Commission's findings and explanations that '[post-2011] it was expected that total
crude steel capacity would decrease or at least remain stable', do not constitute such a reasonable
and detailed explanation, as this statement is provided without evidence ." Turkey also asserts that
the dip in overcapacity between 2009 and 2011 was due to the financial crisis, and therefore that it

172 Provisional determination, (Exhibit TUR-3), recital 31. In addition, in the definitive determination the
European Commission discussed intervening trends (comparing 2009-2011 with 2011-2016) to address
arguments to the effect that excess steelmaking capacity was not unexpected. (Definitive determination,
(Exhibit TUR-5), recital 52).
173 Provisional determination, (Exhibit TUR-3), recital 33.
174 Provisional determination, (Exhibit TUR-3), recital 34; Definitive determination, (Exhibit TUR-5),
recital 56.
175 Definitive determination, (Exhibit TUR-5), recitals 49 and 58-59.
176 Turkey's first written submission, paras. 93-96; see also response to Panel question No. 9, on the
issue of the treatment of one piece of evidence. Turkey argues in particular that because overcapacity has
existed for decades and predated the Uruguay Round, "[p]eriods of overcapacity in commodities … cannot be
characterized as an unexpected development that was unforeseen by the European Union during the Uruguay
Round." (Turkey's first written submission, para. 94; request for interim review, para. 15).
177 European Union's first written submission, paras. 82-87; Definitive determination, (Exhibit TUR-5),
recitals 49 and 52. See also European Union's response to Panel question No. 9, para. 30.
178 European Union's first written submission, para. 85.

was to be expected that capacity would then have resumed its upward trend observed in the previous
years.179
7.100. Among the third parties, Canada submits that overcapacity may be an
unforeseen development but that an authority must provide a reasoned and ad equate explanation
of why this is so.180 Brazil submits that if a Member invokes market dynamics, such as overcapacity,
as an unforeseen development, it must provide a careful explanation of why they were
unforeseen.181 The Republic of Korea and Ukraine submit that overcapacity has existed in the steel
sector for a long time, and the Republic of Korea therefore considers it "[i]n principle … doubtful"
that it could constitute an unforeseen development. 182 More generally, on the interpretation of
"unforeseen", Japan submits that an authority must have, "at a minimum, some discussion as to
why the alleged 'unforeseen developments' were 'unexpected'", and the United States argues that
unforeseen means not actually foreseen.183
7.101. We turn again for our as sessment to the published determinations. With respect to
overcapacity, we understand the explanation in the published determinations to be that what was
unexpected was that overcapacity would continue to increase, reaching "unprecedented" levels,
contrary to economic logic and efforts to contain the increase. 184 Turkey relies on the fact that
overcapacity in the steel sector has existed for a long time and argues that therefore periods of
overcapacity were not unforeseen when concluding the Uruguay Round.185 However, Turkey has not
directly contested the European Commission's assertions that overcapacity had continued to
increase and reached unprecedented levels , with capacity having more than doubled since 2000,
despite measures to contain overcapacity. Turkey has contested the relevance of the 2009-2011 dip
in overcapacity in the assessment conducted by the European Commission, and has noted that the
European Commission's statement that capacity would have been expected to decrease or remain
stable after 2011 did not contain a reference to supporting material on the record .186 This however
does not contradict the proposition relied on by the European Commission that it was contrary to
economic logic for capacity to continue to increase when there was already c onsiderable
overcapacity. The European Commission drew a distinction between an underlying
situation – i.e. overcapacity per se, which was known at the time of the Uruguay Round – and its
development into a new situation, i.e. the fact that overcapacity gr eatly increased, contrary to
economic expectations and measures taken to address it. We do not consider that more was required
in this case to identify the unprecedented overcapacity as a development that was unforeseen in
this instance. A development that was unforeseen at the time of contracting an obligation can evolve
from a situation that was known at that time. We therefore do not consider that Turkey has
established that the European Commission erred in concluding that increased overcapacity
constituted a development that was unforeseen at the conclusion of the Uruguay Round.
7.102. Second, Turkey argues that the increase in trade defence measures on steel products could
not be unforeseen, because : "the adoption of trade defence measures is contemplated by
WTO rules"187; periodic increases in the use of anti-dumping measures had taken place before the
Uruguay Round188; data on the use of anti-dumping measures since 1995 also show that there are
periodic peaks in the number of anti -dumping investigations, both g enerally and for "base metals
and articles"189; and the European Union itself contributed to the alleged increase both by adopting

179 Turkey's first written submission, paras. 94-96; second written submission, paras. 65-67.
180 Canada's third-party submission, para. 23.
181 Brazil's third-party submission, paras. 5-6.
182 Korea's third-party submission, para. 17; Ukraine's third-party submission, para. 15; and third-party
statement, para. 7.
183 Japan's third-party submission, para. 7; United States' third-party submission, para. 5; and
third-party statement, paras. 4-6.
184 Provisional determination, (Exhibit TUR-3), recital 31; Definitive determination, (Exhibit TUR-5),
recitals 49 and 52.
186 See para. 7.99 above.
187 Turkey's first written submission, para. 100.
188 In this regard, Turkey relies on data concerning all anti-dumping investigations, regardless of the
product concerned. (Turkey's first written submission, paras. 101-102 and 106, and figure 2).
189 Turkey's first written submission, paras. 102-104 and (for iron and steel products in the
United States) 108, and figures 2-4.

trade defence measures and because its steel exports were also the target of trade defence
measures.190
7.103. The European Union responds that increases in trade restrictive and trade defence measures
are not necessarily unforeseen developments, but can be. According to the European Union, the
extent, timing, and degree of impact of such increases can make them an unforeseen development,
and did in this case. 191 The European Union likewise contests the relevance of some of
Turkey's factual allegations. According to the European Union, of three datasets that Turkey has
submitted showing the evolution of anti-dumping measures, two are not relevant because they are
not specific to steel, and one is not relevant because it postdates the Uruguay Round and therefore
cannot serve as an indicator of what was unforeseen when the European Communities incurred the
relevant obligation of the GATT 1994.192 The European Union also observes that the trade defence
measures either initiated by the European Union or against EU steel exports account for a small
proportion of the "worldwide use of trade defence measures in the steel sector".193
7.104. To the European Union's objection that the data submitted by Turkey on the use of
anti-dumping measures after the Uruguay Round does not help assess whether a particular
development was unforeseen when the European Communities incurred the relevant obli gation of
the GATT 1994, Turkey responds that the data it has provided are intended to show that the use of
trade defence measures , in general and for the "steel -related" sector, "follows cycles of varying
intensity" and has done so both before and after the Uruguay Round.194
7.105. In the context of its discussion of post -Uruguay Round data, Turkey also notes that the
number of anti-dumping initiations had decreased in 2014 compared to 2013, and in 2017 -2018
compared to 2015-2016, and that as a result the number of initiations in 2017-2018 was only slightly
higher than in 2011 -2013. According to Turkey, these facts contradict the
European Commission's statement that there had been a steady increase in the recourse to trade
defence measures and that the situa tion constituted an unforeseen development .195 The
European Union responds that the slight decrease in the number of anti-dumping initiations in 2014
was compensated by an increase in countervailing duty initiations the same year196, that the number
of initiations increased again in 2015 197, and that the decrease in the number of initiations in
2017-2018 compared to 2015-2016 did not call into question the unforeseen nature "of the overall
significant increase of the use of trade defence measures".198
7.106. Finally, Turkey argues that the fact that the United States had in place a large number of
trade defence measures on stee l in 2018 could not be unforeseen because the United States was
one of the largest steel importers, and had had a similarly high number of trade defence measures
on steel in place in 2002 -2006.199 The European Union responds that this does not preclude a
significant increase in trade defence measures by the United States, "as part of a global increase in
the use of such instruments", from constituting an unforeseen development. In response to
Turkey's argument, the European Union also provides an overview of the evolution of the number

190 Turkey's first written submission, para. 107.
191 European Union's first written submission, paras. 89-90.
192 European Union's first written submission, para. 91 (referring to Turkey's first written submission,
figures 2 and 3) and para. 92 (referring to Turkey's first written submission, figure 4). The data in figure 3 also
postdates the Uruguay Round.
193 European Union's first written submission, paras. 88-106.
194 Turkey's second written submission, paras. 68-75; request for interim review, para. 19. Turkey also
reiterates its earlier arguments and notes that reliance by the European Union on an OECD presentation is an
ex post explanation. (Turkey's second written submission, para. 75).
195 Turkey's first written submission, para. 105; second written submission, paras. 70-71; and request
for interim review, para. 19.
196 European Union's first written submission, paras. 92 and 95 (referring to WTO statistics on
antidumping initiations by sector, (Exhibit EU-2); and WTO statistics on countervailing initiations by sector,
(Exhibit EU-3)). The data on initiations per year in the provisional determination, recital 34, refer to
anti-dumping initiations. (WTO statistics on antidumping initiations by sector, (Exhibit EU-2)).
197 European Union's first written submission, para. 95.
198 European Union's first written submission, para. 96. The European Union also notes that the
WTO statistics on base metals and articles "show a significant increase [in the number of initiations] during
2014-2018 compared to the period 2011-2013", and also show that 498 antidumping and 61 countervailing
measures were adopted worldwide in the (six-year) period 2013-2018 compared to 163 and 25, respectively,
in the (seven-year) period 2006-2012. (European Union's first written submission, para. 93).
199 Turkey's first written submission, para. 108.

of anti-dumping and countervailing duty investigations and orders by the United States over several
years.200
7.107. Among the third parties, Brazil argues that accepting that trade defence measures, which
are "an integral part of the WTO system"201, may constitute an unforeseen development risks leading
to an escalation in trade barriers; and that to establish that they do constitute unforeseen
developments, there must at least be solid supporting data and an "adequate threshold". 202
Switzerland shares the concern of an escalation of trade restrictions, and adds that an exercise of
rights under the covered agreements cannot be an unforeseen development. 203 The Republic of
Korea notes that the use of trade defence measures is presumably "lawful".204
7.108. We do not consider that the fact that the WTO Agreement may contemplate particular events
or circumstances establishes that they cannot constitute an unforeseen development. By way of
illustration, we note that while the GATT 1994 refers to "action … taken in time of w ar", this
statement, standing alone, does not necessarily preclude actions taken in time of war from
constituting an unforeseen development.
7.109. Regarding the European Union's contribution to the increase, the European Union asserts
that any such increase was marginal, and Turkey has not provided us with information rebutting this
assertion.205
7.110. We turn to consider Turkey's argument that there are cycles in the use of trade defence
measures206, and that for this reason increases in their use are not unexpected . We note that the
published determinations place the increase in trade defence measures in the broader context of
increased overcapacity and the US Section 232 measures, and cite an increase in the average
number of steel-related anti-dumping investigations initiated per year from 77 in 2011-2013 to 117
in 2015-2016 and the fact that the United States had, in February 2018, 169 AD/CV orders in place
on steel and 25 ongoing investigations. 207 In response to objections that the adoption of trade
defence measures could not be unforeseen, the European Commission further explained in the
definitive determination that the "issue" was "the unprecedented and increased number of such
measures taken by third countries, which ha[d] created trade diversion resulting in increase of
imports into the [European Union]".208 Thus, the European Commission did not assert that any uptick
in trade defence measures would constitute an unforeseen development, but inst ead based its
finding that these developments were unforeseen on the concrete circumstances before it. The fact
that the use of trade defence measures may "follow cycles", or fluctuate, does not mean that an
increased use of such measures cannot ever const itute an unforeseen development. The
European Commission found that in the particular circumstances before it , the increase in trade
defence measures together with the other developments was unforeseen within the meaning of
Article XIX:1(a), and we consider that the fact that the use of trade defence measures may fluctuate
does not call into question that assessment.
7.111. We next turn to Turkey's arguments regarding the number of worldwide initiations of
anti-dumping investigations into base metals and articles in 2014 and 2017 -2018, and regarding
trade defence investigations and orders by the United States. 209 We recall that the
European Commission relied on the significant increase in the number of anti-dumping initiations

200 European Union's first written submission, paras. 100-106.
201 Brazil's third-party submission, para. 7.
202 Brazil's third-party submission, paras. 7-10.
203 Switzerland's third-party submission, paras. 18-21.
204 Korea's third-party submission, para. 17.
205 Turkey notes that the European Union had initiated 29 trade defence investigations for iron and steel
between 2013 and 2019, and compares the trade defence measures on steel targeting the European Union
with the total trade defence measures targeting the European Union. The European Union responds that 72 of
723 "trade defence measures of all types" in force in 2020 targeted the European Union, and notes that it
initiated 29 trade defence investigations for iron and steel between 2013-2018 out of a total of
582 anti-dumping and 118 countervailing initiations in the "Base metals and articles" sector in the same period
2013-2018. (Turkey's first written submission, para. 107; European Union's first written submission, para. 98).
206 We note in this regard the European Union's observation that much of the data provided by Turkey
on the fluctuations in the use of trade defence measures postdate the Uruguay Round or do not concern the
207 Provisional determination, (Exhibit TUR-3), recital 34.
208 Definitive determination, (Exhibit TUR-5), recital 56.
209 See paras. 7.105 and 7.106 above.

worldwide in the steel sector in the pe riod 2015-2016 as compared to the period 2011 -2013, and
on the number of steel-related trade defence investigations and orders in place in the United States
in February 2018, as evidence that there had been a significant increase in recourse to trade defence
measures on steel, in a broader context of overcapacity, trade restrictive measures on steel, and
the US Section 232 measures on steel. That the number of worldwide initiations was not as high in
2014 or 2017-2018 does not upset those observations and the conclusions drawn from them by the
European Commission that the developments in question were unforeseen. Similarly, it is not merely
because the United States is a large market, or because it had already had a high number of
measures in place in 2002-2006, that its high number of orders and investigations in 2018 did not
contribute to the overall situation that the European Commission found to be "unforeseen".
7.112. We therefore do not consider that Turkey has shown that the European Commission acted
inconsistently with Article XIX:1(a) in concluding that the increase in trade defence measures it
identified, together with the other developments it identified, was unforeseen.
7.113. Turning to the increase in trade restrictive measures on steel products, Turkey asserts that
the European Commission did not clearly identify the measures and did not explain how an increase
in a most-favoured-nation tariff or a tariff increase adopted as a trade defence measure would be
unforeseen.210 In response, the European Union recalls that the provisional determination listed the
types of measures taken (tariff increases, standards, local content requirements) and countries
adopting such measures (India, Indonesia, Mexico, South Africa, Turkey, and the United States).211
The European Union also states that more detail is provided in an OECD presentation made at the
83rd session of the OECD S teel Committee, and notes that the provisional determination refers to
the reports from the 83rd and 84th sessions of the OECD Steel Committee. However, as that reference
is not made in the context of increases in trade restrictive measures, we do not rely on the
OECD presentation in this context. 212 Among the third parties, the Republic of Korea submits that
the adoption of government restrictions is also part of the reality in the steel sector, and it is
therefore "doubtful" that it may constitute an unforeseen development.213
7.114. Regarding the identification of the trade -restrictive measures, we note that the published
determinations identify both the types of measures at issue and a number of countries having
adopted them. While Turkey submits that "it is difficult to understand how"214 the increase in these
measures could be unforeseen, it has not articulated why this is the case. Similar to the increase in
trade defence measures, the European Commission cited the increase in trade-restrictive measures
in a context that included unprecedented overcapacity and the US Section 232 measures, which
constrained the universe of outlets for steel product s around the world, thereby "establishing and
aggravating imbalances in the international trade of the products concerned".215 We do not consider
that Turkey has established that the European Commission erred in finding that these events,
including the incr eased recourse to trade -restrictive measures, in this context, by a number of
countries, were unforeseen.
7.115. Third, Turkey also submits that the Section 232 measures that the United States adopted
on steel could not constitute an unforeseen development becaus e Section 232 of the
Trade Expansion Act, the US legislation that allows the adoption of such measures in the
United States, long predated the Uruguay Round. 216 The European Union responds that indeed
measures adopted under Section 232 will not always be un foreseen developments, but they might
be, and that the European Commission explained why they were in these circumstances.217 Among
the third parties, Canada takes the view that there could be instances in which Section 232 measures
could be unforeseen deve lopments, but that the Panel must assess whether the

210 Turkey's first written submission, para. 110.
211 Provisional determination, (Exhibit TUR-3), recital 33.
212 European Union's first written submission, para. 108 (referring to Presentation at the 83rd session of
the OECD Steel Committee, (Exhibit EU-7)). In the context of overcapacity and government support measures,
fns 1-2 to recitals 31-32 of the provisional determination refer to "reports from the 83rd and 84th OECD Steel
Committee" and provide the following link: http//:www.oecd.org/stid/ind/steel.htm. (Provisional determination,
(Exhibit TUR-3), fns 1-2).
213 Korea's third-party submission, para. 17.
214 Turkey's first written submission, para. 110.
215 Provisional determination, (Exhibit TUR-3), recital 30.
217 European Union's first written submission, para. 110 (referring to Provisional determination,
(Exhibit TUR-3), recital 35).

European Commission gave a reasoned and adequate explanation of why this was so in the case
before it.218
7.116. The fact that existing legislation of a Member may authorize that Member to adopt a
particular measure does not in itself establish that all measures that may be applied by virtue of
that legislation are foreseen. By way of illustration, a Member's legislation may establish certain
rules regarding military conflict, but that does not mean that any military conflict engaged in by that
Member cannot be "unforeseen" within the meaning of Article XIX:1(a). Turning to the published
determinations in the present case, we note that the European Commission referred to the "level
and scope" of the US Section 232 measures on steel, noting that it consisted of "a single
across-product tariff … with almost no country exclusion", and that the measure was expected to
reduce imports of steel products into the United States by 13 million tonnes. The
European Commission also took the view that the measure was "illegal", and observed that it was
being introduced "in the context of the prevailing persistent … overcapacity". 219 The
European Commission thus articulated several reasons why it regarded these specific Section 232
measures, and the events that included these measures, as unforeseen. The fact that the
Section 232 measures were adopted in accordance with longstanding U S legislation does not
establish that the European Commission erred in considering those specific Section 232 measures
to be an unforeseen development.
7.117. We therefore find that Turkey has not established that the European Commission erred in
finding that the developments it relied upon were unforeseen.
7.3.2.3 Whether the European Commission did not establish that the increase in imports
was "as a result of" the unforeseen developments
7.118. Turkey's third set of arguments is that the European Commission did not establis h the
requisite "logical connection" between the unforeseen developments and the increase in imports.
Specifically, Turkey argues that: (a) the European Commission did not do enough to establish how
the unforeseen developments resulted in the increase in imports into the European Union220; (b) the
unforeseen developments related to steel in general, and the European Commission did not
demonstrate that they resulted in the increase in imports of the specific steel products under
investigation221; and (c) the US Section 232 measures, introduced in March 2018, could not have
resulted in the increase in imports observed during 2013 -2017.222 We consider these arguments in
turn.
7.3.2.3.1 Whether the European Commission did not do enough to establish how the
unforeseen developments had resulted in the increase in imports into the European Union
7.119. We begin by considering Turkey's argument that the European Commission did not do
enough to establish how the unforeseen developments (i.e. overcapacity, the increase in trade
restrictive and trade defence measures, and the Section 232 measures) resulted in the increase in
imports at issue, and instead made assertions unsupported by evidence.
7.120. In considering these arguments, we note that the parties disagree on how much was required
in th is case to establish that the unforeseen developments resulted in the injurious increase in
imports into the European Union. On the one hand, Turkey argues that as the European Commission
relied on a complex set of facts to establish the "logical connectio n" between the unforeseen
developments and the resulting increase in imports, the European Commission was required to
provide a "detailed explanation … of how the alleged unforeseen developments resulted in increases

218 Canada's third-party submission, para. 25.
219 Provisional determination, (Exhibit TUR-3), recital 35.
220 Turkey's first written submission, paras. 124-135; second written submission, paras. 80-92;
response to Panel question No. 22(a); and comments on the European Union's response to Panel
question No. 22(a)-(b).
221 Turkey's first written submission, paras. 136-143; second written submission, paras. 93-95; opening
statement at the first meeting of the Panel, para. 22; response to Panel question No. 22(a), paras. 4-8; and
comments on European Union's response to Panel question No. 21, paras. 8-10. Turkey also argues that the
European Union failed to carry out an analysis at the level of each specific product category: we have
addressed this argument in section 7.2 above.
222 Turkey's first written submission, paras. 132 and 144-149; second written submission, paras. 87-88.

in imports".223 The European Union, on t he other hand, considers that the facts of this case were
such that it was sufficient to just "put together" the unforeseen developments and the increase in
imports to show their logical connection, including because they took place during the
same period.224 Among the third parties, Canada submits that we must determine whether it was
sufficient to "bring [the] two sets of facts together" as the European Union argues, given
Turkey's arguments on the complexity of the facts. 225 Canada asserts that although "a competent
authority enjoys a certain latitude in choosing the appropriate method" to examine the relationship
between the unforeseen developments and the increase in imports, "it must provide a reasoned and
adequate explanation of its findings".226 Japan argues inter alia that the authority must demonstrate
how the unforeseen developments resulted in the increase in imports, and that for this to be the
case, the unforeseen developments must modify the conditions of competitio n in favour of the
imported products.227 The Republic of Korea submits that we must focus on whether the explanation
in the published reports is sufficiently reasoned and adequate, and that we must consider "whether
complex phenomena can be reduced to a sim ple matter of 'putting facts together'". 228 Switzerland
argues that merely putting together the unforeseen developments and the increase in imports is not
enough.229
7.121. With this in mind, we consider the parties' specific arguments on each of the unforeseen
developments relied upon by the European Commission.
7.122. We begin with the increase in overcapacity. Turkey argues that the European Commission
only offered general and vague statements, unsupported by evidence, regarding the connection
between overcapacity and t he increase in imports. 230 Among other things, Turkey argues that
although the European Commission asserted that "many steel producers, notably in countries where
the State distorts the normal play of market forces, kept capacity utilisation at high rates and flooded
third country markets with their products at low prices", and that "[t]his ha[d] resulted in increasing
imports in the EU and overall price depression ", the European Commission did not support these
assertions with evidence. 231 Turkey also argues that the European Commission did not provide
evidence to support the assertion that where there is spare capacity, exporting producers will seek
opportunities on export markets.232 Turkey notes that, insofar as it refers to China, this s tatement
also "fails to take into account the existence of numerous trade remedies in place". 233 Turkey also
recalls that the panel in US – Steel Safeguards found that even if large volumes of foreign steel
production were displaced from foreign consumption, this would not suffice to establish that imports
into the Member concerned increased as a result. 234 To support its position that overcapacity does
not necessarily lead to increased imports, Turkey notes that a report on the record of the underlying
proceeding indicated that the trade effects of overcapacity were "systemically unimportant".235
7.123. The European Union responds that when one considers side by side the increase in
overcapacity and the increase in imports into the European Union, their logical connection is
apparent.236 The European Union adds that the increase in overcapacity (and the other
developments) occurred during the same period as the increase in imports: overcapacity had been
increasing since 2000 and reached high levels in 2014 -2016, and the increase in imports had been
observed between 2013 and June 2018.237 The European Union also submits that the

223 Turkey's second written submission, paras. 80-81. See also Turkey's first written submission,
para. 125.
224 European Union's first written submission, paras. 115-117.
225 Canada's third-party submission, para. 30.
226 Canada's third-party submission, para. 31.
227 Japan's third-party submission, paras. 9-10; third-party statement, paras. 2-4. See also
Ukraine's third-party statement, para. 9.
228 Korea's third-party submission, para. 19.
229 Switzerland's third-party submission, paras. 23-24.
230 Turkey's first written submission, paras. 126-127.
231 Turkey's first written submission, para. 126 (referring to Provisional determination, (Exhibit TUR-3),
recital 32).
232 Turkey's first written submission, para. 127 (referring to Definitive determination, (Exhibit TUR-5),
recital 54).
233 Turkey's first written submission, para. 127.
234 Turkey's first written submission, para. 128.
235 Turkey's first written submission, para. 129 (referring to Global Trade Alert Report, "Going Spare",
(Exhibit TUR-21), p. 6). On the latter, see European Union's response to Panel question No. 9, paras. 29-35.
236 European Union's first written submission, para. 116.
237 European Union's first written submission, para. 117.

European Commission's findings on overcapacity were "justified by evidence". The European Union
refers "for example" to the European Commission's communication "Steel: Preserving Sustainable
Jobs and Growth ", and to the Chair's statements at the 83 rd and 84th sessions of the OECD Steel
Committee.238 Turkey submits that these materials were not cited in the determinations to support
the European Commission's findings on the logical connection between the unforeseen
developments and the increase in imports, and that in any event they do not establish th at logical
connection.239 Turkey also argues that the European Union's choice of record evidence is biased,
because the European Union is omitting to refer to a report according to which the trade effects of
overcapacity were unimportant. 240 The European Uni on notes that the passage of the report that
Turkey is referring to does not refer specifically to the steel sector.241
7.124. To evaluate these arguments, we again turn to the published determinations. These
determinations indicate that the European Commission found that global steelmaking capacity had
more than doubled since 2000 (and in particular increased unexpectedly between 2011 and 2016242),
that actual steel production far exceeded demand243, and that there had been a sudden, sharp, and
significant increase in imports between 2013 and both 2017 and the first half of 2018.244 Regarding
the connection between overcapacity and the increase in imports, the provisional determination
stated that "given the important fixed costs in the steel sect or, many steel producers, notably in
countries where the State distorts the normal play of market forces, kept capacity utilisation at high
rates and flooded third country markets with their products at low prices when they could not be
absorbed by domestic consumption", and that this "has resulted in increasing imports into the EU
and overall price depression". 245 The provisional determination also stated that import prices
"generally" undercut prices of EU producers in 2017. In the definitive determination , the
European Commission observed that:
As far as the link between the unforeseen development of steel overcapacity and the
increase in imports is concerned, it is clear that exporting producers have an interest in
maximizing their capacity utilization. In situations where spare capacity is available after
supplying their domestic market, they will seek other business opportunities on export
markets and thus generate an increase in import volumes on such markets.246
7.125. In the provisional determination, the Eu ropean Commission referenced "reports from the
83rd and 84th Steel Committee" in support of its statements that overcapacity had more than doubled
since 2000, and that distortive government support accentuated the imbalances in the steel
sector.247 In the definitive determination, the European Commission referred to its communication
"Steel: Preserving Sustainable Jobs and Growth" , and to the Global Trade Alert Report "Going
Spare", as supporting its statements that overcapacity had "unexpectedly continued t o increase",
and that it had increased between 2011 and 2016 after decreasing from 2009 to 2011.248
7.126. In discussing overcapacity, the European Commission also stated that "overcapacity is
inherently closely linked to dumped and subsidized imports".249

238 European Union's first written submission, paras. 118-121 (referring to the
European Commission's Communication "Steel: Preserving Sustainable Jobs and Growth", (Exhibit EU-23); and
to Chair's statements at the 83rd and 84th session of the OECD Steel Committee, respectively, (Exhibits EU-8
and EU-9)).
239 Turkey's second written submission, paras. 83-84.
240 Turkey's second written submission, para. 85; request for interim review, para. 21 (referring to
Global Trade Alert Report, "Going Spare", (Exhibit TUR-21)).
241 European Union's response to Panel question No. 9, para. 34. We agree with the European Union
that the passage at issue refers to overcapacity in general and not specifically in the steel sector. (See also
ibid. paras. 26-36).
242 Definitive determination, (Exhibit TUR-5), recital 52.
243 Provisional determination, (Exhibit TUR-3), recital 31.
244 Provisional determination, (Exhibit TUR-3), recital 29; Definitive determination, (Exhibit TUR-5),
recital 47.
245 Provisional determination, (Exhibit TUR-3), recital 32.
246 Definitive determination, (Exhibit TUR-5), recital 54.
247 Provisional determination, (Exhibit TUR-3), recitals 31-32, fn 1 ("Cf. reports from the 83rd and 84th
OECD Steel Committee, available at http://www.oecd.org/sti/ind/steel.htm"), and fn 2 ("Idem, 83rd report").
248 Definitive determination, (Exhibit TUR-5), recital 52. The same communication was also cited in the
context of the analysis of threat of injury, in Provisional determination, (Exhibit TUR-3), recitals 58-60.
249 Definitive determination, (Exhibit TUR-5), recital 53.

7.127. We recall that Article XIX:1(a) provides that a Member may adopt a safeguard where, among
other things, a product is being imported in increased quantities "as a result of"
unforeseen developments and the effect of GATT obligations, and that the phrase "as a resu lt of"
does not establish a causation requirement.250 This means that an investigating authority need not
provide the same quantum of reasoning and evidence to substantiate the
"logical connection" between unforeseen developments and the increase in imports as it would be if
Article XIX:1(a) had contained a causation requirement. Further, we recall that what precisely is
required to establish that the increase in imports is "as a result of" the unfor eseen developments
will depend on the "nature of the facts" in any given case.251
7.128. In this instance, we note that the European Commission established that global steel
overcapacity greatly increased, reaching 2,29 billion tonnes in 2016 and remaining steady at
2,17 billion tonnes in 2017 252, and that Turkey does not dispute this fact. We also note that the
European Commission established that imports into the European Union of the 26 product categories
on which it imposed the definitive safeguard increased significantly between 2013 and June 2018253,
and although Turkey takes issue with this assessment, we do not find fault with this finding. 254 We
further note that the European Commission established that for 16 of the steel product categories
subject to the definitive safeguard, import prices undercut the prices of EU producers 255, and that
the European Commission provided a reference to support its statement that distortive government
support was accentuating the structural imbalances in the steel sector, and Turkey has not contested
this reference.256 The European Commission also explained the connection between the increase in
overcapacity and the increase in imports, by stating that because of the high fixed costs in the
steel sector, many steel pr oducers kept capacity utilization rates high, especially in countries with
distortive government support, and that as a result of this, they "flooded third country markets with
their products at low prices when they could not be absorbed by domestic consum ption"; in turn,
this "resulted in increasing imports into the EU and overall price depression".257
7.129. The published determinations thus indicate that the European Commission provided
evidentiary support for its statements regarding the increase in overcapacity, the unexpected nature
of its continued increase, and its links to government support. However, the determinations do not
point to evidence in support of the European Commission's statements regarding the connection
between the overcapacity and the incre ase in imports. Instead, the
European Commission's reasoning on the connection between overcapacity and the increase in
imports into the European Union was limited to noting the magnitude of global overcapacity and
excess production, asserting that "it is clear" that overcapacity leads steel producers to seek other
export opportunities, observing that import prices were typically lower than prices of EU producers,
and concluding that this has resulted in increased imports into the European Union.258
7.130. It may well be that overcapacity led to pressure to export, and that that pressure to export
led to increased exports to the European Union, so that EU imports of the product under investigation
increased as a result of overcapacity. Notwithstanding this, we note that, except for the description
of the mag nitude of the overcapacity and the increase in imports, the

250 See para. 7.84 above.
251 See para. 7.85 above.
252 Provisional determination, (Exhibit TUR-3), recital 31 and fn 1; Definitive determination,
(Exhibit TUR-5), recital 52 and fns 19-20.
253 Definitive determination, (Exhibit TUR-5), section 3.
254 See section 7.5 below.
255 Provisional determination, (Exhibit TUR-3), recital 32 and annex III. The European Commission also
found import prices undercut the prices of EU producers for product category 23, to which it did not apply the
definitive safeguard. (Definitive determination, (Exhibit TUR-5), recital 31).
256 Provisional determination, (Exhibit TUR-3), recital 32 and fn 2. Turkey contests the
European Union's reliance on the OECD Chair's statement at the 83rd session of the OECD Steel Committee,
(Exhibit EU-8) on the basis that the European Commission did not rely on it as evidence of the connection
between the increase in overcapacity and the increase in imports. Turkey does not dispute the
European Commission's reliance on it for the proposition that government support has accentuated the
imbalances in the steel sector. (See para. 7.124 above).
257 See paras. 7.124-7.125 above.
258 As noted, the European Commission offered evidence for its statements about the evolution of
overcapacity and about distortive government support, but not for its statements regarding the logical
connection between overcapacity and the increase in imports. (See para. 7.125 above).

European Commission's determinations do not provide evidence that would otherwise support its
reasoning on the connection between the two.
7.131. We do not consider this to be a circumstance in which a great deal of analysis was required
to establish a logical connection between the unforeseen development (i.e. overcapacity) and the
increase in imports. 259 The European Commission, however, did not satisfy this requirement,
because it merely asserted that the connection existed, without referencing any evidence for its
assertion.
7.132. In reaching this conclusion, we have considered a recent WTO dispute where no
Article XIX:1(a) inconsistency was found to flow fr om an authority's determination that certain
unforeseen developments resulted in an increase in imports based on their coincidence in time. In
US ‒ Safeguard Measure on PV Products (China) , one of the unforeseen developments that the
US authorities cited was the rapid change in the global supply chains and manufacturing processes
that followed the imposition of US AD/CV duties on photovoltaic (PV) products from China and
Chinese Taipei. The panel found that the US authorities had shown that Chinese firms ha d made
significant investments in PV production in several third countries, and that PV imports into the
United States from those countries had significantly increased. China argued that it was
inappropriate for the US authorities to infer that the increas e in production capacity of
Chinese-affiliated PV producers contributed to the increased imports into the United States,
suggesting that the increase could have come from other producers. The panel rejected that
argument, explaining:
[E]ven if this were a hypothetical possibility, the circumstantial evidence relied upon by
the [United States International Trade Commission] suggests otherwise. Indeed, in line
with the United States' argument, the fact that Chinese -affiliated companies
significantly increased their production capacity in third countries in the same years
when imports from those countries into the US market significantly increased suggests
to us that there was a meaningful connection between these developments.260
7.133. This analysis appears to suppo rt the view that in some instances demonstrating a
coincidence in time between certain unforeseen developments and an increase in imports, and
explaining their connection, is sufficient to establish their logical connection for purposes of
Article XIX:1(a).261 In that case there was , among other elements 262, an increase in production
capacity of Chinese-affiliated producers in four countries that matched a simultaneous increase in
imports from those same countries, all over a two-year period. Thus, there was a closer link in that
case between the unforeseen development at issue and the increase in imports than there is in the
present case between overcapacity in the global steel industry in general and an increase in imports
in general.
7.134. We next consider the Eu ropean Commission's examination of the connection between the
increase in trade restrictive and trade defence measures and the increase in imports. Turkey submits
that the European Commission "provided no detailed factual or statistical record" on how steel flows
into the European Union were impacted by the trade restrictive and trade defence measures it
referred to, and did not identify those measures.263 The European Union responds that nothing more
was required other than establishing the increase in trade defence measures and the increase in
imports "during the same period".264
7.135. We turn again to the published determinations. In the provisional determination, the
European Commission stated that the increasing imports into the European Union and overall price
depression had "been exacerbated by trade -restrictive practices in third country markets". The
European Commission gave the example of tariff increases on certain steel products that "were
typically imported in increasing quantities over the period of investigation [(POI)]". The

259 We recall that Article XIX:1(a) does not require a causation relationship between the unforeseen
developments and the increase in imports. (See para. 7.84 above).
260 Panel Report, US – Safeguard Measure on PV Products (China) [appealed by China
16 September 2021], para. 7.42.
261 See also Panel Reports, US – Steel Safeguards, para. 10.115.
262 See Panel Report, US – Safeguard Measure on PV Products (China) [appealed by China
16 September 2021], paras. 7.21 and 7.39-7.44.
263 Turkey's first written submission, paras. 130-131; second written submission, para. 86.
264 European Union's first written submission, paras. 117 and 123.

European Commission went on to list other trade restrictive practices; and then it noted that while
in 2011/2013 there had been 77 trade defence initiations related to steel per year, that had increased
to 117 per year in 2015/ 2016. It then referred to the large number of AD/CV duty orders and
investigations in the United States, and stated that "as the U.S. is one of the world's largest
steel-importing countries … the impact of such a large number of trade remedies has been strongly
felt globally".265 In the definitive determination, addressing arguments that it had not established
the connection between the trade restrictive and trade defence measures and the increase in
imports, the European Commission recalled that while in 20 11/2013 there had been 77 trade
defence initiations per year related to steel, that had increased to 117 per year in 2015/2016, and
stated that "no party [had] questioned these figures which indicate an unforeseen development,
leading to the increase of imports established above".266
7.136. Except for the trade defence measures adopted by the United States, the
European Commission mainly described these unforeseen developments and asserted that they had
led to the increase in imports into the European Union. As reg ard the trade defence measures
adopted by the United States, the European Commission reasoned that because the United States
is one of the largest steel importers, the effect of the large number of measures adopted by the
United States had "been strongly felt globally".267
7.137. We note that each trade restrictive and trade defence measure typically concerns only
certain steel products imported into and exported from certain countries. Therefore, recalling that
the type of analysis required to establish the connection between the unforeseen developments and
the increase in imports depends on the nature of the facts, we consider that this is a situation where
a "more detailed analysis" is required.268 The European Commission did not offer such an analysis.
Other than for the US trade defence measures, the European Commission merely asserted that the
trade restrictive and trade defence measures had led to the increase in imports into the
European Union; for the US trade defence measures, the European Commission asserted that their
impact had been felt globally, but offered no evidence and made no attempt to establish a link
between the measures and the increase in imports into the European Union. For example, while it
indicated the increased number of US trade actions, it gave no information on the volume of imports
affected.
7.138. Therefore, we find that the European Commission did not establish that the increase in
imports was "as a result of" the increase in trade-restrictive and trade defence measures.
7.139. We next consider the US Section 232 measures on steel . Turkey argues that the
European Commission did not establish that those measures resulted in the increase in imports of
the 26 product categories concerned into the European Union, because: (a) the Section 232
measures excluded several products but the European Commission did not carry out a
product-specific analysis; (b) the European Commission did not conduct a country-specific analysis
to show that there had been increases in imports into the European Union from the countries whose
exports to the United States had decreased; (c) the European Commission offered no evidence for
its assertion that the EU market was attractive, and in any event that would not have been sufficient
to establish that the Section 232 measures resulted in the increase in imports into the
European Union; and (d) the Section 232 measures entered into force after the POI over which the
increase in imports was observed.269
7.140. The European Union responds that: (a) the exclusions of products from certain countries did
not change the autho rity's conclusions270; (b) a country -specific analysis was not necessary here,
given the global nature of the unforeseen developments271; (c) the EU market is attractive because
it is the largest steel importing market, with high prices, and this is "public knowledge"272; (d) there

265 Provisional determination, (Exhibit TUR-3), recitals 33-34.
266 Definitive determination, (Exhibit TUR-5), recital 56.
267 Provisional determination, (Exhibit TUR-3), recital 35.
268 Panel Reports, US – Steel Safeguards, para. 10.115.
269 Turkey's first written submission, paras. 132-135; second written submission, paras. 87-92;
responses to Panel question Nos. 22 and 23; and comments on European Union's response to Panel question
No. 22, para. 12.
270 European Union's first written submission, para. 127.
271 European Union's first written submission, para. 128.
272 European Union's response to Panel question No. 22(a), para. 9.

is evidence of the attractiveness of the EU market 273; and (e) the attractiveness of the EU market,
when combined with the unforeseen developments and their overlap in time with the increase in
imports, establishes the logical connection between the unforeseen developments and the increase
in imports.274 As regards the timing of the Section 232 measures, the European Union responds
that: the POI for the increase in imports ended in June 2018, after the imposition of the
Section 232 measures; the European Commission ascertained the existence of actual trade diversion
based on data on monthly imports into the United States and the European Union from January to
September 2017 and 2018; and the very initiation of the Section 232 investigation in April 2017 had
already created uncertainty in the market.275
7.141. We turn once more to the published determinations to make our assessment. In the
provisional determination, the European Commission stated that: the "U.S. Section 232 measures,
given their level and scope, are likely to cause substantial trade diversion of steel products into the
Union"; the United States had calculated that the Section 232 measures would decrease imports by
an amount that corresponded to 7% of EU consumption; the EU market "is generally a very attractive
market for steel products both in terms of demand and prices"; and "some of the main exporters to
the US are also traditional steel suppliers to the Union and there is no doubt that these countries,
as well as othe rs whose exports and production will be affected by the U.S. measures and the
foreseeable trade diversion cascade, will redirect their exports to the Union". 276 In the
definitive determination, the European Commission noted that the Section 232 investigatio n had
been initiated in April 2017 and the resulting report published in January 2018, and asserted that
even the initiation of the investigation "did undoubtedly create uncertainty on the market and caused
effects on steel trade flows". 277 Further, the European Commission examined monthly imports of
steel into the United States and the European Union from January to September 2017 and 2018; it
found that, in 2018, monthly imports into the United States had been "consistently lower" than in
2017, with the exception of April, and that correspondingly monthly imports into the European Union
had been higher, each month, than in 2017; according to the European Commission, this established
that trade diversion was already taking place, and more specifically that t he Section 232 measures
"sped up the increase in imports by adding further trade diversion".278 Next, addressing arguments
regarding "product exclusions", the European Commission stated that only Australia had obtained
an unconditional exemption, and accoun ted for around 1% of total US imports, whereas other
countries had been allocated tariff-free quotas, many of which had been exhausted upon allocation,
and moreover those countries accounted for less than 20% of 2017 imports.279
7.142. Thus, the European Commission's finding that the US Section 232 measures resulted in the
increase in imports (by "adding further trade diversion") rested on the following: the "level and
scope" of US measures, which according to the US Department of Commerce were expected to cut
out of imports into the United States a volume equivalent to 7% of EU consumption280; the assertions
that the European Union is "generally a very attractive market for steel products both in terms of
demand and prices", and that some of the suppliers of the US market were also "traditional suppliers"
of the European Union281; and data showing that between the imposition of the Section 232 tariff on
steel in March 2018 and September 2018, monthly imports of steel into the United States had
decreased compared to the same month of 2017, except in April, and monthly imports into the
European Union had correspondingly increased.282
7.143. Similar to the trade restrictive and trade defence measures that we have just considered,
we take the view that establishing the connection between the Section 232 measures on steel and
the increase in imports into the European Union "require[s] a much more detailed analysis" than
"bringing two sets of facts together". 283 This is particularly in view of the fact that the
Section 232 measures have been adopted by a single Member.

273 European Union's response to Panel question No. 22(a), para. 10.
274 European Union's response to Panel question No. 22(b), para. 11.
275 European Union's first written submission, paras. 124-129 and 139-145.
276 Provisional determination, (Exhibit TUR-3), recital 35.
277 Definitive determination, (Exhibit TUR-5), recital 58.
278 Definitive determination, (Exhibit TUR-5), recitals 58-59 and tables 12 and 14.
279 Definitive determination, (Exhibit TUR-5), recitals 60-61.
280 Provisional determination, (Exhibit TUR-3), recital 35 and fn 2.
281 Provisional determination, (Exhibit TUR-3), recital 35.
282 Definitive determination, (Exhibit TUR-5), recital 59 and tables 12 and 14.

7.144. The Section 232 analysis that the European Commission conducted with regard to the
Section 232 measures does not satisfy this more detailed standard. In terms of evidence, we note
that the European Commiss ion relied on an estimate by the United States according to which the
measures would have reduced steel imports into the United States by a total amount corresponding
to 7% of EU steel consumption, and on six months of data following the imposition of the
Section 232 steel tariffs that showed some negative correlations between trends in imports into the
European Union and the United States. For the remainder of its analysis, the European Commission
did not offer evidence or sufficiently detailed information.284
7.145. In particular, a key element of the European Commission's analysis was that the EU market
was attractive for exporters forced out of the US market. While there appears to be evidence on the
record that would support this proposition, this evidence is limited to a model presented to the
European Commission by the EU industry285, which the European Commission used in its fashioning
of the safeguard it applied, but made no mention of in discussing the connection between the
Section 232 measures and the inc rease in imports .286 The other evidence pointed to by the
European Union in this context was either not referred to by the European Commission as
establishing the attractiveness of the EU market for exporters forced out of the US market, or is not
on the record. First, the European Union now refers to the EU importing market shares reported in
presentations made at the 83 rd and 84th sessions of the OECD Steel Committee , showing that the
European Union "was the main importing economy worldwide ".287 But althoug h the
provisional determination, in discussing overcapacity, referred to "reports from the 83 rd and 84th
sessions of the OECD Steel Committee"288, the investigating authority did not refer to these "reports"
as establishing the size of the EU market. 289 Second, the European Union refers to the
European Commission's findings on undercutting, but this was described in the published
determinations as an effect of the unforeseen developments, and not as evidence of the
attractiveness of the EU market. 290 Third, the European Union refers to "publicly available data in
the Global Trade Atlas database", but these data were not on the record of the investigation. 291
Fourth, the European Union asserts that the existence of trade defence measures establishes that
the European Union was an attractive target for exports, but this assertion does not feature
anywhere in the reasoning of the investigating authority.292
7.146. Thus, while it appears that evidence of the attractiveness of the EU market for exporters
excluded from the US market might have been readily available to the European Commission, the
European Commission in its published determinations did not rely on that evidence to establish that
its own market was attractive to exporters excluded from the US market because of the Section 232

284 See para. 7.142 above.
285 Calculation deflection, (Exhibit EU-12); Estimate of imports to the US that will be deflected,
(Exhibit EU-13).
286 Before us, the European Union has referred to this model as evidence of the connection between the
Section 232 measures and the increase in imports. (European Union's response to Panel question No. 11;
comments on Turkey's response to Panel question No. 22).
However, the published determinations indicate that that analysis was used to determine the
appropriate level of the measures, and not to establish the connection between the unforeseen developments
and the increase in imports; therefore, we do not consider it in this context. (Provisional determination,
(Exhibit TUR-3), recitals 101-111; Definitive determination, (Exhibit TUR-5), recitals 167-169, 174-176, and
178-180).
287 European Union's opening statement at the first meeting of the Panel, para. 56; response to Panel
question No. 22(a), para. 10 (referring to Presentation at the 83rd session of the OECD Steel Committee,
(Exhibit EU-7); and Presentation at the 84th session of the OECD Steel Committee, (Exhibit EU-16)).
288 Provisional determination, (Exhibit TUR-3), fn 1 ("Cf. reports from the 83rd and 84th OECD Steel
Committee, available at http://www.oecd.org/sti/ind/steel.htm"). Turkey points out that the two OECD
documents that the European Union is referring to as establishing the attractiveness of the EU market,
submitted to us as Exhibits EU-7 and EU-16, were not on the record of the safeguard investigation.
(Turkey's comments on the European Union's response to Panel question No. 22, para. 12).
289 We also note that the OECD documents cited by the European Union in this context (Exhibits EU-7
and EU-16) are not the same OECD documents that the European Union has put forward as the relevant
"reports" in the context of the discussion of overcapacity (Chair's statements at the 83rd and 84th session of the
OECD Steel Committee, respectively, (Exhibits EU-8 and EU-9)).
290 Provisional determination, (Exhibit TUR-3), recital 32.
291 European Union's response to Panel question No. 22(a), para. 10; Turkey's comments on the
European Union's response to Panel question No. 22, para. 12.
292 European Union's opening statement at the first meeting of the Panel, para. 57; response to Panel
question No. 22(a), para. 10. See also Provisional determination, (Exhibit TUR-3); and
Definitive determination, (Exhibit TUR-5).

measures. Yet, this proposition was central to the European Commission's conclusion that the
Section 232 measures resulted in the increase in imports into the European Union, by "speeding up"
the pre-existing increase.
7.147. Similarly, we note that while the European Commission asserted that some of the suppliers
to the United States were also suppliers of the EU market, and that there was "no doubt that these
countries as well as others" would redirect their exports from the United States t o the
European Union293, the European Commission did not reference evidence in its determination that
supported this assertion.
7.148. We therefore consider that the European Commission did not establish that the
Section 232 measures resulted in the increase in imports into the European Union.
7.3.2.3.2 Unforeseen developments relating to steel in general
7.149. Turkey argues that the unforeseen developments relied upon by European Commission
pertained to steel in general, and not to the specific products under investigation, and that therefore
the European Commission did not demonstrate that they resulted in the increase in imports of the
specific products under investigation.294
7.150. Having already found that the European Commission has not established that those
unforeseen developments resulted in the increase in imports, we do not examine this further
argument advanced by Turkey.
7.3.2.3.3 The timing of the Section 232 measures
7.151. Turkey argues that the increase in imports could not have been "as a result of" the
Section 232 measures, because these were introduced in March 2018, after the observed increase
in imports.295
7.152. The European Union responds inter alia that the POI for the increase in imports ended in
June 2018, thus after the imposition of the Section 232 measures; that nothing requires a Member
to rely on evidence that predated initiation of a safeguard investigation; that the
European Commission also ascertained the existence of trade diversion based on data on monthly
imports into the United States and into the European Union in January to September 2017 and 2018;
and also that the European Commission found that the very initiation of the investigation in
April 2017 had created uncertainty and affected trade flows.296
7.153. Having found that the European Commission has not establishe d that the
Section 232 measures resulted in the increase in imports, we do not examine this further argument
advanced by Turkey.
7.3.2.3.4 Overall conclusion on the connection between the unforeseen developments
and the increase in imports
7.154. We therefore find that the European Union acted inconsistently with Article XIX:1(a) of the
GATT 1994 by imposing the definitive safeguard without establishing that the increase in imports
took place "as a result of" the unforeseen developments.
7.4 The effect of obligations
7.155. Turkey argues that the definitive safeguard is inconsistent with Article XIX:1(a) of
the GATT 1994 because t he European Commission did not identify the relevant " obligations
incurred" under the GATT 1994 , and because the European Commission did not explain how any

293 Provisional determination, (Exhibit TUR-3), recital 35.
294 Turkey's first written submission, paras. 136-140 and 142-143; second written submission, para. 94.
We recall that Turkey makes a related but separate argument that the European Commission was required to
carry out its examination at the level of the individual product categories. We have examined that argument in
section 7.2 above.
295 Turkey's first written submission, paras. 132 and 144-149; second written submission, paras. 87-88.
296 European Union's first written submission, paras. 124-129 and 139-145.

such obligations had the effect of constraining the European Union's ability to prevent the threatened
injury.297
7.156. In its first written submission, the European Union identified the relevant obligations as "the
obligation under the GATT 1994 to not impose any tariffs above 0% (or quantitative restrictions) ",
and their "effect" as the inability to deviate from those same obligations to prevent the threat of
serious injury from the increased imports .298 According to the European Union, those obligations
"are self -evident" and do not require additional explanation, and their effects do not require
additional demonstration.299 In answer to a question from the Panel, the European Union describes
the relevant obligations as "the tariff binding of 0% for all imports included in the product
concerned", which "is an obligation on the European Union under Article II:1(a) and II:1(b), in
conjunction with Article II:7 of the GATT 1994 and the European Union's Schedule of Concessions
and Commitments".300 The European Union acknowledges that it did not identify these obligations
in its published determinations.301
7.157. In response to the European Union's argument that the relevant obligations are self-evident,
Turkey points to the finding of the panel in Ukraine ‒ Passenger Cars to assert that the fact that an
obligation is "known or knowable" does not relieve the authorities from the requirement to identify
the obligation and its effects. 302 As to the effects of the obligations, Turkey refers to the finding of
the panel in India – Iron and Steel Products according to which the authority must "explain how that
obligation constrains [the Member's] ability to react to the import surge causing injury to its domestic
industry".303
7.158. Among the third parties, Japan argues that the authority must both identify in its published
report the relevant obligations and explain how they "prevented the Member concerned from taking
WTO-consistent measures in order to prevent or remedy the change generated by the 'unforeseen
developments' in the competitive relat ionship between imports and domestic like or directly
competitive products".304 The United States argues that the authority is not required to demonstrate
"the effect of obligations incurred" in its published report, and that "a Member establishes that
increased imports are the 'effect of obligations incurred' by identifying a commitment, such as a
tariff concession, that prevents it from raising duties on imports".305
7.159. In this section, we first examine the applicable requirements of Article XIX:1(a), and we then
assess whether Turkey has established the claimed inconsistency.
7.4.1 The applicable requirements of Article XIX:1(a) of the GATT 1994
7.160. We recall that Article XIX:1(a) of the GATT 1994 provides:
If, as a result of unforeseen developments and of the effect of the obligations incurred
by a contracting party under this Agreement , including tariff concessions, any product
is being imported into the territory of that contracting party in such increased quantities
and under such conditions as to cause or threaten serious injury to domestic producers
in that territory of like or directly competitive products, the contracting party shall be
free, in respect of such product, and to the extent and for such time as may be necessary

297 Turkey's first written submission, paras. 151-158; second written submission, paras. 98-103.
298 European Union's first written submission, para. 65. The European Union also submits that the
relevant concessions need not have been negotiated during the Uruguay Round, but Turkey does not appear to
have argued that they should. (European Union's first written submission, paras. 61-62).
299 European Union's first written submission, para. 66.
300 European Union's response to Panel question No. 24(a)-(b), paras. 12-13.
301 European Union's response to Panel question No. 24(c), para. 15.
302 Turkey's second written submission, para. 102 (referring to Panel Report, Ukraine – Passenger Cars,
para. 7.96).
303 Turkey's second written submission, para. 100 (referring to Panel Report, India – Iron and Steel
Products [appealed by India on 14 December 2018, appealed by Japan on 21 December 2018], para. 7.89).
304 Japan's third-party submission, paras. 20 and 22-24; third-party statement, paras. 5-6.
305 United States' third-party submission, paras. 14 and 16. See also United States' third-party
statement, paras. 13-14.

to prevent or remedy such injury, to suspend the obligation in whole or in part or to
withdraw or modify the concession.306
7.161. As we have already noted, Article XIX:1(a) is structured as a two-part conditional sentence,
and both parts of this conditional sentence contain several clauses. The first part of Article XIX:1(a)
is the dependent clause of the conditional sentence: it is introduced by the conjunction "if", and sets
out certain circumstances or conditions. The second part of Article XIX:1(a), beginning with "the
contracting party shall be free", describes the consequence of those circumstances and conditions.
Specifically, that consequence is that the Member concerned "shall be free" to suspend the relevant
obligation(s) of the GATT 1994, thus imposing a safeguard.
7.162. Under this conditional sentence, part of the circumstances that trigger a Member's ability to
apply a safeguard are an injurious increase in imports "as a result of unforeseen developments and
of the effect of the obligations incurred by a con tracting party under this Agreement ".307 That is,
under Article XIX:1(a) the circumstances that lead to the imposition of a safeguard measure include
a combination of unforeseen developments and "the effect of the obligations" under the GATT 1994,
both of which together result in the increase in imports. The term "obligation" reappears in the last
clause of Article XIX:1(a), because the remedy provided for in Article XIX:1(a) is the suspension of
"the obligation" "as a result of" which the increase in imports has occurred.
7.163. As we have already noted308, the phrase "as a result of" connects the effect of the obligations
incurred under the GATT 1994, on the one hand, and the injurious increase in imports, on the other,
by providing that the latter occurs "as a result of" – i.e. is the effect, consequence or outcome of –
the former. As we have also already noted309, the phrase "as a result of" is different from "cause".
7.164. We also note that Article 3.1 of the Agreement on Safeguards requires Members to "publish
a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact
and law". The existence of the circumstances and conditions that are necessary for a Member to be
allowed to adopt a safeguard is "pertinent" to the decision t o adopt a safeguard, and the existence
of obligations of the GATT 1994 whose effect resulted in the injurious increase in imports is one such
circumstance. It is therefore in a published report that Members must identify those obligations.310
7.4.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article XIX:1(a) of the GATT 1994 with regard to the "effect of the obligations"
7.165. The parties agree that the European Commission did not identify the relevant obligations of
the GATT 1994 in its published determinations.311
7.166. The European Union asserts that those obligations "are self-evident and do not require any
additional explanation".312 The European Union also notes that the definitive determination "refers
in several instances to a 'free of duty quota' thus identifying the products included in the product
concerned as products with a tariff binding of 0%", because "[p]roducts that are free of duty under
the safeguards measure were necessarily free of duty before the imposition of this measure".313
7.167. We note, first, that the existence of obligations of the GATT 1994 whose effect results in the
injurious increase in imports is one of the cumulative circumstances that must exist for a Member

306 Emphasis added.
307 We thus agree with the finding of the Appellate Body in Korea – Dairy that the clause "as a result of
unforeseen developments and of the effects of obligations" "describes … circumstances which must be
demonstrated as a matter of fact … for a safeguard measure to be applied consistently with the provisions of
Article XIX". (Appellate Body Report, Korea – Dairy, para. 85 (emphasis original); see also Appellate Body
Report, Argentina – Footwear (EC), para. 85; and Panel Report, Ukraine – Passenger Cars, para. 7.52).
308 See para. 7.84 above.
309 See para. 7.84 above.
310 We also note that the panel in Ukraine – Passenger Cars found that referring to the relevant
obligations in the published determinations but in a different context (in that case, when discussing causation)
was not sufficient. (Panel Report, Ukraine – Passenger Cars, paras. 7.96-7.99).
311 See paras. 7.155-7.156 above.
312 European Union's first written submission, para. 66.
313 European Union's response to Panel question No. 24(c), para. 14 (referring to Definitive
determination, (Exhibit TUR-5), recitals 152, 156, and 188). (fn omitted)

to be able to apply a safeguard measure, and those obligations must therefore be identified in the
Member's published report as part of the "pertinent issues of fact and law".314
7.168. Although the European Union suggests that other Members, on reviewing the safeguard, can
understand which obligations of the GATT 1994 the Eu ropean Union decided to suspend, and
therefore which obligations had the effect of stopping the European Union from preventing or
remedying serious injury, we do not think that it would be appropriate to require other Members to
carry out this interpretive exercise, when the European Union was better positioned to identify, and
should have identified, the relevant obligations itself. In this regard, we note that the Member that
finds that certain obligations of the GATT 1994 constrain its ability to prevent or remedy injury from
an increase in imports, and that suspends those obligations as a result, is best placed to identify
with certainty those obligations. Conversely, the Members affected by the suspension should not be
required to do so, second-guessing the Member adopting the safeguard.
7.169. Given this, we reject the European Union's suggestion that the
European Commission's references to a "free of duty quota" (to which the out -of-quota duty does
not apply) in the sections of the definitive determination discussing the form, level, and duration of
the measures315 was sufficient to identify the relevant obligations of the GATT 1994.
7.170. We therefore find that the definitive safeguard is inconsistent with Article XIX:1(a) because
the European Commission did not ide ntify in its published reports the obligations whose effect
resulted in the injurious increase in imports. Having so found, we do not proceed to examine
Turkey's further argument that the European Commission did not explain how the obligations in
question resulted in the injurious increase in imports.
7.5 Increase in imports
7.171. Turkey claims that the European Commission acted inconsistently with Articles 2.1 and
4.2(a) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 because it failed to
make reasoned and adequate findings with respect to its determinations regarding an increase in
imports, including with respect to alleged increases in certain product categories and product
families.316 The European Union responds that: (a) the European Commission was not required to
examine increases by reference to individual product categories and product families, but rather the
examination of the product as a whole was the "relevant determination"317; and (b) the examination
of the product as a whole showed a sharp increase in imports of 59% between 2013 and 2016
followed by a continued increase after this timeframe, which reached 71% overall at the end of the
most recent period (MRP), namely mid-2017 to mid-2018.318
7.172. We begin by setting out the applicable provisions forming the basis of Turkey's claims
(section 7.5.1). We then evaluate Turkey's arguments that the European Commission did not
provide a reasone d and adequate explanation for this determination due to decreases in import
levels for some individual product categories and product families (section 7.5.2.1), and that the
European Commission did not show that the increase was sufficiently significant, sudden, sharp, and
recent (section 7.5.2.2).

314 Agreement on Safeguards, Article 3.1; see also para. 7.164 above and Appellate Body Report, US –
Lamb, paras. 72 and 76.
315 See fn 313 above.
316 Turkey's first written submission, para. 159. Turkey also argues that the definitive determination is
inconsistent with Articles 2.1 and 4.2(a) and Article XIX:1(a) because the European Commission did not
determine that there had been the requisite increase in imports for each product category, and took an
inconsistent approach to the product concerned at different steps of its analysis. (Turkey's first written
submission, paras. 170-173). We have already examined and rejected these arguments in section 7.2 above,
and therefore we do not discuss them again in this section.
317 European Union's first written submission, para. 161.
318 European Union's first written submission, paras. 154, 157, 159, 161, 171, 180, and 194.

7.5.1 The applicable requirements of Article XIX:1(a) of the GATT 1994 and Articles 2.1
and 4.2(a) of the Agreement on Safeguards
7.173. Turkey claims that the European Commission's determination of an increase in imports fails
to satisfy the requirements of Articles 2.1 and 4.2(a) of the Agreem ent on Safeguards and
Article XIX:1(a) of the GATT 1994. Article XIX:1(a) of the GATT 1994 provides, in relevant part:
If, as a result of unforeseen developments and of the effect of the obligations incurred
by a contracting party under this Agreement, including tariff concessions, any product
is being imported into the territory of that contracting party in such increased quantities
and under such conditions as to cause or threaten serious injury to domestic
producers … [.]319
7.174. Article 2.1 of the Agreement on Safeguards provides, in relevant part:
A Member may apply a safeguard measure to a product only if that Member has
determined, pursuant to the provisions set out below, that such product is being
imported into its territory in such increased quantities, absolute or relative to domestic
production, and under such conditions as to cause or threaten to cause serious injury
to the domestic industry … [.]320
7.175. Article 4.2(a) of the Agreement on Safeguards provides, in relevant part:
In the investigation to determine whether increased imports have caused or are
threatening to cause serious injury to a domestic industry under the terms of this
Agreement, the competent authorities shall evaluate all relevant factors of an objective
and quantifiable nature having a bearing on the situation of that industry, in particular,
the rate and amount of the increase in imports of the product concerned in absolute
and relative terms … [.]321
7.176. We proceed now to examine Turkey's claims in relation to these provisions.
7.5.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article XIX:1(a) of the GATT 1994 and Articles 2.1 and 4.2(a) of the Agreement on
Safeguards
7.5.2.1 Whether the European Commission did not adequately account for decreases in
imports in the most recent past
7.177. Turkey argues that the European Commission failed to provide a reasoned and adequate
explanation for its finding of an increase in imports in two main ways. First, with respect to product
categories, Turkey argues that the European Commission only compared imports at the beginning
and end of the P OI.322 Second, Turkey argues that the European Commission did not properly
account for the fact that imports of certain individual product categories and product families
decreased during the most recent part of the POI. 323 The European Union responds that
Turkey's contention incorrectly focuses on a limited number of individual product categories and
product families, whereas the "relevant determination" analysed the product under investigation as
a whole.324 For the European Union, the European Commission's analysis of the product categories
and product families was merely "additional" to this "relevant determination".325 The European Union
also asserts that nothing in the GATT 1994 or in the Agreement on Safeguards requires the
"increase" to manifest as a continuous acceleration of imports .326 Brazil, as a third party, argues
that "investigating authorities must analyse trends over the entire POI with a particular focus on the

319 Emphasis added.
320 Emphasis added; fn omitted.
321 Emphasis added.
322 Turkey's first written submission, paras. 174-181.
323 Turkey's first written submission, para. 182.
324 European Union's first written submission, paras. 157-161.
325 European Union's first written submission, para. 161.
326 European Union's first written submission, paras. 167-170 and 178-179.

most recent data in order to comply with the requirement expressed by the phrase 'is being
imported' present in Article 2.1 of the Agreement on Safeguards".327
7.178. In light of our findings in section 7.2.2 above, we consider it significant that this argument
by Turkey pertains only to the European Commission's examination of increases in imports based
on certain individual product categories and product families. Turkey has not presented an equivalent
challenge in respect of the European Commission's examination of increases in imports based on the
product under consideration as a whole. In its examination of the product as a whole, the
European Commission found that "[i]mports increased in absolute terms by 71% during the period
of analysis, and in relative terms with market shares increasing from 12,7% to 18,8%" and that
"[t]he most significant increase took place in the period 2013 -2016" whereupon "[s]ubsequently,
imports continued to increase at a slower pace before picking up again in the MRP".328 Thus, for the
product as a whole, the European Commission examined these trends and found that import volumes
continuously increased at varying rates.
7.179. Accordingly, the European Commission's determination sets out a basis for its finding of an
increase in imports that has not been challenged by Turkey, namely its finding on the basis of the
product as a whole, comprising all the product categories on which the European Commission applied
the safeguard. The European Commission characterized its examination by reference to the
individual product categories and product families as "confirm[atory]", "complement[ary]", and
"supplementa[l]" vis-à-vis its examination of the product as a whole.329 This is also reflected in the
general structure and order of the European Commission's analysis.
7.180. In this context, we note that Turkey's argument is based on the fact that for certain product
categories and product families imports peaked either in 2016 or 2017, after which they decreased
somewhat, although remaining at a higher level than at the beginning of the POI. 330 The
European Commission considered that the overall increase for the included product categories and
product families confirmed th e findings relating to the product as a whole. 331 The
European Commission also observed that although for some product families the greatest increase
took place between 2013 and 2016, with imports peaking and then decreasing to an extent, those
imports still remained "at a much higher level" than at the beginning of the POI.332
7.181. Taking into account that, as set out above, the central analysis conducted by the
European Commission related to the product as a whole, the analysis of product categories and
product families was supplemental, and this granular analysis still disclosed trends that were similar
to those observed for the product as a whole, we do not consider that Turkey has established that
the European Commission did not provide a reasoned and adequat e explanation of its finding of
increase in imports in light of the fluctuations in import levels observed for certain individual product
categories and product families.
7.5.2.2 Whether the European Commission did not demonstrate that the increase in
imports was sufficiently sharp, significant, sudden, and recent
7.182. Turkey contends that the European Commission "failed to demonstrate an increase in
imports that is sharp enough, significant enough, sudden enough and recent enough" as required
by Articles 2.1 and 4.2(a) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.333
The European Union responds that there are no "absolute standards" governing the requisite rate of
increase and, accordingly, the sufficiency of an increase can not be examined "in the abstract"
without considering the situation of the domestic industry.334 Brazil, as a third party, argues that the
"standard for the determination of the increase of imports 'in such quantities'" has been "elucidated
by previous case law", namely that the increase of imports must have been recent enough, sudden

327 Brazil's third-party submission, para. 14.
328 Definitive determination, (Exhibit TUR-5), recital 33.
329 Definitive determination, (Exhibit TUR-5), recitals 19, 22, 28, and 34.
330 Turkey's first written submission, tables 3-11. See also ibid. table 14.
331 Provisional determination, (Exhibit TUR-3), recitals 23 and 28; Definitive determination,
(Exhibit TUR-5), recitals 35-36 and 39.
332 Definitive determination, (Exhibit TUR-5), recital 36.
333 Turkey's first written submission, paras. 169 and 197.
334 European Union's first written submission, paras. 173-174; second written submission para. 48.

enough, sharp enough, and significant enough, both quantitatively and qualitatively to cause or
threaten to cause serious injury.335
7.183. In our view, if a complainant in WTO dispute settlement alleges that the increase in imports
found by an authority is not sudden, significant, sharp, or recent enough336, it bears the onus of
adducing the reference point or benchmark against which to ascertain what may or may not be
"enough". This is because the concept of "enough" is relational. Something is "enough" in relation
to something else. What qualifies as "enough" cannot exist in the abstract untethered from some
reference point or benchmark for ascertaining what is "enough".
7.184. We note that our understanding in this regard accords with that of the panel in US – Steel
Safeguards, which observed that the question of whether, in that instance, an increase in imports
was "sudden, sharp and significant enough as to cause serious injury is a questi on that is
appropriately to be addressed in the context of causation of serious injury, not in the context of the
condition of the increase, where no well-founded judgment in this regard can be made".337
7.185. Thus, the question of whether an increase is sudden, significant, sharp, and recent enough
may be determined by evaluating whether the increase is sufficient to cause or threaten to cause
serious injury to the domestic industry. This question may also conceivably be determined by
reference to some other benchmark proposed by the complainant, such as whether the increase is
merely reflective of a reversion to normal market conditions after a disruption.338
7.186. In the present case, having structured its claim around whether the increase was sudden,
significant, sharp, or recent enough, we do not consider that Turkey has adduced a viable benchmark
or reference point to ascertain what was "enough". In its first written submission, Turkey refers to
another panel's finding that a 37.9% relative increase in imports was not "enough", but that
reference point has no relevance to the present case involving a different product, market, and set
of facts.339 Turkey also refers to the imports increasing by only 7% in the present case between
2017 and the MRP, and to the most recent data in the POI evincing only a 3% or 4% year -on-year
increase340, but Turkey does not explain why these rates of increase were not "enough".
7.187. We asked Turkey the following question on this point:
The European Union contends that the sufficiency of increased imports cannot be
assessed "in the abstract " but [the assessment] must instead be made in relation to
"other conditions necessary for imposition of a safeguard " ( European Union's first
written submission, para. 174). Is it Turkey 's view that the Panel should consider
Turkey's claims regarding increased imports in isolation, and if so, what would be the
benchmark for determining whether the increase was sufficient?341
7.188. Turkey responded that "the condition of 'increase in imports' should not be seen in isolation
but relating to the other conditions necessary for the imposition of safeguard measures".342 Despite
this, Turkey's submissions in relation to the present claim do not address why the increase in imports
identified by the European Commission was not sudden, significant, sharp, or recent enough to

335 Brazil's third-party submission, para. 12.
336 We note that these terms are not found in the text of Articles 2.1 and 4.2(a) of the Agreement on
Safeguards and Article XIX:1(a) of the GATT 1994, but are rather derived from prior DSB reports. In view of
our ultimate conclusion in this section, we need not express a view on the extent to which these terms
correspond to the textual requirements of those provisions.
337 Panel Reports, US – Steel Safeguards, paras. 10.217, 10.226, 10.236, and 10.255 (original emphasis
omitted; emphasis added); see also Appellate Body Report, US – Steel Safeguards, paras. 351, 358, and 360
(noting that "[t]he question whether 'such increased quantities' of imports will suffice as 'increased imports' to
justify the application of a safeguard measure is a question that can be answered only in the light of 'such
conditions' under which those imports occur" and cannot be determined by reference to "absolute standards"
nor "in the abstract").
338 Panel Report, Argentina – Preserved Peaches, para. 7.60.
339 Turkey's first written submission, para. 198 (referring to Panel Report, Ukraine – Passenger Cars,
para. 7.147).
340 Turkey's first written submission, paras. 204-205.
341 Panel question No. 10. (emphasis original)
342 Turkey's response to Panel question No. 10, para. 34.

threaten to cause serious injury.343 Turkey points to characteristics exhibited by the increase itself.
For instance, Turkey refers to the 3% year-on-year rate of increase at the end of the POI. Turkey also
considers it significant that the bulk of the increase in imports found by the European Commission
took place earlier in the POI and subsequently decelerated.344 However, Turkey does not link these
characteristics to the situation of the domestic industry to show that the increase was not sudden,
significant, sharp, or recent enough to threaten to cause serious injury.
7.189. We therefore find that Turkey has not established that the European Commission did not
demonstrate a suf ficient increase in imports under Articles 2.1 and 4.2(a) of the Agreement on
Safeguards and Article XIX:1(a) of the GATT 1994. We note, however, that Turkey has presented
other claims in these proceedings that encompass the impact of increased import volu mes on the
situation of the domestic industry, which we address elsewhere.
7.5.2.3 Overall conclusion on the European Commission's determination of an increase in
imports
7.190. Based on the above, we find that Turkey has not established that the European Commission
acted inconsistently with Article XIX:1(a) of the GATT 1994 and Articles 2.1 and 4.2(a) of the
Agreement on Safeguards in its assessment of an increase in imports.
7.6 Threat of serious injury
7.191. Turkey claims that the definitive safeguard is inconsistent with Articles 4.1(a), 4.1(b), and
4.2(a) of the Agreement on Safeguards because the European Commission improperly determined
that increased imports were threatening to cause serious injury to the domestic industry.345 Turkey
argues that the European Commission neither demonstrated the existence of a significant overall
impairment to the domestic industry that was clearly imminent, nor the existence of a high degree
of likelihood of serious injury in the very near future.346
7.192. Turkey also argues that purely as a co nsequence of these inconsistencies with
Articles 4.1(a), 4.1(b), and 4.2(a), the definitive safeguard is also inconsistent with Article 2.1 of
the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.347
7.193. The European Union responds that the European Commission's finding of a threat of serious
injury to the domestic industry was based on facts and Turkey has not demonstrated an
inconsistency with the provisions it invokes.348
7.194. We begin by setting out the applicable requirements of Articles 4.1(a), 4.1(b), and 4.2(a) of
the Agreement on Safeguards (section 7.6.1). We then evaluate whether Turkey has demonstrated
that the European Commission acted inconsistently with these provisions by not demonstrating that

343 Turkey's response to Panel question No. 10, paras. 34-40; first written submission, paras. 197-213;
and second written submission, paras. 132 and 136.
344 Turkey's second written submission, paras. 131-134; response to Panel question No. 10,
paras. 35-40.
345 Turkey's first written submission, para. 215. When presenting its arguments on this point, Turkey did
not clearly distinguish its arguments under Articles 4.1(a), 4.1(b), and 4.2(a), respectively, but rather mostly
advanced a single set of arguments in respect of those provisions collectively.
346 Turkey's first written submission, paras. 231 and 245.
347 Further, Turkey argues that the definitive safeguard is inconsistent with Articles 2.1, 4.1(a), 4.1(b),
and 4.2(a) and Article XIX:1(a) for the reasons already discussed in section 7.2 above, i.e. that, according to
Turkey, the European Commission was required to determine that each of the conditions and circumstances to
impose a safeguard was met for each product category individually. (Turkey's first written submission,
paras. 226-229 and 254-257). Having already addressed these arguments in section 7.2, we do not discuss
them again in this section.
We note that at paras. 226-229 and 254-257 of its first written submission, Turkey also relies on these
arguments in support of a claim under Article 4.1(b). We have not addressed Article 4.1(b) directly in
section 7.2, but these arguments rely on the same basic proposition that we have rejected in section 7.2,
namely that the European Commission was required to determine that each of the conditions and
circumstances to impose a safeguard was met for each product category individually. We therefore reject these
arguments under Article 4.1(b). We note that we find that the definitive safeguard is otherwise inconsistent
with Article 4.1(b).
348 European Union's first written submission, paras. 222 and 225; opening statement at the first

a significant overall impairment was clearly imminent (section 7.6.2.1), and that serious injury would
be highly likely t o materialize in the very near future (section 7.6.2.2). Last, we address
Turkey's consequential arguments (section 7.6.2.3).
7.6.1 The applicable requirements of Articles 4.1(a), 4.1(b), and 4.2(a) of the
Agreement on Safeguards
7.195. Turkey contends that the European Commission's determination of a threat of serious injury
is inconsistent with the requirements set out in Articles 4.1(a), 4.1(b), and 4.2(a) of the
Agreement on Safeguards.349
7.196. Article 4.1(a) defines "serious injury" as follows:
"[S]erious injury" shall be understood to mean a significant overall impairment in the
position of a domestic industry[.]
7.197. Article 4.1(b), which defines "threat of serious injury" and sets out certain requirements for
a determination of such threat, reads:
"[T]hreat of serious injury" shall be understood to mean serious injury that is clearly
imminent, in accordance with the provisions of [Article 4.2]. A determination of the
existence of a threat of serious injury shall be based on facts and not merely on
allegation, conjecture or remote possibility[.]
7.198. Thus a competent authority making a determination of a threat of serious injury must
establish (i) the clear imminence of (ii) a significant overall impairment in the position of a domestic
industry.
7.199. Article 4.2(a) of the Agreement on Safeguards provides as follows:
In the investigation to determine whether increased imports have caused or are
threatening to cause serious injury to a domestic industry under the terms of this
Agreement, the competent authorities shall evaluate all relevant factors of an objective
and quantifiable nature having a bearing on the situation of that industry, in particular,
the rate and amount of the increase in imports of the product concerned in absolute
and relative terms, the share of the d omestic market taken by increased imports,
changes in the level of sales, production, productivity, capacity utilization, profits and
losses, and employment.
7.200. We proceed now to examine Turkey's claims under these provisions.
7.6.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Articles 4.1(a), 4.1(b), and 4.2(a) of the Agreement on Safeguards
7.6.2.1 Whether the European Commission did not provide a reasoned and adequate
explanation of its determination of threat of serious injury
7.201. Turkey claims that the European Commission failed to provide a reasoned and adequate
explanation for its finding that the domestic industry was "in a fragile and vulnerable position", given
that the data indicate that the industry's performance had improved towards the end of the POI.350
Turkey argues that the very fact of this improved performance precludes a "threat of serious injury"
determination.351 Turkey also argues that the European Commission failed to adequately explain
how this improved performance came about and why it would be short -lived in the face of further
imports.352 Because the finding of the domestic industry as "fragile and vulnerable" despite its
improved performance was at the heart of the European Commission's determination of a threat of

349 Turkey's first written submission, para. 225.
350 Turkey's first written submission, paras. 231-232, 239, and 241-243.
351 Turkey's response to Panel question No. 26, para. 13. See also Turkey's opening statement at the
second meeting of the Panel, para. 12; and first written submission, para. 244.
352 Turkey's response to Panel question No. 12, paras. 41, 44-45, and 50; comments on the
European Union's response to Panel question No. 27, paras. 18-24.

serious injury, Turkey argues that the European Commission failed to properly reach this
determination under Articles 4.1(a), 4.1(b), and 4.2(a) of the Agreement on Safeguards.353
7.202. The European Union responds that the European Commission acknowledged the domestic
industry's improved performance but found it to be partial, temporary, and readily reversible, such
that the domestic industry remained vulnerable to a continued increase in imports. 354 For the
European Union, the domestic industry 's position was fragile in view of the continued downward
trends in the domestic industry's market share, employment, and stocks, despite improvements in
other factors. 355 The European Union contends that the domestic industry's deterioration in
2013-2016 illustrates its vulnerability to increased imports, and that the post -2017 data indicate
that import levels were accelerating due to, inter alia, the Section 232 measures, and that prices
were also starting to decline.356
7.203. Brazil, as a third party, argues that while not every injury factor needs to be declining at the
end of the POI, positive trends must be explained, particularly given that the most recent data will
provide the most reliable indication of the situation of the domestic industry in the near future.357
7.204. Our evaluation of Turkey's claims and the European Union's rebuttal proceeds as follows.
We first address Turkey 's contention that the very fact that the domestic industry performance
improved precludes a "threat of serious injury" determination (section 7.6.2.1.1). We then assess
whether the European Commission properly examined the basis for the
domestic industry's improved performance, which in turn sheds l ight on whether the
European Commission provided a sufficient basis for inferring that these improvements would be
temporary and readily reversible in the face of increasing imports (section 7.6.2.1.2). We next
assess Turkey's contention that, even assuming the European Commission did indeed properly
attribute the domestic industry's improved performance to the AD/CV measures, it nonetheless
erred in inferring that th ese improvements would be temporary and readily reversible
(section 7.6.2.1.3). Finally, we assess the role of the other factors that allegedly explained the
domestic industry's improved performance (section 7.6.2.1.4).
7.6.2.1.1 Whether any improvement in the domestic industry's situation necessarily
negates a finding of threat of serious injury
7.205. Turkey argues that the fact that the domestic industry improved towards the end of the POI
demonstrates that serious injury was not "clearly imminent", irrespective of the reasons underlying
the improvement.358 The European Union responds that the fact that the domestic industry improved
during this period did not preclude a determination of a threat of serious injury in view of the
European Commission's finding that the domestic industry nonetheless remained "fragile" and
"vulnerable".359
7.206. We are of the view that the Agreement on Safeguards does not establish a categorical rule
that precludes authorities from finding a threat of serious injury whenever the data show positive
trends in the domestic industry's performance at a given point of the POI. Rather, Article 4.1(b)
provides that " 'threat of serious injury ' shall be understood to mean serious injury that is clearly
imminent". In our view, such assessments are necessarily fact -specific and to be made on a
case-by-case basis. If the evidence in a proceeding shows that a domestic industry's performance is
on a durable upward trajectory, it may be difficult to establish that serious injury is "clearly
imminent". However, if the evidence indicates that serious injury is "clearly imminent" despite
certain improvements in the domestic industry's performance, an authority may find a threat of
serious injury. For instance, the evidence may show that the improvement is fleeting or illusory and
that the domestic industry will continue to be at a competi tive disadvantage vis-à-vis imports once
the short-lived improvement recedes. Accordingly, the question of whether a determination of a

353 Turkey's first written submission, paras. 225, 231, and 244.
354 European Union's first written submission, para. 202.
355 European Union's first written submission, paras. 204-205.
356 European Union's first written submission, paras. 203, 205, and 213-215; opening statement at the
first meeting of the Panel, paras. 80 and 83; and opening statement at the second meeting of the Panel,
paras. 17 and 31.
357 Brazil's third-party submission, paras. 23-25.
358 Turkey's response to Panel question No. 26, para. 13. See also Turkey's opening statement at the
second meeting of the Panel, para. 12; and first written submission, para. 244.
359 European Union's comments on Turkey's response to Panel question No. 26, paras. 12-14.

threat of serious injury complies with the Agreement on Safeguards when the
domestic industry's performance improves at some point during the POI will depend on the facts
and the quality of the authority's explanation as to the nature and implications of those
improvements.
7.6.2.1.2 Whether the European Commission adequately explained the basis for the
domestic industry's improved performance
7.207. We turn now to whether the European Commission adequately explained the basis for the
domestic industry's improved performance, such that it could infer that this improvement was partial
and transitory in the face of increasing imports and thu s did not negate a finding of a threat of
serious injury. We address two main points of contention in this section. The first point of contention
concerns the parties' differing understandings of the European Commission's findings on why the
domestic industry's performance improved. The second point of contention concerns whether the
European Commission properly identified and substantiated that the AD/CV measures360 that were
adopted during the POI were a factor that contributed to the domestic industry's improved
performance.
7.208. The improvement in the domestic industry 's performance towards the end of the POI is a
matter of fact that is uncontested between the parties. Rather, the parties dispute whether the
European Commission could reasonably infer that this improvement was "partial", "temporary", and
readily "revers [ible]"361, and whether, on that basis, the European Commission reasonably
determined that the situation of the domestic industry was "fragile and vulnerable". 362 Given that
the parties offer diffe ring understandings of the European Union's findings on why the
domestic industry's performance improved , we begin our evaluation by examining the relevant
sections of the European Commission's determination on this point.
7.209. The European Commission found tha t the situation of the domestic industry had
"deteriorated significantly" in the period 2013 -2016, before "recover[ing] partially" in 2017.363 In
particular, the European Commission observed both positive trends for the domestic industry from
2016 to 2017 in relation to domestic sales, consumption, production, production capacity, capacity
utilization, prices, profitability, and cash flow, as well as negative trends in market share, stocks,
and employment. 364 The determination also sets out data indicating that the domestic industry
improved its position relative to imports from 2016 to 2017 in terms of the respective rates at which
it captured new demand and stemmed the loss of market share to imports .365 Although the
European Commission indicated that the data for the first semester of 2018 could not be verified,
the European Commission noted that these data confirmed that the "partial recovery" of the
domestic industry was ongoing.366
7.210. The parties diverge as to what factors informed the European Commission's analysis of the
domestic industry's improved performance from 2016 to 2017. The European Union contends that
the European Commission identified five factors that explained this improvement, namely increased
domestic consumption from 2013 to 2017, increased sales by the domestic industry, the cost of raw
material remaining lower in 2017 than 2013, the recovery in prices to 2013 levels, and the imposition

360 Our reference to AD/CV measures in this section means those measures adopted by the
European Union during the POI of the safeguard investigation that are mentioned in the provisional and
definitive determinations. (See e.g. Provisional determination, (Exhibit TUR-3), recitals 52-53, 55-57, 59, 61,
and 69; and Definitive determination, (Exhibit TUR-5), recitals 95 and 116).
361 Definitive determination, (Exhibit TUR-5), recitals 87, 89, 90, 95, 97, and 114;
European Union's opening statement at the first meeting of the Panel, paras. 82-83; and Turkey's response to
Panel question No. 26, paras. 16 and 20.
362 European Union's opening statement at the second meeting of the Panel, paras. 17-19;
Turkey's second written submission, paras. 157, 161, and 175.
363 Definitive determination, (Exhibit TUR-5), recital 90.
364 Provisional determination, (Exhibit TUR-3), recitals 39-46; Definitive determination, (Exhibit TUR-5),
recitals 67-73. These data pertain to the "global" level of analysis. Similar trends were observed by reference
to the product families and product categories. (Definitive determination, (Exhibit TUR-5), recitals 73-86. See
also Turkey's first written submission, para. 234; and European Union's first written submission, para. 211).
365 Definitive determination, (Exhibit TUR-5), recital 33 and table 4. See also Turkey's response to Panel
question No. 26, para. 19; and European Union's second written submission, para. 75.
366 Definitive determination, (Exhibit TUR-5), recital 89; European Union's opening statement at the first

of AD/CV measures against several of the products at issue. 367 The European Union also cites
"efficiency gains by [the domestic] producers" in this regard.368 Turkey responds that three of these
factors – prices, sales volume, and consumption – are descriptive rather than explanatory in nature,
and in any event, neither consumption nor sales volume a re mentioned in the
European Commission's determination as factors explaining the domestic industry's improved
performance.369
7.211. Based on our review of the European Commission's determination, we agree that
consumption and sales volume do not appear to have been explicitly cited as factors contributing to
the domestic industry's improved performance. At the provisional stage, the European Commission
stated that "[p]rices recovered in 2017, given a general recovery of the steel market but also as a
consequence of the various trade defence measures"; "some [product categories] have improved,
most likely as a result of the recent imposition of anti -dumping and anti -subsidy measures"; and
"the [domestic] steel industry has partially recovered for some product categories in 2017, notably
due to trade defence measures". 370 At the definitive stage, the European Commission affirmed its
finding that "[t]his recovery was attributed, inter alia, to the effectiveness of the different trade
defence measures that have been adopted, in particular since 2016". 371 Given this , the
European Commission appears to have accorded particular weight to the AD/CV measures in
stimulating the domestic industry 's recovery, with "a general recovery of the steel market" also
mentioned as a fa ctor contributing to price increases. Additionally, the European Commission
appears to have considered raw material costs to be a factor contributing to the
domestic industry's improved profit levels. Specifically, the European Commission noted that "[t]he
[domestic] industry achieved a level of profit of 6,2 % [in 2017] since cost of production
(raw material), even if increasing, remained lower than in 2013".372
7.212. In summary, we understand the European Commission to have found that the
domestic industry's recovery in 2017 arose principally from the application of AD/CV measures, in
particular since 2016, and that lower raw material costs and a "general recovery of the steel market"
also contributed to this recovery through improved profitability and increased prices. Increased
prices were not themselves cited as a contributing factor. Rather, the European Commission treated
increased prices as indicative of the improvements arising from the AD/CV measures and the general
recovery of the market. Increased consumption and sales volumes were likewise not cited as
contributing factors, but rather as indicative of the situation of the domestic industry in 2017.373
7.213. With this understanding in mind, we turn now to the parties' disagreement as to the proper
inferences and conclusions to be drawn from the domestic industry 's improved performance. The
European Commission found that, in light of the nature of this improvement, the improvement was
"partial", "temporary", and readily "revers [ible]"374, and it was on this basis that the
European Commission justified its conclusion that the domestic industry was still "fragile" and
"vulnerable" to a continued increase in imports despite the improvement. 375 Turkey, by contrast,
contends that the domestic industry was "performing outstandingly in 2017".376
7.214. Given the prominence of the AD/CV measures in the European Commission's explanation for
the domestic industry's improved performance, we focus in this section on the parties' disagreement
as to the proper inferences to be drawn from that factor in relation to the improved situation of the

367 European Union's second written submission, para. 55.
368 European Union's response to Panel question No. 26, para. 17.
369 Turkey's opening statement at the first meeting of the Panel, paras. 30-31; response to Panel
question No. 26, para. 14.
370 Provisional determination, (Exhibit TUR-3), recitals 52, 55, and 69.
371 Definitive determination, (Exhibit TUR-5), recital 95.
372 Provisional determination, (Exhibit TUR-3), recital 45. See also Definitive determination,
(Exhibit TUR-5), recital 72.
373 Provisional determination, (Exhibit TUR-3), recitals 39-40. We note that the European Union argues
that consumption and sales volume comprise part of the "general recovery of the [steel] market"
(European Union's comments on Turkey's response to Panel question No. 26, para. 16 (emphasis original)). We
address the role of the "general recovery of the steel market" as a contributing factor in section 7.6.2.1.4
below.
374 Provisional determination, (Exhibit TUR-3), recitals 55 and 69; Definitive determination,
(Exhibit TUR-5), recitals 87, 89, 90, 95, 97, and 114.
375 Definitive determination, (Exhibit TUR-5), recitals 87, 90, 95, and 114.
376 Turkey's first written submission, paras. 239 and 243-244.

domestic industry in 2017. 377 The parties agree that this was the only factor identified by the
European Commission to explain why the domestic industry improved its competitive relationship
vis-à-vis imports after 2016. 378 However, the parties disagree as to whether the
European Commission's analysis provided a sufficient basis for finding that the AD/CV measures
contributed to the domestic industry's improved performance in the first place.379
7.215. The European Commission explained the role of the AD/CV measures in improving the
situation of the domestic industry, particularly by increasing profits to a "sustainable" level for certain
product categories, as follows:
As far as profit is concerned, all product categories were sold at a loss or at a much
reduced profit until 2016. Only 7 products could recover to a level of profit above 6 %
in 2017. These products are significant in terms of EU production volume and six of
them are currently subject to ( recent) anti-dumping or countervailing duty measures.
Note that these measures concern only some countries of origin. All other products
remained either loss making (3 products) or only close to break-even (13 products).
…
For product categories 1, 2 and 4, the financial situation was negative in 2016, but
became positive in 2017 following the imposition of anti -dumping and anti -subsidy
measures against a number of countries like, amongst others, China and Russia.
…
In parallel, in order to remedy the injury caused by unfair trade imports, the Union has
imposed a number of anti-dumping and anti-subsidy measures against imports of steel
products. In total, there are currently no less than 19 anti -dumping or anti -subsidy
measures against the unfairly traded imports of 14 product categories under
investigation from various countries. During the period under investigation, i.e.
2013-2017, 13 new investigations determined that the EU steel industry suffered (or in
one case was threatened to suffer) from material injury caused by unfair trade
practices.380
7.216. Turkey contends that this analysis is deficient in a number of respects. First, Turkey argues
that the European Commission failed to properly articulate its rationale for finding that the
AD/CV measures contributed to the domestic industry's improved performance, because it did not
identify the relevant measures and product categories concerned, nor did it explain how those
measures impacted trends in injury factors. 381 Second, given this "lack of systematic analys is",
Turkey contends that the European Commission drew incorrect conclusions.382 In particular, Turkey
asserts that the European Commission's focus on improvements in profitability for product
categories subject to these measures ignored the improvements in profitability for product
categories not subject to these measures. 383 For Turkey, the improvements across product
categories irrespective of the application of AD/CV measures show that those measures could not
themselves explain the domestic industry's improved performance.384 The European Union responds
that the domestic industry's improved performance "was due only in part" to the AD/CV measures,
and that the improvement for products not subject to those measures "is explained by the general

377 We address other factors contributing to the domestic industry's improved performance in
section 7.6.2.1.4 below.
378 European Union's response to Panel question No. 26, para. 16; Turkey's response to Panel question
No. 26, paras. 16-20.
379 Turkey's responses to Panel question No. 26, para. 17; and No. 28(b), para. 24;
European Union's comments on Turkey's response to Panel question No. 28, paras. 26-29.
380 Provisional determination, (Exhibit TUR-3), recitals 53, 56, and 59.
381 Turkey's comments on the European Union's response to Panel question No. 27, para. 23.
382 Turkey's comments on the European Union's response to Panel question No. 27, para. 24.
383 Turkey's response to Panel question No. 26, para. 17.
384 Turkey's response to Panel question No. 26, para. 17; comments on the European Union's response

recovery of the steel market".385 Moreover, the European Union emphasizes that product categories
subject to AD/CV measures tended to return to sustainable levels of profitability, whereas those not
subject to these measures tended to remain at unsustainable levels, despite improvements.386
7.217. We agree with Turkey that the European Commission's analysis of the role played by the
AD/CV measures in the domestic industry's improved performance did not provide a sufficient basis
to infer that the improvement was "temporary" and "revers[ible]".387 The
European Commission's analysis contains insufficient detail to explain how imposing an
AD/CV measure on a particular product at a particular point in time led to a subsequent improvement
in the trends for the category encompassing that product. For instance, as evidenced in the portions
extracted above (see paragraph 7.215), the analysis does not provide any information about the
product coverage of a given AD/CV measure, the proportion of a given category that was impacted
by that measure, the point in time at which that measure was imposed, and the subsequent
improvements in trends for that category. We do not suggest that all such information is necessarily
required in all instances. Rather, such information is illustrative of the kind of details that could
permit an understanding of how the AD/CV measures contributed to the domestic
industry's improved performance. As it stands, the information underpinning the
European Commission's analysis on this point is sparse and incomplete and thus, standing alone, is
insufficient to support the European Commission's inference that the improvement was temporary
and reversible. This aspect of the European Commission's explanation falls short of the Article 4.1(b)
requirement that "threat of serious injury" determinations be "based on facts".
7.218. We also consider it significant that increases in profitability were observed in 2017
irrespective of the adoption of AD/CV measures. According to the European Commission, significant
price depression from imports had precluded the domestic industry from achieving sustainable profit
levels in 2013-2016 despite falling raw material costs. 388 Based on this, the European Commission
reasoned that the subsequent improvement in profit levels for some product categories in 2017 was
"most likely as a result of the recent imposition of anti -dumping and anti -subsidy measures".389
According to this reasoning, the adoption of AD/CV measures alleviated the downward price pressure
from certain imports, which in turn enabled the domestic industry to bene fit from the lower (albeit
increasing) raw material costs and to fetch prices that were commensurate to sustainable profit
levels whilst passing increased costs on to customers.390
7.219. However, as Turkey has noted, increases in profitability were also observed in 2017 for
product categories for which AD/CV measures had not been recently adopted.391 For instance, profit
levels increased in 2016 -2017 from 4.9% to 9.2% for category 8, from 2.3% to 5.8% for
category 14, and from -3.1% to 3.9% for category 15.392 These increases can be juxtaposed against
those explicitly referenced by the European Commission as exhibiting improvements in 2017
following the imposition of AD/CV measures, namely categories 1, 2, and 4.393 The profit levels for
these categories improved from 2016 to 2017 as follows: from -1.0% to 7.8% for category 1, from
0.6% to 9.8% for category 2, and from 7.9% to 11.7% for category 4. 394 Meanwhile, profit levels
for category 6 decreased in 2016 -2017 from 4.6% to 3.1% despite the recent adoption of

385 European Union's comments on Turkey's response to Panel question No. 28(b), paras. 25 and 29. As
we explained in para. 7.214, we focus on the role of the AD/CV measures in the present section given the
prominence of this factor in the European Commission's determination and given that this was the only factor
identified by the European Commission that could explain the domestic industry's improved performance
vis-à-vis imports. We address other factors contributing to the domestic industry's improved performance in
section 7.6.2.1.4 below.
386 European Union's comments on Turkey's response to Panel question No. 26, para. 22.
387 Turkey's comments on the European Union's response to Panel question No. 27, para. 21.
388 Provisional determination, (Exhibit TUR-3), recital 55.
389 Provisional determination, (Exhibit TUR-3), recital 55.
390 European Union's second written submission, para. 62.
391 Turkey's response to Panel question No. 26, para. 17.
392 Provisional determination, (Exhibit TUR-3), annex III. The European Commission's determination
does not enumerate those product categories affected by the imposition of AD/CV measures prior to 2017 or
generally. Turkey has provided a table in this regard in Exhibit TUR-49. In the absence of any objections by the
European Union as to its accuracy, we are guided by the contents of that table in understanding which product
categories were affected by these measures, and when.
393 Provisional determination, (Exhibit TUR-3), recital 56.
394 Provisional determination, (Exhibit TUR-3), annex III.

anti-dumping measures in 2016. These data do not support the proposition that the fact and degree
of improvement in profit levels in 2017 depended on the imposition of recent AD/CV measures.395
7.220. Accordingly, the domestic industry's ability to mitigate downward price pressure from
imports and reali ze increased profit levels through higher prices in 2017 was not limited to the
product categories recently subject to AD/CV measures. Rather, the domestic industry's improved
competitiveness vis-à-vis imports was observable across other product categories too.396 Indeed, as
Turkey points out, the domestic industry's improved competitiveness vis-à-vis imports in 2017 was
also reflected in other data.397 In particular, domestic consumption grew 12% from 2013 to 2016.398
Imports outperformed the domestic industry in capturing this growth insofar as imports increased
by 59%, compared to domestic sales which increased by just 5% during that period.399 By contrast,
in 2016-2017 the domestic industry managed to substantially reduce the rate at which it was being
outperformed by imports in capturing new demand. 400 This provides a further indication that the
domestic industry had improved its competitiveness vis-à-vis imports in 2017 following the prior
"significant deterioration"401 in 2013-2016.
7.221. As we have noted, the European Union acknowledged that the imposition of the AD/CV
measures was the only factor identified by the European Commission to explain the domestic
industry's improved competitiveness vis-à-vis imports.402 This factor, however, cannot explain the
domestic industry 's improved competitiveness in relation to product categories for which no
AD/CV measures had been recently adopted. The absence of an expla nation in this regard is
noteworthy. First, the fact that the domestic industry could mitigate the price pressure from imports
and improve profitability across a range of product categories in 2016-2017 irrespective of the
application of AD/CV measures raises the possibility that something other than those measures was
driving the improved competitiveness. 403 Nothing before us suggests that such a possibility was
explored by the European Commission.404 Second, even accepting that the AD/CV measures were

395 The European Union seeks to differentiate between those product categories whose profits improved
to a "healthy" or "sustainable" profit level and that were subject to recent AD/CV measures, and those whose
profits levels improved but failed to reach "healthy" or "sustainable" levels and that were not subject to such
measures. We find this unconvincing. The European Union oscillates between 6% (European Union's response
to Panel question No. 28(b), para. 27) and 8% (response to Panel question No. 27, para. 21; comments on
Turkey's response to Panel question No. 26, para. 22) as the benchmark for the requisite level of profit without
any explanation. We note that the European Commission stated that "[i]t is considered that the level profit
below 6 % is insufficient to cover the investments needed to sustain the activity, as, in the majority of the
recent investigations, the Commission has used a level of around 8 % profit as a sufficient profit level in this
sector in order to cover investments". (Provisional determination, (Exhibit TUR-3), recital 53). We would expect
to see additional explanation if this was indeed a pivotal aspect of the determination. We agree with Turkey in
this regard that the European Commission did not adequately explain its use of these benchmarks as indicative
of a "sustainable" profit level. (Turkey's comments on the European Union's response to Panel question 28(b),
para. 27). Indeed, several interested parties argued during the investigation that the European Commission
had found profit levels of between 3-7% to be adequate in a number of AD/CV investigations concerning the
steel sector, but the European Commission did not respond directly to this claim. (Definitive determination,
(Exhibit TUR-5), recitals 96-97). In any case, contrary to the European Union's argument, at least one
category not subject to AD/CV measures exceeded the 8% threshold (category 8), whereas some categories
that were subject to those measures fell below the 6% threshold (categories 5, 7, and 12). These data-points
call into question the premise of the European Union's alleged distinction between products subject to AD/CV
measures reaching healthy profit levels on the one hand, and those not subject to such measures exhibiting
unsustainable profit levels, on the other hand.
396 We also note that downward trends in profitability from 2016-2017 were not limited to product
categories not subject to AD/CV measures. For instance, profit levels for category 6 decreased in 2016-2017
from 4.6% to 3.1% despite the recent adoption of anti-dumping measures in 2016.
397 Turkey's response to Panel question No. 26, paras. 19-20. See also European Union's second written
submission, para. 75.
398 Definitive determination, (Exhibit TUR-5), table 4.
399 Definitive determination, (Exhibit TUR-5), tables 2 and 4.
400 Definitive determination, (Exhibit TUR-5), recital 33, and tables 2 and 4.
401 Definitive determination, (Exhibit TUR-5), recitals 90 and 95.
402 European Union's response to Panel question No. 26, para. 16. According to the European Union, the
other factors, namely the "general recovery of the steel market" and the lower raw material costs, benefitted
both the domestic industry and imports.
403 Turkey's responses to Panel question No. 12, para. 44; No. 26, paras. 17 and 20; and No. 28(b),
para. 24.
404 European Union's response to Panel question No. 12, paras. 45-48. The
European Commission's reference to a "general recovery of the steel market" and lower raw material costs

responsible for the domestic industry's improved competitiveness vis-à-vis imports in certain
product categories, the European Commission does not appear to have addressed the
industry's improved competitiveness in other categories. 405 Its determinat ion therefore leaves
unexplained why the domestic industry began to gain ground on imports from 2016 to 2017 with
respect to the imports of product categories not subject to the AD/CV measures. In the absence of
any understanding as to why the domestic in dustry's performance improved vis-à-vis imports of
those particular product categories, it was not reasonable for the European Commission to surmise
that the industry nonetheless continued to be "vulnerable" to those imports. Moreover, the
European Commission did not explain how its finding that the domestic industry was "vulnerable"
was compatible with seemingly contradictory data cited in its determination. In particular, the
domestic industry's performance improved after 2016 even as imports that were no t subject to
AD/CV measures continued to increase. The domestic industry's improvement in the face of
increased volumes of imports not subject to AD/CV measures calls into question the
European Commission's finding that the domestic industry was "vulnerabl e" to increases of those
imports, and thus warranted further explanation.
7.222. We recall, in this regard, that Article 4.1(b) of the Agreement on Safeguards requires a
determination of a threat of serious injury to " be based on facts and not merely on allegatio n,
conjecture or remote possibility ". In our view, the aforementioned deficiencies in the
European Commission's assessment regarding how the domestic industry improved its competitive
position in relation to imports from 2016 to 2017 indicate that the
European Commission's subsequent conclusion as to the "vulnerab[ility]" of the domestic industry
to further competition from imports was not "based on facts" as required by Article 4.1(b).
7.6.2.1.3 Whether the European Commission improperly inferred that improvements
owing to the AD/CV measures would be temporary and reversible
7.223. We recall that Turkey presents a further contention on the assumption, arguendo, that the
European Commission correctly identified the AD/CV measures as a main factor contributing to the
domestic industry's improved performance. In particular, Turkey argues that the
European Commission erred by inferring that the positive effects of those measures would be
temporary and reversible.406 We have already found that the European Commission's analysis of the
role played by the AD/CV measures in the domestic industry's improved performance was deficient.
We nonetheless consider it useful for the effective resolution of the dispute to examine
Turkey's contention regarding the effects of the AD/CV measures.
7.224. According to Turkey, if AD/CV measures adopted during a safeguard investigation led to
improvements in the domestic industry's performance, it stands to reason that those improvements
will persist into the future. 407 For Turkey, by adopting AD/CV measures , an authority seeks to
ameliorate certain sources of injury, an approach that is subsequently borne out if the
domestic industry's performance improves. 408 Moreover, given that those measures can last for
five years and potentially be renewed, Turkey contends that the resulting amelioration of certain
sources of injury should be considered durable. 409 The European Union responds that the
European Commission found that imports subject to AD/CV measures were being replaced by
imports from other sources and, moreover, the improvements in domestic consumption and prices
together with the Section 232 measures attracted yet further imports to the EU market.410
7.225. We recall that the European Commission found that there was a "significant deteriorati on"
in the situation of the domestic industry in 2013-2016, followed by improvements in 2017 as a result

may explain aspects of the domestic industry's overall improvement, but it does not explain why the
domestic industry improved its competitive position vis-à-vis imports, since those factors benefitted both the
domestic industry and imports in similar ways. (European Union's response to Panel question No. 26,
405 Turkey's responses to Panel question No. 12, para. 44; and No. 26, para. 20.
406 Turkey's response to Panel question No. 26, paras. 16 and 20; second written submission,
paras. 155-158.
407 Turkey's response to Panel question No. 26, paras. 16 and 20. See also Turkey's second written
408 Turkey's response to Panel question No. 12, para. 45.
409 Turkey's response to Panel question No. 26, para. 16.
410 European Union's comments on Turkey's response to Panel question No. 26, paras. 17-19.

of, inter alia, the AD/CV measures.411 According to the European Union, the period 2013-2016 is
illustrative of the domestic industry's vulnerability to imports.412 However, according to the
European Commission's own explanation, the AD/CV measures imposed on some imports had
contributed to the subsequent improvement in 2017. To that extent, these measures had mitigated
certain sources of injury – or "vuln erability" – in relation to imports. It follows from the
European Commission's reasoning that, absent some explanation to the contrary, a reversion to the
kind of negative conditions experienced by the domestic industry in 2013-2016 could arise only
through sources of injury that had not been mitigated by the AD/CV measures.
7.226. In this regard, the European Union contends that the European Commission found that
imports subject to the AD/CV measures were being replaced by imports from other sources, and
that import levels continued to increase despite the measures. 413 The European Union presented
data in these proceedings indicating that the proportion of the total import volume that was subject
to AD/CV measures was 33% in 2015, before declining to 21% and 10% in 2016 and 2017
respectively.414 Turkey responds that these data were not referenced in the
European Commission's determination and should be disregarded. 415 Even if these data had been
referenced explicitly by the European Commission, we do not consider that they support the
European Union's case. Rather, when considered in light of other trends, they show that the
replacement of imports subject to AD/CV measures with imports from other sources did not preclude
the improvement in the domestic industry's performance in 2016-2017. Indeed, the
domestic industry was able to achieve this improved performance despite import volumes (notably,
those not subject to AD/CV measures ) continuing to increase in 2016-2017.416 This raises the
possibility that the domestic industry had surmounted its vulnerability to increased imports 417, for
instance through the alleviation of the price depression from 2013-2016 by the impositio n of
AD/CV measures.
7.227. The European Union points to declines in prices in the third quarter of 2018, whilst imports
continued to increase, as evidence that the domestic industry was vulnerable to imports despite the
imposition of AD/CV measures .418 However, we agree with Turkey t hat the
European Commission's findings of an acceleration in import volumes and a decline in prices
after 2017 w ere not accompanied by evidence of downward trends in injury factors for the
domestic industry.419 Given that the domestic industry had improved its performance in 2016-2017
despite increased imports from sources not subject to AD/CV measures, we see no basis for inferring
– in the absence of evidence to the contrary – that this dynamic would change after 2017.420 Indeed,
the data available to the European Commission for the first semester of 2018 appeared to show that
the "partial recovery" of the domestic industry was ongoing despite continued increases in
import volumes.421 The mere prospect of further increases in imports was thus insufficient to

411 Provisional determination, (Exhibit TUR-3), recital 55; Definitive determination, (Exhibit TUR-5),
recitals 90 and 95.
412 European Union's first written submission, paras. 205 and 207.
413 European Union's opening statement at the second meeting of the Panel, para. 35; comments on
Turkey's response to Panel question No. 26, para. 18.
414 European Union's response to Panel question No. 28(a), para. 25.
415 Turkey's comments on the European Union's response to Panel question No. 28(a), para. 26.
416 Turkey's response to Panel question No. 12, paras. 49-50.
417 Turkey's opening statement at the second meeting of the Panel, para. 17; opening statement at the
first meeting of the Panel, para. 34.
418 European Union's response to Panel question No. 26, para. 17; opening statement at the
second meeting of the panel, paras. 19 and 31; and opening statement at the first meeting of the Panel,
para. 83.
419 Turkey's second written submission, paras. 159-160. See also Definitive determination,
(Exhibit TUR-5), recital 89.
420 We note, in this regard, the European Commission's finding that "imports of the product categories
concerned rose by 4 % from 2017 to the MRP without causing serious injury". (Definitive determination,
(Exhibit TUR-5), recital 143). The European Commission mentioned no evidence indicating that the
replacement of imports subject to AD/CV duties with other imports was accompanied by a replacement of
sources of injury. On the contrary, the fact that the domestic industry's performance improved in 2016-2017
as the replacement of imports increased suggested that the domestic industry had improved its
competitiveness vis-à-vis imports, thus enabling it to face further increased imports in the future
(Turkey's opening statement at the first meeting of the Panel, para. 34), and yet the European Commission did
not contend with these indications from the evidence that contradicted its conclusions.
421 Definitive determination, (Exhibit TUR-5), recital 89; European Union's opening statement at the
first meeting of the Panel, para. 83.

demonstrate that the situation of the domestic industry was "vulnerable and fragile".422 Additionally,
we do not consider that declining prices in the third quarter of 2018 were indicative of the "new price
depression" from imports th at the European Commission had forecast in its provisional
determination.423 These declines could arise from factors unrelated to imports . For instance, when
assessing any harm caused by the domestic industry's allegedly poor export performance, the
European Commission explained the drop in the domestic industry's export prices in 2017 to be a
result of reductions in costs of raw materials.424 Thus, the European Commission explicitly recognized
that price declines could be driven by factors other than price pressure from competitor s. Against
that background, we consider it significant that t he determination does not set out the data
underlying its observation of a price decline in the third quarter of 2018, nor does it analyse these
data to ascertain whether this price decline was being caused by increased volumes of imports.
7.228. In summary, according to the European Commission's findings, the domestic industry was
not vulnerable to imports subject to AD/CV measures to the extent that those measures produced
positive effects for the domestic industry and continued to be in effect. The European Commission,
however, did not demonstrate how the replacement of imports subject to AD/CV measures with
imports from other sources could erode the positive effects of those measures. On the contrary, the
domestic industry's performance improved in 2016-2017 whilst imports increased, particularly those
not subject to these measures. In our view, therefore, the European Commission's respective
findings that the "further increase of imports in 2018 – in particular from those countries or exporters
not subject to trade defence measures – is likely to prevent the industry from a full recovery and
from benefiting from [the AD/CV] measures"425, and that the domestic industry was "vulnerable to
further increases of imports " not subject to those measures 426, lacked the factual basis that is
required for "threat of serious injury" determinations under Article 4.1(b) of the Agreement on
Safeguards.
7.6.2.1.4 Whether the European Commission identified other factors contributing to the
domestic industry's improved performance that demonstrate its vulnerability to increased
imports
7.229. Finally, we recall that the European Union contends that there were factors other than the
AD/CV measures contributing to the domestic in dustry's improved performance in 2016-2017. In
particular, the European Union contends that the European Commission identified increased
domestic consumption from 2013 to 2017 and increased sales by the domestic industry427, the cost
of raw material remaining lower in 2017 than 2013, and the recovery in prices to 2013 levels , as
factors in this regard .428 The European Union seems to argue that these factors could recede and
leave the domestic industry exposed to the negative effects of imports that were increasing after
2017 due to, inter alia, trade diversion from the Section 232 measures.429 We recall, however, that
the European Union explained that improvements in these other factor s benefitted the domestic

422 Turkey's second written submission, para. 159; comments on the European Union's response to
Panel question No. 27, para. 25.
423 In its provisional determination, the European Commission considered that increased imports being
diverted from the US market would "unavoidably result in a new price depression and undercutting on the
EU market". (Provisional determination, (Exhibit TUR-3), recital 35). In the definitive determination, the
European Commission considered that "monthly imports into the Union started to increase mostly since
June 2018" as a result of such trade diversion, and "[m]oreover, steel prices in the Union started to follow a
declining trend since the third quarter of 2018". (Definitive determination, (Exhibit TUR-5), recital 89). In the
present proceedings, the European Union argues that the decline in prices was caused by downward price
pressure from the increased import levels attributable to trade diversion from the US market.
(European Union's response to Panel question No. 26, para. 17). In essence, we understand the
European Union to argue that the price decline in the third quarter of 2018 represented the materialization of
the anticipated "new price depression" due to increased imports being diverted from the US market that the
European Commission had forecast in its provisional determination.
424 See, e.g. Definitive determination, (Exhibit TUR-5), recital 123.
425 Provisional determination, (Exhibit TUR-3), recital 61. See also ibid. recital 57.
426 Provisional determination, (Exhibit TUR-3), recitals 35 and 61.
427 The European Union contends that these factors were part of the "general recovery of the steel
market" that was identified European Commission at Provisional determination, (Exhibit TUR-3), recital 52.
428 European Union's second written submission, para. 55. See para. 7.212 for our understanding of the
European Commission's determination on this point.
429 European Union's response to Panel question No. 12, para. 47; second written submission, paras. 55,
60, 64, and 75; and comments on Turkey's response to Panel question No. 28, para. 29.

industry and imports in similar ways. 430 Yet, the European Union has provided no reason why
declines in those factors would not likewise affect the domestic industry and imports in similar ways,
leaving their competitive relationsh ip unaltered. The European Union has thus not shown how the
domestic industry would be any more exposed to imports as a result of declines in those factors
than had been the case in 2016-2017, when the domestic industry improved its performance and
competitive position vis-à-vis imports despite imports continuing to increase. Accordingly, the role
of these other factors does not obviate the deficiencies in the European Commission's explanation,
identified above in paragraphs 7.226-7.227 as to the allegedly partial, temporary, and readily
reversible nature of the domestic industry's improvement. There is no reasoning in the
European Commission's determination along the lines that downward trends in demand and
increased raw material costs would leave the domestic industry more vulnerable to competition from
increased imports.
7.6.2.1.5 Conclusion on the explanation for the determination of threat of serious injury
7.230. In conclusion, we have found that the European Commission's explanation of the
AD/CV measures as a main contributor to the domestic industry's improved performance lacks basic
information concerning the timing, scope, and effectiveness of those measures. Further, the
European Commission's explanation in this regard did not account for improvements in
product categories for which no AD/CV measures were imposed, thus leaving tho se improvements
(and the assumption that they would be reversed in the face of increased import levels) unexplained
and without a factual basis. As we consider the European Commission's explanation of the
industry's improved performance to be deficient, th is deficiency necessarily undermines the
European Commission's inference that the improvement was partial, temporary, and readily
reversible, and the European Commission's characterization of the domestic industry as "vulnerable"
and "fragile" despite this improvement.
7.231. Additionally, to the extent that the AD/CV measures were responsible for the
domestic industry's improved performance, the European Commission's explanation that the
replacement imports from other sources would cause harm to the domestic industry was not "based
on facts" as required by Article 4.1(b). Rather, the period during which these imports from other
sources replaced those subject to AD/CV measures coincided with the domestic industry's recovery.
Indeed, the domestic industry's performance improved during this period despite import volumes
continuing to increase. The European Commission did not set out a factual basis for inferring that
increased volumes of replacement imports from other sources would harm the domestic industry
into the future.
7.232. For all of these reasons, we agree with Turkey that the European Commission's explanation
that the domestic industry was "in a fragile and vulnerable position" despite its improved
performance was flawed. Given the centrality of this flawed expla nation to the
European Commission's determination of a threat of serious injury 431, we find that the
European Commission's determination of a threat of serious injury was not "based on facts" as
required by Article 4.1(b) of the Agreement on Safeguards. In view of this finding, we consider it
unnecessary for the effective resolution of the dispute to reach findings on substantively the same
issue under Articles 4.1(a) and 4.2(a) of the Agreement on Safeguards.
7.6.2.2 Whether the European Commission did not establish a high likelihood of serious
injury in the very near future
7.233. Turkey claims that the European Commission acted inconsistently with Article 4.1(b) of the
Agreement on Safeguards by failing to demonstrate, on the basis of facts, that there was a high
degree of likelihood of serious injury to the domestic industry in the very near future.432 In essence,
Turkey argues that the European Commission conflated its finding of a threat of serious injury with
a finding of a threat of increased imports. 433 For Turkey, this is because the
European Commission's determination assumed that increased impo rt levels in the future would
bring about serious injury without demonstrating how those increased import levels would lead to a

430 European Union's response to Panel question No. 26, para. 16.
431 Provisional determination, (Exhibit TUR-3), recitals 55, 60-61, and 69; Definitive determination,
(Exhibit TUR-5), recitals 90 and 111.
432 Turkey's first written submission, para. 245.
433 Turkey's second written submission, para. 182.

significant overall impairment in the position of the domestic industry.434 Turkey thus contends that
the European Commission's determination of threat of serious injury was based on "conjecture"
rather than on "facts".435
7.234. The European Union responds that the European Commission based its determination of a
threat of serious injury on a projection as to the overall state of the dom estic industry that was
informed by facts relating to the negative trends in certain injury factors, the increase in imports
during the MRP, namely mid -2017 to mid-2018, declining prices in the third quarter of 2018, and
the likely further increase in impo rts due among others to the Section 232 measures. 436 The
European Union emphasizes that the expected further increase in imports should be understood in
the context of the domestic industry's recovery from a period in which its position had deteriorated
significantly due to increased imports. 437 For the European Union, the expected further increase in
imports would reverse the recovery and "necessarily" cause a deterioration in injury factors such as
price and profitability.438
7.235. Brazil, as a third party, argues that the future likelihood of increased imports cannot be a
trigger for safeguard measures. Rather, the "threat" must relate to "the actual trend of imports that
have experienced a recent, sharp, sudden, and significative increase".439 Switzerland contends that
"[b]ecause a threat determination requires an analysis of the likelihood that the serious injury will
occur in the near-term, the expected volume of imports as well as their likely effect on the domestic
industry could be relevant to the competent au thority's analysis".440 For the United Kingdom, a
threat of serious injury determination entails an assessment of both historical and existing facts from
the reference period accompanied by fact-based projections concerning future developments in the
domestic industry's condition.441
7.236. The parties do not contest that the European Commission relied on the expectation of a
further increase in import volumes as a "critical element" 442 in demonstrating that the
domestic industry was currently threatened with s erious injury. In our view, the main issue before
us is whether the European Commission's determination of a threat of serious injury evinces a
sufficient factual basis for projecting that this expected increase in imports would bring about a
significant overall impairment in the position of the domestic industry. 443 We begin by setting out
the European Commission's findings on the likely impact of this expected increase on the
domestic industry. At the provisional stage, the European Commission examined the factors that
would lead to a further increase in imports and stated that:
In this context, a significant increase of supply on the Union market caused by an influx
of imports will result in a general downward price pressure, resulting in price levels
comparable to 2016 with significant negative consequences on the profitability of the
Union steel industry.444

434 Turkey's second written submission, paras. 182 and 185-186; response to Panel question No. 29,
para. 30; and opening statement at the second meeting of the Panel, para. 19.
436 European Union's comments on Turkey's response to Panel question No. 30, para. 38.
437 European Union's opening statement at the second meeting of the Panel, para. 38; closing statement
at the second meeting of the Panel, para. 18.
438 European Union's response to Panel question No. 30, para. 40; opening statement at the second
439 Brazil's third-party submission, para. 22.
440 Switzerland's third-party response to Panel question No. 6, para. 8.
441 United Kingdom's third-party response to Panel question No. 6, para. 21.
442 Definitive determination, (Exhibit TUR-5), recital 93.
443 We note Turkey's clarification that, in its view, "the competent authorities are permitted to, and
actually should, consider the expected rate and amount of the increase in import levels as part of the threat
and/or causation analysis" and further that: "[a]s the Appellate Body emphasised, facts, by their very nature,
pertain to the present and the past, and thus to the [POI]. Those facts then serve as a basis for a projection
that there is a high degree of likelihood of serious injury to the domestic industry in the very near future. In
this regard, this prospective analysis must not only assess whether imports will likely increase in the future,
but also the expected evolution of all relevant injury factors in light of past trends". (Turkey's response to
Panel question No. 39, para. 64 (fn omitted)).
444 Provisional determination, (Exhibit TUR-3), recital 68. See also European Union's response to Panel
question No. 30, para. 39(a).

7.237. At the definitive stage, the European Commission stated that:
It should however be noted that – as indicated in table 12 below – monthly imports into
the Union started to increase mostly since June 2018. Moreover, steel prices in the
Union started to follow a declining trend since the third quarter of 2018. It is, therefore,
not possible to observe the effects of these imports and price development on t he
situation of the Union industry during the first semester of 2018. Therefore, the recent
data confirmed the delicate situation of the Union industry and the threat posed by the
most recent increase in imports.
…
In the provisional Regulation, the Commission concluded that the situation of the Union
industry deteriorated significantly in the period 2013 -2016 and recovered partially in
2017. However, the Commission considered that the Union industry, despite the
temporary improvement, was still in a fragile situation and under the threat of serious
injury if the increasing trend in imports continued with the ensuing price depression and
profitability drop below sustainable levels.
…
[T]he Commission concluded that the Union industry was in a fragile situa tion,
recovering from a period where its situation had deteriorated significantly. This recovery
was attributed, inter alia, to the effectiveness of the different trade defence measures
that have been adopted, in particular since 2016. … In this context, t he Commission
confirmed that the ongoing provisional recovery could quickly be reversed if a further
increase of imports was to take place.
…
[D]espite the fact that in 2017 the profitability levels had significantly improved from
previous years (where the [domestic] industry was either loss-making or break-even),
this situation could rapidly be reversed if imports would continue to increase (or surge,
as a result of inter alia, the US Section 232 measures). … In this context, the established
risk of trade diversion would be a key element that would negatively affect the current
economic situation of the Union industry if measures are not adopted.445
7.238. It is apparent from these passages that the European Commission projected that a further
increase in import l evels would result in price depression and declines in the
domestic industry's profitability. The factual basis for this projection was the negative impact of
increased import levels on the domestic industry in 2013-2016.446 We consider this to be inadequate.
It presumes that the market conditions prevailing in 2013-2016 would be replicated in the future,
without accounting for the record evidence that suggests that those conditions may have changed.
In particular, the European Commission identified the adoption of AD/CV measures as a factor that
had impacted the market after 2016. 447 It also identified a trend in which imports subject to those
AD/CV measures were being replaced by imports from other sources. 448 Thus, the compos ition of
imports at the end of the POI had changed vis-à-vis 2013-2016.449 Meanwhile, as imports subject
to AD/CV measures declined, overall import levels continued to increase for the remainder of the
POI at the same time as the domestic industry's performance improved.450 Increased imports based
on their composition after 2016 did not result in a deterioration in the
domestic industry's performance in 2016-MRP. Contrary to the assertion of the European Union, the

445 Definitive determination, (Exhibit TUR-5), recitals 89, 90, 95, and 97. See also
European Union's response to Panel question No. 30, paras. 39(b)-(e).
446 Provisional determination, (Exhibit TUR-3), recital 74.
447 Provisional determination, (Exhibit TUR-3), recitals 52-53 and 69.
448 Provisional determination, (Exhibit TUR-3), recitals 55-56.
449 The European Commission alluded to this when it found that the main threat of increased imports
into the future would arise from those imports not subject to AD/CV measures. (Provisional determination,
(Exhibit TUR-3), recitals 35, 55, and 61).
450 We note that the domestic industry's improved performance appears to have continued from 2017
into the first semester of 2018 whilst the increase in imports accelerated. (Definitive determination,
(Exhibit TUR-5), recital 89; European Union's opening statement at the first meeting of the Panel, para. 83).

data set out in the European Commission's determination do not show that a further increase in
imports would "necessarily" cause a deterioration in prices and profitability.451
7.239. We thus agree with Turkey that "[e] ven if imports were set to increase in 2018, this does
not automatically lead to the conclusion that there is a significant overall impairment in the position
of the domestic industry which is clearly imminent ".452 The European Commission did not identify
data suggesting a correlation between increases in imports based on their composition at the end of
the POI, on the one hand, and a negative impact on the situation of the domestic industry, on the
other hand. The European Union points out that the European Commission found that prices started
following a declining trend in the third quarter of 2018.453 However, as we stated earlier, we do not
consider that this necessarily implies a "new price depression" from imports at the end of the POI.454
As we explain ed earlier, the European Commission itself recogni zed that price declines for the
products at issue could be due to factors unrelated to imports, such as reductions in the cost of raw
materials455, and the European Commission engaged in no examination in this regard.
7.240. In short, the impact of increased imports on the domestic industry in 2013-2016 did not
provide a sufficient factual basis for projecting the impact of increased imports on the
domestic industry after the end of the POI, nor did the European Commission identify an alternative
factual basis for this projection. Moreover, the f act that the domestic industry's performance
improved between 2016 and the MRP whilst imports continued to increase underscores that
increased import levels cannot be assumed to bring about a significant overall impairment in the
situation of the domestic industry, and the European Commission did not engage with that evidence,
which contradicted its conclusion. We therefore find that the European Commission's determination
of a threat of serious injury was not "based on facts" as required by Article 4.1(b) of the
Agreement on Safeguards.456
7.6.2.3 Turkey's consequential arguments relating to the European Commission's
determination of threat of serious injury
7.241. Turkey appears to argue that the inconsistency of the European Commission's determination
of a threat of seri ous injury with the requirements set out in Articles 4.1(a), 4.1(b), and 4.2(a) of
the Agreement on Safeguards also results in purely consequential inconsistencies with Article 2.1 of
the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994. 457 In view of our findings
under Article 4.1(b) in sections 7.6.2.1 and 7.6.2.2 above, we consider it unnecessary for the
effective resolution of the dispute to reach findings on substantively the same issues under
Article 2.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.
7.6.2.4 Overall conclusion on threat of serious injury
7.242. In conclusion, we find that the definitive safeguard is inconsistent with Article 4.1(b) of the
Agreement on Safeguards because two central elements of the European Commission's finding of a
threat of serious injury were not "based on facts", as required by that provision. First, the
European Commission's finding that the domestic industry was "in a fragile and vulnerable position"
despite its improved performance was not "based on fact s". Second, the
European Commission's finding that a further increase in import volumes in the future would bring
about serious injury to the domestic industry was not "based on facts". In view of these findings, we
do not consider it necessary for the eff ective resolution of the dispute to address Turkey's claim

451 European Union's response to Panel question No. 30, para. 40.
452 Turkey's second written submission, para. 182.
453 European Union's opening statement of the first meeting of the Panel, para. 91; response to Panel
question No. 30, para. 39(b).
455 See, e.g. Definitive determination, (Exhibit TUR-5), recital 123.
456 We note that the parties also disputed whether the European Commission adequately showed that
the extent of the negative implications of the anticipated increase in imports sufficed to meet the threshold of
serious injury. (Turkey's second written submission, para. 186; European Union's comments on
Turkey's response to Panel question No. 29, para. 32). In view of our finding that the European Commission
did not articulate a factual basis for the proposition that the anticipated increased imports would have any such
negative implications in the first instance, it is unnecessary for the effective resolution of the dispute to
address these other arguments of the parties.
457 Turkey's first written submission, para. 225. As set out elsewhere in this Report, Turkey also
presents other arguments in support of its claims under Article 2.1 and Article XIX:1(a).

based on substantively identical 458 arguments under Article 4.1(a)459, Turkey's substantively
identical arguments under Article 4.2(a)460, or Turkey's consequential arguments concerning these
same aspects of the definitive safeguard under Article 2.1 of the Agreement on Safeguards 461 and
Article XIX:1(a) of the GATT 1994.462
7.7 Causation
7.243. Turkey argues that the definitive safeguard is inconsistent with the first and second
sentences of Article 4.2(b) of the Agreement on Safeguards because the European Commission
failed to establish a causal link between the increased imports and the threat of serious injury to the
domestic industry, and failed to ensure that injury caused by factors other than imports was not
attributed to increased imports. 463 Turkey also argues that purely as a consequence of these
inconsistencies, the definitive safeguard is also inconsistent with Article 2.1 of the Agreement on
Safeguards and Article XIX:1(a) of the GATT 1994. The European Union responds that the
European Commission established a causal link between increased imports and the threat of serious
injury and conducted a non-attribution assessment in accordance with those provisions.464
7.244. We have found above that the European Commission's determination of a threat of serious
injury was inconsistent with Article 4.1(b). Article 4.2(b) is concerned with the
authority's demonstration of " the existence of the causal link between increased imports of the
product concerned and serious injury or threat thereof".465 It presupposes the existence of a threat
of serious injury. Having found that the European Commission did not properly demonstrate the
existence of a threat of serious injury, we do not consider it necessary for the effective resolution of
this dispute to separately review whether the European Commission followed the requirements of
Article 4.2(b) in determining that the increased imp orts caused that threat of serious injury .466 For
the same reasons, we do not consider it necessary to address Turkey's purely consequential
arguments on this point under Article 2.1 of the Agreement on Safeguards 467 and Article XIX:1(a)
of the GATT 1994.468
7.8 Applying the safeguard only to the extent and time necessary to prevent serious
injury
7.245. Turkey claims that the definitive safeguard is inconsistent with Articles 5.1 and 7.1 of the
Agreement on Safeguards, and Article XIX:1(a) of the GATT 1994, because it is applied beyond the
extent and time necessary to prevent serious injury.469
7.246. We will consider, first, Turkey's arguments under Article 5.1 of the Agreement on Safeguards
(section 7.8.1) and, second, Turkey's arguments under Article 7.1 of the Agreement on Safeguards
and Article XIX:1(a) of the GATT 1994 (section 7.8.2).

458 See fn 345 above.
459 We recall that a panel may decline to review one or more claims if three conditions are met, i.e. that
the panel has (a) already found that the same measure (b) is inconsistent with one or more other provisions of
the covered agreements, and, in addition, that (c) findings under the additional claims are not necessary to
resolve the dispute. (See e.g. Panel Report, Pakistan – BOPP Film (UAE) [appealed by Pakistan
22 February 2021], para. 7.49; and Appellate Body Report, Canada – Wheat Exports and Grain Imports,
para. 133).
460 Turkey also presents other arguments in support of its claim under Article 4.2(a), but we have
rejected those arguments. (See paras. 7.12-7.13, 7.41, and 7.68-7.74 above).
461 Turkey also presents other arguments in support of its claim under Article 2.1, but we have rejected
those arguments. (See paras. 7.12-7.13, 7.41-7.67, 7.69, and 7.74 above).
462 Turkey also presents other arguments in support of its claim under Article XIX:1(a), and we have
already found that the definitive safeguard is inconsistent with Article XIX:1(a).
463 Turkey's first written submission, para. 270.
464 European Union's first written submission, para. 226.
465 Emphasis added.
466 Turkey also presents other arguments in support of its claim under Article 4.2(b). We have rejected
those arguments. (See paras. 7.12-7.13, 7.41, 7.68-7.69, and 7.74 above).
467 Turkey also presents other arguments in support of its claim under Article 2.1, but we have rejected
those arguments. (See paras. 7.12-7.13, 7.41-7.67, 7.69, and 7.74 above).
468 Turkey also presents other arguments in support of its claim under Article XIX:1(a), and we have
already found that the definitive safeguard is inconsistent with Article XIX:1(a).
469 Turkey's first written submission, para. 312.

7.8.1 Article 5.1 of the Agreement on Safeguards
7.247. Turkey argues that the definitive safeguard was applied beyond the extent necessary to
prevent or remedy serious injury, inconsistently with Article 5.1 of the Agreement on Safeguards,
for the following three reasons:
a. although it concluded that there was threat of injury based, among other things, on an
increase in imports observed in the first six months of 2018, the European Commission
did not take import volumes for the first six months of 2018 into account when it set the
size of the TRQ component of the safeguard470;
b. the European Commission's causation analysis was inconsistent with Article 4.2(b) of the
Agreement on Safeguards471; and
c. by suspending the application of AD/CV duties to the extent of their ove rlap with the
out-of-quota safeguard duty, the definitive safeguard improperly addressed the serious
injury caused by dumped and subsidized imports via the safeguard.472
7.248. Below, we first recall the applicable requirements of Article 5.1, and we then address each
of these arguments, in turn.
7.8.1.1 The applicable requirements of Article 5.1 of the Agreement on Safeguards
7.249. The first sentence of Article 5.1 of the Agreement on Safeguards provides:
A Member shall apply safeguard measures only to the extent necessary to prevent or
remedy serious injury and to facilitate adjustment.
7.250. The first sentence of Article 5.1 requires Members seeking to apply a safeguard to do so only
to the "extent necessary" to (a) prevent or remedy serious injury and (b) facilitate adjustment. A
safeguard that exceeds these limitations will be inconsistent with Article 5.1 of the Agreement on
Safeguards.
7.251. The first part of Article 5.1 sets the maximum permissible extent to which a safeguard may
be applied by reference to "serious injury". Other provisions of the Agreement on Safeguards, and
Article XIX:1(a) of the GATT 1994, provide relevant context to understand the phrase
"serious injury" in Article 5.1. The phrase "seriou s injury" appears in Article XIX:1(a) and is used
twenty times in the Agreement on Safeguards. Article 4 of the Agreement on Safeguards, which is
titled "Determination of Serious Injury or Threat Thereof", defines serious injury or its threat, and
contains requirements for the investigation of serious injury or threat. The phrase "serious injury"
in Article 5.1 has the same meaning as in the remainder of the Agreement on Safeguards. Therefore,
the injury relevant for the purposes of Article 5.1 of the Agree ment on Safeguards is the injury
determined to exist pursuant to Article 4 of the Agreement on Safeguards 473, which is caused or
threatened by the increase in imports that results from unforeseen developments.
7.252. To evaluate Turkey's claims, we consider whether Turkey has established that the safeguard
applied by the European Union exceeded the maximum permissible extent to which a safeguard may
be applied pursuant to Article 5.1.

470 Turkey's first written submission, para. 330.
471 Turkey's first written submission, para. 332.
472 Turkey's first written submission, para. 334.
473 See also Appellate Body Report, US – Line Pipe, para. 249.

7.8.1.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article 5.1 of the Agreement on Safeguards
7.8.1.2.1 Whether the definitive safeguard is inconsistent with Article 5.1 because the
European Commission did not take into account data from the first six months of 2018 in
determining the size of the TRQs
7.253. We recall that the definitive safeguard combines TRQs and an out -of-quota duty. The size
of the TRQs was based on the average imports in the period from January 2015 to December 2017
(TRQ period) .474 Turkey argues that because the European Union based its f inding of threat of
serious injury on, among other things, the increase in imports observed during the first six months
of 2018, but did not include the data on imports during those six months when calculating the size
of the TRQs, the European Union did not apply the safeguard only to the extent necessary to prevent
serious injury, as required by Article 5.1.475
7.254. The European Union responds that the European Commission ensured that the safeguard
was "commensurate with the goals of preventing or remedying se rious injury and of facilitating
adjustment".476
7.255. Among the third parties, Japan argues that the Panel must examine whether the safeguard
measure at issue is in a form and at a level appropriate to or commensurate with the goal of
preventing or remedying serious injury and facilitating adjustment.477
7.256. Turning to the published determinations, we note that there was some variation among the
periods on which the European Commission relied to conclude that there was an increase in imports
that threatened injury. The European Commission examined the increase in imports based on data
for the period from January 2013 to June 2018.478 In the section of the definitive determination titled
"Threat of Serious injury", the European Commission examined trends in several injury factors for
the years from 2 013 to 2017479; it made a discrete finding that the level of imports in the period
from July 2017 to June 2018 was higher than that in the period from January 2017 to December 2017
due to "the relatively high level of imports in the first semester of 2018"480; and it examined monthly
imports into the European Union and the United States for the period from January 2018 to
September 2018 as compared to monthly imports in the period from January 2017 to
September 2017 to analyse the "likelihood of further increased exports".481 Turkey argues that since
the European Commission's determination of the threat of serious injury was based on import data
which included the first six months of 2018, it should also have included the first six months of 2018
in the period that it chose as the TRQ period.482 Turkey does not explain further why this is the case.
7.257. We first note that nothing in Article 5.1 of Agreement on Safeguards requires the period
during which the Member concerned finds an increase in imports that causes or threatens to cause

474 Definitive determination, (Exhibit TUR-5), recital 144.
475 Turkey's first written submission, para. 330.
476 European Union's first written submission, para. 270.
477 Japan's third-party statement, para. 8.
478 Definitive determination, (Exhibit TUR-5), recital 39.
479 Definitive determination, (Exhibit TUR-5), recitals 66-86. The European Commission noted that while
it requested the EU industry associations to provide data for the first semester of 2018, that information could
not be verified. The European Commission also noted that it "could not draw any reliable conclusion based on
the situation of the [domestic] industry during the first semester of 2018" but that "based on these 2018 data"
it "could … confirm[]" the trend of a partial recovery of the industry observed in 2017.
(Definitive determination, (Exhibit TUR-5), recital 89).
480 Definitive Determination, (Exhibit TUR-5), recital 101.
481 Definitive determination, (Exhibit TUR-5), recitals 99 and 103.
482 Turkey's first written submission, para. 330; second written submission, para. 229. Though its
arguments on this subject are not entirely clear, we understand Turkey to link its contention that the TRQ
period should have included the first six months of 2018 to the fact that the European Commission also
examined data that included the first six months of 2018 when it conducted its threat of injury analysis.
However, as noted above, while the European Commission's threat of injury analysis considered import data
from 2018, this data was not limited to the first six months of 2018. Instead, the European Commission
examined import data from the first nine months of 2018 (i.e. from January to September 2018). Given this,
Turkey's argument that the TRQ period should have included the first six months of 2018 does not account for
the fact that the European Commission did not examine this same period of time when it conducted its threat
of injury analysis.

serious injury to be identical to the period that the Member uses to establish the level of a safeguard,
or for the two periods to have the same end-points. In fact, Article 5.1 and its context establish that
the Agreement on Safeguards does not require the two periods to be identical. We note, for example,
that the second sentence of Article 5.1 generally requires that the level of a safeguard that takes
the form of a quantitative res triction be set on the basis of data for "the last three representative
years for which statistics are available". By comparison, Article 4 of the Agreement on Safeguards,
which concerns the determination of serious injury or the threat thereof, does not prescribe a default
length of the POI for the injury analysis. Thus, even though the second sentence of Article 5.1 is
limited to quantitative restrictions, the comparison between Articles 4 and 5.1 illustrates that the
Agreement on Safeguards does not require that the time periods that are used for setting the level
of the safeguard be the same as the period that is used for the injury analysis.
7.258. Second, we note that Turkey appears to be confusing two different concepts, i.e. (a) what
is necessary to prevent or remedy serious injury, and (b) the period over which an increase in
imports giving rise to that serious injury is observed. Article 5.1 requires a safeguard to be applied
only to the extent necessary to prevent or remedy serious injury. As noted above, setting a TRQ
based on the level of imports during the same period as the one used by the competent authority in
its examination of the increase in imports causing injury is not always necessary to fulfil this
requirement, and Turkey has not explained why it was necessary in this particular case.
7.259. Referring to the panel report in Chile – Price Band System, Turkey argues that the TRQs that
the European Commission adopted were not applied "only to the extent necessary to prevent serious
injury" because they lack the required rational connection with the objective of preventing serious
injury.483 The panel in Chile – Price Band System found that for a safeguard to be applied only to
the extent necessary to prevent or remedy serious injury and facilitate adjustment there must be
"a rational connection" between the measure and the objective of preventing or remedying serious
injury and facilitating adjustment.484 We note that, in that dispute, the panel found that the level of
the safeguard duty depended, among other factors, on a price threshold calculated on the basis of
recent international prices; the panel observed that that the price threshold thus calculated was not
"indicative of a state below which the domestic industry will experience (a threat of) serious injury",
and it therefore bore "no rational connection to a state of the domestic industry below which (a
threat of) serious injur y will be experienced". 485 That report, therefore, underlines that the
permissible extent of the safeguard in a particular case must not be based on considerations other
than those that are connected to a state of the domestic industry below which the indus try will
experience serious injury. However, Turkey has not explained why TRQs established based on the
data concerning the volume of steel that was imported in a period that included the first six months
of 2018486 would be connected to a state of the dome stic industry below which the industry will
experience serious injury, whereas the TRQs that the European Commission set based on the volume
of imports from 2015 to 2017 are not. We therefore do not consider that Turkey's reference to the
panel report in Chile – Price Band System supports Turkey's argument.
7.260. Based on the above, we consider that Turkey has not established that the European Union
acted inconsistently with the first sentence of Article 5.1 of the Agreement on Safeguards by not
taking into account data from the first six months of 2018 in determining the size of the TRQs.
7.8.1.2.2 Whether the definitive safeguard is inconsistent with Article 5.1 because the
European Commission did not conduct a proper causation analysis
7.261. Turkey also argues that the definitive safeguard is inconsistent with Article 5.1 of the
Agreement on Safeguards because the European Commission did not establish a causal link between
the increased imports and the threat of injury and did not conduct the non -attribution analysis as

483 Turkey's first written submission, para. 330 (referring to Panel Report, Chile – Price Band System,
para. 7.183).
484 Panel Report, Chile – Price Band System, para. 7.183. (emphasis original)
485 Panel Report, Chile – Price Band System, para. 7.184.
486 Turkey does not explicitly state what the starting point of the TRQ period should have been in its
view. Given that the gist of Turkey's argument appears to be that a period used in the threat of injury analysis
should also be included in the TRQ period, one might infer that Turkey would take the view that the TRQ period
should begin January 2013 (i.e. the same point as the beginning of the injury analysis). However, as noted,
Turkey's submissions were not explicit on this point. It is only in its comments on the interim report that
Turkey made explicit that it was arguing that the starting point of the TRQ period should be 2015.
(Turkey's request for interim review, para. 39).

required under Article 4.2(b) of the Agreement on Safeguards.487 The European Union argues that
because the European Commission properly established the existence of a causal link between the
increased imports and the threat of serious injury, Turkey's argument should be dismissed.488
7.262. We note that Turkey's argument is purely consequential to its claim under Article 4.2(b) of
the Agreement on Safeguards. Having already found that the definitive safeguard is inconsistent
with Article 4.1(b) of the Agreement on Safeguards, we have considered it unnecessary to d ecide
whether the definitive safeguard is also inconsistent with Article 4.2(b).489 Likewise, we do not
consider it necessary to consider Turkey's purely consequential argument that the
definitive safeguard is inconsistent with Article 5.1 as a result of th e claimed inconsistency with
Article 4.2(b).490
7.8.1.2.3 Whether the double remedy regulation rendered the definitive safeguard
inconsistent with Article 5.1
7.263. We recall that as defined by Turkey, the legal instruments setting out the definitive safeguard
include the double remedy regulation. 491 This regulation suspends the application of AD/CV duties
on a particular product to the extent they overlap with the out -of-quota safeguard duty applicable
to that product.492 According to Turkey, this means that the definitive safeguard addresses the injury
caused by dumped and subsidized imports. Turkey argues that the definitive safeguard is therefore
inconsistent with Article 5.1 of the Agreement on Safeguards, because this provision permits the
application of a safeguard only to the extent necessary to address the serious injury caused by the
increased imports within the meaning of Article 2.1 and Article XIX:1(a).493
7.264. The European Union responds that, as set out in the double remedy regulation, the
European Commission suspended the AD/CV duties to the extent of their overlap with the
out-of-quota safeguard duty in order to avoid " a greater effect than desirable ", and thus the
suspension cannot be characterized as a failure to apply the measure only t o the extent necessary
to prevent or remedy serious injury and to facilitate adjustment.494
7.265. Among the third parties, Japan argues that the Panel must examine whether the safeguard
measure at issue is in a form and at a level appropriate to or commensurate with the goal of
preventing or remedying serious injury and facilitating adjustment. 495 The Republic of Korea
comments that safeguards and AD/CV measures are not mutually exclusive and may be applied in
combination.496
7.266. At the outset of our evaluation, we not e that Turkey's claim does not concern the question
whether a safeguard can be applied to dumped and subsidized imports. Turkey clarified in response
to a question from the Panel that it is not arguing that a safeguard cannot be applied to a product
that is also subject to AD/CV duties.497 Turkey argues that by suspending AD/CV duties to the extent

487 Turkey's first written submission, paras. 331-332.
488 European Union's first written submission, para. 277.
489 See para. 7.242 above.
490 We consider, and reject, Turkey's other arguments in support of its Article 5.1 claim at
paras. 7.253-7.260 above and paras. 7.263-7.271 below.
491 See section 2.1 above. See also Turkey's panel request, paras. 13 and 17; and response to Panel
question No. 14, para. 52.
492 Double remedy regulation, (Exhibit TUR-7), Article 1 (if the safeguard duty is lower, the difference
between the anti-dumping or countervailing duty and the safeguard duty is also applied). In the definitive
determination, the European Commission noted that in order to prevent the cumulation of AD/CV duties with
safeguards when the safeguard TRQ is exceeded, the European Commission could, pursuant to a framework to
be developed at a later stage, suspend or reduce the level of existing AD/CV duties that were being assessed
on certain covered imports. (Definitive determination, (Exhibit TUR-5), recital 186). Subsequently, the
European Commission adopted the double remedy regulation stipulating that in cases where the safeguard
duty exceeds the equivalent rate of the higher of the AD/CV duty rate applicable to the same product
categories, only the safeguard duty shall be collected.
494 European Union's first written submission, para. 282. See also European Union's closing statement at
the second meeting of the Panel, paras. 34-36.
495 Japan's third-party statement, para. 8.
496 Korea's third-party submission, para. 25.
497 Turkey's response to Panel question No. 42, para. 78. See also Turkey's comments on the
European Union's response to Panel question No. 38, para. 49.

they overlapped with the safeguard duty, the European Union addressed the injury caused by the
dumped and subsidized imports via the safeguard measure. 498 The question that we must address
to resolve Turkey's claim, therefore, is whether Turkey has shown that by suspending AD/CV duties
to the extent that they overlap with the safeguard duty, the European Union failed to apply the
safeguard only to the extent necessary to prevent serious injury due to increased imports within the
meaning of Article 2.1 and Article XIX:1(a), thereby acting inconsistently with Article 5.1 of the
Agreement on Safeguards.
7.267. Turkey appears to suggest that merely because AD/CV duties were suspended to the extent
of their overlap with the safeguard duty, the safeguard duty should be considered to perform the
function of the suspended AD/CV duties, i.e. addressing the injury caused by dumping and
subsidization, such that the safeguard duty beco mes inconsistent with Article 5.1 of the
Agreement on Safeguards. We do not agree. We note that the European Commission explained its
determination to suspend any AD/CV duties to the extent that they overlapped with the safeguard
duty by stating that:
[T]he combination of anti -dumping and/or anti -subsidy measures and safeguard
measures … would … have an effect greater than that intended or desirable in terms of
the Union's trade defence policy and objectives[.]499
7.268. As such, the European Commission did not indicate that it was suspending the AD/CV duties
because they addressed the same injury as the safeguard. Instead, the European Commission
indicated that the combined effect of all measures would have been greater than desirable. Turkey
has not countered thi s explanation. Specifically, Turkey has not demonstrated that rather than
choosing not to address the additional injury caused by dumping and subsidization (i.e. injury other
than the serious injury caused by increased imports within the meaning of Article 2.1 and
Article XIX:1(a)), the European Union was addressing that injury via the definitive safeguard by
suspending the AD/CV duties to the extent of their overlap with the safeguard duty.500 We therefore
consider that the suspension of the AD/CV duties to the extent of their overlap with the safeguard
duty does not, on its own, establish that the safeguard duty was being applied beyond the extent
necessary to prevent serious injury caused by increased imports within the meaning of Article 2.1
and Article XIX:1(a).
7.269. We also note the following statement made by Turkey:
Where there are already anti -dumping and countervailing measures in place, prior to
the increase in imports resulting from unforeseen developments, a subsequent finding
that the imposition of safeguard measures is warranted may result in the imposition of
a safeguard measure to offset the serious injury caused by the increased imports in
addition to the existing anti-dumping or countervailing duty.501
7.270. Turkey thus acknowledges that a Member may apply a safeguard to offset the serious injury
caused by increased imports even if those imports are also subject to AD/CV measures.
Notwithstanding this, Turkey asserts that the definitive safeguard, and in particular the
double remedy regulation, was nonetheless inconsistent with Article 5.1 of the Agreement on
Safeguards because it suspended the AD/CV duties that overlapped with the safeguard duty. 502 In
making these statements, Turkey appears to argue that an inconsistency with Article 5.1 may not
have presented itself had the European Commission continued to apply both the full amount of the
pre-existing AD/CV duties and the safeguard duty on the relevant imports, but that the
European Commission acted inconsistently with A rticle 5.1 because it suspended part of the
AD/CV duties. To us, this position is internally contradictory.

498 Turkey's second written submission, para. 233; response to Panel question No. 42, para. 80.
499 Double remedy regulation, (Exhibit TUR-7), recital 15.
500 In this regard, we note that the application of AD/CV measures to counteract dumping and/or
subsidization in accordance with the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (Anti-Dumping Agreement) and the Agreement on Subsidies and Countervailing
Measures (SCM Agreement) is a right that Members may, but are not mandated to, exercise. Members are also
not mandated to apply the full amount of AD/CV duties that they are permitted to apply by the Anti-Dumping
Agreement and the SCM Agreement.
501 Turkey's response to Panel question No. 42, para. 80.
502 Turkey's response to Panel question No. 42, para. 80.

7.271. Based on the above, we consider that Turkey has not established that the double remedy
regulation resulted in the application of the definitive safe guard beyond the extent necessary to
prevent serious injury.
7.8.2 Article 7.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994
7.272. Turkey argues that because the European Commission did not perform a proper causation
analysis in accordance with Article 4.2(b), the European Union was unable to ensure that the
safeguard was applied only for the period of time necessary to address the serious injury attributed
to increased imports. On this basis, Turkey claims that the definitive safeguard was inconsistent with
Article 7.1 of the Agreement on Safeguards 503 and Article XIX:1(a) of the GATT 1994. 504 The
European Union argues that Turkey's contention ought to be rejected.505
7.273. We note that Turkey 's claim under Article 7.1 of the Agreement on Safeguards, and
Turkey's relevant argument under Article XIX:1(a) of the GATT 1994, are purely consequential to
Turkey's claim under Article 4.2(b) of the Agreement on Safeguards, and that we have not reached
findings of inconsistency under Article 4.2(b). Given that we have already found the
definitive safeguard to be inconsistent with other provisions of the Agreement on Safeguards, and
that the additional finding s requested by Turkey are not necessary to resolve the dispute, we
exercise economy on Turkey 's consequential claim under Article 7.1 of the Agreement on
Safeguards, and we do not review Turkey's consequential argument 506 under Article XIX:1 of the
GATT 1994.
7.9 The allocation of shares in the TRQs
7.274. Turkey claims that the definitive safeguard is inconsistent with Article XIII:2(d) and the
chapeau of Article XIII:2 of the GATT 1994 because it allocates country-specific shares in the TRQs
based on a period that is not representative, and without taking due account of any special factors
affecting the trade in the product concerned. 507 Turkey claims that the definitive safeguard is also
inconsistent with Article 5.2(a) of the Agreement on Safeguards, "for the same reasons". 508 The
European Union contends that the European Commission fully conformed with the requirements of
Article XIII of the GATT 1994. 509 The European Union also contends that Article 5.2(a) of the
Agreement on Safeguards does not apply to TRQs.510 On these bases, the European Union requests
the Panel to reject Turkey's claims.
7.275. In the following sections, we first address Turkey's claims under the relevant provisions of
Article XIII:2 of the GATT 1994 (section 7.9.1), and then Turkey's claim under Article 5.2(a) of the
Agreement on Safeguards (section 7.9.2).
7.9.1 Article XIII:2 of the GATT 1994
7.276. In the definitive determina tion, the European Commission determined that " a country
specific [TRQ] should be allocated to countries having a significant supplying interest, based on their
imports over the last 3 years".511 While the import volumes data from the first six months of 20 18
were on the record before the European Commission, the European Commission did not take those
data into account when it allocated the country-specific shares in the TRQs for the relevant product
categories.

503 Article 7.1 of the Agreement on Safeguards provides:
A Member shall apply safeguard measures only for such period of time as may be necessary to
prevent or remedy serious injury and to facilitate adjustment. The period shall not exceed
four years, unless it is extended under paragraph 2.
504 Turkey's first written submission, para. 333; response to Panel question No. 13, para. 51.
505 European Union's first written submission, para. 279.
506 Turkey makes other arguments in support of its claim under Article XIX:1(a), and we have already
found that the definitive safeguard is inconsistent with Article XIX:1(a).
507 Turkey's first written submission, para. 336.
508 Turkey's first written submission, para. 336.
509 European Union's first written submission, para. 296.
510 European Union's first written submission, para. 285.
511 Definitive determination, (Exhibit TUR-5), recital 147.

7.277. First, Turkey argues that the European Commission's decision to allocate the
country-specific shares in the TRQs based solely on import volume data from 2015 to 2017 and
without considering data from the first six months of 2018 was inconsistent with Article XIII:2(d) of
the GATT 1994 on the following alternative grounds: (a) the "previous representative period" used
by the European Commission should have included the first half of 2018, because the first half of
2018 formed part of the MRP preceding the application of the safeguard, and because in the first
half of 2018 the European Union had introduced new trade remedy measures (the representative
period argument); or (b) there had been changes in imports shares from various countries following
the imposition of new trade remedies measures in the first half of 2018, and these changes were a
"special factor" of which the European Union did not take due account (the special factor
argument).512 Turkey asserts that the Panel must address the special factor argument "if [it] were
to be concluded that there was no obligation for the European Union to have included the first
six months of 2018 into the representative period".513
7.278. Second, Turkey argues that for the same reasons, this allocation of country -specific shares
was inconsistent with the chapeau of Article XIII:2.514
7.279. Below, we first set out the applicable requirements of Article XIII:2 of the GATT 1994. We
then address Turkey's claim under Article XIII:2(d) of the GATT 1994, before turning to
Turkey's claim under the chapeau of Article XIII:2 of the GATT 1994.
7.9.1.1 The applicable requirements of Article XIII:2 of the GATT 1994
7.280. Article XIII:2 chapeau and Article XIII:2(d) of the GATT 1994, in relevant part, provide:
In applying import restrictions to a ny product, contracting parties shall aim at a
distribution of trade in such product approaching as closely as possible the shares which
the various contracting parties might be expected to obtain in the absence of such
restrictions and to this end shall observe the following provisions:
…
(d) In cases in which a quota is allocated among supplying countries the contracting
party applying the restrictions may seek agreement with respect to the allocation of
shares in the quota with all other contracting part ies having a substantial interest in
supplying the product concerned. In cases in which this method is not reasonably
practicable, the contracting party concerned shall allot to contracting parties having a
substantial interest in supplying the product sha res based upon the proportions,
supplied by such contracting parties during a previous representative period, of the total
quantity or value of imports of the product, due account being taken of any special
factors which may have affected or may be affecting the trade in the product.
7.281. The chapeau to Article XIII:2 provides that "in applying import restrictions" to a product, the
contracting parties "shall aim at a distribution of trade … approaching as closely as possible the
shares which the various contrac ting parties might be expected to obtain in the absence of such
restrictions". The ordinary meaning of "aim" includes "[t]o have (something) as an object, intention,
or desired outcome … to seek to achieve or obtain", and to "direct one's course towards a particular
point or destination, or to make this one 's object".515 This provision therefore requires a Member,
when applying import restrictions to a product, to seek to achieve or obtain a distribution of trade
that approaches, "as closely as possible", th e shares that other Members "might be expected to
obtain" in the overall imports of the product concerned "in the absence of such restrictions".516 The
phrase such restrictions refers to the import restrictions that are applied by the Member concerned
under Article XIII:2. The chapeau further specifies that the subparagraphs that follow shall be
observed to achieve the "end" specified in the chapeau. The Ad Note to Article XIII:2(d) refers to

512 Turkey's first written submission, paras. 347-348; response to Panel question No. 43, para. 89.
513 Turkey's response to Panel question No. 43, para. 89.
514 Turkey's first written submission, para. 352; response to Panel question No. 44, para. 90.
515 Oxford Dictionaries online, definition of "aim", v., meanings 6 and 7,
https://www.oed.com/view/Entry/4348?rskey=daocNi&result=4&isAdvanced=false#eid (accessed
22 September 2021).
516 Emphasis added.

the chapeau as containing a "general rule". The provisions of Articles XIII:2(a) to XIII:2(d) specify
ways in which the general rule in the chapeau of Article XIII:2 may be fulfilled in certain instances.517
7.282. Subparagraph (d), which concerns "cases in which a quota is allocated among supplying
countries" as the means to achieve the "end" stipulated in the chapeau, prescribes two methods
through which the Member concerned may determine the "allocation of shares in the quota" among
Members that have "a substantial interest in supplying the product concerned". The present dispute
involves the second of these methods, which is set out in the second sentence of Article XIII:2(d).
This method requires the Member applying the import restriction at issue to allocate shares in th e
quota for imports of the product concerned among the relevant contracting parties "based upon the
proportions, supplied by such contracting parties during a previous representative period". Aside
from specifying that the previous period to be used for th is purpose must be representative, the
provision does not prescribe how long the period must be or what must be the start and end points
of this period. Notably, the provision refers to "a" previous representative period, not "the" previous
representative period. Further, the second sentence of Article XIII:2(d) also requires the Member
applying the import restriction at issue to take "due account" of "any special factors which may have
affected or may be affecting the trade in the product " when allotting s hares in the quota to the
relevant Members.
7.9.1.2 Whether Turkey has established that the definitive safeguard is inconsistent with
Article XIII:2(d) of the GATT 1994
7.283. Turkey contends that the European Commission acted inconsistently with Article XIII:2(d)
of the GATT 1994 on the following two alternative 518 grounds: (a) the European Commission failed
to properly choose the previous representative period for the purposes of Article XIII:2(d) by not
including the first six months of 2018 in the representative period (the representative period
argument)519; and (b) the European Commission failed to take into account the change in the share
of imports from the exporting countries following "the newly imposed trade defence measures"
during the first half of 2018 as a "special factor" that justified the adjustment of the TRQ allocation
(the special factor argument).520 We will first consider the representative period argument, and then
the special factor argument.
7.9.1.2.1 The representative period argument
7.284. Turkey argues that the European Commission should have included the first six months of
2018 in the reference period used to allocate country-specific shares in the TRQs for relevant product
categories, because the first half of 2018 formed part of the MRP preceding the appl ication of the
safeguard, and because in the first half of 2018 the European Union had introduced new trade
remedy measures.521 According to Turkey, by not including data from the first six months of 2018,
and instead allocating the country-specific shares in the TRQs based on data from January 2015 to
December 2017, the European Commission did not allocate country-specific shares in the TRQs for
various product categories based on the MRP not distorted by the TRQs, and therefore acted
inconsistently with Article XIII:2(d).522
7.285. The European Union argues that there is no general rule in Article XIII:2(d) of the
GATT 1994 always requiring the use of the most recent three -year period preceding the entry into
force of a TRQ. 523 The European Union also asserts that the reference period used by the
European Commission, i.e. 2015-2017, was also a recent one, and meets the criterion of a "previous
representative period".524 According to the European Union, the consideration of average imports
during the last three calendar years prior to the initiation of the investigation (in this instance,
2015-2017) fulfils the requirements of Article XIII of the GATT 1994. 525 The European Union also

517 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US), para. 338.
518 Turkey's response to Panel question No. 43, para. 89.
519 Turkey's first written submission, para. 351.
520 Turkey's response to Panel question No. 43, para. 89.
521 Turkey's first written submission, para. 348.
522 Turkey's first written submission, paras. 348 and 351.
523 European Union's first written submission, para. 288; comments on Turkey's response to Panel
question No. 43, para. 70 (both referring to Panel Report, EU – Poultry Meat (China), para. 7.353).
524 European Union's first written submission, para. 290.
525 European Union's first written submission, para. 291.

contends that unlike the obligation in respect of the examination of the increase in imports, the
obligation in respect of the previous representative period did not require a significant focus on the
first six months of 2018. 526 The European Union adds that, in fact, it is important to use full years
to ensure representativeness, because of seasonal variations.527
7.286. We note that in the definitive determination the European Commission determined that a
country-specific TRQ should be allocated to countries having a share of more than 5% of imports for
the product category concerned in the period 2015 -2017, and that a global TRQ based on the
average of the remaining imports in the same period should be allocated to all other supplying
countries.528 The Commission based the size of the TRQs, country-specific as well as global, on the
average volume of imports in the period 2015-2017, plus 5%.529
7.287. Referring to the panel reports in EC – Bananas III (Article 21.5 – Ecuador) and US – Line
Pipe, Turkey argues that it is necessary for the "previous representative period" for purposes of
Article XIII:2(d) to be the MRP not distorted by restrictions, i.e. not distorted by the TRQ in
question.530 Turkey argues that to achieve this, the European Commission should have allocated
country-specific shares in the TRQs based on data including the first half of 2018.531
7.288. We note that the second sentence of Article XIII:2(d) requires the allocation of
country-specific shares in a TRQ based on proportions suppli ed by the relevant Members during
"a previous representative period ".532 The use of the indefinite article "a" instead of the
definite article "the" in reference to the notion of "previous representative period" shows that the
Member applying the TRQ has a margin of discretion in selecting a previous period that it considers
to be representative for the purpose of allocating country -specific shares in the TRQ at issue. 533
Indeed, the panel in EC – Bananas III (Article 21.5 – Ecuador), to which Turkey refers in support of
its contention, noted that "Members have a degree of discretion in choosing a previous
representative period".534 We also do not consider that the observation of the panel in US – Line
Pipe referred to by Turkey that "trade flows before the imp osition of a safeguard measure provide
an objective, factual basis for projecting what might have occurred in the absence of that measure"
supports the proposition that only the MRP before the application of the TRQ, including where
applicable the most recent half-year, could constitute a valid previous representative period for the
purpose of Article XIII:2(d).
7.289. The period 2015-2017 used by the European Commission to allocate country-specific shares
in the TRQs comprised the most recent three calendar y ears before the initiation of the
investigation.535 We have some difficulty with the notion that the European Union could be held to
have acted inconsistently with Article XIII:2(d) of the GATT 1994 on the ground that the period it
used to allocate shares in the TRQs was not the most recent, despite the inclusion of the three most
recent full years before the initiation of the investigation. In our view, the
European Commission's decision to consider the most recent three calendar years before the
initiation of the investigation for the allocation of country-specific shares in the TRQs was within the
margin of discretion available to the European Commission in selecting a previous representative
period pursuant to Article XIII:2(d) of the GATT 1994. Therefore, we reject Turkey's contention that

526 European Union's first written submission, paras. 292-294.
527 European Union's first written submission, para. 295.
528 Definitive determination, (Exhibit TUR-5), recitals 146-147.
529 Definitive determination, (Exhibit TUR-5), recitals 144 and 146-147.
530 Turkey's first written submission, para. 351 (referring to Panel Reports, EC – Bananas III
532 Emphasis added.
533 We note that the panel in EU – Poultry Meat (China) also took the view that "the reference to
'a' previous representative period in Article XIII:2(d) implies that there is no general rule that applies in all
cases regarding the selection of the reference period". (Panel Report, EU – Poultry Meat (China), para. 7.349).
534 Panel Report, EC – Bananas III (Article 21.5 – Ecuador), para. 6.50. We also note that the
observation of the panel to which Turkey refers in support of its contention was made by the panel when
discussing its view that "if data from a period are out of date or imports distorted because the relevant market
is restricted, then using that period as a representative period cannot achieve the aim of the chapeau".
(Ibid. para. 6.39). In this case, Turkey has not argued that data from the period 2015-2017, which were used
by the European Commission to allocate country-specific shares in the relevant TRQs, were "out of date".
Turkey has also not contended that imports in this period were distorted by restrictions.
535 The notice of initiation of the investigation is dated 26 March 2018. (Notice of initiation,
(Exhibit TUR-1), p. 29).

the European Commission was obliged to include data from the first six months of 2018 in the period
used as the basis to allocate country -specific TRQs on the basis that these were the most recent
data undistorted by the TRQs.
7.290. Turkey also argues that the use of data relating to the first six months of 2018 was necessary
because the European Commission had imposed a number of trade remedies in that period that
resulted in a significant change in the shares of imports from a number of countries. 536 Turkey
contends that imports from countries not subject to AD/CV measures increased to the detriment of
imports from countries subject to those measures.537 Turkey asserts that had the first six months of
2018 been included in the period based on which country -specific shares were allocated,
Turkey would have received larger country -specific quotas and would have been allocated a
country-specific TRQ for at least two additional product categories.538
7.291. We consider that the imposition of trade remedies by the European Commission in the first
six months of 2018 does not establish that the period 2015 to 2017 could not have been a previous
representative period for the purpose of the second sentence of Article XIII:2(d) of the GATT 1994.
We do not see anything in the text of Article XIII:2(d) that makes a period in which new trade
remedies have been imposed a mandatory part of the "previous representative period" for the
allocation of country-specific shares in the TRQ at issue in a particular investigation. Turkey has not
demonstrated that the imposition of new trade remedies in 2018 made it necessary to include the
first six months of 2018 in this proceeding, and indeed it has not even identified the new trade
remedies at issue, or explain ed how they differed from trade remedies already applied during
2015-2017. Therefore, in our view, the imposition of trade remedies by the European Commission
in the first six months of 2018 and any associated change in the proportions of imports supplied by
various countries does not, by itself, call into question the representativeness of the period 2015 to
2017 for the purpose of Article XIII:2(d) in this case. In this regard, we agree with the observation
of the panel in EU – Poultry Meat (China) that "there is nothing unusual about Members applying
WTO-consistent measures which may, directly or indirectly, affect the importation of certain
products".539 Thus, we do not consider that the application of trade remedies in 2018 undermined
the representativen ess of the period 2015 -2017 for the purposes of the second sentence of
Article XIII:2(d) of the GATT 1994.
7.292. Finally, we note Turkey's assertion that the European Commission's consideration of data
from the first six months of 2018 in its examination of incr ease in imports "confirms that the data
relating to that period was reliable and relevant for the purpose of imposing the safeguard measures
at issue".540 To the extent that Turkey is arguing that the inclusion of the first six months of 2018 in
the examina tion of increase in imports obliged the European Commission to include the first
six months of 2018 in the period based on which it allocated country-specific shares in the TRQs, we
disagree. Article XIII:2(d) does not necessarily require the period used a s the "previous
representative period" to allocate country -specific shares in a TRQ and the period used by the
competent authority to examine increased imports in a safeguard investigation to be identical.
Indeed, in this case, even under Turkey's arguments the two periods would not correspond, given
that the European Commission assessed the increase in imports based on data for 2013-June 2018,
whereas we understand Turkey to be calling for an allocation of TRQ shares based on data for
2015-June 2018. We therefore reject Turkey's additional argument.
7.293. Based on the foregoing, we reject Turkey's contention that the European Commission was
required to include the first six months of 2018 in the period based on which it allocated
country-specific shares in the r elevant TRQs to fulfil the requirements of Article XIII:2(d) of the
GATT 1994. Having rejected Turkey's contentions concerning the representative period, we now

537 Turkey's first written submission, para. 348; response to Panel question No. 43, para. 88.
538 Turkey's first written submission, paras. 349-350.
539 Panel Report, EU – Poultry Meat (China), para. 7.337. Although this observation was made by the
panel when addressing the question whether certain sanitary and phytosanitary (SPS) measures that reduced
China's ability to export the relevant products were a "special factor" under Article XIII:2(d), we consider that
based on the same logic, AD/CV measures do not, in and of themselves, undermine the representativeness of
the reference period selected to allocate shares in a TRQ in all circumstances.
540 Turkey's second written submission, para. 238.

proceed to examine the special factor argument, which Turkey presented as an alternative to the
representative period argument.541
7.9.1.2.2 The special factor argument
7.294. Turkey argues that the change in the share of imports from the exporting countries following
the new trade remedies imposed during the first half of 2018 was a "special factor" that required an
adjustment to the TRQ allocations. 542 Turkey asserts that the r eduction in imports following the
imposition of the new AD/CV measures from the countries subject to those measures constitutes a
special factor that has affected or is affecting the trade in the product concerned.543 Referring to the
report of the panel in EU – Poultry Meat (China), Turkey argues that the reference in Article XIII:2(d)
of the GATT 1994 to special factors that "may be affecting" trade implies that a special factor that
the competent authority ought to consider in allocating shares in a TRQ may arise between the end
of the representative period and the time of the allocation of the TRQ.544
7.295. We agree with Turkey that by referring to " special factors which … may be affecting" trade
in the product concerned, Article XIII:2(d) recognizes the possibility that developments outside the
previous representative period could constitute special factors, of which due account must be taken
in the allocation of shares. We also note that the panel in EU – Poultry Meat (China) found that "in
certain exceptional (i.e. 'special' circumstances), changes in the imports shares held by different
Members that have occurred between the end of the representative period selected and the time of
the TRQ being allocated" could constitute a special factor under Article XIII:2(d) of the GATT 1994.545
However, in that dispute China put forth evidence before that panel that indicated that the increase
in China's imports into the European Union following the relaxation of certain EU sanitary and
phytosanitary (SPS) measures after the representative period at issue was "significant[]",
"dramatic", "steady", "continuous" and "rapid". 546 In contrast, Turkey has not placed sufficient
evidence before us that would illustrate the existence, or the ex tent, of the purported "change in
the share of imports from the exporting countries" and "the reduction in imports … from countries
subject to those measures" that, according to Turkey, took place following the imposition of the new
AD/CV measures by the European Union in 2018.547
7.296. In its first written submission, Turkey provided data illustrating the difference between the
country-specific TRQs that the European Commission allocated to Turkey for various product
categories and Turkey's annual average import volumes for those product categories based on data
from 2015 to June 2018.548 According to Turkey, these data show that Turkey would have received
larger country-specific shares in the TRQs if the shares had been allocated based on data from 2015
to June 2018, and that Turkey also would have been allocated country -specific TRQs for
two additional product categories.549 While we agree that the data period that Turkey believes the
European Union should have used would have been more beneficial to Turkey for several product
categories, this fact, without more, does not establish that special factors existed that the
European Commission was required to account for when it allocated the country-specific TRQ shares.
The data submitted by Turkey do not show that the difference in the proportions of EU imports from
Turkey that Turkey points to arose due to the imposition of trade remedies in the first half of 2018,
and indeed Turkey has not even identified those new trade remedies.
7.297. We also note that the data that Turkey provided show that for certain product categories,
namely product categories 9, 19, 25, and 26, Turkey's annual average import volume based on data
from 2015 to June 2018 was in fact lower than the country -specific TRQ that the
European Commission allocated to Turkey based on data from 2015 -2017.550 Further, for
two product categories, 4 and 27, in respect of which Turkey argues that it would have received a
country-specific TRQ had the European Commission used data from 2015 to June 2018, we note

541 Turkey's response to Panel question No. 43, para. 89.
542 Turkey's response to Panel question No. 43, para. 89.
543 Turkey's response to Panel question No. 43, para. 89.
544 Turkey's response to Panel question No. 43, para. 89 (referring to Panel Report, EU – Poultry Meat
(China), para. 7.355).
545 Panel Report, EU – Poultry Meat (China), para. 7.363. (emphasis added)
546 Panel Report, EU – Poultry Meat (China), paras. 7.364, 7.366, 7.369, and 7.377.
547 Turkey's response to Panel question No. 43, para. 89.
548 Turkey's first written submission, paras. 349-350.
549 Turkey's first written submission, paras. 349-350.
550 Turkey's first written submission, para. 349.

that Turkey's data show that the change in Turkey's share in the overall imports would have been
only 1% (an increase from 4% to 5%).551 This is sharply in contrast to the magnitude of the change
in China's import share of the two products in respect of which the panel in EU – Poultry Meat (China)
found that the change in import shares following the relaxation of the SPS mea sures was a special
factor. In that proceeding, the evidence demonstrated that China's share for one of the products
rose from 0% in the representative period (2006 -2008) to 27.1% in 2009, 40.7% in 2010, and
52.8% in 2011. Likewise, for the other product, China's share changed from 0% in the
representative period (2006-2008), to 8.7% in 2009, 17.6% in 2010, and 61.1% in 2011.552 Notably,
in respect of another product at issue in that case, for which China's import share changed from 0%
in the representative period (2006-2008) to 2.8% in 2009, 1.5% in 2010, and 2.9% in 2011, the
panel did not find that the change in import shares after the representative period constituted a
special factor.553
7.298. Thus, the change in China's import shares of the relevant products following the relaxation
of the SPS measures in EU – Poultry Meat (China) was of a significantly greater magnitude than the
change in Turkey's import shares of several product categories following the imposition of the new
AD/CV measures that Turkey refers to. Therefore, Turkey's reliance on the EU – Poultry Meat (China)
panel report to support the special factor argument is inapposite.
7.299. For these reasons, we do not consider that Turkey has established the existence of a special
factor that the European Commission improperly failed to take into account in allocating
country-specific shares in TRQs for the relevant product categories. We therefore disagree with
Turkey's special factor argument.
7.9.1.3 Whether Turkey has established that the definitive safeguard is inconsistent with
the chapeau of Article XIII:2 of the GATT 1994
7.300. Turkey argues that by failing to take into account the first six months of 2018 in determining
the country-specific shares of TRQs, the European Union also acted inconsistently with the chapeau
of Article XIII:2 of the GATT 1994. 554 According to Turkey, the country -specific shares determined
on the basis of data from 2015-2017 do not approach as closely as possible the shares in the trade
of the products concerned that Turkey would be expected to obtain in the absence of the
safeguard measure.555 In response to a Panel question, Turkey indicated that the same facts and
arguments underly Turkey's claims under Article XIII:2(d) and the chapeau of Article XIII:2 of the
GATT 1994.556
7.301. The European Union argues that it acted in full conformity with Article XIII of the GATT 1994
and ensured that the allocation of the TRQs approached as closely as possible the shares that various
Members may be expected to obtain in the absence of the TRQs.557
7.302. In our evaluation of Turkey's claim under Article XIII:2(d) of the GATT 1994 we have found
that Turkey has not established that data for a period including January to June 2018 w ere
representative of trade flows in the absence of restrictions, but data for the period 2015-2017 were
not. We have also found that Turkey has not established that the changes in import shares of various
countries following the introduction of trade remedies in early 2018 was a special factor that had to
be taken into account in the allocation of country -specific shares in the TRQs. Given that
Turkey's claim under the chapeau of Article XIII:2 of the GATT 1994 rest on these same grounds,
we find that Turkey has not established that the European Union acted inconsistently with the
chapeau of Article XIII:2 of the GATT 1994.
7.9.2 Article 5.2(a) of the Agreement on Safeguards
7.303. Turkey argues that "for the same reasons" as those underlying its claims under the relevant
provisions of Article XIII:2(d) of the GATT 1994, the definitive safeguard is also inconsistent with

551 Turkey's first written submission, para. 350.
552 Panel Report, EU – Poultry Meat (China), para. 7.364.
553 Panel Report, EU – Poultry Meat (China), paras. 7.364 and 7.369.
554 Turkey's first written submission, para. 352.
555 Turkey's first written submission, para. 352.
556 Turkey's response to Panel question No. 44, para. 90.
557 European Union's first written submission, paras. 291 and 296.

Article 5.2(a) of the Agreement on Safeguards. 558 According to T urkey, given that the text of
Article 5.2(a) is "to a large extent identical" to that of Article XIII:2(d), the European Union's failure
to allocate country-specific shares in the TRQs based on a "previous representative period" would
give rise to an incon sistency not only with Article XIII:2(d) of the GATT 1994 but also with
Article 5.2(a) of the Agreement on Safeguards.559, 560
7.304. Referring to the panel report in US – Line Pipe, the European Union contends that
Article 5.2(a) of the Agreement on Safeguards is not applicable to TRQs. 561 Therefore, the
European Union request the Panel to reject Turkey's claim under Article 5.2(a) of the
Agreement on Safeguards.
7.305. Article 5.2(a) of the Agreement on Safeguards provides:
In cases in which a quota is allocated among supplying countries, the Member applying
the restrictions may seek agreement with respect to the allocation of shares in the quota
with all other Members having a substantial interest in supplying the product concerned.
In cases in which this method is not reasonably practicable, the Member concerned shall
allot to Members having a substantial interest in supplying the product shares based
upon the proportions, supplied by such Members during a previous representative
period, of the total quantity or value of imports of the product, due account being taken
of any special factors which may have affected or may be affecting the trade in the
product.
7.306. The European Union, relying on a finding of the panel in US – Line Pipe, argues that a TRQ
is not a "quota" in th e sense of Article 5.2(a) of the Agreement on Safeguards. 562 Turkey, on the
other hand, disagrees with that finding of the panel in US – Line Pipe and argues that TRQs include
a "quota" component, and that Article 5.2(a) applies to TRQs.563
7.307. While the partie s disagree as to whether Article 5.2(a) of the Agreement on Safeguards
applies to TRQs and therefore to the measure at issue, we consider that even assuming arguendo
that it does, Turkey has not established that the European Union acted inconsistently with the
provision. As noted above, Turkey asserts, on the same grounds as those that it relied on in the
context of its claim under Article XIII:2(d) of the GATT 1994, that the European Union's failure to
allocate country-specific shares in the TRQs based on a "previous representative period" gave rise
to an inconsistency with Article 5.2(a) of the Agreement on Safeguards. 564 However, as we have
found above, Turkey has not established that the period used by the European Commission for the
allocation of country -specific shares in TRQs did not qualify as a "previous representative period"
under Article XIII:2(d) of the GATT 1994.565 On this arguendo basis, we consider that the relevant
findings that we made when addressing Turkey's claim under Article XIII:2(d) of the GATT 1994
apply to Turkey's claim under Article 5.2(a) of the Agreement on Safeguards. Therefore, Turkey has
not established that the definitive safeguard was inconsistent with Article 5.2(a) of the
Agreement on Safeguards.

559 Turkey's second written submission, para. 242.
560 See also United States' third-party response to Panel question No. 9, para. 27;
Canada's third-party response to the Panel question No. 9, paras. 3-5; Switzerland's third-party response to
Panel question No. 9, paras. 13-17; and Brazil's third-party response to Panel question No. 9, paras. 25-28.
561 European Union's first written submission, para. 285 (referring to Panel Report, US – Line Pipe,
562 European Union's response to Panel question No. 45, para. 100.
563 Turkey's response to Panel question No. 45, paras. 95-96.
564 Turkey's second written submission, para. 242.
565 We note that the parties have not argued that the notion of "a previous representative period" under
Article 5.2(a) of the Agreement on Safeguards differs substantively from that under Article XIII:2(d) of the
GATT 1994. We need not, and do not, take any view on this issue, because Turkey has argued that the
definitive safeguard is inconsistent with Article 5.2(a) of the Agreement on Safeguards "for the same reasons"
as those underlying Turkey's claim under Article XIII:2(d) of the GATT 1994, and we have disagreed with those
reasons in addressing Turkey's claim under Article XIII:2(d) of the GATT 1994.

7.10 Reduction in the pace of liberalization and increased restrictiveness
7.308. Turkey claims that the definitive safeguard was inconsistent with Articles 7.4 and 5.1 of the
Agreement on Safeguards because the first and the second review regulations 566 made it more
restrictive and reduced its pace of liberalization .567 The European Union contends that
Turkey's claims under Articles 7.4 and 5.1 of the Agreement on Safeguards ought to be rejected.568
7.309. In the sections below, we first address Turkey's claim under Article 7.4 of the Agreement on
Safeguards (section 7.10.1) and we then turn to Article 5.1 of the Agreement on Safeguards
(section 7.10.2).
7.10.1 Article 7.4 of the Agreement on Safeguards
7.310. Turkey argues that the definitive safeguard was inconsistent with Article 7.4 of the
Agreement on Safeguards for the following reasons:
a. by reducing the pace of liberalization of the TRQs from 5% at the end of the first and the
second years of the application of the definitive safeguard (as stipulated in the definitive
determination) to 3% at the same points in time (pursuant to the first review regulation),
the European Union acted i nconsistently with Article 7.4 of the Agreement on
Safeguards569; and
b. certain modifications made to the definitive safeguard through the first and the second
review regulations made the definitive safeguard more restrictive than originally
determined, inconsistently with Article 7.4 of the Agreement on Safeguards.570
7.311. Below, we first recall the applicable requirements of Article 7.4 of the Agreement on
Safeguards (section 7.10.1.1), and we then address each of these arguments, in turn
(sections 7.10.1.2.1 and 7.10.1.2.2).
7.10.1.1 The applicable requirements of Article 7.4 of the Agreement on Safeguards
7.312. The first sentence of Article 7.4 of the Agreement on Safeguards provides:
In order to facilitate adjustment in a situation where the expected duration of a
safeguard measure as notified under the provisions of paragraph 1 of Article 12 is over
one year, the Member applying the measure shall progressively liberalize it at regular
intervals during the period of application.
7.313. The first sentence of Article 7.4 of the Agreement on Safeguards applies to measures with
an expected duration of over one year. The first sente nce provides that the covered safeguard s
"shall" be liberalized progressively at regular intervals. Thus, the first sentence imposes the
obligation on the Member applying a covered safeguard to liberalize the measure (a) "progressively"
and (b) at "regular intervals". The ordinary meaning of "progressive" includes "[p]roceeding by steps
or stages".571 The provision does not prescribe what the magnitude of progressive liberalization
should be at each liberalizing step. The ordinary meaning of "regular" includes "[r]ecurring or taking
place repeatedly at (short) uniform intervals" and "[r]ecurring or repeated at fixed times (although
not necessarily at uniform intervals )".572 The provision does not prescribe how long the regular
intervals between each liberalizi ng step must be, or at what point in time the progressive
liberalization must begin. 573 The first sentence of Article 7.4 also indicates, however, that the

566 See para. 2.4 above.
567 Turkey's first written submission, para. 355.
568 European Union's first written submission, para. 306.
569 Turkey's first written submission, para. 365.
570 Turkey's first written submission, para. 366.
571 Oxford Dictionaries online, definition of "progressive", meaning 3
https://www.oed.com/view/Entry/152244?redirectedFrom=progressive#eid (accessed 22 September 2021).
572 Oxford Dictionaries online, definition of "regular", meanings c and d
https://www.oed.com/view/Entry/161414?redirectedFrom=regular#eid (accessed 22 September 2021).
See also Panel Report, Ukraine – Passenger Cars, para. 7.362.
573 Panel Report, Ukraine – Passenger Cars, paras. 7.363-7.364.

purpose of the requirements contained in the sentence is "to facilitate adjustment" of the domestic
industry.
7.10.1.2 Whether Turkey has established that the definitive safeguard is inconsistent
with Article 7.4 of the Agreement on Safeguards
7.10.1.2.1 Whether the reduction in the pace of liberalization was inconsistent with
Article 7.4
7.314. We recall that in the definitive determination, the European Commission announced that it
would increase the size of each TRQ by 5% at the end of the first and second years of the application
of the definitive safeguard.574 Subsequently, in the first review regulation, the European Commission
changed the pace of liberalization to " 3% + 3% for the second and third year of application of the
safeguard measures".575
7.315. Turkey argues that the requirement under Article 7.4 of the Agreement on Safeguards to
"progressively liberalize" the safeguard "at regular intervals" implies that once the
competent authorities have determined a schedule of liberalization, they cannot decrease the pace
of liberalization.576 Turkey argues that the object and purpose of Article 7.4 of the Agreement on
Safeguards, i.e. to "facilitate adjustment", also supports Turkey's view that Article 7.4 does not
permit a reduction in the pace of liberalization once a schedule of liberalization has been announced,
because a reduced pace would create a disincentive for the domestic industry to undertake
adjustment.577 Turkey posits that the requirement of progressive liberalization is consistent with the
reference in the preamble of the Agreement on Safeguards to "the importance of structural
adjustment and the need to enhance rather than limit competition in international markets". 578
Turkey argues that the immediate context provided by the second and third sentences of Article 7.4
also supports Turkey's view that once announced, the pace of liberalization cannot be decreased.579
On this basis, Turkey argues that the European Union acted inconsistently with Article 7.4 of the
Agreement on Safeguards by reducing the pace of liberalization from 5% to 3% for the second and
the third years of the application of the definitive safeguard.580
7.316. The European Union argues that by setting the pace of liberalization at 3% for the second
and third years of the application of the definitive safeguard, it fulfilled the requirement of
progressive liberalization set out in Art icle 7.4 of the Agreement on Safeguards. 581
The European Union contends that nothing in the text of the Agreement on Safeguards supports
Turkey's view that once a competent authority has determined a schedule of liberalization, it cannot
decrease the pace of liberalization.582 The European Union argues that acceptance of Turkey's view
would imply that a Member that announces a pace of liberalization of 5% after each year of operation
of the measure and then revises it to 3% will be found to have acted inconsistently with Article 7.4,
but not a Member that applies the 3% liberalization pace after each year of operation of the measure
without making any initial announcement. According to the European Union, this would incentivize
Members to announce a low pace of liberalization in itially, thus forestalling the announcement of a
higher pace of liberalization that would provide a "more demanding signal to the domestic industry
as regards how it is expected to adjust".583
7.317. Among the third parties, the Republic of Korea takes the view th at, as there are no
WTO disciplines governing the degree of liberalization that a Member must implement, as long as a
safeguard measure applied for longer than one year is liberalized at regular intervals, the degree of
each liberalization could vary.584 For the United Kingdom, Article 7.4 of the Agreement on Safeguards
does not prohibit a reduction in the pace of liberalization after an initial schedule of liberalization had

574 Definitive determination, (Exhibit TUR-5), recital 188; First review regulation, (Exhibit TUR-9),
recital 134.
575 First review regulation, (Exhibit TUR-9), recital 147.
576 Turkey's first written submission, para. 356; second written submission, paras. 247-249.
577 Turkey's second written submission, para. 252.
578 Turkey's second written submission, para. 253.
579 Turkey's first written submission, paras. 357-358; second written submission, para. 250.
581 European Union's first written submission, paras. 300 and 302.
582 European Union's first written submission, paras. 301-302.
583 European Union's first written submission, para. 302.
584 Korea's third-party statement, para. 31.

been set, as long as the revised pace of liberalization results in progressive libe ralization.585
Switzerland argues that Article 7.4 of the Agreement on Safeguards does not permit a reduction in
the pace of liberalization.586
7.318. We recall that Turkey refers to the first sentence of Article 7.4, which requires Members to
progressively liberalize safeguards imposed for more than a year at regular intervals during the
period of application, as the basis for its argument.587 The question before us, therefore, is whether
the first sentence of Article 7.4 precludes a Member from reducing the rate of liberalization to be
achieved at regular intervals after initially announcing a higher rate, as the European Union did in
this case. We consi der that nothing in the ordinary meaning of the text of Article 7.4 of the
Agreement on Safeguards indicates that a Member is necessarily precluded from doing so. Article 7.4
requires Members to "progressively liberalize … at regular intervals". As explained above, this means
that there must be liberalization, in steps, at regular intervals. The liberalization of a safeguard
measure can be "progressive", i.e. p roceeding by steps or stages , even if a Member reduces the
magnitude of liberalization to be achieved at "regular intervals" after initially announcing a different
magnitude.588
7.319. Turkey argues that the "object and purpose of Article 7.4" is "to facilitate adjustment", and
that a reduction in the pace of liberalization relative to the initially announced pace is contrary to
that object and purpose. 589 Turkey refers to the observation of the panel in Ukraine – Passenger
Cars that "[d]elaying liberalization in this way could create a disincentive for the domestic industry
to undertake appropriate efforts at adjustment from the outset of the period of application". 590 We
note that t he panel in Ukraine – Passenger Cars expressed the concern that Turkey refers to in
relation to the issue of a Member "not taking any liberalization steps until a late stage in the period
of application of a safeguard measure". 591 That issue is not the same as the issue before us,
i.e. whether Article 7.4 precludes a Member from reducing the magnitude of liberalization to be
achieved at regular intervals after initially announcing a different magnitude. Therefore, we consider
Turkey's reliance on th is observation of the panel in Ukraine – Passenger Cars to be inapposite.
Aside from this reference to the panel in Ukraine – Passenger Cars, Turkey has not provided any
other basis in support of its assertion that a reduction in the pace of liberalization relative to the
initially announced pace does not facilitate adjustment. We note that even if the Member applying
the safeguard reduces the magnitude of liberalization to be achieved at regular intervals after initially
announcing a different magnitude, the domestic industry will be exposed to a higher amount of
competition from imports after each liberalization. Turkey has not shown why such liberalization will
not facilitate adjustment. Therefore, we disagree with Turkey's argument concerning the objective
of Article 7.4.
7.320. We recall Turkey's argument that the context provided by the first and the second sentence
of Article 7.4 of the Agreement on Safeguards also supports its view that once announced, the pace
of liberalization cannot be decreased. Referring to the report of the panel in Argentina –
Footwear (EC), Turkey argues that the only modifications to a safeguard that the second and
third sentences contemplate are those that decrease its restrictiveness. 592 The second and
third sentences of Article 7.4 provide:
If the duration of the measure exceeds three years, the Member applying such a
measure shall review the situation not later than t he mid-term of the measure and, if

585 United Kingdom's third-party statement, para. 14; third-party submission, paras. 21-22.
586 Switzerland's third-party submission, para. 29.
587 Turkey's first written submission, para. 356.
588 We note that the panel in Ukraine – Passenger Cars found that "a Member can … comply with its
obligation in Article 7.4 even if it has not previously provided a timetable for progressive liberalization". (Panel
Report, Ukraine – Passenger Cars, para. 7.360). The finding made by that panel accords with our
understanding of Article 7.4 of the Agreement on Safeguards. In particular, as noted by the Republic of Korea,
if there is no obligation in Article 7.4 to provide a timetable for liberalization, it seems difficult to conclude that
a change in the magnitude of liberalization to be achieved at "regular intervals" relative to the initially
announced magnitude would per se be a violation of Article 7.4. (See Korea's third-party submission,
para. 32).
590 Turkey's second written submission, para. 252 (referring to Panel Report, Ukraine – Passenger Cars,
para. 7.362).
591 Panel Report, Ukraine – Passenger Cars, para. 7.362.
592 Turkey's first written submission, para. 358; second written submission, para. 250 (referring to Panel

appropriate, withdraw it or increase the pace of liberalization. A measure extended
under paragraph 2 shall not be more restrictive than it was at the end of the initial
period, and should continue to be liberalized.
7.321. The second sentence applies to safeguards whose duration exceeds three years. The second
sentence requires the Member applying such a safeguard to withdraw the measure, or increase the
pace of liberalization, "if appropriate" in light of a review to be performed not later than the mid-term
of the measure. We note that nothing in the second sentence of Article 7.4 bears upon the question
as to whether the pace of liberalization can be slowed relative to the initially announced pace in
situations other than one in which an increase in the pace of liberalization is found to be "appropriate"
pursuant to a review of a measure the duration of which exceed three years. Therefore, we do not
consider that the context provided by the second sentence of Article 7.4 supports the view that the
first sentence of Article 7.4 necessarily precludes a reduction in the pace of liberalization of a
safeguard measure relative to the initially announced pace.
7.322. The third sentence of Article 7.4 applies to "[a] measure extended under para graph 2",
i.e. a safeguard that is extended beyond the duration of four years in accordance with Article 7.2 of
the Agreement on Safeguards. The third sentence stipulates that such a measure shall not be more
restrictive than it was at the end of the initi al period of application. Although this sentence
contemplates an upper limit to the restrictiveness of a certain category of safeguards, in respect of
liberalization the sentence only states that the measure "should continue to be liberalized". This
sentence says nothing about the pace of liberalization even in relation to the specific type of
safeguards to which it applies. Thus, we do not see anything in the third sentence of Article 7.4 that
supports Turkey's view that the first sentence of Article 7.4 necessarily precludes a reduction in the
pace of liberalization relative to the initially announced pace.
7.323. We also consider that Turkey's reliance on the observation of the panel in
Argentina – Footwear (EC) that "[t]he only modifications of safeguard measur es that Article 7.4
contemplates are those that reduce its [sic] restrictiveness (i.e., to eliminate the measure or to
increase the pace of its liberalisation pursuant to a mid-term review)" to be inapposite.593 The panel
made this observation in the context of its evaluation of a claim under Article 12 of the
Agreement on Safeguards concerning Argentina's alleged failure to notify certain modifications to
the safeguard at issue that, in the EC's view, made the m easure more restrictive than originally
applied. The panel noted that the Agreement on Safeguards does not contemplate restrictive
modifications to a safeguard, and hence does not contain notification requirements for such
modifications. However, the panel explicitly declined to express a view as to the substantive
compliance of such modifications with Article 7 of the Agreement on Safeguards.594 Thus, the panel
report referred to by Turkey does not support Turkey's arguments concerning the Article 7.4 claim.
7.324. We are therefore not persuaded that the first sentence of Article 7.4 precludes a Member
from reducing the magnitude of liberalization to be achieved at regular intervals after initially
announcing a different magnitude.
7.325. Turkey contends that the European Commission's adjustment of the pace of liberalization on
the ground that the liberalization foreseen in the definitive determination could cause the import
volume in the third year of the application to reach the same level as that in 2018, was improper.595
Agreeing with Switzerland, Turkey contends that adjusting the pace of liberalization based on
developments after the imposition of the definitive safeguard that are unrelated to the increased
imports on the basis of which the safeguard was applied, woul d fail to achieve the purpose of
facilitating adjustment to the new competitive conditions caused by the increased imports. 596
Pursuant to the said adjustment, even though the TRQs would be liberalized by 3% for the second
and the third years of the definit ive safeguard's application instead of 5% as foreseen in the
definitive determination, the domestic industry would nevertheless be exposed to higher levels of
import competition because of that liberalization. Turkey has neither explained nor pointed to
anything in the record evidence that would show why such liberalization would not facilitate
adjustment of the domestic industry in this case.

593 Panel Report, Argentina – Footwear (EC), para. 8.303. (emphasis original)
594 Panel Report, Argentina – Footwear (EC), para. 8.303.
596 Turkey's second written submission, para. 257.

7.326. Thus, we disagree with Turkey's argument that by reducing the pace of liberalization of the
TRQs from 5% for the s econd and the third years of the definitive safeguard's application as
stipulated in the definitive determination, to 3% through the first review regulation, the
European Union made the definitive safeguard inconsistent with Article 7.4 of the Agreement on
Safeguards.
7.10.1.2.2 Whether certain modifications to the definitive safeguard resulted in an
inconsistency with Article 7.4
7.327. Turkey argues that the definitive safeguard is inconsistent with Article 7.4 of the
Agreement on Safeguards because certain modifications introduced with the first and second review
regulations made it more trade restrictive than originally determined.597 The European Union argues
that the modifications to the definitive safeguard made through the first and second review
regulations are consistent with Article 7.4 of the Agreement on Safeguards.598
7.328. Among the third parties, Switzerland argues that the Panel must assess whether the
modifications that Turkey points to made the safeguard more restrictive and, if so, it must conclude
that such modifications are inconsistent with Article 7.4 of the Agreement on Safeguards.599
7.329. Turkey identifies the following modifications to the definitive safeguard , made through the
first and the second review regulations , as having made the definitive s afeguard more restrictive
than originally determined:
a. the establishment of a limitation for each exporting country not to exceed a share of 30%
of the global TRQ for product category 1600;
b. the restriction of imports under product category 4.B to those expo rters that could
demonstrate an end-use in the automotive sector601;
c. the imposition of a cap of 30% per country on the use of the global TRQ for product
categories 13 and 16602;
d. the reduction of the pace of liberalization603;
e. the decision to manage country-specific TRQs on a quarterly basis604;
f. the division of the global TRQ for product category 1 into country -specific TRQs and a
residual TRQ605; and
g. the revision of the system of access to the residual TRQ during the last quarter for the
third year of the definitive safeguard for countries having a country-specific TRQs.606
7.330. We note that in respect of all the modifications listed in the previous paragraph, apart from
items (b) and (d), Turkey has only identified the modifications concerned and asserted that the
modifications made the definitive safeguard more restrictive than originally determined in a manner
inconsistent with Article 7.4 of the Agreement on Safeguards. We do not consider that the mere
identification of these modifications is sufficient , without any accompanying explanation, to
demonstrate that the modifications made the definitive safeguard more restrictive than originally
determined in a manner inconsistent with Article 7.4 of the Agreement on Safeguards. We therefore
consider that Tur key has not established a prima facie case that the modifications identified in

598 European Union's first written submission, para. 305.
599 Switzerland's third-party submission, para. 31.
600 First review regulation, (Exhibit TUR-9), Article 1(1)(a), recital 26.
601 First review regulation, (Exhibit TUR-9), Article 1(1)(a), recitals 29-40.
602 First review regulation, (Exhibit TUR-9), Article 1(1)(b), recital 94.
603 First review regulation, (Exhibit TUR-9), Article 1(2)(b), recital 156.
604 Second review regulation, (Exhibit TUR-12), Article 1(1)(a) and Annex II, recital 40.
605 Second review regulation, (Exhibit TUR-12), Article 1(1)(a) and Annex II, recital 49.
606 Second review regulation, (Exhibit TUR-12), Article 1(1)(b) and Annex III, recital 88.

items (a), (c), (e), (f), and (g) above made the definitive safeguard more restrictive than originally
determined in a manner inconsistent with Article 7.4 of the Agreement on Safeguards.
7.331. We therefore turn to address Turkey's argument concerning the modification to the definitive
safeguard listed in item (b) in paragraph 7.329 above, namel y the restriction of imports under
product category 4.B to those exporters that could demonstrate an end-use in the automotive sector.
In the first review regulation, the European Commission introduced a requirement for importers to
demonstrate that the product concerned was intended for end-use in the automotive sector, in order
to be categorized in product category 4.B (automotive end -use requirement).607 At the same time,
the European Commission extended and revised the scope of product category 4.A to en sure that
products that were no longer eligible to be categorized in product category 4.B could be categorized
as belonging to product category 4.A.608 Turkey argues that with the introduction of the automotive
end-use requirement, the access to the TRQ for product category 4.B became more burdensome,
and thus more restrictive than originally determined and therefore inconsistent with Article 7.4 of
the Agreement on Safeguards.609
7.332. We note, and the parties confirmed 610 in response to a question from the Panel, that the
automotive end -use requirement was revoked retroactively through the amending regulation of
15 January 2020, less than four months after being introduced through the first review regulation,
which entered into force on 1 October 2019.611 Given that the automotive end -use requirement is
no longer in force, we need not consider Turkey's argument concerning the automotive end -use
requirement in order to resolve the present dispute, and we decline to do so.
7.333. As regards Turkey's argument concerning item (d) in paragraph 7.329 above, namely the
reduction in the initially announced pace of liberalization , we have already rej ected
Turkey's arguments concerning the consistency of this modification with Article 7.4 of the
Agreement on Safeguards in section 7.10.1.2.1 above.
7.10.2 Article 5.1 of the Agreement on Safeguards
7.334. Turkey argues that by making the definitive safeguard more restrictive than originally
determined and by reducing the pace of liberalization through the first and the second review
regulations, the European Union failed to apply the definitive measure only to the extent necessary
to prevent serious injury and to facilitate adjustment, thus acting inconsistently with Article 5.1 of
the Agreement on Safeguards.612 Specifically, Turkey argues that by increasing the restrictivene ss
and reducing the pace of liberalization of the definitive safeguard when the assessment of injury or
threat thereof remained the same, the European Union no longer applied the definitive safeguard
only to the extent "necessary to prevent or remedy serious injury".613 Further, according to Turkey,
by making the definitive safeguard more restrictive and reducing the pace of liberalization, the
European Union also created a disincentive for the domestic industry to undertake appropriate
efforts at adjustment.614
7.335. The European Union contends that the Panel must reject Turkey's claim under Article 5.1 of
the Agreement on Safeguards.615
7.336. We note that Turkey relies on the same facts and arguments to support its claim under
Article 5.1 of the Agreement on Safeguards as it did to support its claim under Article 7.4 of the
Agreement on Safeguards, addressed in section 7.10.1.2 above. We found above in

607 First review regulation, (Exhibit TUR-9), recital 35.
608 First review regulation, (Exhibit TUR-9), recital 37.
609 Turkey's second written submission, para. 262.
610 Turkey's response to Panel question No. 53, para. 1; European Union's response to Panel question
No. 53, para. 7.
611 European Commission Implementing Regulation (EU) 2020/35, (Exhibit TUR-10), recital 9 ("[t]he
present Regulation should be given retroactive effect, thereby revoking, as from 1 October 2019, the end-use
requirement introduced by the amending Regulation"); First review regulation, (Exhibit TUR-9), Article 3,
recital 36.
612 Turkey's first written submission, para. 367. We recall that Turkey also presented other arguments in
support of its claim under Article 5.1, which we have examined separately, in section 7.8.1 above.
613 Turkey's first written submission, para. 367.
614 Turkey's first written submission, para. 367.
615 European Union's first written submission, para. 306.

section 7.10.1.2.2 that Turkey did not provide any explanation as to how the relevant modifications
to the definitive safeguard made through the first and the second review regulations that Turke y
points to made the measure more restrictive in a manner that would give rise to an inconsistency
with Article 7.4 of the Agreement on Safeguards. 616 We also rejected in section 7.10.1.2.1
Turkey's contention that the reduction in the pace of liberalization of the definitive safeguard
necessarily creates a disincentive for the domestic industry to undertake adjustment. Given that
Turkey's claim under Article 5.1 rests on the same grounds and suffers from the same flaws, we find
that Turkey has not established that the European Union acted inconsistently with Article 5.1 of the
Agreement on Safeguards.
7.11 Article II:1 of the GATT 1994
7.337. Turkey also claims that the definitive safeguard is inconsistent with Article II:1(b) of the
GATT 1994. Turkey argues that the 25% out -of-quota duty set out in the definitive safeguard
constitutes "other duties or charges" within the meaning of Article II:1(b), and that as a result of
the claimed inconsistencies with Article XIX:1(a) of the GATT 1994, those duties or charges are not
excused by Article XIX and are therefore inconsistent with Article II:1(b).617
7.338. We recall that we have already found that the definitive safeguard (i) is inconsistent with
Article XIX:1(a), because the European Commission did not establish that the increase in imports
was "as a result of" the unforeseen developments it relied upon and did not identify the obligations
whose effect resulted in the injurious increase in imports, and (ii) is inconsistent with Article 4.1(b)
of the Agreement on Safeguards, because it rests on a determination of threat of injury that is not
"based on facts". In view of this, we do not find it necessary to examine whether, for the same
reasons, the definitive safeguard is also inconsistent with Article II:1 of the GATT 1994.
8 CONCLUSIONS, RECOMMENDATION, AND REQUEST FOR A SUGGESTION
8.1. For the reasons set out in this Report, we conclude as follows:
a. Turkey has established that the definitive safeguard is inconsistent with:
i. Article XIX:1(a) of the GATT 1994, because the European Commission did not
ascertain that the increase in imports to ok place as a result of the
unforeseen developments it had identified, and did not identify in its published reports
the obligations whose effect resulted in the increase in imports; and
ii. Article 4.1(b) of the Agreement on Safeguards, because two central el ements of the
European Commission's determination of a threat of serious injury were not "based on
facts" as required by that provision.
b. Turkey has not established that the definitive safeguard is inconsistent with:
i. Article XIX:1(a) of the GATT 1994 and Ar ticles 2.1, 3.1, 4.1(c), 4.2(a), 4.2(b), and
4.2(c) of the Agreement on Safeguards because of the
European Commission's approach to product scope;
ii. Article XIX:1(a) of the GATT 1994 and Articles 2.1 and 4.2(a) of the Agreement on
Safeguards because of alleged errors in the European Commission's determination of
an increase in imports;
iii. Article 5.1 of the Agreement on Safeguards because the European Commission did not
take into account data from the first six months of 2018 in determining the size of the
TRQs, or because of the double remedy regulation, or because the European Union
reduced the pace of liberalization or allegedly made the measure more restrictive;

616 As noted in para. 7.332 above, we need not make findings on Turkey's arguments concerning the
automotive end-use requirements as that requirement is no longer in force.
617 Turkey's first written submission, paras. 375-380.

iv. Article XIII:2(d) and the chapeau of Article XIII:2 of the GATT 1994 and Article 5.2(a)
of the Agreement on Safeguards because the European Commission did not take into
account data from the first six months of 2018 in allocating the TRQs; and
v. Article 7.4 of the Agreement on Safeguards because the European Union reduced the
pace of liberalization and allegedly made the measure more restrictive.
c. We do not consider it necessary to decide whether the definitive safeguard is inconsistent
with:
i. Articles 4.1(a) and 4.2(a) of the Agreement on Sa feguards for reasons substantively
identical to those put forward under Article 4.1(b) of the Agreement on Safeguards;
ii. Article 2.1 of the Agreement on Safeguards as a consequence of the inconsistency with
Article 4.1(b) of the Agreement on Safeguards;
iii. Article 4.2(b) of the Agreement on Safeguards because of errors in the determination
of causation;
iv. Articles 2.1, 5.1, and 7.1 of the Agreement on Safeguards as a con sequence of the
claimed inconsistency with Article 4.2(b) of the Agreement on Safeguards; and
v. Article II:1(b) of the GATT 1994 as a consequence of the inconsistency with
Article XIX:1(a) of the GATT 1994.
d. The automotive end-use requirement is no longer in force, and we do not consider it in
reviewing the definitive safeguard.
e. The provisional safeguard is no longer in force , and we do not make findings on its
consistency with the covered agreements.
8.2. Under Article 3.8 of the DSU, "where there is an infringement of the obligations assumed under
a covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment". We conclude that, to the extent that the definitive safeguard is inconsistent with the
GATT 1994 and the Agreement on Safeguards, it has nullified or impaired benefits accruing to Turkey
under those agreements.
8.3. Pursuant to Article 19.1 of the DSU, we recommend that the European Union bring its measure
into conformity with the Agreement on Safeguards and the GATT 1994.
8.4. In addition to requesting recommendations, Turkey asks us to suggest that the European Union
implement our recommendation by revoking the safeguard at issue, pursuant to Article 19.1 of the
DSU.618
8.5. Article 19.1 of the DSU contains two prongs. First, "[w]here a panel or the Appellate Body
concludes that a measure is inconsistent with a covered agreement, it shall recommend that the
Member concerned bring the measure into conformity with that agreement ".619 Thus, panels are
required to make such a recommendation when an inconsistency is established. Second, "[i]n
addition … the panel or Appellate Body may suggest ways in which the Member concerned could
implement the recommendations".620 Thus, suggestions are additional to recommendations, and the
choice whether to make such suggestions falls squarely within the discretion of each panel.621

618 Turkey's first written submission, para. 382.
619 Emphasis added; fn omitted.
620 Emphasis added.
621 See also e.g. Appellate Body Report, US – Continued Zeroing, para. 389.

8.6. Some panels have made suggestions under Article 19.1 of the DSU.622 Others have preferred
to decline to do so, reasoning in pa rticular that the choice on the manner of implementation is, in
the first place, for the Member concerned.623
8.7. In this case, we decline to make a suggestion under Article 19.1 of the DSU.
Underwear, paras. 8.1-8.3; Mexico – Steel Pipes and Tubes, paras. 8.7-8.12; Ukraine – Passenger Cars,
paras. 8.7-8.8; US – Lead and Bismuth II, para. 8.2; India – Quantitative Restrictions, paras. 7.1-7.7; EC –
Bananas III (Article 21.5 – Ecuador), paras. 6.154-6.159; EC – Trademarks and Geographical Indications
(Australia) and EC – Trademarks and Geographical Indications (US), paras. 8.4-8.5; EC – Export Subsidies on
Sugar (Australia), EC – Export Subsidies on Sugar (Brazil), and EC – Export Subsidies on Sugar (Thailand),
paras. 8.6-8.8; and Pakistan – BOPP Film (UAE) [appealed by Pakistan 22 February 2021], para. 9.6.
623 See e.g. Panel Report, Australia – Anti-Dumping Measures on Paper, para. 8.6.