UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON RIPE OLIVES FROM SPAIN REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 17 May 2019
Document codes: WT/DS577/3
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, India, Japan, Mexico, Russia, Saudi Arabia, Switzerland, Turkey
Dispute stage: Panel
Agreements cited: Art. 1.1(a), 1.1(b), 1.2, 2.1(a), 2.1(b), 2.1(c), 2.4, 10, 14, 15.1, 15.2, 15.5, 19.1, 19.3, 19.4, 22.5, 32.1  Subsidies and Countervailing Measures (SCM)

UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON
RIPE OLIVES FROM SPAIN
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
The following communication, dated 16 May 2019, from the delegation of the European Union to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 28 January 2019 the European Union (EU) requested consultations with the United States (US)
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU) , Article 30 of the Agreement on Subsidies and Countervailing Measures
(SCM Agreement), Article 17 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (Anti -dumping Agreement) and Article XXIII of the General
Agreement on Tariffs and Trade 1994 (GATT 1994) concerning the imposition of countervailing (CVD)
and anti-dumping (AD) duties on ripe olives from Spain.1
The consultations took place in Geneva on 20 March 2019 and failed to resolve the dispute. Hence
the EU is requesting the establishment of a panel pursuant to Article 4.7 of the DSU.
The measures at issue are the CVD and AD duties on ripe olives from Spain, as well as the
US administrative acts and legislation that were the basis for the imposition of these duties. These
measures include and are evidenced by the following instruments / documents:
• CVD and AD duty orders issued on 1 August 2018 by the US Department of Commerce
(DOC) and applicable as from the same date, 2 following final determinations by the DOC 3
and by the US International Trade Commission (ITC);4 and
• Section 771B of the Tariff Act of 1930.5
The EU is concerned that these measures appear to be inconsistent with:
• Articles 19.1, 19.3, 19.4, 1.2, 2.1, 2.1(a), (b) and (c), 2.2 and 2.4 of the SCM Agreement,
because the US is countervailing subsidy programmes and subsi dies that are not specific,
including but not limited to Pillar I payments under the EU Common Agricultural Policy. These
subsidy measures do not explicitly limit access to certain enterprises. They operate on the
basis of objective criteria or conditions that are automatic and strictly adhered to, as well as
being clearly spelled out in official documents. There are no reasons to believe that these
subsidy measures are in fact specific, such as through the use of a programme by a limited

1 WT/DS577/1
2 Ripe Olives from Spain: Amended Final Affirmative Countervailing Duty Determination and
Countervailing Duty Order, 83 FR 37469, 1 August 2018; and Ripe Olives from Spain: Antidumping Duty Order,
83 FR 37467, 1 August 2018
3 Ripe Olives from Spain: Final Affirmative Countervailing Duty Determination, C-469-818, DOC, 11 June
2018, published in 83 FR 28186, 18 June 2018; and Ripe Olives from Spain: Final Affirmative Determination of
Sales at Less Than Fair Value, A-469-817, DOC, 11 June 2018, published in 83 FR 28193, 18 June 2018
4 Ripe Olives from Spain, Investigation Nos 701-TA-582 and 731-TA-1377 (Final), US ITC, July 2018
5 19 U.S.C. § 1677-2

number of certain enterprises, predominant use by certain enterprises, the granting of
disproportionately large amounts to certain enterprises, or the manner in which discretion
has been exercised. The determinations also do not contain findings of de facto specificity.
In any event, no account or proper account has been taken of the extent of diversification
of economic activities within the jurisdiction of the granting authority or the length of time
during which the programmes have been in operation. The subsidy measures are not limited
to certain enterprises located within a designated geographical region within the jurisdiction
of the granting authority. The determinations of specificity are not clearly substantiated on
the basis of positive evidence. The US is therefore imposing countervailing duties on the
import of ripe olives that are not in accordance with the above provisions and that are
inappropriate and in excess of the amount of any subsidy;
• Articles 1.1(b), 10, 14, 19.1, 19.3, 19.4 and 32.1 of the SCM Agreement and Article VI:3 of
the GATT 1994, because, with respect to these subsidy measures, the DOC did not carry out
a pass -through analysis to assess to what extent subsidies to olive growers, the direct
recipients of the benefit conferred by the subsidy progr ammes and the subsidies, pass -
through to the processors of ripe olives. The US is therefore imposing countervailing duties
on the import of ripe olives that are not in accordance with the above provisions and that
are inappropriate and in excess of the amount of any subsidy found to exist with respect to
ripe olives. In addition, Section 771B of the Tariff Act of 1930, which mandates this
approach, appears to be as such inconsistent with the same provisions;
• Article VI:3 of the GATT 1994, and Articles 15. 1, 15.2 and 15.5 of the SCM Agreement, as
a consequence of one or both of the preceding points and because, in any event, the ITC did
not properly factor into the determination of injury the evolution in the volume of subsidized
imports, or the effect of t he subsidised imports on prices, and did not demonstrate the
required causal relationship between subsidized imports and injury to the domestic industry,
also taking into account non -attribution factors. The injury determination is not based on
positive ev idence and does not involve an objective examination of the volume of the
subsidized imports and their effects on prices, and the consequent impact on the domestic
producers. Moreover, in the absence of relevant information, which was redacted from the
report of the ITC, the US did not disclose all relevant information as required under Article
22.5 of the SCM Agreement, including during the consultations. For the same reasons, the
dumping measures appear to be inconsistent with Articles VI:1 and VI:2 of the GATT 1994,
and Articles 3.1, 3.2 and 3.5, and Article 12.2.2 of the Anti-Dumping Agreement; and
• Article VI:3 of the GATT 1994, and Articles 1.1(a), 1.1(b), 10, 14, 19.1, 19.3, 19.4 and 32.1
of the SCM Agreement and Article VI:3 of the GATT 1994, because the calculation of the
final subsidy rate for Aceitunas Guadalquivir was erroneously based on the company’s total
amount of purchases of raw olives, regardless of the processed olive product for which the
raw olives were used. This means that the determinations regarding the amount of financial
contribution and benefit, "pass -through", and the amount of the countervailing duties
imposed are erroneous, inappropriate and excessive. Furthermore, the interested party was
not given notice of the information req uired or ample opportunity to present evidence
considered relevant, as required by Article 12.1; the authorities did not properly satisfy
themselves as to the accuracy of the relevant information, as required by Article 12.5; and
the authorities failed to inform all interested parties of the essential facts, as required by
Article 12.8. In addition, the "all others" rate determined by the authorities is inconsistent
with the same provisions for the same reasons.
In light of the above, it appears that the US by imposing CVD and AD duties on ripe olives from
Spain has failed to carry out its obligations, and has nullified or impaired benefits accruing to the EU
directly or indirectly under the cited agreements.
This panel request relates to the measures at iss ue and to any amendments, supplements,
extensions, replacement measures, renewal measures and implementing measures.